Tag Archives: Due Process

Four Reforms to Note in Oklahoma Personal Asset Protection Act SB 838

scale_of_justice

Kaye Beach

Sept. 20, 2015

Sen. Kyle Loveless is the author of SB 838, the Personal Asset Protection Act which would give more protection to innocent property owners from the practice of civil asset forfeiture.   It is a good bill but to my dismay, I keep running into misconceptions about the measure.  Legislation is a little tricky to read and often, the media does not break them down very well.

In this post, I will show you the bill and point out the four major reforms it would accomplish.

A tiny bit of background first.  Civil asset forfeiture allows the government to take property that they assert to have been gained or used in the commission of a crime.

There is a difference between civil and criminal asset forfeiture.

Civil Forfeiture
Civil forfeitures are based on the unlawful use of a property irrespective of an owner’s culpability. Civil forfeitures followed the rules of civil procedure.

Criminal Forfeiture
Criminal forfeitures are subject to all the constitutional and statutory procedural safeguards available under criminal law. The forfeiture case and the criminal case are tried together. Forfeiture counts must be included in the indictment of the defendant which means the grand jury must find a basis for the forfeiture. At trial, the burden of proof is beyond a reasonable doubt.

Read more

Unlike criminal asset forfeiture, civil asset forfeiture does not require a conviction. In fact, the person who has their property taken under civil asset forfeiture may not even be charged with any crime.

OKLAHOMA CITY — Over a five-year period, law enforcement officials in 12 Oklahoma Counties seized more than $6 million in cash, almost $4 million of which was taken without any criminal charges…
Records indicate that of the $6.1 million dollars taken, only $2.1 million was seized from people who were actually charged with a crime, meaning more than 65 percent of the cash seized was taken without any criminal charges being filed.
Read more

Some legal experts would like to see asset forfeiture ended with few exceptions but most states aren’t willing to simply banish the practice. In the meantime, important reforms can and should be made.
Scott Bullock, senior attorney at the Institute for Justice offers five recommendations for states who are will not summarily call a halt to asset forfeiture. He recommends that states:
1. Place seized revenues in neutral funds
2. Increase the standard of proof for seizure to require “clear and convincing evidence” of a crime,
3. move the burden of proof to the government,
4. Make the tracking of seized assets more transparent,
5. Eliminate “equitable sharing” arrangements.

Link

SB 838 by Sen. Loveless would accomplish three out of those five reform recommendations (plus one more important one that is not on Bullock’s list )

I have heard some people say  that the only thing that this bill does is take the proceeds gained through civil asset forfeiture away from the police and give them to the state.   It’s not true.

I find four substantial reforms in SB838 in addition to removing the profit incentive for civil asset forfeiture.

1) SB 838 requires a conviction before property can be taken by the government
2) SB 838 puts the burden of proof on the government taking the property.  They have to prove guilt rather than the individual being threatened with the loss of their property having to prove innocence
3) SB 838 raises the amount of evidence required for the government to take the property
4) SB 838 increases due process by providing trial by jury to all who are involved in an asset forfeiture claim by the state.

If removing the direct profit incentive by moving the funds gained through asset forfeiture to the state’s general fund as proposed by SB 838, seems problematic to you, Sen. Loveless has gone on record stating that he is open to other methods of putting a buffer between the profit and the agency seizing the property.

So, let’s take a look at the actual bill, SB838

Remember, when reading amendatory legislation such as SB 838,  only the underlined or stuck though language is new (the changes being proposed by the bill) the rest is just a recitation of current law.

The very first thing SB 838 does is require that there be a conviction before taking a persons property by adding the language “upon a person’s conviction”

upon CONVICTION sb838

Currently there is no qualification that the property is subject to forfeiture only after a conviction. (That is why it is called civil as opposed to criminal asset forfeiture)

If SB 838 became law, The property could still be seized if the officer or agency has a reasonable suspicion that there is criminal wrongdoing associated with it however,  a criminal conviction would be required before property could be taken (forfeited).

As I read it, this bill would end civil asset forfeiture. All asset forfeitures would have to be criminal.

The next thing the bill does is strikes the portion of  existing law that puts the burden of proof on the individual having his property taken.

sb838 removes burden of proof from the individual

The third thing that SB838 does is increase the amount of evidence required for the government to take a person’s property.

SB838 would require “clear and convincing evidence” to be established before your property can be taken by the government.

cc sb838

Currently the standard for the state taking ownership of your property is by a “preponderance of the evidence” which means simply that if there is one feather weight of evidence that lends more than 50% certainty that plaintiff’s (in this case, the state) version of events is true, then they can take your cash or property from you.

“Clear and convincing evidence” raises the bar and affords much better protection to the innocent property owner.

The fourth reform in SB 838 is the addition of the right to a jury trial for any party to a forfeiture action.  It is my understanding that currently, there is no right to a jury trial in civil cases  involving less than $1,500.

jury trial
This language will afford greater due process in civil asset forfeiture cases.

The remainder of SB 838 deals with removing the direct profit incentive by requiring that the proceeds from asset forfeiture be moved to the state’s general fund. Currently the proceeds go directly to the agencies that forfeit the property and the concern is that this incentivizes civil asset forfeiture.

In my opinion, this bill simply affords Oklahomans the basic justice that those who have not run up against a civil asset forfeiture claim, think they already have.

The Immigration Reform Bill – Prodding Forth Real ID, an INTERNATIONAL Biometric ID

global biometric id

Kaye Beach

May 14, 2013

On May 10th The Blaze ran a headline that asks; Is There a Scary Biometric ‘National ID System’ Tucked into the Immigration Bill?

The answer is YES!

But wait!  There’s more. . .I sometimes feel like I am belaboring the point but it seems to me the distinction between a national and INTERnational biometric identity system is a very important one.

Study that graphic up there.  It is the simple three step recipe for a single, global biometric identification system.  Read this post then look at it again and see if you can grokk what I’m telling you.

The federal Real ID Act of 2005 imposed federal guidelines that use international standards on state driver’s licenses and ID cards.  You may remeber that at least 25 states said no to Real ID by passing either a law or a resolution against the implementation of the Real ID Act.  Nevertheless, Real ID has continued to be implemented in most states to various degrees.

“By the deadline of January 13, 2013, most states will be substantially or materially or fully compliant with REAL ID” —Janice Kephart, Feb. 2012

It is important to note though, that ALL states are capturing and storing applicants’ digital facial images.  And although not all of the states are actually using this facial biometric as intended by the Real ID Act, eventually they will be.   The immigration reform bill (S.744, the ‘Border Security, Economic Opportunity, and Immigration Modernization Act’) will make sure of it.

In case you missed it, now, when you apply for a state driver’s license, a state identification card or any other form of government issued photo ID really, you are having your facial biometrics captured by a high resolution photograph.  High resolution digital cameras capture, map, digitize and database our facial features for the purpose of use by facial recognition technology.

Facial recognition technology enables remote identification and tracking through networked camera systems without our knowledge or consent.  As a matter of fact, facial biometrics is the governments biometric of choice because it can be used to identify and investigate us at-a-distance without our knowledge or consent.

Pay close attention here: This digital image on your state driver’s license or ID card is, by definition, a biometric.

The standard specified in the Real ID regulations for your state driver’s license and ID cards ensures that the digital facial image is facial recognition compatible.  That standard is the adopted standard of the ICAO, the International Civil Aviation Organization, an agency of the UN.

(Want more information?  Read REAL ID – BIOMETRIC FACT SHEET)

International standards exist for one purpose;  to enable the global sharing of that information.

REAL ID is. . .the current face of a far larger, international government and private economic effort to collect, store, and distribute the sensitive biometric data of citizens to use for the twin purposes of government tracking and economic control.” -PA Rep. Sam Rohr

Real ID is technically voluntary for the states.  What the government has always intended, is for Real ID to be practically mandatory for the citizens.  This is why the threat hangs over our heads that if we do not have a Real ID card by a certian date, we will not be able to fly or enter a federal building.

“In the future, only those state issued Driver Licenses and  Identification cards which are fully compliant with the REAL ID act of 2005 will be authorized for use as identification for official federal
government purposes, such as boarding commercial aircraft and entering  certain regulated federal facilities.” Alabama DMV-STAR ID

The road to Real ID compliance has admittedly been a rather slow and arduous one but the Immigration Reform bill (S.744, the ‘Border Security, Economic Opportunity, and Immigration Modernization Act’), if passed, will put a stop to any state foot dragging on Real ID because citizens will have to have it in order to work!

 A Real ID compliant driver’s license is specifically named as one of the acceptable ID documents in the bill (but all ID documents specified in the bill are biometric ID’s.)

To be perfectly clear – with S.744, producing your government issued, internationally standardized biometric ID is mandatory.  You will not be able gain permission to work without it. 

In authoritarian societies you must always have permission.

Forget privacy.  That is not what this is about.  This is about the balance of power between us and our government.  This is about control.  If we wish to retain control over our own lives, we will not accept government serializing of our bodies and we won’t allow the government to turn our rights into privileges

The Sec. of the Dept. of Homeland Security also has the option to add any other biometric or security feature as a requirement for those who wished to be employed so facial biometrics is the minimum biometric requirement but iris scans, fingerprints, or any other biometric could be required as well.

The new comprehensive immigration reform bill is not the first step in enrolling US citizens in the global biometric identification system.  The first step was that every government issued ID (especially the driver’s license) captured and collected your biometric data and that that data was collected in accordance with international standards.  The second step is to share your biometric data, to connect databases so that they can get that data flowing freely from the state and local databases on to the federal ones and eventually into global data systems.

One other important step in this global system of identification and control is to make sure we have to produce our global biometric ID for everything.  Or at least everything that we do that government wants to track and control.  And don’t forget that with biometric ID, your body IS your ID.  It’s the databases and not the card we should be focusing on.

Here are a few more facts about the bill as drafted;

Requires ALL potential employees to be authorized to work through the Dept. of Homeland Security.  Even If you are already employed when the proposed law goes into effect, you still will have to go through this authorization process.

Authorization hinges upon biometric identification.  Biometric data, including but not necessarily limited to, digital facial image, is required.  Real ID compliant driver’s licenses are cited as one acceptable form of biometric ID but the bill leaves the door open for the Sec. of the Dept. of Homeland Security to add other security requirements as he or she see fit.

The immigration reform bill requires employers to use a “photo tool” to verify the identity of each employee.  The term ‘photo tool’ is simply a euphemism for facial recognition software that will be used to match the facial biometrics provided by the potential employee to a federal database.

Where will this federal database come from?  I asked this question of Mark Lerner, co-founder of The Constitutional Alliance,  the leading expert on biometrics and the Real ID Act.

Here is his reply:

 “The answer will come in the Rulemaking process. There are two possible scenarios. In either scenario the “key” will be the photos stored in state DMV databases. Whether it will be DHS requiring employers to send photos to DHS and DHS having direct or indirect access to state DMV photo databases or whether DHS will require the photos the employers uses to be provided directly to states for the states to compare to photos in the state DMV database remains unclear. I also believe it is clear DHS will get the photo regardless.”

Access to the biometric data held in state DMV databases will be a must. 

There are reasons I have been having a fit trying to get my biometric data OUT of the state Department of Public Safety database.  I think this bill goes a long way in making my argument for me.  Read more about my lawsuit against the state of Oklahoma for the unwarranted collection of my biometric data here.

There is more to this bill to be concerned about  For instance,  the unconstitutional lack of due process.  Every person must prove they are a US citizen before they can work.  If the system says you do not pass muster, you are required to be terminated from your job at the end of an administrative process.   Will have more info on this and other issues soon.

ultimate control whitehead

County joins others in state with isolation and quarantine policy

Nov. 29, 2009

Oklahoma’s Law is much the same after changes made or added in 2008-see below.

AxXiom


News From 91.3 KUWS

Douglas County joins others in state with isolation and quarantine policy

Story posted Friday at 11:38 a.m. 11/27/2009

Wisconsin counties have a little-known policy that allows forced isolation or quarantine of people using armed law enforcement and deputized civilians. Mike Simonson reports from Superior. This is to help health officials in a worst-case scenario to contain outbreaks.

Wisconsin statute requires each county to have an isolation and quarantine procedure. The order originated with the Centers for Disease Control from anthrax threats in 2001. But the policy is broader. It includes isolating people infected or even suspected of being infected with a contagious disease such as tuberculosis or in a flu pandemic. Douglas County Health Officer Deb Clasen says every county health officer in the state can now order that guards be put on infectious people.

http://www.businessnorth.com/kuws.asp?RID=3172

____________________________________________________

Oklahoma

State Quarantine and Isolation Statutes Updated April 2009

Oklahoma

Okla. Stat. tit. 63 §§ 1-502, 504

Authority. The State Board of Health shall have authority to adopt such rules and regulations, not inconsistent with law, as it deems necessary to aid in the prevention and control of communicable disease.

Whenever a local health officer determines or suspects that a person has a communicable disease, he may impose a quarantine on the place or premises where such person usually stays, and notice thereof shall be given in accordance with the rules and regulations of the State Board of Health.

**But you need to see administrative rules to really understand how our govt. has decided it would be best handle such a  scenario.   This is not where I would expect to find such serious alterations of law which were adopted in 2008.  See below**

Okla. Stat. tit. 21 § 1195

Penalties. Every person who having been lawfully ordered by any health officer to be detained in quarantine and not having been discharged leaves the quarantine grounds or willfully violates any quarantine law or regulation is guilty of a misdemeanor.

http://www.ncsl.org/default.aspx?tabid=17104

TITLE 310. OKLAHOMA STATE DEPARTMENT OF HEALTH

310:521-7-1. Examination

The Commissioner may issue an order for the examination of any individual upon the suspicion or confirmation that said individual has a communicable disease. Such examination may include a clinical examination, a specific diagnostic test or tests, or a specific laboratory test or tests. The purpose of such examination(s) and/or test(s) is to determine the presence of the suspected infectious organism or the presence of indicators of the suspected infectious organism, and to determine the contagious state of the individual to the extent possible.
[Source: Added at 25 Ok Reg 1148, eff 5-25-08]

310:521-7-2. Treatment

The Commissioner may issue an order for the treatment of any individual suspected or confirmed to have a communicable disease. The Commissioner may also order the treatment of any individual or individuals exposed to certain infectious agents. Such treatment plans will be according to procedures developed within the Department.
[Source: Added at 25 Ok Reg 1148, eff 5-25-08]

310:521-7-3. Isolation or quarantine

(a) Isolation. The Commissioner may issue an order for the isolation of any individual or group of individuals upon determination:

(1) That such individual or individuals who are reasonably known or suspected to have a communicable disease constituting a biologic public health threat and who remain within the transmission period for said disease; and
(2) That isolation is the necessary means to control the spread of the agent and the disease constituting a biologic public health threat.

(b) Quarantine. The Commissioner may issue an order for the quarantine of any individual or group of individuals upon determination:

That such individual or individuals who are reasonably known or suspected to have been exposed to a communicable disease constituting a biologic public health threat and who remain within the incubation period for said disease; and

(2) That quarantine is the necessary means to contain the communicable disease constituting a biologic public health threat  to which an individual or individuals have been or may have been exposed.

(c) Affected area. The Commissioner may issue an order for the quarantine of a facility, complex, or campus including but not limited to an apartment complex, dormitory, health care facility, hotel, correctional facility, or the individuals therein.

[Source: Added at 25 Ok Reg 1148, eff 5-25-08]

Any person who is subject to an order of the Commissioner for isolation or quarantine and who contests such an order may request an individual proceeding or hearing. In order to uphold a quarantine order the Department must prove by a preponderance of the evidence that the Respondent was, or was suspected of having been, exposed to an infectious disease constituting a biologic public health threat.

In order to uphold an isolation order the Department must prove by a preponderance of the evidence that the Respondent has, or is suspected of having, an infectious disease constituting a biologic public health threat.

If requested, an individual proceeding pursuant to this subsection shall be convened as quickly as reasonably possible, which may be held telephonically or by other electronic means.  (see exceptions part c)

A Respondent may request a hearing verbally or in writing. If the request for hearing is verbal, it shall be the duty of the hearing officer to take a statement for the record of the Respondent’s reason for contesting the Commissioner’s order.

the Commissioner’s order is upheld at the conclusion of the hearing, the Respondent may appeal the administrative decision pursuant to Section 318 of Title 75 of the Oklahoma Statutes.

(b) Upon finding that there is probable cause to believe that any individual or individuals who are subject to an order of examination, treatment, isolation, or quarantine has failed to or refuse to comply with such order, the Commissioner may request an emergency order from the district court to enforce the Commissioner’s order.

If granted, the emergency order shall require the individual or individuals to be taken immediately into custody by law enforcement officials for the purpose of examination or treatment or to be detained for the duration of the order of isolation or quarantine or until the Commissioner determines that the risk of transmission of a biologic public health threat is no longer present.

(c) Subsections a or b of this section may be suspended in the event of a declaration of emergency by the Governor pursuant to Oklahoma law or upon written directive of the Commissioner of Health to employ a constitutionally-sufficient alternative process due to exigent circumstances during such emergency. Such suspension of subsections a and b shall only exist for the duration of the emergency.

[Source: Added at 25 Ok Reg 1148, eff 5-25-08]

Is there a constitutional alternative to Due Process of Law??

310:521-7-7. Health status monitoring
A representative of the Department shall monitor the health status of those under quarantine or isolation according to means dictated through procedure of the Department. Such means may include use of appropriate data collection forms, use of appropriate medical tests and or procedures, regular telephone calls, visits by local health personnel or other pre-determined providers, self-reports, reports of caregivers or healthcare providers, or by other means. If an individual or individuals under quarantine develop symptoms compatible with a disease constituting a biologic public health threat, then such individual or individuals may be further ordered into isolation.

[Source: Added at 25 Ok Reg 1148, eff 5-2-08

Oklahoma Office of Administrative Rules- OAR

www.oar.state.ok.us

Bellvue and Thorazine to Free You from Your First Amendment Addiction

blacksheep

BLACK SHEEP AWARD

Veteran libertarian civil rights activist Julian Heicklen calls it “an out-and-out kidnapping” when Homeland Security Police forcibly transported him to a hospital where he was injected with Thorazine against his will.

It began shortly after Heicklen arrived at the US District Courthouse in New York City for the third Monday in a row to pass out pamphlets to prospective jurors.

The pamphlet, produced by the Fully Informed Jury Association (FIJA) entitled “A Primer for Prospective Jurors” informs jurors of their right to judge the law and its application as well as the facts in a case, regardless of the judge’s instructions to the contrary.

As in the past, (Jury activist arrested for exercising First Amendment rights) Homeland Security police told him he couldn’t do that on federal property and ordered him to leave. As in the past, Heicklen explained that the First Amendment recognized his right to do what he was doing.

Then, as Heicklen tells it in his email report to supporters, “One of them said that I was under arrest, get his hands behind his back and handcuff him.”

As Heicklen always does when faced with arrest, he dropped to the ground and went limp and silent.

In the past, he was arrested, handcuffed, placed on a gurney and transported to a hospital where he was examined and eventually released in time to be home later the same day.

(Full accounts of this and his first two trips to Manhattan can be read on the New Jersey Libertarian Party website.)

But this time something different happened. “I remained in that position for over an hour,” Heicklen says, “before I was lifted onto a gurney and strapped securely. I was never handcuffed nor received a citation or summons. It was an out-and-out kidnapping.”

At Bellevue Psychiaytric Hospital he remained nonresponsive to questions.

Around 3:00 PM, radio reporter Chris Goldstein called to say that he would start the publicity rolling.

After 4:00 PM or so, Heicklen continues, “I made a fuss to see someone in charge, so that I could either be released or brought in front of a magistrate. My requests were ignored, and became more persistent. Against my wishes four attendants grabbed me and gave me a shot of Thorazine to calm me down. It worked, I got an excellent night’s sleep.”

Read More;

http://www.examiner.com/examiner/x-26370-Libertarian-News-Examiner~y2009m11d4-Libertarian-freedom-activist-forcibly-hospitalized-and-drugged

GAO Report The 2009 Influenza Pandemic: Selected Legal Issues

Released Sept 1, 2009

Introduction
On June 11, in response to the global spread of a new strain of influenza, the World Health Organization (WHO) raised the level of influenza pandemic alert to phase 6, the highest level, which indicates the start of an actual pandemic.1 This change in alert level reflects the spread of the new virus, not its severity. In late April 2009, human cases of infection with a novel influenza  A(H1N1) virus were identified. Since then, the virus has become widespread. Although currently
the pandemic is of moderate severity with the majority of patients experiencing mild symptoms and making a rapid and full recovery, the virus and its effects may change over time.2 This report provides a brief overview of selected legal issues including emergency measures, civil rights, liability issues, and employment issues.

Contents
Introduction ……………………………………………………………………………………………………………….1
Emergency Measures ……………………………………………………………………………………………………1
Emergency Authorities …………………………………………………………………………………………….1
Public Health Emergency Authorities ……………………………………………………………………1
Stafford Act Declarations ……………………………………………………………………………………3
Emergency Use Authorizations (for Unapproved Countermeasures) …………………………..5
International Health Regulations (IHR) ………………………………………………………………………6
Overview of the IHR………………………………………………………………………………………….6
Declaration of a “Public Health Emergency of International Concern”………………………..7
Quarantine and Isolation Authority…………………………………………………………………………….9
Federal Authorities…………………………………………………………………………………………….9
Federal and State Coordination…………………………………………………………………………..10
Proposed Federal Regulations …………………………………………………………………………… 11
Border Entry Issues ……………………………………………………………………………………………… 11
Inadmissibility of Infected Aliens ………………………………………………………………………. 11
Border Quarantines of Citizens or Aliens……………………………………………………………..12
Closing the Border …………………………………………………………………………………………..12
Airlines and Travel Restrictions ………………………………………………………………………………13
Airline Corporate Policies …………………………………………………………………………………13
Public Health “Do Not Board” List …………………………………………………………………….14
Federal Airspace Authority………………………………………………………………………………..14
School Closures ……………………………………………………………………………………………………15
Vaccinations……………………………………………………………………………………………………………..17
Background …………………………………………………………………………………………………………17
Allocation of Vaccines …………………………………………………………………………………………..18
Overview……………………………………………………………………………………………………….18
Selected Federal Actions Prior to 2009………………………………………………………………..18
Federal Actions After Emergence of Influenza A(H1N1) ………………………………………..19
Legal Issues ……………………………………………………………………………………………………20
Mandatory Vaccinations …………………………………………………………………………………………21
History and Precedent ………………………………………………………………………………………21
Health Care Workers and Mandatory Vaccinations ………………………………………………..22
Vaccination Orders During a Public Health Emergency ………………………………………….23
Model State Emergency Health Powers Act………………………………………………………….24
Role of the Federal Government…………………………………………………………………………25
Civil Rights………………………………………………………………………………………………………………26
Introduction …………………………………………………………………………………………………………26
Constitutional Rights to Due Process and Equal Protection…………………………………………..26
Federal Nondiscrimination Laws……………………………………………………………………………..28
Section 504 of the Rehabilitation Act ………………………………………………………………….28
The Americans With Disabilities Act …………………………………………………………………..29
The Air Carrier Access Act………………………………………………………………………………..30
Liability Issues………………………………………………………………………………………………………….31
The Public Readiness and Emergency Preparedness Act (PREP Act) ……………………………..31
Civil Liability of Volunteers and Volunteer Health Professionals……………………………………32
Volunteer Protection Acts ………………………………………………………………………………….

Liability Protection During a State of Emergency………………………………………………….33
Emergency Mutual Aid Agreements ……………………………………………………………………34
Employment Issues …………………………………………………………………………………………………….34
Introduction …………………………………………………………………………………………………………34
Wrongful Discharge in Violation of Public Policy ………………………………………………………36
The Family and Medical Leave Act ………………………………………………………………………….38
Overview of Family and Medical Leave Rights …………………………………………………….38
State and Federal Laws Providing Employment Protections…………………………………….

Now is a good time to revisit; A Model for Medical Tyranny

A Model for Medical Tyranny
By Twila Brase • August 2002 • Volume: 52 • Issue: 8
In the wake of September 11, every state has been asked to enact a law providing for unprecedented, comprehensive health surveillance and medical martial law.
The Model State Emergency Health Powers Act, proposed by the Centers for Disease Control and Prevention (CDC), would provide a state’s governor with sole discretion to declare a public-health emergency. Once the emergency was declared, public-health officials would assume police powers, the militia would be mobilized, and the legislature would be prohibited from intervening for 60 days. Any new orders and rules issued by the governor would have the full force of law. Existing laws and individual rights could be suspended.
To promote the legislation, state officials and legislators have related it almost exclusively to the threat of bioterrorism. But broader authority is proposed. The new powers would be authorized during any declared public-health emergency. An emergency could be declared with the occurrence or imminent threat of a health condition or illness that is believed to be caused by bioterrorism, or the appearance of a novel, previously controlled, or previously eradicated infectious agent or biological toxin. That belief is the only criterion. And although there must be potential for a large number of people to be affected, there is no definition of “large number.” The governor, in consultation with health officials, would decide.
The 40-page proposal would require individuals to submit to state-ordered vaccinations, examination, testing, treatment, and specimen collection. Resisters would be charged with a misdemeanor and quarantined. Physicians and other health-care professionals would be required to perform medical procedures or be charged with a misdemeanor.
Quarantine, or isolation, could be imposed without a court order, although an order would have to be obtained “promptly” thereafter. Medical care could be rationed or withheld; private property could be taken or destroyed; compensation for loss of property would be limited; and no person acting under the orders of government officials would be held liable for death, injury, or property damage.
The names, addresses, and physical conditions of, and any other necessary information about, individuals suspected of harboring diseases or health conditions that might have been caused by bioterrorism or an epidemic would have to be reported immediately by doctors and pharmacists. No patient consent or notification would be required.
The public first got wind of the government’s plan when the CDC published a draft proposal last October. What began as a murmur of concern through e-mail soon became a wave of opposition around the country. The Health Privacy Project at Georgetown University took the first shot. It sent a letter to Lawrence Gostin, author of the proposal and director of the CDC’s Center for Law and the Public’s Health at Georgetown University. The letter attacked the draft’s lack of definitions for “epidemic” and “pandemic,” terms critical to determining when an emergency
could be declared. It also expressed concern over the “breathtakingly expansive scope of the definition of ‘public health emergency.’”1
Final Details Unveiled
On December 21, the CDC unveiled its final proposal. Responding to public criticism, the wording had been softened and the definitions made less vague, but there were few substantive changes. In fact, some sections are more egregious than before.
Due process is virtually eliminated. Health officials could pluck citizens out of their homes, place them in quarantine, and need not apply for a court order until ten days later. Nothing specifically would prevent officials from using quarantine or its threat to coerce individuals into submitting to medical procedures they would otherwise refuse. And although a court hearing would be required 48 hours after the court order was received, health officials could request a delay.
Doctors, other health professionals, and health-care institutions would also face coercion. If they refused to follow state-ordered medical directives, officials could strip them of their licenses to practice or operate in the state. On the order of an official, those who take an oath to protect patients might be compelled by state law to harm them (such as by administering a vaccine or performing a high-risk procedure). If a physician questioned directives, followed his conscience, advised citizens to refuse, or obstructed the plans of state officials, he could end up flipping burgers to support his family.
Additional provisions of the final proposal are just as alarming. Isolation of the sick and quarantine of the exposed must be in different locations, assuring the separation of children and parents. As in the first draft, state officials could ration care, initiate continuing health surveillance, commandeer and control medical supplies, and confiscate personal property. And although the misdemeanor charges were dropped for citizens who don’t comply with medical procedures, those who refuse to submit to quarantine and isolation could still be charged with a crime.
The media soon sounded the alarm. By January 2002, the San Francisco Chronicle had warned of endangered civil rights. Investor’s Business Daily called the bill “unhealthy tyranny.” Jewish World Review said it is a “prescription for disaster,” and the Wall Street Journal reported that a “new battleground” had been created between health officials and civil libertarians. In early April, Time magazine covered the issue of detention powers in an article aptly titled “Mr. Quarantine, meet Miss Liberty.”
Public-policy groups began to rally their constituents. The American Legislative Exchange Council (ALEC), a group of 2,400 conservative state legislators, opposed the model act and set up a Web page to track the legislation in every state.2 The Eagle Forum dedicated an entire radio program to the issue. The Free Congress Foundation denounced the act as a “bad idea.” The Association of American Physicians and Surgeons expressed concern about granting governors “dictatorial power.” And the Institute for Health Freedom warned of “new state medical police powers.”
Proposal Defended
Gostin defended the proposal’s purported modernization of the public-health laws. In the December Insight magazine he claimed the September 11 attack had one silver lining: “The political community is coming together with a clear determination to protect the civilian population from harm.”3
In a classic doublespeak, Gostin also claimed that data-privacy safeguards would be in place. But his proposal would permit state public-health agencies to share an individual’s medical information with law-enforcement officials, other government agencies, and public-health officials in other states.
The CDC reportedly agreed to pay Gostin $300,000 a year for up to three years to write the model act.4 He is professor of law at Georgetown and Johns Hopkins universities and sits on the Institute of Medicine’s Committee on Assuring the Health of the Public in the 21st Century.
Expanded health powers have long been on Gostin’s agenda. The CDC Center for Law and the Public’s Health, which he heads, spent the past couple of years culling existing state public-health laws in order to write a uniform comprehensive law that all states could enact. In 1998 Gostin co-wrote a paper proposing that states provide health officials with “a broad and flexible range of powers. By equipping public health authorities with graded powers ranging from isolation, quarantine, and directly observed therapy to cease-and-desist orders or mandated counseling, education, or treatment, authorities will be able to tailor interventions to the specific situation and disease threat.”5
Health surveillance is the key. To identify emerging health threats, Gostin claims government officials must be empowered to monitor the most minuscule medical details of American life. “If there’s a run on anti-diarrhea medications, how would [the federal government] know that?” Gostin asked.6 Therefore, the health-powers proposal would require an active disease-surveillance system, forcing doctors, hospitals, and pharmacists to share patient data with state health officials.
The Bush administration likes the idea of health surveillance, and in January the Department of Health and Human Services made $1.1 billion available for bioterrorism preparedness. Federal funding will be directed to, among other things, the development of round-the-clock disease-reporting systems involving hospital emergency departments, state and local health officials, and law enforcement.7
Thus far, Arizona, Florida, Georgia, Louisiana, Maine, Maryland, Minnesota, New Hampshire, South Dakota, and Utah have passed versions of the CDC proposal. Nine states-Connecticut, Idaho, Kentucky, Mississippi, Nebraska, Oklahoma, Washington, Wisconsin, and Wyoming-have defeated similar legislation. In 13 states, bills are pending in the legislature, and officials in five more are considering whether to introduce legislation.8
Battle in Minnesota
In Minnesota, where several citizen health-policy organizations exist, the legislative battle was intense. While the commissioner of health tried to shepherd the bill to passage by personally attending every hearing, citizens repeatedly testified against it. Health-care professional associations were unethically silent, asking only for immunity from lawsuits.
The original 44-page bill was cut to nine pages in the Senate and 11 pages in the House. Requirements that health-care professionals provide, and citizens submit to, medical examinations, vaccination, and treatment were deleted. A right to refuse such procedures was added. Legislators demanded authority to rescind the governor’s declaration. And a provision allowing the governor to endow a “designee” with the governor’s authority to issue orders and write rules was removed.
The legislature initially voted to return the bill to conference committee-a signal that the bill was dead. However, last-minute amendments to appease gun owners and AIDS activists were added and the bill passed on the final day of session. The legislation allows broad declaration authority for public-health emergencies, commandeering of private property, unprecedented empowerment of the governor, and year-around authority to impose quarantine and isolation-without a court order or declaration of a public-health emergency.
The potential effectiveness, or lack thereof, of the CDC’s heavy-handed proposal has received little attention. The inauspicious, at times violent, history of martial law has been ignored. Disregarding human nature and all wisdom to the contrary, health officials continue to march a top-down command-and-control proposal across the nation.
Public trust requires thoughtful contingency plans that uphold constitutional rights and freedom of conscience, support medical ethics, and encourage voluntary cooperation with disease containment strategies. State legislatures should not rush to enact ill-_conceived, ineffective legislation. Public policy must always recognize and respect the rights, dignity, and intelligence of individuals. An angry public is not a cooperative public. If health officials are empowered to harm the very people legislators want to protect, a public-health emergency may soon become a crisis of the public’s trust.

Twila Brase, R.N. is president of the Citizens’ Council on Health Care, a free-market health-care policy organization in St. Paul Minnesota (www.cchconline.org)
Notes
1. Letter from Health Privacy Project to Lawrence O. Gostin, November 7, 2001.
2. See http://www.alec.org.
3. Lawrence O. Gostin, “YES: New Laws Are Needed to Enable Federal and State Agencies to Work Together in an Emergency,” Insight, December 18, 2001.
4. Meryl Nass, “The Model Emergency Health Powers Act Creates Its Own Emergency,” redflagsweekly.com, April 8, 2002; http://www.redflagsweekly.com/nass/2002_april08.html
5. Lawrence O. Gostin et al., “Improving State Law to Prevent and Treat Infectious Disease,” Milbank Memorial Fund, 1998, p. 2.
6. Quoted in Matt Mientka, “CDC Releases Model Bioterrorism Law,” U.S. Medicine, December 2001.
7. “HHS Announces $1.1 Billion in Funding to States for Bioterrorism Preparedness,” HHS Press Release, U.S. Department of Health and Human Services, January 31, 2002.
8. See the map at the American Legislative Exchange Council website, http://www.alec.org.
http://www.thefreemanonline.org/featured/a-model-for-medical-tyranny/

HB 1332 Oklahoma Pet Quality Assurance and Protection Act

 Latest update- https://axiomamuse.wordpress.com/2009/02/13/breeder-bill-moves-to-house/

more info;

http://www.okhumaneblog.com/

Look at this wretched piece of legislation!

Recieved by email today;

Ax

 

 

OKLAHOMA CITY, OK

The House Economic Development and Financial Services Committee has set a
hearing for Tuesday (February 10, 2009) on House Bill 1332,sponsored by Rep. Lee Denney and also known as the “Oklahoma Pet Quality Assurance and Protection Act.”

The 4:30 p..m. hearing is open to the public.

HB 1332 is before the House Economic Development and Financial Services.Committee. Rep. Denny has cut a deal to circumvent the Agriculture Committee.

This legislation:

• Prohibits an out of state breeder from transporting dogs into or through Oklahoma, which would effectively destroy dog shows, field trials and other canine events in the state. If a hobby breeder were to bring dogs to an Oklahoma event, the dogs could be confiscated and the owner would face heavy fines and penalties.

Gives any animal control officer, peace officer or animal cruelty investigator unrestricted access to a kennel owner’s home, facilities, animals, records and property. The bill denies kennel owners constitutional right of protection from unreasonable searches and seizures, as no warrants are required.

• Effectively prohibits any Oklahoma resident from buying a puppy or dog from another state, as the breeder would have to be licensed in Oklahoma.

Requires every breeder, rescue organization, animal shelter and pet store to be state licensed – not just dealers or commercial kennels – if they sell, give away or adopt out 25 or more animals a year. This would destroy
many rescue programs.

• Says that a license will not be issued to anyone who has or has ever had a federal kennel license through the U.S. Department of Agriculture. This provision will destroy many well-run kennel businesses that meet or exceed all legal requirements for the care of animals, and result in the owners of those businesses losing many thousands of dollars that they have invested in land and facilities, also losing their livelihood. However, all kennels will be required to follow federal regulations for housing, care and other management issues.

• Gives the state the authority to implement complete regulations for the management of all kennels and the care of the dogs, with no provision for legislative approval or input from dog owners.

• Requires extensive record keeping, and kennel management and medical practices to be approved by a veterinarian. The legislation changes the legal status of dog owners to that of guardians, and removes all decision-making power from the hands of kennel owners. Dogs effectively become wards of the state under this legislation.

Denies a license to anyone who is on probation or parole for any offense, even if they have nothing to do with animals. Licenses also are denied for anyone who has been found guilty of violating any statute pertaining to animals, including relatively minor offenses such as leash laws, local licensing laws and noise ordinances. In addition, purely technical or minor violations of state kennel regulations would cause mandatory denial.

• Provides fines of up to $2,500 for each violation, while granting the kennel owner only the right to an administrative appeal. Placing liens against a kennel owner’s property is authorized to collect fines, penalties and costs for seizing dogs. Several provisions allow the state to seize, confiscate and euthanize animals.

Here is a link to the text of HB 1332:
http://www.okvma.org/associations/2557/files/2PQA2009HB1332.pdf
(Please note that this is on the Oklahoma Veterinary Medical Association
site, as the official state legislature site requires a complex search. The
veterinarians’ group is pushing this legislation. The sponsor, Rep. Denney,
is a veterinarian. The OVMA and its allies have invested hundreds of
thousands of dollars into promoting this legislation, and have hired a
full-time professional political lobbyist.)

FBI aims to amass huge database of people’s physical characteristics

FBI aims to amass huge database of people’s physical characteristics
By Ellen Nakashima

The Washington Post

CLARKSBURG, W.Va. – The FBI is embarking on a $1 billion effort to build the world’s largest computer database of people’s physical characteristics, a project that would give the government unprecedented abilities to identify individuals in the United States and abroad.

Digital images of faces, fingerprints and palm patterns are flowing into FBI systems in a climate-controlled, secure basement in Clarksburg. Next month, the FBI intends to award a 10-year contract that would significantly expand the amount and kinds of biometric information it receives.

In coming years, law-enforcement authorities around the world may be able to use iris patterns, face-shape data, scars and perhaps the unique ways people walk and talk to solve crimes and identify criminals and terrorists.

The FBI also will retain, upon request by employers, the fingerprints of employees who have undergone criminal background checks so the employers can be notified if employees have brushes with the law.

“Bigger. Faster. Better. That’s the bottom line,” said Thomas Bush III, assistant director of the FBI’s Criminal Justice Information Services Division (CJIS), which operates the growing database from its headquarters in the Appalachian foothills.

The increasing use of biometrics for identification is raising questions about the ability of Americans to avoid unwanted scrutiny. It also is drawing criticism from those who worry that people’s bodies will become de facto national-identification cards. Critics said such government initiatives should not proceed without proof the technology can pick a criminal out of a crowd.

The use of biometric data is increasing throughout the government. For the past two years, the Defense Department has been storing in a database images of fingerprints, irises and faces of more than 1.5 million Iraqi and Afghan detainees, Iraqi citizens and foreigners who need access to U.S. military bases. The Pentagon also collects DNA samples from some Iraqi detainees that are stored separately.

The Department of Homeland Security (DHS) has been using iris scans at some airports to verify the identity of travelers who have passed background checks and who want to move through lines quickly. The department also is looking to apply iris- and face-recognition techniques to other programs.

The DHS has a database of millions of sets of fingerprints that include records collected from U.S. and foreign travelers stopped at borders for criminal violations, from U.S. citizens adopting children overseas and from visa applicants abroad.

“It’s going to be an essential component of tracking,” said Barry Steinhardt, director of the Technology and Liberty Project of the American Civil Liberties Union. “It’s enabling the always-on-surveillance society.”

If successful, the FBI system, Next Generation Identification, will collect a wide variety of biometric information in one place for identification and forensic purposes.

In an underground facility the size of two football fields, a request reaches an FBI server every second from somewhere in the United States or Canada, comparing a set of digital fingerprints against the FBI’s database of 55 million sets of electronic fingerprints. A possible match is made – or ruled out – up to 100,000 times a day.

Soon, the server at CJIS headquarters also will compare palm prints and, eventually, iris images and face-shape data, such as the shape of an earlobe.

If all goes as planned, a police officer making a traffic stop or a border agent at the airport could run a 10-fingerprint check on a suspect and within seconds know if the person is on a database of the most-wanted criminals and terrorists. An analyst could take palm prints lifted from a crime scene and run them against the expanded database. Intelligence agents could exchange biometric information worldwide.

More than 55 percent of the search requests now are made for background checks on civilians in sensitive positions in the federal government and jobs that involve children and the elderly, Bush said. Those prints are destroyed or returned when the checks are completed.

But the FBI is planning a “rap-back” service, under which employers could ask the FBI to keep employees’ fingerprints in the database, subject to state privacy laws, so that if employees are arrested or charged with a crime, the employers would be notified.

Advocates said bringing together information from a wide variety of sources and making it available to multiple agencies increases the chances of catching criminals. The Pentagon has matched several Iraqi suspects against the FBI’s criminal-fingerprint database. The FBI intends to make criminal and civilian data available to authorized users, officials said. There are 900,000 federal, state and local law-enforcement officers who can query the fingerprint database today, they said.

The FBI’s biometric database, which includes criminal-history records, communicates with the Terrorist Screening Center’s database of suspects and the National Crime Information Center database, which is the FBI’s master criminal database of felons, fugitives and terrorism suspects.

The FBI is building its system according to standards shared by Britain, Canada, Australia and New Zealand.

At the West Virginia University Center for Identification Technology Research, 45 minutes north of the FBI’s biometric facility in Clarksburg, researchers are working on capturing images of people’s irises at distances of up to 15 feet, and of faces from as far away as 200 yards. Soon, those researchers will do biometric research for the FBI.

Covert iris- and face-image capture is several years away, but it is of great interest to government agencies.

Skeptics said such projects are proceeding before there is evidence they reliably match suspects against a huge database.

In the world’s first large-scale study on how well face recognition works in a crowd, the German government this year found that the technology, while promising, was not effective enough to allow its use by police.

The study was conducted from October 2006 through January at a train station in Mainz, Germany, which draws 23,000 passengers daily. The study found that the technology was able to match travelers’ faces against a database of volunteers more than 60 percent of the time during the day, when the lighting was best. But the rate fell to 10 to 20 percent at night.

To achieve those rates, the German police agency said it would tolerate a false positive rate of 0.1 percent, or the erroneous identification of 23 people a day. In real life, those 23 people would be subjected to further screening, the report said.

Accuracy improves as techniques are combined, said Kimberly Del Greco, the FBI’s biometric-services section chief. The Next Generation database is intended to “fuse” fingerprint-, face-, iris- and palm-matching capabilities by 2013, she said.

To safeguard privacy, audit trails are kept on everyone who has access to a record in the fingerprint database, Del Greco said. People may request copies of their records, and the FBI audits all agencies that have access to the database every three years, she said.

Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC), said the ability to share data across systems is problematic. “You’re giving the federal government access to an extraordinary amount of information linked to biometric identifiers that is becoming increasingly inaccurate,” he said.

In 2004, EPIC objected to the FBI’s exemption of the National Crime Information Center database from the Privacy Act requirement that records be accurate. The group noted that the Bureau of Justice Statistics in 2001 found that information in the system was “not fully reliable” and that files “may be incomplete or inaccurate.”

FBI officials justified that exemption by claiming that in law-enforcement data collection, “it is impossible to determine in advance what information is accurate, relevant, timely and complete.”

Privacy advocates worry about the ability of people to correct false information.

“Unlike say, a credit-card number, biometric data is forever,” said Paul Saffo, a Silicon Valley technology forecaster. He said he feared the FBI, whose computer-technology record has been marred by expensive failures, could not guarantee the data’s security.

“If someone steals and spoofs your iris image, you can’t just get a new eyeball,” Saffo said.

In the future, said Center for Identification Technology Research Director Lawrence Hornak, devices will be able to “recognize us and adapt to us.”

“The long-term goal is ubiquitous use of biometrics,” Hornak said. A traveler may walk down an airport corridor and allow his face and iris images to be captured without stepping up to a kiosk and looking into a camera, he said.

“That’s the key,” he said. “You’ve chosen it. You have chosen to say, ‘Yeah, I want this place to recognize me.’ ”

Washington Post staff researcher Richard Drezen contributed to this report.

Copyright © 2007 The Seattle Times Company

NSA Spying-Worse that we Know

Whistleblower: NSA spied on everyone, targeted journalists

David Edwards and Muriel Kane
Published: Wednesday January 21, 2009

 

 

 
   
     

Former National Security Agency analyst Russell Tice, who helped expose the NSA’s warrantless wiretapping in December 2005, has now come forward with even more startling allegations. Tice told MSNBC’s Keith Olbermann on Wednesday that the programs that spied on Americans were not only much broader than previously acknowledged but specifically targeted journalists.
“The National Security Agency had access to all Americans’ communications — faxes, phone calls, and their computer communications,” Tice claimed. “It didn’t matter whether you were in Kansas, in the middle of the country, and you never made foreign communications at all. They monitored all communications.” (my emphasis added)

 

Tice further explained that “even for the NSA it’s impossible to literally collect all communications. … What was done was sort of an ability to look at the metadata … and ferret that information to determine what communications would ultimately be collected.”
According to Tice, in addition to this “low-tech, dragnet” approach, the NSA also had the ability to hone in on specific groups, and that was the aspect he himself was involved with. However, even within the NSA there was a cover story meant to prevent people like Tice from realizing what they were doing.

 

“In one of the operations that I was in, we looked at organizations, just supposedly so that we would not target them,” Tice told Olbermann. “What I was finding out, though, is that the collection on those organizations was 24/7 and 365 days a year — and it made no sense. … I started to investigate that. That’s about the time when they came after me to fire me.”

Rest of the story here;

http://rawstory.com/news/2008/Whistleblower_Bushs_NSA_targeted_reporters_0121.html

 

This was not a driftnet.  This was not dragnet.

The government doesn’t and didn’t have a massive computer listening into phone calls and emails inside the United States listening for keywords. That technology you’ve seen in movies like the Bourne Identity — we don’t use that.

That’s what the Attorney General Michal Mukasey reiterated to a federal court Saturday, denying the NSA or its telecom partners engaged in “dragnet” collection on the contents of millions of communications […] for the purpose of analyzing those communication through key word searches to obtain information about possible terrorist attacks.” (emphasis in original)

And since that did not happen, the dozens of suits filed against companies such as AT&T alleging such a thing should be dismissed, according to Mukasey, who was invoking the telecom immunity provisions passed by Congress in July.

That same bill legalized most of the spying program that was not a dragnet. It also oddly legalized dragnet surveillance of Americans’ international communications.

So if there’s no Big Brother ear listening for the perfectly wrong word, what was going on?

Well, one might look to the things Mukasey would not deny or perhaps, look closer at the language of the denial (.pdf).

As for the widely reported allegation that the nation’s telecoms turned over Americans’ phone records to the government so its computers could sort through them to decide who looked like a terrorist?

The Attorney General refused to say publicly if that happened since doing so would destroy the nation faster than a trillion dollars in sham mortgages. Never mind that more than a handful of federal lawmakers briefed on the matter in 2006 confirmed media reports that such records were turned over. (my emphasis added)

There’s quite a wealth of information that can be gleaned from simply analyzing who calls whom and whom that whom calls next.

But Mukasey did admit in the public version of his filings to U.S. District Court Judge Vaughn Walker that the carriers either didn’t do this or did so after the government told them that government lawyers thought it was legal, even though getting a single American’s phone records in a criminal case requires a judge’s order.

Either way, the AG said, the suits should be dismissed immediately or else such companies will never help again in the future when the government shows up with a secret and legally dubious request for records about Americans.

The government admits that the warrantless wiretapping of Americans’ international phone calls and emails is only a part of its secret post 9/11 intelligence operations inside the country. And it admits that some telecoms helped its so-called Terrorist Surveillance Program or TSP

But admitting which ones did and did not? Mukasey again withheld the goods, telling the court that disclosing publicly “whether particular provider-defendants assisted with the TSP would cause exceptional harm to national security.”

As for whether the telecoms turned over billions of communications to the government for analysis by algorithms that are smarter than key word searches for the word ‘bomb’ or ‘jihad’? The Attorney General artfully did not admit or deny.

What about storing communications in bulk for months or years simply for retrieval for future analysis?  (my emphasis added) The Attorney General artfully did not admit or deny.

Some legal scholars — including the influential federal court judge Richard Posner argue that collecting everything and having algorithms sort through the country’s SMS messages, emails and phone calls doesn’t amount to surveillance, until a human looks at communications flagged by the computer.

hmmmmm…..same argument made in Singapore.  Want to live there? https://axiomamuse.wordpress.com/2009/01/21/son-of-poindexters-total-information-awareness-singapore/

 

So if we are to take the Attorney General at his word — that leaves a very interesting question that still hasn’t been answered despite some outstanding behind-the-scenes reporting on the fight inside the Bush Administration over the program.

What was the government doing — if not a keyword dragnet — that led the top ranks of the Justice Department, including then Attorney General John Ashcroft, and the head of the FBI Robert Mueller to threaten to resign en masse?

One suspects it has something to do with purely domestic communications, which don’t come close to falling into the grey zones of the complicated rules about when the government does and does not need a court order to wiretap.

Anyone have any hypotheses. or better  yet, documents?

http://blog.wired.com/27bstroke6/2008/09/if-nsa-spying-n.html

 

January 23rd, 2009

Tice: NSA mixed spying with credit card data

http://www.privacydigest.com/2009/01/24/nsa+whistleblower+wiretaps+were+combined+credit+card+records+u+s+citizens

NSA whistleblower: warrantless wiretaps targeted journos

Door to room 641A cracked open

VMware whitepaper – The business case for Virtualization

http://www.theregister.co.uk/2009/01/25/tice_nsa_revelations/

 

The danger of DNA: It isn’t perfect

DNA: GENES AS EVIDENCE

The danger of DNA: It isn’t perfect

By far the most reliable forensic science, it still has limits: Samples can be contaminated and may go untested for years. And collecting it may violate privacy laws.
By Maura Dolan and Jason Felch
December 26, 2008
In 2004, a New Jersey prosecutor announced that DNA had solved the mystery of who killed Jane Durrua, an eighth-grader who was raped, beaten and strangled 36 years earlier.

“Through DNA, we put a face to the killer of Jane Durrua, and that face belongs to Jerry Bellamy,” prosecutor John Kaye said.

 
The killer, however, turned out to be someone else.

Two years after Bellamy’s arrest, investigators discovered that evidence from the murder scene had been contaminated by DNA from Bellamy, whose genetic sample was being tested at the same lab in an unrelated case. He was freed. Another man ultimately was arrested in the killing but died before trial.

DNA has proved itself by far the most effective and reliable forensic science. Over the last two decades, it has solved crimes once thought unsolvable, brought elusive murderers and rapists to justice years after their misdeeds and exonerated the innocent. In courtrooms and in the popular imagination, it is often seen as unassailable.

But as the nation rushes to take advantage of DNA’s powers, it is becoming clear that genetic sleuthing also has significant limitations:

* Although best known for clearing the wrongfully convicted, DNA evidence has on occasion linked innocent people to crimes. In the lab, it can be contaminated or mislabeled; samples can be switched. In the courtroom, its significance has often been overstated by lawyers or misunderstood by jurors.

* The rush to collect DNA and build databases has in some cases overwhelmed the ability of investigators to process the evidence and follow up on promising leads. Some crime labs have huge backlogs of untested evidence, including thousands of rape evidence kits. In some cases, criminals who could have been caught have offended again.

* Debates have flared over civil rights and privacy, presaging possible constitutional challenges to DNA collection and storage. Critics object, for instance, to storing DNA from people arrested but not convicted of crimes and from suspected illegal immigrants.

In Britain, which has the world’s most aggressive approach to forensic DNA, a legal backlash has already begun. The European High Court of Human Rights ruled this month that the country’s indefinite storage of DNA from people merely arrested for crimes violated privacy rights. Britain has until March to submit plans for destroying samples or to make a case for keeping them.

In the U.S., authorities are plunging ahead with a dramatic databank expansion.

A California initiative passed in 2004 will permit authorities, starting in January, to store DNA from anyone arrested on suspicion of felonies and serious misdemeanors, even if they are not ultimately convicted.

California’s database is expected to swell by about 300,000 DNA profiles next year, bringing the total to 1.4 million.

The FBI’s national database, which already contains 6.4 million profiles, is projected to add about 1.3 million annually from federal arrestees and illegal immigrants alone.

Nothing to fear

When the California law, Proposition 69, passed, it was widely believed that the innocent had nothing to fear from having their genetic profiles in a database, said UC Irvine criminology professor William Thompson, considered the U.S. leading authority on DNA laboratory error.

Now, he said, “when you look at all the errors that have come to light around the world — and we’re only finding the tip of the iceberg — it really raises concerns about how many people you want to have in a database. There are certainly doubts in my mind whether I would want to be in one.”

Through the California Public Records Act, The Times obtained documents from five state-run and three county forensic labs reporting scores of laboratory errors or “unexpected” resultsover a five-year period ending in 2007. Labs must track these outcomes and keep them on file under state and federal rules.

Thompson, who reviewed the records for The Times, said that “on a regular basis, laboratory personnel make mistakes that could lead to false identifications” of suspects.

The records show, for instance, that between 2003 and 2007, the Santa Clara County district attorney’s crime laboratory caught 14 instances in which evidence samples were contaminated with staff members’ DNA, three in which samples were contaminated by an unknown person and six in which DNA from one case contaminated samples from another.

The records also revealed three instances in which DNA samples were accidentally switched, one in which analysts reported incorrect results and three mistakes in computing the statistics used in court to describe the rarity of a DNA profile.

The number reported was small considering overall caseload — 3,100 over five years — but Thompson said mistakes caught by labs “undoubtedly” make up a small fraction of errors. (In fact, he said, labs that report the most are probably better run than those that claim none.)

The leading cause of false DNA database matches is cross-contamination of samples, Thompson said.

An incident in a state-run lab in Sacramento illustrated how easily this can happen: DNA discovered on a cigarette matched the profile of a sexual assault victim from another case.

Had the assault victim smoked the cigarette? No. Cross-contamination occurred when the sample from the cigarette was processed close to the victim’s vaginal sample.

The risk of DNA contamination has “greatly increased” as scientists have learned how to obtain DNA profiles from a billionth of a gram of genetic material, according to a report last year by the Nuffield Council on Bioethics in London, a group that examines developments in biology and medicine.

“The results may therefore be misleading, and yet they could be presented as powerful evidence in a courtroom. This makes it vital that defendants are not convicted on a DNA match alone,” the report said.

Jonathan Jay Koehler, a professor at Arizona State University who has studied lab error, estimated the rate of false DNA matches at about 1 in 1,000, whether they are caught or missed.

“No one would ride on an airline that crashed one out of every 1,000 flights,” he said.

Other experts counter that lab errors are rare and will be caught if the proper precautions are taken. “If they are rare enough, then we should be cold-blooded” about isolated injustices, said Charles Brenner, an Oakland-based forensic mathematician.

Jill Spriggs, chief of California’s Bureau of Forensic Services, said California’s forensic labs are among the best in the nation. “Errors are detected — if there are any — based on quality control measures that we have in place.”

Not infallible

Wrongful incriminations from DNA evidence have pierced the science’s image of infallibility. When Alan Nelson, father of a woman who had been murdered with her daughter in Australia, learned earlier this year that the wrong man had been arrested because of a contamination, he was incredulous: “I thought the DNA was 100% perfect,” Nelson told the Herald Sun, an Australian newspaper.

Despite such cases, DNA evidence holds great sway among jurors.

Dan Krane, an Ohio-based DNA expert who has testified in about 75 cases, mostly for the defense, was shaken by the conviction of Gary Leiterman, a Michigan man sentenced in 2005 to life in prison for the nearly four-decade-old murder of a law student.

“It hit me like a ton of bricks,” Krane said. “How could that possibly have happened?”

Leiterman, a nurse, came under suspicion when the Michigan state crime lab found a “match” between his genetic profile and evidence from the murder victim’s stockings.

But DNA from a blood drop on the victim’s hand matched someone else, a man who was 4 at the time of the crime.

It turned out that DNA samples from Leiterman and the other man were being analyzed at the crime lab, as part of separate criminal cases, at about the same time as the murder evidence. Leiterman’s DNA was at the lab because of a conviction for prescription fraud. Krane, who testified on Leiterman’s behalf, said contamination was the most likely explanation for the findings.

The prosecutor had another explanation: Leiterman killed the student. He was linked to the crime by other evidence, including a handwriting sample and a gun he owned that was similar to the murder weapon.

The prosecutor admitted that the 4-year-old could not have been the killer but speculated that he might also have been at the crime scene, with a nose bleed. A jury convicted Leiterman of first-degree murder. He is appealing the verdict.

Fingering the wrong suspect can be a sign of broader sloppiness in a lab.

A Sacramento crime lab analyst had to resign two years ago after his superiors discovered he had relied on substandard DNA evidence in a rape case to produce a profile that matched an innocent man. The lab later learned the analyst had failed to check his work in dozens of other cases.

But even the most scrupulous analyst can err when interpreting complex DNA “mixtures” — samples that contain DNA from more than one person — which turn up more frequently as labs use more sensitive tests.

“If you show 10 colleagues a mixture, you will probably end up with 10 different answers,” Peter Gill, then a chief scientist with Britain’s Forensic Science Service, said at a symposium in 2005.

In a 2005 study, American laboratories that analyzed the exact same DNA mixture reported widely different statistics on the rarity of the genetic profiles of the contributors.

Estimates of how often the DNA profiles occurred in the general population ranged from 1 in 400,000 people to 1 in 1,000,000,000,000,000.

In the courtroom, say some leaders in the field, the overwhelming numbers presented to jurors convey a near-certainty the science does not justify.

Serious backlog

As much as errors can hurt the wrongfully accused, victims don’t see justice served when DNA evidence goes untested.

The nation’s labs have a serious backlog of DNA crime-scene samples awaiting analysis, as many as 400,000 cases involving rapes and other violent crimes, according to Human Rights Watch.

Meanwhile, criminals are free to strike again: In Ohio, a man committed 13 more rapes while his DNA sat inside a rape kit in storage for two years.

Earlier this year the Los Angeles Police Department acknowledged a backlog of as many as 7,000 DNA crime samples. The Los Angeles County Sheriff’s Department later admitted to having 4,727 untested sexual assault evidence kits.

Law enforcement officials blamed a lack of money and manpower. But the federal government contends that the LAPD and other agencies aren’t spending all the money they allocate for backlog reduction. For that very reason, it cut LAPD’s $1 million share of the funding in half this year.

“We have the science, we have the technology, we have the capacity to prevent rapes. And we are not using it to its fullest potential,” said Gail Abarbanel, director of the Rape Treatment Center at Santa Monica-UCLA Medical Center.

Even when crime scene evidence is analyzed and a suspect identified, authorities don’t always pursue conviction.

Nationally, the FBI reported hits in the national database aided 77,791 investigations this year, but no one tracks how many result in convictions.

“Hundreds of DNA database hits languish without any follow up by law enforcement or prosecutors,” Frederick Bieber, a Harvard Medical School professor, reported in the journal American Society of Law, Medicine & Ethics, in 2006.

In June 2004, a DNA profile from a sexual assault in Oakland matched that of a convicted child molester. By the time police contacted the man six months later, he had molested another child.

Rockne Harmon, a former prosecutor who is a DNA consultant to the California Department of Justice, is working on a cold-hit tracking system that includes sending detectives e-mails when suspects are identified.

“I don’t find it very acceptable that we dumped all those millions of dollars [into the DNA database] and what do we get for our money?” Harmon said. “You could say we get a lot of hits, but what contribution have they made to making society a better place? I am not sure that anybody can really tell you that.”

Civil libertarians and other critics, meanwhile, fear that pursuit of DNA’s scientific potential risks trampling on the rights of the innocent.

“The ACLU opposed these databases from the beginning because we predicted this exactly,” said Tania Simoncelli, science advisor to the American Civil Liberties Union. “The database would be established for one purpose and then used for others.”

Some legal scholars say that the collection of DNA from arrestees violates the U.S. Constitution because only the convicted have forfeited their rights to privacy.

Among concerns: DNA can be tested over and over again for new information as technology advances. Innocent people theoretically could see their genomes probed without their knowledge or consent.

In Britain, such concerns have brought what Bob Green, a forensic science director in Britain’s Home Office, calls a “push back.”

Last year, Britain’s Nuffield Council on Bioethics complained that too many people were winding up on the British database for petty crimes they committed as children or for arrests that did not produce convictions.

In its ruling earlier this month, Europe’s High Court for Human Rights demanded the destruction of an estimated 850,000 DNA samples and profiles of arrestees and expressed astonishment at “the blanket and indiscriminate nature of the power” of the government to collect and retain DNA.

Even Alec Jeffreys, the British geneticist whose discovery led to DNA profiling, is dismayed by the number of juveniles and innocent people now in the database. When Jeffreys made his discovery in 1984, he figured DNA would be a tool of “the last resort” in fighting crime.

“I couldn’t have been more wrong,” he said.
http://www.latimes.com/news/local/la-me-dna26-2008dec26,0,1922163.story?page=4