Demanding to know when, why, and how police are using mobile phone location data and deploying other surveillance technologies to track the people they are responsible for protecting and serving, the ACLU of California sent requests to more than fifty law enforcement agencies across the state today.

Today’s requests are part of the ACLU’s Demand your dotRights Campaign, designed to make sure that as technology advances, our privacy rights are not left behind. The Public Request Act inquiries are being filed in coordination with 33 American Civil Liberties Union affiliates across the nation.  

“The public has a right to know how and under what circumstances their personal information is being accessed by the government," said Peter Bibring, staff attorney with the ACLU of California. "A detailed history of someone's movements – or the email and photographs stored in their mobile device - is extremely personal and exactly the kind of private information that the Fourth Amendment was written to protect." 

In addition to the collection of mobile phone location data, the ACLU of California is asking the same questions about law enforcements’ use of information gathered from social networking sites, book providers, GPS tracking devices, automatic license plate readers, public video surveillance cameras and facial recognition technology.

Police agencies are being asked for information including:

• Statistics on how agencies are obtaining, using, storing and sharing personal information;
• The stated purpose for gathering personal information, guidelines on how long the data is kept, when and how it is deleted, and whether privacy safeguards exist;
• Training curricula, policies or protocol provided to officers to guide them in the use of these powerful new surveillance tools, including the capture of information from social networking sites like Facebook and Twitter; 
• Whether police demonstrate probable cause and obtain a warrant to access mobile phone location data and to collect other detailed personal information, or take a dragnet approach that captures data on individuals who are not suspected of wrongdoing; 
• The effectiveness of the use of digital surveillance in identifying or arresting suspects.

“Unless we require transparency on the part of police agencies, powerful new methods of surveillance will become powerful new methods of invading our privacy,” said ACLU of California attorney Linda Lye.

Privacy is a top concern for mobile phone users for good reason:

• In just a 13-month period, Sprint received over 8 million demands for location information; Michigan police sought information about every mobile phone near the site of a planned labor protest; 
• This spring, researchers revealed that iPhones were collecting and storing location information; 
• Just last week, the general counsel of the National Security Agency suggested to members of Congress that the NSA might have the authorityto collect the location information of American citizens inside the U.S. 

With Congress considering new legislation to better safeguard location information and the U.S. Supreme Court poised to hear a case about the privacy of location data in the context of GPS tracking devices, it is essential for the American public to have a clear picture about when, why, and how law enforcement are obtaining sensitive location information.

“It’s important to understand whether police agencies are using new surveillance technologies in ways that serve legitimate law enforcement goals and actually make us safer,” said ACLU of California attorney David Blair Loy.  More information about the national effort to collect similar information in other states across the nation is available at: ACLU.org/locationtracking

By Thomas Watkins, Huffington Post
http://www.huffingtonpost.com/2011/08/02/aclu-mosque-lawsuit_n_916627.html
LOS ANGELES — U.S. Attorney General Eric Holder has invoked state secrets rules to prevent information from being released in a lawsuit filed by Southern California Muslims who claim the FBI monitored their activities solely because of their religion.
In a legal declaration filed late Monday, Holder makes a rare assertion of the state secrets privilege, arguing that it could cause significant harm to national security if the government is forced to reveal the subjects of a mosque-surveillance operation in 2006 and describe how the monitoring was carried out.
A judge must weigh the request, which comes after many details from the investigation, dubbed Operation Flex, have already been made public.
The key informant in the case, Craig Monteilh, turned against the FBI and described how his agency handlers taught him to ingratiate himself into the Orange County Muslim community then secretly gather cell phone numbers, email addresses and record conversations.
Monteilh claims the FBI even told him to talk openly about jihad in an attempt to solicit terrorist sentiments from community members. But instead of responding to his violent rhetoric, mosque-goers called the FBI to say they were worried about his statements.
Holder's declaration came in a motion to dismiss the bulk of a lawsuit filed against the FBI in February by the ACLU of Southern California and the Los Angeles office of the Council on American-Islamic Relations. Many of the allegations were based on Monteilh's claims.
The FBI has said it does not initiate counterterrorism operations based solely on a group's religion.
In its filing, the agency said a range of details Monteilh provided for Operation Flex remain properly protected counterterrorism investigative information.
"This includes ... precisely what that investigation entailed and why it was undertaken, the identity of particular subjects, and the reasons they were investigated," the document states. Holder goes on to argue that if individuals knew they were under surveillance, they could "anticipate the actions of law enforcement and intelligence officers, possibly leading to counter-surveillance that could place federal agents at higher risk."
The Department of Justice said in a statement Tuesday it conducted a thorough review "to provide greater accountability for the use of privilege" by invoking it only in seeking dismissal of Monteilh's claims of illegal electronic surveillance.
"Officials specifically looked for a way to allow this case to proceed while carving out national security information, and concluded that some information about the allegations could be made available without compromising sensitive national security information," the statement said.
ACLU attorney Peter Bibring said it was extremely unusual for the government to invoke the state secrets privilege, especially in a domestic case being investigated by a domestic law enforcement agency. The secrecy rules are usually only requested in extraordinary matters overseas, such as the targeted killing by drones or extraordinary rendition.
"The government's position here is the FBI's conduct should be beyond the review of the courts, which would render the protections of the constitution meaningless," Bibring said. "Following the government's argument, any domestic law enforcement operation deemed to effect national security would be beyond review."
Bibring said the ACLU would oppose the government's motion.

A few days after the end of the Pelican Bay hunger strike, I was interviewed on KCRW’s “Which Way, LA?” in the same segment as spokespeople from California Prison Health Services and the California Department of Corrections and Rehabilitation. The CDCR, through Undersecretary of Operations Scott Kernan, tried to defend its reckless and indiscriminate use of solitary confinement; it succeeded only in giving an exhibition in government speak. “Which Way, LA?” host Warren Olney asked Kernan if Pelican Bay prisoners in solitary confinement do in fact “spend at least 22 and a half hours every day in windowless, concrete cells, the remaining time alone in concrete exercise yards.”
Parsing Kernan’s answer should have yielded, at some point, either a yes or no. Kernan started by stating that “solitary confinement is a word that’s used . . . loosely . . . ”
But instead of explaining how he thought the word has been misapplied to Pelican Bay, he just reverted to the talking point that the guys in “the hole” are the so-called worst of the worst.

“[t]hese inmates again are the most dangerous gang leaders that we have in the state of California and, let the truth be told, in the nation. So these guys are really truly the most dangerous offenders. So we have definitely—Pelican Bay was built to house the worst of the worst. And it is meant to control their movements considerably. . . . So let’s just be very, very clear that these are bad guys, and so we keep them very controlled. But it is not solitary confinement, nor is it torturous behavior as described by some.

Ok, so these guys are the most dangerous, the worst of the worst. But are they in fact kept in windowless, concrete cells for 22 and a half hours a day?
A couple minutes later, when Kernan suggested that there was no overcrowding at Pelican Bay because the inmates are housed in single cells, Olney pressed the question one more time: “Well, are those single cells, in fact, windowless concrete cells, and are they required to stay there 22 and a half hours a day?”
Kernan responded: “Um, well, they have programming, I don’t know if I would say 22 hours, 22 and a half hours a day, but, probably very close to that.” This is a sizeable number of words to say, in effect, "yes."
What could be the point of Kernan’s filibustering other than to avoid the real questions: Does it benefit public safety to house inmates in a concrete box? How do people react to extreme isolation? Is it inhumane to isolate a person in a windowless concrete cell for 22.5 hours a day for months, years, or even decades?
Mr. Kernan elected to end his interview rather than attempt to answer.
Hector Villagra is the Executive Director of the ACLU/SC.
 
 
 
Full transcript of Mr. Kernan’s radio interview:
Warren Olney: “Scott Kernan is Undersecretary of the Department of Corrections and [Rehabilitation], welcome back to our program. I understand that you helped to resolve some of these issues. Which of those that I listed were in fact dealt with, and did the state make some concessions?”
Scott Kernan: “I don’t know that I would say concessions; you know, the inmates had a list of demands, we took a look at them, and I think that at the end of the day we realized that as you just described a watch cap in inclement weather and a wall calendar didn’t pose significant security concerns and so those changes were made. We’re also looking at a number of things including the very complicated gang validation process. I’d also just point out to you that the inmates at Pelican Bay that started this are there because of their behavior. These are the gang leaders that are running the various prison gangs and as such are the scourge of society in our prisons. A lot of violence associated with it. So anyway we did evaluate it and we did make some changes to our policy and we’re going to look at the other changes that the inmates desire moving forward.”
KCRW: “What about at the other prisons?”
Scott Kernan: “Well really it was, again, generated by inmates at Pelican Bay. So the central issues were related to them and it really is a illustration of the power that these guys represent over other offenders. For at the height of it, six thousand, sixty-five hundred or so, at 13 prisons, although that dissipated very quickly, and really the core hunger strikers were probably under a hundred at Pelican Bay.”
KCRW: “It’s been reported that at Pelican Bay many prisoners are in solitary confinement, and then when they are they spend at least 22 and a half hours every day in windowless, concrete cells, the remaining time alone in concrete exercise yards, are those things true?”
Scott Kernan: “The solitary confinement is a word that’s used, I guess, loosely, a little bit. These inmates again are the most dangerous gang leaders that we have in the state of California and, let the truth be told, in the nation. These guys are running the Mexican mafia, the Nuestra Familia, the Black Guerilla family, the Aryan Brotherhood.” So these guys are really truly the most dangerous offenders. So we have definitely—Pelican Bay was built to house the worst of the worst. And it is meant to control their movements considerably. I mean these inmates are not there at Pelican Bay for just not obeying simple rules. They’re in there for murdering inmates, and for you know following through with their criminal enterprises on the street. So let’s just be very, very clear that these are bad guys, and so we keep them very controlled. But it is not solitary confinement, nor is it torturous behavior as described by some.”
KCRW: “There’s a panel of federal judges that have said the conditions within the prisons violate the constitutional ban on cruel and unusual punishment. Did they single out the kind of treatment that I described?”
Scott Kernan: “No, not at all. The court decision that you described is overall overcrowding in the system, and the fact that Pelican Bay inmates are largely single cell because they’re so dangerous. They’re one of the few areas that we have very reduced overcrowding, while the courts ruled that overall the Department’s population is overcrowded leading to those constitutional violations; it had nothing to do with the SHU specifically at Pelican Bay or any of the other SHUs that we have in the state.”
KCRW: “Well are those single cells, in fact, windowless concrete cells and are they required to stay there 22 and a half hours a day?”
Scott Kernan: “Um, well, they have programming, I don’t know if I would say 22 hours, 22 and a half hours a day, but, probably very close to that. They get an hour a day of yard and showers and if they have to go to they can have visits and go to medical appointments and the like but it is, it is stark correctional environment for our most dangerous offenders.”
KCRW: “Most dangerous as they are, there are those who say that conditions of that kind can produce panic attacks, depression, inability to concentrate, memory loss, aggression, self-mutilation, and various forms of psychosis. Is that true? And even if they are worst of the worst, is it appropriate to have those kinds of consequences?”
Scott Kernan: “Interesting question. The federal courts have been in the Department of corrections and rehabilitations mental health process for a long time and none of the inmates that are involved in this hunger strike at SHU, we don’t allow mental health inmates to be there. So any inmate that had any kind of mental health concern would not be housed in the SHU at Pelican Bay.”
KCRW: “Ok, so how long do you think it will take to resolve these other issues with what, you don’t want to call solitary confinement, and also with the question of gang validation which they complain as though I understand it that it takes so long that they’re then accused of being snitches when they get back into the general population or anywhere near it. I suppose if they’re confined to single cells they’re not really in the general population. What about those issues? Will that take you longer to resolve?”
Scott Kernan: “It’s a little bit more complicated than that. What they’re referring to is about the debriefing process is that when an inmate wants to get out of SHU and wants to disassociate himself with the gangs he can do so and he has to go through a debriefing process. And in that debriefing process he must identify criminal behavior that he’s been involved in, and others. The SHU inmates are taking umbrage with that suggestion, that that’s not appropriate. We completely disagree and if you talk to the inmates that have went[sic] through the debriefing process and got out of the gang life, they will tell you that the debriefing process, we get it right a hundred percent of the time. So you know while we’re going to look at all these issues, we definitely think that there could be some changes to the validation and debriefing process but we’re going to do that with the input of not only the stakeholders of the inmate side but the stakeholders of the law enforcement and the gang investigators that work so hard every day to protect our streets and our prisons.”
KCRW: “Okay, well thanks for being on our program."
Scott Kernan: “Thank you.”
KCRW: “Scott Kernan, Undersecretary of the California Department of Corrections and Rehabilitation, elected not to talk with any of our other guests.”