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Chronicle Book Review: Too High to Fail

Doug Fine, Too High to Fail: Cannabis and the New Green Economic Revolution (2012, Gotham Books, 319 pp., $28.00 HB)

[Ed: This review was based on the hardcover edition of "Too High to Fail." The paperback edition of Too High Fail has now been published as well. According to the author it includes a a postscript that reflects "more unbelievable happenings in Mendocino County and worldwide through the beginning of this year."]

https://stopthedrugwar.org/files/toohightofail-200px.jpg
Marijuana and marijuana policy are big news these days -- they are exciting times, indeed! -- and that's reflected in what has now become a deluge of books on the topic. We've probably reviewed a dozen or more pot books in the last year alone, and here's another one. While, given the torrent of titles, it becomes increasingly difficult to stand out in the crowd, New York Times bestselling author Doug Fine's Too High to Fail is exceptional.

Fine writes with verve and passion, making it clear from the outset that he views marijuana prohibition as not only useless, but harmful -- not only to any sense of justice and morality, not only to the millions of people arrested and punished in myriad ways for the crime of possessing or trading in a hugely useful and versatile plant, but also to the country's efforts to claw its way back from the precipice of the Great Recession.

With that out of the way, in early 2011, Fine heads off for Mendocino County, California, ground zero in the new marijuana economy. A couple of hours north of San Francisco on US 101, Mendocino is part of the state's famous marijuana-growing Emerald Triangle, and is, to a mind-blogging extent, dependent on the pot economy. In fact, if not for pot, Mendocino would probably wither up and blow away. The logging industry is history, and the legal agricultural economy is a fraction of the size of the pot economy. (The county's largest legitimate ag crop, wine grapes, pulled in about $75 million in one recent year, at the same time the pot harvest was estimated at $8.1 billion, or about a hundred times as much).

The pot economy is normalized in Mendocino County. Marijuana dollars pay for everything from the new pickup trucks flying off dealers' lots every fall to the capital necessary to open boutique businesses that dot one-horse towns like Willits and Ukiah to the salaries of Mendocino County sheriff's deputies (at least for a couple of years; see below). County officials know what the local economy runs on, and so does the sheriff, which is why the county instituted its zip-tie program for growers willing to register as medical marijuana providers. Farmers paid thousands of dollars into county coffers for those zip-ties, which would let state and local law enforcement know that these were legal grows, not outlaw ones.

If California, where medical marijuana is legal is Fine's "bubble," Mendocino County, with its casual acceptance of the pot economy is the bubble squared, and growers operating within the guidelines of the zip-tie program, complete with inspections by law enforcement are inside the bubble cubed. This is where Fine situates himself, as he uses the journey of a single plant from cloning to delivery to a patient as the hook for his narrative of his hazy Mendo days.

Fine's sympathetic portraits of the folks involved, from Sheriff Tom Allman, who told him he wouldn't get "up off my ass" to arrest a guy with a pound of pot in the sheriff's parking lot and who created the zip-tie program, to Deputy Randy Johnson, who performed the unique job of zip-tie program compliance sergeant, to novice Mendo outdoor (but experienced East Bay indoor) grower Tom Balogh, who grew the clone Fine tracked, to Northstone Organics head Matt Cohen, who was determined to run a farmer-to-patient collective in scrupulous compliance with state laws, help put a human face on Mendocino's marijuana culture and some of its intricacies.

Fine also shines at explicating the various currents and tensions that run through the community, whether it's the veteran "Redneck Hippies" unhappy with the new generation of young, bling-slinging profiteers or county commissioners not exactly happy with Mendo's free-wheeling grow scene, but who recognize that it can't be wished away and should instead be regulated for the benefit of the county and its citizens. Or the travails of newcomer Balogh, who must contend with skeptical neighbors and prove to the community that he's not just another hit-and-run wannabe "sensimillionaire."

But while Fine spent a season deep inside the bubble, he also found that it could be punctured. He details his own experience being pulled over by sheriff's deputies in neighboring Sonoma County to the south who profiled him for his facial hair and muddied, big-tired pick-up, as well as the misadventures of two Northstone Organics deliverymen also pulled over and busted by Sonoma narcs and, gallingly, prosecuted by Sonoma County district attorneys. The drive from Mendo south through Sonoma and on to the Bay Area was called "running the gauntlet," as law enforcers on the hunt for busts and assets to seize preyed on the US 101 traffic less like highway patrolmen than highwaymen.

(As a resident of medical marijuana-friendly Sonoma County, such behavior by my elected officials and their minions offends my sensibilities. I'll be attending a Summer Solstice event this coming week to celebrate the formation of a political action committee whose goal is help enlighten our public servants, or replace them if they appear too thick-headed to get it.)

But Fine, Northstone Organics, and the entire Mendocino County effort to craft a tightly-regulated, county-benefiting medical marijuana program encountered an even more dramatic bursting of the bubble when federal prosecutors renewed their war on medical marijuana in the fall of 2011. Mendonesians had largely ignored the raids on dispensaries going on elsewhere in the state as the war ramped up, but they couldn't ignore the crew of DEA agents who rousted Cohen at gunpoint and chopped down Northstone's 99 plants, depriving more than 1,700 patients of their medicine, and effectively putting an end to the innovative zip-tie program.

With Too High to Fail, Fine show us how marijuana can be regulated and integrated into the community. And he dares to dream of a future where the cannabis plant, with all its manifold uses, can be integrated into, and indeed, become a boon for, the American economy. He also shows us the obstacles in the way.

The story of Mendocino's (and America's) marijuana adventure didn't stop in the fall of 2011. Since then, even as the first two states legalized marijuana outright at the ballot box, the federal offensive against medical marijuana in California has continued. Mendocino County had to fend off an overreaching federal subpoena of all records related to its medical marijuana program, Northstone has been knocked out of business, and an innovative program that served the interests of the community and the local economy has been stopped in its tracks.

In the new paperback edition, Fine returns to Mendocino and adds a 6,000 postscript on all the exciting developments since 2011, including legalization in Colorado and Washington, the seismic shifts in public opinion in favor of legalization, and the continuing trials, tribulations, and triumphs of the county's growers and the public officials attempting to come to grips with it all.

Although Fine looks bravely and boldly toward a cannabized future, we aren't there yet. But Too High to Fail chronicles what it could look like based on the Mendo experience, and provides a valuable and entertaining read along the way.

Blacks Targeted in Wasteful War on Marijuana, ACLU Finds

Black Americans are nearly four times more likely to get busted for marijuana possession than white ones, even though both groups smoke pot at roughly comparable rates, the ACLU said in a report released Tuesday. The report, "The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests," is based on the annual FBI Uniform Crime Report and US Census Bureau Data.

Blacks are 3.7 times more likely to get busted for marijuana possession than whites. (aclu.org/marijuana)
The disparity in arrest rates is startlingly consistent, the report found. In more than 96% of the counties covered in the report, blacks were arrested at higher rates than whites. Racial disparities in pot busts came in large counties and small, urban and rural, wealthy and poor, with large black populations and with small ones.

In some counties, the disparity rose to 15 times more likely, and in the Upper Midwest states of Illinois, Iowa, and Minnesota, blacks were eight times more likely to be arrested for pot possession than whites. Nationwide, blacks were 3.73 times more likely to get arrested for marijuana than whites.

And it's getting worse, not better. The report found that even though the racial disparities in marijuana arrests existed 10 years ago, they have increased in 38 states and the District of Columbia.

"The war on marijuana has disproportionately been a war on people of color," said Ezekiel Edwards, director of the ACLU Criminal Law Reform Project and one of the primary authors of the report. "State and local governments have aggressively enforced marijuana laws selectively against black people and communities, needlessly ensnaring hundreds of thousands of people in the criminal justice system at tremendous human and financial cost."

In budgetary terms, that cost to the states was $3.61 billion in 2010 alone, the report found. During the decade the report studied, despite aggressive enforcement and rising marijuana arrest rates, all those arrests failed to stop or even diminish the use of marijuana, and support for its legalization only increased.

"The aggressive policing of marijuana is time-consuming, costly, racially biased, and doesn't work," said Edwards. "These arrests have a significant detrimental impact on people's lives, as well as on the communities in which they live. When people are arrested for possessing even tiny amounts of marijuana, they can be disqualified from public housing or student financial aid, lose or find it more difficult to obtain employment, lose custody of their child, or be deported."

The report recommends legalizing, taxing, and regulating marijuana, which it said would eliminate racially-targeted selective enforcement of marijuana laws, save the billions of dollars spent on enforcing pot prohibition, and raise badly needed revenues by taxation. If legalization is not doable, then decriminalization, and if not decriminalization, then lowest prioritization.

The ACLU also calls in the report for reforms in policing practices, including not only ending racial profiling, but also constitutionally-suspect stop-and-frisk searches, such as those embraced with such gusto by the NYPD in New York City. It also crucially recommends reforming federal law enforcement funding streams, such as the Edward Byrne Justice Assistance Grant Program, that encourage police to make low-level drug busts by using performance measures that reward such arrests at the expense of other measures.

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

Perspectives on the Denver "420" Disruption

Denver 420 rally, while it lasted (facebook.com/pages/420-Rally/104447806260934)
Yesterday's historic "420" rally in Denver, the first since Colorado voted to legalize marijuana last fall, was marred and cut short by violence. Two unidentified gunmen shot and wounded three people -- two attendees were shot in the leg and were rushed to a nearby hospital with "non-life-threatening-injuries," and a teen was grazed by a bullet and walked there, according to the Denver Post. Attendees fled the scene, and the remainder of the event as well a smaller one planned for today were canceled.

It was not the kind of day those three people or their friends had planned, and that's the most important thing to keep in mind. It was also not the kind of day that thousands attending including many who traveled from afar had planned either. It's lucky there were no trampling injuries, at least no serious ones, apparently.

Without forgetting what's most important -- the people most directly affected -- it's also worth noting that this is obviously not the kind of headline that legalization advocates wanted. The story had the top spot on Google News for a time last night, and continues to hold front page placement as I write this. That's an unfortunate accomplishment, particularly after the grim and violent week we just lived through. But does it hurt the cause?

After looking through news reports, I don't think so. The only criticism of the idea of the rally was from a Colorado anti-marijuana group, appearing well toward the end of the article. Most of it was sympathetic reporting about the victims, about organizers cooperating with police, police looking for information on the suspects, who the musical acts were, how police even before Amendment 64 passed had focused on crowd safety rather than marijuana enforcement during Denver's 420 events. I have not yet seen any quotes suggesting that marijuana use had any connection to the violence, though I've not done an exhaustive search.

Of course there's an opportunity cost from this unfortunate story replacing the story we'd hoped for of legal marijuana becoming a mainstream, accepted reality. And it's hard to know whether the coverage reflects maturation on the part of the media's treatment of the marijuana issue, vs. the violence forcing things into perspective. But I lean toward the former, and there's some comfort from seeing marijuana reformers and public safety personnel so clearly on the same side. At least that's how it looks from a distance. Our movement is part of larger society, and we are vulnerable to all the same dangers.

Let's hope the victims' injuries are no worse than reported, and for their swift recovery.

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.

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

special to Drug War Chronicle by veteran investigative crime journalist Clarence Walker, [email protected]

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.

https://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.

Marijuana Legalization Bill Moving in Oregon

An Oregon bill that would legalize marijuana was approved by the House Judiciary Committee Wednesday on a 6-3 vote after hearing testimony that same day. That marks the first time any Oregon marijuana legalization measure has won a committee vote. The bill now heads to the House Revenue Committee.

The bill, House Bill 3371, would legalize marijuana possession for adults 21 and over, provide for the cultivation of a small number of plants without regulation, and set up a system of taxation and regulation of marijuana commerce. It was sponsored by the Revenue Committee.

"Marijuana legalization is coming to Oregon sooner rather than later," said Anthony Johnson of New Approach Oregon, a group supporting legalization. "It makes sense to regulate marijuana like alcohol and for the legislature to take the lead on the issue and make sure sensible regulations are in place."

The only opposition to the bill at the Wednesday hearing came from the Oregon State Sheriffs' Association, which said it was concerned about drugged driving, underage use, and drug dependency.

"This act will not make the problems of marijuana abuse go away," said Washington County Sheriff Pat Garrett, speaking on behalf of the association.

Oregon became the first state in the nation to decriminalize marijuana in 1973. Last, the Measure 80 marijuana legalization initiative, poorly funded and hobbled by the mixed reputation of its proponent, Paul Stanford, managed to pull in nearly 47% of the popular vote. Activists have been discussing whether to go forward with another initiative in 2014, but if HB 3371 keeps moving, they may not have to wait that long.

Eugene, OR
United States

Feds' New Cell Phone Spying Device Raising Privacy Concerns [FEATURE]

special to Drug War Chronicle by independent investigative journalist Clarence Walker, [email protected]

Blocked by a Supreme Court decision from using GPS tracking devices without a warrant, federal investigators and other law enforcement agencies are turning to a new, more powerful and more threatening technology in their bid to spy more freely on those they suspect of drug crimes. That's leading civil libertarians, electronic privacy advocates, and even some federal judges to raise the alarm about a new surveillance technology whose use has yet to be taken up definitively by the federal courts.

StingRay cell phone spying device (US Patent photo)
The new surveillance technology is the StingRay (also marketed as Triggerfish, IMSI Catcher, Cell-site Simulator or Digital Analyzer), a sophisticated, portable spy device able to track cell phone signals inside vehicles, homes and insulated buildings. StingRay trackers act as fake cell towers, allowing police investigators to pinpoint location of a targeted wireless mobile by sucking up phone data such as text messages, emails and cell-site information.

When a suspect makes a phone call, the StingRay tricks the cell into sending its signal back to the police, thus preventing the signal from traveling back to the suspect's wireless carrier. But not only does StingRay track the targeted cell phone, it also extracts data off potentially thousands of other cell phone users in the area.

Although manufactured by a Germany and Britain-based firm, the StingRay devices are sold in the US by the Harris Corporation, an international telecommunications equipment company. It gets between $60,000 and $175,000 for each Stingray it sells to US law enforcement agencies.

[While the US courts are only beginning to grapple with StingRay, the high tech cat-and-mouse game between cops and criminals continues afoot. Foreign hackers reportedly sell an underground IMSI tracker to counter the Stingray to anyone who asks for $1000. And in December 2011, noted German security expert Karsten Nohl released "Catcher Catcher," powerful software that monitors a network's traffic to seek out the StingRay in use.]

Originally intended for terrorism investigations, the feds and local law enforcement agencies are now using the James Bond-type surveillance to track cell phones in drug war cases across the nation without a warrant. Federal officials say that is fine -- responding to a Freedom of Information Act (FOIA) request filed by the Electronic Freedom Foundation (EFF) and the First Amendment Coalition, the Justice Department argued that no warrant was needed to use StingRay technology.

"If a device is not capturing the contents of a particular dialogue call, the device does not require a warrant, but only a court order under the Pen Register Statute showing the material obtained is relevant to an ongoing investigation," the department wrote.

The FBI claims that it is adhering to lawful standards in using StingRay. "The bureau advises field officers to work closely with the US Attorney's Office in their districts to comply with legal requirements," FBI spokesman Chris Allen told the Washington Post last week, but the agency has refused to fully disclose whether or not its agents obtain probable cause warrants to track phones using the controversial device.

And the federal government's response to the EFF's FOIA about Stingray wasn't exactly responsive. While the FOIA request generated over 20,000 records related to StingRay, the Justice Department released only a pair of court orders and a handful of heavily redacted documents that didn't explain when and how the technology was used.

The LA Weekly reported in January that the StingRay "intended to fight terrorism was used in far more routine Los Angeles Police criminal investigations," apparently without the courts' knowledge that it probes the lives of non-suspects living in the same neighborhood with a suspect.

Critics say the technology wrongfully invades technology and that its uncontrolled use by law enforcement raised constitutional questions. "It is the biggest threat to cell phone privacy you don't know about," EFF said in a statement.

ACLU privacy researcher Christopher Soghoian told a Yale Law School Location Tracking and Biometrics Conference panel last month that "the government uses the device either when a target is routinely and quickly changing phones to thwart a wiretap or when police don't have sufficient cause for a warrant."

"The government is hiding information about new surveillance technology not only from the public, but even from the courts," ACLU staff attorney Linda Lye wrote in a legal brief in the first pending federal StingRay case (see below). "By keeping courts in the dark about new technologies, the government is essentially seeking to write its own search warrants, and that's not how the Constitution works."

Lye further expressed concern over the StingRay's ability to interfere with cell phone signals in violation of Federal Communication Act. "We haven't seen documents suggesting the LAPD or any other agency have sought or obtained FCC authorization," she wrote.

StingRay pricing chart (publicintelligence.net)
"If the government shows up in your neighborhood, essentially every phone is going to check in with the government," said the ACLU's Soghoian. "The government is sending signals through people's walls and clothes and capturing information about innocent people. That's not much different than using invasive technology to search every house on a block," Soghoian said during interviews with reporters covering the StingRay story.

Advocates also raised alarms over another troubling issue: Using the StingRay allows investigators to bypass the routine process of obtaining fee-based location data from cell service providers like Sprint, AT&T, Verizon, T-Mobile and Comcast. Unlike buying location data fro service providers, using StingRay leaves no paper trail for defense attorneys.

Crack defense attorney Stephen Leckar who scored a victory in a landmark Supreme Court decision over the feds' warrantless use of a GPS tracker in US v. Jones, a cocaine trafficking case where the government tracked Jones' vehicle for weeks without a warrant, also has concerns.

"Anytime the government refuses to disclose the ambit of its investigatory device, one has to wonder, what's really happening," he told the Chronicle. "If without a warrant the feds use this sophisticated device for entry into people's homes, accessing private information, they may run afoul of a concurring opinion by Justice Alito, who ruled in US v Jones whether people would view unwarranted monitoring of their home or property as Constitutionally repugnant."

Leckar cited Supreme Court precedent in Katz v. US (privacy) and US v. Kyllo (thermal imaging), where the Supreme Court prohibited searches conducted by police from outside the home to obtain information behind closed doors. Similar legal thinking marked February's Supreme Court decision in a case where it prohibited the warrantless use of drug dogs to sniff a residence, Florida v. Jardines.

The EFF FOIA lawsuit shed light on how the US government sold StingRay devices to state and local law enforcement agencies for use specifically in drug cases. The Los Angeles and Fort Worth police departments have publicly acknowledged buying the devices, and records show that they are using them for drug investigations.

"Out of 155 cell phone investigations conducted by LAPD between June and September 2012, none of these cases involved terrorism, but primarily involved drugs and other felonies," said Peter Scheer, director of the First Amendment Center.

The StingRay technology is so new and so powerful that it not only raises Fourth Amendment concerns, it also raises questions about whether police and federal agents are withholding information about it from judges to win approval to monitor suspects without meeting the probable cause standard required by the Fourth. At least one federal judge thinks they are. Magistrate Judge Brian Owsley of the Southern District of Texas in Corpus Christi told the Yale conference federal prosecutors are using clever techniques to fool judges into allowing use of StingRay. They will draft surveillance requests to appear as Pen Register applications, which don't need to meet the probable cause standards.

"After receiving a second StingRay request," Owsley told the panel, "I emailed every magistrate judge in the country telling them about the device. And hardly anyone understood them."

In a earlier decision related to a Cell-site Simulator, Judge Owsley denied a DEA request to obtain data information to identify where the cell phone belonging to a drug trafficker was located. DEA wanted to use the suspect's E911 emergency tracking system that is operated by the wireless carrier. E911 trackers reads signals sent to satellites from a cell phone's GPS chip or by triangulation of radio transmitted signal. Owsley told the panel that federal agents and US attorneys often apply for a court order to show that any information obtained with a StingRay falls under the Stored Communication Act and the Pen Register statute.

DEA later petitioned Judge Owsley to issue an order allowing the agent to track a known drug dealer with the StingRay. DEA emphasized to Owsley how urgently they needed approval because the dealer had repeatedly changed cell phones while they spied on him. Owsley flatly denied the request, indicating the StingRay was not covered under federal statute and that DEA and prosecutors had failed to disclose what they expected to obtain through the use of the stored data inside the drug dealer's phone, protected by the Fourth Amendment.

"There was no affidavit attached to demonstrate probable cause as required by law under rule 41 of federal criminal procedures," Owsley pointed out. The swiping of data off wireless phones is "cell tower dumps on steroids," Owsley concluded.

But judges in other districts have ruled favorably for the government. A federal magistrate judge in Houston approved DEA request for cell tower data without probable cause. More recently, New York Southern District Federal Magistrate Judge Gabriel Gorenstein approved warrantless cell-site data.

"The government did not install the tracking device -- and the cell user chose to carry the phone that permitted transmission of its information to a carrier," Gorenstein held in that opinion. "Therefore no warrant is needed."

In a related case, US District Court Judge Liam O'Grady of the Northern District of Virginia ruled that the government could obtain data from Twitter accounts of three Wikileakers without a warrant. Because they had turned over their IP addresses when they opened their Twitter accounts, they had no expectation of privacy, he ruled.

"Petitioners knew or should have known that their IP information was subject to examination by Twitter, so they had a lessened expectation of privacy in that information, particularly in light of their apparent consent to the Twitter terms of service and privacy policy," Judge O'Grady wrote.

A federal judge in Arizona is now set to render a decision in the nation's first StingRay case. After a hearing last week, the court in US v. Rigmaiden is expected to issue a ruling that could set privacy limits on how law enforcement uses the new technology. Just as the issue of GPS tracking technology eventually ended up before the Supreme Court, this latest iteration of the ongoing balancing act between enabling law enforcement to do its job and protecting the privacy and Fourth Amendment rights of citizens could well be headed there, too.

Hawaii Marijuana Decriminalization Bill Dies

A bill that would have decriminalized the possession of small amounts of marijuana has died in the House. Legislators earlier killed a marijuana legalization bill.

The decriminalization bill, Senate Bill 472, passed out of the Senate a month ago and saw fervent debate in House committee hearings, but House leaders said there was not enough support for the bill to move forward.

Rep. Karl Rhoads (D-District 29), chairman of the House Judiciary Committee told the Associated Press Wednesday that there weren't enough votes to push the bill through. And although the state's two-year legislative session would allow the bill to be taken up again next year without having to pass the Senate again, Rhoads said he doubted that would happen.

"It was a moderate measure," Rhoads told the AP. "If this couldn't pass, I think it's very unlikely that anything is going to pass next year."

Marijuana reform supporters, including the ACLU of Hawaii and two new coalitions aimed at changing the state's marijuana laws, Fresh Approach Hawaii and the Medical Cannabis Coalition of Hawaii, had been optimistic about the bill's prospects after it passed the Senate, but it ran into stiff opposition from law enforcement and community groups. Police testified that reforming the marijuana laws would make their job more difficult and increase crime.

Honolulu, HI
United States

ACLU to Examine SWAT, Police Militarization

The American Civil Liberties Union announced this week that it was seeking data from police departments across the country in an effort to determine the extent to which law enforcement agencies are using federally-subsidized military-style weapons and tactics. The group said it had filed 255 public records requests with law enforcement agencies in 23 states, as well as with the National Guard.

Paramilitarized SWAT teams are one example of what the ACLU will be looking at. Originally conceptualized as specialized units to be used in limited circumstances, such as hostage-rescues or armed standoffs, SWAT teams have been subject to mission creep and are now used routinely by some departments for, among other things, executing drug search warrants.

"Equipping state and local law enforcement with military weapons and vehicles, military tactical training, and actual military assistance to conduct traditional law enforcement erodes civil liberties and encourages increasingly aggressive policing, particularly in poor neighborhoods and communities of color," said Kara Dansky, senior counsel for the ACLU's Center for Justice. "We've seen examples of this in several localities, but we don't know the dimensions of the problem."

The ACLU will be seeking information on the number and purpose of SWAT deployments, the types of weapons used, injuries sustained by civilians, training materials, and funding sources for them.

The group will also be looking more generally at the use of advanced weapons and cutting edge technologies, including unmanned drones, GPS tracking devices, detainee restraint devices ("shock-cuffs"), and military weaponry, equipment, and vehicles obtained directly through the Departments of Defense and Homeland Security or funded by them.

They will also seek information from state National Guards regarding incidents of direct contact with civilians, as well as examining cooperative agreements between local law enforcement agencies and the Guard's counter-drug program.

"The American people deserve to know how much our local police are using military weapons and tactics for everyday policing," said Allie Bohm, ACLU advocacy and policy strategist. "The militarization of local police is a threat to Americans' right to live without fear of military-style intervention in their daily lives, and we need to make sure these resources and tactics are deployed only with rigorous oversight and strong legal protections."

The affiliates which filed public records requests are: Arizona, Connecticut, Delaware, Florida, Georgia, Hawaii, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Washington, West Virginia and Wisconsin.

Once the information has been collected and analyzed, if needed, ACLU plans to use the results to recommend changes in law and policy governing the use of military tactics and technology in local law enforcement.

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