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Good, Bad Drug Measures Die Along with Farm Bill

The Farm Bill (House Bill 1947) died in the House Thursday morning as Democrats rebelled against deep cuts to food stamps. The vote to kill it came after the House had approved separate amendments that would have allowed for limited hemp production, but also would have allowed states to require drug tests for food stamp applicants.

Rep. Jared Polis (D-CO) saw his hemp amendment pass the House, only to die along with the farm bill. (wikimedia.org)
In an historic first, the House passed an amendment offered by Reps. Jared Polis (D-CO), Earl Blumenauer (D-OR), and Thomas Massie (R-KY) that would allow hemp to be grown for research purposes. The amendment passed 225-200, despite a last-minute lobbying blitz against it from the DEA, complete with a DEA talking points memo obtained by the Huffington Post.

Still, despite the DEA's concerns that allowing limited hemp production for research would make law enforcement's job more difficult, a majority of lawmakers weren't buying, and amendment sponsors and hemp advocates pronounced themselves well-pleased.

"Industrial hemp is an important agricultural commodity, not a drug," said Rep. Polis. "My bipartisan, common-sense amendment would allow colleges and universities to grow and cultivate industrial hemp for academic and agricultural research purposes in states where industrial hemp growth and cultivation is already legal. Many states, including Colorado, have demonstrated that they are fully capable of regulating industrial hemp. The federal government should clarify that states should have the ability to regulate academic and agriculture research of industrial hemp without fear of federal interference. Hemp is not marijuana, and at the very least, we should allow our universities -- the greatest in the world -- to research the potential benefits and downsides of this important agricultural commodity."

"Industrial hemp is used for hundreds of products including paper, clothing, rope, and can be converted into renewable bio-fuels more efficiently than corn or switch grass," said Rep. Massie. "It's our goal that the research this amendment enables would further broadcast the economic benefits of the sustainable and job-creating crop." 

"Because of outdated federal drug laws, our farmers can't grow industrial hemp and take advantage of a more than $300 million dollar market. We rely solely on imports to sustain consumer demand. It makes no sense," said Blumenauer. "Our fear of industrial hemp is misplaced -- it is not a drug. By allowing colleges and universities to cultivate hemp for research, Congress sends a signal that we are ready to examine hemp in a different and more appropriate context."

Nineteen states have passed pro-industrial hemp legislation. The following nine states have removed barriers to its production: Colorado, Kentucky, Maine, Montana, North Dakota, Oregon, Vermont, Washington and West Virginia.

 "Vote Hemp applauds this new bipartisan amendment and we are mobilizing all the support we can. This brilliant initiative would allow colleges and universities the opportunity to grow and cultivate hemp for academic and agricultural research purposes," said Eric Steenstra, president of Vote Hemp. "It would only apply to states where industrial hemp growth and cultivation is already legal in order for those states to showcase just how much industrial hemp could benefit the environment and economy in those regions," continues Steenstra.

"Federal law has denied American farmers the opportunity to cultivate industrial hemp and reap the economic rewards from this versatile crop for far too long," said Grant Smith, policy manager with the Drug Policy Alliance. "Congress should lift the prohibition on the domestic cultivation of industrial hemp as soon as possible. Allowing academic research is an important first step towards returning industrial hemp cultivation to American farms."

Drug reformers' and hemp advocates' elation over passage of the hemp amendment was short-lived however, as the Farm Bill went down to defeat for reasons not having anything to do with hemp. But the upside to the bill's defeat was that it also killed a successful Republican-backed amendment that would have allowed states to drug test people applying for food stamps, now known officially as the Supplemental Nutritional Assistance Program (SNAP).

"If adopted, this amendment would join a list of good-government reforms contained in the farm bill to save taxpayer money and ensure integrity and accountability within our nutrition system," said its sponsor, Rep. Richard Hudson (R-NC), who added that it would ensure that food stamps go only to needy families and children.

But House Democrats were infuriated by the amendment. Rep. Gwen Moore (D-WI), said there was no evidence people on food stamps were any more likely to use drugs than anyone else and that the measure was meant only to embarrass and humiliate people on food stamps.

 "It costs a lot of public money just to humiliate people," she said. "It'll cost $75 for one of these drug tests, and for what purpose? Just to criminalize and humiliate poor people."

"This is about demeaning poor people," added Rep. James McGovern (D-MA). "And we've been doing this time and time again on this House floor."

The food stamp drug testing amendment was just part of an overall House Republican assault on the food stamp program that would have cut it by more than $20 billion. It was that attack on food stamps that led Democrats to walk away from the bill. [Ed: Perhaps not just over the cuts -- a National Journal article reports the drug testing amendment cost it votes too.]

Washington, DC
United States

Marc Emery in Solitary Confinement in US Prison

Canadian marijuana seed magnate and political dissident Marc Emery, who is about four years into a five-year US prison sentence for selling pot seeds over the Internet, has been sent to solitary confinement at the Mississippi federal prison where he's doing his time. According to the magazine he founded, Cannabis Culture, he is being punished over false charges.

Rockin' the joint at Yazoo City FCI. That's Emery on bass on the left. (cannabisculture.com)
Emery, along with other prisoners at the Yazoo City Federal Correctional Institution, formed a band some months ago. Photos of the band were taken by prison staff, then developed and sent to his wife, Jodie Emery, in Vancouver, and were posted on his blog in April. According to Emery, permission for the photos was granted by three separate administrators, including one at the prison's Special Investigative Services department.

But now, prison officials have placed Emery and his bandmates in solitary confinement while they say they are investigating the possibility the photos had been taken with a prohibited smart phone. Prisoners in solitary, or, as it is euphemistically known, the Special Housing Unit (SHU), are locked in their cells 23 hours a day and denied normal prison amenities.

"Got to see Marc for 1.5 hours," Jodie Emery posted in an online statement Friday, shortly after a trip to visit him. "Prison has him in solitary confinement to 'investigate' the photos of his band that the prison itself approved! The investigation (could take months) is to see if Marc had a cell phone to take the band photos -- despite proof the prison camera was used! The warden, guards, music/recreation admins -- everyone -- knows Marc got official permission for those photos. Yet they put him in solitary?!"

Cannabis Culture reported that prison authorities were unavailable to comment until after the weekend.

As an entrepreneur and activist, the Vancouver-based Emery was a burr under the saddle of US drug warriors, who managed to indict him for his seed-selling business. Canadian authorities declined to help him, although they had allowed his business to operate untrammeled for years.

He was eventually sentenced to five years in federal prison in a plea deal designed to spare his codefendants from facing the wrath of US prosecutors. In a press release the day of his arrest, the DEA issued a press release crowing that taking him down was "a significant blow… to the marijuana legalization movement… Hundreds of thousands of dollars of Emery's illicit profits are known to have been channeled to marijuana legalization groups active in the United States and Canada. Drug legalization lobbyists now have one less pot of money to rely on."

With little more than a year to go on his sentence, Emery is seeking a transfer to a Canadian prison. Interested parties can support his bid by sending a letter to the Justice Department's transfer division.

Yazoo City, MS
United States

Medical Marijuana Update

The medical marijuana scene is hectic! Bill passing, raids happening, local officials pondering, and California dispensaries dwindling. Let's get to it:

California

On May 21, the Lakeport city council gave first approval to a cultivation ordinance that would require grows be conducted within detached structures on residential properties. The council will hold the second reading of the ordinance at its June 18 meeting. The document before the council on Tuesday night also prohibits outdoor cultivation and requires grows to be contained in accessory outdoor structures. However, it also puts the emphasis on complaint-driven enforcement.

On May 22, the Earth Choice Collective in Fresno closed its doors after a local TV station blew the whistle on the below-the-radar dispensary. Undercover narcotics officers served Earth Choice Collective with a notice to vacate several weeks ago, but it had remained open until the TV station aired its report.

On May 25, Anaheim authorities reported that 10 of 11 dispensaries had complied with orders to close their doors. Anaheim ordered all dispensaries to close in the wake of the California Supreme Court ruling upholding the ability of localities to ban them. One remained open and was facing fines of up to a $1,000 a day.

Last Wednesday, San Bernardino police shut down another dispensary. They, too, were acting in response to the California Supreme Court ruling. More than 100 mason jars filled with marijuana were seized at the SBPC dispensary, and several workers and customers were detained temporarily.

Last Thursday, DEA agents and San Bernardino County deputies raided two dispensaries and five homes associated with them. Targeted were the Green Oasis Collective dispensaries in Yucaipa and San Bernardino. Five people were arrested on a variety of charges, including possession of pyrotechnic explosive devices, possession of meth, and various marijuana offenses.

Last Friday, police in Garden Grove began fining medical marijuana delivery services. The move came after the services sprang up in the wake of the city's ban on dispensaries last month. They are fining the delivery businesses $1,000 a day. One dispensary, OrganaCann Wellness Centers, switched to delivery mode after the ban and reported receiving $3,000 in fines, but is vowing to vigorously defend itself.

Also last Friday, Stockton dispensary operator Matthew Davies pleaded guilty to federal marijuana charges. He had argued that his store in Stockton operated in accordance with California laws, after working extensively with accountants and lawyers before opening the business. He faces a mandatory minimum five-year prison sentence.

Also last Friday, a statewide dispensary regulation bill failed to advance, but its sponsor, Rep. Tom Ammiano (D-San Francisco) said the bill lives and he is talks with members of the Senate to advance it.

On Monday, the Healdsburg city council voted to form a task force to study cultivation issues. The task force will consider whether outdoor grows will be allowed, or whether they should be confined indoors. Police Chief Kevin Burke had proposed guidelines in response to neighborhood complaints about backyard grows, and the Planning Commission had recommended allowing patients to grow up to 12 mature plants and 24 immature ones, but limited grows to indoors and not within 300 feet of schools, churches, hospitals, child care and youth centers. But after the guidelines were publicized, they met harsh criticism, thus, the task force.

District of Columbia

As of Monday, DC medical marijuana patients were still waiting to get their medicine. Two dispensaries and three grow operations have been approved by District officials, but the District Department of Health has yet to give doctors the authority to recommend marijuana to their patients. A spokeswoman for the Department of Health said marijuana dispensaries would likely open in the middle of June.

Michigan

Last Tuesday, medical marijuana supporters held a press conference in Detroit to publicize the imminent imprisonment of several Michigan patients and caregivers. One, Jerry Duval, a kidney-pancreas transplant patient with coronary artery disease, has been sentenced to 10 years in federal prison and must report next week. Three other Michigan cultivators, Dennis Forsberg, 59, his son Lance Forsberg, 32, and Ryan Basore, 36, who were sentenced to 3-4 years in prison surrendered last Thursday. They were all convicted in federal court without being able to present evidence that they were complying with state law.

Montana

Last Wednesday, federal prosecutors appealed the sentence of a medical marijuana provider because they thought it was not stiff enough. They appealed the two-year prison sentence given to former University of Montana quarterback Jason Washington, who was convicted on federal charges for his role in a dispensary operation legal under state law. Prosecutors have also appealed the sentences of three other medical marijuana defendants out of 33 convicted in the wake of the 2011 federal crackdown in the state.

Nevada

On Monday, a medical marijuana dispensary bill passed the state legislature. The Assembly approved it the previous week, and the Senate approved it Monday. It now goes to the governor. If he signs it, up to 66 dispensaries will be allowed in the state, with up to 40 in Las Vegas and 10 in Reno.

New Hampshire

Last Thursday, the Senate approved a medical marijuana bill, but with amendments designed to placate Gov. Margaret Hassan (D) that advocates say will make the bill unworkable. The Assembly had already passed the bill; now a conference committee must try to reconcile the two versions.

New York

Last Thursday, more than 600 New York physicians came out for pending medical marijuana legislation. They signed a statement affirming that doctors should not be punished for recommending the use of marijuana for seriously ill people, and that seriously ill people should not be subject to criminal sanctions for using marijuana if the patients' physicians have told them such use may be beneficial. The bill also has the support of the state’s leading medical organizations, including the New York State Nurses Association, The Hospice and Palliative Care Association, Pharmacist Society of the State of New York, among others.

Last Friday, New York City Mayor Michael Bloomberg trashed medical marijuana, calling it "one of the greatest hoaxes of all time." The former pot-smoker's comments came as the legislature is considering the medical marijuana bill.

On Monday, the medical marijuana bill passed the Assembly. It now goes to the Senate, where three previous medical marijuana bills approved by the Assembly in recent years have died. But the pressure is on.

Ohio

Last Wednesday, the sponsor of a medical marijuana bill testified on its behalf, but acknowledged that it is going nowhere in the Republican-controlled legislature. Instead, Rep. Bob Hagan (D-Youngstown) is urging support for a constitutional amendment on the issue.

Oregon

Last Thursday, DEA agents and local law enforcement raided four southern Oregon dispensaries. Raiders hit the Greener Side in Eugene and three Medford dispensaries. Several people were arrested.

Also last Thursday, the state legislature approved adding PTSD to the list of ailments for which medical marijuana can be used. The Oregon House passed Senate Bill 281 36-21, following a 19-11 vote in the Senate.  The bill awaits Gov. Kitzhaber's signature.

South Carolina

On May 23, an attempt to legalize medical marijuana in the state failed in the House. Rep. Todd Rutherford (D-Columbia) tried to amend a bill dealing with controlled substances to add marijuana to the list of drugs that doctors could prescribe, but his amendment was ruled out of order.

Washington

On Monday, it was revealed that the DEA has sent threatening letters to 41 Seattle-area dispensaries that have effectively closed some of them. At least one Spokane dispensary has also received a threat letter, but from the US Attorney, not the DEA.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

Medical Marijuana Update

Marijuana rescheduling is headed for the US Supreme Court, the California Supreme Court upheld local dispensary bans, the feds strike again in Berkeley and Washington state, and there is action in state legislatures, too. Let's get to it:

National

Last week, Americans for Safe Access announced it was appealing to the Supreme Court to overturn the DC Court of Appeals' ruling upholding the DEA's refusal to reclassify marijuana out of Schedule I. ASA's appeal to the Supreme Court asks that the DEA be required to apply the same standard to evaluating cannabis that it uses for other substances. The DEA claims there are no "adequate and well-controlled studies" that show cannabis has medical use, despite the many clinical trials and peer-reviewed scientific studies that show cannabis to be a safe and effective medicine for treating a wide variety of conditions.

Last Wednesday, a Fox News poll had support for medical marijuana at 85% nationwide. The figure included 80% of Republicans and is the highest level of support for medical marijuana ever in the Fox News poll.

Arizona

On Tuesday, Gov. Jan Brewer signed a bill that will allow medical marijuana research on university campuses. Brewer had last year supported successful legislation that banned even medical marijuana on state college and university campuses, but the ban aimed primarily at students had the unintended consequence of blocking serious academic research being undertaken on medical marijuana and PTSD by University of Arizona psychiatrist Sue Sisley. The new law allows medical marijuana on campus for carefully controlled and approved studies.

California

Last Wednesday, prosecutors in Tuolumne County dropped marijuana trafficking charges against the owners of a local medical marijuana collective. Charges were dropped in the case of the Today's Health Collective, which had been raided in May 2011. Prosecutors complained that "inconsistencies in opinions from different courts have required a shift in the focus of law enforcement and jury instruction" and "the cumulative effect of evidence collected in 2011 has been weakened by this development."

On Monday, the state Supreme Court upheld the right of localities to ban dispensaries. Some 200 California towns and counties have already done so, but others had held off because of uncertainty over the legality of bans. The ruling means that patients' access to medical marijuana will depend in part on where in the state they live.

On Tuesday, the dispensary operator in the Monday Supreme Court case said he had closed his shop. Operator and medical marijuana activist Lanny Swerdlow said he would comply with the high court ruling and shut down Inland Empire Patient's Health and Wellness Center.

Also on Tuesday, federal prosecutors filed an asset forfeiture lawsuit against the landlord for the Berkeley Patients Group, one of the most well-respected dispensaries in the state. The feds already forced BPG to move last year, saying it was too close to a school. The dispensary relocated to a site even further from schools, but US Attorney Melinda Haag filed the forfeiture suit without warning anyway.

Also on Tuesday, the Yuba City city council adopted a marijuana cultivation ordinance requiring people growing medical marijuana at home to register with the city and trim their plants out of public view. They also have to install security fences and carbon filtration systems to reduce odor. The ordinance had been in place on a temporary basis since March 2012, but became permanent with Tuesday's 3-2 vote.

Illinois

On Wednesday, a hearing on a medical marijuana bill was underway in the Senate Executive Committee. The bill would allow residents with serious illnesses, such as cancer, multiple sclerosis, and HIV/AIDS, to access and use medical marijuana if their physicians recommend it. If approved, the measure will be considered by the full Senate. It received approval from the full House of Representatives on April 17.

Maryland

Last Thursday, Gov. O'Malley signed a medical marijuana bill into law. The measure, House Bill 1101, will allow patients to qualify for protections from arrest and prosecution if they are enrolled in a program administered by one of Maryland’s teaching hospitals. The law takes effect October 1. But it's not clear how many of the state's teaching hospitals will participate.

Massachusetts

On Wednesday, the Public Health Council approved medical marijuana regulations. The regulations include requiring doctors to complete a full clinical checkup before issuing a recommendations, recommendations will expire after one year, and patients will not be allowed to use medical marijuana at dispensaries. The regulations approved today will go into effect on May 25. They allow the department to establish a competitive application process for non-profits seeking certifications that will permit them to operate. DPH is required to certify at least 14, but no more than 35, medical marijuana treatment centers to open by January, 2014.

Minnesota

Last Thursday, medical marijuana supporters outlined their bill, but conceded that no action on it is likely until next year. The measure dictates the amount of marijuana someone can possess, the types of health conditions that would permit use and the rules medical professionals must follow when issuing prescriptions. It would continue to bar smoking of marijuana on school buses and school grounds, on public transportation, in the presence of a child and while operating vehicles, boats or other transportation equipment.

New Hampshire

On Monday, the Senate Committee on Health, Education, and Human Services approved a medical marijuana bill, but not before removing PTSD as a qualifying condition and removing a home cultivation provision at the insistence of Gov. Maggie Hassan. Other changes to the bill reduced the number of authorized dispensaries allowed statewide from five to four, added a requirement that patients get written permission from a property owner before using medical marijuana on privately owned land, and eliminated protections for out of state medical marijuana patients traveling with marijuana in  New Hampshire. The measure had already overwhelmingly passed the House. Medical marijuana advocates are continuing to fight for a better version of the bill.

New Jersey

Last Thursday, Health Commissioner Mary O'Dowd said two more dispensaries will likely open soon. Years after medical marijuana was legalized in the state, only one dispensary is open. The first dispensary opened in Montclair, Essex County, in December, but is limiting its clientele to North Jersey residents. A second dispensary operator is renovating a former warehouse in Egg Harbor, Atlantic County, and plans an opening in September. A third dispensary operator is renovating its location in Woodbridge, O'Dowd said.

Washington

Last Wednesday, news broke that the DEA had sent cease-and-desist letters to 11 dispensaries. The agency complained in the April 29 letters they were within 1,000 feet of schools. The DEA told recipients of the letters to stop distributing marijuana within 30 days or face property seizure and forfeiture.

Mexico to Rein In US Agencies in Drug War

In a sharp break with the policies of his predecessor, recently installed Mexican President Enrique Pena Nieto is moving to restrict the open relationships US law enforcement, intelligence, and security agencies have developed with their Mexican counterparts as the two countries attempt to repress violent and powerful Mexican drug trafficking organizations, the so-called cartels.

The US-Mexico border (wikipedia.org)
The move was hinted at broadly in the Washington Post Sunday and confirmed by the Associated Press Monday. The AP cited deputy foreign secretary for North American affairs Sergio Alcocer as saying that all US law enforcement contacts with Mexican agencies will go through "a single window," the Mexican Interior Ministry.

Mexico has had a historically prickly relationship with US drug law enforcers, but under former Mexican President Felipe Calderon, whose term ended in December, US law enforcement and security cooperation with Mexican agencies expanded dramatically. The DEA, as well as the FBI, CIA, and Border Patrol, had agents working directly with units of the Mexican Federal Police, the army, and the navy.

US law enforcement and security agencies worked closely with their Mexican counterparts on a strategy that aimed at arresting or killing top cartel figures, and managed to eliminate dozens of them, but at the same time, prohibition-related violence only mounted, with the death toll somewhere above 70,000 during Calderon's six-year term. The incoming Pena Nieto administration has previously signaled that it wants to shift away from high-profile target strategy to one centered on crime prevention.

The Pena Nieto administration also represents a reversion to governance by the Institutional Revolutionary Party (PRI), which had famously ruled Mexico as "the perfect dictatorship" for most of the 20th Century before falling to conservative National Action Party (PAN) presidential candidate Vicente Fox in 2000. Like Fox, Calderon ran under the PAN banner and cultivated closer relations with the US, especially on drug enforcement, than the PRI ever had. The PRI's relationships with US drug enforcers could be characterized as one of mutual suspicion and distrust, with occasional bouts of cooperation.

As the Washington Post reported, high-ranking incoming PRI officials who met with US DEA, CIA, FBI, and other security representatives in December were stunned and "remained stone-faced as they learned for the first time just how entwined the two countries had become during the battle against narco-traffickers, and how, in the process, the United States had been given near-complete entree to Mexico's territory and the secrets of its citizens."

Now, the Pena Nieto government is moving to get a better grip on the assistance it gets from its neighbor to the north. It was in the interest of Mexico to do so, Alcocer said. "The issue before is that there was a lack of coordination because there was not a single entity in the Mexican government that was coordinating all the efforts," he told the AP. "Nobody knew what was going on."

The DEA and other agencies declined comment, leaving it the State Department, which said it looks forward to "continued close cooperation" with Mexico. President Obama flies to Mexico City Thursday for a meeting with Pena Nieto, whose administration says it wants to expand its bilateral agenda with the US beyond drugs and immigration, as well as shift from dramatic law enforcement actions to crime prevention and public safety.

"For us the security theme is one of our top priorities, but it's not the only one," Alcocer said. "The relationship has issues such as the economy and trade, advanced manufacturing, infrastructure, energy."

Mexico City
Mexico

Medical Marijuana Update

The first dispensary in Phoenix has opened, dispensaries in Washington, DC, are ready to go, and there has been more federal enforcement activity in California. Let's get to it:

Arizona

On Saturday, the first licensed dispensary in Phoenix opened its doors, but it couldn't serve any customers because an Arizona Department of Health Services computer server was shut down, affecting all the state's dispensaries. The Bloom Sky Train dispensary rescheduled its official grand opening to Wednesday. It will serve some of the state's 35,000 medical marijuana card holders.

California

Last Thursday, federal prosecutors moved against 63 dispensaries in Santa Ana. Prosecutors filed three asset forfeiture lawsuits against properties where seven dispensaries are operating and raided two of the stores involved. Also, prosecutors send threat letters to people associated with 56 other dispensaries. That is every known dispensary in the city. The Santa Ana Police and Santa Ana City Attorney's Office cooperated with the feds.

Also last Thursday, San Diego Mayor Filner published his proposed dispensary ordinance.The proposal is based on the recommendations of the medical marijuana taskforce, organized by City Council President Todd Gloria in 2010. It allows medical cannabis dispensaries to exist in designated commercial and industrial areas of the city with large buffers from sensitive areas, including a 600 foot buffer from schools and parks and a 1,000 foot buffer between dispensaries. The proposal also contains additional strict operating requirements including security systems, restriction on hours of operations and signage.  

On Monday, the San Diego city council rejected Mayor Filner's proposed ordinance. Instead, the council voted to reintroduce a more restrictive zoning proposal overturned by a voter signature drive in 2011. The decision came after the council heard hours of testimony, with most speakers favoring the mayor's proposal. But Councilmember Marti Emeral put forth a motion to disregard the mayor’s proposal without any discussion of its provisions and to instead resurrect the proposal put forth by the council, and repealed through voter referendum, in 2011. That measure passed the council.   

On Tuesday, the DEA and a local drug task force raided the last dispensary in San Diego and nine associated grow sites. Raided was the One on One Patients Association, whose director, Ken Cole, had testified the previous night at the city council's hearing on the mayor's proposed dispensary ordinance. No arrests were made, but marijuana and other items were seized. Cole is also the director of the area dispensary industry group, the United Patients Alliance.

Also on Tuesday, a medical marijuana regulation bill was approved by a legislative committee. Sponsored by Assemblyman Tom Ammiano (D-San Francisco), Assembly Bill 473 would create a medical marijuana regulation division in the Department of Alcoholic Beverage Control to "regulate the cultivation, manufacture, testing, transportation, distribution, and sale of medical marijuana" on a statewide basis. The measure passed the Assembly Public Safety Committee, which is chaired by Ammiano.

Also on Tuesday, Tulare County supervisors extended their ban on new dispensaries or the expansion of existing for another two years. An existing ban was set to expire next week, and officials said the ban was needed because of constantly changing laws, regulations, court rulings and lawsuits. The county said the changing legal landscape for medical marijuana makes it difficult to license new facilities. The ordinance only bans new facilities or the expansion of those already in existence. Those currently operating will not be forced to close.

On Wednesday, the DEA raided two San Diego area hydroponics stores. Local activists reported that the targets were Miramar Hydroponics in San Diego and Santee Hydroponics in Santee. No word yet of what was seized or whether anyone was arrested.

Connecticut

On Monday, a hearing on proposed medical marijuana regulations drew a standing room only crowd at the Department of Consumer Protection. Crowd members voiced concerns about the regulations' potential effect on lawful marijuana producers and distributors. The two most frequent concerns among the business community came in response to proposed requirements for escrow accounts and brand naming. The regulations stipulate that marijuana producers establish a $2 million escrow account or line of credit which the state could seize if the producer failed to maintain a timely and successful operation. Drug abuse activists on hand at the public hearing expressed their own concerns about the regulation, mostly related to the possible diversion of medical marijuana for recreational use and advertisements targeting youth. The Department of Consumer Protection is expected to submit the final regulations to the General Assembly by July.

District of Columbia

On Tuesday, the Capital City Care dispensary announced it had received its business license. Dispensary operators said they would begin serving patients "as soon as possible," but they have to wait for the DC Department of Health to begin its patient registration process. Two other DC dispensaries, Takoma Wellness Center and the Metropolitan Wellness Center, are also waiting to accept patients. It's only been 15 years since DC voters approved medical marijuana in a 1998 initiative.

Rhode Island

Last Friday, the state's first dispensary opened. The Thomas C. Slater Compassion Center opened in Providence. At least two more are slated to open in coming months.

Psychedelic Science Conference Examines MDMA Treatment for PTSD [FEATURE]

At the Multidisciplinary Association for Psychedelic Studies (MAPS) Psychedelic Science 2013 conference in Oakland this weekend there were mind-boggling displays of psychedelic art; tables full of books on LSD, MDMA, peyote, ayahuasca, and other, stranger hallucinogens; weird musical interludes; holotropic breathwork workshops, and indigenous shamans.

Psychedelic art, MAPS 2013
There was also some heavy duty science. Stretching over five days of workshops and conference presentations, the MAPS conference is perhaps the premier confab of psychedelic researchers worldwide. A look at just some of the topics covered in the remarkably broad-ranging affair makes that case.

Researchers from around the country and the world presented findings on three "tracks": clinical ("LSD-Assisted Psychotherapy in the Treatment of Anxiety Secondary to Life Threatening Illness," "The Neurobiology of Psychedelics: Implications for Mood Disorders"), interdisciplinary ("Psilocybin in the Treatment of Smoking Addiction: Psychological Mechanisms and Participant Account," "Ethical Considerations in the Medicinal Use of Psychedelics"), and a special track on the South American hallucinogenic tea, ayahuasca ("Ayahuasca Admixture Plants: An Uninvestigated Folk Pharmacopeia," "Ayahuasca, the Scientific Paradigm, and Shamanic Healing").

One series of research reports of urgent and immediate relevance centered on the use of MDMA ("ecstasy") in the treatment of Post-Traumatic Stress Disorder (PTSD). Although PTSD can be caused by any number of traumas, veterans mustering out after more than a decade of US wars in Iraq and Afghanistan are coming home with PTSD in record numbers. A 2004 study in the New England Journal of Medicine estimated that 18% of returning Iraq combat veterans had PTSD. And a 2008 RAND Corporation report estimated that up to 225,000 veterans will return from the wars with PTSD.

Dr. Michael Mithoefer describes his MDMA PTSD research protocol
The trauma of war is reflected not only in the number of vets suffering from PTSD, but even more ominously, in sky-high suicide rates. US military veterans are committing suicide at a rate of 22 per day, up 20% from just five years ago.

The military and public health workers are keenly aware of the problem, and are attempting to address it through means both conventional and unconventional. The military and the Veterans Administration have been opened to therapeutic interventions including yoga, meditation, and the use of companion dogs; they have also armed themselves with the arsenal of psychotherapeutic drugs -- anti-depressants, anti-psychotics, tranquilizers -- available in the standard pharmacopeia. But those drugs can have some nasty side effects, and their utility in treating PTSD is questionable, and, noting reports of negative consequences, the Army has warned against over reliance on them.

In a Saturday clinical track devoted to MDMA and PTSD, researchers reported on success in Phase II clinical trials (after Phase I studies had proven safety), as well as efforts to get more studies up and running, and the hoops they have to jump through to do so. Canadian researcher Andrew Feldmar perhaps best summed up professional exasperation with the complexities of doing research on drugs governments view with skepticism and suspicion.

"Give me a break!" snorted Feldmar after relating how it took 2 ½ years and three visits from bureaucrats in Ottawa to inspect his pharmacy safe before it was approved before the safe and the study were approved. "This is not science, its politics. Those people from Ottawa were doing what power does -- cover its ass and make people doing what it doesn't want squirm. We are not discovering anything with these studies; we are just proving something we already know. This is all politics."

Indigenous Huichol shaman from Mexico
While Feldmar was at least able to report that his study had been approved, researchers in Australia and England could report no such luck.

 Australian researcher Martin Williams reported that a randomized, double-blind Phase II study there had been stopped in its tracks by a Human Research Ethics Committee.

"The proposal was rejected by the committee with no correspondence," Williams sighed. "We submitted a comprehensive letter of appeal, and it was quickly rejected. Like MAPS in 2000, we're a bit ahead of our time for Australia, where we face war on drugs rhetoric, the psychotherapy community has more a psychopharmacology focus, and we're facing funding and regulatory hurdles."

"For the past eight years, I've been slowly trying to persuade the medical establishment this is worth doing," said British researcher Ben Sessa, who is trying to get a Phase II study off the ground there. "We have lots of war casualties because like the USA, we have a peculiar obsession with imposing democracy around the world."

Peyote-infuenced Huichol art
But his government grant was denied, with regulators saying there was insufficient proof of concept, the trial would be underpowered (because it was small), and the inclusion of patients with recreational drug histories was problematic.

"Those reasons are all rubbish," snorted Sessa, who said he was revising his protocol in hopes of it being accepted. "We went for the Rolls Royce and didn't get it; maybe we'll get the Skoda," he said.

Researchers at the University of Colorado in Boulder have gotten approval for a Phase II study of MDMA with people with chronic, treatment-resistant PTSD, but it wasn't easy. Sometimes the regulatory niggling borders on the absurd, they said.

"We started two years and were waiting on approval from the DEA," said researcher Marcela Ot'alora, who is doing the study with Jim Grigsby. "We thought they read the protocol and would let us know if we were doing something inappropriate, but that wasn't the case. We had to get a 500-pound safe and we put it in the therapists' office, but no, it had to be in the treatment room. Then, we get a second inspection by the DEA, and they said we had to install alarms. We did so, and thought we were good to go. The next day, the DEA and the city zoning department came together. The zoning department said we had to have a half bath instead of a full bath, and no kitchen."

Psychedelic Homer Simpson, MAPS 2013
Ot'alora showed slides of workers obediently demolishing the bath tub, but their travails weren't finished just yet.

"The zoning department said we had to find a place zoned for addiction and recovery, and my office met that criteria, so we moved the safe and alarms for a third time, then had a third DEA inspection," she related. "The local DEA said yes, but it also needed approval from headquarters. We had a congressman write a letter to the DEA to speed up the process, and now we have final approval and are screening our first participants. We hope to enroll the first one by the beginning of May."

That would appear to be a good thing, because other researchers reported that when they actually got studies up and completed, they were seeing good results. Israeli researcher Keren Tzarfatyl and Swiss researcher Peter Oohen both reported promising preliminary results from their studies.

But it was US researchers Michael and Annie Mithoefer who reported the most impressive results. They reported on a 2004 Phase II clinical trial with veterans, firefighters, and police officers. The research subjects were given MDMA (or a placebo) and psychotherapy sessions. MDMA-assisted therapy resulted in "statistically significant" declines in PTSD as measured by standard scales, the Mithoefers reported.

"We're doing Phase II studies, giving the substance to people who are diagnosed with PTSD and measuring the treatment effects. The results continue to be extremely impressive," said Michael Mithoefer. "These tools have so much promise for healing and growth. There are lots of reasons to think these will be useful and promising tools."

Existing treatments for PTSD -- cognitive-behavioral therapies, psychodynamic psychotherapies, pharmacological interventions -- too often just don't work for large numbers of sufferers, Mithoefer said. He cited estimates of 25% to 50% who don't respond favorably to existing treatments.

"We have looming problems with veterans coming back from Iraq and Afghanistan, and most of them are not getting the treatment they need," said Mihoefer. "The Veterans Administration is overwhelmed, but also many vets just don't show up for treatment or stay in it. People with PTSD have a lot of trouble with trust, making it hard to form a therapeutic alliance. They can also either be overwhelmed by emotion and then drop out, or they are in avoidance, emotionally numb, and then the therapy doesn't work. If MDMA can increase trust and decrease fear and defensiveness, maybe it can help overcome these obstacles to successful treatment."

But even so, the research effort is starved for funds.

"This would not be happening if not for these remarkable non-profits supporting research," said Mithoefer, referring to groups like MAPS and the Beckley Foundation, which co-hosted the conference. "The government is not funding this, Big Pharma isn't funding this; the community is funding it. We are trying to build bridges, not be a counterculture, and we hope the government will get involved."

What they've found so far is definitely worth pursuing, Mithoefer said.

"We've established that for this kind of controlled use with well-screened people, there is a favorable risk-benefit ratio and no indication of neurotoxicity," he explained, although a small numbers of participants reported unhappy side effects, such as anxiety (21%), fatigue (16%), nausea (8%), and low mood (2%).

With a follow-up three years later, the Mithoefers found that the benefits of MDMA-assisted therapy remained largely intact.

"For most people, the benefits in terms of PTSD symptoms were maintained," Mithoefer reported. "With people who completed the assessment, 88% showed a sustained benefit, and assuming that those who didn't relapsed, that's still a 74% sustained benefit."

The Midhoefers are now in the midst of another Phase II study and are finding similar results.  They are finding reductions in PTSD symptoms as measured by standard measures. They are also finding lots of interest among PTSD sufferers.

"More than 400 vets have called us from around the country," said Mithoefer. "The need is so great. It's heartbreaking that we can't accommodate them all."

Anna Mithoefer read to the audience some of the responses from their research subjects.

"It's like PTSD changed my brain, and MDMA turned it back," reported a 26-year-old Iraq veteran.

"Being in Iraq was bad, but what was worse was having my body back here and part of my mind still in Iraq," said a 27-year-old who had served as a turret gunner in Iraq. "This helped me come home."

"MDMA helped me in so many ways, it feels like it is gradually rewiring my brain," said a female military sex trauma survivor. "The MDMA sessions were the crack in the ice because the trauma was so solid before that. It was incredibly intense around the MDMA sessions -- a lot like popping a big bubble from the unconscious."

The Phase II studies underway or completed strongly suggest that MDMA is useful in the treatment of PTSD. The Phase II studies trying to win approval around the world could strengthen that case -- if they can overcome the political and regulatory obstacles before them. In the meantime, another 22 veterans are killing themselves each day.

Oakland, CA
United States

Medical Marijuana Update

More DEA raids in Los Angeles, federal prison bureaucrats ignore a Michigan medical marijuana prisoner's medical needs, federal drug bureaucrats prevail in a medical marijuana research case, and there is lots of action in state legislatures, including a Wednesday afternoon victory in the Illinois House. Let's get to it:

National

On Monday, a federal appeals court rejected Prof. Lyle Craker's appeal to overturn a DEA decision to not allow him to grow medical marijuana for research purposes.The appeals court sided with the DEA, finding its decision to maintain the federal marijuana cultivation monopoly was reasonable and in line with the Controlled Substances Act. Craker first sought approval in 2001.

California

On Monday, a hearing on a Lake County lawsuit challenging the county's cultivation ordinance was postponed when the judge hearing the case recused himself. Judge Richard Martin recused himself because his son is running for sheriff against Sheriff Frank Rivero, who is a defendant in the case. As a result, the lawsuit against the county and its sheriff will be sent to Lake County Superior Court Presiding Judge Stephen Hedstrom for reassignment. Lake County resident Donald Merill is suing over the Board of Supervisors' decision last summer to approve an ordinance limiting the number of pot plants allowed in outdoor cultivation, banning commercial cultivation of medical marijuana and prohibiting growing on vacant lands in the unincorporated areas of the county. Now, a case management conference set for next week has been pushed back until late August, too late for this year's outdoor growing season.

On Tuesday, supporters of a Los Angeles dispensary initiative kicked off their campaign with a city hall press conference. Proposition D is one of three dispensary initiatives going before city voters on May 21. The measure would cap the number of dispensaries at 135, as would Proposition E, whose backers have switched to supporting Prop D. A third initiative, Proposition F, has no caps on dispensaries, but imposes other restrictions. Both Props D and F would impose a gross tax receipts of 2% on medical marijuana dispensary revenues.

Also on Tuesday, DEA and local law enforcement raided four Los Angeles area dispensaries. Hit were the Zen and Alternative Herbal Health Services dispensaries on Santa Monica Boulevard in West Hollywood, La Brea Compassionate Caregivers in Los Angeles, and Marina Caregivers in Marina del Rey. Law enforcement also executed search warrants at seven other locations and arrested three people. Those arrested are accused of selling marijuana outside of California and various other offenses.

Illinois

On Tuesday, nearly 250 doctors signed on to support medical marijuana legislation pending at the state house. Several of them, along with patients, spoke at a Chicago press conference one day before a vote on House Bill 1 was expected in the House. The bill would create a pilot medical marijuana program, including a dispensary system.

On Wednesday, the bill passed the House on a 61-57 vote. It now goes to the Senate.

Michigan

Late last week, the federal Bureau of Prisons refused to house an ailing medical marijuana patient at one of its medical facilities even though he is a kidney-pancreas transplant candidate, suffers coronary artery disease, and requires a strict medication regime. Jerry Duval, 53, must report to federal prison on June 11 and must serve his sentences at a federal correctional facility in Ohio. His sentencing judge had recommended that he be "placed in a Federal Medical Center or other facility deemed to be appropriate in consideration of the Defendant's medical needs." Last August, Montana medical marijuana prisoner Richard Flor, 68, died in federal prison after his medical conditions were given short shrift.

Nevada

Last Thursday, a medical marijuana dispensary bill won a Senate committee vote. Senate Bill 374 was approved by the Senate Judiciary Committee on a unanimous vote. The bill now goes to the Senate Finance Committee. Because the bill includes fees, it must win two-thirds approval to pass the Senate.

On Saturday, the state's first medical marijuana school opened. The Cannabis Career Institute launched its Budtender School with a workshop for about 40 students on Saturday in Henderson. The school will teach all aspects of the medical marijuana business, including how to grow marijuana legally and bake it into brownies, cookies and cakes. The institute has held similar workshops in other cities across the US, and more than 1,500 people hold certificates from it.

New Hampshire

Last Thursday, medical marijuana legislation got a hearing in a key Senate committee. The bill, House Bill 573, was heard in the Senate Health, Education, and Human Services Committee. Opponents suggested that a clinical study be done, but supporters retorted that such suggestions were merely a way to delay the bill. A similar measure has already passed the House. While Gov. Maggie Hassan (D) has said she would support a tightly regulated program, she has expressed concern about a home-grow option.

New York

On Tuesday, a medical marijuana bill passed the Assembly Health Committee on a 21-4 vote. The bill, Assembly Bill 6357, would allow patients suffering from severe debilitating or life-threatening conditions to use medical marijuana. A practitioner who is licensed to prescribe controlled substances would certify that a patient has a severe debilitating or life-threatening condition that should be treated with the medical use of marijuana.  Certifying and dispensing medical marijuana would be included in the I-STOP prescription monitoring system for controlled substances enacted in 2012.

Also on Tuesday, Gov. Andrew Cuomo (D) said he still opposes medical marijuana. "I do not support medical marijuana. I understand the pros and cons. I understand the argument," Cuomo said. "We are looking at it, but at this point, I don't support medical marijuana. I understand the benefits, the risks. How do you construct a system that really is that tightly controlled that you don’t have dissemination beyond the directed population?"

North Carolina

Last Friday, Rep. Kelly Alexander introduced a medical marijuana study bill. The bill, House Bill 941, would require a legislative research commission to study medical marijuana-related issues. Earlier this session, Alexander had introduced a medical marijuana bill, but that was killed by legislators who complained they were getting too much feedback from constituents.

Oregon

Last Friday, it was learned that the federal government had forced the state to release medical marijuana patient records. The Oregon Public Health Division, which keeps tabs on medical marijuana card holders, has handed over an undisclosed number of patient records as the result of a federal search warrant. The DEA executed the warrant and seized Oregon Medical Marijuana Program records in an investigation into illegal drug activity. The name and number of patients information pulled is still unknown because the investigation is ongoing and more records could be subpoenaed. Patients and activists are not pleased.

Rhode Island

Last Thursday, medical marijuana supporters protested proposed restrictions on caregivers at a rally at the state house. More than two dozen people showed up to oppose amendments to the state's law that would reduce the number of plants that a caregiver could grow from 24 to 12 and allow a patient to grow a maximum of 6 plants. Patients can currently grow twice that number. The caregivers and patients also criticized amendments that would require the growers to notify city or town zoning officials about their plans to grow marijuana.

Federal Appeals Court Rejects Researcher's Bid to Grow Medical Marijuana

The US First Circuit Court of Appeals in Boston Monday sided with the Drug Enforcement Administration (DEA) in rejecting University of Massachusetts-Amherst scientist Dr. Lyle Craker's appeal of the agency's decision to deny him a license to grow medical marijuana for research purposes.

Professor Lyle Craker (maps.org)
Craker sought to break the federal government's monopoly on the production of marijuana for research purposes. Because of hostility to research on the possible benefits of marijuana in the federal drug control and research bureaucracies, the federal monopoly on marijuana for research purposes created a bottleneck, blocking potential valuable research efforts.

The decision in Craker v. DEA caps a 12-year odyssey through federal regulatory purgatory for Craker and the Multidisciplinary Association for Psychedelic Studies, which had backed the UMass-Amherst scientist's bid to develop a source of marijuana independent of that produced under the auspices of NIDA.

"After such a long struggle, I'm disappointed that the Court failed to recognize the need for an independent source of plant material for use in research on the medical uses of marijuana," said Prof. Craker. "In doing so, they have failed the American people, especially those for whom marijuana as a medicine could help."

Craker first applied for a license from the DEA in 2001; it took the agency three years to initially deny his request. In 2007, the DEA's own administrative law judge recommended that the agency grant his application, but two years later, then DEA Deputy Administrator (and current Adminstrator) Michele Leonhart rejected that recommendation. Craker sought a formal reconsideration, which Leonhart denied in 2011.

Craker then appealed to the First Circuit, with oral arguments taking place in May 2012. In its decision Monday, the First Circuit upheld Leonhart's denial. In so doing, it dismissed Craker's claims that the DEA had changed the rules in the middle of the game and that the supply of marijuana from the NIDA facility was inadequate and uncompetitive. Leonhart's interpretation of the Controlled Substances Act was permissible and her findings were "reasonable and supported by the evidence," the court held.

"This ruling will result in sick people continuing to be denied the medicine they desperately need, and which 18 states and the District of Columbia recognize as legitimate," said Allen Hopper, criminal justice and drug policy director for the ACLU of California and one of the lawyers representing Prof. Craker. "The Obama administration must stop blocking the research necessary to take marijuana through the FDA approval process."

Boston, MA
United States

Are We Really "Going Dark"? -- The DEA and Apple's iMessage [FEATURE]

special to Drug War Chronicle by veteran investigative crime journalist Clarence Walker, cwalkerinvestigates@gmail.com

When the tech world news web site CNET published excerpts of a leaked DEA memo explaining how, during an investigation, the agency was unable to access the messages of drug dealers using the Apple iMessage system built into a Verizon cell phone, it ignited a media frenzy. "It is impossible to intercept iMessages between two Apple devices," even with a court order approved by a judge, DEA complained.

The DEA's warning, marked "law enforcement sensitive," was the most detailed example yet of the technological obstacles law enforcement faces when attempting to conduct court-authorized surveillance on non-traditional forms of communication. Federal law enforcers have coined the catchy phrase "Going Dark" to illustrate the problem.

News stories and tech blogs nationwide highlighted the effectiveness of Apple's encryption protection from privacy invaders, particularly law enforcement. (See, for example, stories here and here.) Amidst the frenzy, what went little noted was that no one's private messages held by Apple's iMessage or any other cell phone service are actually immune from federal government snooping. Under the Stored Communications Act (SCA), if the DEA wants access to someone's messaging communications, all it has to do is get a warrant to review those messages.

Why most media accounts neglected to mention this basic fact is uncertain, but the failure to do so not only misled readers into believing their iMessage communications were secure from government spying, it also fed into and reinforced a narrative being constructed by federal law enforcement agencies -- that rapid advances in telecommunications technologies are leaving the government in danger of "Going Dark" when it comes to its ability to surveil its citizens, and something needs to be done to fix the "problem."

"Apple iMessage users should be aware that regardless of what they heard last week, their messages can be easily obtained by law enforcement pursuant to a warrant under the Electronic Communication Act [ECPA]," said Alan Butler, an in-house attorney with the Electronic Privacy Information Center (EPIC). "The ECPA provides in Title 111, commonly referred to as the Stored Communication Act, that a government entity may require the disclosure of electronic communications held by a provider electronic storage," Butler told the Chronicle by email. Even though the messages are encrypted by the phone company as they are sent by iMessage, Apple can decrypt messages and hand them over to law enforcement with a warrant!"

"Nothing about the DEA memo says anything about trying to crack iMessage," Cato Institute analyst Julian Sanchez told the Chronicle in an email. "All it really says is that an ordinary wiretap on a cellphone's text messages isn't going to pick up iMessages, which is a no brainer because iMessages go over the Internet and not over a cell carrier."

The case that inspired the DEA memo centers around a drug investigation in Texas back in February where it was unable to intercept iMessages even though a federal judge had issued a court order approving the DEA's interception of the suspects' discussions about drug deals. Although the Federal Wiretap Act allows real-time surveillance of a device or computer, the DEA discovered in the February case that most records obtained from Verizon -- the carrier of the suspect's device -- were incomplete.

Cell phone surveillance is a key tool for law enforcement in monitoring criminal activity. The New York Times reported last June that federal, state, and local officials nationwide had requested assorted cell phone data 1.3 million times in the previous year. But  iMessages can be sent through iPhones, iPads, and even Macs running the OS platform with the capability to bypass the text messaging services of a cell phone carrier. Apple revealed in January that it sees over 2 billion messages sent each day from a half-billion iOS and Mac devices that uses the iMessage to keep private conversations and text messages secure from snooping.

When iMessage was launched in 2011, company executives boasted about its "secure end-to-end" encryption, and some critics say the leaking of the DEA memo is a clever scheme by the feds to help convince lawmakers to mandate that all communication systems, including social media and internet messaging systems have a back-door mechanism to allow government access to the data. 

Cato's Sanchez explained why he was leery of the DEA memo and the motives for its leaking.

http://stopthedrugwar.org/files/alan-butler-200px.jpg
EPIC attorney Alan Butler
"If this leak came from law enforcement, and that's mostly who would have access to this memo, I wonder why someone would leak it," he said. "One reason might be to support the larger 'Going Dark' campaign by the Department of Justice. Another reason might be the hope that drug dealers will mistakenly assume iMessages are safe and get lazy. Those are two possibilities worth thinking about."

The DEA also complained "that iMessages between two Apple devices are considered encrypted communication and cannot be intercepted regardless of the cell phone service provider," even though in the same memo, it conceded that "sometimes the messages can be intercepted depending where the intercept is placed."

Was the DEA memo leak part of an ongoing campaign to revamp the federal laws governing surveillance of electronic communications? That's hard to prove, but showing that there is such a campaign is less difficult.

In February testimony to the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security, FBI General Counsel Valerie Caproni coined the term "Going Dark" to describe what she called federal law enforcement's rapidly diminishing ability to monitor high-tech communications products as technologies advanced over the past 10 to 15 years. Caproni singled out "social-networking sites, web-based email and peer-to-peer communications."

Other federal officials have been making similar noises.  

"The FBI simply can't keep up with criminals taking advantage of online communication to hide evidence of their actions," FBI lawyer Andrew Weissman said last month during a meeting with American Bar Association.

The FBI and other federal law enforcers claim there is a growing gap between the legal authority of federal and other law enforcement agencies to intercept electronic communications pursuant to court order or direct warrant under the Communications Assistance Law Enforcement Act (CALEA) and their ability to actually do so. And they want new legislation to fix that.

Passed in 1994, CALEA law initially ordered phone companies to create a mechanism to have their systems conform to a wiretap in real-time surveillance. The Federal Communications Commission (FCC) extended CALEA in 2005 to apply to broadband providers, such as universities and Internet service providers, but messaging and social media services, such as Google Talk, Skype, Myspace, Yahoo and Facebook, as well as encrypted devices like Blackberry and Apple communications are not covered.

The FBI argues that "Going Dark" is a real and threatening possibility, with increased risk to national security and public safety. And the FCC has joined forces with the FBI by considering updating CALEA to require that digital products equipped with video or voice chats over the Internet, including Skype and Google Box Live, to rejigger their systems to allow the feds to monitor criminal activity as it happens in real time.

"We have noticed a massive upstick in the amount of FCC-CALEA inquiries within the last year, most of which are intended to address 'Going Dark' issues," said Chris Canter, a lead compliance counsel at Marashlian & Donahue , a law firm specializing in CALEA law. "This generally means that the FCC is laying the groundwork for regulatory action," he told the Chronicle.

"If we applied the FBI's logic to the cell phone carriers, it would state that every individual phone should be designed with built-in bugs," the Electronic Frontier Foundation said in a statement on CALEA. "Consumers would simply have to trust law enforcement or the phone companies not to activate those bugs without just cause."

EFF filed a Freedom of Information Act (FOIA) request with the FBI and other federal law enforcement agencies showing how the feds might try to justify forcing high-tech services to rewire their systems for expanded wiretapping purposes. The FOIA requested "information concerning the difficulties that the FBI and DOJ has encountered in conducting authorized electronic surveillance."

But so far, the Department of Justice has withheld the bulk of relevant information on the topic, provoking San Francisco US District Court Judge Richard Seeborg to order the feds to turn over the records. No court date scheduled for the feds to comply.

While law enforcement is calling for legislative changes to aid its work, critics insist that even if Congress refuses to pass laws to tackle the "Going Dark" problem, investigators can still obtain a special warrant allowing them to sneak into private residences and businesses to install a keystroke-logging system onto a computer or other devices to record passwords to unlock data they need to make a case.

The DEA adopted this same technique in the Texas case and another case where suspected drug dealers used PGP and the encrypted Web-email service identified in court records as Hushmail.com. Investigators can also send a malware to gain control of a targeted cell phone to extract the text messages, or as a last resort, obtain a warrant to seize the physical device and perform a traditional forensic analysis.

"New technologies frequently create uncertainty and the law is slow to adapt while leaving us to fight over how much surveillance we can tolerate in a free society," noted EPIC attorney Butler. "No one has quite figured out how to strike that balance in every case. However, the Fourth Amendment requires that our persons, houses, papers, and effects be protected from unreasonable search and seizures."

The battle between the imperatives of law enforcement and the privacy rights of Americans is never definitively won. Instead, it is better viewed as a never-ending series of skirmishes. And the contested terrain of this particular skirmish is your iPad.

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