US Government surveillance is already in your living room

A recently disclosed classified law enforcement document shows how local, state, and federal agents call into private homes, record the conversations, and prosecute the respondents, all without a search warrant or court order.

A sensitive Department of Justice document obtained by a Freedom of Information Request (FOIA) shows that to begin recording your phone calls and chats for prosecution the government only needs a subjective determination of an “investigative interest” based on “suspicion” or suspected “predilection” to criminal intent.  The government no longer needs probable cause to start investigating and turn your digital life upside down, all they need is a suspicion that you might think favorably about something.

The predilection clause in the investigative protocols means that law enforcement can now set up false sites or profiles that try to entice you to a site the government thinks you might have an interest in or they will record your URL when you use certain search words for future investigation.  Once you are at their targeted site or they find you in a chatroom they will begin soliciting you to commit a crime; subtlety at first, then more boldly once they have you on tape…and you will be liable even if no crime was ever committed.

With the revelations of former NSA contractor Edward Snowden to the The Guardian newspaper over the last few months the veil of secrecy has been partially lifted off the U.S. Government’s intrusive and far reaching surveillance programs that collect private information and communication through cellphone carriers and internet providers. 

Reuters reported how NSA and DEA information collected through these means was funneled down to local law enforcement for the prosecution of American citizens for non-national security crimes.  What was more shocking was that the government encouraged and coached local law enforcement how to lie to judges and defense attorneys about the source of the information that resulted in prosecution. 

The revelations of Snowden and Reuters are sobering, but they are only the macro picture of how the government invades and records personal privacy every day.  The Department of Justice has found that funding and coopting local and state law enforcement into fusion cells and taskforces greatly enhances their ability to collect without judicial oversight and prosecute a wide number of crimes that never actually happen

An example of this federal apparatus is the Internet Crimes Task Force.  Through the Patriot Act and with federal stimulus dollars the Department of Justice has created a web of investigators that create fictitious criminal activity in cyberspace and harvest information and suspects for prosecution.  These taskforces are the action arm of the programs identified by The Guardian and already impact ordinary U.S. citizens every day. 

 

Jay Stanley, a Senior Policy Analyst with the ACLU, wrote in an op-ed for Reuters with Ben Wizner explaining why government access to computer and phone data is a significant invasion of privacy. 

“A Massachusetts Institute of Technology study a few years back found that reviewing people's social networking contacts alone was sufficient to determine their sexual orientation. Consider that metadata from email communications was sufficient to identify the mistress of then-CIA Director David Petraeus and then drive him out of office.

The "who," "when" and "how frequently" of communications are often more revealing than what is said or written. Calls between a reporter and a government whistleblower, for example, may reveal a relationship that can be incriminating all on its own.

Repeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics or a gambling bookie may tell you all you need to know about a person's problems. If a politician were revealed to have repeatedly called a phone sex hotline after 2:00 a.m., no one would need to know what was said on the call before drawing conclusions.”

The collection of metadata and its analysis can give the government intimate looks into a person’s private life…but what if it is the government that is making those 2:00 a.m. sex calls into private homes, recording conversations without a warrant or subpoena, holding the records indefinitely, and then prosecuting the person that answered the phone for any suspected criminal activity discussed…real or imaginary. 

This is not just a scary hypothetical it is actually happening right now.  The Colorado Defense Bar found that by 2009 there had been over 2,000 arrests and nearly 10,000 forensic investigations based on invented crimes created by the Department of Justice and its subordinate taskforces.  These investigations would have included the wide-ranging investigative methods described in The Guardian reports, but they also included far more intrusive methods often allowed or overlooked at the local and state law enforcement level.

Operating “under the color of law” these agencies can call directly into your home under a false identity – let’s say a secret online lover, or someone who suspects you might use drugs so they find you online (because they know your online hangouts) and offers you a good deal on some weed, or a disgruntled political action group wanting to protest a government activity, or maybe even the politician’s sexy chat partner mentioned in the ACLU report - once they get you on the phone or online they try to coerce you into talking about illegal or embarrassing subjects.  As soon as you take part in the conversation you are criminally responsible for everything you say as if you were actually committing a crime.

According to Chris Decker, a criminal and civil rights attorney that has followed these developments, from 2003 - 2010 the Department of Justice poured over $160.4 million tax dollars into 61coordinated task forces representing over 2000 federal, state, and local law enforcement agencies.  In 2009 this program received $50 million through the Recovery Act alone and had a total budget over $75 million; a 471 percent increase over previous years.

The program produced over 230,000 law enforcement, prosecutors, and contract professionals whose job it is, in part, to encourage illegal thought and conversations through deception and then use the broad powers given under the Patriot Act, FISA, and vague state laws to prosecute.

Every conversation is recorded and stored indefinitely without the knowledge of the person being investigated.  If the suspect is not arrested, they will never know that their most intimate thoughts have been recorded, saved, and warehoused by the government.  In Colorado alone there are over 60 partner and affiliated agencies that exploit the internet and phone systems to make arrests without a search warrant, court order, or subpoena.

 

Betty Walker, the FOIA clerk in Colorado that responded to a request asking how many saved digital files had been accumulated said, “I have discussed this with Police Department Personnel. There are no existing reports reflecting the total number of people recorded by telephone or internet chat….As such, there are no counts relative to the total people recorded.”  Walker went on to say that they didn’t know how long it would take to count all the recorded communications because, “we don’t know how many hours of recorded data or number of electronic communications we have.”  Walker did say that it would cost several thousand dollars to find and copy all the recorded conversations.

This was just one of the 60 offices that do these recording in Colorado, multiply that by the other 61 taskforces and over 2,000 federal, state, and local offices nationwide that participate in the program and the magnitude of the invasion of privacy is staggering. 

Court ruling could release thousands of Colorado inmates

Originally written for the Colorado Springs Gazette            

“This could result in the prison walls falling down for thousands of inmates in Colorado,” that is how attorney David Lane described the class action lawsuit filed on January 2, 2014 in  Denver Federal Court on behalf of thousands of Colorado inmates incarcerated longer than intended – some years longer.

            The federal civil rights suit comes out of a recent unpublished Colorado Court of Appeals ruling that re-affirms the requirement for the Colorado Department of Correction (CDOC) to apply both good time (15 days a month) and earned time (10 - 12 days a month depending on statute) to the release date for inmates with a mandatory parole date and would otherwise qualify for the time credit reduction.

            According to CDOC spokesman Roger Hudson, offenders are allowed earned time that is applied towards an inmate’s release date and good time that is applied to an offender’s parole eligibility date.  Hudson highlights that good time is not applied to an offender’s required release date, only the parole eligibility date. The court opinion, written by Judge John Dailey disagrees with the CDOC practice saying, “A person fitting under a mandatory parole scheme, however, must be paroled upon reaching the parole date as determined by reducing vested good time and earned time credits from the person’s sentence.”

            According to civil rights attorney David Lane, the ruling means thousands of inmates have been incarcerated for too long.  The federal suit filed by Lane asks the court for a preliminary injunction to require CDOC to immediately recalculate every offender’s time computation and release all inmates that have served their sentence with the time credit applied.  The suit also claims that some parole board decisions are based on an offender’s mandatory parole date and Lane is asking that the parole board be required to reexamine parole decisions. After these things are done, says Lane, there is still the question of CDOC financial liability for the thousands of cumulative years taken from these offenders.      

            The appellate court ruling came from Ankeney v. Executive Director of the Colorado Department of Corrections, Warden of the Fremont Correctional Facility, and Colorado Attorney General.  Randy Ankeney, a former Colorado attorney, was sentenced to eight years for child abuse in January 2008.  While incarcerated, he realized that good time and earned time were not being applied to his and other inmates' mandatory release dates as the law required.  According to Ankeney, he repeatedly notified prison authorities of the time computation errors starting in 2010, but was never taken seriously.

            When it was clear that prison officials were not going to do anything to correct the mistake, Ankeney filed his case in Fremont District Court in 2011 arguing that CDOC was not applying the law correctly.  Ankeney alleged that his release date should have been November 2011, not December 2013 as the prison had calculated.  The district court dismissed Ankeney’s case because of his inability to pay the required filing fee and further ruled that he did not, “file a claim upon which relief could be granted.”

            After being refused relief from the district court, Ankeney had only one option left, file an appeal with the Colorado Court of Appeals.  “Appeals are long-shots as it is,” said Ankeney, “they are nearly impossible to do as an offender from prison; the deck is stacked against you.”

            The confusion in time computation comes from whether an offender is sentenced to discretionary parole or mandatory parole.  The Colorado criminal code reinstituted the mandatory parole scheme in July 1993, but CDOC has been applying the rules for discretionary parole across all sentences.  The appellate court opinion points out that, “The district court erred,” in its ruling, “DOC has a clear duty to apply,” the time credits Ankeney earned.  The appellate court opinion, however, only applies to offenders with a mandatory parole date, not discretionary parole or indeterminate sentences.

            According to Ankeney, the appellate court’s opinion was unpublished because it was already, “well settled law,” and should have been known to CDOC.  “This is the law of the land now,” said Ankeney.  

            Lane, commented, “This ruling could have an immediate impact on offenders.  I believe we have a very strong case here.”

            “The excuse from the Department of Corrections is that the statutes are just really complicated.  They’re not,” said Ankeney.  “The only confusion comes from their misguided attempts to avoid doing what the legislature intended.”

            Lane contacted the State Attorney General’s Office to notify them of the pending class action suit and asked if there was any reason the Attorney General could give for not filing the suit.  According to Lane, the Attorney General’s office said they could not find a reason why the suit should not be filed other than the law was written in a confusing manner.  Laura Morales, spokeswoman for the Attorney General’s Office said, “This matter is still in litigation on remand.  As a result, we cannot comment on pending litigation.”

            After receiving all the time credits required by law, Ankeney was released from CDOC in August 2013, nearly two years late.  “That is time you just never get back,” said Ankeney, “you can’t understand what that means, it doesn’t have a price tag, it is two years of my life I will never see again.”