Feb 12, 2010 – Philadelphia, Pennsylvania - By Mary Claire Dale - Should the Gov’t be allowed to track a person’s movements based on cell phone records, without evidence of criminal wrongdoing?  A showdown on the issue unfolded Friday in a federal appeals court in Philadelphia, as the Justice Department battled electronic-privacy groups.

The privacy groups say the information could reveal when someone goes to a religious service, medical clinic or political rally, or is having an extramarital affair. Third U.S. Circuit Judge Dolores Sloviter seemed to share that concern.  “You know there are Gov’ts in the world that would like to know where some of their people are or have been,” Sloviter challenged Justice Department lawyer Mark Eckenwiler, an associate director of criminal enforcement operations.  “Can the government assure us that it will never try to find out these things?” she asked.  “Don’t we have to be concerned about this?  Not this government right now, but a Govt?”

Law enforcement agencies hope to obtain cell phone location data from cellular providers without first showing probable cause of a crime — & without the customer’s knowledge.  The data comes from cell phone towers, & in densely populated cities can pinpoint a person’s location to within a few hundred yards.  The issue is not whether the Gov’t can obtain the information, but whether a probable-cause warrant should be required first.  “An individual has no Fourth Amendment-protected privacy interest in business records, such as cell-site usage information, that are kept, maintained & used by a cell phone company,” Eckenwiler wrote in his brief.

Sloviter countered by asking Eckenwiler why there was a need to skip a probable-cause showing, saying that she knew no magistrates reluctant to grant search warrant applications.   He replied that the relevant law does not require them.  Eckenwiler said probable-cause warrants are only needed to obtain the contents of electronic communications, such as a text or e-mail, or to wiretap a phone.   He believes the 1986 Electronics Communications Privacy Act allows police to obtain “non-content” data without a warrant.

After Friday’s hearing, Senate Judiciary Chairman Patrick Leahy, D-Vt., chief author of the 1986 law, said his committee would revisit the legislation this year.   “The question of how best to protect these digital communications, while providing law enforcement with the tools that it needs to keep us safe, has no simple answer.  But, what is clear is that our federal electronic privacy laws are woefully outdated,” Leahy said in a statement.

The appeal heard Friday stems from a Pittsburgh drug-trafficking case, in which the ATF sought the data as an investigative tool because the suspects frequently changed vehicles & residences.

Magistrate Lisa Pupo Lenihan denied the 2008 request, calling the information “extraordinarily personal & potentially sensitive.”

The Electronic Frontier Foundation & the American Civil Liberties Union asked that Lenihan’s ruling stand.

Eckenwiler challenged the notion that Govt access to location data would turn a person’s phone into a “tracking device.”  He said the ATF was only seeking past cell phone use in the drug case.

However, a professor of cyberspace law called the distinction negligible.  Police could ask a cell phone provider for historical data & then ask again a month later — thereby achieving the same end, argued Susan Freiwald, a University of San Francisco law professor.   “Most cell phone users would be unpleasantly surprised, if not outraged, to learn that a law enforcement agent could gain access to their location information without first obtaining a warrant based on a showing of probable cause,” she wrote in a “friend of the court” brief.

Sloviter is joined on the three-judge panel by Judge R. Jane Roth, who was absent from the bench Friday, & visiting 9th Circuit Judge A. Wallace Tashima.   The judges suspended the usual 30-minute time limit for oral arguments, extending the session to 80 minutes.    Tashima questioned Freiwald’s contention that the phone-location data lets police invade the privacy of the home. Freiwald believes the information can suggest when people are home, when they are awake & who might be with them.   “We should be able to use our cell phones without them creating a virtual map of our movements & associations,” Freiwald argued.

–from Rogue

British newspapers including The Guardian recently reported that a controversial amnesty law, approved by Afghanistan parliament, is being brought into force without having been announced in the weeks leading up to the London Conference on Afghanistan. The amnesty precludes prosecution for war crimes committed in conflicts during previous decades.

The amnesty law, under the title of the “national peace and reconciliation charter”, was shelved for almost two years after being passed by a small majority in January 2007 by both the Afghan house of representatives and the senate. Although Afghan President Hamid Karzai was reported to have approved the law in March 2007, hailing it as “Parliament’s initiative for strengthening peace in Afghanistan”, the fate of the law remained unclear until recently, with no reference to it in the Afghan Law Gazette.

In Afghanistan, publicising the document in the publicly available Law Gazette is typically a prerequisite to the enforcement of any law. However, this particular volume of The Afghan Law Gazette is not yet accessible to public; another unusual step in Afghanistan.

Responding to Human Rights Watch's controversial 2006 report that had once again accused the Mujahedin leaders of war crimes, the amnesty law was designed to protect these still powerful figures from trial. Thus, the very first article of this 12-point charter calls for respect of “Jihad, resistance and the righteous struggles” of the Afghan people and says: “The Soldiers [of Jihad and resistance] must be valued and treated appropriately in the framework of the Islamic Republic of Afghanistan and be protected from any type of bother.”

The third article refers explicitely to the Human Rights report, stating, “The inaccurate reports of Human Rights Watch, published with regard to the Jihadi leaders and Afghan national characters are originated from suspicious intentions and thus Afghanistan National Shura [Parliament] announces them as baseless.”

The fourth article states that all armed insurgents, by joining the “national recounciliation process” will enjoy impunity. The law emphasizes that “no political group is excluded from this charter”.

Accordingly, the document is considered by many legal experts as contradicting the international conventions that Afghanistan has ratified. Amnesty International has urged President Hamid Karzai and the Afghan parliament to immediately suspend this controversial piece of legislation. Amnesty International and other human rights organisations, including the Afghanistan Independent Human Rights Commission (AIHRC), have criticised this attempt to provide legal impunity to perpetrators of human rights violations, including the Taliban.

South African Reconciliation Experience

The Afghan amnesty law refers to similar processes in other post-conflict states, particularly the South African reconciliation process which is considered to be a relatively successful programme.

In South Africa the Truth and Reconciliation Commission (TRC) was a court-like body that was formed after the abolition of apartheid. Witnesses who were identified as victims of gross human rights violations were invited to give statements about their experiences, and some were invited to public hearings. Perpetrators of violence could also give testimony and request amnesty from both civil and criminal prosecution.

The condition of giving amnesty to the perpetrators was their admission to the crimes they had committed under political (and not personal) motivations. Rather than retribution, the objective was to document and publicise the crimes and atrocities that had occurred during apartheid. In addition, the commission gave compensation to the victims in the name of restorative justice. 

The Afghan amnesty law, by contrast, makes no mention of the suffering of Afghan people who were subjected to frequent violations of their human rights during the past two and half decades. Nor does it speak of any aspiration to see justice for those who lost their beloveds in the atrocities perpetrated by different Mujahedin groups as well as the Taliban and other regimes. Instead it asks these victims to look upon the Mujahedin as their national heroes and to never question their deeds.

Brad Adams, the Asia director of Human Rights Watch, told The Guardian that the law was a "total abdication of the state's responsibility to investigate and prosecute crimes". He added that although the law only protects offenders from prosecution by the state, it is unlikely that individuals would pursue private cases "in the current context of impunity and the very real fears of reprisal".

Another incentive for the Taliban?

President Karzai’s decision to enforce the law is related to the recent reconciliation plans to persuade the Taliban to lay down arms; efforts that the Taliban have already rejected as “futile” and “farcical”.

Karzai appears to be surrendering the right to justice in a political gamble endorsed by a naïve international community. Afghans are concerned that neither the recent peace plans nor the implementation of the amnesty law can persuade the Taliban to end their fight.  In contrast, implementing the amnesty law has the potential to secure greater support for the Taliban at the local level.

Karzai and his team must be reminded that back in 1994, the then tiny Taliban led by Mullah Omar won the support of locals when they rioted against a local warlord in Kandahar. Almost nine years after their misrule was ended, locals in many villages prefer the Taliban because they are sickened by the high level of corruption, failed judicial systems and widespread impunity that local public officials are granted. 

President Karzai’s decisions seem to be illogical. Many Afghans are puzzled as to why Karzai and his team believe they can buy off the Taliban at a time when NATO commanders themselves admit that the insurgents are at the peak of their strength.

Although the insurgents know that they cannot win the battle through conventional military advances, they are well aware of the effectiveness of their ongoing war of attrition. They are also aware that public support for sending forces to Afghanistan is plummeting among ISAF partners and that the major powers are deliberating on a swift exit strategy.

Moreover, the Taliban will not compromise their existence by accepting peace offers. From the Taliban's perspective, the government’s conditions for talks – laying down arms and accepting the very same Afghan Constitution they consider un-Islamic and fight to change – are tantamount to surrender.

Desperate measures

Furthermore, implementing the amnesty law legalizes the culture of impunity, shields former warlords against any criticism, ignores the voices raised by both international and national organizations on human rights conditions and justice in the country and disappoints more Afghans who hoped that they would, one day, witness the rule of law in their war-torn country.

Desperate measures to bring peace and stability will result in nothing more than what we Afghans call “a nose made of dough”, one that only fills an ugly gap, but is useless for smelling and breathing.