As predicted in one of my recent Daily Record articles and in this post in February of 2006, when this blog was in its infancy, the State Department recently approved the use of technology in US passports that allows information stored on the passport to be read from a distance.
Passport cards for Americans who travel to Canada, Mexico, Bermuda and the Caribbean will be equipped with technology that allows information on the card to be read from a distance...The technology would allow the cards to be read from up to 20 feet away. This process only takes one or two seconds, said Ann Barrett, deputy assistant secretary for passport services at the State Department. The card would not have to be physically swiped through a reader, as is the current process with passports.
Gee, that "technology" sounds an awful lot like the "solution" that I reported that the Department of Homeland Security was seeking in my February 2006 post:
• The solution must...identify the exact location of the read such as a specific pedestrian or vehicle lane in which the token is read.
• The solution presented must sense the remote data capture technology carried by a pedestrian traveler at distances up to 25 ft.
• The solution presented must sense all tokens carried by travelers seated in a single automobile, truck, or bus at a distance up to 25 ft. while moving at speeds up to 55 mph.
• For bus traffic, the solution must sense up to 55 tokens.
• For a successful read, the traveler should not have to hold or present the token in any special way to enable the reading of the token's information. The goal is for the reader to sense a token carried on a traveler's person or anywhere in a vehicle.
Tinfoil-hat-wearing conspiracy theorist or eerily prescient? You decide.
This week's Legal Currents column, which is published in The Daily Record, is entitled "I'll need to see your papers,ma'am." The article is set forth in full below, and a pdf of the article can be found here.
“Once the exact identity or some demographics or
other characteristics of the person have been determined,
the person tracking unit relies on this information
to track the person as the person moves
through the roaming areas. The person tracking unit
may assign a tracking number to each identified person
and store the tracking number in association
with the collection of RFID tagged product information.”
— IBM U.S. Patent Application No.
20020165758; Identification and Tracking of Persons Using
In May 2005, as part of the Iraq War/Tsunami relief
appropriations bill, Congress passed the Real ID Act.
This Act, scheduled to go into effect in May 2008, will
require anyone living or working in the United States to
have a federally approved identification card in order to
open a bank account, travel on an airplane, collect Social
Security payments or take advantage of virtually any government
It also is expected that all driver’s licenses will have to be
re-issued by each state to meet federal standards set by
The goal of the Act is to create a 50-state, interlinked database
making the information in each person’s file available
to all states and the federal government. As explained at the
Department of Homeland Security’s Web site (www.dhs.
gov/xprevprot/laws/gc_1172767635686.shtm): “DHS is
proposing minimum standards that will appear on the face
of the card. The proposed regulation would require each of
the following on the face of REAL IDs; space available for 39
characters for full legal name; address of principal residence;
digital photograph; gender; date of
birth; signature, document number; and
machine readable technology.”
Machine-readable technology options available
to the states include Orwellian technology
such as storing fingerprints or retinal scans into
government-owned computer databases or
using identification cards with embedded RFID
RFID chips are a form of embedded technology
that can be detected from up to 25 feet
away. They can be used to pinpoint the location
of pedestrians and individuals in vehicles traveling
up to 55 miles per hour.
In late October, Gov. Eliot Spitzer signed a Memorandum
of Agreement with Homeland Security Secretary Michael
Chertoff that outlines New York’s plan to become one of the
first states to be fully compliant with the Real ID Act.
Reports surfaced in mid-November stating that Spitzer
appears to be backing away from this commitment, however.
I certainly hope so. Our privacy rights are being chiseled
away on a daily basis across the country as the government
continually seeks to obtain increasing amounts of information
while offering less justification for the intrusion. It’s a
slippery slope, and it seems we are barreling down the
mountain at a high rate of speed while the brake lines on
our collective vehicle seemingly have been cut.
Every time I learn of yet another instance of our liberties
being washed away in our endless quest for safety from the
nebulous concept of “terrorists,” I feel an ominous sense of
foreboding. Our country has reached a crossroads and I, for
one, am not at all comfortable with the direction it seems to have chosen. ************ And, now, a video explaining how trackable we all are as a aresult of the devices, such as RFID chips, that are being built into new technologies:
A case that I discussed in March of 2006, when this blog was in its infancy, has made its way to the New York Court of Appeals. The case is Nussenzweig v diCorcia,
2007 NY Slip Op 08783 and involves an Hasidic Jew, a photographer and an art exhibition.
It seems that one of the defendants, a famous photographer, snapped a picture of the plaintiff, a Hasidic Jew, sometime between 1999-2001. The plaintiff was unaware that his image had been captured.
In the Fall of 2001, the disputed image was included in an art exhibition. The plaintiff learned of this fact in March of 2005 and shortly thereafter, commenced this lawsuit alleging that the defendants had violated his statutory right of privacy as set forth in Civil Rights Law §§ 50 and 51.
The Court of Appeals concluded that the lawsuit was untimely, sinnce the statute begins to run from the date of publication, rather than the date of discovery of the publication:
Pursuant to CPLR 215(3), "an action to recover damages for . . . libel, slander . . . or a violation of the right of privacy under section fifty-one of the civil rights law" must be brought within one year. In Gregoire v G.P. Putnam's Sons, this Court formulated the single publication rule, which states that a cause of action for defamation accrues on the date the offending material is first published (298 NY 119, 125-126 )...
The policy underlying the adoption of that rule is likewise implicated here and we therefore hold that the single publication rule applies to claims brought pursuant to Civil Rights Law §§ 50 and 51. Because the publishing event giving rise to plaintiff's right of privacy claims first occurred no later than the fall of 2001, more than one year before he commenced suit, plaintiff's claims are time-barred.
Bummer for the plaintiff and for the rest of us. Although we now know that standing around in Times Square is not an unlawful offense, it seems that we're still left to ponder the issue of whether New York's Civil Rights laws apply there.
It's been a while since I regularly posted about civil rights issues. Quite frankly, I think that the news was becoming so depressing that I needed a break from it. But, things are only getting worse and I feel a civic duty to chronicle the dissolution of our civil rights.
Because privacy is so yesterday: Apparently, we, the American People, had better run out and buy neo-con dictionaries now that a " a top intelligence official says it is time that people in the United States changed their definition of privacy." This, as Congress debates whether to revise the Foreign Intelligence Surveillance Act so as to grant immunity to telecom giants facing over 40 wiretapping lawsuits. (AP)
Resistance is futile: The LAPD is mapping Muslim communities so that we can perfect them "map the locations of these closed, vulnerable communities, and in partnership with these communities . . . help [weave] these enclaves into the fabric of the larger society..." (LA Times)
Put on your tin foil hats folks. You're in for quite a ride.
At the outset, I apologize in advance for what I expect will be a lengthy post, but it's out of necessity. And, while it's a bit off the beaten path from my typical subject matter, it arguably falls under the civil rights issues that I occasionally blog about.
Yesterday we received a letter from my kindergartner's school advising that the school district will be participating in a "Survey of Internet and At-Risk Behaviors" in order to provide "Internet safety, information security and cyber ethics education for our students." (Update to clarify post: The survey would be administered at school by teachers after each teacher had received 2 hours of training.) We were advised that we could obtain additional information regarding the survey online. And, of course, we could opt our child out of the survey if we chose to do so.
Sounds good, right? That's what I initially thought, but since my kid is a big fan of routine and predictability, I decided to investigate a bit more before subjecting her to the survey process which might make her uncomfortable, given her particular constitution.
So, investigate I did. I started with the website referred to in the letter--that of the "Rochester Regional
Cyber Safety & Ethics Initiative". I learned that 20 area school districts were participating in this initiative and from the Executive Summary learned that:
The Rochester Regional Cyber Safety and Ethics Initiative (The Initiative) is a
non-profit partnership between the Rochester Institute of Technology (RIT), more
than 20 area school districts, the Diocese of Rochester Department of Catholic
Schools, Cambria Health Alliance (of Harvard Medical School) Division on
Addictions, and regional offices of three national organizations, including: (1) The
National Center for Missing and Exploited Children (NCMEC), (2) the Information
Systems Security Association (ISSA), and (3) InfraGard, a program of the Federal
Bureau of Investigation dedicated to information sharing between public and
private sectors to help protect critical infrastructure. (Emphasis added).
"The problem" being addressed by the initiative was explained as follows:
What is the Problem? Research indicates that cyber offenses among kids are increasing. This includes:
* Academic dishonesty
* Intellectual property theft
* Piracy of music, movies and software
* Online threats and harassment “cyber bullying”
* Credit card fraud
* Unwanted exposure to pornography
* Unwanted solicitations for sex
* Illicit purchasing of prescription and illegal drugs
* Writing and distributing malicious computer code
* Computer hacking.
The objective of the program were explained as follows:
What are the goals and objectives?
• Act inclusively from ‘the ground up with a safer, more secure and responsible computing future in mind
• Create, pilot, implement and evaluate research-driven Internet safety, information security and cyber ethics training for students, parents, educators and the adult workforce
• Position the Rochester Region to assume a national leadership role on this issue and develop a template that can be applied nationally.
On the "Links" page, the organizations listed included the following:
Yesterday, U.S. District Court Judge Victor Marrero struck down the sections of the Amended Patriot Act relating to National Security Letters, as reported in this AP article. From the article:
He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all "be styled to make the validation of the law foolproof."
Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.
He said when "the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty."
Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."
He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.
In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the government or its policies -- a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.
It's a pleasure to read such lofty and accurate language regarding our constitutionally guaranteed civil rights and this administration's blatant violation of the same. And, more importantly, it's about time!
In the past I've discussed New York City's plans to build a "ring of steel" in the form of hundreds, if not thousands of security cameras, around Lower Manhattan. In spite of financial setbacks last summer resulting from a 40% cut in a Homeland security grant, it now appears that the plan may now be moving ahead.
Last week, in a New York Times article, the security plan to be implemented was described as follows:
Mr. Kelly said last week that the department had since obtained $25 million toward the estimated $90 million cost of the plan. Fifteen million dollars came from the city, he said, while another $10 million came from Homeland Security grants, more than enough to install 116 license plate readers in fixed and mobile locations, including cars and helicopters, in the coming months...
The license plate readers would check the plates’ numbers and send out alerts if suspect vehicles were detected. The city is already seeking state approval to charge drivers a fee to enter Manhattan below 86th Street, which would require the use of license plate readers. If the plan is approved, the police will most likely collect information from those readers too, Mr. Kelly said.
But the downtown security plan involves much more than keeping track of license plates. Three thousand surveillance cameras would be installed below Canal Street by the end of 2008, about two-thirds of them owned by downtown companies. Some of those are already in place. Pivoting gates would be installed at critical intersections; they would swing out to block traffic or a suspect car at the push of a button.
Unlike the 250 or so cameras the police have already placed in high-crime areas throughout the city, which capture moving images that have to be downloaded, the security initiative cameras would transmit live information instantly...
The Police Department is still considering whether to use face-recognition technology, an inexact science that matches images against those in an electronic database, or biohazard detectors in its Lower Manhattan network, Mr. Browne said.
Ah yes, I feel safer already. So what if that feeling is illusory, as evidenced by the fact that the ridiculous number of surveillance cameras in London did nothing to prevent the subway bombings or the recent terrorist attacks? Even if the cameras don't protect us in the all-important-reality that we actually live in, at least we feel better about it, right?
And damned if the cameras don't help us to catch the bad guys after the fact! We may not be able to prevent a future attack, but at least we can locate the the bad guys that caused it! And then, we can fry 'em to boot!
Take a deep cleansing breath. Do you smell that? No, no, not the smell of the bad guy's burning flesh. The other smell. You smell it now? The sweet, sweet smell of vindication. Vindication to the tune of 25 million dollars or more.
Hey, it's a lotta cash, but, it's the price we've got to pay to ensure that we'll never, ever die, no matter what. Or, at least if we do die in Lower Manhatten, rest assured it will be caught on tape, in real time, as it happens.
You may recall that one of my recent Legal Currents articles for the Daily Record focused on Gov. Spitzer's proposal to broaden the DNA database. The article was entitled "Distracted by bright and shiny objects?" and can be found here.
I recently received an email from a regular reader who informed me of a decision by the United States Court of Appeals for the 2d Circuit in US v. Amerson, Docket Nos. 05-1423-cr; 05-1063-cr, in which the Court concluded that the collection of DNA from probationers convicted of non-violent federal crimes pursuant to the DNA Analysis Backlog Elimination Act
10 of 2000 (“the 2000 DNA Act”), Pub. L. No. 106-546, 114 Stat. 2726 (2000) does not violate the probationers' 4th Amendment right to be free of unreasonable searches and seizures.
In upholding the DNA collection, the Court relied on the "special needs" exception to the Fourth Amendment, a doctrine which I have examined in the past here and here:
This Court and the Seventh Circuit, on the other hand, have applied the “special9
needs” test to uphold the constitutionality of earlier DNA indexing laws...
(W)e (will) analyze the constitutionality of the 2004 DNA Act as it applies to
16 Appellants under the two-prong special-needs approach. First, in Part I, we consider whether thesearch and seizure is justified by a special need beyond the ordinary needs of normal law
enforcement. Concluding that under Nicholas it is, we examine in Part II whether the search was
reasonable in light of that special need. We do so by weighing the government’s interest against the
intrusion on the Appellants’ privacy interests...
While we do not hold that a probationer has no expectation of privacy in his or her identity,we agree that, like all convicted felons, a probationer’s expectation of privacy in his or her identity is severely diminished...As a result, we conclude that for probationers, as for
4 the incarcerated felons in Nicholas, “[g]iven that the state likely already has a plethora of identifying
5 information about [them], in light of their status as convicted felons,” id., the additional intrusion
6 of privacy entailed by the taking of the DNA sample is small...
(T)he government’s interest in getting appellants’ DNA
5 samples is not much attenuated by the fact that appellants are non-violent felons. And appellants’
expectation of privacy (as probationers) is no less diminished than that of other categories of probationers. Nor is the degree of intrusion any greater for appellants than for others as to whom
DNA testing has been upheld. Under the circumstances, the reasonableness balance can only come out one way...
Taking and storing samples of DNA under the restrictions of the DNA Act fulfills many important governmental interests, only some of which are limited to the criminal history of the subjects of the DNA testing. The invasion of privacy, both immediate, and long term, from DNA testing of convicted felons—even those convicted of non-violent crimes and sentenced only to probation—is, given the safeguards of the 2004 DNA Act, relatively small. Accordingly we conclude that the 2004 DNA Act, as applied to appellants, does not constitute an unreasonable search or seizure and hence does not violate the Fourth Amendment.
Needless to say, I disagree with the Court's conclusion. As in the cases relying upon the special needs doctrine that I'd discussed in the past, the special needs doctrine should be inapplicable in this case since it is obvious that the primary purpose of collecting DNA is law enforcement--a recognized exception to the special needs doctrine.
The defendants/appellants disagreed with the Court's decision as well, and as such will be filing a petition for certiorari with the United States Supreme Court in July.
I'll keep you advised as to any developments in this case.
This week's Legal Currents column, which is published in The Daily Record, is entitled "Lady Law Is Not Entirely Inflexible." The article is set forth in full below, and a pdf of the article can be found here.
I always thought that George Orwell’s novel
1984 was, at most, a disturbing work of fiction.
Inexplicably, in the wake of 9/11, many
aspects of the horrifying and surreal society
described in Or-well’s most famous novel have
become reality in America.
Pervasive video surveillance is one of the more obvious
and disturbing manifestations of this fictional work. In
many cities across America, intricate video surveillance networks,
both publicly and privately owned, are being established
to capture the day-to-day activities of ordinary citizens.
By way of example, in 1998 there were only 769 surveillance
cameras in New York City. Today, it is estimated that
there are more than 10,000, with more being added each
day. At this rate, the city will soon catch up to London,
which has more than 500,000 video surveillance cameras
monitoring citizens’ every move.
Other cities throughout the country are following in step
and our fair city of Rochester is not immune to the phenomenon:
In November 2006, Roch-ester was awarded
funding to establish a video surveillance network and the
Rochester Police Department is in the process of implementing
a surveillance system.
Some fear that at this rate, in just a few years, the United
States will soon have more surveillance cameras within its
borders than the 4 million video cameras currently installed
Proponents of video surveillance contend “video never
lies.” Recent court decisions suggest that the appropriate
inquiry is not whether video is truthful, but rather, what isthe meaning of the images portrayed on video?
In the recent U.S. Supreme Court decision, Scott
v. Harris, no. 05-1631, the answer to this inquiry
was, not surprisingly, that reasonable minds can
In Scott, the court viewed videotape of a high
speed chase and concluded that: “[W]ith regard
to the factual issue [of] whether respondent was
driving in such fashion as to endanger human life
… [r]espondent’s version of events is so utterly
discredited by the record that no reasonable jury
could have believed him.”
The decision was reached despite the fact that
the 11th Circuit Court of Appeals viewed the tape
and concluded there were issues of fact concerning that issue,
as Justice John Paul Stevens did in his dissent.
Similarly, in a recent First Department decision, Rivera v.
City of New York, 2007 N.Y. Slip Op 04153, videotape of a
protest, which resulted in arrests the plaintiffs alleged were
unlawful, was viewed by a jury, the trial court and the First
The jury concluded that the arrest was unlawful and
awarded $80,375,000 to the plaintiffs. The trial court agreed
with the jury’s factual findings, but determined the award to
be excessive, reducing it to $635,000.
The First Department, after watching the same videotape
viewed by the jury and the trial court, vacated the judgment
and dismissed the complaint against the defendants, concluding
that: “Any rational person, objectively looking at the video
and reviewing the other evidence, would find the police more
than justified in their concern that this episode might escalate
It would seem that the lesson to be learned is that while a
video never lies, interpretations of its content can be drastically
In the post-9/11 era of increasing video surveillance, is it the
new rule of law that, when facts can be gleaned from videotape,
the interpretations of judges on higher courts trump the less rational perspective of lower court judges and juries? Will
the need for juries and lower courts be erased with the advent
of increasingly invasive and pervasive video surveillance?
Will appellate judges take on the role of Big Brother and
decide the facts for us?
For the sake of our country and our judicial system, I certainly
Here's a disturbing CNBC video on how American's lives are being monitored by our government and by private parties.
And, the following video is an NBC report on the use of "talking" video surveillance cameras in the UK. The wave of the future for the US, perhaps? Let's hope not.
An article that I highlighted in today's legal news round up caught my attention--the New York Times article about Governor Spitzer's new plan to expand New York's DNA database.
From the article:
The governor’s proposal would order DNA taken from those found guilty of any misdemeanor, including minor drug offenses, harassment or unauthorized use of a credit card, according to a draft of his bill. It would not cover offenses considered violations, like disorderly conduct.
In expanding its database to include all felonies and misdemeanors, New York would be nearly alone, although a handful of states collect DNA from some defendants upon arrest, even before conviction...
The bill would make it easier for prisoners and defendants to obtain court orders to have their DNA tested against evidence collected in their cases and to have that evidence tested against the entire database of DNA, aides to the governor said.
It also would allow prisoners who have pleaded guilty to seek DNA testing that might prove them innocent, the aides said; some judges now decline such requests.
For the most part, I've been a big fan of much of the legislative initiatives of our new governor. But, on this one, he's showing his prosecutorial stripes.
The idea that the State will possess the DNA of everyone convicted of a felony and misdemeanor is alarming, to say the least. The civil rights implications of this bill are huge.
I'm sure that everyone reading this blog is relatively close with at least one person who has been convicted of a misdemeanor. People of all walks of life have run ins with the law at some point in their lives. The alleged risk posed by one-time misdemeanor offenders does not warrant the extreme intrusion of the collection and storage of their DNA.
While the premise underlying the section of the proposed legislation that would make it easier for prisoners to obtain Court Orders to prove their innocence via DNA is certainly admirable, it's just a red herring as far as I'm concerned.
If the true motivation was to make it easier for the innocent to prove their innocence, then why not simply propose legislation focused on that goal alone? Well, gee--because that's just a carrot being dangled in front of the "liberal" defense bar in an attempt to distract us with bright, shiny objects.
Nice try, Governor. While I approve of much of what you've done thus far, this particular proposal does not impress me, shiny as it may be. As a working mother, I'm easily distracted, but it's gonna require more than a little orange carrot tacked onto Big Brother-esque legislation to do so.