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droits et libertés

London Mayor Boris Johnson has added his voice to those supporting a Bill that would grant new powers to UK intelligence agencies to track emails and phone calls. But Conservative Minister Eric Pickles says he doubts that any such measures could have prevented the death of soldier Lee Rigby, who was killed in a knife attack in London that has been described as a terrorist act.

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The U.S. government has acknowledged that four U.S. citizens have been killed during its controversial drone attack program. One of the four, Anwar al-Awlaki, was deliberately targeted, while the other three were not targeted but were reportedly killed during drone strikes aimed at others suspected of being terrorists.

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Some are wondering why police in a small Nova Scotia town have acquired a “tank.”

The New Glasgow Regional Police Service is the first police force in Nova Scotia to receive a Tactical Armoured Vehicle, or TAV. The vehicle is affectionately known as a “Cougar” in the Canadian Armed Forced, where it was originally used.

Local media have reported that the town’s emergency response team will use the vehicle to “better protect the public and ensure officer safety in dangerous situations.”

New Glasgow Police Sergeant Blair Bannerman told CTV News, “There’s absolutely no offensive weapons mounted on this vehicle. The cannon has been removed.”

Similar vehicles were reportedly used in the Balkans and Somalia.

New Glasgow has a population of 9562, according to the town’s website.

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The Supreme Court of Canada (SCC) has agreed to hear a case filing for redress of Canadian journalist Zahra Kazemi’s 2003 death in an Iranian prison. Kazemi had been covering student protests when she was apprehended by Iranian police. The physician who treated Kazemi’s wounds has since sought asylum in Canada after he gave graphic details of the injuries she sustained. An independent assessment later confirmed she was tortured and raped before her death.

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The US Supreme Court, in a 5-4 ruling, decided that a group of attorneys, journalists, and human rights activists had not established “certainly impending” to proceed with their case that challenged the constitutionality of the Foreign Intelligence Surveillance Act (FISA) of 2008.

The merits of the claim were not the concern and it was the first time that the court had refused to allow the right to sue because the fact that the interception of the phone calls and emails was not “certainly impending.”

Because the law authorizes secret wiretaps, there is no way to prove who might be a victim, but only victims have legal “standing” to file lawsuits, and therefore nobody can bring a case for judicial review of the law’s constitutionality.

FISA followed the Watergate-era of unchecked government wiretapping on American citizens who were engaged in political and cultural activities. The Fourth Amendment of the U.S. Constitution forbids “warrantless eavesdropping.” FISA limited wiretapping to acquiring “foreign intelligence information” targeting a “foreign government or agent” in 1978 when it was first enacted. That was the case then but in 2008, Congress amended FISA

to eliminate the requirements that the target must be a specified “foreign power or an agent of a foreign power” and that the warrant application must identify the precise facility where the electronic surveillance is to take place. In effect, the 2008 FISA amendment authorizes “roving wiretaps” of communications between places in the United States and foreign countries that are essentially warrantless.

The case of Clapper v. Amnesty International has essentially narrowed the doctrine of “standing” to the point that virtually all secret government activity has become immune from challenge. The case was first filed within the hour after the amendment. The plaintiffs were asking the District Court of New York to declare the amendment unconstitutional. The plaintiffs were self-described to be people and organizations that

communicate by telephone and e-mail with people the government “believes or believed to be associated with terrorist organizations,” with “people located in geographic areas that are a special focus” of so-called “counterterrorism” efforts, and with “activists who oppose governments supported by the United States.”

The plaintiffs stated that the threat of secret wiretapping interferes with the lawyers’ ability to locate and interview witnesses or advise clients in confidence. Journalists were also impacted in their ability to obtain information for news reports from confidential sources. The threat of surveillance had pushed some plaintiffs to travel for in-person conversations and to take expensive and burdensome measures to protect the confidentiality of their sensitive communications.

The United States Court of Appeals for the Second Circuit, found that “an objectively reasonable likelihood that their communications will be intercepted” was established and gave standing to the plaintiffs to challenge the constitutionality of the amended FISA. The Supreme Court majority reversed.

The decision relied on the absence of “any evidence that their communications have been monitored” even though it was secret program.

The majority decision stated, “no one would have standing is not a reason to find standing,” and that the burdensome measures that had to be taken were “self-inflicted injuries.”

The minority, however, were able to find that many Supreme Court precedents could have given the plaintiffs standing to bring suit.

For a more detailed picture of the arguments in opposition visit Global Search.

From a different perspective,

no constitutional principle dictates that every federal statute should be subject to challenge in federal court.  Even in the absence of direct judicial review of the statute, the potential for Executive Branch excesses is subject to a number of checks.  For example, no surveillance can be undertaken under the FAA without the approval of the FISA Court, and Congress regularly exercises its oversight authority to ensure that the Executive Branch is properly balancing the nation’s security needs with the constitutional rights of individual citizens. There is no reason for the courts to second-guess that balance at the behest of individuals who cannot even demonstrate that they have been injured.

For a more detailed picture of the argument in support of the Supreme Court’s decision visit Forbes.

When Diego Liatis noticed there were no Canadian locations in the online video game Counter Strike: Global Offensive, he decided to create one. The amateur video game designer chose a public location familiar to many Montreal commuters – the Berri-UQAM metro station. He spent nine months on the design, using the game’s open-source software.

Unfortunately for Liatis, the Montreal transit authority (STM) didn’t like the idea as much as he did, and sent him a cease-and-desist letter threatening legal action if he publishes the scene online.

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Caveat: a good place to start looking at gun culture in America is the enabling statute, but it’s probably not the best place to start. The law is rarely (if ever) at the vanguard of societal change and I think that’s really the only way it should ever be.

That being said, the enabling statute of gun ownership is the Second Amendment, and its a  pretty good place to start. If the political augurs have it right and meaningful gun reforms really are on their way, the Second Amendment will no doubt be visited upon again and again in American courts. So here we go:

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Taren Stinebrickner-Kauffman has reportedly said that Aaron Swartz committed suicide because of the stress of his prosecution for downloading academic articles from JSTOR at the Massachusetts Institute of Technology.

Swartz’s family released a statement with Stinebrickner-Kauffman late the next day and said Swartz’s death was the product of prosecutorial overreach for “an alleged crime that had no victims”. They also faulted MIT for not offering support in his legal battles and not standing up for “its own community’s most cherished principles.”

Carmen Ortiz, the US federal prosecutor handling Swartz’s case, responded that:

her office was enforcing the law “reasonably.” Ortiz said that the office never told Swartz’s attorney’s that they intended to seek the maximum penalties.

“The prosecutors recognized that there was no evidence against Mr Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the sentencing guidelines in appropriate cases,” Ortiz said.

Swartz was charged with 13 counts under the Computer Fraud and Abuse Act (1984). He could have faced over 30 years in prison along with a million-dollar fine, and was recently refused a plea bargain with no jail time (he would have had to a take a plea bargain with a six-month sentence).

The charges came because Swartz had used the MIT network to download over four million articles, which was deemed to have been too many. JSTOR charges nonacademics for access and Swartz had put a laptop in a closet at MIT without permission.

It has been reported that the civil-liberties attorney Harvey Silverglate believes that “[Swartz] was being made into a highly visible lesson … He was enhancing the careers of a group of career prosecutors and a very ambitious — politically-ambitious — U.S. attorney who loves to have her name in lights.”

Additionally, it has been reported in Wired that:

The government … has interpreted the anti-hacking provisions to include activities such as violating a website’s terms of service or a company’s computer usage policy.… The 9th U.S. Circuit Court of Appeals, in limiting reach of the CFAA, said that violations of employee contract agreements and websites’ terms of service were better left to civil lawsuits.

Swartz is remembered for his accomplishments in combating laws intended to impede the sharing of information. He assisted in defeating bills that would give broad authority to the executive branch. He is accredited with leading grassroots efforts against the Stop Online Piracy Act and the Protect Intellectual Property Act.

More on the prosecution can be found on the Guardian and Counterpunch.

Bruno Marevich, an Australian naturopath, has raised concerns about the use of mandatory full body scans in Australian airports. He worries about the unknown effects of the radiation exposure from such scans. Mr. Marevich reports that he and his family were returning to Australia from a trip to Japan when he was forced to submit to a full body scan “under the threat of instant detention, being fined, possibly jailed and then saddled with a criminal record affecting his right to work and be a director of his own company and professional association.” He is shocked by his country’s mandatory scan policy, which he contrasts with the United States’ policy that allows travelers to choose between a scan or a pat-down search. While he acknowledges that a pat-down search is uncomfortable and an invasion of personal privacy, he at least does not worry about its impact on his physical health.

You can read more about Bruno Marevich’s experience here.

Au mois de janvier 2006, un quotidien néerlandais à grand tirage, De telegraaf, publia un article traitant des services secrets néerlandais (l’AIVD). Les deux auteurs de l’article,  journalistes pour le compte du quotidien, indiquaient implicitement qu’ils détenaient des documents d’État hautement confidentiels. La police nationale, interpellée par ces allégations, ordonna aux journalistes de leur remettre lesdits documents, de même que d’identifier leur source. La société détentrice du quotidien se tourna alors vers les tribunaux afin de contourner cette ordonnance; elle invoqua notamment le secret professionnel et le non-respect de l’article 10 de la Convention européenne des droits de l’Homme. Les tribunaux de première instance, de même que la Cour suprême du pays rejetèrent les prétentions des requérants, concluant que « la protection des sources journalistes n’était pas un droit absolu et que le recours à des pouvoirs spéciaux n’était pas à exclure par principe (1)».

Le 29 mai 2006, la société détentrice du quotidien introduisit une requête devant la Cour européenne des droits de l’Homme. Elle dénonçait alors les recours par l’État à des pouvoirs spéciaux afin d’obtenir la restitution des documents. La société se basa sur le non-respect des articles 8 et 10 de la Convention européenne des droits de l’Homme afin d’introduire sa requête. L’article 8 de la Convention traite du droit au respect de la vie privée et familiale. L’article 10 de la Convention traite de la liberté d’expression. Entretemps, la police nationale décida de mettre les journalistes sous surveillance afin de tenter d’identifier les sources fournissant les documents secrets.

Le 18 mai 2010, la Cour rendit sa décision. Elle affirma, en premier lieu, qu’il était clair que l’AIVD avait utilisé ses pouvoirs spéciaux dans le but précis de contourner la protection habituellement reconnue à une source journalistique. Elle conclut aussi au viol des articles 8 et 10 de la Convention, « du fait que la loi ne fournissait pas de garanties adéquates concernant les pouvoirs de surveillance utilisés à l’égard [des journalistes] pour découvrir leurs sources journalistes (2) ». Cependant, la Cour jugea importa de rappeler que le viol desdits articles pouvait, lors de circonstances exceptionnelles, être toléré. Afin de déterminer si c’était le cas en l’espère, la Cour procéda à une pondération entre l’ingérence justifiée de l’État afin de sauvegarder un « besoin social impérieux (3)» et l’importance du rôle de « chien de garde » des médias au sein d’une démocratie. Elle trancha qu’en l’espèce, l’État n’avait pas réussi à prouver la nécessité absolue et pertinente d’identifier les sources dont étaient issus les documents, et que, par conséquent, Il avait violer l’article 10 de la Convention.

Les Pays-Bas furent condamnés à verser une somme de 60 000 euros aux requérants.

Sources (1)(2)(3) : Les autorités n’ont pas protégé des sources journalistiques dans une affaire portant sur des documents issus des services secrets, Communiqué de presse du Greffier de la Cour, 22 novembre 2010, Site internet de la Cour européenne des droits de l’Homme.