International Privacy Day: Fighting Data Retention Mandates Around the World

This January 28 marks International Privacy Day. Different countries around the world are celebrating this day with their own events. In EFF, we are calling on governments to repealmandatory data retention schemes. Mandatory data retention harms individuals' anonymity, which is crucial for whistle-blowers, investigators, journalists, and for political speech. It creates huge potential for abuse and should be rejected as a serious infringement on the rights and freedoms of all individuals. 

It has been six years since the highly controversial Data RetentionDirective (DRD) was adopted in the European Union. Conceived in the EU and steamrolled by powerful U.S. and U.K. government lobbies, this mass-surveillance law compels EU-based Internet service providers to collect and retain traffic data revealing who communicates with whom by email, phone, and SMS, including the duration of the communication and the locations of the users. This data is often made available to law enforcement. Europeans have widely criticized the DRD, and year after year, it has inspired some of the largest-ever street protests againstexcessive surveillance.

The European Commission has begun mounting a defense for this highly controversial mass-surveillance scheme, though they have thus far been unable to show that the DRD is necessary or proportionate. For the DRD to be legal in the EU, any limitation to the right to privacy must be "necessary" to achieve an objective of general interest and "proportionate" to the desired aim. This requirement is important to ensure that the government does not adopt severe measures to address a problem that could be otherwise solved in a way that is less harmful to civil liberties.  But the Commission has been arguing that all uses of retained data illustrate that the Directive is "valuable." This doesn't meet the legal standard. Instead, the Commission should provide evidence that in the absence of a mandatory data retention law, traffic data crucial to the investigation of "serious crime" would not have been available to law enforcement.

Despite the European Commission's efforts to preserve the Directive as-is, a leaked letter confirms that the Commission has been scrambling to conjure evidence for the "need" of a DRD scheme in the European Union. It also underscores the fact that there is no system of oversight that would allow citizens to monitor the impact of the proposed program on their privacy rights. Perhaps the most disquieting detail that has been confirmed by the letter is that service providers have already been storing instant messages, chats, uploads, and downloads. This type of data collection falls outside the scope of the DRD. Moreover, the letter indicates that "unnamed" players seek to broaden the uses of the DRD to include prosecution of copyright infringement including "illegally downloading." Since this is not a serious crime, this legally falls outside the scope of the DRD.

In response to this leak, EDRI stated, "The leaked document however shows that the Commission can neither prove necessity nor proportionality of the Data Retention Directive - but still wants to keep the Directive." The leaked letter also disclosed that the EU Commission is evaluating the possibility of amending the Directive. The Commission has commissioned a study into data preservation in the EU and around the world. According to the letter, this exercise is to be completed by May 2012.

Ending Data Retention: Constitutional Challenges

Constitutional courts have begun weighing in on the legality of this mass-surveillance scheme. In a decision celebrated by privacy advocates, the Czech Constitutional Court declared in March 2011 that the Czech data retention law was unconstitutional. Earlier this month, the same Court dealt another blow to data retention by annulling part of the Criminal Procedure Code, which would have enabled law enforcement access to data stored voluntarily by operators. Most importantly, the Czech Court used compelling language in articulating the importance of the protection of traffic data. The Court stated that the collection of traffic data and communication data warranted identical legal safeguards since both have the same "intensity of interference".

We couldn't agree more. Sensitive data of this nature demands stronger protection, not an all-access pass. Individuals should not have to worry whether one sort of private information has less protection than another.

Jan Vobořil of Iuridicum Remedium, which led the legal complaint against the Czech data retention law, told EFF:

I believe that both decisions will help ensure that new legislation enforces the same restrictions as exist for use of wiretap. These include strong privacy safeguards for government access to citizen's data, the obligation to inform individuals about the use of their data, and so on.

Several other courts in EU member states have also ruled on the illegality of data retention laws. Earlier in 2009, the Romanian constitutional Courtrejected the imposition of an ongoing, sweeping traffic data retention program. The Court rightly emphasized that mandatory data retention overturns the presumption of innocence in a way that treats all Romanians like potential suspects. Despite this court decision, a new draft data retention bill was introduced in the Parliament, but the Senate finally rejected it at the end of 2011.

In March 2010, the German Court declared unconstitutional the German mandatory data retention law. The Court ordered the deletion of the collected data and affirmed that data retention could "cause a diffusely threatening feeling of being under observation that can diminish an unprejudiced perception of one's basic rights in many areas." The lawsuit was brought on by 34,000 citizens through the initiative of AK Vorrat, the German working group against data retention.

Over in Ireland, the Court is referring to the European Court of Justice the case challenging the legality of the DRD, thanks to the complaint brought by Digital Rights Ireland. The Irish Court acknowledged the importance of defining "the legitimate legal limits of surveillance techniques used by governments", and rightly emphasized that "without sufficient legal safeguards the potential for abuse and unwarranted invasion of privacy is obvious". The Courts in Cyprus and Bulgaria have also declared their mandatory data retention laws unconstitutional.

The DRD compels EU member countries to implement the Directive into national law. Fortunately, many member states have not yet done so. The Czech Republic, Germany, Greece, Romania, and Sweden have not adopted this piece of legislation, despite pressure from the European Commission to do so. In Austria, the data protection law will take effectin April 2012.  AK Vorrat Austria plans to use all legal means to challenge the legality of the DRD. They have also handed over a petition to the Austrian Parliament asking the government to fight against the DRD at the EU level and to review all existing anti-terror legislation. (If you are Austrian, sign the petition today at zeichnemit.at.) In Slovakia, the NGOEuropean Information Society Institute is opposing the Slovakian data retention implementation law.

Meanwhile, civil society groups are resisting and campaigning against this oppressive data retention law. EDRI, along with EFF and AK Vorrat, has fought to repeal the DRD in favor of targeted collection of traffic data. EDRI has previously reported that Deutsche Telekom, a German telco, illegally used telecommunications traffic and location data to spy on roughly 60 individuals including journalists, managers, and union leaders. They also reported that two major intelligence agencies in Poland used retained traffic and subscriber data to illegally disclose journalistic sources without any judicial oversight. These are only a few examples in which data retention policies have directly threatened individuals' expression and privacy rights.

The DRD is a threat to Internet privacy and anonymity, and has been proven to violate the privacy rights of 500 million Europeans. EFF, together with EDRI, will keep fighting to repeal the DRD in favor of targeted collection of traffic data.

Mandatory Data Retention in the United States

Two bills introduced in the U.S. Congress in 2009 would have required all Internet providers and operators of WiFi access points to keep records on Internet users for at least two years to assist police investigations. Neither bill became law. Some legislators and law enforcement officials continue to argue, however, that mandatory data retention is necessary to investigate online child pornography and other Internet crimes. In January 2011, the U.S. House of Representatives Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing that discussed whether Congress should pass legislation that would force ISPs and telecom providers to log Internet user traffic data. In May 2011, H.R. 1981, which would require retention of such traffic data, was introduced in the House of Representatives. This bill is still alive and continues to be a threat to the privacy and anonymity of all Americans. EFF has joined civil liberties and consumer organizations in publicly opposing H.R. 1981. Please join EFF, and help us defeat this bill before it is made law. Contactyour Representative now.

Fore more information on these matters, please call our office at 305-548-5020.

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Hitting a Parked Car and DUI Charges

Hitting a parked car while under the influence is not as serious as causing injury to a person yet can still place you in the position of potentially being arrested for a DUI. The implications on your license and your freedom are similar, so here is crucial information to consider if you find yourself in this position.

Crashing Into a Parked Vehicle Under the Influence

If you are under the influence, and hit a parked car, you can be arrested and charged with driving under the influence. The good news is that the potential for witnesses to the accident are greatly lessened, which makes the prosecution's job of proving that you were under the influence more difficult. To justify a conviction, the court must determine that you were driving, operating, or in control of a motor vehicle while intoxicated, which can be done either by a direct admission from you or other evidence that would show that you were intoxicated when you hit the parked car.

Dealing with the Police

You are required to give the officer common identification information such as your drivers license, insurance, and car registration. However, you are not required to and should not tell the officer that you were drinking. Let them reach this conclusion on their own. The prosecution must prove that you were intoxicated- don't make this easier on them by admitting it.

Being on Public vs. Private Property

If you are on private property when you hit a parked car, i.e. restaurant or shopping center, certain state laws will prevent you from being able to be charged with driving under the influence, because their wording focuses on individuals driving on public streets, highways, and interstates. Also, implied consent to Breathalyzer tests will sometimes hinge on whether or not you are on private vs. public property.

Breathalyzer tests

Your being required to submit to a chemical test to keep your license will depend on whether you are residing in a state with implied consent laws. Usually you actually have to be under arrest before you can lose your drivers license for refusing to submit to a Breathalyzer test. It is also important to note that if you hit the parked car while you are on private property, implied consent laws might not apply.

Field Sobriety Tests

An officer must have either probable cause or reasonable suspicion that you are under the influence before requesting that you take a field sobriety tests. Factors that might influence this include:

• Odor of alcohol
• Your demeanor
• Admission of drinking

Help from a DUI Lawyer

The information provided in this article is for general use only, and should not be taken as legal advice. There are severe penalties associated with any Driving Under the Influence charge; an attorney will have knowledge of defenses available to you as well as ensuring that your rights are in no way violated. Make sure to have someone on your side, if you ever find yourself in this situation and seek legal counsel from a licensed attorney.

For more information on these matters, please call our office at 305 548 5020.

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Charged as a Criminal? Miranda Rights Observed

 By Falk & Ross, PA

If you are arrested by the police, you are entitled to certain rights and liberties, no matter what you are being charged with or accused of doing. The code that outlines criminal rights in Florida stipulates that certain and specific procedures must be followed by law enforcement agents when you are arrested or taken into custody. Among those, the Miranda rights feature prominently.

Criminal Rights in Florida and the Miranda Warning

Miranda rights offer those who have been arrested certain inalienable rights as codified by the Fifth Amendment of the United States Constitution and reinforced by state law. In general, these rights dictate that a prescribed warning (which is also referred to as "the Miranda warning") be read to anyone arrested for or charged with a crime before suspects are interrogated. 

The Miranda warning comprises 5 parts:

• You have the right to remain silent. As stipulated by the Constitution, you have no legal obligation to say anything that could incriminate yourself. Even in court, "pleading the Fifth" allows witnesses or suspects to refuse to answer questions on the stand that could cast guilt on them.
• Anything you say or do can and will be held against you in a court of law. Letting suspects know that their utterances or actions can be used against them is a vital part of the criminal system. It may seem simple and basic, but many cases have been thrown out because arrested suspects did not understand this premise, and it was not explained to them. 
• You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. The right to legal counsel is considered a derivative entitlement of the right to a fair trial, which is enumerated in the Sixth Amendment of the U.S. Constitution.
• Do you understand these rights as they have been read to you? If a suspect does not understand his rights, the arresting officer is required by law to read them again. 
• Having these rights in mind, do you wish to talk to us now? Not all states include this part of the warning, but Florida and a handful of others do as an additional safeguard against the potential for abuse by overzealous law enforcement agents. 

Ramifications of Miranda Rights Violations

If the arresting officer failed to read you your rights, it is important to keep in mind that this does not mean that you are being illegally detained; however, it may result in the dismissal of any testimonial evidence obtained against you during your interrogation.

If you have been denied a Miranda warning, you have been denied basic criminal rights, and a Florida attorney may be able to have your statements thrown out. This does not necessarily mean that your case will be thrown out, but if your interrogative testimony was crucial to the prosecution's case, it may be a crippling blow.

For more information on these matters, please call our office at 305 548 5020. 

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Traffic cameras would get red light under several bills in the Legislature

By MIKE WISER,

DES MOINES, Iowa --- State lawmakers are going after red-light and speed cameras with a renewed vigor this year with ban supporters claiming that public anger over such programs has reached a tipping point.

Republicans in the House and the Senate have offered bills to ban the cameras. A Sioux City representative introduced a constitutional amendment to do the same.

Meanwhile, an Urbandale lawmaker worked with a local talk radio host and the head of the Iowa branch of the American Civil Liberties Union to get more than 10,000 signatures of people who support a ban. The petitions were given to the governor and the legislative leaders last week.

Gov. Terry Branstad, for his part, said last week that he would sign legislation banning the cameras.

"I think it's unfair," Branstad told The Courier's editorial board Friday. "I had a personal experience two years ago in the desert of Arizona, and I found out two months later I got a ticket for going 10 miles over in a rental car out in the desert. I paid a $200 fine."

Subsesquently, Arizona and 10 other states banned them, Branstad said. Arizona, the first to adopt them in 2008, halted photo enforcement in July 2010, according to The New York Times.

"The Iowa Civil Liberties Union as well as many other people feel this is a violation of individual rights," Branstad said. "You don't get to see your accuser.

"I think a lot of the public is upset about this as well. I'm all for law enforcement and improving public safety. I like to say we have made great progress" largely without traffic cameras, noting Iowa's accident rate last year was the lowest since 1944.

"I think it's very unpopular with the general public," Branstad said. :I do think a part of being in leadership and government (is) we have a need to protect public safety and be responsive to citizens as well."

And in the backdrop to all of this is an election year in which a new legislative map takes effect. That means every incumbent has to cover at least some unfamiliar territory, and speed cameras --- a hotly contested issue in several communities across the state --- could become a campaign issue.

"It could be an asymmetrical answer because I don't know if being for the ban would necessarily win you an election, but I can see where being against the ban could be a hindrance," said Justin Holmes, assistant professor of political science at the University of Northern Iowa.

Holmes said there's a dearth of specific, scientific poll data on speed cameras in Iowa, but he's followed the debate and the attention it generates.

"This time around, the governor's statement might push it over the top," Holmes said. "Local government seems to like them, because they spend less on policing, but a lot of people don't."

Montezuma

"Now, they're talking about them in Montezuma (Iowa). That's a town of 1,400 people," said Sen. Brad Zaun, R-Urbandale, a vocal opponent of the speed cameras who helped organize the petition drive. "Polk County government is looking at them. More and more, you see these popping up."

Several towns in the state, including Davenport, Muscatine, Sioux City, Ankeny, Clive and Cedar Rapids, have red-light and/or speed cameras in place. Other communities, such as Cedar Falls and Waterloo, have had presentations from companies that sell the cameras but have not installed them.

Zaun said he's fought, unsuccessfully, against the cameras since they first came to Iowa. He supported the challenges to their constitutionality and has been on every ban bill in the Senate.

In 2008, the Iowa Supreme Court ruled that the cameras were constitutional in a dispute arising from their use in Davenport.

Writing for the majority, Justice Brent Appel wrote, "Attacked as Orwellian when first introduced, the use of radar is now a standard tool of law enforcement. Innovation in traffic management has not been limited to speed control ... Most municipal authorities believe police officers have better things to do than to control traffic at intersections."

But a dissent authored by Justice David Wiggins argued that the cameras were not constitutional because it was impossible for traffic laws to be enforced uniformly. He gave an example of a motorist who gets five tickets from speed cameras in Davenport that is still allowed to drive even though it is state policy to suspend a license after three moving violations in 12 months.

"I don't always agree with Judge Wiggins, but I certainly do in that case," said Rep. Jeremy Taylor, a Republican from Sioux City who introduced a bill for a constitutional amendment that would ban cameras in the state last week.

He favors an amendment because the process to get an amendment requires a majority of voters to approve it after it passes the House and the Senate. Taylor said he was particularly miffed when the company that provides speed camera enforcement in Sioux City blamed a computer glitch for wrongly issuing red-light tickets instead of speeding tickets to 500 people then billing them for the difference last year.

"These are companies where we have to depend on the accuracy of their technology," he said. "It's the only thing they have, and it's not working."

The ban

Taylor acknowledges that his constitutional amendment proposal likely will take a back seat to the ban legislation being moved by Waterloo Republican Walt Rogers in the House.

His bill, HF2048, was introduced on Jan. 18 and has 22 co-sponsors in the House, including Taylor.

Rogers said the argument that speed and red-light cameras make roads safer is debatable. He said cities that use the tickets as source of revenue can lead to misuse, and he argues that there's something just too Big Brotherish for him to be completely comfortable with the idea.

"What we're talking about here are traffic misdemeanors in most cases and having cameras watching us wherever we go," he said. "As Iowans, is that something we really want?"

Tom Herrmann, communications director with Redflex Traffic Systems, said the cameras are a part of our everyday life.

"I'm sitting in an airport right now, and there are cameras all around me," he said when reached on his cell phone Thursday.

Lobbyists for Redflex and the city of Cedar Rapids were the only two registered against the bill as of Friday afternoon. Redflex has contracts to operate cameras in Davenport, Council Bluffs, Clive and Sioux City.

Herrmann points to studies, such as one done by the Insurance Institute for Highway Safety in 2011, that found that the installation of red-light cameras reduced fatal accidents by 24 percent in 14 cities with camera programs, as evidence the cameras are worth the investment.

Previous proposals to ban the cameras have died in committee in the Iowa Senate.

Sen. Tom Rielly, D-Oskaloosa, who chairs the transportation committee, said he wasn't sure if he would call up the House version of the ban bill if it passes there or the Senate version of the bill put together by the Republicans.

"As a former mayor (of Oskaloosa), I'm very sensitive to the issue of local control," Rielly said. "Why does the mayor of Oskaloosa or Davenport or Sioux City need us telling them how they can enforce their traffic laws?"

Senate Majority Leader Mike Gronstal, D-Council Bluffs, who didn't support a ban last time the issue came up said last week he is willing to let the committee decide what it wants to do. He did, however, note that public sentiment may have shifted.

"People may have changed their minds. There are more of these cameras out there, so that obviously gets more people excited about them," he said. "I personally continue believe that if you don't want to get a ticket for running a stoplight, you probably should stop running stoplights."

For more information on these matters, please call our office at 305 548 5020. 

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Crime taxing public

By D.E. Smoot 

Escalating incidences of violent crime in Muskogee in recent months has sparked a debate about what can be done to curb the madness.

Suggested solutions range from community prayer to increased vigilance by law enforcement and residents alike. Muskogee's mayor said it's "time to go on the offense against crime."

Mayor John Tyler Hammons said more "boots on the ground" are needed to combat violent crime. He wants to do that by passing a new sales tax, which he said would generate an additional $6 million to help fight crime.

"People are tired of all the crime — they are tired of the criminal activity," Hammons said, predicting widespread support of his proposed one-tenth of a percent sales tax. "No one wants to pay more taxes — especially me. But public safety is our No. 1 concern, and we'll do anything it takes to keep our citizens safe."

Hammons said his plan would create two new divisions within the police department and add 10 new officers. It would cost consumers an extra 10 cents for every $100 spent at local retailers during the course of the next 10 years. Consumers already pay 4 cents for every dollar spent for municipal sales tax plus 5.15 cents for county and state sales taxes.

Under Hammons' plan, which would be placed on the April 3 ballot should it win City Council approval, two new divisions would be created within the police department. Revenue generated by the sales tax would be used to hire an estimated 10 additional officers to staff the divisions.

"These will be boots on the ground, not desk jobs, not command staff," Hammons said. "Boots on the ground: It's effective."

The two new divisions would focus on criminal interdiction and intelligence gathering. The criminal interdiction unit would work in conjunction with the department's regular patrol division. The intelligence gathering unit would work with state and federal agencies to gather information about organized crime and gang activity.

Police Chief Rex Eskridge said the creation of these divisions and the addition of new officers would enable the department to be "more proactive as opposed to reactive."

Muskogee police officers, Eskridge said, respond to nearly 70,000 calls for service annually in addition to traffic-related incidents. Eskridge said that is close to the same number of calls responded to by the police department in Norman, which is nearly three times the size of Muskogee.

"Ninety-two percent of our officers are in the field involved in enforcement activities at any given time," Eskridge said. "We are constantly at maximum staffing levels, and when we have a shooting, we're having to call in our off-duty officers."

With the additional officers for which Hammons' sales tax would provide, Eskridge said the department could operate proactively instead of in a reactive mode.

"We're in a constant state of reaction," Eskridge said, noting the number of calls to which the department responds. "Even with one homicide, it takes a whole shift to secure the scene, conduct the investigation and even more when we're chasing a suspect. We're always robbing Peter to pay Paul."

The additional officers for interdiction and intelligence gathering, Eskridge said, would enable the department to target high-crime areas with a greater police presence.

Cedric Johnson, a retired educator and past president of the Muskogee branch of the National Association for the Advancement of Colored People, said that type of enforcement might anger some people. But in light of recent violence, he said it's needed.

"The areas where most of this crime is going on would be primary targets," Johnson said. "And you're going to have some folks saying, 'They are picking on me.' Well, yeah, we're going to pick on you."

Johnson said the recent spate of homicides — four since the first part of November — has created a climate that will facilitate the passage of Hammons' proposed tax.

"We have a growing problem, and the current events cast long shadows," Johnson said. "I don't think it's over."

Hammons said he will present his proposal Tuesday during the Muskogee Finance Committee meeting. If committee members recommend approval, the measure will be forwarded the following week to the City Council.

"Increasing the number of officers patrolling our streets will serve as a visible deterrent against criminal activity," Hammons said. "Having a dedicated team of criminal intelligence professionals will allow the police department to be proactive in preventing criminal activity." 

For more information on these matters, please call our office at 305 548 5020.

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