Tag Archives: ACLU

Misplaced priorities at the Boston Police Dept.

Howard Zinn

Howard Zinn

Last October the Massachusetts chapter of the ACLU revealed that the Boston Police Department had been spying on left-wing activists such as the late Howard Zinn.

The police were working with the Boston Regional Intelligence Center (BRIC), a so-called fusion center through which the authorities could coordinate with the FBI and other agencies to find out who might be plotting a terrorist attack. Zinn, a peace activist, an elderly professor and World War II hero, was clearly someone to keep a close eye on.

Of course, we now know that at the same time the police were wasting their resources on Zinn, they were ignorant of what the FBI knew about Tamerlan Tsarnaev. Among those putting two and two together in the last few weeks were Michael Isikoff of NBC News;  Boston journalist Chris Faraone, who produced this for DigBoston; and Jamaica Plain Gazette editor John Ruch, who wrote an analysis.

Although it would be a stretch well beyond the facts to suggest that if the police hadn’t been watching left-wing and Occupy protesters they might have caught Tsarnaev, the BPD was certainly looking in all the wrong places. The police did a good and courageous job of reacting to the Boston Marathon bombings. The issue is how they spent their time and resources in trying to prevent a terrorist attack.

Spying on the antiwar left makes no more sense today than it did in the 1960s and ’70s. Police Commissioner Ed Davis needs to take a break from giving commencement speeches in order to answer a few questions.

And while I’m on the subject of questionable law-enforcement practices, I sure hope we find out what actually happened in Florida last week. Don’t you?

Aaron Swartz, Carmen Ortiz and the meaning of justice

Aaron Swartz in January 2012. Photo (cc) by Daniel J. Sieradski. For details, click on image.

Aaron Swartz in January 2012

An earlier version of this commentary was published on Sunday at The Huffington Post.

The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.

Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”

By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.

Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.

Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.

Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.

In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.

Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”

Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.

As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.

Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.

Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.

Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.

Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.

City settles with man arrested for video-recording police

Andrew Phelps of the Nieman Journalism Lab has posted a useful round-up following the ACLU’s announcement that the city of Boston will pay $170,000 to settle a lawsuit brought by a man who was arrested while attempting to video-record police activity.

The suit was filed by Simon Glik, a lawyer, after he was arrested while recording the arrest of a teenager on the Boston Common in October 2007. The settlement follows a ruling last fall by the U.S. Court of Appeals for the First Circuit that Glik was “exercising clearly established First Amendment rights.”

The Boston Police Department has since reversed its stance that such video-recording violated the state’s wiretapping law. Said Glik’s lawyer, Daniel Milton:

It is important that citizens be able to record police acting in public so that the police can be held accountable for their actions. As we see all around the country and world, images captured from people’s cellphones can have a remarkably important effect on public debate of public information. It is ultimately a tool of democracy.

As media observer Dan Gillmor noted on Twitter, “It’s not the city of Boston that will pay for violating 1st Amendment; it’s the taxpayers. Good result anyway.”

Here’s the full text of the ACLU press release:

BOSTON — Simon Glik, a Boston attorney wrongly arrested and prosecuted for using his cell phone to record police officers forcefully arresting a man on the Boston Common, has reached a settlement with the City of Boston on his civil rights claims. The settlement requires the City to pay Glik $170,000 for his damages and legal fees.

Mr. Glik was forced to defend himself against criminal charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. After a judge threw out those charges, Glik filed a civil rights suit against the city and the arresting officers in federal court in Boston, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton. This settlement resolves that case.

The settlement follows a landmark ruling last August by the U.S. Court of Appeals for the First Circuit, declaring that the First Amendment protects the right to record police carrying out their duties in a public place, Glik v. Cunniffe 655 F.3d 78 (2011). The First Circuit’s ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.

The Massachusetts wiretap statute prohibits only secret recording of audio. The First Circuit in Glik’s case affirmed that an arrest under the statute for openly recording the police would violate not only the First Amendment right to gather information but also the Fourth Amendment’s guarantee against false arrests.

“The law had been clear for years that openly recording a video is not a crime. It’s sad that it takes so much for police to learn the laws they were supposed to know in the first place. I hope Boston police officers will never again arrest someone for openly recording their public actions,” said Glik.

“The court’s opinion made clear that people cannot be arrested simply for documenting the actions of police officers in public. With this issue squarely resolved against it, it made sense for the City to settle the case rather than continuing to waste taxpayer money defending it,” said David Milton, one of the attorneys for Glik.

As part of the settlement, Glik agreed to withdraw his appeal to the Community Ombudsman Oversight Panel. He had complained about the Internal Affairs Division’s investigation of his complaint and the way they treated him. IAD officers made fun of Glik for filing the complaint, telling him his only remedy was filing a civil lawsuit. After the City spent years in court defending the officers’ arrest of Glik as constitutional and reasonable, IAD reversed course after the First Circuit ruling and disciplined two of the officers for using “unreasonable judgment” in arresting Glik.

After Glik filed suit, the City of Boston appeared to change its policy of letting police officers arrest and charge people with illegal wiretapping for recording them with cameras or cellphones in plain sight. The City developed a training video based on facts similar to the Glik case, instructing police officers not to arrest people who openly record what they are doing in public.

“The First Amendment includes the freedom to observe and document the conduct of government officials, which is crucial to a democracy and a free society. We hope that police departments across the country will draw the right conclusions from this case,” said Sarah Wunsch, ACLU of Massachusetts staff attorney.

Image via Wikimedia Commons.

Steve Kroft’s stunning omission

Anwar al-Awlaki

I wasn’t expecting much in the way of tough questioning last night when I sat down to watch President Obama’s interview with “60 Minutes.” The idea was to revel in the killing of Osama bin Laden. Steve Kroft’s questions — all of which were a variation on “Mr. President, why are you so wonderful?” — were no surprise.

Even so, I was startled when, toward the end of the interview, Kroft asked Obama, “Is this the first time that you’ve ever ordered someone killed?” The president blandly answered that every time he orders a military action, he does so with the understand that someone will be killed.

But what was missing from Kroft’s question and Obama’s answer was the name of Anwar al-Awlaki, a Yemeni-American whom the president ordered killed last year. Al-Awlaki survived a U.S. drone attack on his headquarters in Yemen on Saturday, after the “60 Minutes” interview was recorded. But the targeting of al-Awlaki was hardly a secret — it was even the subject of an unsuccessful lawsuit brought by his father. If Kroft didn’t know that, then he had no business sitting down with the president. If he did, well, why didn’t he say something?

The targeting of al-Awlaki, an American-born radical Islamist, was an extraordinary measure. As Jameel Jaffer of the ACLU, which helped with the lawsuit, has observed:

[T]he United States is not at war in Yemen, and the government doesn’t have a blank check to kill terrorism suspects wherever they are in the world. Among the arguments we’ll be making is that, outside actual war zones, the authority to use lethal force is narrowly circumscribed, and preserving the rule of law depends on keeping this authority narrow.

Should the United States be trying to kill al-Awlaki? According to this extensively footnoted Wikipedia article, al-Awlaki’s fiery rhetoric was the inspiration for a number of terrorist attacks. In addition, some say he has been involved in planning acts of terrorism and had advance knowledge of the 9/11 attacks. He may, in fact, be a legitimate target.

What troubles me is that it is not widely known that our government has targeted an American-born citizen for death. It’s something that ought to be debated openly, not relegated to an occasional mention in the media. So it’s an opportunity lost when a journalist like Kroft asks a question that is either ignorant or disingenuous, and then allows the president to dissemble without so much as a follow-up.

Did Kroft genuinely not know better, or had he and the folks at CBS News already decided not to press Obama? Either way, it was shocking omission. We could have learned something if only Kroft had bothered to do his job.

Photo via Wikimedia Commons.

A South African scholar is un-Muzzled

Adam Habib

In October 2006, a South African scholar named Adam Habib, a frequent visitor to the United States, was detained at JFK Airport, questioned about his political beliefs and hustled out of the country.

Habib later learned that the Bush administration had decided, on the basis of no apparent evidence, that he had ties to terrorism. More likely his exclusion was based on his outspoken opposition to the war in Iraq.

Habib’s ordeal led me to bestow a 2008 Phoenix Muzzle Award upon then-secretary of state Condoleezza Rice and then-secretary of homeland security Michael Chertoff for exploiting the vast, vague powers they had been granted after the 9/11 terrorist attacks in order to silence a prominent critic. Among other things, their actions forced Habib — who received his Ph.D. from City University of New York — to cancel an appearance at an academic conference in Boston on Aug. 1 of that year.

Now Habib is once again free to travel to the United States. In January, Secretary of State Hillary Clinton signed an order clearing Habib, a sociology professor at the University of Johannesburg, and Tariq Ramadan, a professor of St. Antony’s College, part of Oxford University, in response to a legal action brought by the ACLU and several other organizations.

Habib is currently on a 19-day tour of the U.S. that will bring him to Harvard Law School this Wednesday, an appearance being co-sponsored by the ACLU of Massachusetts. In an interview with the Chronicle of Higher Education, Habib praises Clinton’s decision, but urges the Obama administration to end his predecessor’s policy of “ideological exclusion.” Chronicle reporter Peter Schmidt writes:

“It is absolutely incumbent on the Obama administration to follow through on these tentative steps” and “withdraw all of the practices of ideological exclusion that emerged during this period,” Mr. Habib said. Noting how President Obama was himself shaped by living abroad as a child, Mr. Habib said, “It would be a failing of his own history, his own awakening, of his own historical roots, for him not to follow through on these tentative steps.”

Unfortunately, as is frequently the case in these situations, Habib’s voice was stifled when we most needed to hear him speak.

University of Johannesburg photo via the Chronicle of Higher Education.

Reconnecting with your audience

I’ll be leading a discussion on “Blogging, Social Media and Journalism” tomorrow from 10:45 a.m. to noon at the annual convention of the New England Newspaper & Press Association at the Park Plaza. I’ve put together some slides (above), but I’m conceiving this session as an unconference, and I want to turn it over to the editors and reporters who’ll be attending as quickly as possible.

The blabbing continues. From 3:45 to 5 p.m., Adam Gaffin of Universal Hub and I will lead a workshop on “Writing for the Web.”

Finally, on Saturday from 1:45 to 3:15 p.m., I’ll be taking part in a panel discussion on social media that’s part of the ACLU of Massachusetts “Secrecy, Surveillance and Sunlight” conference at UMass Boston. I’ll be joined by Northeastern University Law School professor Hope Lewis, ACLUM online communications coordinator Danielle Riendeau and ACLUM communications director Christopher Ott.

Now, to get back to those slides (and sorry for the funny line breaks; there’s something about SlideShare that I’m obviously missing). There are a number of examples I’ll be talking about that are worth taking a deeper look at. So I thought I’d post some links here.

ACLU attorney Wunsch on the anti-SLAPP ruling

Sarah Wunsch, staff attorney for the ACLU of Massachusetts, e-mailed her thoughts on the state Supreme Judicial Court’s ruling that journalists are not protected by a state law prohibiting “strategic lawsuits against public participation” — also known as the anti-SLAPP statute. The Associated Press covers the ruling here. Background here. Below is Wunsch’s e-mail, presented in its entirety.

Despite our amicus brief urging otherwise, the SJC has affirmed Judge Hines’s Superior Court denial of the special motion to dismiss under the anti-SLAPP statute that had been filed by the journalist, Hollander, after she was sued by the developer, Fustolo. The unanimous opinion is written by Justice Botsford. Her opinion focuses on the fact that Hollander was not seeking to redress a grievance or to petition for relief of her own. She says, “As in Kobrin, the defendant’s conduct was not an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf.”

Although the opinion says that a person is protected only if personally seeking redress of a grievance of his or her own, Justice Botsford distinguishes a case in which an attorney was given protection under the anti-SLAPP statute for his statements on behalf of his clients, and not for himself. To do that, she asserts that reporters occupy a different position with respect to a petitioning party than does the party’s attorney.

“There is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover,” particularly where the reporter denies representing a particular viewpoint. She contrasts this with Baker v. Parsons, where a biologist employed by an organization testified about her views and was protected by the SLAPP statute. (This reasoning seems to leave out of the equation whether the media outlet itself is the “petitioning party.” She seems to assume that it is only the community-based advocacy groups whose views the journalist is promoting.)

Thus, one of our concerns, that employees of advocacy organizations would not be protected by the anti-SLAPP statute, appears alleviated. Even if you are working for someone else as an advocate, as long as it is clear you are advocating for something, you should be protected.

Justice Botsford does reject the concept in Judge Hines’ opinion that because Hollander was paid, she had a private reason for her reporting, and was not sued for her petitioning alone. Being paid does not take a person out of the SLAPP protection.

Finally, Justice Botsford disagrees that this ruling will chill journalists. She cites New York Times v. Sullivan and the protection for reporters under that and under the fair-report doctrine.

As I read the opinion, a reporter writing news stories that are supposedly “objective” will not be protected by the SLAPP statute, despite the very broad definition of petitioning activity. If an editor or publisher wants to stir up the public to get them to support government action by focusing a series of news articles on the subject, too bad. No anti-SLAPP statute protection seemingly for the journalist despite the fact that the definition of petitioning includes this. I do not think this result is correct.

Under the Botsford decision, an opinion columnist is likely going to be protected by the anti-SLAPP statute, as is an employee of an advocacy organization. It seems that the concept of objective fair news reporting operates here to deprive news reporters of anti-SLAPP statute protection. One question is whether the newspaper publisher will be protected. The Botsford opinion talks about advocacy organizations but doesn’t seem to recognize that news media organizations can be advocacy organizations or be the “petitioning party” itself, engaged in activity that meets the definition of petitioning under the statute.

ACLU lawyer explains libel and SLAPP

Sarah Wunsch, a staff attorney with the ACLU of Massachusetts, offers further analysis of how the state’s anti-SLAPP law would modify libel law if journalist-activist Fredda Hollander wins her appeal, now before the Massachusetts Supreme Judicial Court. (SLAPP stands for “strategic lawsuits against public participation,” and the anti-SLAPP law is aimed at preventing people from abusing the legal system by hauling activists into court.) Wunsch writes in part:

The defendant, the petitioner, may have made some misstatements that are harmful to the plaintiff’s reputation, but in order to give some breathing space to the right to petition, the law provides that as long as the petitioning wasn’t baseless, the SLAPP suit should be thrown out. Some people might think that is unfair but because society benefits when people aren’t afraid to get involved in local government issues, the statute gives them some extra protection.

To which I would add that though anti-SLAPP protection for journalists might offer them some extra protection against libel suits, the overall effect would probably be slight.

In most cases, I suspect, the person bringing the allegedly abusive suit (in Hollander’s case, North End developer Steven Fustolo) would be deemed a public figure. And under the U.S. Supreme Court’s 1964 Times v. Sullivan standard, a public figure can’t win a libel case unless he’s able to prove that the person he’s suing made false, defamatory statements knowing they weren’t true, or showing reckless disregard for the truth.

My standard disclosure: Hollander paid me to write an affidavit on her behalf at an earlier stage of her case.

Earlier coverage.

The right direction

In following up on DevalPatrick.com this morning, I found that the privacy concerns have been largely addressed. Now, when you try to create a new account, the very first thing you have to do is enter an e-mail address. Next, you are prompted to enter your name, address and community. I tried to enter just my last name and town, as I did yesterday, and was blocked from going any further.

It still needs some work. It looks as though the system won’t accept “St.” as an abbreviation for “Street,” but will accept “St” (without the period). But this is a huge improvement over yesterday.

Given that folks at the Patrick campaign seem to get it, why do some people continue to defend this breach of privacy? Despite the challenge I issued yesterday, no one has been able to show me a Web site that offers quite the smorgasbord of information that DevalPatrick.com was making available to people. And yet.

The usually sensible Amused but Informed Observer writes to Media Nation wanting to know how Patrick’s Web site is (or, now, was) “any different from the street lists that have been sold in town clerk’s offices since the beginning of time.” Answer: Because you have to walk into the city or town clerk’s office and either buy a directory — or use it there — for just that one community. No easy, technology-enhanced fishing expeditions, in other words.

Amused and several others compare what the Patrick site was doing to what’s available at online registries of deeds. OK, I’ll bite. Here is the site for the Southern Essex District Registry of Deeds, serving the heart of Media Nation. It serves 33 cities and towns, which means that you can’t do one-stop shopping for all of the state’s 351 communities, as you could with the Patrick site. And yes, I was able to look up some mortgage information about someone I know. But it’s not very user-friendly, and you have to be very specific about what you’re trying to find.

Finally, Tom Keane was among those who pointed out that DevalPatrick.com was hardly alone in (accidentally) offering a reverse phonebook. Yes, of course. I love reverse phonebooks; here’s the one I generally use. Unlike commercial services, though, DevalPatrick.com presumably had access to unlisted phone numbers, since it was based on state records.

My bottom line is this: Before it was fixed, the Patrick site was violating people’s privacy. And if you could somehow cobble together similar examples from government sites, commercial services and the like, it doesn’t matter, because the Patrick folks were violating your privacy on a partisan political site, paid for with campaign contributions. It was wrong, and I’m glad it’s been fixed.

Of course, if Patrick’s people want anyone other than their sycophants to take the site seriously as a tool of governance, they’re going to have to get that big “Contribute” button off. Not likely, eh?

Breach of privacy at DevalPatrick.com

After reading about Secretary of State Bill Galvin’s concern (Globe story here; Herald story here) that DevalPatrick.com was not sufficiently protecting users’ privacy, I decided to experiment by starting the process of becoming a registered user.

First I was asked to enter my name or phone number. I entered “Dan Kennedy,” along with my town. No go. So then I entered just “Kennedy,” again along with my town.

Whoa! I got 78 names along with the streets they live on. The list consisted of everyone in my town named “Kennedy,” “Kenneth” or, oddly enough, “Kent,” “Kondo” or “Kimby.” Yes, Mrs. Media Nation and I were among the 78.

What’s weird about this is that the names are listed apparently for the sole purpose of your being able to verify that one of them is you. But you get the complete list without actually having to complete the registration process. So I can enter “Chen” and “Wellesley” and get another nice long list of names and streets, or, say, “Purcell” and “Weston.” Oh, look! There’s Pat Purcell, publisher of the Boston Herald.

I have no idea why this is necessary. Certainly I can’t think of another Web site for which I’ve registered that requires me to choose from a list of names. I enter my name, and away I go. I suppose the DevalPatrick.com scheme makes it easier to avoid the problem of someone posting nutty comments under a pseudonym. But can’t an intern at this campaign-contribution-funded site intercept those comments? Surely that would be better than violating everyone’s privacy.

The site carries with it this disclaimer: “www.devalpatrick.com believes strongly in protecting people’s privacy. Data on this site is limited to ONLY data that is now publicly available at any number of locations, including city and town halls, and websites. The site further limited data today by eliminating specific street address numbers.”

Is that right? Can any of Media Nation’s readers find a single Web site that displays entire lists of people along with the streets that they live on? (If you can, I’ll post it.) Yes, you can always get stuff like this by going to your town or city clerk’s office. But the hassle of having to do that is in itself a guarantee of a certain degree of privacy.

I’m with John Reinstein of the ACLU of Massachusetts, who tells the Globe’s Andrea Estes, “I’m puzzled by the whole thing.” And, unfortunately, I have to agree with the Herald’s Casey Ross, who calls this “yet another embarrassing misstep” for the governor.

And no, I didn’t complete the registration process.

Even worse: I just tried registering by entering my phone number, and up popped the Media Nation family. Unlike the registration-by-name feature, you don’t have to enter a city or town when you enter a phone number. So DevalPatrick.com also works as a very nice reverse phonebook, using data you were required to provide to the state and paid for by a partisan political-campaign committee.