Intersections of the 3. By Margaret Hagan

Posts Tagged: surveillance

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One case — Muslim Community Ass’n of Ann Arbor v. Ashcroft — brought this issue to US federal courts in 2003.  Muslim and Arab organizations in Michigan sued then-Attorney General John Ashcroft and then-director of the FBI, Robert Mueller, for violating their Constitutional Rights for surveillance that was supposedly authorized by the Patriot Act.

The plaintiffs alleged that surveillance carried out under authority of the Patriot Act violated their Fourth Amendment, Fifth Amendment and First Amendment rights in five major ways:

1) it violates the Fourth Amendment by authorizing the FBI to execute searches without criminal or foreign intelligence probable cause;

2) it violates the Fourth Amendment by authorizing the FBI to execute searches without providing targeted individuals with notice or an opportunity to be heard;

3) it violates the Fifth Amendment by authorizing the FBI to deprive individuals of property without due process;

4) it violates the First Amendment by categorically and permanently prohibiting any person from disclosing to any other person that the FBI has sought records or personal belongings; and

5) it violates the First Amendment by authorizing the FBI to investigate individuals based on their exercise of First Amendment rights, including the rights of free expression, free association, and free exercise of religion.

The final fifth count is of most concern in answering the question at hand — whether the government’s surveillance of Muslim Americans chills their First Amendment-protected activities, like talking to other people, searching online for issues of interest, praying, attending religious services, writing blog posts, joining religious and political groups, protesting wars — and a host of other ‘public life’ activities that the First Amendment was built to protect.

The District Court who heard this case refused to dismiss it based on a lack of standing.  The Defendants had alleged that the plaintiffs couldn’t show any real constitutional violations or harms, so they did not have the right to bring the suit.  The court disagreed.

The court said that to bring the suit, the Plaintiffs were only required to show a ‘threat’ of present injury. They did not have to show that they have already suffered these Constitutional violations.  The court found that in this case, Plaintiffs had met these burdens:

"A review of the papers previously filed by the parties shows that with regard to their First Amendment claims Plaintiffs have carried their burden in establishing standing. Plaintiffs claim they have shown that: they have suffered concrete injuries; they have a reasonable fear that their own speech and association will be targeted under the statute; the chilling effect of Section 215 has caused them concrete harm; and, Section 215 fails to provide procedural safeguards….
"Plaintiffs have alleged that their members are afraid to attend mosque, practice their religion, and express their opinions on religion and political issues. Plaintiffs’ members are afraid to obtain services from the human services organizations for fear that any information obtained by the organization can be obtained by the Government. Plaintiffs have shown threats of present injury sufficient to satisfy constitutional standing requirements on their First Amendment claims." Muslim Cmty. Ass’n of Ann Arbor v. Ashcroft, 459 F. Supp. 2d 592, 601 (E.D. Mich. 2006).
The case does not rule on whether these plaintiffs’ claims of injuries because of surveillance were in fact enough to prove injury to their First Amendment rights. But, it does indicate that Muslim Americans can bring claims of constitutional violations by showing that their speech and practices are being chilled by the sense of government surveillance. This indicates that governments will have difficulty to get similar cases dismissed early on, based on lack of standing.
After getting this ruling to go forward, the plaintiffs withdrew the case because of updates to the Patriot Act which altered the problematic section — 215 — which they had based their lawsuit on.
Under the original Patriot Act, passed by Congress in October 2001 with virtually no debate, Section 215 radically expanded the FBI’s power to demand records and personal belongings of innocent people in the United States without any judicial oversight. After the ACLU filed its lawsuit and launched a nationwide campaign to reform the Patriot Act and restore checks and balances, Congress revised the law earlier this year to allow people who receive a demand for records to consult with a lawyer and challenge the demand in court.
This change in the law was enough to put the lawsuit on shaky ground, leading to its withdrawal.  No court decision was ever rendered on whether the government’s behavior pursuant to the Patriot Act had violated Muslims’ 1st Amendment rights. 

The new case in New Jersey in which Muslim Americans are suing the NYPD for violating their constitutional rights through pervasive surveillance may ultimately provide an answer to the fundamental question, that the Michigan case didn’t get to.

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Muslim Internet

In July 2007, researcher Dawinder S. Sidhu commissioned the University of Oklahoma’s Public Opinion Learning Laboratory (UOPOLL) to conduct a survey that investigated “if and to what extent Muslims in the United States, concerned that the government may track their online movements, have changed their use of the Internet after 9/11.”[1]  The survey conducted 308 scripted interviews with US residents who identified themselves as Muslims.

The survey was brief and high level. It tried to ascertain if Muslim Americans thought of themselves as being surveilled, and if this changed their overall usage of the Internet. Sidhu, who commissioned the survey, wrote that the general takeaway of the survey was that “Muslim-Americans not only believe the government monitors their routine activities, but that such concerns have translated into actual changes in daily behavior.”[2] The actual responses, however, suggest that the vast majority of the respondents did not change their general activities or their usage of the Internet due to a fear of government surveillance.

The UOPOLL survey found that most respondents used the Internet over the past decade, with 80.1% respondents using before 9/11, 87.8% did so after 9/11, and 90.4% at the time of the survey in 2007.  Most respondents also believed that the government was currently monitoring the activities of Muslims in the U.S. It found that 71.7% of respondents believed such monitoring occurred, while 4.2% disbelieved that such monitoring occurred. Also, 70.7% of respondents believed the government was currently monitoring Internet activities of Muslims in the U.S., while 4.8% did not believe it monitored Muslims online. In summary, most polled Muslims used the Internet, believed the US government was monitoring Muslims in the US, and that it was doing so online.

The survey also inquired into whether respondents changed their behavior in response to the perception of being monitored by the government. It found that most respondents did not report many changes to their behavior.  86.8% of respondents said they didn’t change their general activities after 9/11 due to a fear of government surveillance. 11.6% said they did change their activities: 6.1% said they made slight changes; 2.3% said they made moderate changes; 1.6% said they made many changes; and 1.6% said they made significant changes).  A smaller majority of respondents also did not know of other Muslims who changed their activities after 9/11 because of surveillance concerns.  65.9% of respondents said they were not aware of other Muslims who had changed, while 25.4% said they did know other Muslims changing their general behavior.

In terms of alterations in behavior on the Internet, a vast majority said they have not made any changes to their Internet usage after 9/11 out of fear of surveillance by the government.  89.1% said they had not changed anything about their Internet usage, including what sites they visit or the amount of time they spend on the Internet. 8.4% said they changed their Internet usage, with 3.9% reporting slight changes, 1.6% reporting moderate changes, 1.9% reporting many changes, and 1.0% reporting significant changes due to fear of surveillance by the government.  Of the 8.4% that reported they had made changes to their Internet behavior, 57.6% said they did not visit certain websites after 9/11 at all because of concern of government surveillance. The majority of the respondents also reported that they did not know of other Muslims who had changed their Internet behavior after 9/11 for fear of surveillance.  77.2% of respondents reported this, while 11.9% said they did know other Muslims who had altered their Internet behavior.  Of this 11.9%, 45.6% said they avoided certain websites because of fear of government surveillance.

The UOPOLL survey found that Muslims in America have changed their general behavior and their usage of the Internet as of 2007, but not to a great extent.  Sidhu acknowledged that there is still a great deal of research needed to explore the topic. He thought one pressing question is why there was such a gulf between the high number of respondents who thought they were being surveilled by the government and the low number who changed their behavior.[3]  Another open question is whether Muslim Americans have changed specific online practices as a result of awareness of surveillance.  Are they less likely to send certain messages, post on certain forums, search for certain terms, visit certain sites, or use certain ISPs? Even if their general usage of the Internet hasn’t changed much, are there specific practices that have?  And one final gap to be explored is whether confirmations that government agencies are in fact surveilling Muslim communities – like the AP’s revelations about the NYPD – have an effect on Muslim Americans’ behavior that is different from mere suspicion that there a surveillance program exists.


[1] Dawinder S. Sidhu, The Chilling Effect of Government Surveillance Programs on the Use of the Internet by Muslim-Americans, 7 U. Md. L.J. Race, Religion, Gender & Class 375, 376 (2007).

[2] Id.

[3] Id. at 392.

Source: papers.ssrn.com

In response to the NYPD’s massive surveillance campaign against Muslims on the East Coast, a wonderful Tumblr with people voluntarily mapping & surveilling themselves. A project from CUNY’s CLEAR (Creating Law Enforcement Accountability & Responsibility) group.

In response to the NYPD’s massive surveillance campaign against Muslims on the East Coast, a wonderful Tumblr with people voluntarily mapping & surveilling themselves. A project from CUNY’s CLEAR (Creating Law Enforcement Accountability & Responsibility) group.

Source: mapthisnypd

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This answer is never going to be totally clearcut (hello, Law!), but there is one important test you have to pass, in order to sue the government for surveillance.

Do you have a JUSTICIABLE claim? (the legalese for, are you able to bring a claim in court against the government for what it did)

1. Are you able to prove that the government was actually surveilling you OR your specific community?

(If you can’t prove they are actually surveilling you, you may be able to say that there is a likelihood that that you are (or will be) a target of surveillance — but that is hit or miss)

2. Have you suffered an injury because of this surveillance?

And it can’t just be any old injury that you are unhappy about. You have to show an injury that is ‘cognizable’, that the court will recognize.  What counts as cognizable? Hmmm… courts differ on this count.  Some factors that make it more likely your injury will count as cognizable:

- it’s not a hypothetical or conjectural injury, but it’s actually happened or could happen imminently

- it’s a concrete, particular, specific injury and not something too general

- if it is Objective rather than Subjective, meaning that it is not entirely in your head or self-invented, but actually has some demonstrable real-world consequence — there are Tangible Damages

- if the injury you’re suffering is ‘reasonable’, meaning that a reasonable person in your shoes would also be suffering this same thing

- if your injury is because of some activity by the government that is ‘regulatory, proscriptive or compulsory’ (which is really not likely to include surveillance — this is a tricky category to meet in a surveillance situation)

- Some examples of a cognizable injury: you’ve lost your job because of the surveillance, you are being harrassed, you’ve lost money or customers because of it, you haven’t been able to practice your religion, you haven’t been able to speak freely

And even if you can show you have been surveilled and its caused a cognizable injury, there is still the matter of overcoming the government’s defense.  Generally, you can expect the government to say that the interests of the government in maintaining the surveillance are SO GREAT and SO  NECESSARY that they are a trump card.  Even if you can sue, this defense may beat your claim.

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After the AP broke the news earlier this year that the NYPD had been working with the CIA to conduct massive surveillance of Muslim Students Associations all along the East Coast — these questions are raised:

(1) If you are a Muslim in America, is your privacy more at risk from government intrusion? (one piece on Muslim surveillance, and another one from Salon)

(2) Do private companies — especially Internet companies (Google, Yahoo, Facebook, Twitter), phone service providers (AT&T, Verizon, T-Mobile, Blackberry), and others — hand over data about Muslims more to governments, or keep their own profiles of Muslims?

(3) What ways can Muslims protect themselves from surveillance without seeming to be more ‘suspicious’ because they are defending themselves?

(4) What harms does this surveillance cause in the lives + communities of Muslim students — and beyond? (check this report out from WNYC)

Mark Chandler, General Counsel of Cisco, came to speak at Stanford Law School.  More detail on Cisco’s human rights problems in China can be found at the EFF here.

Mark Chandler, General Counsel of Cisco, came to speak at Stanford Law School.  More detail on Cisco’s human rights problems in China can be found at the EFF here.

Source: razblint.com

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The EU Parliament will implement new export restrictions on companies’ export of surveillance technologies to countries with a record of human rights violations. 

If an EU company that wants to sell tech that could be used to monitor citizens’ phone calls, text messages and internet activity, they will need approval not only from their national governments — but they will also need to declare it to the EU within 30 days of the goods’ departure from the EU. 

No EU-level pre-export approval is required, though.  The new control applies to export to countries which are subject to a general arms embargo.

Source: accessnow.org

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There are two lawsuits in the pipleline against Cisco for the technology it sold to the Chinese government, that was then used in the imprisonment and torture of human rights activists and political dissidents.

The first lawsuit: in May 2011, the Human Rights Law Foundation filed suit in the Federal District Court in San Jose, CA.  It accuses Cisco of designing products that help the Chinese government persecute Falun Gong members.  In September, it amends the complaint, saying it has new evidence that Cisco customized its products specifically to enable the government to persecute Falun Gong members, some of whom have been tortured & killed by the Chinese authorities. This evidence may include a PowerPoint presentation from Cisco that describes a specific line of products “as the only product on the market capable of recognizing over 90% of Falun Gong pictures.”

The second lawsuit: in June 2011, three Chinese dissidents sued Cisco  in the U.S. District Court in Maryland, saying that it was complicit in the arrests and detentions of political writers Du Daobin, Zhou Yuanzhi and Liu Xianbin. They claim that the company “willingly and knowingly provided Chinese officials with technology and training to access private Internet communications, identify anonymous web log authors, prevent the broadcast and dissemination of peaceful speech, and otherwise aid and abet in the violation of…fundamental human rights.”

Both lawsuits hinge on the Alien Tort Claims Act, which allows U.S. courts to uphold international law.  If the company is found to be aiding and abetting human rights abuses, it could be held liable under the ATCA.  One outstanding question is whether the plaintiffs will have to show that Cisco ‘knew’ its products were being used to abuse human rights, or that it had the ‘purpose’ of abusing human rights by exporting its products abroad.

Previous plaintiffs have gotten traction with ATCA claims regarding US tech companies’ involvement in foreign human rights abuses.

In 2009, a lawsuit against five large tech companies, including IBM, was allowed to continue by a judge.  The complaint asks for monetary damages, claiming that the tech companies aided South Africa in perpetrating racial segregation and abuses in its apartheid system.

In 2007, Yahoo was sued for its involvement with the Chinese authorities’ persecution of political dissidents.  It also came under Congressional scrutiny for releasing information from the email account of a journalist, Shi Tao, to the authorities in China, who subsequently arrested her and sentenced her to 10 years imprisonment.  Yahoo settled the case.

Source: http

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The US Central Command (Centcom), which oversees US armed operations in the Middle East & Central Asia has contracted with a California company Ntrepid create an “online persona management service” — according to a report in The Guardian.

The system will let one US military employee to manage at least 10 fake online personalities (or, sock puppets) on social media.  The corporation would help the military create convincing details and backgrounds for the sock puppets, so that the military can better join in selected conversations, commentaries, and exchanges online.

The Centcom spokesman says that “The technology supports classified blogging activities on foreign-language websites to enable Centcom to counter violent extremist and enemy propaganda outside the US.”

The system would disguise that the persona was based in a US military setting.  It would be directed at foreign audiences.  If it were used towards US citizens, it could be found illegal.  One man in New York who created a sock-puppet online, to impersonate an academic, was convicted of ‘criminal impersonation’ and identity theft, and serving jail time.

It might also be illegal in the UK, contravening the Forgery & Counterfeiting Act of 1981 — if it is found to inducing others to accept a false instrument as genuine.

Source: Guardian

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The New York Times & The New Yorker report that the NSA is using the premise of investigating foreign citizens to ‘inadvertently’ read the electronic communications of massive numbers of US citizens.

From The New Yorker:

"The N.S.A. has, according to the Times, collected and read many more e-mails sent by Americans than had been known—more, some in Congress and on the Foreign Intelligence Surveillance Court think, than it had any legal right to. It worked, roughly, like this: the N.S.A. would want to listen in on someone—someone foreign. But, what with routers and servers, it isn’t always clear on e-mail who is American (and thus generally off limits) and who isn’t. A new law, passed last year, let them collect a bit more freely if, as the Times put it, ‘it was done only as the incidental byproduct of investigating individuals “reasonably believed” to be overseas.’

But the N.S.A. seems to have taken this as a free pass to scoop up e-mails in a wholesale manner. An analyst told the Times that “the agency routinely examined large volumes of Americans’ e-mail messages without court warrants—including Bill Clinton’s private correspondence.”

Source: newyorker.com