The NYPD is spying on bicyclists, relief efforts and republicans

As more details continue to surface, the NYPD's activities are beginning to make the NSA's surveillance programs look like the paragon of restraint. We've already detailed how the NYPD (with help from a former CIA official) placed entire mosques under surveillance and infiltrated the Occupy movement.

Having effectively neutered the Handschu guidelines in 2003 (which placed severe restrictions on monitoring political activity), the NYPD was free to surveill all sorts of non-criminal, politically-focused gatherings.  

So before and during the Iraq War, the organization of antiwar rallies was regarded as a fit matter for police surveillance; so were the monthly Critical Mass bicycle rallies, as well as groups protesting at the Republican National Convention in 2004, and a range of Islamic facilities, from mosques to college student clubs.

That's right. The NYPD cast its surveillance net over bicyclists. It also set its sights on the rescue/recovery efforts of Occupy Sandy, something that (perhaps due to it being a non-governmental effort) drew praise for its "nimble, effective work."

The PD's ongoing disregard for the civil liberties of New Yorkers (see also: stop-and-frisk) makes this news unsurprising. But it's worth noting that these spying efforts were ushered in by a former CIA officer who persuaded a judge to drop the limits governing the surveillance of political activities by playing the terrorist card shortly after the 9/11 attacks. If the NYPD is going to protect New Yorkers from future terrorist attacks, it's going to have to stop allocating resources to spy on non-terrorist, First Amendment-protected activities.

Then there's the problem with the undercover officers themselves. As we've seen in previous reports about undercover anti-terrorism work, many of the "plots" are crafted and propelled by undercover agents with minimal encouragement and involvement from their targets. How much trouble do these cops stir up just to maintain cover and justify their efforts?  

One of the large, undiscussed questions of such surveillance is how civic dialogue can be influenced or distorted by police agents — perhaps as provocateurs, or possibly with no motive beyond maintaining cover. During the Republican convention, after a group making a film was arrested, a redheaded man standing on the street pounded on the back window of a police van, urging that the people inside be let go. A day later, the same man was videotaped being briefly put under a fake arrest, leading to tumult in the street from others who objected to his incarceration. They were unaware that the man was an undercover police officer who was walked down the street by uniformed officers, hands behind his back but uncuffed, and sent on his way: catch and release.

The widespread surveillance of non-terrorist, non-criminal entities both undermines the integrity of the infiltrated groups and actually leads to the commission of criminal activities that never would have been attempted if an NYPD officer wasn't there to instigate and encourage this behavior.
http://www.techdirt.com/articles/20131014/10160524865/nypd-making-new-york-safer-spying-bicyclists-relief-efforts-republicans.shtml

DOJ argues no one has standing to challenge our governments spying on citizens:

The government has filed a brief arguing that EPIC's complaint should be routed through lower courts first. The government's rebuttal leans heavily on procedural arguments, first pointing out that only the federal government itself or the entity receiving the FISC orders can challenge these orders. In addition, the government points out that the law creating the FISA Court does not provide protection to third parties like EPIC.

It also argues (as it has successfully in the past) that EPIC can't prove it has suffered harm from the collection of its phone data.  

Further, the government contended, EPIC has not offered proof that it could satisfy the requirements of the Constitution's Article III as a party with a specific claim to an injury as a result of government action.

Notably, the government isn't arguing that EPIC can't prove its metadata was obtained. Snowden's first leak eliminated that issue. Instead, it's arguing that no citizen or entity other that the entity the records were obtained from has standing to sue or otherwise challenge FISA court orders.

But the government has gone even further, playing both sides of the issue in order to both continue to acquire the bulk records and prevent anyone from challenging the collection. The government wants to enjoy all of the benefits of the bulk collection without suffering from any of the drawbacks. So far, this has paid off. Its arguments are inconsistent (to put it mildly), and a recent court case involving a convicted terrorist may test the limits of its arguments. 

What the government is doing in Moalin's case is highly hypocritical. 

Seven months after his conviction, Basaaly Moalin's defense attorney moved for a new trial (PDF), arguing that evidence collected about him under the government's recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. Moalin's is the only thwarted "terrorist plot" against America that the government says also "critically" relied on the National Security Agency phone surveillance program, conducted under Section 215 of the Patriot Act.

The government's response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, "regardless of the collection's expanse." Notably, the government is also arguing that no one other than the company that provided the information—including the defendant in this case—has the right to challenge this disclosure in court. 
 
The government has always argued that there's no reasonable expectation to privacy in information handed to a third party like your phone or Internet provider, commonly referred to as the "third-party doctrine." But [EFF staff attorney Hanni] Fakhoury says that in this case, the government is taking an even more aggressive stance. In essence, its argument is that "these records aren't even Moalin's to begin with so he can't complain."  

Fakhoury disagrees "with the idea that the user has no standing to challenge the use of evidence that says something about him" and thinks the government undermines its own argument about who has standing to contest the evidence. "They want to use the phone records to prove a fact about Moalin but then claim that these records aren't his." 

 The government needs this win very badly as it's using Moalin's case to prove the necessity of the 215 bulk records collections. But it wants to do so by arguing that someone who can assert they've suffered direct harm from this collection (Moalin is in jail, after all) doesn't have standing.

The government wants an unchallenged bulk collection and is throwing down every argument it can in order to head off possible challenges, either to the collection itself or to the evidence it provides. The end result is a very thorough abuse of the Third Party Doctrine that, so far, has allowed intelligence agencies to reap all the benefits and suffer none of the consequences. If the government wants to argue that collecting from everyone is no different than collecting one person's records, then it shouldn't be able to turn around and claim no one has standing to challenge the collected data -- either as evidence or the constitutionality of the collection.
http://www.techdirt.com/articles/20131016/06414624894/doj-argues-no-one-has-standing-to-challenge-metadata-collection-even-as-it-says-govt-can-legally-collect-everyones.shtml 

ACLU - Government surveillance shouldn't be kept a secret:

Shocking revelations about creepy government surveillance came in waves over the summer, from the Snowden leaks to the Hemisphere Project, through which the government has paid AT&T for access to a mind-bogglingly vast database of our telephone calls. In many cases of new surveillance technologies like Hemisphere, there are serious constitutional concerns that courts have not yet reviewed.

The ACLU and the Electronic Frontier Foundation filed an amicus brief in United States v. Diaz-Rivera, a criminal case that could present the first opportunity for a court to review the constitutionality of the Hemisphere Project (you can read the brief here).

Hemisphere is deeply troubling, not only because the government is amassing detailed, comprehensive information about people who've done nothing wrong, but also because the government has deliberately kept Hemisphere secret, even from criminal defendants who've been subjected to the program.

The ACLU/EFF amicus brief urges the Court to disclose all sources of the extensive cell phone surveillance conducted in Diaz-Rivera, including the extent to which the government relied on Hemisphere or any other surveillance program in this investigation. Criminal defendants have the right to challenge unconstitutional surveillance programs to which they were subjected, but to do so, they need all the facts. The government should not be able to conduct unlawful surveillance, and then avoid legal challenges by hiding the truth.

What's at stake here? The privacy rights of, well, just about everyone who uses a phone.

As Catherine Crump explained in a piece on Slate, "to locate the tiny number of people who evade law enforcement agents by [frequently changing phones], an AT&T-government partnership is sifting through sensitive phone records of vast numbers of people."

Equally troubling, the government is taking affirmative steps to hide the existence of the program.

According to documents obtained by the New York Times, agents using Hemisphere were "instructed to never refer to Hemisphere in any official document."

Diaz-Rivera is a criminal prosecution for drug distribution and other drug-related offenses. The original indictment named 20 defendants. The investigation relied heavily on cell phone surveillance.

The government disclosed to defendants that it acquired records for almost 750,000 phone calls from 643 unique numbers. But the government has not explained how it acquired all of this cell phone data.

For example, the government provided the defendants with court orders authorizing the collection of call data from only 52 phones; meaning it acquired call data from 591 numbers not specified in any court order.

In addition, the government repeatedly obtained new telephone numbers used by the targets of its investigation, just days after they stopped using old phones, and without any real explanation about how it accomplished this feat.
https://www.aclu.org/blog/national-security-technology-and-liberty/creepy-government-surveillance-shouldnt-be-kept-secret