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Bill would force police to get warrants for emails

A Bay Area lawmaker’s new bill would require California law enforcement agencies to get a search warrant before asking service providers to hand over a private citizen’s emails.

SB 467 by state Sen. Mark Leno, D-San Francisco, is sponsored by the Electronic Frontier Foundation, a San Francisco-based civil liberties group. Leno introduced a place-holder version of the bill last month, but rolled out its operative language today.

go get a warrant“No law enforcement agency could obtain someone’s mail or letters that were delivered to their home without first securing a search warrant, but that same protection is surprisingly not extended to our digital life,” Leno said in a news release.

“Both state and federal privacy laws have failed to keep up with the modern electronic age, and government agencies are frequently able to access sensitive and personal information, including email, without adequate oversight,” he said. “SB 467 repairs the existing holes in California’s digital protection laws, ensuring that electronic communications can only be accessed by law enforcement with a warrant.”

Some law enforcement agencies have claimed investigators don’t need a warrant to obtain any email that has been opened or has been stored on a server for 180 days. The U.S. Department of Justice’s Office of Legal Policy recently announced it would support changes to federal law that would require a warrant in such cases.

“California, the home of many technology companies, should be a leader in protecting the privacy of people’s electronic communications,” EFF staff attorney Hanni Fakhoury said in Leno’s release. “Many of the state’s technology companies have already indicated that they require a search warrant before disclosing the contents of communications. With SB 467, the warrant requirement becomes the status quo for all electronic communication providers and all law enforcement agencies across the state.”

The American Civil Liberties Union also supports the bill, which “would ensure that content stored in the cloud receives the same level of protection as content stored on a laptop or in a desk drawer,” said Nicole Ozer, the Northern California ACLU’s technology and civil liberty policy director.

Posted on Wednesday, March 20th, 2013
Under: California State Senate, Civil liberties, Mark Leno | 2 Comments »

Zoe Lofgren offers bill to limit domestic drone use

A new bill coauthored by a Bay Area congresswoman would establish due process protections for Americans against government-operated unmanned aerial drones in U.S. airspace.

H.R. 637, the Preserving American Privacy Act by Rep. Zoe Lofgren, D-San Jose, and Rep. Ted Poe, R-Texas, would also forbid law enforcement and private drones from being armed with firearms or explosives while operating within U.S. airspace.

“The expanded use of drones on U.S. soil raises serious Constitutional and civil liberties issues that Congress needs to address,” Lofgren said in a news release. “These devices should be used in a safe, open, and responsible manner. This bill would ensure that drones follow strict guidelines to protect Americans’ privacy while still realizing their practical applications for science, border security, public safety, and commercial development.”

Said Poe: “Just because Big Brother can look into someone’s backyard doesn’t mean it should. Technology may change, but the Constitution does not.”

The bill would require that government agencies must obtain a warrant to use drones to collect information that can identify individuals in a private area, and get a court order and provide public notice beforehand to collect information that can identify individuals in defined public areas. Those requirements would be subject to exceptions for emergencies, border security and consent, however.

The bill also would forbid privately-operated drones from being used to capture images or sound recordings of people engaging in personal activities in certain circumstances in which the individual has a reasonable expectation of privacy.

Posted on Friday, February 15th, 2013
Under: Civil liberties, U.S. House, Zoe Lofgren | 13 Comments »

9th Circuit to rehear challenge to state DNA law

The 9th U.S. Circuit Court of Appeals agreed Wednesday to rehear a challenge to California’s law requiring law enforcement officers to collect DNA samples from all adults arrested for felonies.

The lawsuit was filed in 2009 by the American Civil Liberties Union of Northern California; spokeswoman Rebecca Farmer said Wednesday that oral arguments will be heard by an 11-judge “en banc” panel during the week of Sept. 17.

The state Legislature in 1998 enacted a law requiring DNA sampling from people convicted of certain offenses. But in 2004, 62 percent of California voters approved Proposition 69, which expanded the law to require DNA collection from “any adult person arrested or charged with any felony offense … immediately following arrest or during the booking.”

A three-judge panel of the 9th Circuit appellate court had upheld that law in February, finding “that the government’s compelling interests far outweigh arrestees’ privacy concerns” because “DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects.”

The Electronic Frontier Foundation in March joined with the ACLU in calling for an en-banc rehearing, arguing that the warrantless seizure and repeated search of DNA taken from people who’ve merely been arrested – not convicted – is unconstitutional.

But in a brief filed in April arguing a rehearing, the state attorney general’s office noted that “(v)irtually every federal court to have considered the question agrees that the collection of a DNA sample for forensic identification, pursuant to a
lawful arrest and subject to statutory restrictions on collection, use and confidentiality, comports with the Fourth Amendment.”

Posted on Wednesday, July 25th, 2012
Under: ballot measures, Civil liberties, Public safety | 3 Comments »

DiFi floats bill to bar citizens’ indefinite detention

U.S. Senate Intelligence Committee Chairwoman Dianne Feinstein today introduced a bipartisan Due Process Guarantee Act of 2011, which states that American citizens apprehended inside the United States can’t be indefinitely detained by the military.

This has been a hot topic in recent weeks, as Congress debated a National Defense Authorization Act that had included a provision which would’ve allowed just such indefinite detentions. Per Politico, in order to satisfy the administration and other opponents’ concerns, the final bill says nothing in it may be “construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” The House passed the bill 283-136 on Wednesday; today’s Senate vote was 86-13.

Feinstein, who voted for the bill, apparently wants to ensure this issue doesn’t come up again.

The legislation she introduced today would amend the Non-Detention Act of 1971 by providing that a Congressional authorization for the use of military force does not authorize the indefinite detention, without charge or trial, of U.S. citizens apprehended on U.S. soil. It also would codify a “clear-statement rule” requiring Congress to expressly authorize detention authority when it comes to U.S. citizens and lawful permanent residents.

The protections for citizens and lawful permanent residents is limited to those “apprehended in the United States” and wouldn’t cover citizens who take up arms against the United States on a foreign battlefield, such as Afghanistan.

“The argument is not whether citizens such as Yaser Esam Hamdi and Jose Padilla – or others who would do us harm — should be captured, interrogated, incarcerated and severely punished. They should be,” she said in a news release today. “But what about an innocent American? What about someone in the wrong place at the wrong time? The beauty of our Constitution is that it gives every citizen the basic due process right to a trial on their charges.”

“Experiences over the last decade prove the country is safer now than before the 9/11 attacks. Terrorists are behind bars, dangerous plots have been thwarted. The system is working,” she continued. “We must clarify U.S. law to state unequivocally that the government cannot indefinitely detain American citizens inside this country without trial or charge. I strongly believe that Constitutional due process requires U.S. citizens apprehended in the U.S. should never be held in indefinite detention. And that is what this new legislation would accomplish.”

Her bill’s original cosponsors are Patrick Leahy, D-Vt.; Mike Lee, R-Utah; Mark Udall, D-Colo.; Mark Kirk, R-Ill.; Rand Paul, R-Ky.; Chris Coons, D-Del.; Dick Durbin, D-Ill.; Kirsten Gillibrand, D-N.Y.; Bill Nelson, D-Fla.; Jeanne Shaheen, D-N.H.; Al Franken, D-Minn.; Tom Udall, D-N.M.; and Claire McCaskill, D-Mo.

UPDATE @ 3:23 P.M. FRIDAY: Rep. John Garamendi, D-Walnut Grove, and Rep. Martin Heinrich, D-N.M., today introduced the House companion bill, H.R. 3702.

“Every American deserves their day in court, and this legislation changes existing law to protect our due process rights,” Garamendi said in his news release. “We cannot allow our basic rights to be lost, and there is no legitimate national security reason to deny any citizen in America a trial. We can both keep America safe and maintain our liberties.”

Said Heinrich: “Detainee provisions included in this year’s Defense Authorization and retained in the final Conference Report do not strengthen our national security and are at complete odds with the United States Constitution. It is time we restore the proper balance between individual liberties and national security.”

Posted on Thursday, December 15th, 2011
Under: Civil liberties, Dianne Feinstein, John Garamendi, U.S. House, U.S. Senate, War on Terror | 1 Comment »

ACLU loses in court vs. OPD, declares victory

A federal judge has rejected civil-rights groups’ request for a preliminary injunction to keep Oakland Police from using excessive force against Occupy protesters and other demonstrators.

Nonetheless, the American Civil Liberties Union of Northern California declared victory.

“(E)ven without a favorable ruling at this juncture, we’ve reached our ultimate goal with the lawsuit: stopping further violence by OPD against protesters,” ACLU staff attorney Linda Lye blogged today. “Since the filing of the lawsuit, there has not been a repeat of police violence. OPD has toned down its bad behavior. Whether the timing is coincidental, it’s not a far stretch to assume that being under the scrutiny of yet another court may have impacted OPD’s approach to handling demonstrations.”

The ACLU and the National Lawyers Guild filed a lawsuit Nov. 14 on behalf of Scott Campbell, a protester and videographer at whom police apparently fired a beanbag round without provocation or adequate reason.

U.S. District Judge Richard Seeborg basically denied the plaintiffs’ request for a preliminary injunction for the same reasons he had denied the earlier request for a temporary restraining order.

“(P)laintiffs sought a restraining order requiring defendants’ compliance with the entire Crowd Policy. Now they seek an order enjoining Oakland from violating four specific provisions of the Crowd Policy, which govern dispersal orders, and the use of less lethal munitions, flash bang grenades, and tear gas,” Seeborg wrote in his ruling. “As before, the proposed order would require the court to supervise and oversee defendants’ compliance with its own policy. Accordingly, federalism principles still disfavor judicial oversight of local law enforcement agencies, absent evidence of concerted, officially-sanctioned violations of constitutional rights.”

“Whatever the relative strength of each side’s factual record, mere proof of police misconduct does not entitle plaintiffs to an injunction,” the judge wrote. “(B)ecause plaintiffs have not shown a pattern of officially sanctioned misconduct, they have not dispelled doubt as to their standing for injunctive relief, and therefore cannot establish a likelihood of success on the merits.”

UPDATE @ 4:07 P.M.: Gregory Fox, the city’s lawyer, said the city appreciates the attention Seeborg paid to Interim Police Chief Howard Jordan’s testimony. “The judge clearly recognized the chief is committed to both allowing free speech to take place on the streets of Oakland while maintaining order and safety for all those concerned.”

Posted on Tuesday, December 13th, 2011
Under: Civil liberties, Oakland | 3 Comments »

Perez, Steinberg urge review of pepper-spray use

California Assembly Speaker John A. Pérez, D-Los Angeles, just issued this statement amid the uproar over police’s use of pepper spray against nonviolent protesters Friday at the University of California, Davis:

“I was appalled at the apparent use of excessive force by the UC Davis police force at a peaceful student demonstration.

“All Americans deserve the right to peacefully express their opinions. Nowhere is that right more sacrosanct than in the university setting. I fully support the right of the students to continue to express their frustrations and aspirations, and I call on the University to assure the safety of their student body, not only from physical harm, but from limitations of their free expression.

“It is my expectation that the university will complete a thorough review of the incidents in question and adjust police procedures accordingly.”

Yesterday, state Senate President Pro Tem Darrell Steinberg, D-Sacramento, had said:

“On its face, this is an outrageous action for police to methodically pepper spray passive demonstrators who were exercising their right to peacefully protest at U.C. Davis. Chancellor Katehi needs to immediately investigate, publicly explain how this could happen and ensure that those responsible are held accountable.”

The Davis Enterprise reported this morning that UC Davis Police Chief Annette Spicuzza has been placed on administrative leave, along with two of the officers involved in the use of pepper spray, pending a review.

UPDATE @ 12:57 P.M.: Rep. John Garamendi, D-Walnut Grove, who as the state’s former lieutenant governor used to sit on the UC Board of Regents, is up in arms about the incident, too:

“I am appalled by the way in which students at UC Davis were treated. Campus police should know better than to cavalierly pepper spray peaceful protestors. The proud tradition of peaceful campus protests was shamelessly marred by these actions. I’m glad an investigation is underway, and I look forward to a full report on how they will avoid incidents like this in the future.

“At the same time, violent protests are never appropriate. From what I have seen, however, there was no violence on the part of the protesters at UC Davis. Indeed, by all accounts, Aggie students have shown remarkable restraint in the days following the pepper spraying. If and when protests become heated, they must be handled with the greatest discretion, so as to avoid and minimize injury to police and to demonstrators.

“Every incident of violence – no matter who the perpetrator – is a distraction from the legitimate issues that the 99% movement has raised. Our public universities have seen drastic cuts, harming our ability to stay competitive in a tough economy, and thousands of students have been priced out of an education or burdened with debts that they cannot repay. I hope the entire university community understands that we’re all in this together.”

UPDATE @ 4:48 P.M.: Lynda Gledhill, spokeswoman for California Attorney General Kamala Harris, noted the Yolo County Sheriff’s Department is investigating and will take what it finds to that county’s district attorney. The attorney general doesn’t usually get involved in such cases while that process under way unless asked to do so because local officials have a conflict of interests or a lack of resources.

Nonetheless, Gledhill said, “the attorney general is disturbed, she thought the incident was disturbing, and wants to follow the process and make sure the review is through. She will be monitoring that.”

Posted on Monday, November 21st, 2011
Under: Assembly, California State Senate, Civil liberties, Darrell Steinberg, John Garamendi, John Perez, Kamala Harris, U.S. House | 18 Comments »

Judge won’t issue TRO against Oakland Police

A federal judge yesterday denied civil liberties groups’ and activists’ request for a temporary restraining order to keep Oakland police from using excessive force in violation of their own crowd-control policies.

The American Civil Liberties Union of Northern California and the National Lawyers Guild had sued the Oakland Police Department on Monday on behalf of Timothy Scott Campbell, a videographer who was shot with a bean bag projectile while filming police presence during Occupy Oakland on the night of November 2-3, 2011, and other demonstrators who say they were subjected to excessive force during recent protests.

U.S. District Judge Richard Seeborg directed the parties to file briefs before appearing at a Nov. 30 hearing on whether a preliminary injunction should be issued.

But in his ruling Wednesday, Seeborg said issuing a temporary restraining order now would require him to supervise and oversee the Oakland police’s compliance pending further hearings, and even if everything the plaintiffs claim in their lawsuit is true, they haven’t satisfied the legal standards “for such an expansive and unfettered order.”

“To justify an order generally requiring Oakland to comply with its Crowd Control Policy, plaintiffs must show that such ‘systemwide relief’ is necessary to prevent defendants from concertedly violating the protesters’ constitutional rights,” the judge wrote. “Sporadic or isolated violations of individual protesters’ rights are insufficient to support broad injunctive relief against an entire agency.”

Seeborg wrote that Occupy Oakland protests have continued for days on end without any alleged unconstitutional interference from local authorities. “By plaintiffs’ account, actionable conduct has occurred on no more than two to three occasions, spanning a number of hours, in over a month of almost continual demonstrations taking place across Oakland. Thus, plaintiffs’ request must fail on its own terms.”

The plaintiffs also failed to show a likelihood of immediate, irreparable harm “because the Occupy Oakland protests have continued for over a month with relatively limited confrontations,” the judge wrote.

“Both parties maintain compelling interests,” he acknowledged. “Plaintiffs, of course, seek to protect and exercise their First and Fourth Amendment rights in ways that implicate the public interest. The defendants, on the other hand, have indisputably accommodated the majority of the demonstrations, and seek to protect the safety and property of other Oakland residents.”

ACLU staff attorney Linda Lye said she and her clients “are disappointed” by Seeborg’s denial of a temporary restraining order. “OPD is taking the position that it has not violated the crowd control policy at all, and the judge basically said in his order denying the TRO that the evidence was too anecdotal,” she said.

The plaintiffs disagree with that, Lye said, but whether anecdotal or not, Oakland police have acted in ways that not only injured protestors but also has made others afraid to protest, thus chilling their exercise of First Amdendment rights. “We’re doing our best to ensure OPD does not continue to trample on protesters’ rights.”

Posted on Thursday, November 17th, 2011
Under: Civil liberties, Oakland, Public safety | 3 Comments »

ACLU, National Lawyers Guild sue Oakland police

The American Civil Liberties Union of Northern California and the National Lawyers Guild sued the Oakland Police Department in federal court Monday, seeking an emergency temporary restraining order to stop police violence against political protesters.

U.S. District Judge Richard Seeborg immediately issued an order requiring the city to respond by 5 p.m. today, Tuesday, Nov. 15.

The groups sued on behalf of Timothy Scott Campbell, a videographer who was shot with a bean bag projectile while filming police presence during Occupy Oakland on the night of November 2-3, 2011, and other demonstrators who say they were subjected to excessive force during recent demonstrations.

“I was filming police activity at Occupy Oakland because police should be accountable,” Campbell said in the ACLU’s news release. “Now I’m worried about my safety from police violence and about retaliation because I’ve been outspoken.”

ACLU staff attorney Linda Lye said “excessive police force is never acceptable, especially when it’s in response to political protest.” And NLG attorney Rachel Lederman said the Oakland police’s “unconstitutional actions against protestors on those two nights were wholesale and flagrant violations of Oakland’s own Crowd Control Policy.”

The lawsuit argues the police’s conduct violates the Fourth Amendment by subjecting protesters who posed no safety concerns to unnecessary and excessive force, and violates the First Amendment by interfering with their rights to assemble and demonstrate. The lawsuit asks for a temporary restraining order and preliminary injunction, arguing the department has shown by its recent actions that it will continue to violate protesters’ constitutional rights unless a court intervenes.

Posted on Tuesday, November 15th, 2011
Under: Civil liberties, Oakland | 4 Comments »

Civil libertarians blast two of Brown’s vetoes

Civil libertarians are hopping mad over Gov. Jerry Brown vetoes of two bills Sunday: one that would’ve required police to get a warrant before searching mobile devices of arrestees, and another that would’ve limited the shackling of pregnant women inmates.

The search-warrant bill, SB 914 by state Sen. Mark Leno, D-San Francisco, was supported by groups including the American Civil Liberties Union, the First Amendment Coalition and the California Newspaper Publishers Association (of which, in the interests of full disclosure, my employer is a member). The bill would have limited searches of mobile devices to cases in which an officer has probable cause to believe a suspect’s device contains evidence of a crime; it would’ve allowed for exceptions in emergency circumstances.

“This measure would overturn a California Supreme Court decision that held that police officers can lawfully search the cell phones of people they arrest,” Brown – who served four years as attorney general, the state’s “top cop” – wrote in his veto message. “The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizure protections.”

But ACLU of Northern California attorney Linda Lye said today that the courts and Brown aren’t keeping up with the technological times.

“No one would think that it’s okay for police to search a person’s financial documents, photo albums, address books, or the entire contents of their laptop without a warrant,” Lye said. “But mobile phones can hold all that information and more. We deserve the same privacy protection for our digital lives as we have offline.”

Leno said the bill “would have reinforced critical privacy protections in California law. In a rare showing of consensus, legislators and editorial boards from vastly different parts of the state and political spectrum have expressed support for this bill. Together with business owners, journalists and civil rights advocates, they believe privacy is not a partisan issue. It’s good public policy.”

Brown also vetoed AB 568 by Assemblywoman Nancy Skinner, D-Berkeley, which would’ve created statewide standards for how pregnant women in correctional facilities are restrained; the Assembly and state Senate both passed the bill unanimously. State law already bars use of shackles during labor unless deemed necessary, but the American Medical Association and the American Congress of Obstetricians and Gynecologists (ACOG) have supported efforts to limit shackling during pregnancy due to the health risks it creates.

Dr. Phillip Diamond of Chula Vista, chair of ACOG’s ninth district, said the veto was disheartening.

“It is clear the law prohibiting shackling during labor does not go far enough,” he said. “There are many other circumstances where restraints impede the ability of the physician to provide timely and critical care, including for life-threatening conditions. Failure to sign not only fails women and the pregnancies, but leaves the state vulnerable to lawsuits for cruel and unusual punishment.”

Karen Shain, policy director at Legal Services for Prisoners with Children, said her organization has accounts of pregnant women falling and endangering their pregnancies due to the excessive use of shackles. “The standards created by AB 568 would have ensured pregnant women are restrained safely. These standards are sorely needed.”

Brown wrote in his veto message that he had been inclined to sign AB 568 at first blush “because it certainly seems inappropriate to shackle a pregnant inmate unless absolutely necessary.”

“However, the language of this measure goes to far, prohibiting not only shackling but also the use of handcuffs or restraints of any kind except under ill-defined circumstances,” the governor wrote. “Let’s be clear. Inmates, whether pregnant or not, need to be transported in a manner that is safe for them and others. The restrictive criteria set forth in this bill go beyond what is necessary to protect the health and dignity of pregnant inmates and will only serve to sow confusion and invite lawsuits.”

The bill’s advocates said they’d met repeatedly with law enforcement officials in an effort to accommodate their demands, but the California State Sheriffs’ Association voiced concerns only after the bill had reached Brown’s desk, too late for further amendments.

“The CSSA was concerned that officers could not use handcuffs under AB 568, but it explicitly states that handcuffs in front are permissible if needed for safety and security reasons,” the ACLU of Northern California’s Alicia Walters said. “Last session law enforcement was concerned that officers could not use their discretion, so this year we drafted language to ensure they could put their hours of training to use under some much-needed standards.”

Posted on Tuesday, October 11th, 2011
Under: Assembly, California State Senate, Civil liberties, Jerry Brown, Mark Leno, Nancy Skinner, Public safety | 2 Comments »

On the 10th anniversary of the 9/11 attacks

Ten years ago this morning, I was awakened at dawn by a phone call from my grandmother in Queens, N.Y.

“I just wanted to make sure you all were OK,” she said.

“Uh, sure, why wouldn’t we be?” I asked groggily.

“They bombed New York and Washington,” she replied.

I turned on the television. Five minutes later I was in my car, speeding toward the newsroom, carrying images that remain burned in my brain to this day.

We all share them. Some of us dwell on them, some don’t. But all our lives have changed because of them.

We worked feverishly that day, trying to glean every nugget of information we could from sources everywhere from lower Manhattan to Oakland City Hall. It was the only time in my career that I’ve helped put an extra mid-day edition on the street without prior planning, a pell-mell blur of instant journalism.

For maybe 30 seconds each hour, each of us would suddenly stop, transfixed by the latest video clip, some new vantage point from which to watch those inexorable, murderous trajectories. Then we would wipe our eyes and go rushing back out the door or onto the phones.

Our stories in the following few days reflected on what it might bring. War? Domestic distrust? Impinged civil liberties? I’ve never been unhappier to have helped make accurate predictions.

We lost something that day. In some ways, ours has become a lesser nation.

That’s not to say we didn’t rise to the challenge. We were grievously attacked; we responded, and our enemies have paid dearly.

But think of the lexicon we’ve had to teach ourselves in the decade since. “Improvised explosive device.” “Up-armored Humvee.” “Threat level orange.” “Full-body scanner or pat-down search?” “PATRIOT Act.” “Ground Zero mosque.”

Maybe it’s that last one that bothers me most. I just saw it most recently just the other day in an e-mail update from Terry Jones, the execrable “man of God” from Florida who made a public name for himself by burning the Koran.

It’s not a mosque; it’s a community center with a prayer space. It’s not at Ground Zero; it’s two blocks away, about as far as the Off-Track Betting facility and the strip club.

More importantly, it’s in America, where we shall make no law respecting an establishment of religion.

And real Americans don’t burn books, damn it.

I’ve spent a big chunk of my professional life in the past 10 years investigating an organization called Your Black Muslim Bakery, a cross between a (dis)organized crime family and a religious cult of personality. Now defunct, its members engaged in kidnapping, extortion, torture and murder. My life was threatened as I reported on one of them this year.

Its name aside, the bakery had no more to do with Islam than the sub-humans who hijacked the planes. None were godly men; they were arrogant thugs – in one case driven by greed and power, in the other by hateful ideology – who murdered to make a point.

But we reward their evildoing and disgrace our national heritage when we paint others with the same brush.

Real Muslims don’t murder. Real Americans don’t automatically assume they do. And we shame the memories of our cherished dead – those who died that day, and who have died since – by letting terrorists’ blind hatred drive us to blind hatred.

They were wild-eyed zealots. We mustn’t be.

Our nation lost an “it can’t happen here” innocence that day. We’ve struggled ever since with how to cope. Let’s mark this 10th anniversary as a fitting moment to graduate into the adulthood of our new age, and return to the principles of inclusion, equality and freedom for which we’re supposed to stand.

Posted on Sunday, September 11th, 2011
Under: Civil liberties | 5 Comments »