There’s a Secret Patriot Act, Senator Says

By Spencer Ackerman

You think you understand how the Patriot Act allows the government to spy on its citizens. Sen. Ron Wyden says it’s worse than you know.

Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation — an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged. But one prominent Patriot-watcher asserts that the secret interpretation empowers the government to deploy ”dragnets” for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.

“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information. But one component of the Patriot Act in particular gives him immense pause: the so-called “business-records provision,” which empowers the FBI to get businesses, medical offices, banks and other organizations to turn over any “tangible things” it deems relevant to a security investigation.

“It is fair to say that the business-records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

That’s why Wyden and his colleague Sen. Mark Udall offered an amendment on Tuesday to the Patriot Act reauthorization.

The amendment, first reported by Marcy Wheeler, blasts the administration for “secretly reinterpret[ing] public laws and statutes.” It would compel the Attorney General to “publicly disclose the United States Government’s official interpretation of the USA Patriot Act.” And, intriguingly, it refers to “intelligence-collection authorities” embedded in the Patriot Act that the administration briefed the Senate about in February.

Wyden says he “can’t answer” any specific questions about how the government thinks it can use the Patriot Act. That would risk revealing classified information — something Wyden considers an abuse of government secrecy. He believes the techniques themselves should stay secret, but the rationale for using their legal use under Patriot ought to be disclosed.

“I draw a sharp line between the secret interpretation of the law, which I believe is a growing problem, and protecting operations and methods in the intelligence area, which have to be protected,” he says.

Surveillance under the business-records provisions has recently spiked. The Justice Department’s official disclosure on its use of the Patriot Act, delivered to Congress in April, reported that the government asked the Foreign Intelligence Surveillance Court for approval to collect business records 96 times in 2010 — up from just 21 requests the year before. The court didn’t reject a single request. But it “modified” those requests 43 times, indicating to some Patriot-watchers that a broadening of the provision is underway.

Story Continues -> There’s a Secret Patriot Act, Senator Says

How Will States Tax Internet Downloads? Congress May Decide

By Matthew Lasar

Here’s an interesting conundrum, posed by Representative Dennis Ross (R-Florida), at a House Judiciary subcommittee hearing held on Monday:

“Imagine you are sitting in Dulles airport in Virginia, waiting for a flight back to Florida,” Ross began in his opening remarks. “You download a music file from Apple, which is headquartered in California. The music is sent to you via a server in Oklahoma.”

Which of these states should be allowed to tax the sale?

Without a “clear national rule,” he warned at the hearing, “all four states may attempt to tax the transaction.”

And so Congress is considering one such national standard: HR 1860, the Digital Goods and Services Tax Fairness Act of 2011. Representative Lamar Smith (R-Texas) submitted the bill to the Judiciary committee two weeks ago. A similar law sponsored by Ron Wyden (D-Oregon) awaits consideration in the Senate.

The crux of the legislation centers around this sentence: “No State or local jurisdiction shall impose multiple or discriminatory taxes on or with respect to the sale or use of digital goods or digital services.”

The bill defines a “discriminatory tax” as a tax imposed by a State or local jurisdiction at a higher rate than “is generally imposed on or with respect to the sale or use of tangible personal property or of similar services that are not provided electronically.”

A “multiple tax” is defined as one in which that State or locality “gives no credit with respect to a tax that was previously paid on or with respect to the sale or use of such digital good or digital service to another State or local jurisdiction.”

Then come more specific limits on taxation. Any tax on the sale of digital goods and services can only be imposed on the state and its localities “whose territorial limits encompass the customer’s tax address.” This is understood as the address that the customer offered and which the seller received in good faith.

This legislation is strongly supported by the Download Fairness Coalition, which, not coincidentally, describes itself as “a partnership of businesses, associations, and consumers who have joined together to prevent multiple and discriminatory taxation of digital goods.”

The Coalition includes Apple, Time Warner Cable, Comcast, Verizon and, most notably, Amazon. The last mentioned company has been famously at odds with various states over taxes for years.

Story Continues -> How Will States Tax Internet Downloads? Congress May Decide

Doctors and dentists tell patients, “all your review are belong to us”

By Timothy B. Lee

When I walked into the offices of Dr. Ken Cirka, I was looking for cleaner teeth, not material for an Ars Technica story. I needed a new dentist, and Yelp says Dr. Cirka is one of the best in the Philadelphia area. The receptionist handed me a clipboard with forms to fill out. After the usual patient information form, there was a “mutual privacy agreement” that asked me to transfer ownership of any public commentary I might write in the future to Dr. Cirka. Surprised and a little outraged by this, I got into a lengthy discussion with Dr. Cirka’s office manager that ended in me refusing to sign and her showing me the door.

The agreement is based on a template supplied by an organization called Medical Justice, and similar agreements have been popping up in doctors’ offices across the country. And although Medical Justice and Dr. Cirka both claim otherwise, it seems pretty obvious that the agreements are designed to help medical professionals censor their patients’ reviews.

The legal experts we talked to said that the copyright provisions of these agreements are probably toothless. But the growing use of these agreements is still cause for concern. Patients who sign the agreements may engage in self-censorship in the erroneous belief that the agreements bar them from speaking out. And in any event, the fact that a doctor would try to gag his patients raises serious questions about his judgment.

As we dug into the story, we began to wonder if Medical Justice was taking advantage of medical professionals’ lack of sophistication about the law. Doctors and dentists are understandably worried about damage to their reputations from negative reviews, and medical privacy laws do make it tricky for them to respond when their work is unfairly maligned. Although Dr. Cirka declined repeated requests for an interview, his emailed statements (and the statements of his staff) suggest he doesn’t understand the terms of the agreement he asks his patients to sign.

In any event, we think censoring patients is the wrong way for doctors to deal with online criticism. Consumers understand that no business satisfies 100 percent of its customers, and the medical profession is no different. If a dentist is worried that negative reviews will harm his reputation, he should respond by providing more information about his practice to prospective patients, and by encouraging his satisfied patients to post positive reviews online. The revelation that he is trying to censor his patients’ reviews will do far more damage to his reputation than an occasional negative review ever could.

Story Continues ->  Doctors and dentists tell patients, “all your review are belong to us”

2nd Excerpt from the Article

We can’t find any evidence that Medical Justice-style agreements have ever actually been used to censor online reviews. Dr. Cirka told Ars that he has never attempted to remove a fraudulent review using the copyright assignment policy. And Yelp told us that they “have never elected to remove a review in response this type of takedown request.” The experts we talked to said they’ve gotten similar statements from other review sites.

Courts are unlikely to find the agreement to be a valid transfer of copyright.

That’s probably because the agreement isn’t likely to hold up in court. Ars talked to Wendy Seltzer, a fellow at Princeton’s Center for Information Technology who founded the Chilling Effects clearinghouse for copyright takedown notices. She said a medical professional seeking to use the copyright assignment to censor a review would have at least two serious legal problems.

First, courts are unlikely to find the agreement to be a valid transfer of copyright. Blanket, prospective copyright assignments can be valid, but only in certain circumstances. For example, employees can assign any works created on the job to their employer. But online reviews don’t fit into any of the usual categories of “works made for hire,” and any doctor who claims her patients write reviews on her behalf is likely to be laughed out of court. Second, even if the assignment is valid, courts are likely to find that review sites are entitled to publish them under copyright’s fair use doctrine.

Yelp shares Seltzer’s assessment, telling Ars that “there are any number of reasons to believe the agreements don’t hold water as a legal matter.” Yelp spokeswoman Stephanie Ichinose signaled a readiness to fight these agreements, which she says “put the needs of doctors ahead of a patient community that has surprisingly few places to turn for helpful information about the medical profession.”

“We are happy to support a patient’s right to free speech,” Ichinose said.

Seltzer told Ars that a dentist who tried to remove the review of someone who hadn’t signed the agreement would face particularly severe problems in court. Under the “notice and takedown” procedure spelled out in the Digital Millennium Copyright Act, the person seeking to have material removed must certify, under penalty of perjury, that he holds the relevant copyrights. But if the author of a review never signed an agreement, then a doctor’s claims to hold the copyrights would be a blatant lie, and he would face penalties under the DMCA.

Story Continues ->  Doctors and dentists tell patients, “all your review are belong to us”

Automotive Black Boxes, Minus the Gray Area

By Keith Barry

Next month, the National Highway Traffic Safety Administration is expected to declare that all vehicles must contain an event data recorder, known more commonly as a “black box.” The device, similar to those found in aircraft, records vehicle inputs and, in the event of a crash, provides a snapshot of the final moments before impact.

That snapshot could be viewed by law enforcement, insurance companies and automakers. The device cannot be turned off, and you’ll probably know little more about it than the legal disclosure you’ll find in the owner’s manual.

The pending mandate looks to some like a gross overreach of government authority, or perhaps an effort by Uncle Sam, the insurance industry and even the automakers to keep tabs on what drivers are doing. But if you’re driving a car with airbags, chances are there’s already one of these devices under your hood.

How much it affects you depends upon where you live and what data points it records. How much it will affect you in the future may depend on a new set of standards that spell out exactly what data is collected and who can access it.

An Incomplete Record
On August 17, 2002, two teenage girls in Pembroke Pines, Florida, died when their vehicle was struck by a Pontiac Firebird Firehawk driven by Edwin Matos. The girls were backing out of their driveway; investigators accessed the vehicle’s data recorder and discovered Matos had been traveling 114 mph in a residential area moments before impact.

Matos was convicted on two counts of manslaughter, but his lawyer appealed the admission of the data recorder evidence, arguing it may have malfunctioned because the car had been extensively modified. The attorney also argued the evidence was based on an evolving technology. The Florida Supreme Court upheld the conviction, however, establishing precedent in that state that data gleaned from event data recorders is admissible in court.

There are two important facts to note in this case. First, Matos was driving in Florida, one of 37 states with no statutes barring the disclosure of such data. While car companies initially claimed ownership of the data, courts eventually ruled that it belongs to vehicle owners and lessees. No federal laws govern access to black box data, and state laws eventually clarified how much data other parties could access.

“The state statutes, starting with one in California, arose out of consumer complaints about insurance companies getting the data without the vehicle owner even knowing that the data existed or had been accessed,” said Dorothy Glancy, a lawyer and professor at Santa Clara Law with extensive experience studying issues of privacy and transportation.

In most of the 13 other states, however, Matos’ black box data still would have been available to police officers armed with a warrant.

“Law enforcement generally has access to the data,” Glancy said.

The second important fact is that, though the court denied Matos’ appeal, the question of the data’s validity remained. Most manufacturers currently use proprietary systems that require specialized interpretation, and many individual event data recorders do not survive crashes intact. Other courts have ruled against the admission of the data.

Setting a Standard

The lack of uniformity concerns Tom Kowalick. He chairs the Institute of Electrical and Electronics Engineers P1616 Standards Working Group on Motor Vehicle Event Data Recorders, one of three panels aiming to set universal standards for event data recorders (EDR).

“Until recently, there has been no industry-standard or recommended practice governing EDR format, method of retrieval, or procedure for archival,” Kowalick said. “Even for a given automaker, there may not be standardized format. This lack of standardization has been an impediment to national-level studies of vehicle and roadside crash safety.”

Standards proposed in 2008 would ensure that data once available only to automakers IS publicly accessible. The new standards would make accessibility universal and prevent data tampering such as odometer fraud.

“It also addresses concerns over privacy rights by establishing standards protecting data from misuse,” Kowalick said.

The standards also propose specific guidelines and technology to prevent the modification, removal or deactivation of an event data recorder.

Those regulations would, in theory, make black box data more reliable than what is currently collected. But they also would prevent drivers from controlling the collection of information — information that they own.

“I am not sure why consumers would want a system in their vehicles that they could not control,” Glancy said.

Story Continues -> Automotive Black Boxes

Supreme Court ruling lets employers view worker text messages with reason

Overturns earlier rulings that search violated fourth amendment rights of California police officer

By Jaikumar Vijayan

The U.S. Supreme Court today ruled that employers have the right to search through text messages, including personal ones, sent by workers if they have reason to believe that workplace rules are being violated.

The ruling (download PDF) overturns an earlier decision by the Ninth Circuit Court of Appeals in a case involving a California police officer who had claimed his Fourth Amendment rights had been violated when supervisors conducted a search of his text messages.

The Ninth Circuit court had ruled that the city of Ontario, Calif., violated the officer’s constitutional rights when police supervisors read transcripts of personal messages, including several sexually explicit ones, that Sgt. Jeff Quon sent using his city-issued SWAT pager.

Quon filed a federal lawsuit against the city, its police chief and the police department in October 2004, contending that the search of his pager was unreasonable.

The suit contended that when Quon and other officers were issued the pagers, the city had no policy related to text-messaging. The city did, however, have official policies surrounding general computer, Internet and e-mail usage policy that limited use to official purposes.

Under the city’s contract with Arch Wireless, (since purchased by USA Mobility Wireless Inc.), each pager was allotted 25,000 characters per month.

An informal policy required police officers who exceeded that amount to pay for the overage to avoid auditing, according to papers filed with the court. Quon was one of several officers who frequently exceeded that limit largely on account of his sending numerous private messages, including sexually explicit messages to others, including his wife, the papers said.

The police department discovered the personal use when it was conducting a review of pager use to see whether the 25,000-character limit was adequate for official purposes.

Quon claimed the search was a violation of his constitutional right against unreasonable search. He claimed that he had been led to believe that the personal messages he sent and received using the pager would not be audited if he paid for the personal use.

The city, for its part argued that any expectation of privacy was subjective at best. It argued that Quon knew about the department’s written policies relating to computer use and the fact that text messages sent on the department’s pagers were subject to public disclosure requests under the California Public Records Act.

The police department also argued that the payment for overages that Quon made stemmed from an informal billing practice and not an official department policy.

The city’s arguments however were dismissed first by the Central District Court of California and later by the Ninth Circuit Court of Appeals. Both courts ruled that Quon did indeed have a reasonable expectation of privacy in the personal text messages he sent on his official pager.

Article Continues -> http://www.computerworld.com/s/article/9178199/Supreme_Court_ruling_lets_employers_view_worker_text_messages_with_reason

Mexico Grapples With Arizona Immigration Law

Protesters gather outside the Arizona Capitol Saturday, May 1, 2010 in Phoenix to protest Arizona’s controversial new immigration bill. Activists said outrage over Arizona’s controversial immigration law “awakened a sleeping giant” Saturday as rallies demanding federal immigration reform kicked off in cities across the country. (AP Photo/Matt York)

By OLGA R. RODRIGUEZ

NOGALES, Mexico — The line of Mexicans waiting to go shopping in Arizona snakes twice around the sun-drenched plaza, even as politicians nearby slap stickers on cars calling for a boycott of the U.S. state.

And the illegal migrants targeted by a tough new Arizona law dismiss it as just another obstacle that pales in comparison to the extortion, arrests and kidnappings they already risk to reach U.S. soil. They vow to keep on coming.

Resentment has erupted throughout Mexico over the immigration law in Arizona that is considered racist here. But crossing back and forth between the countries is so intrinsic to their lives that many Mexicans find it hard to give it up despite calls by immigration activists for a boycott of Arizona.

“Border cities depend on each other and it has been that way for many years,” said Maria Romero, a nurse from Nogales, which lies across from the Arizona town of the same name. “It seems they don’t understand that on the other side and are always looking for ways to make things more difficult.”

There are few signs so far that the bill has deterred Mexicans from crossing into Arizona – legally or not. The wait to drive across the border is more than two hours.

The legislation signed by Arizona Gov. Jan Brewer last week requires local and state police who stop people for another reason to question them about their immigration status if there’s reason to suspect they’re in the country illegally. Suspects would be detained if they are not carrying proper documents.

Supporters say the law is necessary because the federal government has failed to secure the border and because of rising anxiety over crime.

The measure has provoked huge protests in the United States by immigrant advocates who say it will encourage racial profiling. But the outcry south of the border has been subdued as Mexicans wait for the law to take effect and see how it will be implemented.

Some Mexican officials even warn that an economic boycott of Arizona could backfire if companies there lay off Mexican workers who would then no longer be able to send remittances back home.

For many of the tens of thousands of Mexicans who legally visit Arizona every day to shop for bargains or visit relatives, the cost of not going is too high – despite their dislike of the law.

In Nogales, Mexico, Romero lined up with hundreds of others at the border crossing, inching forward around a plaza and past vendors hawking jewelry and cheap souvenirs. She needed to buy a tuxedo for her 5-year-old son to wear to his kindergarten graduation and hoped to find it for a third of what it would cost in Mexico.

“No one should cross, but we go because we want to save,” Romero said.

Life in the two cities is tightly interwoven despite the corrugated steel wall that runs along the hillsides, separating a string of fast-food restaurants and cheap clothing stores on the U.S. side from the dusty streets and nightclubs to the south.

The Mexican city, founded in the 19th century along a north-south railway line built to promote trade between the two countries, has become the largest point of entry for the estimated 65,000 Mexicans who visit Arizona every day, mostly for the big shopping malls.

At least 23,400 jobs in Arizona depend on the more than $7.35 million that Mexican visitors spend every day in stores, restaurants, hotels and other businesses, according to a University of Arizona study sponsored by the state’s Office of Tourism.

In Santa Cruz county – where Arizona’s Nogales is located – Mexican visitors account for 50 percent of taxable sales, the research found.

Mexicans angry about the immigration law want to deprive Arizona of that income.

The Institute for Mexicans Abroad, an autonomous government agency that supports Mexicans living and working in the United States, called for boycotts of Tempe, Arizona-based US Airways, the Arizona Diamondbacks and the Phoenix Suns until those organizations denounce the law.

Mexican legislators of all political stripes have called on the government of President Felipe Calderon to consider breaking commercial ties with Arizona. The government has issued a travel alert for the state, warning that migrants face an adverse political environment there.

A group of politicians handed out stickers at the Nogales border crossing over the weekend, urging Mexicans not to buy Arizona products.

“Made in Arizona SB 1070. I don’t buy from those who discriminate,” the stickers read, in reference to the bill.

The movement has yet to take off.

Nogales Mayor Jose Angel Hernandez said many Arizona shops, business and factories employ Mexicans who send money back to relatives south of the border.

“I have family in Nogales, Arizona, and I have a lot of friends who live and work there, and they help Nogales, Sonora,” Hernandez said in an interview with The Associated Press. “That’s why I worry that if the boycott is not directed correctly, it could harm our Mexican brothers who are there and are helping us.”

At a shelter in Nogales, meanwhile, deported migrants discussed how soon they could get back across the border.

“I’ll return to Arizona because I know a lot of people there, and I’ll go where people will give me work, law or no law,” said Nicasio Benitez, who worked in landscaping there until he was deported last week after being caught in a car with a cracked windshield.

He said he would visit family in the Gulf coast state of Veracruz before heading back to the border in a month.

“You live under a lot of pressure in Arizona. You have a hard time finding a place to rent, being able to drive,” said Benitez, a father of three teenagers. “But what you make in the U.S. in one day, you make it in Mexico in one week.”

“Life there is awful, but I don’t go to the U.S. because I like living there,” he added. “I go because I like dollars.”

http://www.huffingtonpost.com/2010/05/03/mexico-arizona-immigration_n_560563.html

National ID Card Included In Democratic Immigration Bill

By Ryan Grim – ryan@huffingtonpost.com

Democrats pushed forward on an immigration overhaul on Thursday evening with no Republican support, as Sen. Lindsey Graham (R-S.C.) continues to hold out, arguing that the divisive issue will make progress on climate change legislation impossible.

The Senate is also in the middle of debating Wall Street reform, which is expected to take up the next few weeks of floor time. Reid, however, said that the chamber would be able to handle the task. “We can do more than one thing at once,” he said.

The Democratic proposal includes increased money for border patrol and drug war agents, equipment, helicopters and unmanned drones. It would create a national ID — which is dubbed a “biometric social security card.” Though Democrats insist that it is not an ID card and can only be used for employment purposes.

The proposal would also include a crackdown on employers who hire undocumented workers. It works to deport some immigrants who are not in the country legally and creates a limited pathway to citizenship for others.

Democrats brought out their heavy hitters for the announcement: Senate Majority Leader Harry Reid (D-Nev.); Majority Whip Dick Durbin (D-Ill.); Sen. Charles Schumer (D-N.Y.), who’s been leading the push for immigration reform; Sen. Bob Menendez (D-N.J.); Judiciary Committee Chairman Pat Leahy (D-Vt.) and Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.).

The crackdown on employers relies on the creation of national identity cards. “These cards will be fraud-resistant, tamper-resistant, wear resistant, and machine-readable social security cards containing a photograph and an electronically coded micro-processing chip which possesses a unique biometric identifier for the authorized card-bearer,” reads the bill summary.

Broadly, the proposal includes:

1. More Border Patrol officers
2. More Immigration and Customs Enforcement (ICE) agents, worksite inspectors, document fraud investigators and drug-war agents
3. The “installation of high-tech ground sensors throughout the southern border and for equipping all border patrol officers with the technological capability to respond to activation of the ground sensors in the area they are patrolling.”
4. More prosecution of drug smuggling, human trafficking and unauthorized border crossing
5. “[I]ncreases in the number of sport utility vehicles, helicopters, power boats, river boats, portable computers to track illegal immigrants and drug smugglers while inside of a border patrol vehicle, night vision equipment, Unmanned Aircraft Systems (UAS), Remote Video Surveillance Systems (RVSS), scope trucks, and Mobile Surveillance Systems (MSS).”
6. All prisoners will be checked for immigration status and deported if found to lack documentation.
7. DHS will “identify, investigate, and initiate removal proceedings” against folks who came here legally but didn’t leave.
8. The bill would create “a broad-based registration program that requires all illegal immigrants living in the U.S. to come forward to register, be screened, and, if eligible, complete other requirements to earn legal status, including paying taxes.”

The full summary can be read here.

http://www.huffingtonpost.com/2010/04/29/national-id-card-included_n_557721.html

Arizona immigration law requires police to see a crime before checking legal status, GOP state Senator says

Does Arizona’s tough new immigration law, set to take effect in 90 days, protect the innocent from police abuses?   

Generally speaking, the law signed by Republican Gov. Jan Brewer on April 23, 2010, makes being an illegal immigrant a state crime and requires legal immigrants to carry papers that confirm their lfegal status.

One of the key questions to emerge has been what standard law enforcement officers would need to use before questioning individuals about their immigration status. This topic came up on the April 26 edition of the MSNBC program Hardball, in a three-way discussion between host Chris Matthews; Republican State Sen. John Huppenthal, a supporter of the new law; and former Democratic State Sen. Alfredo Gutierrez, an opponent of the law. Here is an excerpt from their conversation, edited for space:

Matthews: “Under the law you passed and was signed by the governor this week, can a police officer who spots a car with five or six people in it, who he thinks because of instinct, experience, whatever, evidence, whatever you use — can he stop that car and say, I think these people are here illegally, I’m going to stop and check them? Can he under the law do that, without any crime involved? Can he do that?”

Huppenthal: “No, he cannot. That would be — that would just simply be racial profiling, and that would not be permitted under the law. Now, if he stopped them for speeding or something like that, he can inquire of the driver at that point if they were an illegal immigrant. But you’re not going to find that kind of activity. That kind of kind of activity is not going to be — that’s not going to be a part of training. What is going to be a part of training, I arrest somebody for burglary, I arrest them for DUI, I arrest them after they’ve maimed somebody….”

Gutierrez: “Obviously, the senator hasn’t read his own bill. What this bill does is, it says that any police officer can stop anyone who appears to them to be reasonably suspicious of being an undocumented person. And I’m going tell you something, if you and I are walking down the street, you’re not going to be the subject … of reasonable suspicion. He is simply wrong about his own bill. I suggest he read it.”

We’ll rate Gutierrez’ contribution to this conversation in a separate item. Here we’ll tackle Huppenthal’s comment.

Let’s start by looking at exactly what the law says.

Here’s the part telling law enforcement officers that they need to check on individuals’ immigration status:

“For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.”

So a key question is whether there be “reasonable suspicion” about someone’s legal status in the absence of a crime — major or minor — being committed or suspected. If the answer is yes, it would undercut Huppenthal’s argument.

In discussing these questions with legal experts, we found that everyone agreed that there’s some gray area that will need to be sorted out in future court decisions. That said, the general consensus was that police could indeed stop someone even in the absence of suspicion that a crime was being committed.

Peter Spiro, a Temple University law professor, said that law enforcement officers can use profiling rather than suspicions of a specific crime being committed.

“Police departments come up with profiles that can establish a resonable suspicion,” Spiro said. Such profiles “entitle an officer to stop someone and say, ‘I’d like to ask you some questions?’ The officer can then investigate, which could lead to probable cause.”

And at that point, Spiro said, an immigration status check would be acceptable under the Arizona law — even if no specific crime was witnessed or suspected. “If you came up with a profile for undocumented immigrants, that would establish reasonable suspicion, and you could stop that person even if no other crime was suspected,” he said.

This would seem to undercut Huppenthal’s position. But one factor in his favor is that it’s not necessarily easy to use profiles in this way.

Spiro said the challenge is drawing up a defensible profile for spotting illegal immigrants. “You can’t stop someone just because they look Hispanic,” Spiro said, because the law specifically says that officers “may not solely consider race, color or national origin.” As a result, Spiro said, “there has to be some other factor or factors, not all of which are race-based, as well as some empirical explanation of why that profile establishes a reasonable suspicion. You have to come up with something beside race that sounds plausible as correlating with undocumented status, and it’s hard to say what that would be.”

There are other reasons to believe that someone could be questioned on their immigration status without a police officer actually suspecting a crime. Jennifer Chacon, law professor at the University of California (Irvine), raises concerns about the phrase “lawful contact.”

“Lawful contact can occur in many instances when there is no reasonable suspicion of a crime,” she said. “A consensual encounter, such as asking a police officer for directions, reporting a crime to a police officer, or being a victim of a crime or a witness and being questioned by a police officer, is a ‘lawful encounter.’ Also lawful are some stops premised on absolutely no individualized reasonable suspicion — think about DUI checkpoints where everyone is stopped even if there is no individualized suspicion for the stop. The bill is clear that so long as the initial encounter is lawful, a police officer can then ascertain my legal status upon suspicion that I am undocumented. So Huppenthal is wrong if he maintains that only those suspected of criminal activity can be questioned regarding status. Under the plain language of the law, any time the police engage in a lawful encounter, that is enough to trigger the inquiry into status upon reasonable suspicion.”

And some of the potential crimes that could lead to questioning involve seemingly inoccuous actions.

In an effort to curb day laborer gathering points — the ad-hoc spots where illegal immigrants have often offered themselves as informal laborers — the law makes it unlawful “for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.” It also is now “unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work [or] solicit work in a public place.” And how does the law define “solicit”? As a “verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed.”

So, presumably, anyone getting into a car, or making a gesture or a nod in a public place, could fall under suspicion of violating these laws — which in turn could open the door to an individual being questioned about their immigration status.

None of this means that law enforcement officers will fully exercise these powers — or that judges will let them. But most legal experts we asked felt that the law opened the door to police questioning of individuals who are not specifically suspected of committing a crime.

Perhaps the ambiguities of the law will one day be settled in the courts. But we think that a close reading of the statute and the views of the experts we contacted allow us to draw some conclusions.

Huppenthal’s position — that the police must suspect that something illegal is being committed before asking someone for proof of legal status — is not correct. The law says the police officer just needs “reasonable suspicion” that the person is an alien that is unlawfully present in the United States. The police are prohibited from using a profile based solely on racial or ethnic factors, but that standard can be sidestepped. In addition, some seemingly innocuous behaviors like getting in a car or making a gesture or nodding could be seen by a law officer as “reasonable suspicion” of the newly enacted prohibition against seeking work while in the U.S. illegally.

The passage in the law citing racial profiling does provide some protection, as does the difficulty of defining a profile for illegal immigrants that could pass legal muster, but the law leaves open several possibilities for police questioning individuals without seeing or suspecting a specific crime. So we rate Huppenthal’s statement False.

http://www.politifact.com/truth-o-meter/statements/2010/apr/28/john-huppenthal/arizona-immigration-law-requires-police-see-crime-/

Arizona immigration law allows police to question ‘anyone’ who’s ‘reasonably suspicious’ of being illegal

When Arizona’s Republican Gov. Jan Brewer signed the nation’s toughest immigration law on April 23, 2010, did it open the door for rampant racial profiling?

Generally speaking, the law — which would go into effect in 90 days — makes being an illegal immigrant a state crime and requires legal immigrants to carry papers that confirm their legal status.

One of the key questions to emerge has been what standard law enforcement officers would need to use before questioning individuals about their immigration status. This topic came up on the April 26 edition of the MSNBC program Hardball, in a three-way discussion between host Chris Matthews; Republican State Sen. John Huppenthal, a supporter of the new law; and former Democratic State Sen. Alfredo Gutierrez, an opponent of the law. Here is an excerpt from their conversation, edited for space:

Matthews: “Under the law you passed and was signed by the governor this week, can a police officer who spots a car with five or six people in it, who he thinks because of instinct, experience, whatever, evidence, whatever you use — can he stop that car and say, I think these people are here illegally, I’m going to stop and check them? Can he under the law do that, without any crime involved? Can he do that?”

Huppenthal: “No, he cannot. That would be — that would just simply be racial profiling, and that would not be permitted under the law. Now, if he stopped them for speeding or something like that, he can inquire of the driver at that point if they were an illegal immigrant. But you’re not going to find that kind of activity. That kind of kind of activity is not going to be — that’s not going to be a part of training. What is going to be a part of training, I arrest somebody for burglary, I arrest them for DUI, I arrest them after they’ve maimed somebody.”

Gutierrez: “Obviously, the senator hasn’t read his own bill. What this bill does is, it says that any police officer can stop anyone who appears to them to be reasonably suspicious of being an undocumented person. And I’m going tell you something, if you and I are walking down the street, you’re not going to be the subject … of reasonable suspicion. He is simply wrong about his own bill. I suggest he read it.”

We’ll rate Huppenthal’s contribution to this conversation in a separate item. Here we’ll tackle Gutierrez’ comment.

Let’s start by looking at exactly what the law says. Here’s the part telling law enforcement officers that they need to check on individuals’ immigration status:

“For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.

But elsewhere, the bill inserts some limitations. Here’s one:

“A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona constitution.”

And here’s another:

“This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

These provisions cross-cut in a way that can be described either as nuanced or murky.

On the one hand, law enforcement officers are told that “for any lawful contact” they have with an individual, they have to try to determine the individual’s legal status if “reasonable suspicion exists” that the person is in the U.S. illegally. However, they cannot pursue an immigration status check “solely” because of race, color or national origin.

So a key question is whether the law’s stated protections against racial profiling are enough to protect someone from questioning if they were not suspected of committing a crime. If so, that would undercut Gutierrez’ argument.

In discussing these questions with legal experts, we found that everyone agreed that there’s some gray area that will need to be sorted out in future court decisions. That said, the general consensus was that the protections against racial profiling will have some effect, but that it is unlikely to be a foolproof barrier.

Peter Spiro, a Temple University law professor, said that while racial profiling is not permissible, profiling based on, say, clothing or behavior is legal — and rather common — as long as the profile isn’t based solely on race.

“Police departments come up with profiles that can establish a resonable suspicion,” Spiro said. Such profiles “entitle an officer to stop someone and say, ‘I’d like to ask you some questions?’ The officer can then investigate, which could lead to probable cause.” And at that point, Spiro said, an immigration status check would be acceptable under the Arizona law.

To be fair, it’s not necessarily easy to use profiles in this way. Spiro said that the challenge is drawing up a defensible profile for spotting illegal immigrants. “You can’t stop someone just because they look Hispanic,” Spiro said. “There has to be some other factor or factors, not all of which are race-based, as well as some empirical explanation of why that profile establishes a reasonable suspicion. You have to come up with something beside race that sounds plausible as correlating with undocumented status, and it’s hard to say what that would be.”

In addition, nothing we’ve learned guarantees that law enforcement officers will fully exercise the powers they’re granted under the new law — or that judges will let them. But most legal experts we asked felt that the law opened the door to widespread police questioning of individuals.

“In my mind, the ambiguity creates the danger of police abuse of persons of particular national origin ancestries and backgrounds,” said Kevin Johnson, the dean of the law school at the University of California (Davis) and a specialist on immigration law.

It’s worth noting that Brewer herself provided little guidance as she explained her decision to sign the bill. When she was asked at a news conference how illegal immigrants would be identified, she said, “I do not know what an illegal immigrant looks like. I can tell you that I think that there are people in Arizona that assume they know what an illegal immigrant looks like. I don’t know if they know that for a fact or not.”

Stephen W. Yale-Loehr, an adjunct law professor at Cornell University, agreed that this is a recipe for confusion. “The courts will have a hard time deciding what constitutes a reasonable suspicion,” he said.

As we try to rate the accuracy of Gutierrez’ statement, the degree of uncertainty about the law gives us pause, making us reluctant to rule either statement fully True or fully False. That said, we think that a close reading of the law and the views of the experts we contacted do allow us to draw some conclusions.

Gutierrez’ statement — that the law “says that any police officer can stop anyone who appears to them to be reasonably suspicious of being an undocumented person” — is fairly accurate, but not entirely. While the law does appear to provide significant latitude for law enforcement officers in Arizona to question people about their immigration status — on a pretext as basic as a broken tail light — the law also says the grounds cannot be based on race or ethnicity alone. This is a somewhat more narrow standard than Gutierrez indicated, so we will downgrade his comment to Mostly True.

http://www.politifact.com/truth-o-meter/statements/2010/apr/28/alfredo-gutierrez/arizona-immigration-law-allows-police-question-any/

Will says Arizona law merely echoes federal immigration statutes

Arizona just passed a new immigration law that’s getting the attention of national policymakers.

Critics of the bill say it may be unconstitutional and that it will prompt racial profiling.

But conservative columnist George Will said on ABC’s This Week that the new law only reiterates federal crimes.

“What the Arizona law does is make a state crime out of something that already is a crime, a federal crime,” he said. “Now, the Arizona police — and I’ve spent time with the Phoenix Police Department — these are not bad people. These are professionals who are used to making the kind of difficult judgments. Suspicion of intoxicated driving, all kinds of judgments are constantly made by policemen. And I wouldn’t despair altogether their ability to do this in a professional way.”

We’re leaving questions of constitutionality to the lawyers. Instead, we wondered whether Will is correct that the new Arizona law makes a state crime out of something that’s already a federal crime.

Other proponents of the bill have made the same argument, including Arizona Gov. Jan Brewer, a Republican, who said that the “legislation mirrors federal laws regarding immigration enforcement.”

“Despite erroneous and misleading statements suggesting otherwise, the new state misdemeanor crime of willful failure to complete or carry an alien registration document is adopted, verbatim, from the same offense found in federal statute,” she said on April 23, 2010, the day she signed the bill.

Opponents are adamant that the bill is unconstitutional. For instance, the Mexican American Legal Defense & Educational Fund wrote in a letter to Brewer that the new law will “require or permit public officials to investigate and determine individual’s immigration status. These provisions regulate immigration and are impermissible intrusions on Congress’ exclusive constitutional powers.”

They also argue that the Arizona law would allow local enforcement authorities to arrest those suspected of being in violation of the law without a warrant. But without a formal agreement with federal authorities, states are prohibited from enforcing civil violations of immigration law, they argue.

The legal scholars we spoke with told us to take a close look at two key sections of Title 8 of the U.S. Code. Section 1304e requires that “every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him.” Those who fail to comply will be guilty of a misdemeanor and will be fined $100 and can be imprisoned up to 30 days.

Section 1306a says that, “Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.”

Indeed, section 3 of the new Arizona law makes it a state crime if immigrants are in violation of either of those codes.

So, when it comes to that section of the law — arguably the “meat” of the new law — “it’s very clear that in this respect, George Will is right,” said Paul Bender, a law professor at Arizona State University.

Gabriel Chin, a professor of law at the University of Arizona, had a similar take. In an e-mail, he wrote that Will’s claim is generally correct.

“However, while the underlying offenses are federal crimes, they are among the least prosecuted in the U.S. Code,” he wrote. “For the relevant offense at issue here, failure of a non-citizen to register in violation of 8 U.S.C. 1306(a), there were 5 convictions across the U.S. in FY 2008. So to be precise, the statement would be ‘What the Arizona law does is make a state crime out of something that already is . . . a federal crime that the federal authorities have chosen not to enforce except in rare circumstances.'”

In fact, proponents of the Arizona law have argued that’s why new state immigration rules are needed; federal authorities are not doing a consistent job of enforcing immigration laws that are already on the books.

So, in the two cases above, the bill does make what are already federal crimes state crimes.

There are other parts of the new law that also overlap with federal statute. For instance, section 5 of the Arizona law, which deals with the transportation of non-citizens is nearly identical to section 1324 of Title 8 of the U.S. Code.

However, the Arizona law does break new ground. For example, section 5 also would make it illegal to pick up day laborers on the street for hire, “which has nothing to do with federal law. It’s essentially a traffic law,” Chin wrote. Those violating this section are guilty of a misdemeanor. And it also makes it a crime for an illegal immigrant to solicit work.

Mary Giovagnoli, Director of the Immigration Policy Center, pointed out another aspect of the bill that she finds particularly troubling: Section 2 of the Arizona law would allow citizens to sue local and state authorities if they do not believe the new law was being enforced effectively. State and local authorities could be fined between $1,000 and $5,000 a day for each day the policy remains in effect.

The bill also includes new language about how the law applies to employers and specifies the circumstances under which an officer can question and arrest someone they think is in violation of the law.

But Will was talking about crimes. He said that the the new Arizona immigration law makes what is already a federal crime into a state crime. And when it comes to some of the most talked about parts of the law, having to do with aliens who fail to carry proper paperwork and failing to register, Will is correct about the core of the law; federal statutes already makes those two provisions a crime. But the law also includes a new prohibition barring picking up day laborers on the street for hire and soliciting for work. That’s not in the federal code. As a result, we find Will’s claim to be Mostly True.

http://www.politifact.com/truth-o-meter/statements/2010/apr/28/george-will/will-says-arizona-law-merely-echoes-federal-immigr/