The FBI Team Sent to ‘Exploit’ Protesters’ Phones in Portland
nybooks.com
nybooks.com
It seems like a clear cut abuse of power. These aren't exigent circumstances, they're protests, and besides that it's not a federal problem. It seems like the 4th amendment doesn't have any power any more.
or maybe I'm just projecting how I think.
If you think about it, rules themselves provide no guarantee whatsoever. They're only as strong as the institutions (aka. people) enforcing them. Some text in a book somewhere provides zero guarantee that some cop isn't going to assault you for talking back at him, or some general isn't going to turn the country into a dictatorship.
It's hard enough to make a web form secure, trying to do the same with emergency response legislation, when the nature of emergencies is that they often take unforeseeable forms, is an intractable problem.
I've been beating this drum quite a bit lately and I understand this feels impossible from where we are, it feels impossible to me too, but the problem we really have to solve is figuring out a way to trust and be trustworthy when given certain responsibilities. Not just for emergency powers, for everything.
We don't have the technology to eliminate the need for trust, not even close. We have to work on constraining the threat model a little bit.
I'm not even sure where they are getting the "unconsented physical searches" and "physical surveillance" line from. EO 12333 specifically states, "Elements of the Intelligence Community are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director." It then goes on to infer the FBI is the only one who can conduct unconsented physical searches and physical surveillance on United States persons, except in specific circumstances.
In other words...EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities; the FBI may use unconsented physical searches and physical surveillance to support their investigations into the previously mentioned activities; and they are the only ones able to do so except in specific circumstances. Lastly, the protests in Portland would not be considered as part of literally any of the FBI's authorities in EO 12333, it would be from their authorities related to conduct of criminal investigations, which would require a warrant or consent to a search.
I'm not a fan of all this necessarily, but the fact checking in this article is mind-blowing.
>> I'm not a fan of all this necessarily, but the fact checking in this article is mind-blowing.
I'm starting to suspect that half of articles today are purposeful misinformation that fits a narrative, while the other half is lazy reporting and might even rely on the misinformation as a source, just perpetuating it.
I've never read NYbooks.com before, but is a book reviewer really going to give me accurate insight into legal interpretation? Nope...
>EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities; the FBI may use unconsented physical searches and physical surveillance to support their investigations
You don't understand why they're saying they can do exactly what you say they can do.
The only hiccup you've introduced is that you don't think the Portland protests would count as foreign intelligence or counterintelligence, but they would only need a very weak link to some foreign agent to allow wide scale surveillance. Hell, a Canadian protester would fulfill the criteria.
However, I think you are misunderstanding the legal definitions and elements for foreign intelligence and counterintelligence. The Canadian would not be considered under either definition unless they are acting on behalf of the Canadian Government as an agent of a foreign power. There are specific legal definitions for all these terms that are worth looking into[1].
"a foreign-based political organization, not substantially composed of United States persons"
And, a foreign agent can be:
"knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power"
That kind of language is so loose. A good legal team could easily claim something something something Antifa foreign influence burned down a Target to meet that legal definition.
At the end of the day they do a smell test to see if there is a sufficient "foreign nexus". And there always is. 99.9% of the surveillance they do is political and never sees the inside of a court room, so it doesn't matter if their analysis is implausible or made in bad faith. [1]
Canadian: check. US citizen who studied abroad: check. US citizen with a foreign partner: check. US citizen with a foreign gardener: probably check. US citizen with a foreign car: check back in 2030.
[1] https://www.fisc.uscourts.gov/sites/default/files/MIsc%2019%...
Further, I can't find a definition for "counterintelligence" on the Cornell site period, though I may have made mistakes in my search. Presumably, they could use that exception to surveil protestors "protecting" them from foreign influence.
In theory, they would not legally be able to without a Court Order from the Foreign Intelligence Surveillance Court. At least not when it concerns unconsented physical searches or electronic surveillance of US persons.
>In theory, they would not legally be able to without a Court Order from the Foreign Intelligence Surveillance Court
The executive order in question already gives them permission to make such searches. You can argue that a court would find that order unconstitutional, but until such a ruling such a search would be considered legal, and would support what the reporter claims.
My impression is that this is exactly why DHS wrote the Intelligence Report "The Syrian Conflict and its Nexus to US-based Antifascist Movements": https://www.voltairenet.org/IMG/pdf/471292844-The-Syrian-Con...
The idea seems to be to gin up a facially plausible but totally spurious connection from Antifa to PKK via the YPG, to claim that YPG is a "foreign power" (ridiculous, but might be technically true under 50 U.S.C. § 1801(a)(5)), or that it's somehow the same organization as the PKK (false) in order to justify a counterintelligence investigation of protestors.
[0] https://www.washingtonpost.com/politics/idaho-family-portlan...
"...unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director"
So you need to get:
1. A department head to come up with a procedure for carrying out the unconsented physical searches.
2. AG Barr to sign off on it.
That sounds like something you could do in, like, 20 minutes if you knew the right phone numbers to dial.
I want to pose this question to you because I don't know enough about the subject to pose the question from the standpoint of justifying it.
If all of the following parties wanted to make this happen:
1. White House
2. DOJ
3. IC element
Say all of their incentives were aligned.
And say that nobody was directly looking over their shoulder to blow the whistle and say 'hold on wait a minute,' then what would prevent this from happening?
Considering the actions taken by federal law enforcement during the protests, I see this as being in the category of 'if it could potentially happen, it probably has.'
Feel free to disagree. I'm here for the interesting discussion.
I highly recommend taking a look at the Intelligence Community Legal Reference Book published by ODNI [1]. If you're into that kind of stuff, it is a fascinating read.
[1] https://www.dni.gov/files/documents/IC_Legal_Ref_2009.pdf
My argument was:
A. The definition of foreign power and foreign agent are loose enough that a legal team acting in bad faith could make the argument that protesters could be included in the latter group.
B. EO 12333 could then be applied to those protestors, which would allow the FBI to engage in unconsented physical searches, etc under the executive order
C. Could occur at a time when the heads of the White House, DOJ, and IC elements were politically aligned and showed no dissent
D. Could occur under a situation of disorganized oversight occurring during a time of national chaos
Under this more specific scenario, what would prevent this from happening, where a protester is included in a legal definition made in bad faith that makes an end-run around those other obstacles you mentioned (via EO 12333) to arrive at novel law enforcement powers?
Again, I appreciate you taking the time to talk about this. I'm just curious and bored so I wanted to play with the idea.
There isn’t really an end run around they can use. The definitions may be a little loose, but when it concerns a United States person, the requirements in the Foreign Intelligence Surveillance Act come in to play.
There is typically a presumption that anyone in the United States is a US person, unless evidence exists otherwise, so the protestors in your scenario would almost certainly be presumed US persons.
As a result, a warrant would have to be obtained via the FISA court in order to conduct the unconsented physical search[1].
EO 12333 isn’t saying the FBI has carte Blanche to conduct those activities (even if the AG tries to say so). It is saying that IF someone is going to conduct those activities in the United States/domestically, the FBI will be the only ones to do so. It doesn’t preclude them from still having to abide by FISA though. There is a lot more flexibility for anywhere/anyone outside of the US though.
Hypothetically, could a coordinated modification be made to the EO and/or the agency’s attorney general guidelines? Possibly, but probably not for anything that is consequential. Like I mentioned, there are a lot of other factors that limit the AG’s flexibility.
That’s why when you kind of have to look at things like EO 12333 in context of a bunch of other policies and established precedents. It’s really only part of the story within a very complicated legal framework.
Sorry, it is late at night and my brain isn’t working as well at this point. I appreciate the discussion and if I can think of anything else tomorrow I’ll try to respond a little further.
"It’s really only part of the story within a very complicated legal framework."
I work in the biological sciences, and this resonates with me strongly.
When discussing things here I often find people taking isolated biochemical pathways out of the broader context of the biochemical milieu of the cell.
Now, I am one of those people, but I'm taking a single legal element, and ignoring the broader legislative milieu.
Plus I'm really high, so even the minutiae is fascinating. Thanks for taking the time to discuss. Appreciate it.
Not. A. God. Damn. Thing.
"... the Constitution, other Executive Orders, federal statutes, case law, etc. ... which wuld have to be considered" (as mentioned in a sibling comment) wouldn't pose even the smallest obstacle if they all "wanted to make this happen".
There were so many things that we all thought they simply COULD NOT DO -- until Snowden came along and showed us that they were, in fact, doing every single one of them for years -- not to mention all of the other things that we had never even considered!
Linux/BSD sysadmin. The CNN lite comment. An actual GPG key in your signature!
You're a real-ass dude.
I don't work in tech, but when I was a kid my first computer ran FreeBSD, because my uncle who was an Engineer handed me a box of parts, a FreeBSD disc-set, and some satellite tracking software he said I should "never connect to the internet because I copied it from work." Dude explained to me what Project Echelon was, had an unfolded Mac-10 receiver in his closet, and his proudest moment was when Noam Chomsky emailed him back.
Your whole ethos reminds me of him, so please keep being you dude because the world needs it.
Perhaps "such techniques" were "... in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director"?
I would not be surprised -- at all -- to learn that AG Barr (after consulting with DIRFBI Wray) approved "such techniques".
Unconsented physical searches of US persons, for the purposes of obtaining foreign intelligence and/or counterintelligence, has to be ordered by the FISC. Recent examples of this taking place can be seen with Carter Page, Michael Flynn, and I guess even the President.
EO 12333 is really just saying that IF these searches are to take place in the US, only the FBI has the authority to conduct the activity. They still have to follow other laws, policies, and procedures that exist.
But how can it stop? It doesn't seem to matter how moderate and liberal the head of government appears to be, they condone this awful behaviour with the magical incantation: "national security".
Governments and the media are adept at spreading FUD by controlling negative messaging around terrorism, organised crime, communinism, the Chinese, the Russians, or whoever the boogeyman de jour is. A huge segment of the populace is is so scared they convinced that they can trust the government and the security services.
I just don't see how this can end.
The context for that quote, is that an individual was arrested for Misdemeanor Assault on a federal officer, specifically due to shining laser pointers at their eyes. Upon physical search of the individual, it was found he was, "carrying a machete, a large mortar firework and a section of galvanized pipe with endcaps and fuze assembly". Lastly, and likely most importantly, the individual consented to his phone being searched.
Now, to the original quote: "CTD is sending Fly Team Agents to cover the interviews of individuals arrested during the night and early-morning hours this weekend. They will also conduct initial exploitation of phones, or other communication devices they are carrying. These Agents may uncover a situation like the one described in the previous paragraph...".
There is nothing in here that implies they intended to search the phones without a search warrant of consent. Law enforcement officals do not make it a routine matter to specify, "They will also conduct initial exploitation of phones, or other communication devices they are carrying once they have a search warrant or consent from the individual". That would be equivalent to me saying to a SWE, "I need you to go and complete X task", then qualifying it with, "and make sure you do x, y, z, a, b, c task that I already know you know and were taught to do".
The title of this article should really read, "FBI Team Sent to 'Exploit' Criminal's Phones in Portland". The fact that the individual(s) also happened to be protestors, is really irrelevant and highly connotative. There is nothing in the First Amendment that gives someone the right to threaten and/or carry out actual violence against another individual, nor should it allow for that. Not to mention, there are specific Federal statutes regarding assault against federal officials.
Frankly, if I was a protestor exercising my First Amendment rights, I'd be pissed that someone was carrying what appears to be a pipe-bomb to what was supposed to be a peaceful protest.
No, the individual did not. This is a police-state lie that needs to stop. There is no way to "consent" to anything requested by someone who has a right to kill you at any time if they feel you might be a threat, and who is allowed to lie to you about your legal rights.
irrelevant? does FBI usually send such a team to exploit "criminal's" (until proven guilty blah-blah-...) phones?
https://www.fbi.gov/image-repository/fbi-counterterrorism-fl...
"The team brings the FBI’s strategic and tactical counterterrorism capabilities to bear in partnership with other U.S. government agencies and foreign partner-nation entities in critical overseas locations to detect, penetrate, and disrupt terrorist networks."
You may not like the FBI, but to assume that they are malevolent actors or are intent on trampling on people's rights disingenuous and unhelpful. I'm all for bringing government misconduct to light, but this article is trying to make legal conduct seem illegal by distorting facts and selectively quoting information to fit a preconceived narrative.
sorry, man, the "initial exploitation" language is pretty clear:
"CTD is sending Fly Team Agents to cover interviews of individuals arrested during the night and early-morning hours this weekend. They will also conduct initial exploitation of phones, or other communication devices they are carrying."
It is pretty clear that there is no specific probable cause, no search warrant, no consent, just a fishing net. That is exactly the process you'd want and expect the tax dollar funded FBI to perform in case of exigent circumstances. It is just these days the protests seems to fall into exigent circumstances category. Or as one of these emails says
"I can help, though their definition of exigency will be different than ours..."
That qualification is unnecessary for a supervisor directing their subordinates that are well aware of their authorities and the policies/procedures that need to be followed to do their job. This isn't staff legal counsel offering legal advice to a federal agent, this is a routine communication between a boss and their employees.
The word “exigency” isn’t explicitly there in the email. It is referenced by the author as being present in a separate email (which for some reason they didn’t include...?) and then qualified via a source as being facetious.
Even if it was there and taken literally, I fail to see anywhere in law, case law, the email, and/or the article that suggests “exigency” is sufficient justification for violating an individual’s 4th Amendment rights. To the best of my knowledge, that does not exist.
> Violent, criminal acts committed by individuals and/or groups to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature.
Let’s compare that to your description of the suspect’s behavior here:
> ...an individual was arrested for Misdemeanor Assault on a federal officer, specifically due to shining laser pointers at their eyes. Upon physical search of the individual, it was found he was, "carrying a machete, a large mortar firework and a section of galvanized pipe with endcaps and fuze assembly”
So by the definition already established, either this person was just a criminal who was engaging in this premeditated, violent, criminal behavior for purely antisocial reasons, or he was a domestic terrorist.
Maybe you could argue that the definition of domestic terrorism is overly broad, but at that point you’re basically splitting hairs to pick and choose which forms of political violence are acceptable.
This individual's criminal defense could easily argue the individual had no stated ideological goal they were promoting (unless there is specific evidence to suggest otherwise, such as leaving a manifesto explaining rationale). It's much easier to demonstrate probable cause and/or prosecute via other criminal statues.
However, from an investigative and enforcement standpoint, it’s useful to have certain distinctions even if those distinctions have no statutory power. If you rob a jewelry store because you, personally, are greedy, that is investigated differently than if you rob a jewelry store in order to fund your anarcho-communist militia or in order to persuade the jewelry store across the street to sign up for your gang’s protection racket. It’s still robbery all three ways, but it could be terrorism or organized crime in addition, which would also imply certain other crimes (e.g. conspiracy).
He consented to it being searched once, not permanently exploited without his knowledge.
You may be thinking of the narrow use of exploit in relation to computer device exploits, which may or may not grant permanent access.
In general, to exploit something means simply to take advantage of or utilize it. For example, to exploit natural resources or to exploit a weakness in the other team's defense.
I'm not going to be the guy who says it's ok to bring a pipe-bomb to a peaceful protest, but there are plenty of people bringing semi-automatic rifles and handguns out to the protests and for better or worse, that's legal depending on local law.
I'm not sure what the legality of a pipe-bomb is. For example, in some states Tannerite is perfectly legal for ordinary folks to possess and carry.
And that's just federal law. State law may have other restrictions.
So bringing a legal rifle to a protest might be legitimate (though not exactly prudent), but possessing an unregistered pipe bomb will get you prison time even if you don't bring it to a protest.
Tannerite is exempt as it's a binary explosive which apparently has special rules.
Someone could be wandering around the protest exercising their 2nd amendment right with a Tannerite pipe bomb.
I don't want to be anywhere near that guy because he's probably a little unhinged, but it's not something that would raise my eyebrows these days if I saw it on the news.
>The term “destructive device” means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device;
I would argue that packing tannerite into a capped pipe turns it into a grenade or bomb, and thus a destructive device.
But, I'm not convinced because the pipe doesn't seem all that dissimilar to the 'target container' that the explosive is placed in prior to legal use.
From the Tannerite website, these are the instructions for use:
1. Start by emptying the contents of the target into the mixing container.
2. Next, open the packet containing the catalyst and pour it into the mixing container.
3. Secure the lid and shake the container until you achieve a uniform color throughout the mixture.
4. Then pour the combined mixture back into the target container until it completely fills the target container then secure the lid.
5. Always place Tannerite® Brand targets at least 100 yards away from the shooter and/or spectators.
https://tannerite.com/binary-target-faq/
What is the difference between a capped pipe and the 'target container?'
Legally, what makes the leap from legal, to 'destructive device.'
https://www.law.cornell.edu/wex/intent
So, I guess if the FBI knew hypothetical pipe bomber was around, they would arrest him. If it was the FBI, and they were looking for him specifically, they would most likely have sufficient additional evidence to prove intent. This is because he would have had to get on their radar somehow, and however that happened would likely supply sufficient evidence to prove intent.
Local police would have to take a different approach, since they would have a much more difficult time proving intent. If they just arrested some random guy with tannerite and a pipe, the prosecutor would then have to go out and construct a case for intent from scratch.
tl;dr: The moment you mix tannerite it becomes an explosive, and about the only legal thing you can do with it is blow it up in a safe manner. Though obviously, that's just a "tl;dr" from a non-lawyer watching a youtube video by a non-lawyer. :)
https://www.atf.gov/explosives/binary-explosives
I am curious, however, if it legally becomes a regulated explosive when mixed, how would the law deal with an explosive device that only mixed the compound at the moment of detonation.
For example, a pipe bomb where the binary explosives were separated by plastic bags, but there was a wire that would be pulled through the device prior to detonation, mixing the two compounds.
I realize that it's kind of a weird edge-case, but I'm just sort of pushing it there because I'm curious and I want to see how far I can take the argument before I'm clearly wrong.
I've heard of authorities accidentally(1) outlawing the mixing of vinegar and baking soda in attempts to make dry-ice bombs illegal... so who knows?
1) as in, some lawyers thought the laws as written were broad enough to cover that in theory - I've never heard of someone actually being arrested on that basis.
Blowing flour out of the palm of my hand into a lit BBQ cost me half my eyebrows as a child.
The ability of airborne flour to burn is kind of incredible if you haven't seen it in person.
All items that can plausibly be weapons, and used dangerously. As others have pointed out, though, had he been carrying a .223 rifle with a 30 round magazine (an objectively more dangerous object) I can't imagine you reaching the same conclusion.
Why is a guy with a fused (but apparently not filled?) pipe bomb presumptively a "criminal" but a guy with a rifle not? Doesn't that have something to do with expression? Shouldn't that distinction be presumptively respected by law enforcement?
Ignoring the protest entirely, you will do jail time if the ATF catches you with an unregistered destructive device.
E.g., in Seattle any fixed blade is illegal to carry. Even chefs have to take special precaution if they want to carry their knives to and from work. Same for hunters/fishermen (fillet knives) heading to or from the wild.
In Oregon (and probably most states), it is illegal conceal most knives, except pocket knives.
Often, the same laws restricting knives cover brass knuckles, clubs, etc.
"any person who carries concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force, any dirk, dagger, ice pick, slungshot, metal knuckles, or any similar instrument by the use of which injury could be inflicted upon the person or property of any other person, commits a Class B misdemeanor" https://www.oregonlaws.org/ors/166.240
The entire point of the protests is to complain about the willingness of the police to lie and fabricate evidence to cover their misconduct.
If it was a war (some argue that the unrest may be the start of a civil war), using lasers as blinding weapons is actually a war crime.
Well within the law and normal.
That said: if arrests were made outside of criminal investigation we would hope the data collected was not retained.
Understood that the portland protests are a politically sensitive topic... But the fact the FBI was using all of its capabilities in a situation that seems to have the hallmarks of one interesting to federal prosecutors is not surprising (to me).
Hope the downvoters can see my point.......
Using a bomb for political purposes... that's terrorism, not protesting.
Why do I think you're wrong?
The purvue of the FBI needs to be a lot more specific than any crime in the US. We've seen more than enough times that such a wide purvue leaves them ripe for abuse (look up their treatment of MLK).
The only practical way for this to happen is for the FBI to actively justify their decisions on what and who to investigate. "Why are these people being investigated?" is a very fair question to ask and one the FBI should happily answer.
The only alternative to this is that whoever is in charge (POTUS) gets to decide with no oversight, no checks or balances, and no accountability.
We've had that in the past. It didn't end well.
Respectfully "it's their job to do this" is a really bad defense, it's the opening line to basically every abuse of power and likely will be part of the defense for all future ones.
If the FBI have a good reason to spend time on this, they can tell us and I'll happily support it. If they don't, they need to stop. But either way, they should not get a blank cheque to use a huge budget and enhanced police powers without having to answer to "we the people".
This should be an apolitical position, whether you're right or left, extreme or centrist.
But you need a permit to protest.
Riotous action is not permissible. Enter the FBI.
How does your proximity to the situation change that?
But let's ignore all that for a moment.
Propaganda.
'innocent people being snatched off the streets..' (...in unmarked vans)
Implies that the feds and local police are routinely illegally kidnapping peaceful protestors across the country.
The truth is that this happened in one street in one city on one night only to less than a handful of protesters, still prortesting once a riot had been declared by uniformed feds in one unmarked van at the same time as uniformed feds in marked vans were doing the same thing a few yards away.
That leads me to think that this small event has been turned into a propaganda story..it's a classic example.
in groups think the out group believes propaganda and that we in the ingroup are immune to it. Don't believe the hype.
They knew exactly what they were doing.
The fact they act up when they get remotely held accountable doesn't change that. It just makes them naive enough to think the law is on their side.
Its not, and most people want them to just fucking stop.
I've heard stories of DHS taking phones to make copies of them - so it seems like they have a process of taking phone images, and possibly scanning them on the spot.
...but then do they catalogue all these phone images somewhere and are they searched regularly?
And if the other countries won't let you in to play...
I'm not sure it doesn't fit the definition of terrorist.
A good example is how more and more subdomains keep slipping behind CloudFlare. Those could be hosted anywhere.
Another example, which I spoke to the FBI Los Angeles office this morning about, is Infragard Los Angeles. They literally have subdomains hosted in mainland China. What is going on here? [1]
It's definitely not that most people think this kind of talk is insane. Definitely not that. It's the FBI.
So to me this is not only illogical, irrational, and invalid on its face, but it's also muddying already-muddy waters while failing to meet that qualitative standard. By all means update us again when there's more credible evidence.
I'm sure the OP's LA FBI contact appreciated the laugh they had when their local Dwight Schrute called them to complain about the web hosting of the "private" part of a public-private partnership.