Privacy

Monday, Apr 26, 1999 4:00 PM UTC

Privacy pleas

Amitai Etzioni's "The Limits of Privacy" sees civil libertarians as a danger and government as the solution to all our problems.

By Mike Godwin

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Whenever some would-be social reformer tells me that individual rights need
to be balanced against the common good, I get nervous. And when someone
argues that the civil libertarians and privacy advocates have, in their
concern for privacy, constituted an active social harm, I get positively
jittery.

Which is why Amitai Etzioni’s book “The Limits of Privacy” has had me off
coffee for a week.

It was a book I felt I had to read, since Etzioni has become an outspoken and prolific participant in the debates over privacy issues online. His newspaper articles over the past year have dealt with privacy on the Internet (Boston Globe, March 29, 1999), database privacy (New York Times, April 6, 1999) and Internet content regulation (Wall Street Journal, Oct. 14, 1998). Indeed, Etzioni’s growing prominence on these issues is probably why he was a major source for a recent Times story about the privacy issues raised by tracing the Melissa virus’ creator.

Even so, Etzioni’s treatment of privacy issues in his new book came as an unpleasant surprise. The book is disturbing not just
because Etzioni thinks of civil libertarians like me as harmful to the
social order; it’s also troubling because of his willingness to embrace
just about every government initiative that would erode personal privacy — so
long as it can be justified in terms of a valid public concern.

Described in his press materials as “one of the world’s leading proponents
of communitarian thinking,” Etzioni is a sociologist at George Washington
University. But “The Limits of Privacy” is not sociology, nor does it rely on
sociological methodologies — instead, it is expressly a work of policy
advocacy.

Officially, Etzioni wants to
replace the rights talk in American policy and jurisprudence with a
“balanced” philosophy of privacy. Unofficially, his book is aimed at
discrediting those threatening civil libertarians and privacy activists and replacing
them with Etzioni’s “balanced” approach — what he calls “a
contemporary conception of privacy.” If there’s a hell in Etzioni’s
communitarian cosmology, it’s the realm of discourse in which lawyers and
civil libertarians win arguments by invoking individual rights.

Etzioni cheerfully acknowledges that he’s no lawyer himself (he likes to
drop the occasional aside about how irrational the legal system is), but
he’s certainly as tendentious as the most stereotypical litigator. And,
like a lawyer quizzing a witness about the latter’s decision to stop
beating his wife, Etzioni knows that if you ask the right kinds of
questions, the answers will invariably support your case: “To begin a new
dialog about privacy, I have asked … audiences if they would like to know
whether the person entrusted with their child care is a convicted child
molester.” Well, yes, Amitai, I’d kinda like to know that. So I guess I
should be willing to punt this privacy stuff, huh?

The author stacks the deck by beginning his book with discussions of two
cherry-picked issues — Megan’s Law and the HIV testing of infants — where
the interest in protecting the health and welfare of children is
indisputable, and where the countervailing privacy interests are
comparatively weak. He moves on, however, to the trickier issues of
government access to encrypted communications (where the government’s case
for guaranteed access is known to be rather weak, at least as far as actual
evidence goes) and the institution of a national I.D. card (the case for
which is typically framed less in terms of solving a known public problem
and more in terms of providing a raft of public benefits).

The reader who works through Etzioni’s discussions of these issues and thinks she’s got the author pegged as an anti-privacy zealot like David Brin will find she’s been thrown a curve by the chapter on medical records — which Etzioni finds to be too easily subject to abuse by insurance companies and other
monolithic villains of late capitalism. Medical privacy, says the author,
“is in a fundamentally different condition than the other four areas of
public policy studied here … Privacy is unnecessarily compromised without
serving any important public good.”

This last is not exactly a controversial proposition in itself — you can
find a similar view in “The End of Privacy,” a recent book by Canadian
political-science professor Reg Whitaker. Like Etzioni, Whitaker sees a
role for government in policing the excesses of commercial entities that
might misuse our private data. But where the agenda of Whitaker’s book is
mildly Marxist — his primary aim is to outline how technology and
capitalism synergistically fuel changes in the privacy landscape — the
purpose of Etzioni’s book is both simpler and more troubling: It seeks to
justify the role of government in making privacy decisions, whatever those
decisions may be.

Thus, when the issue is government-initiated privacy
intrusions, Etzioni argues that privacy is overvalued when “balanced”
against the public welfare. Yet when government might play a role in
protecting privacy — by, say, regulating private companies’ use of
commercial or medical databases — suddenly Etzioni is nervous about the
threat to privacy. He labels this particular conclusion “the Privacy
Paradox”: He believes that the greatest threat to privacy is not the
state, which is traditionally seen (he says) as the greatest threat to our
privacy, but Big Business, which you need the government to
police.

Maybe Etzioni is right about the relative weight of the threat to privacy
posed by corporations, and it’s true that civil liberties groups tend to
focus more on the threat posed by government. But this is because the Bill
of Rights is, after all, a set of limitations on government action — in
the United States at least, civil libertarians and privacy advocates have
fewer legal tools they can use when the issue is commercial or
nongovernmental intrusions on privacy.

In practice, this means that advocacy
groups like the Privacy Rights Clearing House and the Electronic Privacy Information
Center are forced to rely less on litigation and more
on public statements and moral suasion when corporations act in ways that threaten privacy. (It was such public outcry/education strategies by public interest groups that compelled Intel to
promise customers a way of concealing the serial numbers of PIII chips, and
that forced Microsoft to provide a means of erasing the serial-number
document stamp imposed by recent editions of Office.)

But even when Etzioni has a point, it’s hard to get past his paternalistic
communitarian agenda. You get the feeling as you read “The Limits of Privacy”
that Etzioni is only casually concerned about privacy issues per se; what
he’s really interested in is vindicating the role of government. This is
particularly apparent in the chapter promoting government access to
encrypted communications. Here, the knowledgeable reader will find much that casts doubt on Etzioni’s understanding — not only of encryption but also of the other issues he addresses in this book.

As someone who’s been contributing to the public debate about encryption
and wiretapping policy over the last seven years, I was
startled to find that Etzioni gets some of the most basic details of the
crypto debate spectacularly wrong. Most notably, he confuses key
recovery (the holding of decryption keys by the government, sometimes
referred to as “key escrow”) with public-key cryptography (crypto schemes like PGP, or Pretty Good Privacy, that depend on paired keys, one of which is freely available to the public). Absurdly, he keeps referring to the government’s policy as one of “public key
recovery.” If the keys are public already, you don’t need a
policy to enable the government to “recover” them.

But even if you ignore a howler like that one, you’ll be troubled by the
quality of Etzioni’s analysis, which is grounded in two approaches: a) attempting
to cast doubt on every argument advanced by crypto proponents and b)
accepting uncritically every argument the government advances in favor of
guaranteeing governmental access to private encrypted communications –
especially those arguments couched in terms of the threat posed by drug
dealers and terrorists who may use encryption to escape detection. (One can
imagine a vastly different, vastly better, book whose author was equally
skeptical of both sides of the encryption debate.)

This one-sided approach
results in some peculiar blind spots. At one point Etzioni writes that
“events that have a very low probability but a very high disutility (such
as the terrorist scenario depicted) deserve as much public attention as
those that have a relatively high probability but a relatively low
disutility (e.g., the acts of individual drug dealers or pedophiles).”
Here Etzioni embraces what I have called the Pascal’s Wager fallacy of
the anti-encryption contingent. This fallacy derives from
factoring an infinitely terrible event (the terrorist detonation of a
nuclear device in Manhattan, say) into your risk calculations. The result
is that, regardless of how low the probability of such an occurrence is,
any measure that might prevent it is pseudomathematically justified. For
all Etzioni’s talk of “balancing” rights against the collective good, he
doesn’t seem to get that the balancing doesn’t work when the government
gets to put its finger on the scale.

Etzioni confronts us with a similarly unbalanced “balancing” when he
discusses the now-discredited and abandoned “Clipper chip” proposal. Here’s
how he characterizes the issue: “Initially, the United States offered users
of encryption a choice: They could freely use whatever encryption software
they could find on the market (or the Internet), or they could purchase a
more powerful program (powered by the Clipper chip’s Skipjack coding
algorithm) provided by the U.S. government. The latter would include a key
allowing U.S. law enforcement authorities to decipher the messages.”

Etzioni characterizes the
Skipjack algorithm as “more powerful” because, well, the government assures
us that this is the case. In comparison, he says, nongovernmental
encryption schemes “may be unreliable or include trapdoors [he means
"back doors" -- "trapdoor" has a different meaning in cryptography] that can
be exploited by unknown parties.” In short, he argues that an encryption
technology designed by the government with a known built-in back door is
somehow more secure than publicly available software, based on well-known,
published algorithms, that might have a back door. This is topsy-turvy
reasoning.

The hidden assumption here is that the government means well, so its
guaranteed access to our private communications and data is somehow more
acceptable than the mere possibility (unsupported by actual evidence) that
programs like Pretty Good Privacy may have a back door.

But of course that
assumption is the whole ballgame. If there’s been a common theme in
American political life over the last quarter-century, it has been the
growing consensus on both the left and the right that the government, even
when it indisputably means well, can’t be trusted with too much power.

Let’s assume for a moment that Etzioni is right when he argues that privacy
interests necessarily stand in opposition to the community’s good (although
this is by no means a given — Whitaker notes that individual privacy can
also be justified in terms of its “social or collective value”). Even so,
as law professor Michael Froomkin points out, “this doesn’t allow for the
Leviathan.” That is to say, it’s a mistake to suppose that the collective
power of the state is the same thing as the community.

Etzioni’s writing,
in “The Limits of Privacy” and elsewhere, evinces an unarticulated equation of
“community” and “government” — but few people on the street, including
those who acknowledge the value of government, would accept that equation.
We are not, for the most part, governed by our communities but by our
governments. By cloaking the Leviathan of government in the guise of
“communitarianism,” Etzioni justifies (in the words of EPIC’s Dave Banisar)
“authoritarianism with a happy face.”

In the recent science-fiction novel “A Deepness in the Sky,” Vernor Vinge provocatively hints that societies encumbered with “ubiquitous law enforcement,”
facilitated by universal surveillance, are destined for collapse. But even
if society itself is not threatened by pervasive governmental access to our
private affairs, there’s little question that individuals are.

Look to the
words of Supreme Court Justice Robert Jackson, who, when serving as
attorney general to Franklin Roosevelt, made this observation: “With the law books filled with a great assortment of crimes, a prosecutor
stands a fair chance of finding at least a technical violation of some act
on the part of almost anyone. In such a case, it is not a question of
discovering the commission of a crime and then looking for the man who has
committed it, it is a question of picking the man and then searching the
law books, or putting investigators to work, to pin some offense on him.”

Given the immense scope of both government and private enterprise to peer
into our private lives (and, as Whitaker notes, private databases become
accessible to the government the instant an official shows up at the
database company with a subpoena), the few legal and practical privacy
protections we have begin to seem more precious — not just to civil
libertarians or to former sex offenders or to terrorists or criminal
suspects, but to the rest of us as well. Etzioni maintains
that it’s OK to intrude upon the privacy of criminal suspects because
“Democracies have made a special point, from the Magna Carta on, of
treating suspects as a special category.” What he fails to realize is that
these days we’re all potential suspects.

This is perhaps a partial explanation for the 1996 Harris/Equifax poll and the 1997 Harris/Westin polls, which show that 80 percent or more of
Americans are concerned about threats to their personal privacy. Etzioni
cites these polls in “The Limits to Privacy,” but he does so only to dismiss
them as the product of privacy-advocate scare tactics. I think it’s
unlikely that the majority of the public is relying solely on warnings from ACLU lawyers and privacy advocates; you don’t
have to be a civil libertarian to know which way the anti-privacy winds are
blowing.

If Etzioni is correct about anything, it’s that the tradition of
guaranteeing individual rights against government power has been to place
some individual interests beyond the realm of “balancing” considerations.
The government is not supposed to be able to ask, with regard to rights,
whether it’s good for the rest of us — on balance — if so-and-so gets to
rant from a soapbox in Central Park or if some of us get to keep our communications truly private.

But Etzioni fails to recognize that, to the extent
that each individual right is subjected to a balancing test, it tends to
get erased. State interests are always articulated in rhetorically
compelling ways (save our children from the child molesters!), and the
rights to which they stand in opposition are made to seem abstract,
unimportant or unnecessarily categorical.

Where Etzioni goes wrong the most is in failing to recognize
that the rights we have are themselves already the results of balancing
considerations. The Framers gave us a Bill of Rights not because they
assumed (as Etzioni mistakenly asserts that privacy advocates assume) that
individual rights can be had without any trade-offs. Instead, the authors of
the Constitution believed that guarantees like the Fifth Amendment’s
prohibition of the compelled self-incrimination of criminal suspects, or
the Fourth Amendment’s prohibition of general searches, or the First
Amendment’s protection of the rights of individuals to say and publish
disturbing things, were worth their social costs.

The Framers weighed the
costs and benefits a couple of centuries ago, and the Bill of Rights was
the result. It seems premature for Etzioni to propose a new balance of
individual rights against government prerogatives until he shows a sign of
having fully grasped the old one.

Mike Godwin is staff counsel for the Electronic Frontier Foundation and a fellow at the Media Studies Center. His book, "Cyber Rights: Defending Free Speech in a Digital Age," will be published by Times Books this summer. More Mike Godwin.

Thursday, Apr 26, 2012 5:20 PM UTC

Who owns your tweets?

A judge's decision to uphold a subpoena for an Occupy arrestee's Twitter account raises serious privacy issues

By Natasha Lennard

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Malcolm Harris (inset) and Occupy Wall Street protesters on the Brooklyn Bridge. (Credit: Sam Margevicius/AP/Daryl Lang)

I tweet a lot. Sometimes I feel like I tweet more often than I have face-to-face conversations — and therein lie multiple issues that will not be addressed here (but perhaps one day, in therapy). However, in the course of constructing these 140-character-or-less nuggets of opinion, information or political agitation, never did I give much thought to whether these tweets were mine. It turns out they’re not, in the eyes of the law. For all the clamor about Twitter’s revolutionary potential in the Middle East, we have a reminder right here in New York of its revolutionary limitations.

On Monday, a Manhattan judge ruled that writer, Occupy Wall Street participant and prankster (and, for the purpose of full disclosure, my good friend) Malcolm Harris will not be able to block a subpoena on his Twitter account, including “any and all user information including email addresses” tied to it because, according to the judge, our tweets are not ours at all.

Harris, like me and more than 700 others, was arrested on the Brooklyn Bridge roadway last October in one of Occupy Wall Street’s most headline-grabbing days of action. He, like most of the bridge arrestees, was charged with disorderly conduct (a violation equivalent in legal terms to a traffic ticket) but, refusing to plea out, is taking the charge to trial. In January, the Manhattan D.A.’s office sent Twitter a subpoena. Twitter promptly informed Harris, who decided to fight the subpoena with his lawyer, Martin Stolar of the National Lawyers Guild.

In his decision Monday to deny the motion to quash the subpoena, Criminal Court judge Matthew Sciarrino Jr. revealed some potentially worrisome issues about how the law views our relationship with our tweets, which raise further questions about speech, privacy and self-representation. As Stolar explained to me, the judge decided that Harris has “no standing” to fight the subpoena in the first place — because his tweets (including direct messages, which are not publicly published) are not his, but belong to Twitter. The judge also rejected Stolar’s claim that Harris has a privacy interest in quashing the subpoena.

The question whether an individual has the standing to intervene on their own behalf to fight a subpoena served to a third party (in this case Twitter) is an interesting one. It should come as no shock that our tweets actually belong to the social media company; we agree to as much when we join Twitter and accept its terms of use. However, as Stolar points out, there’s long legal precedent for individuals intervening in subpoenas relating to, but not served to, them. For example, patients often intervene to quash subpoenas served to doctors regarding their medical records. Stolar plans to argue that Harris should have a standing in whether the government can (without a warrant) go through his accumulated, even in some parts deleted, Twitter history. Indeed, as the laywer also noted, the subpoena is both so broad and so vague that it’s hard to know how much access it would grant to Harris’ private messages and communications related to his Twitter account.

Which moves us on to the issue of privacy. It’s true that our Twitter behavior is in the public domain. But does this mean there’s no privacy interest when it comes to handing over the accumulated records of all our Twitter behavior to the authorities? Stolar offers this helpful but striking comparison: Say you have car — all your actions, driving around, parking, etc., are in public. However, the government would still need a warrant to track your car using a GPS to get an accumulated record of all your driving activity. Stolar argues that our accumulated Twitter activity should be equally considered in terms of privacy and what the authorities can or cannot demand access to.

“It’s very annoying that the judge said that no one has a privacy interest in their own communications here, their own speech,” said Stolar. I’d say it’s more than annoying — it’s downright worrisome. It should have long been obvious that Twitter is a powerful but limited tool for radical political organizing and agitating — the social media leviathan readily admits it will turn over information to legal authorities. (To its credit, Twitter has rejected gag orders in order to inform Wikileaks followers that the government had requested their Twitter information.) However, the fact that we as users are (legally) considered to have no standing or privacy interest when it comes to our own Twitter histories should serve as a chilling reminder that the nuggets of tweeted speech we send out — our very social media identities — are very distinct entities from our legal selves and the protections those selves are granted.

Of course, the lesson to take away is to tweet with caution. It’s also worth keeping in mind that, although throwing up some important insights, this court battle began over a charge for marching on a bridge. As Stolar puts it, “It’s prosecutorial overkill; using a sledgehammer to squash a gnat.” Harris agrees. He is (as he tends to be) disappointed in the state and surprised that a Harvard Law-trained ADA’s time is being used to pursue his minor charge. The precedent set, however, should give pause to those of us who live (perhaps too much of) our lives through Twitter.

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Natasha Lennard covers the Occupy movement for Salon. A British-born, Brooklyn-based journalist, she has been covering Occupy Wall Street since before the first sleeping bag was unrolled in Zuccotti Park. One of the first journalists arrested at an Occupy action, she has managed to enrage Andrew Breitbart, Rush Limbaugh and Glenn Beck. You can follow her on Twitter (@natashalennard), and email her any Occupy updates/videos/ideas to natasha.lennard@gmail.com More Natasha Lennard.

Tuesday, Apr 10, 2012 11:45 AM UTC

The drones are coming — to America

Congress has opened up U.S. airspace to the drone industry -- and your privacy is about to be at risk

By Jefferson Morley

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(Credit: Salon)

A drone is probably heading toward your personal airspace soon. With Congress requiring the Federal Aviation Administration to simplify and expedite drone applications from U.S. police departments by May 15, industry and watchdog groups agree: It won’t be long before cops and first responders put them into action.

Thanks to a law passed without much public debate in March, the FAA must allow law enforcement agencies to operate small drones (i.e., less than 4.4 pounds) at altitudes of less than 400 feet. “The demand is huge,” says Catherine Crump, an attorney for the American Civil Liberties Union. Michael Toscano, president of the Association for Unmanned Vehicle Systems International, a trade group, says there are nearly 19,000 law enforcement entities in the United States, of which only 300 now have aerial surveillance capacities.

“Those departments have helicopters which cost about $1,500 an hour to operate,” Toscano says. “You can fly these drones for maybe less than $50 hour. A lot of smaller departments can now afford this technology.”

It is easy to imagine the benefits of having an eye in the sky. “You don’t have to call off a search for a missing person because of darkness or inclement weather,” Toscano says. Using airborne sensors, a drone could pinpoint the most dangerous areas of a fire for firefighters on the ground.

The downside is obvious too. Drones are mostly known for their use in war zones in Iraq and Afghanistan and in the controversial targeted killing of overseas U.S. citizens allegedly involved in terrorism. The introduction of surveillance drones into U.S. airspace signals an unprecedented conflation of homeland security, counterterrorism and domestic law enforcement, a combination that is galvanizing civil society activists.

Technology developed for attacking armed enemies abroad is being repurposed for enforcing the law at home — without any new safeguards for privacy and civil liberties. Domestic drones can engage in constant surveillance from the sky, which the Supreme Court has ruled does not constitute a violation of the Fourth Amendment strictures against unreasonable search. Photographs of political demonstrators could be fed into facial recognition software on a scale previously unimaginable. Drones can also be weaponized with tear gas or tasers for remote crowd control. Michael Buscher, president of Vanguard Defense Industries, a drone manufacturer in Texas, told the Daily that police drones could have “rubber buckshot better available for large crowd dispersal.”

“With these aircraft hovering above our heads, privacy is at risk as drone technology has far outpaced the development of corresponding regulatory laws,” says Eugene Chow, editor of the Homeland Security News wire.

The ACLU’s Crump adds: “There’s no federal law that controls the use of data [collected via drones].”

“The controlling law [for data] would probably be the state equivalents of the Privacy Act,” says Harley Geiger of the Center for Democracy and Technology (CDT) in Washington. “These are very skimpy protections. Part of the reason is the courts have said we have no expectation of privacy if we are standing in a public place or in a place that is observable from a public place. For a drone hovering at 400 or 500 feet, the airspace is considered public space. So if there is a camera up there that can observe you, you have no reasonable expectation of privacy. It’s a completely outdated understanding of privacy.”

Toscano says the drone industry thinks existing laws are sufficient: ”We believe that your Fourth Amendment rights are protected. There are laws in place for what you can and cannot do with a drone.”

“The acquisition of more systems”

The opening of domestic airspace to drones has been driven by industry and the Pentagon without much attention to privacy and civil liberties issues. The drones, first developed in the 1990s, became popular with U.S. military commanders in Iraq and Afghanistan as a way of targeting enemies without risking U.S. soldiers. As those wars wind down, the Pentagon is looking to expand their use outside of war theaters.

“The stuff from Afghanistan is going to come back,” Steve Pennington, the Air Force’s director of ranges, bases and airspace, said at a drone conference in February, according to the Los Angeles Times. The Department of Defense “doesn’t want a segregated environment” for operating drones. “We want a fully integrated environment.”

The integration of drones into U.S. airspace has already begun with the U.S. Customs and Border Protection agency of the Department of Homeland Security, now operating nine drones from sites along the country’s northern and southern borders, according to director Michael Kostelnik, a retired Air Force general. The CPB shares information with Immigration Customs Enforcement and other law enforcement agencies, he said in an interview.

With the emergence of the Unmanned Systems Caucus on Capitol Hill, domestic drones are now backed by the proverbial “iron triangle” of Washington policymaking: congressional committees, executive branch agencies and the private sector. The drone caucus, a group of 53 representatives, 16 of whom come from districts in Southern California and Texas where drone contractors are concentrated, led the push to force the FAA to open the airspace to law enforcement immediately and to the commercial drones by 2015. The caucus defines its mission as educating Congress and the public “on the strategic, tactical, and scientific value of unmanned systems” and to “actively” supporting “further development and acquisition of more systems.”

The caucus enjoys the backing of the defense industry. The co-chairs of the caucus, Reps. Buck McKeon, R-Calif., and Henry Cuellar, D-Texas, received $64,000 and $7,400, respectively, from General Atomics, the firm that developed the first military drones, according to the Center for Responsive Politics. So far during the 2012 campaign cycle the General Atomics PAC has contributed $68,500 to 15 drone caucus members, reports the Texas Independent.

The caucus, in turn, works closely with the drone industry, says Toscano of the Association for Unmanned Vehicle Systems International. “The only changes made to the [unmanned aviation systems] section of the House FAA bill were made at the request of AUVSI,” according to a PowerPoint presentation made by Toscano and obtained by Republic Report. “Our suggestions were often taken word-for-word,” Toscano boasted at the time, a claim he repeated in a phone interview.

And the industry is counting on government agencies to fund the growth of the drone market. For example, Vanguard Defense Industries in Texas advises police departments to obtain Homeland Security funding for the purchase of drones. Vanguard says it helped law enforcement officials in Montgomery County, north of Dallas, obtain money for a drone under the Homeland Security Grant Program, which funds strategies to “address the identified planning, organization, equipment, training, and exercise needed to prevent, protect against, mitigate, respond to, and recover from acts of terrorism and other catastrophic events.”

The open-ended justification of domestic surveillance as “homeland security” is triggering alarm among activists. Knowdrones.com seeks an international ban on weaponized drones and surveillance drones. Code Pink and the Center for Constitutional Rights are sponsoring a Drone Summit in Washington later this month.

“What we have to worry about is closed circuit television or a Trafficam on steroids in which law enforcement can watch everything that is going on in minute detail,” says Geiger. “In the name of public safety, there are lots of people who would be more than happy to put a system like that in the air now.”

The emerging drone market points up the need for a comprehensive privacy law like those of other industrial countries, Geiger says. “If we cannot get baseline privacy legislation, we will need legislation specific to the FAA.” As first steps, he says CDT favors banning weaponization of domestic drones and requiring the FAA to conduct a Privacy Impact Statement. So far Congress has shown no interest in such measures and indeed has barred the FAA from considering any factors other than safety in opening up domestic airspace to drones.

The law is playing catch-up to a revolutionary technology.

“How long will it be before there are enough drones in the sky that the general population starts to notice?” asks Geiger. “There will be thousands of them of them in five years.”

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Jefferson Morley is a staff writer for Salon in Washington and author of the forthcoming book, Snow-Storm in August: Washington City, Francis Scott Key, and the Forgotten Race Riot of 1835 (Nan Talese/Doubleday). More Jefferson Morley.

Friday, Mar 30, 2012 3:32 PM UTC

The spread of “Suspicious Activity Reporting”

Suspicious Activity Reporting asks citizens to keep an eye out on their neighbors -- and it's spreading

By Uzma Kolsy

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(Credit: Warren Goldswain via Shutterstock/Salon)

Crime in Los Angeles is a gritty enterprise, and donning an LAPD badge has historically involved getting your hands dirty. Long before the New York Police Department was spying on Muslim students, the LAPD was running a large-scale domestic spy operation in the 1970s and ’80s, snooping on and infiltrating more than 200 political, labor and civic organizations including the office of then Mayor Tom Bradley. Today, the LAPD isn’t quite so aggressive, but it still employs a directive titled Special Order 1, which permits police officers to deem what is “suspicious” and then act on it.

SO 1 enables LAPD officers to file Suspicious Activity Reports on observed behaviors or activities. Where things get murky, however, is how SAR guidelines categorize constitutionally protected, non-criminal and commonplace activities such as using binoculars, snapping photographs and taking notes as indicators of terrorism-related activity. The SARs are coupled with the LAPD’s iWatch program, a campaign the police pioneered to encourage regular citizens to report “suspicious” activity, including “a person wearing clothes that are too big or too hot for the weather,” or things that just plain old don’t “look right.”

Far from being merely a local phenomenon, the standardized program that the LAPD developed in 2008 served as the lead model for a National Suspicious Activity Reporting Initiative. “Success” stories from the LAPD’s program are used in national training material, and the LAPD touts it as “the first program in the U.S. to create a national standard” for terrorism-related procedures.

According to the Information Sharing Environment, the nationwide SAR initiative “establishes a standardized process whereby SAR information can be shared among agencies to help detect and prevent terrorism-related criminal activity.” Personal data that is collected on these individuals is treated as criminal intelligence. The rapidly expanding and dangerously intrusive network houses personal data on thousands of Americans. “The level and the rate at which local law enforcement is expanding its intelligence-gathering activity is very alarming,” said Ameena Mirza Qazi, deputy executive director of the Council on American Islamic Relations-LA. “We as community advocacy groups hope to continue to work with law enforcement and encourage them to maintain their community policing models working with communities to identify criminal behavior.”

The SAR program’s broad reach extends into every level of the security hierarchy, from citizen policing to federal intelligence agencies. The Minnesota Joint Analysis Center, one of the nation’s 72 “fusion” centers — information-sharing centers created by the Department of Justice and Department of Homeland Security — is where the SAR report on Najam Qureshi, as well as thousands of others, found its final destination. Qureshi was a kiosk owner at the Mall of America, where security guards stop and question, on average, up to 1,200 people each year. He was questioned by guards and later visited by the FBI at home after his 70-year-old father negligently left his cellphone at a table in the mall’s food court in 2007. The FBI prodded Qureshi and his family, asking “how many people they knew in Afghanistan” and if “they knew anyone who might want to hurt the United States.”

“The problem with this program is that the behavior range of what can be reported is so broad that it just lends itself to discriminatory application,” said Jumana Musa, deputy director of Rights Working Group, an advocacy group based in Washington. “When it comes to these innocuous activities, what people are reporting on is not necessarily the activity, but who is doing the activity.”

As a counter-terrorism initiative, the SAR program is already in place in major cities like Boston, Miami and Seattle, and is in the process of being rolled out across the nation by September of this year. The Los Angeles model gives citizens in other places an idea of what they can expect. Between 2008 and 2010, the LAPD shared 2,668 SARs with the local fusion center, which only uploaded 2 percent of them to the database — meaning that the majority of the reports did not have a reasonable indication of criminal activity. Though only a fraction were used by the fusion center, the LAPD retained the remaining 98 percent of its SARs in intelligence files, even though they did not serve as evidence of crime.

This is in stark contrast to former LAPD policy, which mandated that any intel amassed to follow a lead had to be destroyed if reasonable suspicion of criminal activity hadn’t been established. “This is such a drain of resources when there are real crime threats out there where these resources could much better be utilized,” said Michael German, a former FBI agent and currently the policy counsel on national security, immigration and privacy at ACLU National. “The real problem with these systems is that they encourage and cause waste and drive resources away from legitimate investigations.”

According to an independent analysis conducted by the Institute for Homeland Security Solutions in April 2011, analysts “also expressed a desire to obtain feedback on SARs reported to federal agencies on whether the SARs did, in fact, constitute genuine threats; such feedback reportedly occurs rarely, if ever.” The report also found that the majority of thwarted terrorism plots came from investigations into criminal activity as opposed to intelligence gathering. “They’ve created this expensive, and resource-intensive system that has a huge impact on innocent people’s privacy,” said German. “And yet there is no science showing that this is an effective way of going about law enforcement or intelligence gathering.”

The most alarming feature of LAPD’s Special Order 1 is the vague language that lowers the threshold for what can be considered “suspicious,” and does not even meet the already soft federal standards that require “articulable facts and circumstances that [are] … indicative of criminal activity associated with terrorism.” Special Order 1 only requires “articulable facts and circumstances that [are] … reasonably indicative of suspicious activity associated with terrorism.” That single word removes a citizen’s safeguards from harassment, eliminates the requirement of probable cause, and encourages officers to investigate non-criminal activity.

“In using different language, it opens the door to somebody saying this is a lower standard,” said German. “What we’re seeing is a lot of people being stopped, harassed, even arrested for doing no more than taking a photograph.” In some cases, police counter-terrorism training has been proven to be blatantly Islamophobic or hyperbolic at the least, which can color an officer’s perception of a “suspicious” threat.

Take, for example, an incident that transpired in December 2009 in Henderson, Nev. An observant bystander called the police to notify them of a suspicious scene — seven Muslim men were praying in a gas-station parking lot. Praying in a public space is a constitutionally protected activity, and though no illegal conduct was described in the tip, the Henderson Police officers detained the seven Muslims for approximately 40 minutes and searched their vehicle. In a recording of the incident, a police officer expresses that he doesn’t know what they could be praying about and suggests that they could be chanting, “I want to kill a police officer today.” The officers later said that “they were not trained well enough to know how to appropriately respond to Muslim religious behavior.”

With recent revelations about the NYPD’s actions, civil liberties groups are concerned that vague criteria provided in SAR policies puts a bull’s-eye on the Muslim American community. “The program absolutely targets the Muslim community,” said Musa. “But I think the issue is that it could really target any community, it depends on what the threat is that people decide they are looking at.”

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Uzma Kolsy is an activist and freelance writer based in Southern California. She is the former Managing Editor of InFocus News, the largest newspaper in California serving the Muslim American community. More Uzma Kolsy.

Saturday, Dec 31, 2011 2:00 PM UTC

The rise of Facebook Nation

The social network has become as big and powerful as a country -- and it's time its citizens got a constitution

By Lori B. Andrews

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(Credit: ponsulak kunsub via Shutterstock/Salon)

This article was adapted from the upcoming book "I Know Who You Are and I Saw What You Did," available Jan. 10 from the Free Press.

When David Cameron became Britain’s prime minister, he made an appointment to talk to another head of state — Mark Zuckerberg. Yes, that Mark Zuckerberg: the billionaire wunderkind, the founder of Facebook. At the meeting at 10 Downing Street, Prime Minister Cameron and Facebook president Zuckerberg discussed ways in which social networks could take over certain governmental duties and inform public policymaking.

A month later, Zuckerberg and Cameron had a follow-up conversation, later posted on YouTube. Cameron, dressed in suit and tie, chatted with Zuckerberg, who wore a blue cotton T-shirt. “Basically, we’ve got a big problem here,” Cameron pointed out to Zuckerberg, describing the U.K.’s financial woes.

Zuckerberg outlined how Facebook could be used as a platform to decrease spending and increase public participation in the political process: “I mean all these people have great ideas and a lot of energy that they want to bring, and I think for a lot of people it’s just about having an easy and a cheap way for them too to communicate their ideas.”

“Brilliant,” Cameron said.

Within a year, Zuckerberg had a seat at the table with government leaders. In May 2011, he attended the G-8 Summit, the annual meeting of key heads of state (named after the eight advanced economies—France, the United States, the United Kingdom, Germany, Japan, Italy, Canada, and Russia). The media reported that world leaders from German Chancellor Angela Merkel to French President Nicolas Sarkozy were more in awe of Zuckerberg than he was of them.

Zuckerberg summarized how Facebook had played a role in worldwide democratic movements and pressed his own policy agenda — urging European officials to back off of proposed regulation of the Internet. “People tell me, ‘On the one hand, it’s great you played such a big role in the Arab Spring, but it’s also kind of scary because you enable all this sharing and collect information on people,’” Zuckerberg said.

Is it odd to think of Mark Zuckerberg as a head of state? Perhaps. But Facebook has the power and reach of a nation. With more than 750 million members, Facebook’s population would make it the third-largest nation in the world. It has citizens, an economy, its own currency, systems for resolving disputes, and relations with other nations and institutions. After watching the video chat between Cameron and Zuckerberg, I became intrigued by the concept of a social network as a nation. I began to wonder: What kind of government rules Facebook? What are its politics? And, if it is like a nation, should it have a constitution?

People are understandably drawn to social networks. For individuals, social networks allow people to stay in touch, performing some of the same functions performed by telephones and letters in previous eras. But laws protect us against outsiders tapping our phones and reading our private mail. Even prisoners can send mail to their lawyers without having those letters read by prison officials. But everything we post on social networks is fair game for the engineers behind Facebook and any other data miner.

Facebook and other social networks are transforming huge swaths of our lives— how we mate, shop, work and stay in touch with the people we love. They are also changing the political process itself. When John F. Kennedy and Richard Nixon debated on television, concerns were raised that politics would deteriorate into a contest where the most telegenic candidate won. But TV debates took place out in the open — anyone could tune in. And the Federal Communications Commission adopted regulations so that opposing candidates were granted equal time to present their views.

With social networks, it’s not the most telegenic candidate who wins, but the one with the best data crunchers. Barack Obama was swept into office largely because of his presence on the Web. His social network campaign was managed by one of the founders of Facebook, 24-year-old Chris Hughes, who took a leave from the company to help propel Obama into office.

The Republicans did Obama one better and stormed Washington in the 2010 elections through the targeted use of social network data. Data aggregators used data from social networks, such as people’s interest in the Bible, past political contributions, voter registration status, shopping history, and real estate records to identify conservative voters by name and provide that information to Republican political hopefuls. The candidates could then email the people directly, making promises and taking stances that were never revealed to the public — and were shielded from the scrutiny of their opponents.

With not only the rights of individuals at stake, but also the future of the political process itself, it’s time to analyze how we as social network citizens can be protected. What responsibilities should individuals bear? What rules should govern what can be done with our digital selves and our data by the social networks themselves and the third parties who gain access to that information? What rights should social network citizens have?

The complex issues raised by social networks came to the fore after the 2011 British riots. Prime Minister Cameron, who’d previously felt that social network communities were “brilliant,” felt differently once rioters began to communicate with each other via Facebook, Twitter and BlackBerry Messenger to share information about what shops to loot.

“Everyone watching these horrific actions will be struck by how they were organised by social media,” the prime minister told the House of Commons. “So we are working with the police, the intelligence services and industry to look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality. I have also asked the police if they need any other new powers.”

Member of Parliament David Lammy pointed out that rioters had used BlackBerry Messenger to send encrypted and almost untraceable messages to each other. He urged Research in Motion, the maker of BlackBerry, to shut off that service entirely until order was restored in the streets. The prime minister similarly asked Twitter and Facebook to remove messages, images and videos that could incite riots.

Civil rights advocates reacted immediately. “How do people ‘know’ when someone is planning to riot?” asked Jim Killock, the executive director of the online advocacy organization Open Rights Group. “Who makes that judgment?” Legitimate advocacy and well-grounded protests will be stifled if social networks and websites are pressured to censor their members.

Social networks have stunning benefits. But the citizens of Facebook Nation who see those benefits may not realize the downside. The young nation was founded only recently, less than a decade ago. Its original citizens were college students who are probably still too young to have experienced rampant discrimination in jobs, romance or credit lines based on what they’ve posted. They may not yet realize the extent to which their offline self is being overshadowed by their digital doppelgänger.

People came to Facebook Nation for freedom of association, free expression and the chance to present an evolving self. But unless people’s rights are protected, social networks will serve to narrow people’s behavior and limit their opportunities, rather than expand them. Already people are being fired for engaging in perfectly legal activities, such as the wine-drinking employee who is tagged on Facebook. And new norms of behavior are emerging that do not reflect off-the-grid life, such as rules forbidding judges to “friend” lawyers.

Unlike a democracy, Facebook is unilaterally redefining the social contract — making the private now public and making the public now private. Private information about people is readily available to third parties. At the same time, public institutions, such as the police, use social networks to privately undertake activities that previously would have been subject to public oversight. Even though cops can’t enter a home without a warrant, they scrutinize Facebook photos of parties held at high school students’ homes. If they see the infamous red plastic cups suggesting that kids are drinking, they prosecute the parents for furnishing alcohol to minors.

Social networks are taking over many of the traditional functions of government without any legal protections for their citizens. The underlying economic goal of social networks — monetizing personal data — is invisible to their citizens and may in fact be herding them into a land that they wouldn’t want to inhabit.

The U.S. Constitution was penned by philosopher-politicians gravely concerned with the metaphysical question of what was necessary for the flourishing of individuals and society. They understood that living socially and with aspirations meant adopting principles to deal with everything from resolving disputes to encouraging innovation, from structuring relationships with other nations to protecting individual rights.

They recognized the value of protecting people’s privacy and assuring the oversight of governmental actions. They required that the governing rules about the relationship between citizens and the government be clearly stated in advance and not changed without adequate notice and citizens’ input. They favored openness about what the government was doing, believing, as U.S. Supreme Court Justice Louis Brandeis said a century later, that “sunshine is the best disinfectant.” They also saw the value of being able to remake oneself, to start afresh.

Instead of philosophy, computer engineering and data collection are the driving forces behind the policies of Facebook Nation. The quest for more and more information about more and more people is what stimulates the Facebook economy because the service makes its money on data. The executives behind social networks often disregard the values that are central to the U.S. Constitution. The Facebook founders, for example, view the desire for privacy as something to be outgrown. In a 2010 interview, Mark Zuckerberg commented on Facebook’s decision to make certain previously private information public: “People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people.” Former Facebook programmer Charlie Cheever said, “I feel Mark doesn’t believe in privacy that much, or at least believes in privacy as a stepping-stone.”

And the very structure of social networks prevents you from reinventing yourself. Once information about you and photos of you are on the Web, they can be used against you in perpetuity.

As we each begin to live a parallel life on Facebook, it’s time to figure out, as with any new country, what principles should govern this new nation. Do the principles on which the United States and other democracies were founded still resound with people today? Could they provide guidance for the governance of social networks?

The project of proposing a Social Network Constitution may seem foolish. Facebook, Myspace, Google, Twitter, and YouTube are private entities, and the U.S. Constitution governs only the actions of the government, not private actors. But that is not the case in other countries, such as Germany, Ireland, South Africa and the European Union, where the fundamental values expressed in the national constitution can apply to companies in addition to governments. After all, companies may be more powerful than some governments — that’s certainly the case with Facebook.

And even in the United States, the fundamental values expressed in the U.S. Constitution provide guidance for the private realm. The 14th Amendment’s idea of equal protection under the law provided the foundation for Congress to enact civil rights laws that govern the conduct of corporations and private citizens. The Fourth Amendment’s protections for privacy provided judges with the inspiration to allow lawsuits against individuals and corporations that disseminated a person’s private information without consent.

We needn’t think of a Social Network Constitution as a set of rules, like the Internal Revenue Code, that would govern in minute detail what a social network should or shouldn’t do. Instead, think of it as a touchstone, an expression of fundamental values, that we should use to judge the activities of social networks and their citizens. These principles could be used to frame the societal debates about social networks — guiding not only the decisions of citizens about what technologies they should reject but also the decisions of courts and legislatures about what principles should govern.

In many instances, the principles would help courts make a determination in a case, analyze existing laws, and decide whether or not to let evidence in at trial. These values could also guide legislators who are considering adopting new laws to regulate social networks.

The very nature of social networks is constantly changing. New technologies are introduced and individual users face new issues. A set of strict, rigid rules governing the use of social networks might be effective now but will quickly become outdated, just as other laws that are intended to protect people, such as wiretapping laws and consent laws, fail to protect and serve the needs of the current online community. Unlike the rigid, formula-driven Internal Revenue Code, a Social Network Constitution should be flexible and recognize basic principles that we should never outgrow. Its provisions would address the actions of government agencies, social institutions and society at large.

Every democratic nation has governing principles about what rights its citizens have over property, privacy, life and liberty. The citizens of Facebook Nation deserve no less.

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Lori B. Andrews is a professor at Chicago-Kent College of Law and the director of the Institute for Science, Law and Technology. She is the author of 14 books, including "The Clone Age: Adventures in the New World of Reproductive Technology." More Lori B. Andrews.

Thursday, Sep 22, 2011 4:22 PM UTC

NYPD eyed U.S. citizens in intel effort

Police reportedly monitored Americans under no suspicion of wrongdoing, simply because of their ethnicity

By Matt Apuzzo, Eileen Sullivan and Adam Goldman, Associated Press

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A uniform from the NYPD is displayed during a special service to commemorate the 10th anniversary of the Sept. 11 terrorist attacks, at a church in New Plymouth, New Zealand, Sunday, Sept. 11, 2011. The US team will play Ireland in their opening Rugby World Cup game later today. (AP Photo/Dita Alangkara)(Credit: AP)

The New York Police Department put American citizens under surveillance and scrutinized where they ate, prayed and worked, not because of charges of wrongdoing but because of their ethnicity, according to interviews and documents obtained by The Associated Press.

The documents describe in extraordinary detail a secret program intended to catalog life inside Muslim neighborhoods as people immigrated, got jobs, became citizens and started businesses. The documents undercut the NYPD’s claim that its officers only follow leads when investigating terrorism.

It started with one group, Moroccans, but the documents show police intended to build intelligence files on other ethnicities.

Undercover officers snapped photographs of restaurants frequented by Moroccans, including one that was noted for serving “religious Muslims.” Police documented where Moroccans bought groceries, which hotels they visited and where they prayed. While visiting an apartment used by new Moroccan immigrants, an officer noted in his reports that he saw two Qurans and a calendar from a nearby mosque.

It was called the Moroccan Initiative.

The information was recorded in NYPD computers, officials said, so that if police ever received a specific tip about a Moroccan terrorist, officers looking for him would have details about the entire community at their fingertips.

The documents show how New York’s rich heritage as a place where immigrants traditionally have blended in and built their lives now clashes with today’s New York, where police see blending in as one of the first priorities for would-be terrorists.

To prevent attacks, police monitored the path that generations of immigrants followed: getting an apartment, learning English, finding work, assimilating into the culture. Activities such as haircuts and gym workouts were transformed from mundane daily routines into police data points.

A U.S. citizen in Queens, for example, starts work each day at what police labeled “a known Moroccan barbershop.”

The AP previously revealed the secret operations of the NYPD intelligence division as it mapped the Muslim community in and around New York, monitored life in ethnic neighborhoods and scrutinized mosques. The Moroccan Initiative was one of the division’s projects.

Such programs began with help from the CIA under President George W. Bush and have continued with at least the tacit support of President Barack Obama, whose administration repeatedly has sidestepped questions about them. It is unclear whether Mayor Michael Bloomberg oversaw the programs. He has refused to comment directly about them.

In response to the AP’s earlier stories, the CIA’s inspector general is investigating whether its unusually close relationship with the NYPD was unlawful.

NYPD spokesman Paul Browne did not return messages seeking comment about the Moroccan Initiative. In an earlier email, he said the department was not involved in wholesale spying, but rather was trying to document the likely whereabouts of terrorists.

“The unit’s personnel would try to establish, for example, what border crossing a terrorist entering New York would use, what flop house he’d use, what Internet cafe he’d frequent to communicate, etc.,” he wrote.

It’s unclear exactly when the initiative began and whether it continues in any form. Current and former officials told the AP that it started in response to the 2003 suicide bombings that killed 45 people in the Moroccan city of Casablanca and the 2004 train bombing in Madrid that was linked to Moroccan terrorists.

In early meetings, police were told there was no specific threat to New York from Moroccans, officials said, but they were instructed to gather intelligence on the Moroccan community because of concerns Moroccan terrorists might strike here too.

NYPD intelligence chief David Cohen, a former senior CIA officer, oversaw the program, current and former officials said. Many of the documents obtained by the AP were prepared for Police Commissioner Ray Kelly but because of the volume of such documents his office receives, it’s unclear whether he read them.

New York City law prohibits police from using race, religion or ethnicity as “the determinative factor” for any law enforcement action. Civil liberties advocates have said that is so ambiguous it makes the law unenforceable. The NYPD has said intelligence officers do not use racial profiling or troll ethnic neighborhoods for information.

The documents obtained by the AP, many of which were marked “secret,” include a list of “Moroccan Locations,” a virtual tour of the city’s Moroccan neighborhoods. Photos of local businesses were accompanied by notes from plainclothes officers, known as rakers, who quietly kept tabs on ethnic neighborhoods and eavesdropped on conversations.

“A lot of these locations were innocent,” said an official involved in the effort, who like many others interviewed by the AP spoke only on condition of anonymity to discuss sensitive police operations. “They just happened to be in the community.”

Sometimes the notes recorded in police files were detailed, such as the officer who reported that a local sandwich shop was close to a mosque and said the store was closed during Friday prayers.

“The restaurant serves only Halal meat,” the document said. “The majority of the customers are religious Muslims.”

Halal meat is prepared under religious rules similar to kosher food.

Other businesses were described with fewer details. But in every case, the officers noted the ethnicity of the owners.

“In America, you don’t put people under suspicion without good reason,” said Rep. Rush Holt, D-N.J., who reviewed some of the documents obtained by the AP and has urged the Justice Department to investigate. “The idea that people in a group are suspect because of being members of a group is profiling, plain and simple.”

Business owners in the Astoria neighborhood of Queens, where many of the pictures were taken, at first expressed amusement at seeing themselves alongside their friends and neighbors in documents compiled by officers hunting for terrorists.

“Police come here for what? We cut hair all day,” said Amine Darhbach, a U.S. citizen barber who charges $12 for a haircut and sends a portion of his earnings to his family in Morocco each month.

As they flipped through the documents, they said they grudgingly accepted the police attention. It is hardly news to them that, since the 2001 terrorist attacks, Muslims are under greater scrutiny by the public and law enforcement.

“We’ve been harassed for so long, it doesn’t make any sense to complain,” said Leo Santini, a cafe owner and U.S. citizen who changed his name from Mohamed Hussein because he thought he would be treated better without such an Arab name. His three American kids, he said, “don’t look Arab, so they won’t have any problems.”

Finally, there was frustration and anger about being included in police documents.

“All I want is the best for my daughter and my community and to be treated like a new American citizen,” said Sanaa Bergha, whose travel agency was among the businesses photographed in the intelligence files.

Like others, Bergha said that, if asked, she would talk to police about how she could help keep the city safe. But she’s only spoken to the police twice, she said. Once was after she was burglarized. The second was when she reported customers she suspected of making fraudulent documents.

The documents on the Moroccan businesses were compiled by a secretive team called the Demographics Unit, which police originally denied existed. After the AP obtained police documents describing the unit as a team of 16 officers with a mission to map and monitor ethnic neighborhoods, the department said the Demographics Unit used to exist but actually never had more than eight officers.

Browne, the department’s spokesman, has said the unit only followed leads. There is no indication in the documents, however, that police were only investigating criminal leads. Information about crimes was included in the Moroccan Initiative files, but these do not appear to be the program’s focus.

“The Demographics Team was instructed by me to re-canvas the city for any new locations and they came across a newly identified hotel that is referred to Moroccan tourists,” an unidentified supervisor wrote in an undated update on the initiative.

One police document, for example, lists taxi companies and Dunkin Donuts and Subway franchises known to hire Moroccans and other Arabs. A local gym and barber shop also are mentioned. The end of the document includes a section about criminal activity and identifies four businesses believed to be involved in marriage and document fraud and drug dealing.

Another document describes 14 restaurants, two travel agencies and a meat market catering to the Moroccan community. Another said the NYPD produced a list of every Moroccan cab driver in the city. Officers tried to interview them, but many were unavailable to be questioned because they were out working 12- to 14-hour shifts, the document said.

Current and former officials said the information collected by the Demographics Unit was kept on a computer inside the squad’s offices at the Brooklyn Army Terminal. It was not connected to the department’s central intelligence database, they said.

When a Moroccan was arrested, according to the documents, a unit called the Citywide Debriefing Team would visit him in jail or at his home. Each was asked how someone coming to the United States from Morocco might keep a low profile. Officers had a list of 13 questions, including where such a person might live, obtain identification cards, eat, worship and learn English.

The questions helped police identify small apartments in Brooklyn where Moroccan immigrants shared rooms soon after arriving in New York. Police visited one apartment in 2007 to meet with someone who had been arrested the prior year, according to the files. The officer noted the number of bedrooms, the layout, the furnishings and a wall calendar from a nearby mosque.

“There was a small table as well as an entertainment center,” the document said. “There were two Korans. One on top of each speaker.”

Police officials said such detailed note-taking was the result of enormous pressure inside the department. Officers assigned to conduct interviews and visit homes were told by supervisors that, if the subject of their interviews one day turned violent, their reports would be scrutinized with an eye for what warning signs were missed, officials said.

It was intended to keep officers sharp and remind them of the seriousness of the job, but officials said it encouraged well-meaning officers to record even innocent details.

Unlike the information from the Demographics Unit, the information from debriefings and personal visits was reported back to headquarters and entered into the police department’s central intelligence database, the Intelligence Data System, officials said.

Because of lawsuits by civil liberties groups, police lawyers have set stricter limits in recent years about information the NYPD compiles about people not accused of any crime, current and former officials said. Lawyers review police reports and sometimes require officers to remove information or rewrite their reports. Some information on innocent behavior is removed. Other information is labeled “sealed,” which means it can be seen only by very senior officials, the officials said.

Meanwhile, police received from the U.S. government regular updates on foreign visitors entering New York, according to documents and interviews. Police departments often receive information on visitors on a case-by-case basis. U.S. Customs and Border Protection, which maintains the federal documents, declined to tell the AP whether such broad access to its immigration files by a city police department was unusual.

Using the documents, known as I-94s, New York police located and interviewed Moroccans and, when possible, the families they were visiting. Often, that would take them to the homes of U.S. citizens.

Police couldn’t force people to talk to them or let them inside their homes, so officers often used a cover story about a crime in the neighborhood or a report of a missing child nearby, officials told the AP.

During such interviews, the officer would make note of the surroundings: What was on television? How many people lived there? What kind of furniture? If possible, police would collect from residents their names, phone numbers and occupations.

All this underscores the NYPD’s transformation from a police department solving murders and muggings to a domestic intelligence agency. It’s a transformation that Kelly, the police commissioner, makes no apologies for. He has credited intelligence efforts with thwarting terrorist attacks, and White House counterterrorism adviser John Brennan has called those efforts heroic.

No police department in the United States is known to employ programs like New York’s. Police in Los Angeles, the nation’s second-largest city, once considered a program that would have mapped the area’s Muslim communities, but it was shut down after news coverage sparked wide criticism.

Other police departments, including those in cities with Moroccan populations, operate differently — whether for philosophical reasons, because they lack the NYPD’s manpower or because their communities haven’t been targeted repeatedly by terrorists like New York.

In Revere, Mass., police did not dispatch officers into its Moroccan community after the overseas attacks. Revere, a city north of Boston, has a small Moroccan enclave of about 800 people, but it ranks among the top 10 largest Moroccan communities in the country, according to the Census Bureau.

“We wouldn’t just go and start interviewing people because of something that happened in another country,” police Capt. James Guido said. “The guys here wouldn’t even get involved in something like that.”

New York sees things differently, not just because its Moroccan community is a population of about 9,000 and by far the nation’s largest, but because Kelly has made it clear that the department will no longer wait for something to happen.

At the barber shop in Queens, Darhbach said he agrees police should keep the city safe but said that as an American citizen, his business shouldn’t be listed in police files just for serving Moroccan customers. But like many of his neighbors, who grew up under the oppressive police forces of the Middle East and North Africa, Darhbach said things could be worse.

“In Morocco,” he said, “police just come and take you away.”

——

Read a selection of NYPD documents on the Moroccan Initiative http://bit.ly/o7VxoR

Contact the AP’s Washington investigative team at dcinvestigations(at)ap.org

Follow Apuzzo, Sullivan and Goldman at http://twitter.com/mattapuzzo, http://twitter.com/esullivanap and http://twitter.com/goldmandc

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