At the precinct, Previtera discovered that in addition to the initial misdemeanor, he’d been charged with two felonies: "false report of location of explosives" and a "hoax device."

"It can be implied, with fingers and wires — especially in a heightened state of alert, as we are," says Officer Michael McCarthy, Boston Police Department spokesman.

Crooked, crooked, crooked.

Boston has a history of abusing 'bomb hoax' charges for political reasons

Welcome to the new world of border security. Unsuspecting Americans are turning up at the Canadian border expecting clear sailing, only to find that their past -- sometimes their distant past -- is suddenly an issue.

Canadian attorney David Lesperance, an expert on customs and immigration, says he had a client who was involved in a fraternity prank 20 years ago. He was on a scavenger hunt, and the assignment was to steal something from a Piggly Wiggly supermarket. He got caught, paid a small fine and was ordered to sweep the police station parking lot.
He thought it was all forgotten. And it was, until he tried to cross the border.

The official word from the Canadian Border Services Agency is that this is nothing more than business as usual.

But what has changed is the way the information is gathered. In the wake of 9/11, Canada and the United States formed a partnership that has dramatically increased what Lesperance calls "the data mining'' system at the border.

The Smart Border Action Plan, as it is known, combines Canadian intelligence with extensive U.S. Homeland Security information. The partnership began in 2002, but it wasn't until recently that the system was refined.

"They can call up anything that your state trooper in Iowa can,'' Lesperance says. "As Canadians and Americans have begun cooperating, all those indiscretions from the '60s are going to come back and haunt us.''

This is an important development. One of the things that information systems can do is make law enforcement perfect in certain contexts. Many laws are written with the assumption of imperfect enforcement. I'm sure that the people who originally crafted rules baring "convicts" from crossing borders knew that the data usually wouldn't be available. Its a convenient excuse that they can use to bar people if they need a way to bar them and they happen to have looked into them.

With this sort of information now at their disposal, the regulation takes on an entirely different tone. Anyone convicted of any minor offense is now barred from International travel without engaging in an involved paperwork process. This was not the intent of these laws, but modern legislatures are unlikely to act to resolve the situation unless they are the subject of significant pressure. Unfortunately, that pressure needs to start in the United States, which has been ratcheting up the requirements and the information sharing. The xenophobia and 9/11 skittishness here probably makes that an uphill battle.

Eventually, the fact that this information is being shared with all sorts of countries may result in a U.S. Citizen facing a bigger hassle from a foreign government than visa denial because that government has access to this data, and different legal standards. Canada may bar you for a pot conviction, but most South East Asian countries execute people for pot possession. A xenophobic moral panic in such a country might result in a records check of all expats, who might be repunished there for crimes they had been convicted of elsewhere.

Going to Canada? Check your past / Visitors with minor criminal records turned back at border

Two months after he was hit repeatedly with a Taser by university police, Mostafa Tabatabainejad has filed a civil rights lawsuit against UCLA and university police saying he "suffered an unprovoked act of police brutality."

This will take years to work itself out.

Student files lawsuit over Taser use

A judge of the Foreign Intelligence Surveillance court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.

This is an interesting development. The scope of this wording is much more narrow than the "seven degrees of Kevin Bacon" way that the program was initially framed by NSA spokespersons, and its not clear if any of that is carefully calculated or just bad wording. It will probably put an end to the court cases. The Administration is basically conceeding that they have to obey FISA, or at least that they are going to for now. One wonders if the whole debate wasn't an election year ploy that failed miserably. There are still a lot of very good reasons to worry that the administration is going too far in terms of who it is watching and whether the oversight now afforded is meaningful. However, this means we aren't going to see Congress pass another law which unwinds civil liberties in this country, and thats positive. On the whole I'd say this is a civil liberties win. The civil libertarians aren't trying to stop the surveillance program. They are concerned about the system of checks and balances. It appears they are not being undermined. One hopes the FISA court isn't as much of a kangaroo as many people suspect.

The Volokh Conspiracy - Did A FISA Judge Approve the Entire TSP?

Ryan Singel at 27B Stroke 6 chimes in on an element of the Democrats' 911 bill. This sounds really good to me.

Most notably, the bill removes the Privacy and Civil Liberties Board from the White House -- turning it into an independent agency.

Good news!

27B Stroke 6 | Dem's Privacy Changes in 9/11 Bill Challenge Administration

The relevant section of the Act is Section 1010(e), which comes at the very end of the act in a section about "technical and conforming amendments." This section doesn't do much: it simply moves a paragraph of statutory text from one place in the U.S. Code to another. Specifically, the section takes a paragraph from 39 U.S.C. 3623(d) — a paragraph that has been there since the 1970s — and moves it to 39 U.S.C. 404(c).

So what does this signing statement mean? First, it pretty clearly says that the Administration reads the moved paragraph as having implicit exceptions that track the Fourth Amendment's exceptions to the warrant requirement.

It may be that this signing statement is nothing... On the other hand, it may be that it hints at a program allowing the government to open postal mail under the claimed authority of the AUMF (Authorization for the Use of Military Force (in Afghanistan, et al)).

Orin Kerr provides some details on the Bush signing statement, and many Volokh readers comment.

I have to wonder if this isn't just a product of beaurocracy. Beaurocrat A is cleaning up beaurocratic regulation B and decides that paragraph C would be more logical if it was organized under section D. Congress approves, and the bill goes before Whitehouse beaurocrat E, who has never seen paragraph C before, and adds signing statement F, designed to protect his client, President G, by providing a mundane explanation of how paragraph C doesn't override an existing understanding of Amendment 4. Journalist H reads this signing statement, jumps to conclusion I, and writes sensationalistic story J, which leads bloggers K through V to freak out, and gives Special Agent X an idea.... Eventually the entire country is beset with an Orwellian Nightmare, and its all due, ultimately, to the anal retentive regulatory care of beaurocrat A.

The Volokh Conspiracy - Has the Bush Administration Claimed New Power to Open Mail?

The Supreme Court declined to hear an appeal from online civil liberties pioneer John Gilmore who was contesting a Ninth Circuit decision which held that the government did not have to make public its rules about requiring airlines to ask passengers for identification.

This is the end of the road for Gilmore's case. Gilmore argued that the government cannot enforce a secret rule. The 9th Circuit disagreed, saying that the Government can enforce a secret rule in the case where the secret rule doesn't take away your fundamental rights. At the heart of the 9th's decision was the following illogical passage, which the Supreme Court has effectively upheld by denying cert in this case, at least in regard to the western United States.

"He was not threatened with arrest or some other form of punishment; rather he simply was told that unless he complied with the policy, he would not be permitted to board the plane. There was no penalty for noncompliance."

Apparently, the Government can enforce a secret rule as long as the rule does not impinge on a fundamental right that is specifically protected by the Constitution. The right to fly on an airplane is not specifically protected (based on the logic that you could walk to your destination) and so the Government can enforce secret rules with regard to it. Whether or not the Government can enforce secret rules in the context where a fundamental right is impinged is a matter for a different lawsuit.

Its not totally absolutely over for the legal question. Its technically possible for this matter to be raised in another district, and if that district reaches a different conclusion, its possible that the Supreme Court would hear the case. Sometimes the Supremes like to wait for a number of different jurisdictions to look at an issue in different ways before they take it on... There is no telling when or how these issues will come up in court again. If all of the districts reach the same conclusion, it won't matter either.

27B Stroke 6: Gilmore Airport ID lawsuit is over

Kudos to the D.C. Council, which recently voted in favor of a resolution by Carol Schwartz, at-large Republican, to nix the District's unjust "zero tolerance" policy of allowing police to arrest motorists who register any alcohol at all after stopping them for other offenses.

The Schwartz resolution was inspired by an article in The Washington Post, which found that hundreds of D.C. residents had been arrested for driving under the influence (DUI) with blood alcohol levels below .05, including some at as low as .01.

The larger problem, however, is the fact that since 2000, the federal government has mandated a blanket .08 legal threshold for the entire country. We've now had five years of data to measure the effectiveness of the .08 standard, and the data strongly suggest that not only is the standard too low, but the resources we're expending to enforce it may actually be making our roadways more dangerous.

So I stumbled upon the WaPo article linked above with this totally insane story about this woman who was arrested and had to spend thousands of dollars to keep herself out of going to a 12 week "counseling program" because she had a single glass of wine at dinner. I was heartened to find that DC repealed that law. This commentary provides some interesting information about the national .08 standard and whether or not it actually makes roads safer. Sometimes, authoritarian policies kill. Particularly when you have the police in one of the most dangerous cities in the country focused on hassling people who drank a single glass.

Forum: Lower DUI Threshold More Dangerous?

It looks like the election of Democrats has created some progress for those concerned about the NSA program.

"I wonder whether this reversal is only coming now after the election as an attempt to appease Democrats in Congress who have been critical of the NSA program and will soon be in control and armed with subpoena power," Hinchey said in a news release.

But not too much progress...

Translation: We’re going to look at how the intercepts from this program were handled internally, but not whether the program is legal.

Prediction: In six months to a year, the OIG will release a report stating that it could find no evidence that DOJ mishandled intelligence products from the program.

This link, and the stories it links, are worth a read.

Justice inspector general to review terrorist surveillance program - Homeland Stupidity

Gingrich, speaking at a Manchester awards banquet, said a "different set of rules" may be needed to reduce terrorists' ability to use the Internet and free speech to recruit and get out their message.

Well, thats rather inceditary. What was his exact quote? Unfortunately, the press won't tell us. Another outlet has him using the words "different set of rules" in a totally different context:

Noting the thwarted London terrorist attacks this summer, Gingrich said there should be a Geneva Convention for such actions that makes those people subject to "a totally different set of rules."

So, what DID he say. Did he say both things? I happen to agree with the later. A Geneva Convention for dealing with enemy combatents is preferable to our present "do what the administration wilt shall be the whole of the law" policy. I don't, however, like this peculiar comment:

"We are the only society to say power comes from God to you personally and you loan part to the state," Gingrich said. "It doesn't begin with the lawyers, with the bureaucrats... If there is no creator, where do your rights comes from?"

Um, yes it does come from lawyers and bureaucrats. Its called a social contract. The Declaration of Independence is not the Constitution.

Union Leader - Gingrich raises alarm at event honoring those who stand up for freedom of speech - Tuesday, Nov. 28, 2006