taking photographs = obstruction ?

Typos notwithstanding, this is a pretty interesting video from Glass Bead Collective, documenting a Critical Mass Ride in March 2007 where the police arresting bicyclists and then the people who were photographing them arresting the bicyclists.

I recently helped write a motion for someone who got arrested and arraigned on the charges of Obstruction of Government Administration in the Second Degree (P.L. § 195.05) and then resisting arrest (P.L. § 205.30). What did the facts allege? That when the police were doing an "investigative sweep" in a building, he stood up and then didn't sit back down. He also asked what was going on, objected to being told to sit down and asked why they wanted him to sit down, specifically "WHAT’S GOING ON? WHY DON’T TELL US TO SIT DOWN." When the police went to arrest him for that conduct, they allege he resisted arrest by flailing his arms and body and tucking his arms underneath him.  Mind you, that's not -his- story (I can't and won't say anything about that because of confidentiality),  that's just what the complaint alleges. And unlike the people in this video, his charges weren't dismissed or ACD'ed (Adjourned in Contemplation of Dismissal). At least not yet - that's why we wrote a motion.

When it often takes over 24 hours go to through arraignment, it really makes you think twice about doing anything except keeping quiet and complying when it comes to -any- interaction with the police. Even if you're lucky enough to eventually be vindicated (Let me note that an ACD for this kind of offense usually isn't sealed until after 6 months, by the way) you still have to go through a pretty horrible process. In this case, the people affected are trying to use the video to make the NYPD accountable by going through the Citizen Complaint Review Board, but apparently are having no luck. By the way, there are some pretty interesting stories on the Case Profiles Page of CCRB.




(Found on Boing Boing.)

Fingerprinting of all visitors to US upon entry and exit

From the Washington Post:
"The U.S. government today will order commercial airlines and cruise lines to prepare to collect digital fingerprints of all foreigners before they depart the country under a security initiative that the industry has condemned as costly and burdensome."
. . .
"Launched after the Sept. 11, 2001, terrorist attacks, US-VISIT is intended to automate the processing of visitors entering and exiting the country, using fingerprints and digital photographs to help find criminals, potential terrorists and people who overstay visas and join the nation's illegal immigrant population."

NYPD v Stormtroopers

Geek Treat:
Gothamist linked to these great photos of the NYPD with a stormtrooper outside ComicCon in NYC last weekend.

Crawford Right to Cross Examine - does it apply to murder victims?

Check out this Article in the Washington Post describing the issue presented in Giles v. California, which was discussed in the Supreme Court on April 22nd. Here is the full oral argument transcript (in pdf).
The basic question is this: Is the prosecution allowed to put in statements made by murder victims before they died or is that a violation of the defendant's 6th amendment rights since they are unable to cross-examine the dead "speaker"?

Under the Crawford case, decided in 2004, a defendant has the Sixth Amendment right to confront witnesses when their statements are used against them. But here, the witness is dead, so obviously cannot be confronted. The Crawford case originally contained an exception to the rule when the defendant killed the witness for the purpose of keeping them from testifying.

Here - the woman's statements were accusing the defendant of having "viciously attacked. . . and having threatened her at knifepoint and having threatened to kill her." They were made to the police after a prior assault, but since Giles was never arrested or charged with that assault - the prior Crawford exception doesn't seem to apply.

In argument, Ginsburg makes some interesting points about how the defendant, claiming self-defense, was able to make statements about the victim so her statements might be considered as rebuttal to those statements. But as Scalia pointedly asks, "Is there a rebuttal exception to the hearsay rule?"

And as a silly aside, Justice Breyer makes a great allusion to how witches were tried by dunking under water... and I just -have- to make the Monty Python reference ... "Very small rocks"

Lower Manhattan surveillance - from Wired Security

Check out this article about security and surveillance in the financial district of manhattan from Wired Security.

"But the financial district is a special case, and in June 2006 the NYPD announced a three-year, $106 million plan called the Lower Manhattan Security Initiative. Its centerpiece is an array of 3,000 cameras that will turn the area into a 1.7-square-mile, open-air Panopticon."

"New York's cameras will do more than identify terrorists after they've struck. The new cameras will be fully networked, with video-intelligence algorithms that aim to spot potential attackers before they perpetrate their crimes."

Feds to collect DNA from every person arrested

The Washington Post (registration required) reports that federal authorities now plan to collect DNA samples from anyone arrested by a federal enforcement agency. This is a massive expansion from the current policy - which collects DNA only from convicted felons.

"The initiative, to be published as a proposed rule in the Federal Register in coming days, reflects a congressional directive that DNA from arrestees be collected to help catch a range of domestic criminals. But it also requires, for the first time, the collection of DNA samples from people other than U.S. citizens and legal permanent residents who are detained by U.S. authorities."

"Reuters - "The initiative, to be made public within days, will add genetic information on more than 1 million people per year to a DNA database run by the Federal Bureau of Investigation"
AP News Story - "The proposed rule is being published in the Federal Register. That will be followed by a 30-day comment period."

Let's stop and think for a moment about what this means. Any time after someone is arrested, this DNA sample is taken. Not after arraignment, not after indictment, not after conviction, not after a probable cause hearing, not after the person has talked to their lawyer or seen a judge. This means every single person ever arrested by the feds will have their DNA taken and stored. More than 1 million people per year. Wow.

So here's the part where we can do something:
How can I use the Federal Register to affect Federal rulemaking?
"Any person or organization may comment on it directly, either in writing, or orally at a hearing. Many agencies also accept comments online or via e-mail. The comment period varies, but it usually is 30, 60, or 90 days. For each notice, the Federal Register gives detailed instructions on how, when, and where a viewpoint may be expressed. In addition, agencies must list the name and telephone number of a person to contact for further information."

So, once this rule gets published in the Federal Register, I'll post the instructions they provide on how to submit comments on the rule.

bill proposing federal funds for public school surveillance

According to this article from Wired Threat Level, federal legislators will be be holding a hearing this thursday on a proposal to allow public schools to use federal money for surveillance.

The House website says:
"Thursday, 04/17/2008, 10:00 AM - 2141 Rayburn House Office Building, Subcommittee on Crime, Terrorism, and Homeland Security: H.R. 2352, the “School Safety Enhancements Act of 2007”

Here's info about the bill on govtrack.us, and on washingtonwatch.com and most importantly here's the text of the bill on thomas.loc.gov: in pertinent part:

"Section 2701 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3797a) is amended--

(1) in subsection (b)--

(A) in paragraph (1), by inserting `surveillance equipment,' after `detectors,';"

Also check out this press release from the sponsor of the bill, Steve Rothman (D-NJ) from when the bill was introduced last year. You may notice he mentions the addition of the "tip line" to report students, but doesn't mention surveillance.

Overheard in NY: photography in the subway

"What's it called when the Government Does it?"
Cop: You can't take pictures in the subway.
Cameraman's friend: Why not?
Cop: It's against the law.
Cameraman's friend: Why is that?
Cop: Ever heard of a little thing called terrorism?

--High Street Brooklyn Bridge A/C Station
http://www.overheardinnewyork.com/archives/014302.html

This Overheard in NYC from today made me stop and wonder. Wait. -Is- it illegal to take photos on the subway? As far as I can tell, no!

There WAS a proposed regulation back in 2005,
See USA Today, Transit Agency Wants to ban subway photos, June 6, 2004
And apparently, the police did some preemptive enforcement:
NYTimes: Police Waste No Time in Disallowing Subway Photos, May 22, 2004

BUT, the proposed regulation got shot down!
NPPA: Proposed NYC Subway Photo Ban is Dead, May 23, 2005
“In the wake of the public comments period, after consulting with the New York Police Department, which had originally requested the rule change, MTA NYC Transit will not go forward with the institution of a photo ban,” Transit Authority spokesperson Charles Seaton told The New York Daily News on May 22. In the same story The News also quotes NYPD deputy commissioner Paul Browne who says, “We are not pressing for a ban. Our officers will continue to investigate, and intercede if necessary, if the activity – photo-related or not – is suspicious.”

But forget media, let's go straight to the source: The MTA Rules of Conduct

Section 1050.9, Restricted Areas or Activities
Photography, filming or video recording in any facility or conveyance is permitted except that ancillary equipment such as lights, reflectors or tripods may not be used. Members of the press holding valid identification issued by the New York City Police Department are hereby authorized to use necessary ancillary equipment. All photographic activity must be conducted in accordance with the provisions of this Part.

So, either someone is getting creative with their Overheards (not the first time, of course), or a police officer is getting creative with their law (also not the first time.)

recidivist subway grinder

Here's a story about a guy who keeps getting busted for grinding up against women in the subways. (Gothamist, Daily News) This was his 29th arrest for a sexual offense. "He's a recidivist transit grinder," said Assistant Manhattan District Attorney Danielle Contillo.

I've seen some of these incredibly long rap sheets for subway grinders while at Legal Aid. Guys busted for the same conduct many times over the course of years. It starts to raise questions about addiction, deterrence and rehabilitation. Not only are they continuing to do it over and over again, but they are getting caught over and over again.

Is it a matter of the system not doing enough to deter them, or is it a matter of the system doing nothing to address the root cause of their conduct? Clearly - the threat of getting busted, processed and jailed isn't enough to stop this guy.

domestic spying via satellite

Check out this article from the Washington Post (via Slashdot). The upshot: Homeland Security has plans to use overhead sensor imaging (read: satellite surveillance) for domestic purposes soon.

Chertoff said, "Sophisticated overhead sensor data will be used for law enforcement once privacy and civil rights concerns are resolved." Wait. When -whose- concerns are resolved?  Mine? yours? Or someone writing an internal memo for the DOJ? How transparent will this process be?

Chertoff already commented to reps in congress that, "There is no basis to suggest that this process is in any way insufficient to protect the privacy and civil liberties of Americans"

My point is this: our Fourth Amendment rights are, to some extent, circumscribed by our expectations about our privacy. (Katz v. United States and Kyllo) (in layman's terms: if you're trying to suppress evidence from a search you're arguing was unconstitutional, you have to show that you had both a subjective and legitimate expectation of privacy.)

So - it seems to me that if we, as citizens, publicly accept this type of encroachment on our privacy today; if we are aware of this concession and passively accept it.. we are giving up our rights for tomorrow. We are destroying our ability to claim that we had a reasonable expectation that the goverment wouldn't be spying on us via satellite.


(img credit mulley.net)

security cameras in san fran = walk down the block with me...

Check out this interesting article from SFGate and Boing Boing. The SF mayor justifies spending over "$900,000" on surveillance cameras because "they make residents feel safer."  Remind anyone of my last post? The difference between feeling secure and being secure?

"A fascinating study of security cameras in San Francisco has concluded that any effect on they have on crime is incredibly localized, and they only works on certain kinds of crime -- furthermore, the same number of crimes end up getting committed in the long run, just down the street from the cameras." (quoted from http://www.boingboing.net/2008/04/07/cctv-cameras-move-cr.html)

"The only positive deterrent effect was the reduction of larcenies within 100 feet of the cameras. No other crimes were affected - except for homicides, which had an interesting pattern.

Murders went down within 250 feet of the cameras, but the reduction was completely offset by an increase 250 to 500 feet away, suggesting people moved down the block before killing each other."  (quoted from http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/03/21/MN27VNFET.DTL)

Feeling Secure vs. Being Secure

An interesting commentary by Bruce Schneier at Wired about the thought processes that surround decision-making about security. Essentially, he argues that the greater the access to information, the more effective our decisionmaking can be related to security. He also draws the distinction between programs that help us "feel" secure rather than make us actually secure.

By analogy, this concept is applicable to legislative decisions related to privacy and the 4th amendment. The NYC subway bag search policy springs to mind. (see NYTimes article from 2005, and MacWade v. Kelly, 460 F.3d 260 (2d Cir. August 11, 2006).

On a personal note, I know the plaintiff in the MacWade case. He's the brother of a longtime friend. Brendan was in the WTC on 9/11 and I remember talking to his parents that morning when they still hadn't heard from him. He's my hero for being a plaintiff in that challenge to the constitutionality of the NYC bag searches.. even if the program was upheld under the "special needs" exception to the 4th amendment.

congestion plan involves surveillance

The congestion plan for downtown Manhattan that passed the NYC City Council has privacy concerns.

"In order to ensure payment is made for entering the congestion pricing zone, the plan now before the State Legislature would install scores of surveillance cameras to read, record and catalogue the license plates of every vehicle entering Manhattan south of 60th Street. Through this video infrastructure, the city would compile a massive database of information regarding the movements of hundreds of thousands of New Yorkers."

Read more:
http://www.nyclu.org/node/1698
Contact your representatives:
http://ga1.org/campaign/congestionpricing/