Law enforcement says laws are the rules that apply to everyone, but especially to people who aren’t in the law enforcement business. We have to follow the laws or face the consequences. But it often appears cops hold themselves to a lower standard. They only have to follow the laws that won’t get in the way of them doing cop stuff.
State laws can be ignored. The Constitution can be shunted off to the side. Any other impediment to “efficient” policing should be ignored in pursuit of this peculiar interpretation of “justice.”
More than 60 Massachusetts state troopers made “covert investigative recordings” in recent years that were never turned over to prosecutors and in many cases violated the state’s wiretapping law, documents obtained by the Telegram & Gazette show.
The recordings, which mostly appear to have been made during drug investigations, were made in more than 250 criminal cases, the documents show, including cases brought by local, state and federal prosecutors.
A local court has already referred to these revelations as “shocking,” which is a bit of an understatement but one you don’t often see being made by state district courts.
The illegality here works on two levels. The first involves the obligation to turn over evidence to criminal defendants. These secret recordings were withheld from defendants, even as the information gleaned from them was used against them.
The second involves state law. While most covert recordings in most states are allowed due to one-party consent laws (meaning only one person has to have knowledge the conversation is being recorded), law enforcement in Massachusetts isn’t extended the same privilege. In this state, covert recordings during criminal investigations are governed by the state’s wiretap law, which requires warrants before these recordings can be made.
Those weren’t obtained in these cases. But the troopers have an excuse and it’s one we’ve seen used to try to justify literally any form of police misconduct.
Troopers testifying in LoConto’s hearings said they’ve been using Callyo for about five or six years. Their prime goal, they said, was to monitor the application, which allows real-time streaming of audio and sometimes video, to ensure officer safety during drug buys.
Once again, officers are elevating officer safety above all applicable laws, including the US Constitution. State law is supposed to prevent this sort of thing. The Constitution, thanks to a Supreme Court ruling, adds obligations to turn over all evidence to people being prosecuted. Both were violated here.
Fortunately, the judge overseeing one case involving these illegal recordings isn’t buying the “officer safety” excuse. Judge LoConto asked why the recordings were used for investigative purposes when the stated goal was “officer safety.” He didn’t get any straight answers. Instead, he got a bunch of excuses by troopers and state police officials in which they all tried to make it look as though this was someone else’s fault.
Troopers, including a supervisor, told LoConto and defense lawyers that different drug units had different practices on report writing and undercover work, and gave answers to probing questions that the judge found lacking.
“It’s shocking to me that these are the answers I’m getting,” he said at one point when speaking to a state police lawyer about his efforts to get answers to some questions he saw as basic regarding responsibility for turning over evidence.
“These are relatively simple tasks to complete. Producing evidence, turning over evidence.”
“It’s very simple,” LoConto said. “And no one’s in charge, and no one’s responsible.”
The simplest answer is this: no one was in charge and no one was responsible because doing either of these things would create a paper trail for the illegal recordings and/or eliminate any form of plausible deniability.
And thanks to modern technology, it was easy to (almost) get away with it. No doubt the vendor contract contains boilerplate that says everyone involved will only use the tech lawfully. But the easier something can be abused, the greater the chance it will be abused.
The application, which supplants use of the more dangerous physical wires police formerly used, allows officers to use their phones as covert recording devices, marketing materials show.
To be sure, this isn’t on the vendor. But one would like to think a vendor that discovers a customer is using its product illegally would make sure that this customer no longer has access to their tech. And that it would start taking a long, hard look at the rest of its customers to ensure its name doesn’t get dragged down along with its misbehaving users.
The real villain here is the Massachusetts State Police. It gave troopers access to this tech and then spent years refusing to provide training, craft policies to control it, and — when asked about it in court — simply told the judge that this was all probably someone else’s fault. And everyone questioned made that same excuse, turning this testimony into an especially perverse circle jerk of responsibility abdication.
No one breaks the laws quite like law enforcement. And, unfortunately, no one gets away with it quite so frequently. This case may end up being tossed, but you can be for damn sure the State Troopers will waste more of the public’s money defending the other few hundred violations that have yet to make an appearance in court.
On Friday, the Internet Archive put up a blog post noting that its digital book lending program was likely to change as it continues to fight the book publishers’ efforts to kill the Internet Archive. As you’ll recall, all the big book publishers teamed up to sue the Internet Archive over its Open Library project, which was created based on a detailed approach, backed by librarians and copyright lawyers, to recreate an online digital library that matches a physical library. Unfortunately, back in March, the judge decided (just days after oral arguments) that everything about the Open Library infringes on copyrights. There were many, many problems with this ruling, and the Archive is appealing.
However, in the meantime, the judge in the district court needed to sort out the details of the injunction in terms of what activities the Archive would change during the appeal. The Internet Archive and the publishers negotiated over the terms of such an injunction and asked the court to weigh in on whether or not it also covers books for which there are no ebooks available at all. The Archive said it should only cover books where the publishers make an ebook available, while the publishers said it should cover all books, because of course they did. Given Judge Koeltl’s original ruling, I expected him to side with the publishers, and effectively shut down the Open Library. However, this morning he surprised me and sided with the Internet Archive, saying only books that are already available in electronic form need to be removed. That’s still a lot, but at least it means people can still access those other works electronically. The judge rightly noted that the injunction should be narrowly targeted towards the issues at play in the case, and thus it made sense to only block works available as ebooks.
But, also on Friday, the RIAA decided to step in and to try to kick the Internet Archive while it’s down. For years now, the Archive has offered up its Great 78 Project, in which the Archive, in coordination with some other library/archival projects (including the Archive of Contemporary Music and George Blood LP), has been digitizing whatever 78rpm records they could find.
78rpm records were some of the earliest musical recordings, and were produced from 1898 through the 1950s when they were replaced by 33 1/3rpm and 45rpm vinyl records. I remember that when I was growing up my grandparents had a record player that could still play 78s, and there were a few of those old 78s in a cabinet. Most of the 78s were not on vinyl, but shellac, and were fairly brittle, meaning that many old 78s are gone forever. As such there is tremendous value in preserving and protecting old 78s, which is also why many libraries have collections of them. It’s also why those various archival libraries decided to digitize and preserve them. Without such an effort, many of those 78s would disappear.
If you’ve ever gone through the Great78 project, you know quite well that it is, in no way, a substitute for music streaming services like Spotify or Apple Music. You get a static page in which you (1) see a photograph of the original 78 label, (2) get some information on that recording, and (3) are able to listen to and download just that song. Here’s a random example I pulled:
Also, when you listen to it, you can clearly hear that this was digitized straight off of the 78 itself, including all the crackle and hissing of the record. It is nothing like the carefully remastered versions you hear on music streaming services.
Indeed, I’ve used the Great78 Project to discover old songs I’d never heard before, leading me to search out those artists on Spotify to add to my playlists, meaning that for me, personally, the Great78 Project has almost certainly resulted in the big record labels making more money, as it added more artists for me to listen to through licensed systems.
It’s no secret that the recording industry had it out for the Great78 Project. Three years ago, we wrote about how Senator Thom Tillis (who has spent his tenure in the Senate pushing for whatever the legacy copyright industries want) seemed absolutely apoplectic when the Internet Archive bought a famous old record store in order to get access to the 78s to digitize, and Tillis thought that this attempt to preserve culture was shameful.
The lawsuit, joined by all of the big RIAA record labels, was filed by one of the RIAA’s favorite lawyers for destroying anything good that expands access to music: Matt Oppenheim. Matt was at the RIAA and helped destroy both Napster and Grokster. He was also the lawyer who helped create some terrible precedents holding ISPs liable for subscribers who download music, enabling even greater copyright trolling. Basically, if you’ve seen anything cool and innovative in the world of music over the last two decades, Oppenheim has been there to kill it.
And now he’s trying to kill the world’s greatest library.
Much of the actual lawsuit revolves around the Music Modernization Act, which was passed in 2018 and had some good parts in it, in particular in moving some pre-1972 sound recordings into the public domain. As you might also recall, prior to February of 1972, sound recordings did not get federal copyright protection (though they might get some form of state copyright). Indeed, in most of the first half of the 20th century, many copyright experts believed that federal copyright could not apply to sound recordings and that it could only apply to the composition. After February of 1972, sound recordings were granted federal copyright, but that left pre-1972 works in a weird state, in which they were often protected by an amalgamation of obsolete state laws, meaning that some works might not reach the public domain for well over a century. This was leading to real concerns that some of our earliest recordings would disappear forever.
The Music Modernization Act sought to deal with some of that, creating a process by which pre-1972 sound recordings would be shifted under federal copyright, and a clear process began to move some of the oldest ones into the public domain. It also created a process for dealing with old orphaned works, where the copyright holder could not be found. The Internet Archive celebrated all of this, and noted that it would be useful for some of its archival efforts.
The lawsuit accuses the Archive (and Brewster Kahle directly) of then ignoring the limitations and procedures in the Music Modernization Act to just continue digitizing and releasing all of the 78s it could find, including those by some well known artists whose works are available on streaming platforms and elsewhere. It also whines that the Archive often posts links to newly digitized Great78 records on ex-Twitter.
When the Music Modernization Act’s enactment made clear that unauthorized copying, streaming, and distributing pre-1972 sound recordings is infringing, Internet Archive made no changes to its activities. Internet Archive did not obtain authorization to use the recordings on the Great 78 Project website. It did not remove any recordings from public access. It did not slow the pace at which it made new recordings publicly available. It did not change its policies regarding which recordings it would make publicly available.
Internet Archive has not filed any notices of non-commercial use with the Copyright Office. Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities.
Internet Archive knew full well that the Music Modernization Act had made its activities illegal under Federal law. When the Music Modernization Act went into effect, Internet Archive posted about it on its blog. Jeff Kaplan, The Music Modernization Act is now law which means some pre-1972 music goes public, INTERNET ARCHIVE (Oct. 15, 2018), https://blog.archive.org/2018/10/15/the-music-modernization-act-is-now-law-which-means-some-music-goes-public/. The blog post stated that “the MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.” Id. (emphasis added). The blog post further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings. Unfortunately 108(h) is notoriously hard to implement.” Id. (emphasis added). Brewster Kahle tweeted a link to the blog post. Brewster Kahle (@brewster_kahle), TWITTER (Oct. 15, 2018 11:26 AM), https://twitter.com/brewster_kahle/status/1051856787312271361.
Kahle delivered a presentation at the Association for Recorded Sound Collection’s 2019 annual conference titled, “Music Modernization Act 2018. How it did not go wrong, and even went pretty right.” In the presentation, Kahle stated that, “We Get pre-1972 out-of-print to be ‘Library Public Domain’!”. The presentation shows that Kahle, and, by extension, Internet Archive and the Foundation, understood how the Music Modernization Act had changed federal law and was aware the Music Modernization Act had made it unlawful under federal law to reproduce, distribute, and publicly perform pre-1972 sound recordings.
Despite knowing that the Music Modernization Act made its conduct infringing under federal law, Internet Archive ignored the new law and plowed forward as if the Music Modernization Act had never been enacted.
There’s a lot in the complaint that you can read. It attacks Brewster Kahle personally, falsely claiming that Kahle “advocated against the copyright laws for years,” rather than the more accurate statement that Kahle has advocated against problematic copyright laws that lock down, hide, and destroy culture. The lawsuit even uses Kahle’s important, though unfortunately failed, Kahle v. Gonzalez lawsuit, which argued (compellingly, though unfortunately not to the 9th Circuit) that when Congress changed copyright law from opt-in copyright (in which you had to register anything to get a copyright) to “everything is automatically covered by copyright,” it changed the very nature of copyright law, and took it beyond the limits required under the Constitution. That was not an “anti-copyright” lawsuit. It was an “anti-massive expansion of copyright in a manner that harms culture” lawsuit.
It is entirely possible (perhaps even likely) that the RIAA will win this lawsuit. As Oppenheim knows well, the courts are often quite smitten with the idea that the giant record labels and publishers and movie studios “own” culture and can limit how the public experiences it.
But all this really does is demonstrate exactly how broken modern copyright law is. There is no sensible or rationale world in which an effort to preserve culture and make it available to people should be deemed a violation of the law. Especially when that culture is mostly works that the record labels themselves ignored for decades, allowing them to decay and disappear in many instances. To come back now, decades later, and try to kill off library preservation and archival efforts is just an insult to the way culture works.
It’s doubly stupid given that the RIAA, and Oppenheim in particular, spent years trying to block music from ever being available on the internet. It’s only now that the very internet they fought developed systems that have re-invigorated the bank accounts of the labels through streaming that the RIAA gets to pretend that of course it cares about music from the first half of the 20th century — music that it was happy to let decay and die off until just recently.
Whether or not the case is legally sound is one thing. Chances are the labels may win. But, on a moral level, everything about this is despicable. The Great78 project isn’t taking a dime away from artists or the labels. No one is listening to the those recordings as a replacement for licensed efforts. Again, if anything, it’s helping to rejuvenate interest in those old recordings for free.
And if this lawsuit succeeds, it could very well put the nail in the coffin of the Internet Archive, which is already in trouble due to the publishers’ lawsuit.
Over the last few years, the RIAA had sort of taken a step back from being the internet’s villain, but its instincts to kill off and spit on culture never went away.
For the last five years, driverless car companies have been testing their vehicles on public roads. These vehicles constantly roam neighborhoods while laden with a variety of sensors including video cameras capturing everything going on around them in order to operate safely and analyze instances where they don’t.
While the companies themselves, such as Alphabet’s Waymo and General Motors’ Cruise, tout the potential transportation benefits their services may one day offer, they don’t publicize another use case, one that is far less hypothetical: Mobile surveillance cameras for police departments.
It’s not quite as cut-and-dried as that last sentence. As far as we know, police departments do not have unfettered, real-time access to the recordings created constantly by autonomous vehicles. But they do have access to the recordings. That much is clear from the public records obtained by Motherboard.
The San Francisco PD has been using this footage to aid in investigations, apparently frequently. The training document says two things, neither of which address the particularly thorny constitutional questions they raise:
Autonomous vehicles are recording their surroundings continuously and have the potential to help with investigative leads.
There’s nothing untrue about this assertion and yet it says nothing about the processes used to obtain these recordings. That might have been a hypothetical if not for the following bullet point:
Information will be sent in how to access this potential evidence (Investigations has already done this several times)
Yikes.
That is problematic, as an EFF rep points out:
“This is very concerning,” Electronic Frontier Foundation (EFF) senior staff attorney Adam Schwartz told Motherboard. He said cars in general are troves of personal consumer data, but autonomous vehicles will have even more of that data from capturing the details of the world around them. “So when we see any police department identify AVs as a new source of evidence, that’s very concerning.”
So many questions.
An AV will not have a human driver, which lowers the expectation of privacy. That expectation reverts to the company deploying it, which makes it somewhat comparable to a third-party record: data obtained by an automatic process that belongs to the company deploying the data-gathering device (in this case, a car).
Since there’s no driver to challenge searches, the responsibility lies with the company deploying the vehicle. And, since the recordings presumably cover public areas where the privacy expectation is further lowered, it might be possible to obtain recordings with nothing more than a subpoena (or a friendly sounding email!)
That’s where things get even thornier, in terms of the Fourth Amendment. The document does not describe the process the SFPD investigations team uses to obtain recordings.
First of all, how does the SFPD even know if AV recordings might be useful in ongoing investigations? Presumably, AV operators are required to inform local government agencies of their plans so that they can be overseen and undertaken safely. If cops know the routes traveled, it makes sense they would pursue footage recorded at or around areas where suspected crimes were committed.
But who governs this access? Has the city enacted any limits? Or is it just assumed that anything traffic regulators have access to should be accessible to law enforcement?
Moving on from there, how does the PD approach these companies? Private searches (which may be how these recordings are viewed by courts) are legal provided law enforcement does nothing to encourage searches companies (or their employees) may not otherwise engage in. Can cops request AV companies run routes through “high crime” areas in hopes of collecting footage of crimes in progress? All judicial signs point to “no,” but that doesn’t mean it’s not happening.
AV testing is AV testing. It really doesn’t matter much where it’s happening, so some companies may engage in test runs in neighborhoods investigators think might provide more evidence or intel. If this is happening, that’s a real problem.
Unfortunately, we only know what the SFPD has released so far: a training document that says AV cars capture footage and that investigators have utilized that footage in the past. Future public records requests may shed more light on the matter, but for now, this is all we have. At some point, evidence gathered by autonomous vehicles may be challenged in court. If and when that happens, we may get even more answers. But it seems like this isn’t a problem capable of being quantified with this minimum amount of information. That doesn’t mean it should be ignored. It just means more data is needed to draw any solid conclusions.
Body-worn cameras were supposed to usher in a new era of police accountability. That hasn’t happened. At best, they’ve generated a ton of additional footage of interactions and arrests that may prove valuable to criminal defendants and people filing civil rights lawsuits. “May” is the operative word. Cops still control the footage, which limits public access and increases the odds that unflattering/unhelpful (to police) footage rarely ends up in the hands of the public. The end result is that prosecutors have been the biggest beneficiary of this so-called accountability tech.
A case in Massachusetts has raised some interesting constitutional questions about body cameras and recordings. Officers responding to a domestic violence call recorded the interior of a home with their body cameras. Weeks after that call, they accessed the footage to find corroborating evidence that was used to apply for a search warrant. One of these is a constitutional violation, Massachusetts’ Supreme Judicial Court has ruled. (via Courthouse News)
Here’s what happened during that domestic disturbance call, as recounted in the opinion [PDF]:
After the first responding officers had entered the apartment, another officer arrived who was equipped with a bodyworn camera, which recorded the areas of the home through which he moved, as well as his interactions with the defendant, his sister, and others in the apartment, including a number of police officers. The video footage obtained shows that when the officer arrived at the home, the door was ajar; he entered the living room, where at least two other officers were present…
The officer wearing the camera walked past the defendant’s sister and ascended the stairs. Standing at the top of the staircase, he spoke with the defendant, who was standing at the threshold of a bedroom. Through the open bedroom door, the camera captured a woman in the background. The woman was zipping her coat. Floral-printed curtains adorned the bedroom window just behind the area where the woman was dressing.
The sister shouted from downstairs, and the defendant yelled “shut up.” He explained to the officer with the camera that the girlfriend could not be rushed, as she was getting dressed, but that they would leave shortly. Once dressed, the girlfriend and the defendant moved toward the stairs; they were stopped by the officer.
The “floral-printed curtains” would later prove instrumental in building a case against the defendant. The officer who uploaded the photo informed detectives about its existence, since the defendant was one of several suspects being investigated by the Boston PD’s gang task force. He was already under surveillance by the BPD, with a couple of officers managing to successfully “friend” the defendant on Facebook, giving them access to his posts.
Here’s where the distinctive curtains resurfaced:
Two weeks after the domestic disturbance call, the detective noticed that the defendant had posted what the officer believed to be a recently created video recording of the defendant holding a firearm in a bedroom, with floral-printed curtains visible in the background. After he saw the posted recording, the detective retrieved the DVD containing the body-worn camera footage from his colleague and reviewed it.
Peering into the defendant’s home caught on the body-worn camera footage, the detective saw the defendant’s girlfriend zipping her coat in the defendant’s bedroom, while standing next to what the detective believed were the same distinctive curtains visible in the posted video recording. This was significant to the detective because it established the location of the posted video recording that had showed the defendant apparently holding a firearm.
Using this information gleaned from the BWC recording made two weeks earlier, detectives obtained a search warrant for home, specifically noting the curtains seen in both the social media post and the officer’s camera footage. The house was searched, resulting in the discovery of weapons and some marijuana.
The defendant argued the initial recording violated his Fourth Amendment rights. The court disagrees, noting that the recording of areas in plain view of the officer merely duplicated what the officer could see with his own eyes.
We conclude that, where, as here, the officer was lawfully present in the home and the body-worn camera captured only the areas and items in the plain view of the officer as he or she traversed the home, in a manner consistent with the reasons for the officer’s lawful presence, the recording is not a search in the constitutional sense and does not violate the Fourth Amendment or art. 14. This conclusion follows from our jurisprudence regarding the photographic preservation of a crime scene.
Even though a recording is more “permanent” than an officer’s memory, there’s still no violation. Precedent says officers can document crime scenes and domestic disturbances fall on the long list of criminal acts officers are sent to respond to. The recording was not a violation, even though it could be accessed at any point past its creation by investigators.
However, the court says viewing the footage a few weeks later was unconstitutional.
[W]e conclude that while the plain view observation doctrine extended to the officer’s recording of his interactions in the defendant’s home in response to the domestic disturbance call, that doctrine cannot be stretched to sanction the subsequent review of the footage for reasons unrelated to the call.
The 21st century is no time to bring back some of the worst aspects of British rule, says the court.
The ability of police officers, at any later point, to trawl through video footage to look for evidence of crimes unrelated to the officers’ lawful presence in the home when they were responding to a call for assistance is the virtual equivalent of a general warrant.
The BPD can’t do that without a warrant, given the lack of connection between the domestic disturbance and any suspected gun/drug criminal activity.
Moreover, the subsequent review of the footage in connection with the unrelated investigation of the defendant falls outside the rationale justifying the recording in the first instance. Such a review is divorced from protecting police officers from false accusations of misconduct, ensuring police accountability, or preserving a record of police-civilian interaction. Instead, the use of body-worn camera footage in this manner, after the fact, for investigatory purposes unrelated to the domestic disturbance call, had the effect of allowing the gang unit detective to peer into the defendant’s home for evidence to support an unrelated criminal investigation.
The government tried to salvage its warrantless search by claiming it was only a very small unconstitutional search. This argument is rejected as well.
[T]he Commonwealth contends that the BPD review of the body-camera footage was not extensive, and that the review was targeted at one specific detail, the floral-printed curtains in the defendant’s bedroom. But the constitutional protection against unreasonable, warrantless searches is no less applicable to a targeted search than it is to a more extensive one.
With that detail removed from the warrant, the warrant most likely does not contain enough probable cause to justify the search of the house. The motion to suppress is granted and the case is kicked back down to the lower court, which will give the Boston PD one more chance to salvage its unconstitutionally gotten gains. But the line is clear. Recordings: good. Digging into saved recordings to aid in unrelated investigations: no good… not without a warrant.
First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies — which are quite common in many courthouses — are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).
Soon after reports of the speech came out, a recording of the hearing showed up on YouTube — in violation of the court’s rules. If you go to the link now, it says the recording was taken down due to “a copyright claim by Superior Court of California, County of Los Angeles” (takedown first spotted by the Twitter account @beka_valentine).
?Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,? read the announcement, which also detailed the rolling back of other COVID-19 protocols. ?The Court implemented this temporary program during the pandemic recognizing there may be abuses of the Court?s orders prohibiting recording, filming, and distribution of proceedings. Widespread breaches by the public in a recent court proceeding highlighted the need to return to in person, open courtroom proceedings, which is a welcome development.?
As that Hollywood Reporter article notes, California courts have rules against recording, and you can face a variety of legal consequences for disobeying:
Under California state and local court rules, no recordings of court hearings are allowed (including by members of the press) without advance permission from the judge in the form of a written order. According to the 2019 California Rules of Court, ?Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law.?
When asked what is the court?s general policy is on taking action if a proceeding is recorded without permission, L.A. County Superior Court Communications Director Ann E. Donlan said only: ?Parties who publish unauthorized recordings of court proceedings in violation of a court order are subject to sanctions and other potential liability pursuant to California Code of Civil Procedure section 1209 and other applicable law.?
But… notice what is not included in the list of potential liabilities? Copyright. That’s because there is no legitimate copyright claim by the courts in these recordings. First, as a government entity, it’s difficult to think that they can make a legitimate copyright claim. While, technically, the US Copyright Act’s prohibition on the government claiming copyright on works it creates only applies to the federal government, other courts have interpreted the prohibition to apply more broadly to other governments as well.
On top of that, it’s hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that — even with the prohibition on recording — in the copyright context, there would be a strong fair use defense.
And so I understand why the court doesn’t want the recording up there. And I agree that whoever recorded it likely broke the law and could face significant legal liability (if they were tracked down). But, that does not mean that the court can then step in and falsely claim copyright to take the video down. That’s copyfraud and abuse of copyright. Just because it gets to the ends that may feel more legit doesn’t mean you just get to magically invoke a copyright in a work that you have no legitimate copyright over.
We have lots of concerns about court transparency, and how more transparent court systems would be nice. One of the more interesting consequences of the pandemic, in which many court hearings are now done virtually, is that courts have been much more open to allowing more realtime access to these court hearings. In one of the more high profile (and more ridiculous, if that’s possible) lawsuits challenging the election results — the so-called “Kraken” lawsuit in Georgia — there was a hearing earlier today. The court announced that the audio would stream on YouTube:
That says that the audio will be streamed on YouTube and provides you with a link. However, beneath it, it says the following:
The U.S. District Court for the Northern District of Georgia is participating in an audio pilot program permitting a limited number of district courts to livestream audio of certain civil proceedings with the consent of the parties. Under the pilot program, audio of qualifying civil proceedings will be livestreamed on the court?s YouTube channel.
Audio recordings will not be available for playback on YouTube after proceedings have ended. Audio, in full or in part, from any proceeding may not be recorded, broadcast, posted or reproduced in any form.
And, uh, what? I kind of understand (if seriously disagree with) rules in courts saying that people in the courtroom are not allowed to record, but cannot fathom any possible way in which the court can say that audio that they’ve streamed out on the open web cannot be recorded or used in any form.
And already there seems to be some crackdown on those who did make use of the recordings. Reuters legal reporter Jan Wolfe was told to delete her tweets with the recording of Judge Timothy Bratten shutting down the lawsuit:
I deleted my tweet with a recording of Judge Batten's remarks in Sidney Powell's lawsuit. It was brought to my attention that recording was not allowed by the court. I hadn't realized that.
And, if you go to the original YouTube video where the court hearing was officially streamed, you now see this:
This seems absolutely ridiculous. I also cannot conceive of any possible basis for which the courts can force someone, especially a reporter, to not record or republish using the publicly available audio stream. And it’s not that difficult to find the audio stream reposted elsewhere.
As reporter Brad Heath notes, this seems both short-sighted and beyond the authority of the courts:
It also doesn't strike me as entirely clear that a federal district judge has the power to order people in their living rooms to not record a thing on YouTube, even if it's his thing.
Data isn’t secure just because nothing happened to it when it was still in your possession. It can still “leak” long after the storage device has gone onto its second life in someone else’s hands.
The Fort Huachuca Military Police were just apprised of this truism by Twitter user KF, who had purchased some used Axon body cameras on eBay. The cameras still contained their microSD storage cards. And contained on those storage cards were a bunch of recordings (including audio) that hadn’t been wiped by the MPs before the cameras ended up on eBay.
Annnnnd this is me shitting my pants as I listen to extracted evidence video from this @axon_us camera sold on eBay? (in bulk lots!) Time to buy em up before they disappear! Collect you some evidence! pic.twitter.com/thZTrBCkui
The whole thread is worth a read (here’s an unrolled version if you prefer to go somewhere other than Twitter). No one seems to know how the cameras ended up on eBay, but it’s pretty amazing they ended up in the secondary market with their recordings still intact.
What’s more amazing (but somehow simultaneously less surprising) is that the recordings weren’t encrypted or protected by a password. Axon responded to the Arizona Mirror’s reporting of this secondary-market breach by saying it was “looking into the matter.” It also said it would be putting more effort into telling its law enforcement customers what they should already know.
“We are… reevaluating our processes to better emphasize proper disposal procedures for our customers.”
What’s more reassuring is that this data disposal carelessness is no longer as much of an issue for Axon customers. The cameras in KF’s hands are first-generation models produced in 2015. Axon’s latest version encrypts recordings and, presumably, forces officers to select passwords to ensure this encryption isn’t rendered useless by a lack of login protection.
eBay also responded to questions from the Mirror, stating that it forbids the sale of surveillance devices like the ones KF was able to purchase. It also said sellers are responsible for making sure internal storage is wiped before making devices eBay says it does not allow to be sold on the site are made available for sale on the site.
Security matters. But situations that demand the utmost in care are too often handled in ways that an octogenarian using their first computer ever would find amateurish. KF’s site contains this amusing/scary security test of police in-car camera systems — cameras the researchers were able to view live after discovering zero authentication was needed to access this stream. And the system itself was only “protected” by the default login/password, which the researchers found in a PDF copy of the device’s manual after a little bit of Googling.
For all the talk from law enforcement officials about the need to redact and/or withhold recordings out of concern for people’s privacy, they don’t seem to be very concerned that these recordings are ending up in the hands of the public. Nor does there seem to be much concern that recordings might be improperly accessed by other personnel with access to the devices while the cameras were still being used by the Fort Huachuca police. The lack of password protection is just as alarming as the apparent lack of proper disposal procedures. This is consumer-grade carelessness exercised by a taxpayer-funded entity with a whole lot of power and the obligation to be better public servants.
Florida legislators are thinking about handing some opacity back to Florida law enforcement agencies in the wake of the Parkland school shooting. The tragedy of the event was compounded by on-site law enforcement’s response: that is, there wasn’t any. Faced with increased scrutiny over a handful of mass shootings in the state, at least one legislator’s response has been to bury the bad news under a new public records exemption. [h/t War on Privacy]
In less than three years, Florida has seen the second-deadliest mass shooting – Pulse nightclub – and the second-deadliest school shooting – Marjory Stoneman Douglas High School. One gunman killed five at the Fort Lauderdale-Hollywood International Airport. Another killed five at a Sebring bank.
Yet Senate Bill 186 would create an exemption to the state’s public records law for all photographs and audio and video recordings that relate to the “killing of a victim of mass violence.” The bill defines mass violence as the killing of at least three people, not including the perpetrator. Violation would be a third-degree felony, punishable by up to five years in prison.
Senator Tom Lee’s bill is a gift to the government at large, even if law enforcement agencies and schools will be the most direct recipients of this largesse. If this “privacy protection” had been in place a few years ago, the public would have had no idea how badly the Broward County Sheriff’s Department botched its response to the school shooting. Not only would that have kept the BCSD relatively free of criticism, it would have shielded its oversight — state legislators — from being asked what they were doing to prevent school shootings and/or ensure better response from those expected to serve and protect the public.
Supporters of bills like these claim it’s all about protecting the privacy of crime victims and their families. But as the excellent Sun Sentinel op-ed points out, most requests to block release of recordings originates with governments and businesses rather than the victims and their loved ones. These requests have prevented the public from accessing key details in everything from Dale Earnhardt’s Daytona crash to an inmate’s death at the hands of jailers.
The law already blocks the release of recordings containing the death of a law enforcement officer. This addition could be read to cover any deadly incident in which more than one person is killed. Any whistleblower releasing recordings to show the public what really happened — rather than the official narrative — will now face felony criminal charges for doing the right thing. This isn’t going to restore confidence in government agencies and their response to deadly incidents. All it will do is drive a wedge between them and the people they serve.
New Hampshire investigators will be deposing Alexa in the near future, according to a recent court ruling. The advent of in-home digital, voice-activated assistants has created a wealth of personal recordings law enforcement may now have access to. It’s only been a couple of years since we first saw law enforcement attempt to obtain Alexa recordings from Amazon, but as Mike pointed out then, this was going to be the new normal. So the onus is on companies like Apple, Google, and Amazon to give customers more direct control of stored data and recordings.
In this case, prosecutors are seeking recordings made by a murder victim’s Amazon Echo speaker. They hope the victim’s device captured the attack and the removal of her body. Amazon has issued some boilerplate about “valid legal demands” in response, but it’s likely the company won’t interject itself into this case.
The key here — unlike other cases we’ve discussed — is that the device belongs to a crime victim, rather than the person who allegedly committed the crime. The short court order [PDF] from the New Hampshire court makes it clear no one but the prosecution is invited to this evidence-gathering party:
After reviewing the motion, the court takes it up and rules on it without waiting for a response from defense counsel, as it appears the defendant would have no standing to assent or object to the State’s motion.
Pretty cut-and-dry. The alleged murderer can’t object to the search of recordings made by the murder victim’s device. Amazon can probably fight the order, but in a case like this, it seems unlikely it will. But maybe it should.
[T]he State’s motion to search in lieu of a search warrant is granted.
Law enforcement rarely obtains a warrant to search a crime victim’s residence if that’s where the crime occurred. It’s not that they don’t need a warrant to perform this search. It’s that the accused criminal usually has no possessory interest in the crime victim’s residence and would not be able to challenge the evidence in court.
When it’s a murder case, the victim is obviously in no position to challenge the search. But there’s a lot of criminal activity that doesn’t result in a dead person, so searching someone’s house without a warrant just because they were robbed or assaulted still implicates the privacy granted to them by the Fourth Amendment. The judge here is allowing a warrantless search because there’s no one to object to the search, not because it’s necessarily completely legal to perform a warrantless search in this sort of situation. This paper [PDF] from the Federal Law Enforcement Training Center points out the US Supreme Court has rejected a “murder scene” warrant exception three times over the last 40 years, and yet many in law enforcement believe such an exception exists.
[T]he courts have outlined a number of “established and well-delineated” exceptions to the warrant requirement of the Fourth Amendment, including, but certainly not limited to, consent searches; searches of vehicles; searches incident to arrest; and inventory searches. However, one exception to the warrant requirement which the Supreme Court has expressly and repeatedly refused to recognize is a general “murder scene” exception. Even so, in speaking with numerous Federal law enforcement officers, many of whom have a state or local law enforcement background, it appears that a misconception regarding this point continues to exist. Most of those with whom I have spoken believe that such an exception is alive and well, and that in the course of investigating a homicide, no warrant is required to “process” the crime scene.
If Amazon wants to challenge it based on those grounds, it can try. But it also may not have the standing to challenge the warrantless search of this customer’s device since it would have little possessory interest in recordings created by customers. But it’s worth a shot, if only to remind law enforcement (and this judge) that there’s no warrant exception for murder scenes.
Cameras have been referred to as “unblinking eyes.” When operated by law enforcement, however, they’re eyes that never open.
Dash cams were supposed to provide better documentation of traffic stops and other interactions. So were lapel microphones, which gave the images a soundtrack. Officers who weren’t interested in having stops documented switched off cameras, “forgot” to turn them back on, or flat out sabotaged the equipment.
Body cameras were the next step in documentation, ensuring that footage wasn’t limited solely to what was in front of a police cruiser. Cautiously heralded as a step forward in accountability, body cameras have proven to be just as “unreliable” as dash cams. While some footage is being obtained that previously wouldn’t have been available, the fact that officers still control the on/off switch means footage routinely goes missing during controversial interactions with the public.
The on/off switch problem could be tempered with strict disciplinary policies for officers who fail to record critical footage. Or any disciplinary procedures, actually.
Chicago, Dallas, Denver, New Orleans, New York, Oakland and San Diego are among the cities that don’t specify penalties when officers fail to record, according to the Brennan Center for Justice at New York University’s School of Law.
Body cameras aren’t just for big cities anymore, which means countless smaller towns are just as lax when it comes to ensuring body cameras are rolling during stops and arrests.
Samuel Walker, a retired criminal justice professor, notes the problem isn’t just limited to body cameras. It’s any camera an officer controls.
[Walker] pointed to a study that showed across-the-board low compliance rates of officers in one high-crime Phoenix neighborhood between April 2013 and May 2014, the most recent information available. Officers only recorded 6.5 percent of traffic stops even though the department’s policy required cameras to be activated “as soon as it is safe and practical,” according to the study, conducted by Arizona State University’s Center for Violence Prevention and Community Safety.
With body cameras, the default mode of operations for police officers was supposed to be “always on,” with a few exceptions for privacy concerns. Instead, the default mode appears to be “only when an officer feels like it.”
The Alameda County Sheriff’s Department changed its body-camera policy following a highly publicized incident last November where two deputies were caught on surveillance video using their batons to beat a car theft suspect in the middle of a street in San Francisco’s Mission District.
Eleven officers in all responded and 10 failed to turn on their body cameras. The one who did activate his did so by accident.
The problem is endemic. Law enforcement agencies have long felt no one should need more evidence than an officer’s word and, for far longer than that, have felt that deployments of force shouldn’t be second-guessed by outsiders. Recorded footage far too often runs counter to police reports and official narratives. The problem that needs to be fixed, apparently, is the recording devices.
During a six-month trial run for body cameras in the Denver Police Department, only about one out of every four use-of-force incidents involving officers was recorded.
Cases where officers punched people, used pepper spray or Tasers, or struck people with batons were not recorded because officers failed to turn on cameras, technical malfunctions occurred or because the cameras were not distributed to enough people, according to a report released Tuesday by Denver’s independent monitor Nick Mitchell.
According to data from the Oakland Police Department, of the 504 use of force incidents last year, 24 were not captured on camera. That puts the department a 95 percent success rate of recording use of force incidents.
The other thing that happens is better quality policing.
The Oakland Police Department has seen a 66 percent decrease in use of force incidents since the department started issuing body cameras to all of its officers in 2011.
Agencies that aren’t willing to hold officers accountable aren’t just (often literally) hurting the public they serve. They’re also hurting themselves. They may not care what the public thinks when spokespeople deliver the news that all nine dash cams coincidentally malfunctioned during the beating of an arrestee, but they’ve also got legislators to answer to — many of whom are tiring of dumping public funds into lawsuit settlement sinkholes.