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Author Topic: Privacy, Big Brother (State and Corporate) and the 4th & 9th Amendments  (Read 96093 times)
G M
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« Reply #250 on: April 02, 2011, 05:21:47 PM »

http://www.ibtimes.com/articles/129568/20110401/google-goggles-face-recognition-app-privacy-smartphone-mobile.htm

Friday, April 1, 2011 7:46 AM EDT

Privacy concerns plague Google Goggles facial recognition

By IBTimes Staff Reporter




As privacy concerns plague the much-anticipated Google Goggles facial recognition feature, the internet giant has asserted that it is "still working" on the smartphone app. The company's statement comes after a media report on the upcoming Google Goggle facial recognition app prompted tech observers raise questions on how the app would compromise on privacy.
 
CNN reported Thursday that Google was working on an app that would identify people's faces. The mobile application would allow users to snap pictures of people's faces in order to access their personal information, a director for the project said this week, the report said.
 
In response to the report on the upcoming app, Venture Beat argued Friday that Google's face-recognition app "sounds great for stalkers."
 
"Tech companies keep on creating great new technologies that raise a lot of privacy concerns. The latest example is Google's upcoming mobile app that will identify people's faces in order to access their personal information," the report noted.
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Crafty_Dog
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« Reply #251 on: April 02, 2011, 06:12:48 PM »

 shocked shocked shocked shocked shocked shocked shocked shocked shocked
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bigdog
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« Reply #252 on: April 04, 2011, 08:27:08 AM »

With the news that millions of email addresses have been compromised, my employer sent out the following links for info on so-called "spear phishing." 

http://www.fbi.gov/page2/april09/spearphishing_040109.html
http://searchsecurity.techtarget.com/sDefinition/0,,sid14_gci1134829,00.html
https://www.microsoft.com/australia/athome/security/email/spear_phishing.mspx
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Body-by-Guinness
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« Reply #253 on: April 05, 2011, 09:58:25 PM »

Applying the Mosaic Theory of the Fourth Amendment to Disclosure of Stored Records
Orin Kerr • April 5, 2011 4:54 pm

I’ve blogged a few times about United States v. Maynard, the controversial D.C. Circuit case holding that over time, GPS surveillance begins to be a search that requires a warrant. Maynard introduced a novel mosaic theory of the Fourth Amendment: Although individual moments of surveillance were not searches, when you added up the surveillance over time, all the non-searches taken together amounted to a search. The obvious question is, just how much is enough to trigger a search? At what does point the Constitution require the police to get a warrant?

This issue recently came up in a court order application before Magistrate Judge James Orenstein in Brooklyn seeking historical cell-site location for two cell phones used by a particular suspect. Regular readers will be familiar with Judge Orenstein: He is a very civil libertarian judge who has a strong sense of his own role, and he has concluded that Maynard is correct. In the most recent case, In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 2011 WL 679925 (Feb 16, 2011), Judge Orenstein tries to apply Maynard to determine if a particular discosure of information is protected by the Fourth Amendment under the Maynard mosaic theory. In the case, the government sought a court order under 18 U.S.C. 2703(d) for the cell-site records of two phones used by the same person. For one phone, the records were sought for one three-day period and a separate six-day period weeks later, and for the second phone, the records were sought for a twelve-day period several months later. The question was, did these records, viewed collectively, create a mosaic that triggers the Fourth Amendment?

In an earlier case, Judge Orenstein had concluded that the records of a 58-day period of a single cell phone did create a sufficient mosiac as to create a reasonable expectation of privacy under Maynard, such that a warrant was required to release that information. But in this case, Judge Orenstein concludes that the records sought are not protected by a reasonable expectation of privacy — and no warrant is required — because the records if released would not amount to enough of a mosaic to trigger Maynard. As a result, Orenstein agrees to issue the order without first finding probable cause. According to the opinion, here’s the reason why the Fourth Amendment doesn’t apply:

The instant application requires me to consider the point at which a request for location tracking information is extensive enough to trigger the warrant requirement.. . . The rationale in Maynard, in essence, was that a month’s worth of location tracking provides an intimate picture of the subject’s life, and one that he does not meaningfully subject to public exposure, in part because sustained physical surveillance over such a period is effectively impossible.

The Maynard court took pains to distinguish the case before it from the circumstances of United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court decided that the use of a beeper to track a single trip on public roads did not implicate the warrant requirement of the Fourth Amendment. Maynard, 615 F.3d at 556. It did not attempt to define the length of time over which location tracking technology must be sustained to trigger the warrant requirement. I recognize that any such line-drawing is, at least to some extent, arbitrary. . . .

I do not mean to suggest that I can or should define the minimum duration that transforms the kind of discrete surveillance effort at issue in Knotts into the sustained location tracking that triggers the warrant requirement under Maynard. I venture no further than the appellate court that decided Maynard. In that case, the government sustained its GPS-based surveillance for one month. . . .

And while the period at issue here — a total of 21 days — is not necessarily so much shorter than the month at issue in Maynard to compel the conclusion that the same reasoning does not apply, there is a further complicating factor here. The government does not seek location tracking records for a single mobile phone over a continuous period of 21 days; instead, it seeks records for one telephone for a three-day period and a separate six-day period weeks later, and also the records of a different telephone (albeit one allegedly used by the same investigative subject) for a twelve-day period several months later. Even if it would be just as impractical for the government to conduct physical surveillance in lieu of electronic tracking for such shorter periods, I cannot assume that the information gleaned over such shorter periods, separated by breaks of weeks or months, would necessarily be as revealing as the sustained month-long monitoring at issue in Maynard.

Because I conclude that the Fourth Amendment does not bar application of the SCA in the circumstances of this case, I grant the government’s application


To my mind, this opinion reveals the absurdity of Maynard’s mosaic theory. The analysis is all “look ma, no hands.” No one knows where the line is, or even what the line is. Sure, you could just count days of surveillance: perhaps 30 days triggers a warrant but 29 days doesn’t. But there is no reason the access to records has to be continuous. The government can skip around days, or get records from a few days here and a few days there. Who can tell how much is enough? No one knows what is revealing, because what is revealing depends on what the records actually say — and no one but the phone companies know what they say. So Judge Orenstein has to wing it, announcing that “he cannot assume” that the information would be revealing because it has breaks in time. But it’s not clear to me why the break in time matters: It’s the same net amount of data collected, so I don’t know why it matters if it was collected all at once or over several discrete periods. And how much of a break matters? If 21 days is too long, is 21 days with a one-day break enough? How about a 3-day break? One week? No one knows, it seems, not even the judge himself.

And of course, as soon as courts are clear as to where the line may be, the police just have to go right up to it to avoid the warrant requirement: They’ll do just shy of what the courts say requires a warrant. And presumably the poilice will then try to get multiple orders over time, meaning that judges will have to develop a jurisprudence of how multiple order applications (perhaps from different law enforcement groups) accumulate pieces of the mosaic. For example, if 30 days is too long, but 15 days with a one-week break is okay, the police can try to get the equivalent of 30 days of records in two parts — 15 days at a time, each with a one-week break. Imagine that there is a different magistrate on duty when the second order is obtained. Does the second judge need to know of the prior order, so he can properly accumulate the days of surveillance and realize that the break in time of one order is filled by the second order so that the collection of the two orders amounts to a search? If so, are the contents of the first order supressible, even though it alone didn’t amount to a search, on the theory that the collection of the first and second order together amounted to a search, and that they should be viewed together even though the orders were obtained at different times?

There are some readers who will say that the cause of justice sometimes requires hard decisions, and that if judges need to make arbitrary calls like that, then that is what we pay them to do in order to enforce the Constitution. But as I see it, the oddity of the inquiries called for by the Maynard mosaic theory shows why it is not part of the Constitution at all. In Fourth Amendment law, the lawfulness of governent conduct has always been viewed discretely: Each government act is either a search or it is not a search. Under Maynard, conduct can be a non-search if viewed in isolation but a search if viewed in context — but there is no guide to tell how much context is proper. If you want to say that certain conduct is a search, then just be direct and say it’s a search. That’s fine. But a mosaic theory, in which non-searches become searches if grouped a particular way, has no proper place in Fourth Amendment law.

http://volokh.com/2011/04/05/applying-the-mosaic-theory-of-the-fourth-amendment-to-disclosure-of-stored-records/
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Body-by-Guinness
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« Reply #254 on: April 13, 2011, 01:24:40 PM »

Privacy 'bill of rights' exempts government agencies
by Declan McCullagh

 
Two U.S. senators introduced sweeping privacy legislation today that they promise will "establish a framework to protect the personal information of all Americans."
There is, however, one feature of the bill (PDF) sponsored by senators John Kerry (D-Mass.) and John McCain (R-Ariz.) that has gone relatively unnoticed: it doesn't apply to data mining, surveillance, or any other forms of activities that governments use to collect and collate Americans' personal information.
At a press conference in Washington, D.C., McCain said the privacy bill of rights will protect the "fundamental right of American citizens, that is the right to privacy." And the first sentence of the legislation proclaims that "personal privacy is worthy of protection through appropriate legislation."
But the measure applies only to companies and some nonprofit groups, not to the federal, state, and local police agencies that have adopted high-tech surveillance technologies including cell phone tracking, GPS bugs, and requests to Internet companies for users' personal information--in many cases without obtaining a search warrant from a judge.

"What's a bill of rights if it doesn't provide rights against the government?" asks Jim Harper, director of information policy studies at the free-market Cato Institute.
It also doesn't apply to government agencies including the Department of Health and Human Services, the Department of Veterans Affairs, the Social Security Administration, the Census Bureau, and the IRS, which collect vast amounts of data on American citizens.
The Department of Veterans Affairs suffered a massive security breach in 2006 when an unencrypted laptop with data on millions of veterans was stolen. A government report last year listed IRS security and privacy vulnerabilities. The government of Texas yesterday revealed that it disclosed the personal information of 3.5 million citizens, including Social Security numbers. Even the Census Bureau has, in the past, shared information with law enforcement from its supposedly confidential files.
Another feature missing from Kerry and McCain's bill of rights: a strict requirement that would force federal agencies to notify American citizens in the event of a data breach.
In 2007, the Bush White House asked agencies (PDF) to develop breach notification rules. But there are no civil or criminal penalties if violated, and agencies are allowed to make their own decisions as to whether a breach has generated sufficient "harm" to warrant notification--a self-policing measure that gives them a strong incentive to downplay any potential ill effects.
Making the governmental exemption more pointed is the fact that the senators' press conference comes as the Obama Justice Department is lobbying for broader surveillance powers and trying to head off pro-privacy reforms.
In January, the Justice Department announced that investigations "are being frustrated" because no law currently exists to force Internet providers to keep track of what their customers are doing. A month later, the FBI outlined its push for expanded Internet wiretapping authority.
Last week, the Justice Department said it opposed proposals--backed by AT&T, Google, Microsoft, eBay, the American Civil Liberties Union, and Americans for Tax Reform--to protect Americans' privacy by requiring a search warrant to access online files and track Americans' locations. Then, on Friday, the Justice Department renewed its opposition to being required to use a search warrant to access the Twitter accounts of Wikileaks volunteers.
"Kerry and McCain are saying, 'Do as I say, not as I do,'" Harper says. "If they want to lead on the privacy issue, they'll lead by getting the federal government's house in order."
Instead, their legislation would regulate only commercial and nonprofit use of information that's personally identifiable, with exceptions for information "obtained from public records that is not merged" with other data and information "reported in public media."
The measure shares many features with similar, unsuccessful bills introduced last year: Personally identifiable information is defined as including a first and last name, a residential mailing address, a Web cookie, an e-mail address, a telephone number, biometric data, and so on. "Sensitive" information is a subset and includes health records, religious information, or data that could lead to "economic or physical harm."
In general, personal information can only be used for a list of purposes specified in the legislation, including processing transactions, certain types of marketing, "reasonably expected" uses, and responding to police and other governmental requests. Violations would be punished by the Federal Trade Commission.
The FTC would also be given one year to set up a "safe harbor" program, which would be administered by approved non-governmental organizations. Companies that participate in the safe harbor, as long as it includes similar data use restrictions, would be "exempt" from the more restrictive aspects of the bill.


Read more: http://news.cnet.com/8301-31921_3-20053367-281.html#ixzz1JQeDKrJP
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Crafty_Dog
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« Reply #255 on: April 23, 2011, 11:57:45 AM »



The Supreme Court has never heard a case challenging the government’s authority to search a computer. It is time, after a panel of the United States Court of Appeals for the Ninth Circuit opened the way last month to vast government intrusion. It ruled that, without good reason to suspect evidence of a crime, border agents could seize a laptop and open a dragnet search of files, e-mails and Web sites visited.

The majority pats itself on the back for stopping “far short of ‘anything goes’ at the border,” since any intrusion must not violate the Fourth Amendment’s ban on “unreasonable searches and seizures.” But by not requiring the government to have a reason for seizing a computer or to say what it is searching for, a dissent notes, the majority “allows the government to set its own limits.” In other words, pretty much anything goes.

The government asked the court to create this precedent, though in this case it had genuine grounds for suspicion. When the defendant crossed from Mexico into Arizona, his criminal record as a child molester came up in a database. When the government looked for child pornography, it found plenty on his laptop. The government has a duty to secure the borders against this and other kinds of illegal material, including drugs and weapons.

Fourth Amendment law already gives border agents huge leeway, allowing them to search travelers and their belongings, without a warrant, proof of probable cause or suspicion of illegal activity. The Ninth Circuit decided that computers could be searched on site as part of those belongings. But this ruling allows the government to hold a laptop for weeks or even months, transport it away from the border and subject it to an intensive search.

The difference between the search of a briefcase’s physical space and a laptop’s cyberspace — a window into the user’s mind — is profound. As Justice Louis Brandeis wrote, the Fourth Amendment must protect just such “privacies of life.” It was 1928 when he warned that “ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences.”

Searching a computer is a major invasion of privacy — one that may be necessary to protect the country’s security. But there still must be limits and protections. It is now up to the Supreme Court to establish those limits.

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Body-by-Guinness
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« Reply #256 on: April 27, 2011, 07:21:17 AM »

How Well-Trained Does A Drug-Sniffing Dog Need to Be Before a Positive Alert Creates Probable Cause?
Orin Kerr • April 26, 2011 6:02 pm

Under the automobile exception to the Fourth Amendment, the police can search a car without a warrant if they have probable cause to believe there is contraband inside it. And under Illinois v. Caballes, the use of a drug-sniffing dog to alert for the presence of drugs in a car is not a Fourth Amendment search. As a result, the police often bring out the dogs to a traffic stop and see if the dog alerts: Under the Fourth Amendment, the police can search the car if the dog’s positive alert amounts to probable cause. But this raises a question: Just how well-trained does a dog need to be before its alert will trigger probable cause? And how do you know how reliable the dog is? In just the last week, I’ve noticed an interesting split emerge on the question.

First, last Friday, the Tenth Circuit adopted the view that an up-to-date certification of the dog’s prowess at finding drugs is enough to satisfy the requisite level of reliability, at least if the certifying authority isn’t challenged. The case is United States v. Ludwig (Gorsuch, J., joined by Judge Murphy and Judge Tymkovich). From the opinion:

t surely goes without saying that a drug dog’s alert establishes probable cause only if that dog is reliable. See id. at 1283. But none of this means we mount a full-scale statistical inquisition into each dog’s history. Instead, courts typically rely on the dog’s certification as proof of its reliability. See id.; United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir.1997) (“[W]ith a canine, the reliability should come from the fact that the dog is trained and annually certified to perform a physical skill.”) (quotation omitted). After all, it is safe to assume that canine professionals are better equipped than judges to say whether an individual dog is up to snuff. And beyond this, a dog’s credentials provide a bright-line rule for when officers may rely on the dog’s alerts—a far improvement over requiring them to guess whether the dog’s performance will survive judicial scrutiny after the fact. Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors. [FN: This is not to say that a dog’s alerts are necessarily unreliable just because the dog lacks an acceptable certification. An uncertified dog’s accuracy could still, in theory at least, be established by examining its training history and record for reliability. Our point is that this is a needless exercise when, as here, the dog has been certified by an organization whose bona fides are unchallenged.]

The Tenth Circuit also noted that while probable cause isn’t and even shouldn’t be a numerical concept — citing some dubious scholarship along the way — even if probable cause were to be treated as a numerical concept, the evidence in that case was enough that the dog was reliable:

[T]he dog’s records—spanning some 200 pages in the record and covering 7 years’ worth of data—reveal that its alerts have identified a seizable quantity of drugs . . . 58% of the time. . . . While we hesitate to get into the business of affixing figures on probable cause, if we were pushed to do so we would hold this to be enough. After all, probable cause doesn’t require an officer’s suspicion about the presence of contraband to be “more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983); United States v. Padilla, 819 F.2d 952, 962 (10th Cir. 1987); see also United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (“[T]he requisite ‘fair probability’ is something more than a bare suspicion, but need not reach the fifty percent mark.”) . . . .

Contrast the Tenth Circuit’s analysis with a new opinion of the Florida Supreme Court, handed down last Thursday, Harris v. State. Harris specifically rejects the view that an up-to-date certification of the dog is enough:

[W]e hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle. To adopt the contrary view that the burden is on the defendant to present evidence of the factors other than certification and training in order to demonstrate that the dog is unreliable would be contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search. In addition, since all of the records and evidence are in the possession of the State, to shift the burden to the defendant to produce evidence of the dog‘s unreliability is unwarranted and unduly burdensome.

[T]he fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person. We first note that there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs. . . .

In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified. “imply characterizing a dog a ‘trained‘ an ‘certified‘ imparts scant information about what the dog has been conditioned to do or not to do, or how successfully.” Matheson, 870 So. 2d at 14. In other words, whether a dog has been sufficiently trained and certified must be evaluated on a case-by-case basis. . . .

[A] necessary part of the totality of the circumstances analysis in a given case regarding the dog‘s reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog‘s performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court‘s evaluation of the dog‘s reliability under a totality of the circumstances analysis.8   In particular, when assessing the factors bearing on the dog‘s reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found.


Is this dog going to sniff its way to the Supreme Court? Perhaps. Stay tuned.

http://volokh.com/2011/04/26/how-well-trained-does-a-drug-sniffing-dog-need-to-be-before-a-positive-alert-creates-probable-cause/
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Body-by-Guinness
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« Reply #257 on: May 05, 2011, 10:29:31 AM »

Bin Laden’s Revenge
By Randall Holcombe
Tuesday May 3, 2011 at 12:17:08 PM PDT

 

I just returned from a conference.  The guy sitting next to me on the plane had with him a laptop computer, an iPad, an iPod, and a phone.  Yep, four “portable electronic devices.”  I figured the guy was probably a terrorist.  Because they keep announcing it to potential terrorists on aircraft, I know that portable electronic devices can interfere with the aircraft’s navigation system.  And this guy had four of them.

Now that bin Laden has been killed some have conjectured that al Qaeda will initiate some retaliation, and they probably would want to strike quickly.  Targeting aircraft would be difficult because of the heavy security already in place.  For example, someone wanting to bring down an aircraft using toothpaste would have a difficult time because the TSA prohibits carrying toothpaste, except in extremely small quantities, on aircraft.

So, you’d have to think that anyone wanting to initiate a terrorist attack with toothpaste, shampoo, mouthwash, or soft drinks would have a very difficult time getting those dangerous and banned items onto an aircraft.  The big loophole in all this is portable electronic devices which, despite repeated announcements about their danger to aircraft, are still allowed on board.

How hard would it be, for example, for al Qaeda to book a dozen operatives onto a flight, all of whom had four portable electronic devices like my recent seat-mate, and then when below 10,000 feet, to all turn them on at once?  That would be 48 portable electronic devices, which would cripple the aircraft’s navigation system and bring the aircraft down.  Don’t need box cutters.  Don’t need toothpaste.  It can be done with something the TSA routinely lets through checkpoints, even as the flight attendants announce on every flight how dangerous they are.

Skeptical readers will argue that despite these announcements, portable electronic devices pose no threat to aircraft navigation, and perceptive passengers will note that even as the airline crews announce the dangers of these devices on every flight, the airlines have even started selling in-flight internet service (above 10,000 feet), so we can all fire up our portable electronic devices and surf the web rather than focusing on the fact that we are hurling along six miles above the surface of the Earth, where the air is too thin to breathe, at 550 mph in an aluminum cylinder.  Could it be that these devices interfere with aircraft navigation below 10,000 feet, but not in the thinner air above?

Most people don’t question things we’re told to do for our safety.  On one of my flights this trip, a passenger didn’t turn off his portable music player as the aircraft descended and the familiar announcement was made, and was accosted by a fellow passenger who told the offending music listener that his player could “mess up” the aircraft’s navigation system, and that he was endangering our flight.  Meanwhile, for our own safety, we disrobe at TSA checkpoints, and don’t carry dangerous items like mouthwash and shampoo, remaining compliant because most people think this makes us safer.

The damage al Qaeda’s attack caused when it destroyed the World Trade Center was about $10 billion (not including the substantial cost in terms of human life).  Meanwhile, the TSA’s annual budget is $6.3 billion, so we’re spending more than half the cost of the destruction of the World Trade Center every year to protect ourselves from another attack.  Clearly, the bulk of the cost of the September 11, 2001 attack has come in terms of the costs we have incurred since that day, not the cost of the actual destruction from the attack.  That is bin Laden’s revenge.

Part of bin Laden’s revenge comes in the form of the monetary cost, and part comes in the form of our ready acceptance of our loss of liberty.  Our Constitution says, “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… but upon probable cause…”  Yet everyone who takes an airline flight undergoes such a search, with no probable cause.  The TSA has yet to discover anyone at any checkpoint poised to undertake any terrorist activity.

Yes, there was the financial cost and loss of life, but perhaps a bigger victory, and an on-going one, for bin Laden, is the undermining of our constitutional rights.  I talk with people all the time who tell me they believe our loss of rights is worth it to make flying safer.  They don’t question the nonsensical TSA rules.  We’re training compliant citizens, and those citizens trained to be more compliant to government mandates at TSA checkpoints indirectly are being trained not to question government mandates in all areas of our lives.

No thinking person can believe that preventing people from carrying their own bottled water onto airplanes, or carrying their own toothpaste and shampoo, makes us safer.  Even preventing people from carrying knives on board does not make us safer.  Prior to September 11, 2001, the conventional wisdom on an aircraft hijacking was to quietly comply with the hijacker’s demands so everyone could land safely.  That conventional wisdom disappeared before that day was over, as the passengers on United Airlines Flight 93 heard about the other hijackings and overpowered the hijackers.  Passengers will no longer be compliant with hijackers’ demands, and if the passengers had knives, it would enable them to more effectively fight back, as they would do today.

We can debate the wisdom of allowing people to carry knives on board aircraft, but how about deodorant, or shampoo?  Where do we draw the line?  The answer is that we don’t.  We have been intimidated, by bin Laden’s terrorist network and our own federal government, into complying with demands that everyone should recognize as absurd, and a violation of our constitutional rights.

The Constitution always has been a pesky obstacle standing in the way of the government taking away more of our liberties.  Bin Laden’s attacks were aimed directly at the constitutional safeguards that make ours a free country.  Bin Laden is gone, but his revenge is the erosion of our constitutional liberties that will live on.

http://www.independent.org/blog/index.php?p=10419
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G M
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« Reply #258 on: May 05, 2011, 10:46:15 AM »

Please cite the part of the constitution where your have the right to board a commercial flight.
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Body-by-Guinness
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« Reply #259 on: May 06, 2011, 11:21:38 AM »

Sure, when you cite the part that allows you to trim your toenails. Or are limited, enumerated powers as clearly described by the framers concepts too difficult to grasp?
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G M
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« Reply #260 on: May 06, 2011, 11:34:23 AM »

Can you see a difference between securing commercial aircraft post-9/11 and personal grooming?
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G M
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« Reply #261 on: May 06, 2011, 11:36:42 AM »

There are multiple challenges to TSA screening in the court system now. We'll see if the constitutionality of the screening is upheld. I know where I'd put my money if there was betting on the ultimate ruling.
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Body-by-Guinness
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« Reply #262 on: May 06, 2011, 11:45:37 AM »

Me too: on the ever expanding nanny state which strays ever further from the founding vision for this nation.
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Body-by-Guinness
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« Reply #263 on: May 06, 2011, 11:51:12 AM »

And yes, I can tell the difference between the two. In view of Obamacare, over-criminalization, EPA CO2 rulings, insanely complex tax code, second amendment restrictions, and so on, can you understand why one might not be pleased by yet further federal encroachment, particularly by an agency that has not caught a single terrorist, regularly fails security audits, hasn't addressed gaping security holes where airport staff are concerned, et al? Or are we supposed to pretend they provide competent security as we imagine ourselves to be a free people?
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G M
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« Reply #264 on: May 06, 2011, 12:02:21 PM »

With the many document flaws of TSA, it still looks good when compared to the private security screening of pre-9/11.

TSA screening is designed to deter terrorists, not catch them. Now there are criminal investigators/FAMS assigned to Joint Terrorism Task Forces that are seeking out terrorists proactively.....

I have yet to see a better system suggested that is practical in the US. If you want El Al profiling, you better get on board with Shin Bet domestic intelligence gathering.
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« Reply #265 on: May 11, 2011, 12:33:18 PM »

And retroactive self-incrimination, too.

DoJ to Congress: Make ISPs keep tabs on users
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Many wireless companies — which must collect some data — also do not retain some other records. | AP Photo Close
By TONY ROMM | 5/10/11 12:05 PM EDT

As a new Senate privacy panel considers the data collected by iPhones, Androids and BlackBerrys, the Department of Justice is reminding lawmakers that it needs Internet providers to store more data about their users to help with federal investigations.

Current law doesn't require those Internet service providers to "retain any data for any particular length of time," although some already do, said Jason Weinstein, deputy assistant attorney general at the DOJ's Criminal Division. And many wireless companies — which must collect some data — also "do not retain records that would enable law enforcement to identify a suspect's smartphone based on the IP address collected by websites the suspect visited," he noted in prepared testimony.

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That's why Weinstein urged the Senate Judiciary’s Privacy, Technology and the Law subcommittee on Tuesday to consider data-retention legislation as it weighs new privacy efforts in the digital age. The top DOJ official said such a congressional fix would boost the agency's ability to investigate privacy breaches, prosecute other digital crimes and ferret out abuses in the offline world.

"Those records are an absolutely necessary link in the investigative chain," Weinstein told the panel.

Data retention has proven to be a particularly divisive issue in the privacy community. Some top tech stakeholders believe it would allow companies and law enforcement agencies too much access to consumers' personal information, such as the websites they visit. The resulting caches of information could further be subject to data breach, many argue.

But data-retention rules are particularly appealing to DOJ, which argued at a hearing earlier this year that such legislation would assist greatly with cyberstalking and other tough law enforcement investigations. Weinstein stressed Tuesday the department seeks a law that would require providers to keep records for a “reasonable period of time,” and seeks a “balance” between the needs of law enforcement, private industry and consumers.

http://www.politico.com/news/stories/0511/54658.html
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G M
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« Reply #266 on: May 11, 2011, 12:44:43 PM »

I'm not sure how you get "Retroactive probable cause" out of that article.
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Body-by-Guinness
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« Reply #267 on: May 11, 2011, 01:24:46 PM »

Most of us think of our online warblings as ethereal things with a short shelf life. Should you come under government scrutiny, words long since forgotten could be used as reason to launch a criminal investigation. To my mind, it's like if the post office opened, copied, and stored every piece of mail, with you finding out decades later that something long discarded is now being used to start criminal proceedings against you.
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G M
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« Reply #268 on: May 11, 2011, 01:44:58 PM »

Unless you are engaging in criminal conduct on the net, there isn't anything to be concerned about.
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Body-by-Guinness
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« Reply #269 on: May 11, 2011, 02:58:07 PM »

As someone who has already explained to you how postings of mine did indeed come back to haunt me I am less than reassured, particularly in view of bits of info like this:

http://www.cato-at-liberty.org/record-number-of-americans-targeted-by-national-security-letters

As the feds have already pooped all over citizen's live's enforcing foreign laws the citizens in question had no knowledge of, it does not take a lot of wild eyed extrapolation to conjure a circumstance where and ISP could be forced to hand over information it had been mandated to store that then goes on to be used by LEOs as evidence of some sort of malfeasance for which the target of the investigation was unaware. Conspiracy to import undersized lobsters, anyone?

Indeed, as someone who deals with his share of HR issues I've already had to contend with interesting discovery requests. What happens to civil litigation when there are decades worth of records stored somewhere only in need of a court order to sift through? You can't see that being ability being abused, either?
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G M
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« Reply #270 on: May 11, 2011, 03:06:25 PM »

Discovery in civil litigation goes both ways. As you point out, both in the civil and criminal areas, all sorts of records can be accessed. Should we not have records of any transactions? The interwebs isn't a secure environment, assume that everything can be compromised.
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Body-by-Guinness
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« Reply #271 on: May 12, 2011, 12:11:26 PM »

Precisely my point: with a federally mandated storage regimen yesterday's harmless bit of fun becomes today's pattern of behavior. I regularly cull professional communications after 3 years just so I don't have to worry about sifting through tens of thousands of emails looking for what some lawyer might putatively consider germane as he instead tries to foist a lot of time wasting discovery in the hope a settlement becomes deemed easier than complying with his fishing expedition. And now the Feds want to archive all that stuff? For how long? Who has access? To what end? Looks to me like they are casting a huge net without answering fundamental questions. Hell, this act might save the USPS by increasing the use of first class mail, which would not be subject to these requirements. Yet.
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G M
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« Reply #272 on: May 12, 2011, 12:18:33 PM »

Unless a "harmless bit of fun" is a violation of criminal law, what is your concern? If I was that worried about the net, I'd throw my computers into a blast funace and never go online again. You act as if you are writing samizdat under Stalin.
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Body-by-Guinness
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« Reply #273 on: May 12, 2011, 01:50:42 PM »

And I've already detailed issues I've dealt with in the past. One example I used here are the standards of banter used in the kitchen v. the standards of banter in a civil service gig. If utterings in the former were detailed in the latter all sorts of consternation would ensue. You can imagine no future employer who might take issue with your online habits? Plenty of your posts would cause a lot of raised eyebrows in some quarters. Is your email better sanitized than your online life? Plenty of folks already contending with HR opprobrium due to their posting habits on Facebook, do we really want a net of undefined size and duration to be cast even further? You can't imagine that resource ever being abused or standards changing to the point that something commonplace in the past is taboo today?
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G M
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« Reply #274 on: May 12, 2011, 02:05:33 PM »

It's an totally different situation of employment law vs. search and seizure related to criminal investigations.
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bigdog
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« Reply #275 on: May 16, 2011, 06:29:21 PM »

http://www.rawstory.com/rs/2011/05/16/indiana-court-strips-citizens-of-right-to-resist-unlawful-police-entry/
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G M
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« Reply #276 on: May 16, 2011, 06:44:29 PM »


And your thoughts BD?
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Body-by-Guinness
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« Reply #277 on: May 16, 2011, 07:25:42 PM »

Nothing to see here, move along.

THE SECRET SHARER
Is Thomas Drake an enemy of the state?
by Jane Mayer
MAY 23, 2011

Drake, a former senior executive at the National Security Agency, faces some of the gravest charges that can be brought against an American citizen. Photograph by Martin Schoeller.

On June 13th, a fifty-four-year-old former government employee named Thomas Drake is scheduled to appear in a courtroom in Baltimore, where he will face some of the gravest charges that can be brought against an American citizen. A former senior executive at the National Security Agency, the government’s electronic-espionage service, he is accused, in essence, of being an enemy of the state. According to a ten-count indictment delivered against him in April, 2010, Drake violated the Espionage Act—the 1917 statute that was used to convict Aldrich Ames, the C.I.A. officer who, in the eighties and nineties, sold U.S. intelligence to the K.G.B., enabling the Kremlin to assassinate informants. In 2007, the indictment says, Drake willfully retained top-secret defense documents that he had sworn an oath to protect, sneaking them out of the intelligence agency’s headquarters, at Fort Meade, Maryland, and taking them home, for the purpose of “unauthorized disclosure.” The aim of this scheme, the indictment says, was to leak government secrets to an unnamed newspaper reporter, who is identifiable as Siobhan Gorman, of the Baltimore Sun. Gorman wrote a prize-winning series of articles for the Sun about financial waste, bureaucratic dysfunction, and dubious legal practices in N.S.A. counterterrorism programs. Drake is also charged with obstructing justice and lying to federal law-enforcement agents. If he is convicted on all counts, he could receive a prison term of thirty-five years.

The government argues that Drake recklessly endangered the lives of American servicemen. “This is not an issue of benign documents,” William M. Welch II, the senior litigation counsel who is prosecuting the case, argued at a hearing in March, 2010. The N.S.A., he went on, collects “intelligence for the soldier in the field. So when individuals go out and they harm that ability, our intelligence goes dark and our soldier in the field gets harmed.”

Top officials at the Justice Department describe such leak prosecutions as almost obligatory. Lanny Breuer, the Assistant Attorney General who supervises the department’s criminal division, told me, “You don’t get to break the law and disclose classified information just because you want to.” He added, “Politics should play no role in it whatsoever.”

When President Barack Obama took office, in 2009, he championed the cause of government transparency, and spoke admiringly of whistle-blowers, whom he described as “often the best source of information about waste, fraud, and abuse in government.” But the Obama Administration has pursued leak prosecutions with a surprising relentlessness. Including the Drake case, it has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks—more such prosecutions than have occurred in all previous Administrations combined. The Drake case is one of two that Obama’s Justice Department has carried over from the Bush years.
Gabriel Schoenfeld, a conservative political scientist at the Hudson Institute, who, in his book “Necessary Secrets” (2010), argues for more stringent protection of classified information, says, “Ironically, Obama has presided over the most draconian crackdown on leaks in our history—even more so than Nixon.”

ne afternoon in January, Drake met with me, giving his first public interview about this case. He is tall, with thinning sandy hair framing a domed forehead, and he has the erect bearing of a member of the Air Force, where he served before joining the N.S.A., in 2001. Obsessive, dramatic, and emotional, he has an unwavering belief in his own rectitude. Sitting at a Formica table at the Tastee Diner, in Bethesda, Drake—who is a registered Republican—groaned and thrust his head into his hands. “I actually had hopes for Obama,” he said. He had not only expected the President to roll back the prosecutions launched by the Bush Administration; he had thought that Bush Administration officials would be investigated for overstepping the law in the “war on terror.”

“But power is incredibly destructive,” Drake said. “It’s a weird, pathological thing. I also think the intelligence community coöpted Obama, because he’s rather naïve about national security. He’s accepted the fear and secrecy. We’re in a scary space in this country.”

The Justice Department’s indictment narrows the frame around Drake’s actions, focussing almost exclusively on his handling of what it claims are five classified documents. But Drake sees his story as a larger tale of political reprisal, one that he fears the government will never allow him to air fully in court. “I’m a target,” he said. “I’ve got a bull’s-eye on my back.” He continued, “I did not tell secrets. I am facing prison for having raised an alarm, period. I went to a reporter with a few key things: fraud, waste, and abuse, and the fact that there were legal alternatives to the Bush Administration’s ‘dark side’ ”—in particular, warrantless domestic spying by the N.S.A.

The indictment portrays him not as a hero but as a treacherous man who violated “the government trust.” Drake said of the prosecutors, “They can say what they want. But the F.B.I. can find something on anyone.”

Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, says of the Drake case, “The government wants this to be about unlawfully retained information. The defense, meanwhile, is painting a picture of a public-interested whistle-blower who struggled to bring attention to what he saw as multibillion-dollar mismanagement.” Because Drake is not a spy, Aftergood says, the case will “test whether intelligence officers can be convicted of violating the Espionage Act even if their intent is pure.” He believes that the trial may also test whether the nation’s expanding secret intelligence bureaucracy is beyond meaningful accountability. “It’s a much larger debate than whether a piece of paper was at a certain place at a certain time,” he says.

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state,” he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counterterrorism industry into a powerful lobbying force. Obama, Balkin says, has “systematically adopted policies consistent with the second term of the Bush Administration.”

On March 28th, Obama held a meeting in the White House with five advocates for greater transparency in government. During the discussion, the President drew a sharp distinction between whistle-blowers who exclusively reveal wrongdoing and those who jeopardize national security. The importance of maintaining secrecy about the impending raid on Osama bin Laden’s compound was likely on Obama’s mind. The White House has been particularly bedevilled by the ongoing release of classified documents by WikiLeaks, the group led by Julian Assange. Last year, WikiLeaks began releasing a vast trove of sensitive government documents allegedly leaked by a U.S. soldier, Bradley Manning; the documents included references to a courier for bin Laden who had moved his family to Abbottabad—the town where bin Laden was hiding out. Manning has been charged with “aiding the enemy.”

Danielle Brian, the executive director of the Project on Government Oversight, attended the meeting, and said that Obama’s tone was generally supportive of transparency. But when the subject of national-security leaks came up, Brian said, “the President shifted in his seat and leaned forward. He said this may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops.” Though Brian was impressed with Obama’s over-all stance on transparency, she felt that he might be misinformed about some of the current leak cases. She warned Obama that prosecuting whistle-blowers would undermine his legacy. Brian had been told by the White House to avoid any “ask”s on specific issues, but she told the President that, according to his own logic, Drake was exactly the kind of whistle-blower who deserved protection.

As Drake tells it, his problems began on September 11, 2001. “The next seven weeks were crucial,” he said. “It’s foundational to why I am a criminal defendant today.”
The morning that Al Qaeda attacked the U.S. was, coincidentally, Drake’s first full day of work as a civilian employee at the N.S.A.—an agency that James Bamford, the author of “The Shadow Factory” (2008), calls “the largest, most costly, and most technologically sophisticated spy organization the world has ever known.” Drake, a linguist and a computer expert with a background in military crypto-electronics, had worked for twelve years as an outside contractor at the N.S.A. Under a program code-named Jackpot, he focussed on finding and fixing weaknesses in the agency’s software programs. But, after going through interviews and background checks, he began working full time for Maureen Baginski, the chief of the Signals Intelligence Directorate at the N.S.A., and the agency’s third-highest-ranking official.
 
Even in an age in which computerized feats are commonplace, the N.S.A.’s capabilities are breathtaking. The agency reportedly has the capacity to intercept and download, every six hours, electronic communications equivalent to the contents of the Library of Congress. Three times the size of the C.I.A., and with a third of the U.S.’s entire intelligence budget, the N.S.A. has a five-thousand-acre campus at Fort Meade protected by iris scanners and facial-recognition devices. The electric bill there is said to surpass seventy million dollars a year.

Nevertheless, when Drake took up his post the agency was undergoing an identity crisis. With the Cold War over, the agency’s mission was no longer clear. As Drake puts it, “Without the Soviet Union, it didn’t know what to do.” Moreover, its technology had failed to keep pace with the shift in communications to cellular phones, fibre-optic cable, and the Internet. Two assessments commissioned by General Michael Hayden, who took over the agency in 1999, had drawn devastating conclusions. One described the N.S.A. as “an agency mired in bureaucratic conflict” and “suffering from poor leadership.” In January, 2000, the agency’s computer system crashed for three and a half days, causing a virtual intelligence blackout.

Agency leaders decided to “stir up the gene pool,” Drake says. Although his hiring was meant to signal fresh thinking, he was given a clumsy bureaucratic title: Senior Change Leader/Chief, Change Leadership & Communications Office, Signals Intelligence Directorate.

The 9/11 attacks caught the U.S.’s national-security apparatus by surprise. N.S.A. officials were humiliated to learn that the Al Qaeda hijackers had spent their final days, undetected, in a motel in Laurel, Maryland—a few miles outside the N.S.A.’s fortified gates. They had bought a folding knife at a Target on Fort Meade Road. Only after the attacks did agency officials notice that, on September 10th, their surveillance systems had intercepted conversations in Afghanistan and Saudi Arabia warning that “the match begins tomorrow” and “tomorrow is Zero Hour.”

Drake, hoping to help fight back against Al Qaeda, immediately thought of a tantalizing secret project he had come across while working on Jackpot. Code-named ThinThread, it had been developed by technological wizards in a kind of Skunk Works on the N.S.A. campus. Formally, the project was supervised by the agency’s Signals Intelligence Automation Research Center, or SARC.

While most of the N.S.A. was reeling on September 11th, inside SARC the horror unfolded “almost like an ‘I-told-you-so’ moment,” according to J. Kirk Wiebe, an intelligence analyst who worked there. “We knew we weren’t keeping up.” SARC was led by a crypto-mathematician named Bill Binney, whom Wiebe describes as “one of the best analysts in history.” Binney and a team of some twenty others believed that they had pinpointed the N.S.A.’s biggest problem—data overload—and then solved it. But the agency’s management hadn’t agreed.

Binney, who is six feet three, is a bespectacled sixty-seven-year-old man with wisps of dark hair; he has the quiet, tense air of a preoccupied intellectual. Now retired and suffering gravely from diabetes, which has already claimed his left leg, he agreed recently to speak publicly for the first time about the Drake case. When we met, at a restaurant near N.S.A. headquarters, he leaned crutches against an extra chair. “This is too serious not to talk about,” he said.

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the “little program” that he invented to track enemies outside the U.S., “got twisted,” and was used for both foreign and domestic spying: “I should apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.” According to Binney, Drake took his side against the N.S.A.’s management and, as a result, became a political target within the agency.
Binney spent most of his career at the agency. In 1997, he became the technical director of the World Geopolitical and Military Analysis Reporting Group, a division of six thousand employees which focusses on analyzing signals intelligence. By the late nineties, the N.S.A. had become overwhelmed by the amount of digital data it was collecting. Binney and his team began developing codes aimed at streamlining the process, allowing the agency to isolate useful intelligence. This was the beginning of ThinThread.

In the late nineties, Binney estimated that there were some two and a half billion phones in the world and one and a half billion I.P. addresses. Approximately twenty terabytes of unique information passed around the world every minute. Binney started assembling a system that could trap and map all of it. “I wanted to graph the world,” Binney said. “People said, ‘You can’t do this—the possibilities are infinite.’ ” But he argued that “at any given point in time the number of atoms in the universe is big, but it’s finite.”

As Binney imagined it, ThinThread would correlate data from financial transactions, travel records, Web searches, G.P.S. equipment, and any other “attributes” that an analyst might find useful in pinpointing “the bad guys.” By 2000, Binney, using fibre optics, had set up a computer network that could chart relationships among people in real time. It also turned the N.S.A.’s data-collection paradigm upside down. Instead of vacuuming up information around the world and then sending it all back to headquarters for analysis, ThinThread processed information as it was collected—discarding useless information on the spot and avoiding the overload problem that plagued centralized systems. Binney says, “The beauty of it is that it was open-ended, so it could keep expanding.”

Pilot tests of ThinThread proved almost too successful, according to a former intelligence expert who analyzed it. “It was nearly perfect,” the official says. “But it processed such a large amount of data that it picked up more Americans than the other systems.” Though ThinThread was intended to intercept foreign communications, it continued documenting signals when a trail crossed into the U.S. This was a big problem: federal law forbade the monitoring of domestic communications without a court warrant. And a warrant couldn’t be issued without probable cause and a known suspect. In order to comply with the law, Binney installed privacy controls and added an “anonymizing feature,” so that all American communications would be encrypted until a warrant was issued. The system would indicate when a pattern looked suspicious enough to justify a warrant.

But this was before 9/11, and the N.S.A.’s lawyers deemed ThinThread too invasive of Americans’ privacy. In addition, concerns were raised about whether the system would function on a huge scale, although preliminary tests had suggested that it would. In the fall of 2000, Hayden decided not to use ThinThread, largely because of his legal advisers’ concerns. Instead, he funded a rival approach, called Trailblazer, and he turned to private defense contractors to build it. Matthew Aid, the author of a heralded 2009 history of the agency, “The Secret Sentry,” says, “The resistance to ThinThread was just standard bureaucratic politics. ThinThread was small, cost-effective, easy to understand, and protected the identity of Americans. But it wasn’t what the higher-ups wanted. They wanted a big machine that could make Martinis, too.”

The N.S.A.’s failure to stop the 9/11 plot infuriated Binney: he believed that ThinThread had been ready to deploy nine months earlier. Working with N.S.A. counterterrorism experts, he had planned to set up his system at sites where foreign terrorism was prevalent, including Afghanistan and Pakistan. “Those bits of conversations they found too late?” Binney said. “That would have never happened. I had it managed in a way that would send out automatic alerts. It would have been, Bang!”

Meanwhile, there was nothing to show for Trailblazer, other than mounting bills. As the system stalled at the level of schematic drawings, top executives kept shuttling between jobs at the agency and jobs with the high-paying contractors. For a time, both Hayden’s deputy director and his chief of signals-intelligence programs worked at SAIC, a company that won several hundred million dollars in Trailblazer contracts. In 2006, Trailblazer was abandoned as a $1.2-billion flop.

oon after 9/11, Drake says, he prepared a short, classified summary explaining how ThinThread “could be put into the fight,” and gave it to Baginski, his boss. But he says that she “wouldn’t respond electronically. She just wrote in a black felt marker, ‘They’ve found a different solution.’ ” When he asked her what it was, she responded, “I can’t tell you.” Baginski, who now works for a private defense contractor, recalls her interactions with Drake differently, but she declined to comment specifically.

In the weeks after the attacks, rumors began circulating inside the N.S.A. that the agency, with the approval of the Bush White House, was violating the Foreign Intelligence Surveillance Act—the 1978 law, known as FISA, that bars domestic surveillance without a warrant. Years later, the rumors were proved correct. In nearly total secrecy, and under pressure from the White House, Hayden sanctioned warrantless domestic surveillance. The new policy, which lawyers in the Justice Department justified by citing President Bush’s executive authority as Commander-in-Chief, contravened a century of constitutional case law. Yet, on October 4, 2001, Bush authorized the policy, and it became operational by October 6th. Bamford, in “The Shadow Factory,” suggests that Hayden, having been overcautious about privacy before 9/11, swung to the opposite extreme after the attacks. Hayden, who now works for a security-consulting firm, declined to respond to detailed questions about the surveillance program.

When Binney heard the rumors, he was convinced that the new domestic-surveillance program employed components of ThinThread: a bastardized version, stripped of privacy controls. “It was my brainchild,” he said. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.” He said that although he was not “read in” to the new secret surveillance program, “my people were brought in, and they told me, ‘Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers’ ”—logs of dialled phone numbers—“ ‘on everyone in the country!’ ”

Drake recalled that, after the October 4th directive, “strange things were happening. Equipment was being moved. People were coming to me and saying, ‘We’re now targeting our own country!’ ” Drake says that N.S.A. officials who helped the agency obtain FISA warrants were suddenly reassigned, a tipoff that the conventional process was being circumvented. He added, “I was concerned that it was illegal, and none of it was necessary.” In his view, domestic data mining “could have been done legally” if the N.S.A. had maintained privacy protections. “But they didn’t want an accountable system.”

Aid, the author of the N.S.A. history, suggests that ThinThread’s privacy protections interfered with top officials’ secret objective—to pick American targets by name. “They wanted selection, not just collection,” he says.

A former N.S.A. official expressed skepticism that Drake cared deeply about the constitutional privacy issues raised by the agency’s surveillance policies. The official characterizes him as a bureaucrat driven by resentment of a rival project—Trailblazer—and calls his story “revisionist history.” But Drake says that, in the fall of 2001, he told Baginski he feared that the agency was breaking the law. He says that to some extent she shared his views, and later told him she feared that the agency would be “haunted” by the surveillance program. In 2003, she left the agency for the F.B.I., in part because of her discomfort with the surveillance program. Drake says that, at one point, Baginski told him that if he had concerns he should talk to the N.S.A.’s general counsel. Drake claims that he did, and that the agency’s top lawyer, Vito Potenza, told him, “Don’t worry about it. We’re the executive agent for the White House. It’s all been scrubbed. It’s legal.” When he pressed further, Potenza told him, “It’s none of your business.” (Potenza, who is now retired, declined to comment.)

Drake says, “I feared for the future. If Pandora’s box was opened, what would the government become?” He was not about to drop the matter. Matthew Aid, who describes Drake as “brilliant,” says that “he has sort of a Jesus complex—only he can see the way things are. Everyone else is mentally deficient, or in someone’s pocket.” Drake’s history of whistle-blowing stretches back to high school, in Manchester, Vermont, where his father, a retired Air Force officer, taught. When drugs infested the school, Drake became a police informant. And Watergate, which occurred while he was a student, taught him “that no one is above the law.”

Drake says that in the Air Force, where he learned to capture electronic signals, the FISA law “was drilled into us.” He recalls, “If you accidentally intercepted U.S. persons, there were special procedures to expunge it.” The procedures had been devised to prevent the recurrence of past abuses, such as Nixon’s use of the N.S.A. to spy on his political enemies.

Drake didn’t know the precise details, but he sensed that domestic spying “was now being done on a vast level.” He was dismayed to hear from N.S.A. colleagues that “arrangements” were being made with telecom and credit-card companies. He added, “The mantra was ‘Get the data!’ ” The transformation of the N.S.A., he says, was so radical that “it wasn’t just that the brakes came off after 9/11—we were in a whole different vehicle.”

ew people have a precise knowledge of the size or scope of the N.S.A.’s domestic-surveillance powers. An agency spokesman declined to comment on how the agency “performs its mission,” but said that its activities are constitutional and subject to “comprehensive and rigorous” oversight. But Susan Landau, a former engineer at Sun Microsystems, and the author of a new book, “Surveillance or Security?,” notes that, in 2003, the government placed equipment capable of copying electronic communications at locations across America. These installations were made, she says, at “switching offices” that not only connect foreign and domestic communications but also handle purely domestic traffic. As a result, she surmises, the U.S. now has the capability to monitor domestic traffic on a huge scale. “Why was it done this way?” she asks. “One can come up with all sorts of nefarious reasons, but one doesn’t want to think that way about our government.”

Binney, for his part, believes that the agency now stores copies of all e-mails transmitted in America, in case the government wants to retrieve the details later. In the past few years, the N.S.A. has built enormous electronic-storage facilities in Texas and Utah. Binney says that an N.S.A. e-mail database can be searched with “dictionary selection,” in the manner of Google. After 9/11, he says, “General Hayden reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.”

Binney considers himself a conservative, and, as an opponent of big government, he worries that the N.S.A.’s data-mining program is so extensive that it could help “create an Orwellian state.” Whereas wiretap surveillance requires trained human operators, data mining is automated, meaning that the entire country can be watched. Conceivably, U.S. officials could “monitor the Tea Party, or reporters, whatever group or organization you want to target,” he says. “It’s exactly what the Founding Fathers never wanted.”
On October 31, 2001, soon after Binney concluded that the N.S.A. was headed in an unethical direction, he retired. He had served for thirty-six years. His wife worked there, too. Wiebe, the analyst, and Ed Loomis, a computer scientist at SARC, also left. Binney said of his decision, “I couldn’t be an accessory to subverting the Constitution.”

ot long after Binney quit the N.S.A., he says, he confided his concerns about the secret surveillance program to Diane Roark, a staff member on the House Permanent Select Committee on Intelligence, which oversees the agency. Roark, who has flowing gray hair and large, wide-set eyes, looks like a waifish poet. But in her intelligence-committee job, which she held for seventeen years, she modelled herself on Machiavelli’s maxim that it is better to be feared than loved. Within the N.S.A.’s upper ranks she was widely resented. A former top N.S.A. official says of her, “In meetings, she would just say, ‘You’re lying.’ ”

Roark agrees that she distrusted the N.S.A.’s managers. “I asked very tough questions, because they were trying to hide stuff,” she says. “For instance, I wasn’t supposed to know about the warrantless surveillance. They were all determined that no one else was going to tell them what to do.”

Like Drake and Binney, Roark was a registered Republican, skeptical about bureaucracy but strong on national defense. She had a knack for recruiting sources at the N.S.A. One of them was Drake, who introduced himself to her in 2000, after she visited N.S.A. headquarters and gave a stinging talk on the agency’s failings; she also established relationships with Binney and Wiebe. Hayden was furious about this back channel. After learning that Binney had attended a meeting with Roark at which N.S.A. employees complained about Trailblazer, Hayden dressed down the critics. He then sent out an agency-wide memo, in which he warned that several “individuals, in a session with our congressional overseers, took a position in direct opposition to one that we had corporately decided to follow. . . . Actions contrary to our decisions will have a serious adverse effect on our efforts to transform N.S.A., and I cannot tolerate them.” Roark says of the memo, “Hayden brooked no opposition to his favorite people and programs.”

Roark, who had substantial influence over N.S.A. budget appropriations, was an early champion of Binney’s ThinThread project. She was dismayed, she says, to hear that it had evolved into a means of domestic surveillance, and felt personally responsible. Her oversight committee had been created after Watergate specifically to curb such abuses. “It was my duty to oppose it,” she told me. “That is why oversight existed, so that these things didn’t happen again. I’m not an attorney, but I thought that there was no way it was constitutional.” Roark recalls thinking that, if N.S.A. officials were breaking the law, she was “going to fry them.”

She soon learned that she was practically alone in her outrage. Very few congressional leaders had been briefed on the program, and some were apparently going along with it, even if they had reservations. Starting in February, 2002, Roark says, she wrote a series of memos warning of potential illegalities and privacy breaches and handed them to the staffers for Porter Goss, the chairman of her committee, and Nancy Pelosi, its ranking Democrat. But nothing changed. (Pelosi’s spokesman denied that she received such memos, and pointed out that a year earlier Pelosi had written to Hayden and expressed grave concerns about the N.S.A.’s electronic surveillance.)

Roark, feeling powerless, retired. Before leaving Washington, though, she learned that Hayden, who knew of her strong opposition to the surveillance program, wanted to talk to her. They met at N.S.A. headquarters on July 15, 2002. According to notes that she made after the meeting, Hayden pleaded with her to stop agitating against the program. He conceded that the policy would leak at some point, and told her that when it did she could “yell and scream” as much as she wished. Meanwhile, he wanted to give the program more time. She asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not.

In an e-mail, Hayden confirmed that the meeting took place, but said that he recalled only its “broad outlines.” He noted that Roark was not “cleared to know about the expanded surveillance program, so I did not go into great detail.” He added, “I assured her that I firmly believed that what N.S.A. was doing was effective, appropriate, and lawful. I also reminded her that the program’s success depended on it remaining secret, that it was appropriately classified, and that any public discussion of it would have to await a later day.”

During the meeting, Roark says, she warned Hayden that no court would uphold the program. Curiously, Hayden responded that he had already been assured by unspecified individuals that he could count on a majority of “the nine votes”—an apparent reference to the Supreme Court. According to Roark’s notes, Hayden told her that such a vote might even be 7–2 in his favor.

Roark couldn’t believe that the Supreme Court had been adequately informed of the N.S.A.’s transgressions, and she decided to alert Chief Justice William H. Rehnquist, sending a message through a family friend. Once again, there was no response. She also tried to contact a judge on the FISA court, in Washington, which adjudicates requests for warrants sanctioning domestic surveillance of suspected foreign agents. But the judge had her assistant refer the call to the Department of Justice, which had approved the secret program in the first place. Roark says that she even tried to reach David Addington, the legal counsel to Vice-President Dick Cheney, who had once been her congressional colleague. He never called back, and Addington was eventually revealed to be one of the prime advocates for the surveillance program.

“This was such a Catch-22,” Roark says. “There was no one to go to.” In October, 2003, feeling “profoundly depressed,” she left Washington and moved to a small town in Oregon.

Drake was still working at the N.S.A., but he was secretly informing on the agency to Congress. In addition to briefing Roark, he had become an anonymous source for the congressional committees investigating intelligence failures related to 9/11. He provided Congress with top-secret documents chronicling the N.S.A.’s shortcomings. Drake believed that the agency had failed to feed other intelligence agencies critical information that it had collected before the attacks. Congressional investigators corroborated these criticisms, though they found greater lapses at the C.I.A. and the F.B.I.

Around this time, Drake recalls, Baginski warned him, “Be careful, Tom—they’re looking for leakers.” He found this extraordinary, and asked himself, “Telling the truth to congressional oversight committees is leaking?” But the N.S.A. has a rule requiring employees to clear any contact with Congress, and in the spring of 2002 Baginski told Drake, “It’s time for you to find another job.” He soon switched to a less sensitive post at the agency, the first of several.

As for Binney, he remained frustrated even in retirement about what he considered the misuse of ThinThread. In September, 2002, he, Wiebe, Loomis, and Roark filed what they thought was a confidential complaint with the Pentagon’s Inspector General, extolling the virtues of the original ThinThread project and accusing the N.S.A. of wasting money on Trailblazer. Drake did not put his name on the complaint, because he was still an N.S.A. employee. But he soon became involved in helping the others, who had become friends. He obtained documents aimed at proving waste, fraud, and abuse in the Trailblazer program.

The Inspector General’s report, which was completed in 2005, was classified as secret, so only a few insiders could read what Drake describes as a scathing document. Possibly the only impact of the probe was to hasten the end of Trailblazer, whose budget overruns had become indisputably staggering. Though Hayden acknowledged to a Senate committee that the costs of the Trailblazer project “were greater than anticipated, to the tune of, I would say, hundreds of millions,” most of the scandal’s details remained hidden from the public.

In December, 2005, the N.S.A.’s culture of secrecy was breached by a stunning leak. The Times reporters James Risen and Eric Lichtblau revealed that the N.S.A. was running a warrantless wiretapping program inside the United States. The paper’s editors had held onto the scoop for more than a year, weighing the propriety of publishing it. According to Bill Keller, the executive editor of the Times, President Bush pleaded with the paper’s editors to not publish the story; Keller told New York that “the basic message was: You’ll have blood on your hands.” After the paper defied the Administration, Bush called the leak “a shameful act.” At his command, federal agents launched a criminal investigation to identify the paper’s source.

The Times story shocked the country. Democrats, including then Senator Obama, denounced the program as illegal and demanded congressional hearings. A FISA court judge resigned in protest. In March, 2006, Mark Klein, a retired A.T. & T. employee, gave a sworn statement to the Electronic Frontier Foundation, which was filing a lawsuit against the company, describing a secret room in San Francisco where powerful Narus computers appeared to be sorting and copying all of the telecom’s Internet traffic—both foreign and domestic. A high-capacity fibre-optic cable seemed to be forwarding this data to a centralized location, which, Klein surmised, was N.S.A. headquarters. Soon, USA Today reported that A.T. & T., Verizon, and BellSouth had secretly opened their electronic records to the government, in violation of communications laws. Legal experts said that each instance of spying without a warrant was a serious crime, and that there appeared to be hundreds of thousands of infractions.

President Bush and Administration officials assured the American public that the surveillance program was legal, although new legislation was eventually required to bring it more in line with the law. They insisted that the traditional method of getting warrants was too slow for the urgent threats posed by international terrorism. And they implied that the only domestic surveillance taking place involved tapping phone calls in which one speaker was outside the U.S.

Drake says of Bush Administration officials, “They were lying through their teeth. They had chosen to go an illegal route, and it wasn’t because they had no other choice.” He also believed that the Administration was covering up the full extent of the program. “The phone calls were the tip of the iceberg. The really sensitive stuff was the data mining.” He says, “I was faced with a crisis of conscience. What do I do—remain silent, and complicit, or go to the press?”

Drake has a wife and five sons, the youngest of whom has serious health problems, and so he agonized over the decision. He researched the relevant legal statutes and concluded that if he spoke to a reporter about unclassified matters the only risk he ran was losing his job. N.S.A. policy forbids initiating contact with the press. “I get that it’s grounds for ‘We have to let you go,’ ” he says. But he decided that he was willing to lose his job. “This was a violation of everything I knew and believed as an American. We were making the Nixon Administration look like pikers.”

Drake got in touch with Gorman, who covered the N.S.A. for the Baltimore Sun. He had admired an article of hers and knew that Roark had spoken to her previously, though not about anything classified. He got Gorman’s contact information from Roark, who warned him to be careful. She knew that in the past the N.S.A. had dealt harshly with people who embarrassed it.

Drake set up a secure Hushmail e-mail account and began sending Gorman anonymous tips. Half in jest, he chose the pseudonym The Shadow Knows. He says that he insisted on three ground rules with Gorman: neither he nor she would reveal his identity; he wouldn’t be the sole source for any story; he would not supply her with classified information. But a year into the arrangement, in February, 2007, Drake decided to blow his cover, surprising Gorman by showing up at the newspaper and introducing himself as The Shadow Knows. He ended up meeting with Gorman half a dozen times. But, he says, “I never gave her anything classified.” Gorman has not been charged with wrongdoing, and declined, through her lawyer, Laura Handman, to comment, citing the pending trial.

Starting on January 29, 2006, Gorman, who now works at the Wall Street Journal, published a series of articles about problems at the N.S.A., including a story describing Trailblazer as an expensive fiasco. On May 18, 2006, the day that Hayden faced Senate confirmation hearings for a new post—the head of the C.I.A.—the Sun published Gorman’s exposé on ThinThread, which accused the N.S.A. of rejecting an approach that protected Americans’ privacy. Hayden, evidently peeved, testified that intelligence officers deserved “not to have every action analyzed, second-guessed, and criticized on the front pages of the newspapers.”

At the time, the government did not complain that the Sun had crossed a legal line. It did not contact the paper’s editors or try to restrain the paper from publishing Gorman’s work. A former N.S.A. colleague of Drake’s says he believes that the Sun stories revealed government secrets. Others disagree. Steven Aftergood, the secrecy expert, says that the articles “did not damage national security.”

Matthew Aid argues that the material Drake provided to the Sun should not have been highly classified—if it was—and in any case only highlighted that “the N.S.A. was a management nightmare, which wasn’t a secret in Washington.” In his view, Drake “was just saying, ‘We’re not doing our job, and it’s having a deleterious effect on mission performance.’ He was right, by the way.” The Sun series, Aid says, was “embarrassing to N.S.A. management, but embarrassment to the U.S. government is not a criminal offense in this country.” (Aid has a stake in this debate. In 1984, when he was in the Air Force, he spent several months in the stockade for having stored classified documents in a private locker. The experience, he says, sensitized him to issues of government secrecy.)

While the Sun was publishing its series, twenty-five federal agents and five prosecutors were struggling to identify the Times’ source. The team had targeted some two hundred possible suspects, but had found no culprits. The Sun series attracted the attention of the investigators, who theorized that its source might also have talked to the Times. This turned out not to be true. Nevertheless, the investigators quickly homed in on the Trailblazer critics. “It’s sad,” an intelligence expert says. “I think they were aiming at the Times leak and found this instead.”

Roark was an obvious suspect for the Times leak. Everyone from Hayden on down knew that she had opposed the surveillance program. After the article appeared, she says, “I was waiting for the shoe to drop.” The F.B.I. eventually contacted her, and in February, 2007, she and her attorney met with the prosecutor then in charge, Steven Tyrrell, who was the head of the fraud section at the Justice Department. Roark signed an affidavit saying that she was not a source for the Times story or for “State of War,” a related book that James Risen wrote. She also swore that she had no idea who the source was. She says of the experience, “It was an interrogation, not an interview. They treated me like a target.”

Roark recalls that the F.B.I. agents tried to force her to divulge the identity of her old N.S.A. informants. They already seemed to know about Drake, Binney, and Wiebe—perhaps from the Inspector General’s report. She refused to coöperate, arguing that it was improper for agents of the executive branch to threaten a congressional overseer about her sources. “I had the sense that N.S.A. was egging the F.B.I. on,” she says. “I’d gotten the N.S.A. so many times—they were going to get me. The N.S.A. hated me.” (The N.S.A. and the Justice Department declined to comment on the investigations.)

In the months that followed, Roark heard nothing. Finally, her lawyer placed the case in her “dead file.”

n July 26, 2007, at 9 A.M. Eastern Standard Time, armed federal agents simultaneously raided the houses of Binney, Wiebe, and Roark. (At Roark’s house, in Oregon, it was six o’clock.) Binney was in the shower when agents arrived, and recalls, “They went right upstairs to the bathroom and held guns on me and my wife, right between the eyes.” The agents took computer equipment, a copy of the Inspector General complaint and a copy of a commercial pitch that Binney had written with Wiebe, Loomis, and Roark. In 2001, the N.S.A. indicated to Binney that he could pursue commercial projects based on ThinThread. He and the others thought that aspects of the software could be used to help detect Medicare fraud.

Binney professed his innocence, and he says that the agents told him, “We think you’re lying. You need to implicate someone. ” He believed that they were trying to get him to name Roark as the Times’ source. He suggested that if they were looking for criminal conspirators they should focus on Bush and Hayden for allowing warrantless surveillance. Binney recalls an agent responding that such brazen spying didn’t happen in America. Looking over the rims of his owlish glasses, Binney replied, “Oh, really?”
Roark was sleeping when the agents arrived, and didn’t hear them until “it sounded as if they were going to pull the house down, they were rattling it so badly.” They took computers and a copy of the same commercial pitch. Her son had been interested in collaborating on the venture, and he, too, became a potential target. “They believed everybody was conspiring,” Roark says. “For years, I couldn’t talk to my own son without worrying that they’d say I was trying to influence his testimony.” Although she has been fighting cancer, she has spoken with him only sparingly since the raid.

The agents seemed to think that the commercial pitch contained classified information. Roark was shaken: she and the others thought they had edited it scrupulously to insure that it did not. Agents also informed her that a few scattered papers in her old office files were classified. After the raid, she called her lawyer and asked, “If there’s a disagreement on classification, does intent mean anything?” The question goes to the heart of the Drake case.

Roark, who always considered herself “a law-and-order person,” said of the raid, “This changed my faith.” Eventually, the prosecution offered her a plea bargain, under which she would plead guilty to perjury, for ostensibly lying to the F.B.I. about press leaks. The prosecutors also wanted her to testify against Drake. Roark refused. “I’m not going to plead guilty to deliberately doing anything wrong,” she told them. “And I can’t testify against Tom because I don’t know that he did anything wrong. Whatever Tom revealed, I am sure that he did not think it was classified.” She says, “I didn’t think the system was perfect, but I thought they’d play fair with me. They didn’t. I felt it was retribution.”

Wiebe, the retired analyst, was the most surprised by the raid—he had not yet been contacted in connection with the investigation. He recalls that agents locked his two Pembroke Welsh corgis in a bathroom and commanded his daughter and his mother-in-law, who was in her bathrobe, to stay on a couch while they searched his house. He says, “I feel I’m living in the very country I worked for years to defeat: the Soviet Union. We’re turning into a police state.” Like Roark, he says of the raid, “It was retribution for our filing the Inspector General complaint.”

Under the law, such complaints are confidential, and employees who file them are supposed to be protected from retaliation. It’s unclear if the Trailblazer complaint tipped off authorities, but all four people who signed it became targets. Jesselyn Radack, of the Government Accountability Project, a whistle-blower advocacy group that has provided legal support to Drake, says of his case, “It’s the most severe form of whistle-blower retaliation I have ever seen.”
few days after the raid, Drake met Binney and Wiebe for lunch, at a tavern in Glenelg, Maryland. “I had a pretty good idea I was next,” Drake says. But it wasn’t until the morning of November 28, 2007, that he saw armed agents streaming across his lawn. Though Drake was informed of his right to remain silent, he viewed the raid as a fresh opportunity to blow the whistle. He spent the day at his kitchen table, without a lawyer, talking. He brought up Trailblazer, but found that the investigators weren’t interested in the details of a defunct computer system, or in cost overruns, or in the constitutional conflicts posed by warrantless surveillance. Their focus was on the Times leak. He assured them that he wasn’t the source, but he confirmed his contact with the Sun, insisting that he had not relayed any classified information. He also disclosed his computer password. The agents bagged documents, computers, and books, and removed eight or ten boxes of office files from his basement. “I felt incredibly violated,” he says.

For four months, Drake continued coöperating. He admitted that he had given Gorman information that he had cut and pasted from secret documents, but stressed that he had not included anything classified. He acknowledged sending Gorman hundreds of e-mails. Then, in April, 2008, the F.B.I. told him that someone important wanted to meet with him, at a secure building in Calverton, Maryland. Drake agreed to the appointment. Soon after he showed up, he says, Steven Tyrrell, the prosecutor, walked in and told him, “You’re screwed, Mr. Drake. We have enough evidence to put you away for most of the rest of your natural life.”

Prosecutors informed Drake that they had found classified documents in the boxes in his basement—the indictment cites three—and discovered two more in his e-mail archive. They also accused him of shredding other documents, and of deleting e-mails in the months before he was raided, in an attempt to obstruct justice. Further, they said that he had lied when he told federal agents that he hadn’t given Gorman classified information.

“They had made me into an enemy of the state just by saying I was,” Drake says. The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General’s Trailblazer investigation. The Inspector General’s Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn’t realize it. (The indictment emphasizes that he “willfully” retained documents.) The two documents that the government says it extracted from his e-mail archive were even less sensitive, Drake says. Both pertained to a successor to Trailblazer, code-named Turbulence. One document listed a schedule of meetings about Turbulence. It was marked “unclassified/for official use only” and posted on the N.S.A.’s internal Web site. The government has since argued that the schedule should have been classified, and that Drake should have known this. The other document, which touted the success of Turbulence, was officially declassified in July, 2010, three months after Drake was indicted. “After charging him with having this ostensibly serious classified document, the government waved a wand and decided it wasn’t so classified after all,” Radack says.

Clearly, the intelligence community hopes that the Drake case will send a message about the gravity of exposing government secrets. But Drake’s lawyer, a federal public defender named James Wyda, argued in court last spring that “there have never been two documents so benign that are the subject of this kind of prosecution against a client whose motives are as salutary as Tom’s.”

Drake insists, too, that the only computer files he destroyed were routine trash: “I held then, and I hold now, I had nothing to destroy.” Drake, who left the N.S.A. in 2008, and now works at an Apple Store outside Washington, asks, “Why didn’t I erase everything on my computer, then? I know how to do it. They found what they found.”
ot everyone familiar with Drake’s case is moved by his plight. A former federal official knowledgeable about the case says, “To his credit, he tried to raise these issues, and, to an extent, they were dealt with. But who died and left him in charge?”

In May, 2009, Tyrrell proposed a plea bargain: if Drake pleaded guilty to one count of conspiring to violate the Espionage Act and agreed to coöperate against the others, he would get a maximum of five years in prison. “They wanted me to reveal a conspiracy that didn’t exist,” Drake says. “It was all about the Times, but I had no knowledge of the leak.” Drake says that he told prosecutors, “I refuse to plea-bargain with the truth.”

That June, Drake learned that Tyrrell was leaving the government. Tyrrell was a Republican, and Drake was hopeful that a prosecutor appointed by the Obama Administration would have a different approach. But Drake was dismayed to learn that Tyrrell’s replacement, William Welch, had just been transferred from the top spot in the Justice Department’s public-integrity section, after an overzealous prosecution of Ted Stevens, the Alaska senator. A judge had thrown out Stevens’s conviction, and, at one point, had held Welch in contempt of court. (Welch declined to comment.)

In April, 2010, Welch indicted Drake, shattering his hope for a reprieve from the Obama Administration. But the prosecution’s case had shrunk dramatically from the grand conspiracy initially laid out by Tyrrell. (Welch accidentally sent the defense team an early draft of the indictment, revealing how the case had changed.) Drake was no longer charged with leaking classified documents, or with being part of a conspiracy. He is still charged with violating the Espionage Act, but now merely because of unauthorized “willful retention” of the five documents. Drake says that when he learned that, even with the reduced charges, he still faced up to thirty-five years in prison, he “was completely aghast.”

Morton Halperin, of the Open Society Institute, says that the reduced charges make the prosecution even more outlandish: “If Drake is convicted, it means the Espionage Law is an Official Secrets Act.” Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies. “It poses a grave threat to the mechanism by which we learn most of what the government does,” Halperin says.

The Espionage Act has rarely been used to prosecute leakers and whistle-blowers. Drake’s case is only the fourth in which the act has been used to indict someone for mishandling classified material. “It was meant to deal with classic espionage, not publication,” Stephen Vladeck, a law professor at American University who is an expert on the statute, says.

The first attempt to apply the law to leakers was the aborted prosecution, in 1973, of Daniel Ellsberg, a researcher at the RAND Corporation who was charged with disclosing the Pentagon Papers—a damning secret history of the Vietnam War. But the case was dropped, owing, in large part, to prosecutorial misconduct. The second such effort was the case of Samuel L. Morison, a naval intelligence officer who, in 1985, was convicted for providing U.S. photographs of a Soviet ship to Jane’s Defence Weekly. Morison was later pardoned by Bill Clinton. The third case was the prosecution, in 2005, of a Defense Department official, Lawrence Franklin, and two lobbyists for the American-Israel Public Affairs Committee. Franklin pleaded guilty to a lesser charge, and the case against the lobbyists collapsed after the presiding judge insisted that prosecutors establish criminal intent. Unable to prove this, the Justice Department abandoned the case, amid criticism that the government had overreached.

Drake’s case also raises questions about double standards. In recent years, several top officials accused of similar misdeeds have not faced such serious charges. John Deutch, the former C.I.A. director, and Alberto Gonzales, the former Attorney General, both faced much less stringent punishment after taking classified documents home without authorization. In 2003, Sandy Berger, Clinton’s national-security adviser, smuggled classified documents out of a federal building, reportedly by hiding them in his pants. It was treated as a misdemeanor. His defense lawyer was Lanny Breuer—the official overseeing the prosecution of Drake.

Jack Goldsmith, a Harvard law professor who served in the Bush Justice Department, laments the lack of consistency in leak prosecutions. He notes that no investigations have been launched into the sourcing of Bob Woodward’s four most recent books, even though “they are filled with classified information that he could only have received from the top of the government.” Gabriel Schoenfeld, of the Hudson Institute, says, “The selectivity of the prosecutions here is nightmarish. It’s a broken system.”
Mark Feldstein, a professor of media and public affairs at George Washington University, warns that, if whistle-blowers and other dissenters are singled out for prosecution, “this has gigantic repercussions. You choke off the information that the public needs to judge policy.”

Few people are more disturbed about Drake’s prosecution than the others who spoke out against the N.S.A. surveillance program. In 2008, Thomas Tamm, a Justice Department lawyer, revealed that he was one of the people who leaked to the Times. He says of Obama, “It’s so disappointing from someone who was a constitutional-law professor, and who made all those campaign promises.” The Justice Department recently confirmed that it won’t pursue charges against Tamm. Speaking before Congress, Attorney General Holder explained that “there is a balancing that has to be done . . . between what our national-security interests are and what might be gained by prosecuting a particular individual.” The decision provoked strong criticism from Republicans, underscoring the political pressures that the Justice Department faces when it backs off such prosecutions. Still, Tamm questions why the Drake case is proceeding, given that Drake never revealed anything as sensitive as what appeared in the Times. “The program he talked to the Baltimore Sun about was a failure and wasted billions of dollars,” Tamm says. “It’s embarrassing to the N.S.A., but it’s not giving aid and comfort to the enemy.”

Mark Klein, the former A.T. & T. employee who exposed the telecom-company wiretaps, is also dismayed by the Drake case. “I think it’s outrageous,” he says. “The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers.” ♦

http://www.newyorker.com/reporting/2011/05/23/110523fa_fact_mayer?currentPage=all
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bigdog
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« Reply #278 on: May 17, 2011, 05:44:39 AM »


GM,
     I suspect this might lead to another 4 day discussion, but the 4th amendment exists for a reason.  I can't for the life of me think of a good reason to take away a right to protect oneself against an unlawful entry, no matter who is doing the entering. 
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G M
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« Reply #279 on: May 17, 2011, 06:22:04 AM »


GM,
     I suspect this might lead to another 4 day discussion, but the 4th amendment exists for a reason.  I can't for the life of me think of a good reason to take away a right to protect oneself against an unlawful entry, no matter who is doing the entering. 

As I read the ruling, this is there relavant part to me:

We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the
 5
 right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (―But in arrest situations that are often ripe for rapid escalation, one‘s ‗measured‘ response may fast become excessive.‖). Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ―hot pursuit‖ of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (―Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.‖). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance

Nothing prevents an aggrived party from filing IA complaints, a civil right complaint with the FBI per 42 USC 1983 (There are both civil and criminal liabilities at the federal level for civil rights violations done under the color of authority) as well as state level civil and criminal liability for police misconduct.
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bigdog
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« Reply #280 on: May 17, 2011, 08:36:49 AM »

Hot pursuit is a lawful entry.  Imminent destruction of evidence is a lawful entry.  So using those as examples to allow unlawful entry is a little weird. 

I have taught my children never to assume that a person with a badge at the door is a police officer and to call the police if someone knocks on the door when I am not home.  This is common practice, because safety experts realized a long time ago that people can pose as police officers to enter the home. 

Why would a court not realize the same thing?  Why would someone allow anyone to unlawfully enter a home?  An appeal to the FBI ot IA doesn't stop illegal actions froming taking place to begin with. 

I am a little surprised by your stance here, to be honest. 
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DougMacG
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« Reply #281 on: May 17, 2011, 10:04:53 AM »

"I have taught my children never to assume that a person with a badge at the door is a police officer and to call the police..."

I like this advice and the forethought involved.  If it is police with no warrant but worthy reasons, no harm is done with a 911 call.  If it is false and criminal, the earliest alert has been made.

For hot pursuit to the wrong house or imminent destruction of evidence when you are innocent, you know that is not the case, but that does not change the minds of the officers. 

Seems to me there is ground in between granting permission and actively resisting.  In hot pursuit or imminent destruction, misguided or not, they will be coming in whether you open the door or not.  I still like the idea that for kids home alone or for wife and kids with any doubt, you don't open the door. 
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G M
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« Reply #282 on: May 17, 2011, 10:50:55 AM »

Hot pursuit is a lawful entry.  Imminent destruction of evidence is a lawful entry.  So using those as examples to allow unlawful entry is a little weird. 

I have taught my children never to assume that a person with a badge at the door is a police officer and to call the police if someone knocks on the door when I am not home.  This is common practice, because safety experts realized a long time ago that people can pose as police officers to enter the home. 

Why would a court not realize the same thing?  Why would someone allow anyone to unlawfully enter a home?  An appeal to the FBI ot IA doesn't stop illegal actions froming taking place to begin with. 

I am a little surprised by your stance here, to be honest. 

How in the heat of the moment are you going to determine if the entry by the officers is legal or illegal? in that moment, how are you going to calibrate your use of force for those circumstances?

If one ever needs to determine LE status, 9-1-1 is the place to start, see what dispatch says.
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Crafty_Dog
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« Reply #283 on: May 17, 2011, 01:22:55 PM »

Hmmm , , , lets see.  I am on the can and someone knocks on the door shouting "Police!".  I flush the toilet to go answer the door, but whoops! no need!  They have kicked in the door and are in my house.  For the sake of argument, lets say they are undercover.  What could go wrong here?  What remedy?  Apparently my flushing the toilet is now  , , , probable cause?  Indeed any hurried noises (e.g. a naked woman looking to clother herself quickly) are now probable cause?

Call 911 to verify that the folks on the other side of the door are police.  Is this really a serious suggestion?  Have you ever tried calling 911?  I did once to report some bangers breaking into a car.  By the time the brain dead moron answering the phone allowed me to give the facts, the bangers were gone.  Here, just how long is it going to take the person answering the call to confirm or deny those guys at my door. Somehow I seriously doubt it will be timely enough so as to be meaningful , , ,
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G M
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« Reply #284 on: May 17, 2011, 04:13:35 PM »


http://policelink.monster.com/training/articles/2078-supreme-court-further-clarifies-knock-and-announce-rule-

In United States v. Banks, 124 S.Ct. 521 (2003), the Supreme Court further clarified the rules regarding knocking an announcing during the execution of search warrants. The Court has decided a number of cases pertaining to this issue over the last several terms.

A brief review of the cases provides guidance into this critical police task.

In Wilson v. Arkansas, 514 U.S. 927 (1995), the Court held that whether or not officers knock and announce during the execution of a search warrant will factor into whether the manner in which the warrant was executed was reasonable. Thus Rule #1 is “knocking and announcing” is a factor that a court will consider with respect to the reasonableness of the execution of a search warrant.

In Richards v. Wisconsin, 520 U.S. 385 (1997), the Court held that a “no-knock” warrant meets constitutional standards where an officer, in the warrant application provides “reasonable grounds to expect futility or to suspect that one or another such exigency already exists or will arise instantly upon knocking.” Richards v. Wisconsin further held that even if officers have not sought a “no-knock” warrant but are met with similar exigent circumstances when they arrive on the scene, they may dispense with the need to knock and announce their presence.

Thus, Rule #2 allow police to obtain a no-knock warrant when they can articulate exigency prior to the time of the execution of the warrant and

Rule #3 allows police to dispense with their knock and announcement when exigency develops upon their execution of the warrant.

Finally, in United States v. Ramirez, 523 U.S. 65 (1998), the Court held “that police in exigent circumstances may damage premises so far as necessary for a no-knock entrance without demonstrating the suspect risk in any more detail than the law demands for an unannounced intrusion simply by lifting the latch.”

Rule #4 Police may cause reasonable damage in effecting a no-knock entry.

The Court faced a new issue in United States v. Banks. Federal agents along with members of the North Las Vegas Police Department developed information that Banks was dealing drugs. The officers sought and obtained a search warrant for Banks’ two-bedroom apartment.

The officers responded to Banks’s apartment at 2:00 p.m. on a Wednesday afternoon. The officers knocked on the front door and shouted “police search warrant” loud enough so that officers at the rear of the building heard the officers. The officers waited for 15 to 20 seconds and then forced the door open with a battering ram. Banks later testified that he did not hear the officers knock because he was in the shower and did not know the police were there until he heard the crash of the battering ram through his door. Officers seized crack cocaine and weapons as well as other evidence.
Banks’s argument before the Supreme Court was that it was unreasonable for the police to enter his home after waiting only 15-20 seconds. He argued that it would take a person more time than 15-20 seconds to get to their door.

In analyzing the facts of this case the Court indicated that the focus was not on how long it would take someone to get to their front door, but rather, how long it would take someone to destroy the evidence the police were seeking. The Court provided an example of officers looking for a stolen piano obviously having to wait longer than officers seeking drugs that can quite easily be flushed down a toilet. By focusing on the time it would take a person to begin the act of destroying evidence, the Court avoided making fine distinctions based on the size of the residence to be searched. Thus, the owner of a mansion does not get a longer reprieve from a forced police entry since it may take him or her longer to get to the front door since the focus is evidence destruction that may take place anywhere within the residence.

The Court concluded that the officers acted reasonably in this case when they forced entry after waiting only 15-20 seconds. The Court noted that the warrant was executed at a time of day when a person would likely be up and around; officers in the rear of the building heard the announcement; and 15-20 seconds would be enough time for a drug dealer to get to a toilet or sink to begin the process of getting rid of the drugs sought by the police. The Court asserted: “it is imminent disposal, not travel time to the entrance [of the residence], that governs when the police may reasonably enter, since the bathroom and the kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks’s. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine.”

Rule #5 Officers may force entry after knocking and announcing where, based upon the nature of the evidence, exigent circumstances have developed because the occupants have not opened the door in a time frame that would allow the occupants time to begin destroying evidence.

Note, the Court mentioned that the case at issue involved a serious offense and expressed that they were not addressing a no-knock entry based upon exigent circumstances for a minor offense.


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G M
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« Reply #285 on: May 17, 2011, 04:40:10 PM »


EXECUTING A SEARCH WARRANT

Model Policy

Effective Date
December 1, 1989

Subject
Executing a Search
Warrant

Distribution

Reevaluation Date
November 30, 1990

PURPOSE
The purpose of this policy is to provide law enforcement officers with
guidelines for the execution of a search warrant.

POLICY
It is the policy of this law enforcement agency to (1) provide
techniques to accomplish a thorough and legal search; (2) observe the
constitutional rights of the person(s) the warrant is being served
upon; (3) minimize the level of intrusion experienced by those who are
having their premises searched; (4) provide for the highest degree of
safety for all persons concerned; and (5) establish a record of the
entire execution process.

DEFINITIONS
A.
Search Site:
The premises or person to be searched, as
explicitly stated in the search warrant.
B.
Search Personnel:
Law enforcement officers and supporting
personnel taking part in the execution of a search warrant.
C.
Evidence Collector:
Member of the search team responsible for
the possession, packaging, sealing and marking of all items
seized.
D.
Supervising Officer: Search team member most knowledgeable about
the case and/or responsible for the investigation.

PROCEDURES
A.
Uniform and Equipment Requirements
1.
The search team shall at all times include at least one
uniformed officer.
All non-uniformed officers shall be
clearly identified as law enforcement officers by wearing a
distinctive armband, jacket or some other indicator of
office.

2.
All members of the search team should be equipped with body
armor and a safety holster.
B.
Time Limitations on Search Warrant Execution
1.
A search warrant shall be executed as soon as practicable
within the conditions stated in state law.
Circumstances
that may necessitate a delay in executing a search warrant
include, but are not limited to:
a.
The need to have many searches occur at the same

time, which requires coordination and mobilization of
law enforcement resources.
b.
The seizable items have not arrived at the search
site.
c.
The probability that substantial resistance will be
encountered.
d.
A particular person(s) is absent from the search
site, and the supervisory officer feels that the
search would best be conducted if that person were
present.
e.
The need to protect an informant's identity.
2.
Absent court approval necessity or authorization by law, a
search should be conducted during daylight hours.

Preparation for Execution of Warrant
1.
Prior to entering the premises, the supervisory officer
shall conduct a pre-entry briefing of the execution process
with all search team personnel. The briefing shall include
a review of the actual order of operations and procedures
the search personnel will follow, a simulation of the
conditions of the search site (using maps, charts and
diagrams, when appropriate) and tactics and equipment to be
used in the event of forced entry.
2.
The supervisory officer shall attempt to determine if any
circumstances have changed that make executing the search
warrant at that time undesirable.
3.
The supervisory officer shall ensure that the entire search
warrant execution process is documented, from beginning to
end, and continued until the search team leaves the
premises.
A written record shall be supported by
photographs and, if practical, a videotaping of the entire
search site from start to finish.
Entry Procedures
1.
The approach to the scene shall be executed without sirens.
If a pre-execution surveillance team is on the scene, radio
contact shall be made to ensure that it is an appropriate
time to serve the search warrant.
2.
The supervisory officer shall be responsible for ensuring
that the search warrant is valid and that the property
about to be searched is the property listed on the warrant.
3.
The supervisory officer shall ensure that the entry is tape
recorded.

4.
The search personnel shall position themselves in the
following manner:
a.
Exits from the premises shall be covered.
b.
Uniformed officers shall be the most visible members
of the search team, and shall conduct the entry.

c.
Non-uniformed officers shall be the last members to
enter the search site.
5.
Notification
a.
The supervisory officer, or a uniformed officer,
shall notify persons inside the search site, in a
voice loud enough to be heard inside the premises,
that he/she is a police officer and has a warrant to
search the premises, and that he/she demands entry to
the premises at once.
(GM-I have had training that said to use the PA system from a police vehicle to announce the Search Warrant "Knock and announce" so the demand for entry is heard no only by the residence of the house to be searched, but by everyone in the proximity who could later be called as witnesses as to the loudness of the announcement for the demand to enter.)

b.
No-knock entries shall be made in accordance with
state law.
On Premises Activities
1.
The supervisory officer shall ensure that a member of the
search team conducts a security sweep of the search site.
2.
After the search site has been secured, search personnel
shall develop a prioritized strategy that details the
likely whereabouts of the items to be seized and an order

of operation for conducting the search.
One
person
shall
be
designated
as
responsible
for
collecting, preserving and documenting all items seized
until possession is transferred to the evidence custodian.
If damage occurs during an entry to premises that will be
left vacant, and the damage may leave the premises
vulnerable to security problems, arrangements shall be made
to guard the premises until it can be secured.
If damage occurs, a special report shall be prepared on the
actions that caused the damage and a detailed description
of the nature and extent of the damage.

3.

4.

5.

BY ORDER OF

_________________________
CHIEF OF POLICE

This model policy is intended to serve as a guide for the police executive who is interested
in formulating a written procedure to govern executing a search warrant. The police executive
is advised to refer to all federal state and municipal statutes ordinances,
regulations and
judicial and administrative decisions to ensure that the policy he or she seeks to implement
meets the unique needs of the jurisdiciton. 1 / 3


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G M
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« Reply #286 on: May 17, 2011, 04:59:11 PM »

The “knock and announce” rule requires the officers to announce their presence and authority. The officers need not actually knock on the target dwelling’s door for compliance nor must they state any “magic words.” A reviewing court will be interested in whether the occupants have been adequately alerted to the officers’ presence and authority and been given the opportunity to comply. The use of a bullhorn or other appropriate means is acceptable.4
Once the officers have notified the occupants of their intentions, they must allow those inside a reasonable chance to act lawfully.5 The time required varies from case to case. Many courts have permitted officers to enter after waiting more than five seconds.6 Likewise, many courts have found entry at five seconds or less to be unreasonable.7 However, no such “bright line” five second rule exists.
Each case must turn on its own facts. Certain instances will require more time. For instance, officers serving a warrant in the late evening or early

4 U.S. v. Spike, 158 F.3d 913 (6th Cir. 1998)
5 U.S. v. Dice, 200 F.3d 978 (6th Cir. 2000)
6 U.S. v. Markling, 7 F.3d 1309 (7th Cir. 1993); U.S. v. Spriggs, 996 F.2d 320 (D.C. Cir. 1993); U.S. v. Ramos, 923 F.2d 1346 (9th Cir. 1991); U.S. v. Myers, 106 F.3d 936 (10th Cir. 1997); U.S. v. Knapp, 1 F.3d 1026 (10th Cir. 1993); U.S. v. Gatewood, 60 F.3d 248 (6th Cir. 1995)
7 U.S. v. Moore, 91 F.3d 96 (10th Cir. 1996); U.S. v. Lucht, 18 F.3d 541 (8th Cir. 1994); U.S. v. Marts, 986 F.2d 1216 (8th Cir. 1993) morning hours must take into account that they must awake the occupants, who must gather their senses, and perhaps dress themselves before responding. In other circumstances, such as when there is a barking dog, the law may require less time before the officers force entry into the dwelling.8
Once the occupants have rejected the officers’ request to enter the dwelling peacefully, force may be used.
Refused admittance need not be an affirmative refusal. Officers can infer refusal from circumstances such as the failure of occupants to respond,9 the sound of evidence being destroyed,10 or of fleeing suspects.11
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bigdog
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« Reply #287 on: May 18, 2011, 05:59:46 AM »

GM, I don't understand the point of your most recent three posts.  The first two relate to the execution of search warrants, which is lawful entry.  The third one is interesting, but of the entire string cite of cases only one them is binding on Indiana (the state from which this current line of discussion stems) and a single, different case is applicable in California (Guro's state of residence, and thus the likely source of his query). 
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G M
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« Reply #288 on: May 18, 2011, 09:18:41 AM »

BD,

I was responding to Crafty's post, although I cannot vouch for the professionalism (or lack thereof) of dispatch or the local level law enforcement in any given area.
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G M
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« Reply #289 on: May 18, 2011, 11:12:47 AM »

"An appeal to the FBI ot IA doesn't stop illegal actions froming taking place to begin with. "

Reasonable, rational law enforcement officers tend to try to perform their duties in such a way as to avoid being the subject of civil and criminal liability.
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bigdog
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« Reply #290 on: May 18, 2011, 12:52:45 PM »

BD,

I was responding to Crafty's post, although I cannot vouch for the professionalism (or lack thereof) of dispatch or the local level law enforcement in any given area.

Thank you for the clarification.
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bigdog
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« Reply #291 on: May 18, 2011, 12:54:42 PM »

"An appeal to the FBI ot IA doesn't stop illegal actions froming taking place to begin with. "

Reasonable, rational law enforcement officers tend to try to perform their duties in such a way as to avoid being the subject of civil and criminal liability.

In that case, reasonable, rational LEOs shouldn't be all that concerned about individuals who react to illegal entries.  They won't happen.  Right?
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G M
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« Reply #292 on: May 18, 2011, 12:58:27 PM »

The concern is with those indidividuals who think they know what is illegal and don't. In the heat of the moment isn't the time to try to adjudicate such things, is it?
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bigdog
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« Reply #293 on: May 18, 2011, 02:31:11 PM »

The concern is with those indidividuals who think they know what is illegal and don't. In the heat of the moment isn't the time to try to adjudicate such things, is it?

Don't trained LEOs know when a search/entry is illegal?  If so, why are they acting in an irresponsible manner? 
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G M
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« Reply #294 on: May 18, 2011, 03:20:06 PM »

I think if' you read the case law, you'll find that sometimes it's unclear if a warrantless entry will be ruled to be legal until it goes before the court who'll judge it on the totality of the circumstances. Many times, officers must make decision in a compressed time frame that are later contemplated at the leisure of the court. There are many disincentives to discourage officers from acting in bad faith in these scenarios.

http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/march_2011/copy_of_perspective

Although courts have long recognized the existence of an exigent circumstance exception to the Fourth Amendment’s warrant requirement, the Supreme Court’s decisions in Brigham City and Fisher provide much-needed guidance to officers who routinely confront situations, such as those present in these two cases. Reliance on an objective reasonableness standard allows for scrutiny based on the facts and circumstances confronting law enforcement at the time, as opposed to guesswork regarding the officers’ intentions and consideration of information learned after the fact. The legal standard set forth by the Court in these cases enables officers to make onthe- spot decisions as to whether they should enter a home or other dwelling to resolve an emergency situation. Because the government has the burden of justifying warrantless searches and seizures occurring under this exception, officers need to fully articulate the specific facts and circumstances known to them at the time they acted. This is essential because the courts use an examination of the totality of the circumstances to determine whether officers had reasonable grounds to act.
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Crafty_Dog
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« Reply #295 on: May 19, 2011, 12:52:26 AM »

"I can't for the life of me think of a good reason to take away a right to protect oneself against an unlawful entry, no matter who is doing the entering."

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bigdog
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« Reply #296 on: May 19, 2011, 04:54:06 AM »

I am not often advised that I should read more case law.  I agree that there are disincentives in place to reign in officers acting in bad faith.  And taking away a natural right of self defense is taking away one of those reasons for police officers from acting in exactly that manner.  

Under what other conditions do you think it is acceptable to limit the natural right of self defense?  

I think if' you read the case law, you'll find that sometimes it's unclear if a warrantless entry will be ruled to be legal until it goes before the court who'll judge it on the totality of the circumstances. Many times, officers must make decision in a compressed time frame that are later contemplated at the leisure of the court. There are many disincentives to discourage officers from acting in bad faith in these scenarios.

http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/march_2011/copy_of_perspective

Although courts have long recognized the existence of an exigent circumstance exception to the Fourth Amendment’s warrant requirement, the Supreme Court’s decisions in Brigham City and Fisher provide much-needed guidance to officers who routinely confront situations, such as those present in these two cases. Reliance on an objective reasonableness standard allows for scrutiny based on the facts and circumstances confronting law enforcement at the time, as opposed to guesswork regarding the officers’ intentions and consideration of information learned after the fact. The legal standard set forth by the Court in these cases enables officers to make onthe- spot decisions as to whether they should enter a home or other dwelling to resolve an emergency situation. Because the government has the burden of justifying warrantless searches and seizures occurring under this exception, officers need to fully articulate the specific facts and circumstances known to them at the time they acted. This is essential because the courts use an examination of the totality of the circumstances to determine whether officers had reasonable grounds to act.
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G M
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« Reply #297 on: May 19, 2011, 09:33:30 AM »


"Under what other conditions do you think it is acceptable to limit the natural right of self defense?"
 
I can think of a few I went through first hand. One was responding to a call where a woman that was reported to have been drinking and ingesting chemicals and was reported to be brandishing a firearm with a young child in the home with her. It wasn't my jurisdiction, but I was closest to the scene and requested by the Sheriff's Dept. to respond to the call with the above information relayed to me through my dispatch. I arrived at the residence, knocked at the door and announced my presence. No response. Deciding there were exigent circumstances, I made entry into the house. I located a female party unconscious on the floor in a child's room. The child was in a crib, unharmed. A medium frame revolver was visible on a shelf in the room, the adult female didn't awaken when I cuffed her, secured the revolver and awaited the arrival of the responding deputy.

If that female subject had been awake, did she have the natural right of self defense against a warrantless entry by a tribal police officer into her home?
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bigdog
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« Reply #298 on: May 19, 2011, 06:29:31 PM »

Was it an illegal entry?  That has been my focus the whole time.


"Under what other conditions do you think it is acceptable to limit the natural right of self defense?"
 
I can think of a few I went through first hand. One was responding to a call where a woman that was reported to have been drinking and ingesting chemicals and was reported to be brandishing a firearm with a young child in the home with her. It wasn't my jurisdiction, but I was closest to the scene and requested by the Sheriff's Dept. to respond to the call with the above information relayed to me through my dispatch. I arrived at the residence, knocked at the door and announced my presence. No response. Deciding there were exigent circumstances, I made entry into the house. I located a female party unconscious on the floor in a child's room. The child was in a crib, unharmed. A medium frame revolver was visible on a shelf in the room, the adult female didn't awaken when I cuffed her, secured the revolver and awaited the arrival of the responding deputy.

If that female subject had been awake, did she have the natural right of self defense against a warrantless entry by a tribal police officer into her home?
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G M
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« Reply #299 on: May 19, 2011, 06:41:51 PM »

I don't think so. I turned the scene over to the responding deputy, briefed him on what had happened. I wrote a report detailing what I had done. Never questioned about it by my chain of command. I never got a complaint, I never was subpoenaed to testify in court about it, so I assume the case was plea barganed.

Do you think that was legal?
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