Day of Action: Stop the Changes to Rule 41

Another ruling unfavorable to Tor users concerning Rule 41b (this time from a case being heard in Norfolk, VA):

techdirt.com
Judge In Playpen Case: FBI's Warrant Is Valid, Even If Its Claims About No Privacy In IP Addresses Are Not
Tim Cushing
20 Jun 2016

> ...
> The FBI must have felt its NIT deployment would be considered a search. That's why it obtained a warrant in the first place. But it's been frantically peddling "not a search" theories as court after court has declared its warrant invalid because the searches were performed outside of the issuing magistrate's jurisdiction.
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> In this case, the issue of whether or not the NIT deployment was a search has not been disputed by either party. The court addresses it anyway because it affects the reasoning that follows.
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> Before reaching the merits of Defendant's motions, it will be useful to address a preliminary question unaddressed by the parties: Was the deployment of the NIT a "search" of Defendant's computer within the meaning of the Fourth Amendment? If the use of the NIT was not a search, the Fourth Amendment was not implicated, no warrant was required, and any violation of Rule 41(b) irrelevant.
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> Rule 41(b), which may be drastically altered by the end of this year, restricts searches to the jurisdiction where the warrants were issued. The FBI is well aware of the deficiencies of its NIT warrant, which is why it presented this legal theory to court in response to an earlier motion.
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> The government in its response to Defendant's First Motion to Suppress never argues that no warrant was required because deployment of the NIT was not a Fourth Amendment search. See Gov't's Resp. to First Mot. at 15-38. In failing to raise this argument when it would have been appropriate, the government has likely waived it. The government does, in justifying the scope of the warrant, argue that Defendant had no reasonable expectation of privacy in his IP address, even though he was using the Tor network.
>
> The court blows past the "no expectation of privacy in IP addresses" for the moment, instead focusing on the execution of the FBI's NIT.

So far, Rule 41b motions to suppress (all have been denied using various legal casuistry) have occurred in the context of cases which arose from FBI takedowns of websites published anonymously via onion services which enabled criminal actions (e.g. objectionable pron or narcotics). It is very important that when US citizens call their congressional representatives, that they stress the danger that precedents set in such cases could easily be extended to target controversial bloggers, investigative journalists, and human rights activists anywhere in the world, regardless of which candidate wins the forthcoming US Presidential elections.

USG has formal or informal "information sharing" agreements with repressive governments such as Saudi Arabia, Israel, and is forging similar agreements with Russia, China, Vietnam and other governments which routinely target bloggers, journalists, political activists, and human rights researchers.

Further, USG is under continual pressure (internal, from FBI/CIA etc, and external, from editorialists who publish in journals such as Foreign Policy, papers such as WaPo, or websites such as Politico) to move down ever more authoritarian paths. This pressure is by no means coming only from one political party, but from all sides.

The reaction to the Orlando massacre has been particularly disturbing. To mention just one example, an editorial by Michael Hirsh in Politico calls for perpetual investigation of all "troubled" US citizens on the grounds that they *might* in future commit some horrid act:

http://www.politico.com/magazine/story/2016/06/orlando-terrorism-fbi-om…
Why Didn’t the FBI Stop Omar Mateen?
The face of terrorism is changing. And critics say the bureau has been too slow to catch on.
Michael Hirsh
17 Jun 2016

> ...
> Based on the accounts of his aquaintances and family, Mateen also appears to have been a deeply conflicted and possibly self-loathing homophobe who drank heavily, took drugs, dated men, frequented the same club he later attacked, Pulse, and used a gay dating app—not the sort of behavior one would expect of a faithful soldier of Islam... Mateen appears, in fact, to have been less a soldier than yet another deeply disturbed American (born in Trump’s own home borough of Queens), who was full of hatred and uncontrollable anger—an example of what law enforcement officials describe as an aspiring violent criminal searching for a larger justification for the acts he’s desperate to commit.
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> Could Mateen have been caught? It’s unfair to expect that U.S. law enforcement can track and stop every would-be terrorist. But perhaps the toughest thing to explain about the worst mass shooting in U.S. history is how a man who was interviewed three times by the FBI ended up buying, unnoticed, an entire arsenal and then gunning down, unsurveilled, more than 100 people.
> ...
> It’s unreasonable—and perhaps undesirable—to expect that the FBI and counterterrorism officials should be tracking intent rather than action, in effect predicting possible future crimes like the psychics in the movie Minority Report. But... [ISIS has] got an army at home in Syria and Iraq, and around the world it features an evanescent, twilit army of quasi-recruits who behave somewhat like quantum terrorists; they are neither one thing nor another but both somehow, Americans with unblemished records one day, remorseless murderers the next. Or as Comey somewhat awkwardly described it, the FBI must not only find “needles in a nationwide haystack” but also figure out “which pieces of hay might someday become needles.”
> ...
> [Former FBI agent Michael] German, a fellow at the Brennan Center for Justice at NYU Law School, agrees that Mateen and Roof are of the same ilk. “Like Dylann Roof, this was someone who had anger building up and wanted to find some hook that would justify it, or find a community that would accept this as righteous,” says German. “That was his ‘radicalization.’”
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> Some experts say there is in fact a solution and model for doing a better job of tracking this new threat—the one used by the U.S. Secret Service to keep the president safe. “It’s going to take adopting an approach used by Secret Service for years, a combination of law enforcement, risk assessment and then intervention, even if there’s no arrest,” says [academic "terrorism expert" John] Cohen. For decades, the Secret Service has gone further than simply investigating and prosecuting threats to the president. Even if agents don’t arrest a suspect who, say, posts something threatening online, the Secret Service will take additional steps to assess if that person poses risks of committing a crime in the future based on psychological and behavioral characteristics—for example like the threatening and Islamist-sympathizing statements Mateen was said to have made to co-workers in recent years. They’ll also try to connect the individual with mental-health, educational and religious authorities from the community.
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> As Politico Magazine reported in March, the FBI has sought to develop these community intervention models—using a relatively new concept called Shared Responsibility Committees—but they are still largely in their infancy, and they are somewhat controversial because of their intrusiveness and stigma of ethnic profiling, especially within American Muslim communities.

Michael Hirsh neglects to mention another reason why FBI's CVE programs are so controversial: they focus on "interventions" in the lives of troubled schoolchildren. FBI is already demanding that high school teachers report troubled students. But far more troubling is the fact that, according to their own literature, FBI's ultimate target group consists of preschool children aged 3-7.

FBI's Shared Responsibiity Committees will include psychologists as well as educators, social workers, and counter-terrorism officials. Why?

Because there is a whole host of academic journals which publish articles claiming that "adverse events" develop into adults who have higher blood pressure

Gooding, H., Milliren, C., McLaughlin, K.A., Richmond, T., Katz-Wise, S., Rich-Edwards, J., & Bryn-Austin, S. (2014). Child maltreatment and blood pressure in young adulthood. Child Abuse and Neglect, 2852, 1-8.

are more obese

Gooding, H.C., Miliren, C., Austin, S.B., Sheridan, M.A., & McLaughlin, K. A. (2015). Exposure to violence in childhood is associated with higher body mass index in adolescence. Child Abuse & Neglect.

are more likely to suffer from heart disease

Hatzenbuehler, M.L., Slopen, N., & McLaughlin, K.A. (2014). Stressful life events, sexual orientation, and cardiometabolic risk among young adults in the United States. Health Psychology, 33, 1185-1194.

are more likely to suffer from major mental illnesses such as depression

Roberts, A.L., Chen, Y., Slopen, N., McLaughlin, K.A., Koenen, K.C., & Austin, S.B. (2015). Maternal experience of abuse in childhood and depressive symptoms in adolescent and adult offspring: A 21-year longitundinal study. Depression and Anxiety, 32, 709-719.

PSTD

McLaughlin, K.A., Busso, D.S., Duys, A., Green, J.G., Alves, S., Way, M., & Sheridan, M.A. (2014). Amygdala response to negative stimuli predicts PTSD symptom onset following a terrorist attack. Depression and Anxiety, 00, 1-9.

mania

Gilman, S. E., Ni, M. Y., Dunn, E. C., Breslau, J., McLaughlin, K. A., Smoller, J. W., & Perlis, R. H. (2015). Contributions of the social environment to first-onset and recurrent mania. Molecular Psychiatry, 20, 329-336.

ADHD

Gilman, S. E., Ni, M. Y., Dunn, E. C., Breslau, J., McLaughlin, K. A., Smoller, J. W., & Perlis, R. H. (2015). Contributions of the social environment to first-onset and recurrent mania. Molecular Psychiatry, 20, 329-336.

"conduct disorder" (speaking back to the teacher, lobbing spitballs, pulling pigtails)

Wiesner, M., Elliott, M.N., McLaughlin, K.A., Banspach, S.W., Tortolero, S. & Schuster, M.A. (2015). Common versus specific correlates of fifth-grade conduct disorder and oppositional defiant disorder symptoms: comparison of three racial/ethnic groups. Journal of Abnormal Child Psychology, 43(5), 985-998.

bullying

McLaughlin, K. A., Aldao, A., Wisco, B., & Hilt, L. (2014). Rumination as a transdiagnostic factor underlying transitions between internalizing symptoms and aggressive behavior in early adolescents. Journal of Abnormal Psychology, 123, 13-23.

alchoholism

Keyes, K., Shmulewitz D., Greenstein, E., McLaughlin, K.A., Wall, M., Efrat, A., Weizman, A., Frisch, A., Spivak, B., Grant, B., & Hasin, D. (2014). Exposure to the Lebanon War of 2006 and effects on alcohol use disorders: the moderating role of child maltreatment. Drug and Alcohol Dependence, 134, 296-303.

anger issues

Iverson, K.M., McLaughlin, K.A., Adair, K.C., Monson, K.M. (2014). Anger-related dysregulation as a factor linking childhood physical abuse and interparental violence to intimate partner violence experiences. Violence and Victims, 29, 564-578.

suicide

Nock, M.K., Green, J.G., Hwang, I., McLaughlin, K.A., Sampson, N.A., Zaslavsky, A.M., & Kessler, R.C. (2013). Prevalence, Correlates, and Treatment of Lifetime Suicidal Behavior Among Adolescents: Results From the National Comorbidity Survey Replication Adolescent Sample. Journal of the American Medical Association of Psychiatry, 70(3):300-310.

and just about any other "adverse life outcome" you might imagine.

And--- this is why FBI and NCTC are so interested in spying on "troubled" citizens--- in the criminology journal literature there is an entire industry devoted to "scientific proof" that exposure to violence in childhood (even *reading* about violence) makes you more likely to be violent, or even a dangerous predator or potential mass shooter or terrorist, than persons who experienced an idyllically happy childhood.

So from a civil liberties perspective, the danger is that FBI/NCTC are moving towards regarding every "troubled" citizen as a perpetual terror suspect who must be subjected to continual "interventions" throughout their childhoods and indeed throughout their entire adult lives.

And this amounts to implementing an oppressive regime of state-sponsored discrimination in which persons who were unlucky enough to be victims of abuse in childhood will be continually re-victimized *by the government* throughout their entire lives. A regime in which citizens are subjected to mistreatment, not because they are suspected of having done anything wrong in the past, but because the government considers that they are more likely than other citizens to do something wrong in the future.

And once again we see how entire disciplines (engineering, mathematics, psychology) are being "captured" by the ugliest and most oppressive portions of the USG.

> But Cohen says U.S. officials have no choice after Orlando [but to ramp up precrime programs targeting "troubled" persons].

Particularly singled out: "troubled" persons who, you guessed it, spend "too much" time on the Internet:

> both the inspiration for these acts of violence and the acts themselves often are blended together in a strange and toxic stew on the Internet. If he was initially inspired by what he saw on the Internet, as Comey suggested, Mateen also began posting on Facebook while he was shooting people during his four-hour siege of the nightclub, and checking to see if he’d made the news yet. Dylann Roof, a loner who closeted himself in his room and absorbed the “Internet evil,” as his family called it, hurriedly created a “manifesto” not long before the Charleston murders...

Please note that CIA Director John Brennan, FBI Director Comey, and other officials have even tried to link using encryption with "proto-terrorism". Needless to say, using Tor is equivalent to instant nomination to counter-terrorism cyber-watchlists.
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> According to GW’s Vidino, there are currently about 1,000 terrorist investigations open nationwide, and many more have been closed. He says U.S. authorities would probably do well to keep many of those cases open if they involve troubled or violent individuals, and to reopen others—at least to seek to intervene in time. But to do that the FBI, which is not comfortable “operating in this pre-criminal space,” says Vidino, will have to push itself out of its comfort zone.
>
> That of course could mean entering a potential danger zone at the same time, at least for society. Law enforcement has erred in the past by slip-sliding into the practice of trying to identify offenders before they do anything—or profiling and targeting certain communities according to theories of the “broken-windows” type. “As I would hope the American people would want,” Comey himself said this week, in justifying the earlier closing of Mateen’s case, “we don’t keep people under investigation indefinitely.”
>
> But that is how the Omar Mateens of the future may well be detected.

One of the very small number of writers who have consistently spoken out against USG precrime programs (which appear increasingly unlikely to repeat the error of the mass detentions of US citizens of Japanese descent during World War II by incarcerating designated proto-terrorists in preventative detention camps) is Glenn Greenwald:

https://theintercept.com/2016/06/21/democrats-war-on-due-process-and-te…
Democrats’ War on Due Process and Terrorist Fear-Mongering Long Pre-Dates Orlando
Glenn Greenwald
21 Jun 2016

> Before the bodies were removed from the Pulse nightclub in Orlando last week, Democrats began eagerly exploiting that atrocity to demand a new, secret “terrorist watch list”: something that was once the domestic centerpiece of the Bush/Cheney War on Terror mentality. Led by their propaganda outlet, Center for American Progress (CAP), Democrats now want to empower the Justice Department – without any judicial adjudication – to unilaterally bar citizens who have not been charged with (let alone convicted of) any crime from purchasing guns.
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> Worse than the measure itself is the rancid rhetoric they are using. To justify this new list, Democrats, in unison, are actually arguing that the U.S. Government must constrain people whom they are now calling “potential terrorists.” Just spend a moment pondering how creepy and Orwellian that phrase is in the context of government designations.
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> What is a “potential terrorist”? Isn’t everyone that? And who wants the U.S. government empowered to unilaterally restrict what citizens can do based on predictions or guesses about what they might become or do in the future? Does anyone have any doubt that this will fall disproportionately on certain groups and types of people?

Many of us (including this commentator) actually support stronger gun control laws. But the measures currently being advocated by members of both "corporate parties" in the US Congress would set very, very dangerous precedents. So would allowing the changes to Rule 41b to go forward. In both cases, the problem is that USG is progressively revoking the very notion of due process, which lies at the heart of the Rule of Law.

And if all persons are not equal under the law, what chance has a non-super-rich person to defend himself or his children against the predatory demands of the elite?