Bye-bye, Fourth Amendment: Spy agencies feed tips to law enforcement
Human Rights Watch has released a report entitled "Dark Side: Secret Origins of Evidence in US Criminal Cases" (pdf) that describes how spy agencies are feeding tips to law enforcement who then hide the source of the evidence against criminal defendants. The federal government gets around the Fourth Amendment by "deliberately concealing methods used by intelligence or law enforcement agencies to identify or investigate suspects—including methods that may be illegal."
Officials use a practice called "parallel construction" to hide investigative activity from the courts, defendants, and the public, according to the report. They "simply go through the motions of re-discovering evidence in some other way," such as a pretext traffic stop. The "fictions" prosecutors create about their investigations prevent judges from disallowing evidence obtained as a result of an illegal search as "fruit of the poisonous tree."
Agents' actions are made "invisible to courts and defendants" by parallel construction. Human Rights Watch believes "parallel construction risks creating a country in which people and communities are perpetually vulnerable to investigations based on prejudice, vast illegal operations, or official misconduct, but have no means of learning about these problems and holding agents to account."
Obfuscating the tainted source of evidence an everyday thing
HRW's investigation into parallel construction found that the practice is used "frequently, possibly even daily." The government justifies the practice by pointing to "untested government interpretations of US Supreme Court and other cases." The result is that courts are unable to oversee surveillance and other investigative techniques, according to the report. Defense attorneys are unable to determine where the evidence against the defendants originated. Prosecutors claim the NSA and other spy agencies aren't part of their "team," so they aren't obliged to disclose whether spy agencies were involved.
The organization recommends that Congress adopt laws that "require the disclosure to criminal defendants of complete information about the origins of the investigations in their cases, with special procedures as necessary to address classified information or information whose disclosure may jeopardize the lives or safety of identifiable human informants." Judges should be empowered to "ensure that defense counsel have sufficient access to the information to challenge potentially unlawful activity."
Further, the legislation should require that all executive branches be deemed part of the prosecution in all matters that relate to 1) the investigative techniques used by prosecutors, and 2) the release of all exculpatory evidence to defendants. The Justice Department should "prohibit [parallel construction] and publicly disclose all relevant policies and legal interpretations."
Phone apps listen in on your TV viewing habits. The New York Times' Sapna Maheshwari reports in a December 28, 2017, article that games and other smartphone applications use the phone's microphone to identify what you're watching on television. Software that tags along with the apps records audio signals in TV shows and ads. The software, from a company called Alphonso, is designed to "target ads more precisely" and determine which ads spur you to act.
According to Maheshwari, more than 250 games using the software were found on the Google Play store, and many others are offered on the Apple app store. Many of the games that come with the tracking software don't require a microphone to play, and the tracking software is active whenever the apps are running in the background, listening even when your phone is in your pocket.
Alphonso claims the tracking is "clearly explained" in the app descriptions and privacy policies, and consumers can "opt out any time." The software complies with Federal Trade Commission guidelines, according to the company. While Alphonso says it doesn't approve of the tracking software being added to apps intended for children, "more than a dozen" such games were found on Google Play and the Apple app store.
'Side-channel attacks' raise new Fourth Amendment questions. Electronic devices emit all sorts of radiation. Some of these electromagnetic emissions transmit sensitive information that can be picked up by nearby recording devices. Riana Pfeffercorn explains in a September 2017 article in the Connecticut Law Review that "side-channel attacks" using this technique can "extract the system’s secret encryption keys," which defeats the protections of encrypted data and communications.
Pfeffercorn writes that Kyllo v. United States and more recently, Florida v. Jardines, "suppl[y] the touchstone for the legal analysis of side-channel attacks": warrantless searches of the home using "sense-enhancing devices" are unconstititutional. These and other precedents are insufficient to protect U.S. citizens' "privacy interests from erosion by technological advances," according to Pfeffercorn.
On the other hand, the side-channel technique, which is currently used only by the military and intelligence agencies, demonstrates that it is possible for law enforcement to tap into encrypted systems without requiring that a "back door" be built into all encryption mechanisms. In addition, law enforcement agencies aren't the only ones who are likely to use side-channel attacks to tap into our phones and other devices.
Silicon Valley becomes the new, decadent Roman Empire. The tech "brotopia" has been taking a lot of heat lately, and based on the tales told by Emily Chang in a February 2018 article on Vanity Fair, those criticisms are well deserved. Chang writes that the "Silicon Valley Technorati" meet about once a month, on a Friday or Saturday night, for a sex and drug bacchanal that would put the worst of ancient Rome to shame.
Participants, who are not at all ashamed to describe the festivities, are clearly delineated by sex: The men are "powerful first-round investors, well-known entrepreneurs, and top executives... Titans of the Valley, household names"; while the women are "attractive, willing, and (usually) young [and] needn't worry about [their] résumé or bank account... the ratio of women to rich men is roughly two to one." According to one tech-investor participant, "[a]t normal tech parties, there are hardly any women. At these kinds of parties, there are tons of them."
Chang writes that she has been told, "[t]hese sex parties happen so often among the premier V.C. and founder crowd that this isn’t a scandal or even really a secret... it’s a lifestyle choice." The bottom line is that such parties are another way powerful men exploit less-powerful women. Chang quotes one woman entrepreneur about the "unfair power dynamic that's created":
“If you do participate in these sex parties, don’t ever think about starting a company or having someone invest in you. Those doors get shut. But if you don’t participate, you’re shut out. You’re damned if you do, damned if you don’t.”
Chang concludes that "weekend views of women as sex pawns and founder hounders can’t help but affect weekday views of women as colleagues, entrepreneurs, and peers."
I can't help thinking that I spent far too many years working for jerks like this.
Here is where I must disclaim that working for yourself doesn't ensure you won't be working for a jerk -- just that it will be a jerk you have a close, personal relationship with. Plus, my weekend parties are generally comprised of a frozen pizza and a half a six pack. Wild!
See you next Weekly!