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The David Pakman Show
URGENT: What to know before No Kings protests
00:24:51
David speaks with career public defender Eliza Orlins about the growing scope of ICE-enabled surveillance and why it should concern everyone, not just non-citizens. Orlins outlines a sprawling, largely unaccountable dragnet powered by commercial data...
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Transcript33 lines
- [00:00]
A
What you are about to hear is a recent substack live conversation I had with Eliza Orleans, a career public defender who has been covering ICE's new social media surveillance efforts as well as unlawful surveillance as a whole. With the no Kings protest happening this weekend, we wanted this out in your feed today. In this discussion, we cover what's actually being monitored, why it affects citizens and noncitizens alike, and practical steps for showing up safely and peacefully. If you're planning to attend or you know someone who is, this is worth a listen.
- [00:36]
B
We are live with Eliza Orleans, who is a career public defender for 15 years and has been covering the surveillance methods and mechanisms and tools that ICE has been using. You know, Eliza, I'm really glad. Glad sounds weird because it's such a horrible thing, but I'm glad to be able to talk to you about this in the sense that I think a lot of people have no idea that this is even going on. So maybe first just sort of lay it out when we talk about ICE surveillance. What. What's going on generally?
- [01:08]
C
Well, David, I'm thrilled that we're having this conversation because as horrible of a topic as this is, like, it genuinely couldn't be more imperative that folks understand what is going on and how they can protect themselves. You know, I think that mass surveillance has been going on for a very long time, but. But the ways in which it is getting more and more nefarious is deeply alarming. And so everyone should be aware of this big, like, dragnet that they've created and the ways in which they're funding it so that they can keep eyes on every single thing that you do in your life. Essentially.
- [01:45]
B
Now talk a little bit about the tools and techniques that are used. But also a lot of people in the audience might be thinking, well, I was born in the United States and like, that's it. I'm not. I have nothing to do with ISIS goals, priorities, whatever. What about those people? And why is this still a concern for them, which I assume is the vast majority of the audience.
- [02:06]
C
Yeah, listen, I think that a lot of folks think about being surveilled, and I know this. I quite literally gave a TED Talk earlier this year on unlawful surveillance and the erosion of the Fourth Amendment. And people say, but I didn't commit a crime, or I'm a U.S. citizen. What does it matter that they have access to my location data? What does it matter that, you know, that my DMV records or the tolls that I pay or, you know, that I'm being pinged on my cell site, location. Why does that matter? Well, it matters because as we've seen with Trump's executive orders, you know, anyone who is considered antifa could be placed on a list, could be criminalized, could be at some point rounded up, prosecuted, jailed, we don't know at this point. So everyone should be thinking about the ways in which they can protect themselves and protect their neighbors. Because we all have people in our lives who we love, who are non citizens, who are green card holders, who are visa holders, who are DACA recipients. I mean, guaranteed, every single person we on this, on this live, you know, every single person watching this knows and loves someone who is less safe than they are.
- [03:22]
B
So give us the list of the databases, platforms, data sets, et cetera, that are in play for ICE here.
- [03:30]
C
Well, so it is a massive surveillance network. I mean, and it doesn't just encompass the things that would be top of mind, you know, which is why I tell folks, often if you're going to a protest, the best thing you can do is leave your phone at home. And that is the number one safest thing you can do. Because anything, anytime you open an app that you have given location permissions to, that app is tracking you at that location. So anything as little as like opening the weather app on your phone is tracking your location. So it's extremely simple. And I see folks in the comments saying you could use a Faraday bag. But those are not fail safe. It's not, you know, the safest thing you can do is not bring your cellular phone, you know, especially a smartphone to any location where you could be tracked. You know, the. But furthermore, like there are these databases, these commercial databases, and now this is how they're circumventing, needing warrants or needing, you know, any type of probable cause or reasonable suspicion to infringe on your rights. But they are quite literally buying up these commercial databases and receiving your, you know, your phone number, your email address, your, your family's location. You know, they're, they're pulling up your driver's license, your water bill, your phone records. It's part of this massive surveillance network, even if you've done nothing wrong. And unlike other agencies, you know, there's almost no transparency or accountability when it comes to ice.
- [05:09]
B
Is that, is it mostly after the fact looking at records of where you've been, or does this delve into real time surveillance as well?
- [05:18]
C
Well, so what they are doing, or at least what has been announced, is that they are going to be massively funding real time surveillance. So they're going to have these kind of centers where folks are there. And if they have high interest targets, they will be in, in real time, tracking their social media, tracking them, trying to see where they are. You know, they have license plate readers. If you go through any, you know, in New York to pay tolls. They have, you know, they have cameras that, that click your license plate as you go through Easy pass, whatever, you know, and so folks are getting tracked in real time and, and you know, they are building out this infrastructure to, to like, really surveil people and, and track them in the moment.
- [06:04]
B
So I want to get to what can be done with this data. But I first kind of want to get your take as an attorney on whether this is legal in the sense of is it a form of warrantless surveillance?
- [06:19]
C
Absolutely, it definitely is. And listen, it's not the first time. It's not. You know, when post 9 11, as you and I remember, you know, the FISA courts, like, basically the warrants that were issued were rubber stamped. I think not a single one of the, however many tens of thousands that were requested was ever rejected. And so they were able to do this kind of surveillance even if the warrant was just for show. And now in a lot of ways, those warrants are not even required. You know, I think so much of what we think of, like the way in which the Fourth Amendment was written to prevent us from unlawful searches and seizures was to protect us from physical searches. Because when it was written it was like, oh, you think about, oh, are they going to search my person, my pockets, my purse, my car, my home? You know, those physical searches of like being patted down on the street or having your vehicle or your home search, of course they require, you know, that's an intrusion. But these digital searches that are, that are so, that are so much more invisible, you know, it's much harder to have that ability to like, see that it's happening. And because there's so little transparency and because of these like, horrible data brokers who kind of like buy up this information, they've kind of found a way to circumvent these, these procedures that are in place to protect our constitutional rights. And so they're able to do these warrantless searches.
- [07:51]
B
So needless to say, it's happening. I guess the, the next thing will be some people are probably, and I even sign the comments. Why would I want to hide that? I'm going to a protest. It's legal to go to the protest. I'm not committing a crime. I'm not doing Anything wrong? Absolutely. What are, what are the ways that this can be weaponized? Like, what is it people should be fearful of?
- [08:14]
C
So I think that, you know, for, for the folks who've read history books, you know, that it's like, or everyone has heard the. Well, they first, they came for the X. And whenever there's a certain group that is first targeted, you know, which in this case we're talking about immigrants, you know, unlawful, whatever they call them, illegal immigrants, you know, people who have come in without inspection or who are currently undocumented. And that is, that is, that has always throughout history been a stepping stone to head to other people. Next, you know, next up is journalists who cover this administration in a way they don't like. Next up is dissenters and protesters and people who speak out against this administration. Like, David, you and I are gonna be, we're on lists already. We're gonna be, you know, we're, we're gonna be like, not the first group or the second group, but like, we're gonna be rounded up if they start coming for people who are out there using our platforms to speak out against this administration. And, and I think that, you know, when we see them normalizing this stuff and milit terrorizing communities, you know, we should all be afraid because they are going to repurpose this to come after dissenters and anyone who is protesting.
- [09:30]
B
Now, there's a couple of ways that that could go. And I know we're thinking ahead a couple of steps here. Sometimes the annoyance, and it's more than annoyance, but sometimes just the threat of, is the punishment in and of itself, especially in cases where you're not really committing a crime. And so that could be one path. The other path, of course, is overcriminalization, either with the interpretation of existing law, to apply it to activities that previously were thought of as legal, or the creation of new law. You know, Trump talks about, I want there to be jail time for burning a flag. And we go, well, that's not the law right now. But what if the law were changed to make that a crime? Which of those two paths, the just burying you in having to get a lawyer and blah, blah, blah, even if ultimately you're not really going to be charged or certainly not convicted. Or the second path of actually criminalizing some of this behavior, which seems more likely.
- [10:34]
C
You know, I think that it all kind of plays into this, this culture of power and fear and intimidation. And I think, you know, the, the idea is for folks to comply in advance, to not to be afraid to Speak out to be afraid to go to protests. And, and I personally, you know, they will have to drag me away kicking and screaming because I'm, I'm not going to shut up. I'm not going to stop going to protests. I'm not going to stop speaking out. But I also recognize the level of privilege I have both as a white woman, a US Citizen, an attorney. You know, I have a lot of things that, that for me, I have already decided that this is a thing that I'm going to do. But for some folks, you know, the fear will prevent them from reporting crimes. If they are the victim of crimes, it will prevent them from seeking medical care or, you know, health care. If they are sick or need help, it will prevent them from accessing education. You know, we've already seen people too afraid to go to school and there being big absences. So it chills communities in that way. But then also, I think, you know, the way that this enables the administration to like, come after people and prosecute them and like, let's say, you know, this flag burning thing, of course it's still legal to burn a flag, but his order is written in such a way that it's like, okay, but even if it's legal to burn a flag, the way that they arrested the veteran who burned the flag in Lafayette park was by saying having an open flame in a city park. And then they're going to say, oh no, it was disorderly conduct. It was obstruction of governmental administration. You know, the amount of times I've in my career seen cops charge someone with, with oga, we call it obstruction of governmental administration. It's like, you know, when you don't have a crime to charge someone with, you charge them with oga, disord conduct and then resisting arrest because they're like, what am I being arrested for? And then they're resisting. So it's like this fits into a broader authoritarian infrastructure.
- [12:45]
B
One of the things about the protests this weekend that seems maybe a little different than the first no Kings protests is that I think the administration suspects turnout is going to be huge. And we have this 3.5% idea, you know, that when 3.5% of a population mobilizes and activates in the US it would be about 12 million people. That historically that has been associated with change, with, with driving and pushing change. We didn't get 12 million at the first ones, but, and I don't know that, that we'll get, we're going to get to 12 this Saturday. But certainly the potential for A larger turnout is there. And so Trump has been saying, I hear it's going to be very small. Sean Hannity said last night on his show, just for your own safety, probably stay away from this and stay home. Scott Bessant has said this is going to be like a far left, hardcore thing. I don't think people should be associated with it. That's at the top level. What like the politicos are saying at the protests, taking into account all of the things that have been going on and that you've seen in your career, what tactically should people who plan to attend sort of be cognizant of and maybe think about doing other than leave the phone at home, which you mentioned already?
- [14:03]
C
You know, listen, I think that protecting your, yourself and your neighbors means, you know, just if you do bring your phone because you decide you want to listen, I'll have my phone with me. But don't post pictures of other people's faces because, you know, you don't want to endanger anyone else. I would say be aware that they want to do anything they can to undermine these protests and they want to paint us as, as violent rioters, radicals, the radical Capital R, capital L, radical left. And so don't engage if people are trying to agitate, because I think that inevitably there will be agitators who try to infiltrate. And the first no Kings was incredibly peaceful. I mean, we had millions of people out on the streets of New York City, and I don't even think a single arrest was made. I mean, it really was so peaceful. And so I would just say, like, don't engage with agitators. You know, I know that a bunch of us are planning on, like, wearing inflatables because, like, they're trying to paint us as that. And I think that, like, combating it with humor, the folks who are going to show up in, like, their inflatable frog costumes and their inflate, inflatable aliens and chickens and everything else. It's really like, it's, it's showing like, we, you can't, you can't psychologically intimidate us out of showing up and supporting our communities and showing how we are not okay with this.
- [15:33]
B
One of the things that I just don't know how common it's been in, in history, but that we saw in Chicago is that the federal presence of law enforcement was antagonizing. Not necessarily on purpose, but like, for example, with the tear gas, they ended up antagonizing not only protesters, but local PD as well. And I'm not suggesting that local PD was, quote, on the side of the protesters or anything like that, but there was this tension where when a mayor says, we don't want you here, and when a governor says, we don't want you here, and you end up, I guess we could say, accidentally sort of smoking out local pd, that's a tension that I don't really remember in the United States, certainly for as long as I've been doing this is. Is unique to what's going on right now in some of these scenarios, definitely.
- [16:23]
C
Because I think that it would be very. I mean, listen, I can't really picture that happening here. I don't, you know, I can't speak for other cities, but I know in New York, the nypd, who largely come in and police a city in which they don't live, who come in from Nassau County, Suffolk county and Staten island, you know, are themselves very pro Trump. And so it would be hard to imagine them standing up on behalf of protesters against, if he brought in, say, you know, federal forces, National Guard or, or whatever. But. But I do think it is very interesting to see how Chicago has reacted. You know, I've been wildly impressed by JB Pritzker and, you know, all the folks in Chicago, in Illinois who have, who have really stood up and said, nope, not in our city, not in our state.
- [17:23]
B
It's often said that using federal agencies to do domestic law enforcement violates the Posse Comitatus Act. What I'm curious about is, like, one of the things we've learned in this administration is just because you can point to something being against the law, there's sort of a question as to, like, okay, well, how do you enforce that? And if someone wanted to bring a case that what Trump is doing by sending these federal troops in is flatly against the law because of Posse Comitatus, what is the venue for pursuing such a claim? Who has standing to pursue such a claim? Like, what would it look like to actually explore that?
- [18:01]
C
You know, I think that the big issue that we see and like, the fact that so many people say, oh, but this thing, this thing is against the law. He can't do that. He can't do that. Okay, but he's doing it. Like, doesn't. Like, does it matter? And, like, is anyone going to stop him? And I think, I mean, just yesterday I was listening to oral arguments in front of the Supreme Court around the Louisiana Voting Rights act gerrymandering case, and it looks as though the conservative justices are going to gut the rest of the Voting Rights Act. I mean, it is just. I mean, it's, it, it's, it's fucking devastating, but it's, it's what's happening right now. So. So even if laws are on the books that we think protect us, protect our civil rights, protect our, you know, civil liberties, we are devolving into extreme authoritarianism. And so laws don't matter as much as they used to. You know, I love that you cited the three and a half percent. Like Dr. Erica Chenoweth's research really gives me a lot of hope. And I think that, you know, knowing that since. What does she say? Since the night, like 1900, or since that anytime 3 1/2% of the population has engaged in sustained nonviolent resistance, they've never failed to defeat authoritarianism. So that is what I am hoping for, and that's why I hope we see, you know, at least 10 million people out there on Saturday.
- [19:44]
B
Now, to go back to that legal question, who could bring a complaint about violation of posse comitatus?
- [19:51]
C
I guess in theory, who's the. Who's the aggrieved party? It would, I guess, be. Would it be the cities, I guess, but I don't. I, I don't know enough, honestly. I would have to, like, look up, like, what that would, what that would entail in terms of, like, how, like, I, I mean, obviously, like the act, I know, like, limits the, the federal government's ability to militarize, you know, domestic law enforcement. But I think, like, how it would be used or like how it could be brought in court is something that is not a hundred percent clear to me.
- [20:46]
B
Okay, that's fair. Yeah. And I think that that's what sometimes, you know, when we say, but that's against the law, you do get into these questions of, okay, and then. And then. So, so then now what, what, what is the kind of. The next. The next step in that. Going briefly back to the protests, the surveillance and so on and so forth. Anything else that is important for people who plan to participate to do, obviously we've talked about, consider leaving your phone at home. Remain peaceful. Don't allow yourself to be baited. There may be. Agent provocateur, et cetera. Anything else that's important to keep in mind for people who plan to be out there.
- [21:23]
C
So listen, what I always tell folks, and I think this is good advice across the board forever and ever, is don't talk to the cops.
- [21:32]
B
Hmm.
- [21:33]
C
The law enforcement is not there to help you. They are not your friends. If they are questioning you, you say Am I free to leave? If you are free to leave, leave. If you are not free to leave, say, I cannot speak to you without my lawyer present. I do not want to talk to you without my lawyer present. I will not speak to you. You have the right to remain silent. You need to use it. No one has ever talked their way out of being arrested. No one has ever talked their way out of being, you know, prosecuted. Like, you think that you will be able to help yourself, but you won't. Just don't say anything. If they've made a decision to arrest you, then just please, please, please use your right to remain silent.
- [22:14]
B
You know, I was talking to some people recently about the, the protests and these in general. Who the Saturday protests and protests in general. And they sort of had like, the group had mixed opinions about the idea of bringing kids. And you know, on the one hand, there's this thing of, hey, the future will impact kids. Kids are part of my family. I want them to understand what we're doing. I want them to be involved. And then on the other hand, am I exposing kids to unnecessary whatever? Not just in terms of like, you know, some of these interactions that we're talking about with law enforcement or danger or whatever you. Do you have an opinion about that? Is it really just subject to personal preference? And parents.
- [23:01]
C
Listen, I would not purport to tell anyone how to, how to raise their children or how to parent. I definitely was involved in politics at a very young age, was exposed to this stuff, but look how I turned out. So, you know, that, that's, that's a, that's a thing that other people should decide. But I think that for the most part, these protests have been incredibly peaceful and, you know, having pictures of your kid with a sign and being able to show your grandkids and be like, you were there and I was there. And like, look at me, I was little and I was there and like, having that I think is really, really special. And like, most of this is like in the middle of the day on a Saturday. Like, this is going to be 11am in Times Square. Like, you know, I, I, I assume I will see a lot of kids out there. I saw a lot of kids out there the last time, and I presume I will see a lot of kids out there this time. You know, there will be people in costumes. There's a lot of, I think, you know, this is a much more joyful than you would expect given the severity of what we are all experiencing. I think, like joy as an act of resistance. Like last time, there was music and dancing and, you know, people will be in costumes and signs and everything. And so I think that, I think that for the most part, it's a, you know, a safe atmosphere for children, but I think it's an individual decision and everyone knows what's right for their family.
- [24:18]
B
Yeah, I saw a lot of kids at the last one. And, you know, given the dark nature of what's going on, it is interesting that the vibe was certainly very, very positive. We have been speaking with Eliza Orland's 15 year public defender. Really appreciate your insights following the surveillance stuff, and we definitely want to catch up again.
- [24:40]
C
Absolutely, Definitely. And thanks for chatting about this stuff. It's really so critical. And appreciate all that you do.
- [24:47]
B
All right, thanks. Likewise, Eliza. We'll talk to you soon.
- [24:50]
C
Okay, take care.