The case involved the police search of Alabama resident Bennie Dean Herring’s truck. After a local crime database indicated Herring was wanted for arrest in a neighboring county, police searched his truck, finding methamphetamines and and an illegal firearm. Minutes after the search, attempting to retrieve the original arrest warrant from the system, police realized that the warrant had expired five months earlier.

Herring later challenged his arrest in court, arguing that the exclusionary principle of the Fourth Amendment, which prevents evidence obtained in an illegal search from being presented in court, applied in his case.

In the Supreme Court ruling, the 5-4 majority held “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements,the exclusionary rule does not apply.”

In their unsuccessful Amicus brief to the court, EPIC warned that in an age where the use of electronic databases is increasing, removing database errors from the exclusionary principle would extinguish a key motivation for accuracy.

To allow law enforcement agencies to rely on inaccurate data will exacerbate further a problem that implicates both the fairness of the criminal justice system as well as the design and operation of government information systems….to permit a good faith reliance on data that is inaccurate, incomplete, or out of date will actually exacerbate the problem and increase the likelihood of unfair treatment in the criminal justice system.

Tom Goldstein at SCOTUS Blog points out a key aspect of how the decision might impact police conduct:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake – i.e., he is merely negligent – the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct….

The rubber will hit the road in cases in which the officers’ error is one of fact, not law. Herring is such a case – the officer is said to have reasonably relied on the information provided by a police warrant clerk. But what about the more common circumstance in which an officer, based on information not provided by anyone else, negligently but erroneously concludes that probable cause exists. For example, the officer believes that an individual is wanted for arrest but doesn’t call to confirm that fact, or the officer believes that a bag contains marijuana but a closer inspection would have shown otherwise. In the past, those cases would have automatically triggered the exclusionary rule – the Fourth Amendment violation required exclusion.

And the data about circumventing users is much more sensitive than the data about most ISP users. These are the histories of users browsing sites that are not only blocked (and therefore mostly sensitive in one way or another) but blocked by an authoritarian country with an active policy and practice of persecuting dissidents. The mere act of anyone, let alone projects proclaiming themselves for internet freedom, storing this data is very bad practice. Any data that is stored can be potentially be shared or stolen. The best way to make sure that dangerous data like this does not get into the wrong hands is not to store it in the first place.

Since the posting, both Peter Li, head of technology at GIFC and Bill Xia, CEO of DynaWeb, have stated that none of the partner sites sell individual user data. In a comment posted at Roberts’ blog, Li states:

We apologize for the confusion here. The anti-censorship ranking service is provided by one of the GIFC partners. It only publishes the popularity ranks of destination websites users visit through our anti-censorship tools. It is similar to alexa.com but is only limited to anti-censorship web traffic.

The ranking service is not authorized to access, nor can it access, the data users transmit on the wire. It is not authorized to release logs containing information on the websites any individual user visits either.

The FAQ for the ranking service was not written properly, as originally “user” there meant website owners who may be interested in getting detailed statistics on how their websites are visited through our anti-censorship tools. We apologize that we have overlooked the wording.

The GIFC partner who runs the ranking service, the World Gates’ Inc, has been notified, and that FAQ entry has been removed. Thank you for discovering the problem.

Given the solid reputations of the people involved, I have no cause to question or doubt this explanation. The entire incident, however, raises some important questions about anonymizing services and private VPNs and the danger of misplaced trust. It also leaves some questions unanswered about how user data is stored by these individual circumvention services and how such data might become accessible to state policing organizations at some future date. I agree with Roberts that the only way to ensure that data is not available is “not to store it in the first place.” To date, there are no laws in the US that require ISPs or web service providers to store user data, so such a service remains within the realm of possibility, at least for the time being.

Full story at Secrecy News.

From January 2005 to September 2007, Verizon provided data to federal authorities “on an emergency basis” 720 times. The records included Internet protocol addresses as well as phone data. In that period, Verizon turned over information a total of 94,000 times to federal authorities armed with a subpoena or court order. The information was mainly used for a range of criminal investigations including counter-terrorism investigations (The Washington Post, October 16, 2007).

In August 2007, the United States’ National Intelligence Director Mike McConnell revealed that fewer than 100 people inside the United States are monitored under the Foreign Intelligence Surveillance Act (FISA) warrants. However, he said, thousands of people overseas are monitored (The Associated Press, August 23, 2007). The FBI is embarking on a 1 billion U.S. dollars effort to build the world’s largest computer database of peoples’ physical characteristics, called Next Generation Identification, a project that would give the government unprecedented abilities to identify individuals in the United States and abroad. The increasing use of biometrics for identification is raising questions about the ability of Americans to avoid unwanted scrutiny (FBI Prepares Vast Database Of Biometrics, The Washington Post, December 22, 2007).

Statistics show that the government’s illegal dragnet electronic surveillance has put sensitive personal information from millions of people at risk. 477 breaches into government databases were found in 2006 alone. More than 162 million records were reported lost or stolen in 2007, triple the 49.7 million that went missing in 2006 (USA Today website, December 10, 2007). In July 2007, the Homeland Security Department granted more than 4 million U.S. dollars to install 175 video cameras on the streets of cities including St. Paul, Madison (Wisconsin State) and Pittsburgh. The Boston Globe estimated that up to hundreds of millions of dollars were being spent by the department to install new surveillance systems around the country, accelerating the rise of a “surveillance society” (The Boston Globe, August 12, 2007).

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It’s been a week since the Senate voted 68-29 to push forward a revised FISA bill that would retroactively immunize telecommunication companies and Internet service providers from prosecution for illegal wiretapping. A number of close friends and associates engaged in voicing their shock and dismay at this blatant disregard for law. While I appreciate, in a sense, this general form of upset with the rising surveillance state, I find it equally dismaying that people have chosen to lock on to this one issue “telecom immunity,” as somehow being the defining struggle. It’s a tiny, tiny component of a much larger problem. A problem that threatens democracy and individual autonomy.

In January, Privacy International released its second annual international privacy index, the result of a survey of 47 countries. Not only was the U.S. among four new countries to join the the UK, Russia, Malaysia and China as endemic surveillance societies, but U.S. privacy protections are actually ranked below China in statutory privacy protection and “surveillance of medical financial, and movement.” Last week, the Washington Post reported that customs agents at U.S. borders reserve the right to temporarily sequester laptops, cell phones and other electronic devices and download data stored on those devices, and engage in this practice with some regularity. Now Amtrak has announced that travels on its trains nationwide will be subject to random searches of their carry on bags.

According to the courts, Americans do not have a reasonable expectation of privacy for most of the web sites they visit on the web. More specifically, any specific website visited that has its own top level domain name and its own unique IP address are registered with your service provider and may be accessed by the government without a court order. (see US v Forrester, 2007).

Virtually all the personally identifiable information (PII) produced in cyberspace can easily be transmogrified into ‘evidence’ even if it was gathered illegally (see US v Jarrett, 2003, p. 7). Ones Facebook profile can be used as evidence in both civil and criminal charges.

The Privacy Act of 1974, which was intended to strictly limit the sharing of data between federal data bases, has all but been abandoned. Vast federal “systems of records” (National Directory of New Hires, National Center for Education Statistics, mtDNA Population Database, National Crime Information Center) are increasingly interconnected with state and private data sources in massive clearing houses such as the Investigative Data Warehouse (IDW) and OneDOJ. This practice of information sharing is being institutionalized within new “fusion centers” popping up all over the country. This dismantling of the Privacy Act is officially denied using the following rationale: data sharing across departments in the government is now a matter of “routine use” during the War On Terror.

According to Donald Kerr, the principal deputy director of U.S. national intelligence, no American should expect to speak or act today without casting a data shadow that is visible to the federal government.

Barring some radical reinterpretations of online space and boundaries, the Fourth Amendment seems doomed to irrelevancy. “Reasonable expectation” of privacy is always relative and will easily accommodate the surveillance “function creep” without limit. The only hope for resistance is a public with a reinvigorated sense of privacy and its connection to true individual autonomy.

As we watch what happens in the House, we must keep in mind that the battle against excessive state surveillance will not be won or lost with this bill. Most importantly, people whose interest in privacy values have been rekindled with this recent Senate betrayal should not feel victorious if this latest attempt at immunity is somehow scuttled. While the public sphere has been focused on the importance of wiretapping, it appears to have neglected the rapid emergence of a dossier society, highly reminiscent of Kafka’s The Trial.

The whole dossier continues to circulate, as the regular official routine demands, passing on to the highest Courts, being referred to the lower ones again, and then swinging backwards and forwards with greater or smaller oscillations, longer or shorter delays….No document is ever lost, the Court never forgets anything. One day – quite unexpectedly – some judge will take up the documents and look at them attentively….And the case begins all over again?” asked K. almost incredulously. “Certainly” said the painter. (Kafka, The Trial, 1925, cited in Solove, 2004, pp. 36-37)

While we fight what appears to be a losing battle over real-time wiretapping we have lost control over our papers and effects, and thus the construction of our own identity. It’s time to look beyond FISA.

Most disappointing, the hard decisions on how to implement Real ID — including how to protect privacy — have been left to the states. Simply put, there are no privacy rules. States are simply encouraged to follow a set of “best practices” for protecting privacy. But there are no consequences if states choose not to do so and thus no guarantees that the personal information collected for Real ID won’t be used for a variety of state and even federal uses, populating and repopulating numerous government databases and easily available to businesses and other interests.

A scheme to train firefighters in major cities to look out for terrorists has raised fears that their iconic standing in American society could be damaged.

Unlike police, firemen and paramedics do not need warrants to get into homes and other buildings during technical inspections of emergency facilities, making them particularly useful for spotting signs of terrorist planning.

Full story in London Telegraph.

As I wrote him back, expressing my relief and my on-going concern for his safety, I also wanted to tell him about my concern for my own country and about my opposition to the Iraq war and the Bush/Cheney administration.

And that’s when a chill swept through me.

Here I was an American e-mailing a Sudanese. Wasn’t this is exactly the kind of communication that the American government was “monitoring”? No warrant necessary.

Who else would be reading what I had to say? How might they interpret my anti-government remarks? How might my e-mail affect Stanislaus, who has relatives living here in the United States? How might they be affected?