Congress Disgracefully Approves the FISA Warrantless Spying Bill for Five More Years, Rejects All Privacy Amendments

Today, after just one day of rushed debate, the Senate shamefully voted on a five-year extension to the FISA Amendments Act, an unconsitutional law that openly allows for warrantless surveillance of Americans' overseas communications.

Incredibly, the Senate rejected all the proposed amendments that would have brought a modicum of transparency and oversight to the government's activities, despite previous refusals by the Executive branch to even estimate how many Americans are surveilled by this program or reveal critical secret court rulings interpreting it.

The common-sense amendments the Senate hastily rejected were modest in scope and written with the utmost deference to national security concerns. The Senate had months to consider them, but waited until four days before the law was to expire to bring them to the floor, and then used the contrived time crunch to stifle any chances of them passing.

Sen. Ron Wyden's amendment would not have taken away any of the NSA's powers, it just would have forced intelligence agencies to send Congress a report every year detailing how their surveillance was affecting ordinary Americans. Yet Congress voted to be purposely kept in the dark about a general estimate of how many Americans have been spied on.

You can watch Sen. Ron Wyden's entire, riveting floor speech on the privacy dangers and lack of oversight in the FISA Amendments Act here.

Sen. Jeff Merkley's amendment would have encouraged (not even forced!) the Attorney General to declassify portions of secret FISA court opinions—or just release summaries of them if they were too sensitive. This is something the administration itself promised to do three years ago. We know—because the government has admitted—that at least one of those opinions concluded the government had violated the Constitution. Yet Congress also voted to keep this potentially critical interpretation of a public law a secret.

Tellingly, Sen. Rand Paul's "Fourth Amendment Protection Act," which would have affirmed Americans' emails are protected from unwarranted search and seizures (just like physical letters and phone calls), was voted down by the Senate in a landslide.

The final vote for re-authorizing five more years of the FISA Amendments Act and secretive domestic spying was 73-23. Our thanks goes out to the twenty-three brave Senators who stood up for Americans' constitutional rights yesterday. If only we had more like them.

Of course, the fight against illegal and unconsitutional warrantless wiretapping is far from over. Since neither the President, who once campaigned on a return to rule of law on surveillance of Americans, nor the Congress, which has proven to be the enabler-in-chief of the Executive's overreach, have been willing to protect the privacy of Americans in their digital papers, all eyes should now turn to the Courts.

EFF was just in federal court in San Francisco two weeks ago, challenging the NSA's untargeted dragnet warrantless surveillance program. And the Supreme Court will soon rule whether the ACLU's constitutional challenge to the "targeted" portions of the FISA Amendments Act can go forward.

But make no mistake: this vote was nothing less than abdication by Congress of its role as watchdog over Executive power, and a failure of its indepedent obligation to protect the Bill of Rights. The FISA Amendments Act and the ongoing warrantless spying on Americans has been, and will continue to be, a blight on our nation and the Constitution.

St. Paul shop caught with smoking gum

by: PAUL WALSH

A back-in-the-day soda shop in St. Paul has been busted for selling cigarettes -- made of candy.

Lynden's, on Hamline Avenue near Cretin-Derham Hall High School, said a city inspections official came in last week and gave the shop a warning and added that a misdemeanor citation -- with a $500 fine -- would be next if the non-carcinogenic confections continue to be sold.

"We got busted [Dec. 19] by the City of St. Paul. Oops," the shop tweeted.

Candy cigarettes, bubble gum cigars and bubble gum made to look like chewing tobacco have been among a host of vintage sugary treats that Lynden's has kept in stock since it opened in April.

"We had no idea," Tobi Lynden said Wednesday, lamenting that she can no longer sell the white candy sticks with the red tips, her best-selling candy. "We don't want to get on the bad side of St. Paul."

Lynden said nearly all of the candy cigarette purchases were made by adults.

" 'Oh, I had these when I was little,' " she said she would often hear. "We weren't trying to promote smoking or tobacco use of any kind."

And just what would prompt a bureaucrat to ferret out such nefarious activity?

"Somebody from Bloomington called and reported us," Lynden said. "The whole thing is pretty weird."

Robert Humphrey, spokesman for the city's Safety and Inspections Department, said the complaint came to his agency Dec. 13. An inspector visited Lynden's on Dec. 19 and had the forbidden products immediately removed from the sales floor.

A unanimous City Council outlawed candy smokes and cartoon character lighters in April 2009. The council cited a study showing that these products encouraged youngsters to take up smoking tobacco.

Lynden's Facebook page has collected dozens of comments decrying the enforcement action and the rationale behind it.

"I just got through a bag of gummy bears," one person wrote. " Now I can't stop thinking about where to find a REAL bear to eat!"

Several countries prohibit the sale of candy cigarettes, including Australia, Canada and Thailand.

In the United States, some national retailers have agreed not to sell them. Maine and Tennessee and several local jurisdictions in other states have outlawed the sale of novelty lighters.

The ordinance was championed by a group of St. Paul teenagers working with the Association for Nonsmokers-Minnesota, which educates youth groups and individuals who want to lobby for anti-tobacco policies.

Humphrey said he gets a complaint "about once a year" concerning the sale of candy cigarettes and other sugary tobacco-themed products in his city.

"We enforce this on a complaint basis," Humphrey said. "This isn't taking time away from any major enforcement [actions]."

Gov. Rick Snyder signs law that prohibits employers, schools to ask for social media account logins

By Fritz Klug

LANSING, MI — Gov. Rick Snyder signed legislation into law Friday that would prohibit employers from their asking workers for logins to their social media and internet accounts.

The bill, introduced by state Rep. Aric Nesbitt, R-Lawton, bars companies and schools from asking employees and students for their usernames and passwords.

“Cyber security is important to the reinvention of Michigan, and protecting the private internet accounts of residents is a part of that,” Snyder said in a press release. “Potential employees and students should be judged on their skills and abilities, not private online activity.”

Nesbitt said the bill is aimed at keeping up with changing times and technology.

“Let’s get the parameters out there,” Nesbitt said Friday after Snyder signed the legislation. “Lets demonstrate there are limits.”

Under the law, employers cannot discipline employees or decline to hire job applicants because they do not give them access information, including user names, passwords, login information, or “other security information that protects access to a personal internet account,” according to the bill.

Universities and schools cannot discipline or fail to admit students if they do not give similar information.

However, accounts owned by a company or educational institution, such as e-mail, can be requested.

Nesbitt said the bill stems from events in March when an employer asked staffers for their login details. Nesbitt said constituents approached him about the issue.

The American Civil Liberties Union and National Federation of Independent Business both endorsed the Michigan bill, Nesbitt said. Maryland has passed a similar law and the Illinois state legislature introduced a similar piece of legislation.

Nesbitt said he worked with various groups on the law. Michigan State University, for example, wanted language that said the university owns the @msu.edu email addresses, he said. Some businesses wanted language to reflect that some companies are prohibited from having social media accounts.

The offense is a misdemeanor punishable by a fine of not more than $1,000.

On College Campuses, Civil Liberties Took a Beating

The first full academic year following the Department of Education’s release of its Sexual Assault Directive has come to a close. The Directive was announced by the Office for Civil Rights on April 4, 2011 without prior notice or opportunity for public comment. Two days later, civil rights expert Wendy Kaminer deplored the “authoritarian impulse” that gave rise to the Directive and predicted it would occasion, in her words, “tragic deprivations of liberty.”

Several of these cases, reported in the media during the 2011-2012 school year, had been adjudicated before the OCR policy took effect:

University of Hawaii at Manoa

September 20, 2011 — Following news of seven allegations of sexual assault filed during the previous academic year, the University’s security chief Wayne Ogino stated that a student could be evicted from a campus dormitory solely on the basis of an accusation. Ogino did acknowedge, however, that some rape accusations did turn out to be “unfounded.”

University of North Dakota

October 25 — Sherry Warner-Seefeld, mother of an expelled University of North Dakota student who had been falsely accused of sexual assault, announced her son would not return to the university. Previously, a Grand Forks prosecutor had charged an unnamed woman with making a false rape allegation against Caleb Warner. Despite that fact, the University refused to reverse its decision for nearly two years — only after an outside civil rights group decided to intervene.

Yale University

January 26, 2012 — The New York Times published an article regarding an alleged assault by Yale University’s star quarterback Patrick Witt. Following the accusation, which was never substantiated, Witt lost his opportunity to win a Rhodes scholarship.

The NYT article also revealed that Yale has established a back-door process to handle sexual assault allegations: “Yale offers accusers a choice between making a formal complaint and an informal one…. In that process, an individual or a few members of the committee are charged with resolving the issue, without a full investigation or a finding of guilt or innocence.” Under the informal system, accused students are not afforded an opportunity to present evidence to refute the charge.

University of North Carolina

April 24 – At the University of North Carolina, it was revealed that a person accused of sexual assault is barred from having an attorney present during the hearing: “Neither a licensed attorney nor a person who has passed a state bar examination may serve as the investigator or defense counsel or be present during proceedings,” according to the UNC policy.

Cornell University

April 27 – The Cornell Daily Sun reported that the university had implemented a policy similar to the one followed at the University of North Carolina: “Under the new policy, students accused of sexual assault will not have the right to have an attorney cross-examine their accuser–a right that students accused of other offenses will retain,” the newspaper ironically reported.

Brown University

May 29 — The Brown Spectator released the results of a student journalist’s investigation regarding an allegation by Marcella Dresdale, who alleged in 2006 that she had been sexually assaulted by fellow student William McCormick. Marcella is the daughter of a prominent Brown University benefactor.

The Spectator article revealed that university administrators had bypassed normal investigative channels, ceding their authority to Dresdale’s father and to a student residential counselor who admitted that he had become “very close” to the alleged victim. McCormick later sued Brown University and Mr. Dresdale, eventually agreeing to a settlement for an undisclosed amount.

Xavier University

August 1 – The Cincinnati Enquirer reported that the DED Office for Civil Rights had reached an agreement with Xavier University to upgrade its sexual assault training and reporting programs. The accord followed a judge’s finding of Sean Marron’s innocence on four counts of sexual assault. The judge dismissed the criminal allegations “due to inconsistencies” in the accusers’ accounts and a lack of evidence.

Civil rights expert KC Johnson, who played a prominent role in exposing the fraudulent rape claims in the 2006 Duke lacrosse case, recounts:

“The OCR makes clear its contempt for the judge’s ruling in the Marron case. Under the terms of the agreement, if Marron returns to Xavier (he’s currently enrolled at another school in Ohio), Xavier must explore prohibiting Marron’s enrollment in the same ‘same courses, academic activities, and extracurricular activities’ in which one of the accusers — or, in the OCR’s language, one of the ‘victims’ — is enrolled.”

University of Montana

August 8 – Following a rape accusation against University of Montana quarterback Jordan Johnson, defense attorney Kirsten Pabst accused state prosecutors of using the case to “try to send a message” that they were taking sexual assault allegations seriously, according to a USA Today report. Pabst was the chief deputy county prosecutor before entering private practice this past spring. In May, the U.S. Justice Department and Department of Education announced plans to investigate the university following reports of sexual assault on campus.

Evictions without due process. Institutional denial of perjury. Secret proceedings. The excision of legal counsel. Benefactor interference. Federal second-guessing of judicial decision-making.

These are hallmarks of the tragic deprivations of liberty now taking place on campuses across the country.

How Rape Laws Remove the Presumption of Innocence

Over the last 40 years, rape laws have undergone a fundamental transformation. In some ways, these changes have removed barriers to rape victims receiving a fair trial and have helped bring many rapists to justice. But in other ways the reforms have gone too far, upending traditional tenets of criminal procedure and removing due process protections for the accused.

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.”

As a result, false allegations have increased, thus diluting the availability of services and protections for victims, and diminishing the credibility of future victims’ claims.

These are the ways that due process protections and related practices have been weakened or removed:*

1. Definition of Rape. In the past, the definition of rape included the forcible genital penetration of a person without her (or his) consent. Now, some groups define rape in terms of genital penetration in which either person has consumed any alcohol or drugs, thus rendering the person unable to give consent.”
2. Statute of Limitations: For most felonies such as rape, the statute of limitations is five years. But as of 2004, only three states required prompt reporting of the allegation, and several states have abolished the statute of limitations for rape cases altogether.
3. Adjudicating Rape Allegations under Civil Law. In the past, allegations of rape were adjudicated under criminal law. Now the Department of Education mandates that sexual assault allegations against university students be processed by college disciplinary committees.
4. Courtroom Terminology: During courtroom trials, it is not uncommon for the complainant to be referred to as the “victim,” even though that fact has not been established.
5. Shielding the Identify of the Accuser: Our system of justice requires that the court process be open to the public, and the First Amendment allows the press to report the names of parties to a case. But many states now have statutes that specifically prohibit the identification of a woman alleging rape.
6. Right to Confront One’s Accuser: In the past, defense attorneys were allowed to ask detailed, often intrusive questions about the accuser’s prior sexual history. Now under Federal Rules of Evidence 412, such questions generally may not be posed.
7. Guilty Mind (“mens rea”): Criminal law has long held that if a man believed in good faith that the woman was consenting to intercourse, then he could not be found to have committed rape. Now, that requirement has been largely removed.
8. Affirmative Consent: In the past, a man could reasonably infer that a woman was consenting to intercourse based on her behavior. Now, the woman must give affirmative permission through “words or overt actions” – although there is a lack of consensus regarding which specific overt actions constitute consent.
9. Corroborating Evidence: The 1962 Model Penal Code stated there should be no conviction for sexual offenses “upon the uncorroborated testimony of the alleged victim.” Now the situation has been completely reversed, and not a single state generally requires an alleged victim of rape to provide corroborating evidence.
10. Reasonable Resistance: In 1951 the Oregon Supreme Court ruled, “The woman must resist by more than mere words. Her resistance must be reasonable proportionate to her strength and her opportunities.” Now, only half of all states require there to have been physical resistance.
11. Admission of Evidence of Prior Sexual Assaults: A basic tenet of our criminal justice system is that jurors generally are not informed of any prior criminal record of the defendant in order to preclude bias. But under Federal Rule of Evidence 413, in a “criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible.” Note that the rule allows admission not only of prior convictions, but of any evidence including arrests or mere allegations. Evidence of the complainant’s prior false allegations may not be introduced as evidence, however.
12. Rape Trauma Syndrome: In some states, the prosecutor may have an expert witness testify that the alleged victim is suffering from “rape trauma syndrome” — even though the validity of the syndrome has been questioned and the expert witness may have never spoken with the alleged victim to evaluate her mental state.
13. Civil Commitment of Offender After Penal Release: In the past, society believed that once a man served his sentence and paid his debt to society, he should be allowed to re-integrate into the community and pursue a reasonably normal existence. But as of 2007, 19 states passed civil detention statutes for sexual offenders that may have the effect of keeping a man in prison-like conditions for the rest of his life.

Suit: Police refuse to register homeless sex offenders

Two homeless sex offenders are suing the City of Chicago for refusing to register them for lack of a permanent address, claiming their non-registration make them subject to arrest.

Michael Beley and Douglas Montgomery claim they have been arrested or face arrest because Chicago Police refuse to register them as sex offenders because they are homeless. The suit, filed Thursday in U.S. District Court, claims state statute allows the city to register them, but police refuse.

The suit claims a sex offender is required to register at police headquarters and provide a current photo, address, list of schools attended, place of employment, phone numbers, e-mail address, IM and chat identities, and any Internet sites maintained.

By law, local law enforcement has the right to waive registration fees and make homeless sex offenders check in weekly, rather than provide an address, the suit said.

Beley was released from prison Nov. 19, 2012, and attempted to register the next day, but Chicago Police refused because he did not have a permanent address, the suit said. He said he tried to register at his son’s address but it is too close to a park, and he was unable to find a homeless shelter that would take a sex offender.

Illinois State Police classified Beley as a non-compliant sex offender on Dec. 3 and he is now subject to arrest, the suit said.

Montgomery was released from prison in January 2011 and hospitalized a short time later following a mild heart attack, the suit said. He attempted to register upon release from the hospital, but was told Chicago Police do not register the homeless and he had three days to find a shelter and pay a $100 fee.

He was unable to do so and was arrested in July 2011, the suit said. He remains in Cook County Jail.

The suit asks a judge to certify the suit as a class action, create procedures to register homeless sex offenders in Chicago, and award monetary damages.

A spokesman for the city Department of Law was not immediately available for comment.

Specialized Military Police Deployed in America During Civil Unrest

By Susanne Posel

In Camp Pendleton, California, the Marine Corp have created a law-enforcement battalion (ELB) consisting of specialized military police officers (SMP) that will be deployed to assist in investigating crimes dealing with drug trafficking, train security and terrorism.

The ELBs contain an estimated 500 SMPs and trained dogs. While capitalizing on their investigative and police training, they will take the role of current street cops while still remaining part of the Marine Corp.

Maj. Jan Durham, commander of the 1st Law Enforcement Battalion at Camp Pendleton states: “Over the past 11 years of combat operations in Iraq and Afghanistan, some lessons learned painfully, there has been a growing appreciation and a demand for, on the part of the war-fighter, the unique skills and capabilities that MPs bring to the fight. We do enforce traffic laws and we do write reports and tickets, and that’s good, but we do so much more than that.”

Having been deployed overseas prior to their new placement, these SMPs will secure evidence and assist local police departments in building cases against predetermined criminal networks. They may even conduct raids in cities and add to the show of force that is now being used to intimidate the average citizen.

SMPs would be deployed to assist in any event of civil disturbance, handling of detainees, use biometrics to identify suspects and conduct forensic work. Their assistance is not limited to conducting DUIs and writing speeding tickets in an effort to re-brand the Marine Corps as being more involved with average work now allocated to local law enforcement.

Maj. Jan Durham, commander of the 1st Law Enforcement Battalion at Camp Pendleton states: “Over the past 11 years of combat operations in Iraq and Afghanistan, some lessons learned painfully, there has been a growing appreciation and a demand for, on the part of the war-fighter, the unique skills and capabilities that MPs bring to the fight. We do enforce traffic laws and we do write reports and tickets, and that’s good, but we do so much more than that.”

Loren Thompson, defense analyst, said: “This is a smart idea because the biggest single problem the Marines have in dealing with low-intensity types of threats is that they basically are trained to kill people. It’s good for the Marines to have skills that allow them to contain threats without creating casualties.”

Last June, the Department of Defense began testing military drills in Missouri. While local residents of St. Louis City were warned not to be “alarmed” as US Army tanks travelled down residential neighborhoods. They were told that this is not the beginning signs of martial law.

Drills involving the US military and mock civilian uprisings or riot scenarios were conducted at Vigilant Guard 2010 where “Americans” were told to demand food and their Constitutional rights while soldiers practiced subduing and containing them.

Martial law was declared in Chicago before the NATO Summit commenced. Clear “red Zone” areas around Chicago were marked while the DOT shut down access roads in and out of the downtown area. Plans to evacuate the city should “terrorist attacks” be carried out.

Joliet State Prison was transformed into a detention center for NATO. Urban warfare drills were conducted months prior to the Summit to prepare for the possibility of civilian evacuation.

According to Doug Hagmann , private investigator, his high-level source at DHS confirmed that the agency is preparing for “massive civil war” in the US.

Hagmann says: “We have problems . . . The federal government is preparing for civil uprising. . . so every time you hear about troop movements, every time you hear about movements of military equipment, the militarization of the police, the buying of the ammunition, all of this is . . . they (DHS) are preparing for a massive uprising.”

He continues: “It’s going to get so much worse toward the election, and I’m not even sure we’re going to have an election in this country. It’s going to be that bad, and this, as well, is coming from my sources. But one source in particular said, ‘look, you don’t understand how bad it is.’ This stuff is real; these people, the Department of Homeland Security (DHS), they are ready to fight the American people.”

Hagmann confirmed that the cause of the national emergency would be centered on the US dollar. Because hyperinflation is coming because of the “un-sustainability of the American dollar” money will be worthless which will trigger massive panic due to a complete economic collapse.

Back in March, Obama signed executive order National Defense Resources Preparedness ( EO 13603) which gives the federal government permission to seize all property in the interests of national security “in peacetime and in times of national emergency.” Neither of those terms was defined, leaving the door open to situational interpretation.

Obama’s EO was nearly a copy of the Defense Production Act of 1950 under FEMA. This Act says all means of human survival are the President’s to confiscate and control at his discretion.

The NDAA denies American citizens inherent Constitutional and human rights in the event of a national emergency. There is no mention of Congress’ role of authority in it, leaving speculations as to the President’s plan for the future of our Congressional branch of government.

All allocation of resources to the government will be “as needed” to defend the nation. This ambiguous term could allow federal and military agencies to view the private property of civilians as theirs which could force an incident or create a situation.

Setting this EO in place, prior to these manifestations of evidence of a silent martial law being enacted domestically; this is the nail on the coffin of our Constitutional liberties. Now we are witnessing the military on our streets. DHS is acquiring SWAT and riot gear and massive amounts of ammunition .

The evidence of their next step is becoming clear.

Widespread Use of Plea Bargains Plays Major Role in Mass Incarceration

Henry Alford was accused of murder and faced the death penalty. The prosecution said there was enough evidence that could possibly have been sufficient to cause a jury to convict him. Alford was offered and took a plea bargain, despite his pronouncement of innocence.

As Alford's public defender, Tracie Olson, stated: "The evidence was strong but Henry said he was innocent. Henry, however, pled guilty to a charge of 2nd degree murder in order to avoid the death penalty ."

Olson also told reporters that even though she had no idea as to the guilt or innocence of Alford when she took his plea, "I've been a criminal defense attorney in Yolo County since 1998, and I truly believe that innocent people have taken pleas because they felt they were in a situation like Henry's."

Long Beach High School football star Brian Banks offers yet another example of how a person wrongfully imprisoned (in this case for rape) based upon his own "'voluntary' act" of writing a guilty confession, took a plea agreement in defiance of the facts and against his own best interests.

In May of this year, thanks to the California Innocence Project, Mr. Banks was exonerated by a court after serving five years for the rape he did not commit but pleaded guilty to.

American's founding fathers understood that one of the greatest forms of tyranny the government could engage in was bringing criminal charges against its subjects, or citizens. A large number of amendments were added to the US Constitution in an attempt to assure the rights of those charged with criminal offenses. These include the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments.

Rights of an accused criminal include the right to the presumption of innocence, the right to due process, the right to be informed of charges against them and the right of a defendant to confront their accusers in a court of law. The constitution also provides defendants the right to an impartial, fair and speedy jury trial with the assistance of counsel, and defendants have the right to cross-examine witnesses used against them. It is the government that has the burden of proving the guilt of those charged with a grave crime and beyond reasonable doubt, but even a cursory look at the judicial landscape illustrates this is more theory than fact.

Pleading for Bargains as Opposed to Arguing for Justice

A criminal plea bargain is an agreement in a criminal case where the defendant pleads guilty to a crime, usually to a lesser crime than the original charge, and as a result, waives his or her right to a jury trial. Unbelievably, in the modern criminal system, more than 90 percent of all criminal charges are resolved through plea bargains. It is a system based not on the presumption of innocence, but on the contrary - on the presumption of guilt. Arm-twisting defendants, many of them poor and people of color, into plea bargains means that the government does not have to shoulder its burden of proving the guilt of those they charge with crimes and can simply shirk the constitution for expediency.

Plea bargaining has become historically ubiquitous as the principal, if not primary, method of criminal case disposition in the United States and a historical canker sore on the judicial system. Even as early as 1920, it was thought that 88 percent of convictions in New York were via guilty pleas, up from 22 percent just over 80 years earlier.

As the New York Times reported in an editorial piece on July 16, 2012: "Earlier this year an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases - 97 percent of federal cases, 94 percent of state cases - are resolved by guilty pleas. Criminal justice today is for the most part a system of pleas, not a system, of trials."

This opinion was based on a Supreme Court ruling back in March of 2012, a ruling involving two people who were proven to have ended up with stiffer sentences than they might have received had their lawyers not failed them while plea bargaining. The two defendants took their case all the way to the highest court, each of them asking the Supreme Court to invalidate their sentences under the Sixth Amendment's guarantee of effective assistance of counsel.

The court, by a close vote of 5-4 in both cases, accepted the defendants' arguments and ruled in their favor, upholding Missouri v. Frye, the legal ruling that provides a constitutional guarantee of a fair trial and judicious plea bargaining. Justice Anthony Kennedy wrote on behalf of himself and four of his colleagues, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The plea bargain system is really based upon coercion, a legal form of extortion by the state. Prosecutors coerce defendants into pleading guilty by piling on charge after charge, and judges coerce those charged by making it known that the punishment will be much milder if you plead guilty than if you lose after exercising your supposed constitutional rights and go to trial. Retribution can be as swift. Like the Inquisition, this system of duress too frequently results in innocent individuals entering guilty pleas they never would have if the constitution was really put into play.

The current system of plea bargaining has corrupted criminal defense law as it stampedes the constitution, leaving in its wake intimidation and fear. In practice, a defense lawyer's main job is negotiating guilty pleas and subsequent sentences, not defending the criminally accused, as many would believe. Instead, because over 90 percent of criminal cases are resolved through plea bargains, the economics of defense lawyers depends on pushing paper and maintaining good relationships with prosecutors; therefore, it is not uncommon for defense attorneys to allow a client to "take a fall" rather than accuse a prosecutor of misconduct and risk legal retaliation in future cases. Crony legalism is an essential part of crony capitalism, and nowhere is this better seen than in the halls of justice.

Do Plea Bargains Allow Criminals to Get Off Easy?

Popular culture, disseminated by Hollywood movies and television series, depict plea bargains as a way of allowing those accused of a crime to escape justice and "get off easy." In reality, usually the opposite is true.

Plea bargains allow prosecutors to bring charges against far more people than the legal system could process through a system of judicial trials. Thus, they create the material conditions for their own replication. Because less than 10 percent of criminal cases, federal and state, go to trial, plea bargains in effect allow the state to prosecute ten times more cases than they could handled at trial.

Plea bargains are also essential for stocking for-profit prisons with a steady supply of "customers" for their corporate shareholders. Plea bargaining both enlists and perpetuates the principles of mass production, deception and mendacity, which in turn are applied quite readily in the whole of our system of criminal "justice."

Plea bargaining has also become an essential element of both mushrooming prison growth and the racially disparate state of American prison populations, with the gravity of the burden falling on the backs of blacks and Latinos. Without plea bargaining, the explosion in prison populations of color, especially those of for-profit prisons, could never be possible.

In his paper, "The Problem With Plea Bargaining: Differential Subjective Decision Making as an Engine of Racial Stratification in the United States Prison System," attorney and sociologist Douglas Savitsky argues that:

The bargains struck by Black defendants tend to be worse than those struck by similarly situated white defendants. There are several reasons for this. Black defendants are generally poorer, and they are thus less able to afford a competent defense.

Second, Black defendants tend to be in a position of lower power than are white defendants. Additionally, and related, because prison has become such a large part of the life course in parts of the Black community, the costs to prison are perceived as being lower by Blacks than by whites. This perception puts Black defendants in a worse bargaining position.

American Justice: The Cult of Efficiency and Deception

The American judicial system has become one in which constitutional rights and protections are sacrificed through mendacity and deception to appeal to a cult of judicial efficiency and economy. The public has been lied to; plea bargaining does not make society safe or tackle the problem of crime itself. This is simply another necessary illusion that is funneled into the minds of the populace to rationalize the commodification of people for profit. The problem with all of this, as the late thinker Hannah Arendt noted in her New York Review of Books article "Lying in Politics," is that: "the trouble with lying and deceiving is that their efficiency depends entirely upon a clear notion of the truth that the liar and deceiver wishes to hide. In this sense, truth, even if it does not prevail in public, possesses an ineradicable primacy over all falsehoods."

In reality, the current criminal justice system has little to do with public safety, truth-telling or avoiding falsehoods. Many of those currently incarcerated and languishing in for-profit or government prisons include nonviolent drug offenders and those accused of parole-violation technicalities, such as not having a job or missing a parole officer appointment. In reality, Americans are locked up for crimes, such as writing bad checks or using drugs, that would rarely, if ever, produce prison sentences in other countries. The United States incarcerates 2.3 million criminals. The number of people on lockdown in America is more than that in any other nation.

The modern criminal justice system primarily serves the interests of the increasingly privatized and financialized prison-industrial complex, which includes, among others, "tough on crime" politicians, seedy bail bondsmen, Wall Street-traded for-profit prison corporations, the drug-testing industry, police and corrections officers, and parole and prison officers' unions.

It is well known, or should be, that California's "three strikes and you're out" provision was promoted by corrections officers because caging humans is not only good for business, it is the fiduciary responsibility of the for-profit prison-industrial complex corporations. It is no surprise, either, that the primary defenders of the criminalization of marijuana are police and corrections officers' unions because this is the bread and butter of their professions.

Prison Spending Fuels Cuts in Higher Education

It is unfortunate that the money spent to imprison millions of Americans is, much like the military-industrial complex, draining resources from more pressing social and economic needs, such as education.

A stunning and detailed report with illustrative and compelling graphs from the California Common Sense web site has recorded just how skyrocketing expenditures on incarceration in California have been associated with the decline in spending on higher education. The report is not only thoroughly documented and visual, but also compares and contrasts a myriad of issues that now plague higher education and documents how they correlate to prison expenditures.

In 2012, corrections spending and student debt nationwide reached $1 trillion each. Recently, The Huffington Post noted that: "Pennsylvania is home to the country's most expensive public university. In-state tuition at Penn State University runs higher than $15,000, but the state has been cutting spending on higher education since 2007. The result is Pennsylvania now spends twice as much on corrections as it does on higher education."

One can look around the nation to see the burgeoning costs of incarceration and the corollary with cuts in higher education. In Massachusetts, a state known for its old-moneyed prestigious private universities, state legislators took an axe to cut appropriations to higher education between 2008 and 2012, hacking off a whopping 37 percent, according to the Boston Globe. This meant that the state spent dollar for dollar on higher education and mass incarceration in 2007.

The National Association for the Advancement of Colored People (NAACP) released a report in April of 2011 entitled "Misplaced Priorities." In it, the NAACP examines America's escalating levels of prison spending and its impact on state budgets and our nation's children. The report concludes that in all 50 states, the need is to downsize prison populations and shift the savings to education budgets.

What Would Happen if Defendants Crashed the Court System by Refusing to "Plea Out"?

As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state.

If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty.

Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked:

What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that? Believe me, I know. I'm asking what we can do. Can we crash the system just by exercising our rights?

Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights.

But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit?

From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: "if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos."

The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need.

One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante's Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.

12-year-old US student arrested for 'accidentally' taking nude photo of classmate

A 12-year-old student was detained by police after accidentally taking a photo of a half-naked classmate in a locker room. Though she immediately deleted the picture, she was reportedly arrested and handcuffed by the police the next day.

­The unidentified student said on Thursday that she wanted to photograph herself with a friend using one of her iPhone’s two cameras, but accidentally selected the wrong lens, according to an ABC report. The result, she claimed, was an unintentionally racy picture of another young girl.

"She was just pulling down her pants, but not all the way – barely," the girl said.

The girl said she immediately deleted the picture she snapped by mistake in front of the girl involved. But on Friday, she was arrested for illicit photography.

The girl was pulled out of class at the Alice Johnson Junior High in of Harris County, Texas. Police reportedly handcuffed her, put her into a patrol car and took her into custody.

"They took me to the cop car and told me to put my hands behind my back," the 12-year-old told KRIV.

"I'd say this is akin to a child being kicked out of school for buying an aspirin," attorney Jack Carroll said. "It reminds me of the overreactive, overzealousness by school districts."

The girl has been suspended from school for three days and is being sent to an alternative school for another 30 days; her family is appealing the latter sentence.

Police refused to comment on the investigation because of the involvement of minors.

Would You Know Atheist Discrimination If You Saw It?

Many statements seem theological, but actually promote prejudice

by David Niose

Discrimination against nonbelievers in America is so overt and widespread that most of us are completely desensitized to it.

If you’re a rational American – religious or nonreligious – you probably roll your eyes when you hear fundamentalist preachers and right-wing politicians rant in the name of God whenever a major tragedy occurs. But do you stop to consider that their comments directly disparage nonbelievers? If these preachers and politicians directly attacked Hindus, Jews, or Muslims the way they attack atheists-humanists, they would be quickly called out for their hateful prejudice. So why should their anti-secular venom be tolerated?

This phenomenon was highly visible this week. Within hours of the Connecticut school massacre, men of God were eager to explain the travesty, and those explanations consistently attributed the violence to American secularity. Former presidential aspirant Mike Huckabee, for example, proclaimed that the shooting rampage was the natural result of our having “systematically removed God from our schools.”

Imagine if Huckabee had publicly suggested that the rejection of Jesus, rather than the more general God, was the reason for the Connecticut school violence. In little time, he would be sharply criticized for even indirectly suggesting that Hindus, Jews, and Muslims were somehow responsible for the rampage. Yet when the circle is drawn to exclude only atheists and humanists, the prejudice is seen as acceptable. (Huckabee was widely criticized for insensitivity, but not for prejudice toward nonbelievers.)

“Millions of people have decided that God doesn’t exist, or he’s irrelevant,” said fundamentalist leader James Dobson in response to the Connecticut attacks. For such transgressions, according to Dobson, “God has allowed judgment to fall upon us.” Thus, atheists-humanists are the villains once again, a theme echoed by Newt Gingrich, who blamed the tragedy on those who are “seeking to drive God out of public life.”

These statements outrage most rational Americans, both religious and nonreligious, but many still overlook the blatant prejudice. Many who disagree with Huckabee, Dobson, and Gingrich instead focus on theological arguments. God is good, says the religious liberal who rejects the fundamentalist view of God as a vengeful tyrant. God would never unleash his wrath on innocent children. Offended by the notion of a mean-spirited God, these liberals make theological rebuttals that portray God as kinder and gentler.

This warmhearted view of God is certainly more civil than the fundamentalist view, but by focusing on theology it completely overlooks the real-world discrimination against nonbelievers. Atheists and humanists find it frustrating that statements such as those of Huckabee, Dobson, and Gingrich are almost never criticized by religious liberals for promoting a hateful prejudice against nonbelievers (who are already the most disliked and distrusted minority in the country).

Let’s be clear about something: Huckabee and company, with very little ambiguity, are claiming that those who live without God-belief are directly or indirectly responsible for violence and moral decline. This is discriminatory, contrary to the pluralistic values of modern society, and provably false. Consider facts:

• The vast majority of developed counties have no state-sponsored school prayer, and none have problems of violent crime (and gun violence in particular) remotely akin to that of the US.
• Nonbelievers tend to be educated and productive members of society, not agents of evil as suggested by Huckabee and company. Over 90 percent of the National Academy of Sciences holds atheist or agnostic views.

It’s great that many Americans, even those who are religious, find the statements of Huckabee and company objectionable, but it’s unfortunate that the objections focus on the wrong issue. Rather than argue about whether God is jealous and vindictive or loving and compassionate (or at least in addition to that argument), Americans should be calling out fundamentalists for depicting nonbelievers as agents of evil.

Calling on Congress: Time to Fix Copyright

It shouldn't be controversial to demand evidence-based policies in the copyright space. But over and over, Congress has failed to engage in an informed discussion over which copyright policies advance the public interest, and which ones cause harm. That's why we're supporting our friends at Fight for the Future in their launch of a campaign to urge Congress to engage in a reality-based debate about our copyright policy.

Last month, when Derek Khanna—a staffer for an influential policy group called the Republican Study Committee (RSC)—put forward a report busting some persistent myths about copyright, he wasn't met with a real debate or with fact-checking. Within a day his employer, reportedly under pressure from legislators supported by major copyright industries, retracted the report. Within two weeks, Khanna was told he would no longer have a job with the RSC.

That's right: instead of engaging in a fact-based discussion over how copyright policy should be decided, representatives of the content lobby (or the legislators they support) thought it would be a better idea just to silence the debate.

Perhaps that's because the facts aren't in their favor: Khanna's document called attention to some of the principal problems with today's copyright policy. The term of copyright is much too long, which chills innovations, weakens the public domain, and creates an enormous "orphan works" problem. The statutory damages are far too high, leading to insane awards of up to $150,000 per infringement in some cases. And over and over the public has seen its traditional rights eroded at the hands of a constantly expanding realm of copyright coverage, whether it's undermining the first sale doctrine, limiting personal uses of legally-purchased content, or jeopardizing property that happens to be stored in the cloud.

A year ago, these facts may have been the exclusive domain of legal specialists and law professors, but that's no longer the case. If there's one lesson that legislators should have gotten from the blackout protests against SOPA this January, it's that the public recognizes that copyright issues are free speech issues. We're not willing to let one industry steamroll online civil liberties in the name of preserving its profits.

Because we know where bad policy leads. It leads to innocent websites being censored, pulled offline for over a year because of unfounded accusations from the recording industry. It leads to hundreds of thousands of dollars of fines over a handful of downloaded tracks—a situation in which even the judge is pleading to Congress for badly needed reform. It leads to Supreme Court battles that could decide whether you are allowed to sell your legally purchased goods that were manufactured overseas.

It doesn't have to be that way. Congress could act to bring copyright policy into line with reality, even at the risk of upsetting a content lobby long-used to getting their way when it comes to copyright. This is a lobby that has convinced Congress to pass 15 laws against "piracy" in the last 30 years. It will take serious pressure from the public to let Congress know that it’s time for real copyright reform that benefits everyone—not just a few entrenched interests.

So join us in calling on Congress: when the legislative session resumes in January, let's have a reality-based debate, and let's fix copyright.

U.S. Terrorism Agency to Tap a Vast Database of Citizens

By JULIA ANGWIN

Top U.S. intelligence officials gathered in the White House Situation Room in March to debate a controversial proposal. Counterterrorism officials wanted to create a government dragnet, sweeping up millions of records about U.S. citizens—even people suspected of no crime.

Not everyone was on board. "This is a sea change in the way that the government interacts with the general public," Mary Ellen Callahan, chief privacy officer of the Department of Homeland Security, argued in the meeting, according to people familiar with the discussions.

A week later, the attorney general signed the changes into effect.

Through Freedom of Information Act requests and interviews with officials at numerous agencies, The Wall Street Journal has reconstructed the clash over the counterterrorism program within the administration of President Barack Obama. The debate was a confrontation between some who viewed it as a matter of efficiency—how long to keep data, for instance, or where it should be stored—and others who saw it as granting authority for unprecedented government surveillance of U.S. citizens.

The rules now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation.

Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited. Data about Americans "reasonably believed to constitute terrorism information" may be permanently retained.

The changes also allow databases of U.S. civilian information to be given to foreign governments for analysis of their own. In effect, U.S. and foreign governments would be using the information to look for clues that people might commit future crimes.

"It's breathtaking" in its scope, said a former senior administration official familiar with the White House debate.

Counterterrorism officials say they will be circumspect with the data. "The guidelines provide rigorous oversight to protect the information that we have, for authorized and narrow purposes," said Alexander Joel, Civil Liberties Protection Officer for the Office of the Director of National Intelligence, the parent agency for the National Counterterrorism Center.

The Fourth Amendment of the Constitution says that searches of "persons, houses, papers and effects" shouldn't be conducted without "probable cause" that a crime has been committed. But that doesn't cover records the government creates in the normal course of business with citizens.

Congress specifically sought to prevent government agents from rifling through government files indiscriminately when it passed the Federal Privacy Act in 1974. The act prohibits government agencies from sharing data with each other for purposes that aren't "compatible" with the reason the data were originally collected.

But the Federal Privacy Act allows agencies to exempt themselves from many requirements by placing notices in the Federal Register, the government's daily publication of proposed rules. In practice, these privacy-act notices are rarely contested by government watchdogs or members of the public. "All you have to do is publish a notice in the Federal Register and you can do whatever you want," says Robert Gellman, a privacy consultant who advises agencies on how to comply with the Privacy Act.

As a result, the National Counterterrorism Center program's opponents within the administration—led by Ms. Callahan of Homeland Security—couldn't argue that the program would violate the law. Instead, they were left to question whether the rules were good policy.

Under the new rules issued in March, the National Counterterrorism Center, known as NCTC, can obtain almost any database the government collects that it says is "reasonably believed" to contain "terrorism information." The list could potentially include almost any government database, from financial forms submitted by people seeking federally backed mortgages to the health records of people who sought treatment at Veterans Administration hospitals.

Previous government proposals to scrutinize massive amounts of data about innocent people have caused an uproar. In 2002, the Pentagon's research arm proposed a program called Total Information Awareness that sought to analyze both public and private databases for terror clues. It would have been far broader than the NCTC's current program, examining many nongovernmental pools of data as well.

"If terrorist organizations are going to plan and execute attacks against the United States, their people must engage in transactions and they will leave signatures," the program's promoter, Admiral John Poindexter, said at the time. "We must be able to pick this signal out of the noise."

Adm. Poindexter's plans drew fire from across the political spectrum over the privacy implications of sorting through every single document available about U.S. citizens. Conservative columnist William Safire called the plan a "supersnoop's dream." Liberal columnist Molly Ivins suggested it could be akin to fascism. Congress eventually defunded the program.

The National Counterterrorism Center's ideas faced no similar public resistance. For one thing, the debate happened behind closed doors. In addition, unlike the Pentagon, the NCTC was created in 2004 specifically to use data to connect the dots in the fight against terrorism.

Even after eight years in existence, the agency isn't well known. "We're still a bit of a startup and still having to prove ourselves," said director Matthew Olsen in a rare public appearance this summer at the Aspen Institute, a leadership think tank.

The agency's offices are tucked away in an unmarked building set back from the road in the woodsy suburban neighborhood of McLean, Va. Many employees are on loan from other agencies, and they don't conduct surveillance or gather clues directly. Instead, they analyze data provided by others.

The agency's best-known product is a database called TIDE, which stands for the Terrorist Identities Datamart Environment. TIDE contains more than 500,000 identities suspected of terror links. Some names are known or suspected terrorists; others are terrorists' friends and families; still more are people with some loose affiliation to a terrorist.

TIDE files are important because they are used by the Federal Bureau of Investigation to compile terrorist "watchlists." These are lists that can block a person from boarding an airplane or obtaining a visa.

The watchlist system failed spectacularly on Christmas Day 2009 when Umar Farouk Abdulmutallab, a 23-year-old Nigerian man, boarded a flight to Detroit from Amsterdam wearing explosives sewn into his undergarments. He wasn't on the watchlist.

He eventually pleaded guilty to terror-related charges and is imprisoned. His bomb didn't properly detonate.

However, Mr. Abdulmutallab and his underwear did alter U.S. intelligence-gathering. A Senate investigation revealed that NCTC had received information about him but had failed to query other government databases about him. In a scathing finding, the Senate report said, "the NCTC was not organized adequately to fulfill its missions."

"This was not a failure to collect or share intelligence," said John Brennan, the president's chief counterterrorism adviser, at a White House press conference in January 2010. "It was a failure to connect and integrate and understand the intelligence we had."

As result, Mr. Obama demanded a watchlist overhaul. Agencies were ordered to send all their leads to NCTC, and NCTC was ordered to "pursue thoroughly and exhaustively terrorism threat threads."

Quickly, NCTC was flooded with terror tips—each of which it was obligated to "exhaustively" pursue. By May 2010 there was a huge backlog, according a report by the Government Accountability Office.

Legal obstacles emerged. NCTC analysts were permitted to query federal-agency databases only for "terrorism datapoints," say, one specific person's name, or the passengers on one particular flight. They couldn't look through the databases trolling for general "patterns." And, if they wanted to copy entire data sets, they were required to remove information about innocent U.S. people "upon discovery."

But they didn't always know who was innocent. A person might seem innocent today, until new details emerge tomorrow.

"What we learned from Christmas Day"—from the failed underwear bomb—was that some information "might seem more relevant later," says Mr. Joel, the national intelligence agency's civil liberties officer. "We realized we needed it to be retained longer."

Late last year, for instance, NCTC obtained an entire database from Homeland Security for analysis, according to a person familiar with the transaction. Homeland Security provided the disks on the condition that NCTC would remove all innocent U.S. person data after 30 days.

After 30 days, a Homeland Security team visited and found that the data hadn't yet been removed. In fact, NCTC hadn't even finished uploading the files to its own computers, that person said. It can take weeks simply to upload and organize the mammoth data sets.

Homeland Security granted a 30-day extension. That deadline was missed, too. So Homeland Security revoked NCTC's access to the data.

To fix problems like these that had cropped up since the Abdulmutallab incident, NCTC proposed the major expansion of its powers that would ultimately get debated at the March meeting in the White House. It moved to ditch the requirement that it discard the innocent-person data. And it asked for broader authority to troll for patterns in the data.

As early as February 2011, NCTC's proposal was raising concerns at the privacy offices of both Homeland Security and the Department of Justice, according to emails reviewed by the Journal.

Privacy offices are a relatively new phenomenon in the intelligence community. Most were created at the recommendation of the 9/11 Commission. Privacy officers are often in the uncomfortable position of identifying obstacles to plans proposed by their superiors.

At the Department of Justice, Chief Privacy Officer Nancy Libin raised concerns about whether the guidelines could unfairly target innocent people, these people said. Some research suggests that, statistically speaking, there are too few terror attacks for predictive patterns to emerge. The risk, then, is that innocent behavior gets misunderstood—say, a man buying chemicals (for a child's science fair) and a timer (for the sprinkler) sets off false alarms.

An August government report indicates that, as of last year, NCTC wasn't doing predictive pattern-matching.

The internal debate was more heated at Homeland Security. Ms. Callahan and colleague Margo Schlanger, who headed the 100-person Homeland Security office for civil rights and civil liberties, were concerned about the implications of turning over vast troves of data to the counterterrorism center, these people said.

They and Ms. Libin at the Justice Department argued that the failure to catch Mr. Abdulmutallab wasn't caused by the lack of a suspect—he had already been flagged—but by a failure to investigate him fully. So amassing more data about innocent people wasn't necessarily the right solution.

The most sensitive Homeland Security data trove at stake was the Advanced Passenger Information System. It contains the name, gender, birth date and travel information for every airline passenger entering the U.S.

Previously, Homeland Security had pledged to keep passenger data only for 12 months. But NCTC was proposing to copy and keep it for up to five years. Ms. Callahan argued this would break promises the agency had made to the public about its use of personal data, these people said.

Discussions sometimes got testy, according to emails reviewed by the Journal. In one case, Ms. Callahan sent an email complaining that "examples" provided to her by an unnamed intelligence official were "complete non-sequiturs" and "non-responsive."

In May 2011, Ms. Callahan and Ms. Schlanger raised their concerns with the chief of their agency, Janet Napolitano. They fired off a memo under the longwinded title, "How Best to Express the Department's Privacy and Civil Liberties Concerns over Draft Guidelines Proposed by the Office of the Director of National Intelligence and the National Counterterrorism Center," according to an email obtained through the Freedom of Information Act. The contents of the memo, which appears to run several pages, were redacted.

The two also kept pushing the NCTC officials to justify why they couldn't search for terrorism clues less invasively, these people said. "I'm not sure I'm totally prepared with the firestorm we're about to create," Ms. Schlanger emailed Ms. Callahan in November, referring to the fact that the two wanted more privacy protections. Ms. Schlanger returned to her faculty position at the University of Michigan Law School soon after but remains an adviser to Homeland Security.

To resolve the issue, Homeland Security's deputy secretary, Jane Holl Lute, requested the March meeting at the White House. The second in command from Homeland Security, the Justice Department, the FBI, NCTC and the office of the director of national intelligence sat at the small conference table. Normal protocol for such meeting is for staffers such as Ms. Callahan to sit against the walls of the room and keep silent.

By this point, Ms. Libin's concern that innocent people could be inadvertently targeted had been largely overruled at the Department of Justice, these people said. Colleagues there were more concerned about missing the next terrorist threat.

That left Ms. Callahan as the most prominent opponent of the proposed changes. In an unusual move, Ms. Lute asked Ms. Callahan to speak about Homeland Security's privacy concerns. Ms. Callahan argued that the rules would constitute a "sea change" because, whenever citizens interact with the government, the first question asked will be, are they a terrorist?

Mr. Brennan considered the arguments. And within a few days, the attorney general, Eric Holder, had signed the new guidelines. The Justice Department declined to comment about the debate over the guidelines.

Under the new rules, every federal agency must negotiate terms under which it would hand over databases to NCTC. This year, Ms. Callahan left Homeland Security for private practice, and Ms. Libin left the Justice Department to join a private firm.

Homeland Security is currently working out the details to give the NCTC three data sets—the airline-passenger database known as APIS; another airline-passenger database containing information about non-U.S. citizen visitors to the U.S.; and a database about people seeking refugee asylum. It previously agreed to share databases containing information about foreign-exchange students and visa applications.

Once the terms are set, Homeland Security is likely to post a notice in the Federal Register. The public can submit comments to the Federal Register about proposed changes, although Homeland Security isn't required to make changes based on the comments.

Ancient Bones That Tell a Story of Compassion

By JAMES GORMAN

While it is a painful truism that brutality and violence are at least as old as humanity, so, it seems, is caring for the sick and disabled.

And some archaeologists are suggesting a closer, more systematic look at how prehistoric people — who may have left only their bones — treated illness, injury and incapacitation. Call it the archaeology of health care.

The case that led Lorna Tilley and Marc Oxenham of Australian National University in Canberra to this idea is that of a profoundly ill young man who lived 4,000 years ago in what is now northern Vietnam and was buried, as were others in his culture, at a site known as Man Bac.

Almost all the other skeletons at the site, south of Hanoi and about 15 miles from the coast, lie straight. Burial 9, as both the remains and the once living person are known, was laid to rest curled in the fetal position. When Ms. Tilley, a graduate student in archaeology, and Dr. Oxenham, a professor, excavated and examined the skeleton in 2007 it became clear why. His fused vertebrae, weak bones and other evidence suggested that he lies in death as he did in life, bent and crippled by disease.

They gathered that he became paralyzed from the waist down before adolescence, the result of a congenital disease known as Klippel-Feil syndrome. He had little, if any, use of his arms and could not have fed himself or kept himself clean. But he lived another 10 years or so.

They concluded that the people around him who had no metal and lived by fishing, hunting and raising barely domesticated pigs, took the time and care to tend to his every need.

“There’s an emotional experience in excavating any human being, a feeling of awe,” Ms. Tilley said, and a responsibility “to tell the story with as much accuracy and humanity as we can.”

This case, and other similar, if less extreme examples of illness and disability, have prompted Ms. Tilley and Dr. Oxenham to ask what the dimensions of such a story are, what care for the sick and injured says about the culture that provided it.

The archaeologists described the extent of Burial 9’s disability in a paper in Anthropological Science in 2009. Two years later, they returned to the case to address the issue of health care head on. “The provision and receipt of health care may therefore reflect some of the most fundamental aspects of a culture,” the two archaeologists wrote in The International Journal of Paleopathology.

And earlier this year, in proposing what she calls a “bioarchaeology of care,” Ms. Tilley wrote that this field of study “has the potential to provide important — and possibly unique — insights into the lives of those under study.” In the case of Burial 9, she says, not only does his care indicate tolerance and cooperation in his culture, but suggests that he himself had a sense of his own worth and a strong will to live. Without that, she says, he could not have stayed alive.

“I’m obviously not the first archaeologist” to notice evidence of people who needed help to survive in stone age or other early cultures, she said. Nor does her method “come out of the blue.” It is based on and extends previous work.

Among archaeological finds, she said, she knows “about 30 cases in which the disease or pathology was so severe, they must have had care in order to survive.” And she said there are certainly more such cases to be described. “I am totally confident that there are almost any number of case studies where direct support or accommodation was necessary.”

Such cases include at least one Neanderthal, Shanidar 1, from a site in Iraq, dating to 45,000 years ago, who died around age 50 with one arm amputated, loss of vision in one eye and other injuries. Another is Windover boy from about 7,500 years ago, found in Florida, who had a severe congenital spinal malformation known as spina bifida, and lived to around age 15. D. N. Dickel and G. H. Doran, from Florida State University wrote the original paper on the case in 1989, and they concluded that contrary to popular stereotypes of prehistoric people, “under some conditions life 7,500 years ago included an ability and willingness to help and sustain the chronically ill and handicapped.”

In another well-known case, the skeleton of a teenage boy, Romito 2, found at a site in Italy in the 1980s, and dating to 10,000 years ago, showed a form of severe dwarfism that left the boy with very short arms. His people were nomadic and they lived by hunting and gathering. He didn’t need nursing care, but the group would have had to accept that he couldn’t run at the same pace or participate in hunting in the same way others did.

Ms. Tilley gained her undergraduate degree in psychology in 1982 and worked in the health care industry studying treatment outcomes before coming to the study of archaeology. She said her experience influenced her interest in ancient health care.

What she proposes, in papers with Dr. Oxenham and in a dissertation in progress, is a standard four-stage method for studying ancient remains of disabled or ill individuals with an eye to understanding their societies. She sets up several stages of investigation: first, establishing what was wrong with a person; second, describing the impact of the illness or disability given the way of life followed in that culture; and third, concluding what level of care would have needed.

A paralyzed person, for example, would need “direct support” similar to nursing care while someone like Romito 2 would need “accommodation,” that is to say tolerance of his limitations and some assistance.

Debra L. Martin, associate professor of biological anthropology at the University of Nevada, Las Vegas, invited Ms. Tilley to write “The Bioarchaeology of Care” for a special report on new directions in bioarchaeology published this year in the Archaeological Record, the magazine of the Society for American Archaeology.

She said in an e-mail that what Ms. Tilley proposes “is a very nicely integrated approach” to using all the available evidence. “Lorna’s innovative approach,” she said, “has provided a way to move from the bones of individuals to thinking about the community as a whole.”

The fourth stage in the proposed method is where the gathered facts form the basis for interpretation. Extrapolating from hard evidence drawn from human remains to conclusions about how people lived is at the heart of bioarchaeology, a word coined in the 1970s by Jane E. Buikstra at Arizona State University to describe using the methods of physical anthropology, which concentrates on the bones, and those of archaeology, which concentrates on the culture and its artifacts, to try to “people the past,” as she phrases it, to put ancient people into a cultural context.

Dr. Buikstra, director of the Center for Bioarchaeological Research, who currently concentrates on the co-evolution of humans and their diseases, said that “People have from time to time across the years tried to attribute caring and caring for” to ancient humans. But, she said, “getting into the minds of ancient people” is always difficult. Ms. Tilley’s methods for how and when to make that kind of leap would base such attempts on standards used today for evaluating health care needs for severely disabled people.

Dr. Martin, who studies violence and illness as well, gave an example from her own work of the sort of case that can benefit from Ms. Tilley’s approach. The case is described in a coming book, “The Bioarchaeology of Individuals.” A skeleton of a young woman about 18 years old from a site on the Arabian Peninsula more than 4,000 years old indicated that the woman had a neuromuscular disease, perhaps polio.

“Her condition likely made it difficult for her to walk,” Dr. Martin wrote in an e-mail. “She had exceedingly thin arm and leg bones with very little buildup of normal muscle attachments.” She probably received round-the-clock care, Dr. Martin concluded.

But one problem that she had was apparently not a result of the disease. The teeth that she had were full of cavities, and she was “missing teeth from abscesses and periodontal disease.”

Those who cared for the young woman may have been too kind, Dr. Martin said. Her people grew dates, and, “Perhaps to make her happy, they fed her a lot of sticky, gummy dates, which eventually just rotted her teeth out, unusual for someone so young.”

First Sale Under Siege: If You Bought It, You Should Own It

The "first sale" doctrine expresses one of the most important limitations on the reach of copyright law. The idea, set out in Section 109 of the Copyright Act, is simple: once you've acquired a lawfully-made CD or book or DVD, you can lend, sell, or give it away without having to get permission from the copyright owner. In simpler terms, "you bought it, you own it" (and because first sale also applies to gifts, "they gave it to you, you own it" is also true).

Seems obvious, right? After all, without the "first sale" doctrine, libraries would be illegal, as would used bookstores, used record stores, etc.

But the copyright industries have never liked first sale, since it creates competition for their titles (you could borrow the book from a friend, pick it up at a library, or buy it from a used book seller on Amazon). It also reduces their ability to impose restrictions on how you use the work after it is sold.

Two legal cases now pending could determine the future of the doctrine. The first is Kirtsaeng v. Wiley & Sons. In that case, a textbook publisher is trying to undercut first sale by claiming the law only covers goods made in the United States. That would mean anything that is made in a foreign country and contains copies of copyrighted material – from the textbooks at issue in the Kirtsaeng case to shampoo bottles with copyrighted labels – could be blocked from resale, lending, or gifting without the permission of the copyright owner. That would create a nightmare for consumers and businesses, upending used goods markets and undermining what it really means to “buy” and “own” physical goods. The ruling also creates a perverse incentive for U.S. businesses to move their manufacturing operations abroad. It is difficult for us to imagine this is the outcome Congress intended.

The second is Capitol v. Redigi. Redigi is a service that allows music fans to store and resell music they buy from iTunes. Here’s how it works: customers download Redigi software and designate files they want to resell. Redigi's software checks to make sure the files came from iTunes (so it knows they were lawfully purchased), pulls the data files from the reseller's computer to cloud storage, and deletes them from the reseller’s hard drive. Once the music is in the cloud, other Redigi users can buy it. When a purchase is made, Redigi transfers ownership of the file and the seller can no longer access it. At last, a way for users to exercise their traditional right to resell music they no longer want.

No way, says Capitol Records. According to Capitol, the first sale doctrine simply doesn’t apply to digital goods, because there is no way to “transfer” them without making copies. When users upload their music the cloud, they are making a copy of that music, whether or not they subsequently (or simultaneously) delete it from their own computers, and the first sale doctrine doesn’t protect copying.

A win for Capitol would be profoundly dangerous for consumers. Many of us “buy” music, movies, books, games etc. in purely digital form, and this is likely to be increasingly true going forward. But if Capitol has its way, the laws we count on to protect our right to dispose of that content will be as obsolete as the VHS tape.

The Redigi case also highlights another growing problem. Not only does big content deny that first sale doctrine applies to digital goods, but they are also trying to undermine the first sale rights we do have by forcing users to license items they would rather buy. The copyright industry wants you to "license" all your music, your movies, your games — and lose your rights to sell them or modify them as you see fit. These "end user license agreements" reinforce the short-sighted policies that prevent us from lending ebooks to friends, re-selling software packages, or using text-to-speech to read ebooks aloud.

We been worried about the future of first sale for a long time, but it seems we are reaching a new crisis point. We need to be prepared to tell elected lawmakers that we stand up for first sale, whether the threat comes from arcane import regulations, dangerous legal interpretations, or onerous End User License Agreements. EFF has joined Demand Progress and the Free Software Foundation in giving you a platform to contact your legislators to urge them to stand up for first sale. Take action today.

Public Buses Across Country Quietly Adding Microphones to Record Passenger Conversations

By Kim Zetter

Transit authorities in cities across the country are quietly installing microphone-enabled surveillance systems on public buses that would give them the ability to record and store private conversations, according to documents obtained by a news outlet.

The systems are being installed in San Francisco, Baltimore, and other cities with funding from the Department of Homeland Security in some cases, according to the Daily, which obtained copies of contracts, procurement requests, specs and other documents.

The use of the equipment raises serious questions about eavesdropping without a warrant, particularly since recordings of passengers could be obtained and used by law enforcement agencies.

It also raises questions about security, since the IP audio-video systems can be accessed remotely via a built-in web server (.pdf), and can be combined with GPS data to track the movement of buses and passengers throughout the city.


The RoadRecorder 7000 surveillance system being marketed for use on public buses consists of a high-definition IP camera and audio recording system that can be configured remotely via built-in web server.

According to the product pamphlet for the RoadRecorder 7000 system made by SafetyVision (.pdf), “Remote connectivity to the RoadRecorder 7000 NVR can be established via the Gigabit Ethernet port or the built-in 3G modem. A robust software ecosystem including LiveTrax vehicle tracking and video streaming service combined with SafetyNet central management system allows authorized users to check health status, create custom alerts, track vehicles, automate event downloads and much more.”

The systems use cables or WiFi to pair audio conversations with camera images in order to produce synchronous recordings. Audio and video can be monitored in real-time, but are also stored onboard in blackbox-like devices, generally for 30 days, for later retrieval. Four to six cameras with mics are generally installed throughout a bus, including one near the driver and one on the exterior of the bus.

Cities that have installed the systems or have taken steps to procure them include San Francisco, California; Eugene, Oregon; Traverse City, Michigan; Columbus, Ohio; Baltimore Maryland; Hartford, Connecticut; and Athens, Georgia.

San Francisco transit authorities recently approved a $5.9 million contract to install an audio surveillance system on 357 buses and vintage trolley cars, paid for in full with a grant from DHS. The contract includes the option to expand the equipment to an additional 600 vehicles.

Concord, New Hampshire also used part of a $1.2 million economic stimulus grant to install its new video/audio surveillance system on buses, according to the Daily.

Transit officials say the systems will help improve the safety of passengers and drivers and resolve complaints from riders. But privacy and security expert Ashkan Soltani told the Daily that the audio could easily be coupled with facial recognition systems or audio recognition technology to identify passengers caught on the recordings.

In Eugene, Oregon, the Daily found, transit officials requested microphones that would be capable of “distilling clear conversations from the background noise of other voices, wind, traffic, windshields wipers and engines” and also wanted at least five audio channels spread across each bus that would be “paired with one or more camera images and recorded synchronously with the video for simultaneous playback.”

In 2009, transit officials in Baltimore, Maryland, backed down briefly from plans to install microphones in buses in that city after civil liberties groups complained that the systems would violate wiretapping laws and constitutional protections against illegal search and seizure. Transit authorities then asked the state’s attorney general to weigh-in on whether the systems violated wiretapping laws. After the attorney general indicated that signs warning passengers of the surveillance would help combat any legal challenges, transit officials pressed forward with their plans last month and announced the installation of an audio recording system on 10 public buses. The city plans to roll out the system on at least 340 additional buses.

Watching the Detectives

After activists publish some documents found next to trash can, Richmond police file a lawsuit — again.

by Ned Oliver

The Richmond Police Department says a trove of files posted anonymously online contain officers' personal contact information and put undercover operations at risk. They want them back — or at least off the Internet.

Mo Karn, a member of the Wingnut Anarchist Collective in Barton Heights who linked to the documents on her website, wingnutrva.org, says her source found the portable hard drive fair and square: On the ground in a parking lot near a trash can. She says it contained a quiche recipe, family photos and, yeah, hundreds of the Richmond Police Department's internal documents and communications.

The week before Thanksgiving the whole thing broke into a contentious lawsuit that resulted in two separate orders from Richmond Circuit Court Judge Gregory L. Rupe demanding that Karn and Nathan Cox — the latter operates the libertarian-leaning Virginia Cop Block — remove the documents from their websites. Karn and Cox say they've complied as best they can, considering they didn't actually upload the information and don't have the hard drive.

Still, they're unapologetic and ready for a fight.

Both Karn and Cox are advocates for transparency in police operations. They've been known to record video of officers when they're ticketing or arresting someone — a tactic they say helps prevent police from abusing their power. Karn says most of the information on the hard drive is just standard departmental manuals that should be available to anyone under state's Freedom of Information Act. She doesn't buy the police department's claim that the files pose a serious threat to officers or their investigations.

"I would say that if the police have files that are of life or death importance, they shouldn't be putting them on USB sticks and taking them home," Karn says. "I'd expect that they have better security protocols on their end. The reality of the situation is that the police really like to exaggerate the amount of danger that they're under in general."

Karn and Cox are being represented by lawyer Andrew T. Bodoh of Thomas H. Roberts and Associates. He says the case is a strange one and brings up serious questions about the rights of his defendants. "It raises concerns that this is basically an attempt to strong-arm the defendants into handing these documents back to them without the due process safeguards that are in place to protect their First Amendment rights and rights to property," Bodoh says.

Richmond police officials didn't respond to a request for comment, but according to court filings the most sensitive documents posted include a list of officers' personal contact information, including their home addresses and cell phone numbers. Some of the documents, such as daily activity logs and reports, also allegedly contain information about ongoing and completed investigations that police say would "enable the discernment of the names of still confidential sources or informants to criminal activity."

All the filings in the case were sealed until the middle of last week. When the police filed their initial emergency motion with the judge Nov. 16, they asked him to keep the proceedings a secret because they worried publicity around the suit would lead more people to the "highly sensitive information concerning RPD operations," and "disrupt ongoing criminal investigations and jeopardize the safety of police officers and citizens."

The bulk of the documents, however, are fairly dry operations manuals for officers. They spell out everything from how officers are supposed to interact with retail security guards to how to proceed in routine drunken-driving investigations. For example, if a preliminary breath test indicates a blood alcohol content of .05 to .08 percent or below, officers are directed to release the suspect.

That's the kind of information Karn and Cox say should be public. Cox, 30, of Hanover, founded Virginia Cop Block as a state chapter of CopBlock.org, which aims to increase police accountability by filming police actions and educating people about their rights when interacting with the police. Similarly, Karn operates what she calls Richmond Copwatch, which also endeavors to educate the public on police tactics and policies. This is the second time she's been sued by the Richmond Police Department over internal information she posted online. In January 2011 Karn posted policy manuals on her website that the police had released to her in response to a Freedom of Information Act request. The police claimed they'd made a mistake in releasing the information but dropped the suit after the American Civil Liberties Union agreed to represent Karn.