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Posted on Techdirt - 16 April 2014 @ 1:38pm

NYPD Update: Stop-And-Frisk Now Under Federal Oversight; Muslim-Spying 'Demographics Unit' Disbanded

from the somewhere,-Mike-Bloomberg-is-choking-on-his-own-indignation dept

Time for an update on the NYPD scene. As you'll recall, both Mayor Bloomberg and Police Chief Ray Kelly exited their respective offices in their respective huffs, claiming the city would fall apart if the sanctity of the NYPD's Constitution-skirting programs (stop-and-frisk, the Muslim-watching Demographics Unit) weren't preserved.

The legal battle over the constitutionality of the stop-and-frisk took several turns, including the removal of the presiding judge for "appearances of partiality." Incoming mayor Bill de Blasio promised to drop the city's appeal of Judge Scheindlin's ruling, and oddly enough, actually did.

An attempt to keep the appeal going was filed by the union representing the NYPD, but this was shot down by the appeals court. It did, however, allow it to be part of the final negotiations. The end result was the installation of five years of oversight over the NYPD's controversial program in order to move it towards something more resembling compliance with the Constitution.

The apocalypse Bloomberg and Kelly claimed was unavoidable if stop-and-frisk was curbed has failed to materialize. Even before the ruling was handed down, the program had been scaled back, with 86% fewer stops being recorded in the first quarter of 2014 than in the same quarter of 2012. Despite this lack of pushing random people up against the wall, crime is down 13% compared to 2013. Was stop-and-frisk ever truly essential? Or was it simply something that became an all too easily abused "tool" of the NYPD? At this point, the numbers seem to indicate that stop-and-frisk had very little real effect on criminal activity.

More good news on the NYPD v. Constitution front: the infamous Muslim-spying wing of the NYPD -- the stupidly-named "Demographics Unit" -- has been disbanded. This program, started by a former CIA officer who leveraged the city's post-9/11 anxieties to craft major changes to guidelines governing the surveillance of New Yorkers, spent a considerable amount of time infiltrating and surveilling entire mosques under the pretense that each and every member was somehow related to ongoing counterterrorism investigations.

The investigations performed by this unit did considerable damage to the civil liberties of mosque attendees over the last decade, but failed to turn up any credible suspects, much less terrorism-related arrests. The unit's pervasive surveillance so thoroughly violated First and Fourth Amendment protections that the CIA and FBI were unable to avail themselves of the "intelligence" collected by the NYPD without violating federal guidelines. When even the CIA can't look at your investigative results for fear of violating its own minimal civil liberties protections, you know you've got a problem.

Bill Bratton, returning to the NYPD commissioner's office, seems to have realized that programs like the Demographics Unit ultimately do more harm than good. When heading the Los Angeles Police Department, he was approached with a similar idea for tracking that city's Muslim community. He had this to say then:

“A lot of these people came from countries where the police were the terrorists,” he said at the time. “We don’t do that here. We do not want to spread fear. We want to deal with criminals.”
The NYPD, before his return, had no such concerns. If anything, the NYPD actively created distrust -- both in the New York Muslim community and around the world, sending its officers uninvited to peer over the shoulders of local police and investigative units at scenes of terrorism activity in countries like Kenya and Bali.

The new NYPD is still staffed with the old NYPD, which means change will be slow and likely fought every step of the way. Muslims are understandably concerned that the public disbandment of the Demographics Unit will just result in the level of surveillance being unchanged, if only a bit more unfocused. Bratton seems to be nudging the department towards a more FBI-esque set of rules, which isn't ideal, but is certainly much better than the abusive behavior permitted under the NYPD's internal guidelines.

It does appear the NYPD will be moving towards something resembling an actual police force, rather than a law unto itself. Without Kelly and Bloomberg around to defend its every overstep, the NYPD can no longer expect to skirt the Constitution with impunity. But there's a long way to go to fix things, so any optimism must be tempered by the fact that good habits are tough to instill and bad habits are extremely hard to break. Five years of oversight is a start, but the city -- meaning the mayor and the police commissioner -- must be willing to hold its officers accountable.

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Posted on Techdirt - 16 April 2014 @ 3:16am

Los Angeles Law Enforcement Looking To Crowdsource Surveillance

from the snitches-get-stitches-cloud-storage dept

The LAPD wants you, Joe Citizen, to help it out with its surveillance. It has enlisted the help of a crowdsourcing tool called LEEDIR to collect photos and recordings from everyday people who may have additional footage of natural disasters or civil unrest that could help out both emergency responders and cops looking to put a few more demonstrators in jail.

In today's announcement, earthquakes, terrorist attacks, and the Boston Marathon bombings were mentioned as scenarios in which LEEDIR could help law enforcement respond to disasters or large-scale public security threats. One might also imagine large citizen protests like Occupy Wall Street being the focus of such crowdsourced surveillance.
It's unarguable that the addition of crowdsourced photos and video helped authorities track down the Boston Bombing suspects, which shows that there is some value to this service. But, as is pointed out by Xeni Jardin, it could also be used to build a database of people enjoying First Amendment-protected activities. Currently, the site is soliciting input for any info related to last week's party-turned-riot in Isla Vista, CA, where over 100 arrests were made and 44 people injured, including five police officers. The notice clearly states the police are "seeking to identify several subjects wanted for violent felonies that occurred during the evening."

This is a potentially useful tool that isn't completely evil, but there are some definite concerns. For one, there's no real way to submit anything anonymously. You aren't required to input your name, but the app itself demands access to GPS data and any other communications-related metadata is likely hoovered up by LEEDIR when images and video are uploaded.

There are also other questions left unanswered about the handling of the data submitted.
According to today's announcement, agencies might typically retain uploaded content for a month or two, then delete it. But there's no requirement to delete it…
And the way the system is accessed and used seems to lend itself to abuse.
It's up to law enforcement to provide analysts or investigators to sort through all of the content uploaded to LEEDIR and find potential evidence…

Once the content is uploaded, it belongs to law enforcement, [Co-Global CEO Nick] Namikas said. It's up to each agency to decide how long they want to store the content in the cloud – a service being provided by Amazon.
An unfiltered influx of photos and videos curated by law enforcement officers. What could possibly go wrong? The tool may be aimed at natural disasters (which provides free access to police and emergency responders in the affected area), but paid subscriptions are available which would keep LEEDIR live at all times for any law enforcement agency willing to foot the bill.

As if the potential negatives of this sort of crowdsourcing weren't apparent enough, there's also the very large problem of who's behind this new system.
Under the leadership of disgraced former LA County Sheriff Lee Baca, the department is said to have conceptualized the web service and smartphone app, which was built by Citizen Global with Amazon

Baca's administration was plagued by corruption and scandal, and he resigned amid ongoing investigation into possible criminal activity. Certainly no such imperfect leader would misuse LEEDIR.
But LA Sheriff's Dept. commander Scott Edson sees no downside:
“I like to call this a flag-waving opportunity,” Edson said. “This is a great opportunity for the public who really wants to catch those guys as badly as any law enforcement agency wants to catch them. Now they’re going to have an opportunity.”
Sure. Just like "see something, say something" filled DHS Fusion Centers with thousands of reports of people using cameras. With unfiltered access to whatever citizens submit, law enforcement can browse for unrelated criminal activity or simply use it to fill in the holes in their surveillance network.

It's not that it couldn't help, as it did in the Boston Bombing. It's that the downside isn't even being considered by the proponents of the system, which include a former law enforcement official accused of corruption. There's seemingly no oversight to the program and absolutely no concerns being raised about privacy or the potentially endless retention of non-relevant footage and photos.

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Posted on Techdirt - 15 April 2014 @ 12:40pm

The FBI's Facial Recognition Database Combines Lo-Res Photos With Zero Civil Liberties Considerations

from the non-criminal-photos-mixed-in-just-for-fun! dept

Another FOIA lawsuit brought against the government by the EFF has resulted in the release of previously withheld documents. The papers cut loose this time detail the FBI's facial recognition database and other parts of its "Next Generation Identification" (NGI) program, one that aims to compile a collection of biometric data.

EPIC's FOIA lawsuit over similar information revealed last year that the FBI's facial recognition software (as of 2010) had an acceptable margin of error of 20%. With a 1-in-5 chance of "recognizing" the wrong person, the accuracy of the database had nowhere to go but up. But it appears the FBI prioritizes quantity over quality, as the first number to hit you from the "released" documents is a big one.

The records we received show that the face recognition component of NGI may include as many as 52 million face images by 2015. By 2012, NGI already contained 13.6 million images representing between 7 and 8 million individuals, and by the middle of 2013, the size of the database increased to 16 million images. The new records reveal that the database will be capable of processing 55,000 direct photo enrollments daily and of conducting tens of thousands of searches every day.
The millions of images come from a handful of sources. Only 46 million of those images, however, will be from criminal databases. The other 6 million will come from other sources, not all of those necessarily related to criminal or terrorist activity.
[T]he FBI does not define either the “Special Population Cognizant” database or the "new repositories" category [which account for nearly a million images]...

A 2007 FBI document available on the web describes SPC as “a service provided to Other Federal Organizations (OFOs), or other agencies with special needs by agreement with the FBI” and notes that “[t]hese SPC Files can be specific to a particular case or subject set (e.g., gang or terrorist related), or can be generic agency files consisting of employee records.”
These employee records may be tossed into the database along with the criminal records if the FBI chooses to assign these a Universal Control Number (UCN). And these records may become more common. As the EFF points out, if you submit your fingerprints as part of a pre-employment background check, these are added to the FBI's database. If employers decide they also want a pre-employment mug shot, that will head the FBI's way as well.

The database will be populated with non-criminal photos and overseen by an agency that hasn't provided an updated Privacy Impact Assessment for its facial recognition program since 2008. The low resolution (often at 0.75 megapixels or less) makes this blending of hit/non-hit photos even more problematic, as it means the FBI's actual accuracy rate still hovers between 80-85%. But the agency has weasel-worded its way out of having to defend such a lousy accuracy rating.
[T]he FBI has disclaimed responsibility for accuracy, stating that “[t]he candidate list is an investigative lead not an identification."

Because the system is designed to provide a ranked list of candidates, the FBI states NGI never actually makes a “positive identification,” and “therefore, there is no false positive rate.”
The FBI generates a "top 50 candidates" report from searches, which it claims is only an "investigative tool," not a starting point for any investigation. That's some remarkably devious dissembling. The agency won't ever be wrong because it's not even trying to be right!

So, how exactly is this supposed to aid in investigations, if the best results are a grab bag of low-res photos dredged from a variety of sources, some of them non-criminal? The FBI doesn't say. All it says is that the "true candidate" will show up on the "top 50 list" 85% of the time -- and then only if the "true candidate" is already present in the database. The EFF asks the question the FBI hasn't asked itself, or at least hasn't shown any interest in answering honestly.
It is unclear what happens when the “true candidate” does not exist in the gallery—does NGI still return possible matches? Could those people then be subject to criminal investigation for no other reason than that a computer thought their face was mathematically similar to a suspect’s?
The FBI's "answer" shifts all the accountability to other law enforcement agencies.
[T]he Bureau notes that because “this is an investigative search and caveats will be prevalent on the return detailing that the [non-FBI] agency is responsible for determining the identity of the subject, there should be NO legal issues.”
The FBI, which hasn't updated its privacy protections in a half-decade, which knows that a majority of the photos in its database have a resolution only slightly above "useless" and which sees no problem with throwing photos of criminals and non-criminals into the same database, still has yet to see any significant pushback on its NGI expansion from anyone tasked with overseeing the agency. The fact that these documents were forced free via a FOIA lawsuit shows the FBI has no interest in sharing this info with the public. As for our representatives -- they either don't know or don't care, neither of which should make the represented happy.

This program has some very serious issues, and it's only going to get worse unless someone outside the FBI intervenes. It's obvious from its caveat emptor-esque "policy" ("not our fault if you arrest the wrong pixelated suspect") governing law enforcement's use of the intermingled good guy/bad guy database that it has no interest in policing itself.

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Posted on Techdirt - 15 April 2014 @ 8:34am

Dianne Feinstein Asks DOJ To Investigate Leak Of Torture Report Summary To McClatchy News Service

from the because-only-Senate-staffers-are-allowed-to-access-unauthorized-documents dept

Sen. Feinstein seemed incredibly outraged that her office was spied on by the CIA in its efforts to keep a torture report under wraps. This was noted with some attendant irony, given Feinstein's boisterous support of the NSA's surveillance efforts.

Now, she's stepped into irony again, opening an investigation of McClatchy News for leaking a condensed, bullet-points-only summation of the findings hidden within the still-unreleased 6,600-page "torture report."

The Senate Intelligence Committee has opened an investigation into how McClatchy obtained the classified conclusions of a report into the CIA’s use of waterboarding and other harsh interrogation tactics, the panel’s chairwoman said Friday.

Sen. Dianne Feinstein, D-Calif., said she was also referring the case to the Justice Department for investigation.

“If someone distributed any part of this classified report, they broke the law and should be prosecuted,” Feinstein said in a prepared statement. “The committee is investigating this unauthorized disclosure and I intend to refer the matter to the Department of Justice.”
Unauthorized disclosure, maybe. But it's looking more and more like the only way Americans are ever going to see the inside of the infamous report is via unauthorized channels, what with the CIA asking for redaction privileges. This is the same Senator who fought the CIA over control of this report, only now she wants to control how the information is fed to the public.

The investigation of the CIA wasn't performed just because Washington had money to waste. Supposedly this was done in the public interest, even if almost everyone involved has done as much as they can to keep the information out of the public's hands. It's the kind of government no one wants: one that internalizes its investigative efforts and withholds the findings. The public is frequently treated like an unwanted side effect of governing. "Shut up," Feinstein explained, "or we'll make you regret ever speaking up."

Disappointing, yes. But worse, it's predictable. McClatchy isn't happy.
“We are disappointed that Sen. Feinstein plans to seek a Justice Department investigation of our journalism,” said James Asher, McClatchy’s Washington bureau chief. “We believe that Americans need to know what the CIA might have done to detainees and who is responsible for any questionable practices, which is why we have vigorously covered this story.”
Asher is right about the public knowing, which is ostensibly the endpoint of investigations like these. But now that it's all been compiled, representatives are (somewhat inadvertently) joining forces with the same agency they decried and throwing as much dirt as they can over any exposure. There's a slim chance that much of the 480-page "executive summary" will survive the rounds of redactions headed its way. For McClatchy to release a 2-page summary is a drop in bucket compared to the voluminous whole.

The DOJ will now (possibly) start searching for yet another whistleblower, one who felt the refusal to discuss the contents beyond vague generalities was an intellectually dishonest move by those heading the investigation. But it's even more wrongheaded for Feinstein to request an investigation into this leaked document, only a few months removed from the CIA asking the DOJ to investigate Feinstein's staffers for their "unauthorized removal" of documents. It's apparently OK to take "unauthorized" documents if you're a Senator, but not so much if you're a journalist.

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Posted on Techdirt - 15 April 2014 @ 12:15am

Judicial Branch Finally Acting As A Check Against Government Overreach

from the the-government's-been-skating-for-far-too-long dept

At long last, there finally seems to be a recognition by members of the judicial branch that they are, in fact, there to provide checks and balances against government overreach. We've already covered the recent orders by Magistrate Judge John Facciola, who has twice sent the government back to fix its overly broad warrant requests seeking access to email accounts and cell phone content. (This is tempered somewhat by another Facciola decision, which declared the law enforcement agency in question didn't need a search warrant for a supposedly "abandoned" phone.) Facciola isn't the only judge pushing back against the government's vague warrant requests, however.

In the past year, U.S. magistrate judges John Facciola in Washington, D.C., and David Waxse in Kansas City, Kan., have rejected or modified a number of applications for warrants to search people's emails and other electronic communications at Internet firms such as Google Inc. and Yahoo Inc.

The rulings go against the grain of a federal judiciary that has generally approved them, according to current and former law-enforcement officials. They also come against the backdrop of a legal and political debate over the scope of government surveillance that has raged since the National Security Agency's bulk collection of phone records was revealed last summer.

At issue is the Justice Department's two-step process of obtaining all emails and other electronic information in the accounts of a person under investigation, and then using names and keywords to sift through it in hopes of finding evidence of wrongdoing.

The judges have ruled the government needs to refine its requests to comply with the Fourth Amendment, which protects against unreasonable searches.
This has been the government's process for years: obtain everything and keep whatever is deemed "relevant" to the case. Both of these judges appear to realize that they are the last line of Fourth Amendment defense between the government and the public. Presumably, the Snowden leaks have played a part in this altered mindset. As both judges have pointed out in their orders, what the government has routinely sought is unbounded access to communications via unconstitutional warrants.

These two have suggested an alternate route, if the government can't manage to operate within the constraints of the Constitution.
Both judges have suggested Internet service providers and other Web firms could do their own searches based on specific guidance from the Justice Department, and turn over only the information that appears relevant to an investigation. They have also proposed systems in which a court-appointed official or others could perform the initial search, providing a buffer between investigators and bulk data.
Of course, the government thinks these are terrible ideas.
"I don't think ISPs or email providers have the institutional competence to conduct the searches of their customers for evidence of crimes," said Neil MacBride, a former U.S. attorney in Virginia who described the magistrate judges' rulings as "outliers."
Maybe. Maybe not. But it's clear the government is no better than the private sector at performing targeted searches. Instead, it simply demands everything and expects to be trusted to only take a look at what is pertinent. Despite the fact that the government routinely asks (or rather, expects) the judicial branch, along with those defending the accused, to simply trust it with petabytes of someone's personal data, it seems completely unwilling to trust a private company with fulfilling searches for relevant data on its behalf.

The days of the government simply saying "it's complicated" and running broad warrant requests past technically-incompetent judges might finally be numbered.
Judge Waxse said he believed more people would come around to his view if they better understood recent technological advances and how service providers operate. "What Facciola and I are saying is, use what is now developed, and you can comply with the Fourth Amendment," he said. "There are too many lawyers and judges who don't have a clear grasp of how it all works."
This is also part of the problem. Far too often, technically-ignorant judges have credulously accepted the government's arguments because they don't have the knowledge to challenge these assertions. They could seek the input of those who can parse the technological demands, but rather than do so, this crucial part of the system of checks and balances has simply allowed the government to portray its circumvention of the Fourth Amendment as unavoidable.

Following the revelations of the last several months, including documents showing the NSA misrepresented its bulk records collections for nearly three years straight, the government has been shown it cannot be trusted with unlimited access to people's data and content. Hopefully, this pushback from the judicial branch will become the new standard.

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Posted on Techdirt - 14 April 2014 @ 12:03pm

Bullied Student Records Bullies, Gets Threatened With Felony Charges For Violating Wiretapping Law

from the hammers-all-the-way-down dept

Here comes another story highlighting the danger of schools "outsourcing" their disciplinary problems to law enforcement. As we've stated before, this does nothing more than turn routine misconduct into criminal behavior, which is a great way to derail a student's future.

A Pennsylvania teen, who claimed to have been bullied constantly (and ignored by school administration), made an audio recording of his tormentors using a school-supplied iPad. He brought this to the school's attention, which duly responded by calling the cops… to have him arrested for violating Pennsylvania's wiretapping law. (h/t to Techdirt reader btr1701)

[The student's mother, Shea] Love says that upon fielding her complaint, Principal Scott Milburn called South Fayette Township police Lieutenant Robert Kurta to the school to interrogate her son in the presence of Associate Principal Aaron Skrbin and Dean of Students Joseph Silhanek. The defendant testified before Judge McGraw-Desmet that he was forced to play the audio for the group and then delete it. Love says by the time she arrived at the school, her son was surrounded by school officials and the police officer and was visibly distraught. She says Milburn defended the teacher's response to the classroom disturbance.
The administration, rather than consider targeting the recorded bullies, instead called the cops believing (on advice from district lawyers, no less) that they had a felon in their office.
Kurta testified before the magistrate that Milburn requested his presence at the school on February 12 at 8:20 a.m. The officer said, “He believed he had a wiretapping incident.” Upon his arrival, Kurta said Milburn advised him that Silhanek fielded a call that morning from Love notifying him “that she planted a recording device in her son’s backpack to record the activities in one of his classes.” According to Kurta’s testimony, after Milburn consulted with the school district’s attorney, he advised reporting the incident to the police and treating it as a crime.
As Scott Greenfield points out, calling a cop in to handle a school disciplinary problem doesn't leave the officer with many choices.
At that moment, it was certainly within Lt. Kurta’s ability to pull the principal aside and tell him, “hey, you scared the crap out of the kid, which should do the job. You realize that this isn’t a crime of any sort, and so I’m just going to back away slowly, not embarrass you for bringing me here to waste my time, and you can go back to doing whatever it is you do in this big building. Have a nice day.”
That's one option. But as these things go, that's rarely, if ever, the option chosen. The officer, having been summoned, needed to find something to charge the bullied student with.
Kurta said, “After I left the school, I wasn’t sure what charge to file so I contacted the district attorney’s office. This would fall under a wiretapping violation, which is a felony.” He later answered as to why he thought the disorderly conduct charge applied to this case by saying, “Because his (the student’s) actions — he engaged in actions which served no legitimate purpose.” He then read the statute as, “Creates a hazardous or physically offensive condition by acts which serve no legitimate purpose.”
Because capturing evidence of bullying "serves no legitimate purpose," apparently.

As Greenfield puts it, the officer was a hammer. Therefore, the bullied student must be a nail. This brought the student in front of yet another authority who could finally apply some common sense to the situation -- the magistrate judge. But that was not to be. The judge dragged in her own faith in the malfunctioning system as justification for nailing the student for disorderly conduct. In fact, Judge Maureen McGraw made her statement in defense of the school before the student could make his statement.
“Normally, if there is — I certainly have a big problem with any kind of bullying at school. But normally, you know, I would expect a parent would let the school know about it, because it’s not tolerated. I know that, and that you guys [school administrators] would handle that, you know [...] Because it’s not tolerated, but you need to go through — let the school handle it. And I know from experience with South Fayette School that, you know, it always is. And if there is a problem and it continues, then it is usually brought in front of me.”
Greenfield again, pointing out just how wrong the judge's statement is:
While this may not be a unique reaction, whether with school officials or police, it is decidedly flagrant. Where a judge’s function is so fundamentally undermined from the outset, that an accuser is so virtuous that it cannot be wrong, the prejudice can neither be ignored nor excused. The die was cast by dint of the school having “brought [the student] in front of” the judge.
The last part of the "unholy trinity" was the final hammer, coming down on the "nail" placed in front of it by school administrators (who can do no wrong) and a police officer (who is beyond fault). Guilty as charged.

The judge's statement is particularly egregious, considering the situation in front of her. First off, the judge's faith in the school's ability to combat bullying is obviously misplaced. She saw no fault in her reasoning and, using that as her platform for the rest of her statement, she went on to act on her own information and beliefs.

But further than appealing to her own authority, the judge stated how these things should be handled, apparently completely unaware (or unwilling to recognize) that following the prescribed steps is what resulted in a bullied child standing in front of her, facing a BS "disorderly conduct" charge.

The judge said that bullying victims should first bring the problem to their parents -- which this student did. Next, she says the parents should let the school administrators know -- which she did. Finally, she says, let the school handle it -- which it did. And now, the student faces her -- having followed all the proper steps -- charged with disorderly conduct. And yet, despite this, she asserts that the system works and, indeed, has always worked in regards to this particular school. Logical fallacy piled on top of logical fallacy until a bullied kid is charged with a crime while his recorded tormentors remain unpunished.

The judge refused to believe that any one of these esteemed administrators could have screwed up, failing to believe that they, too, are human and as prone to failure as anyone else. If they've never screwed up in the past, all future misdeeds are forgiven (and forgotten) in advance. This is the sort of rationale that should never be deployed by a supposedly impartial overseer like a judge, because it's just as wrong as assuming every authority figure involved here is an irredeemable monster.
[P]eople are not so one-dimensional that they are horrible in every instance, to every person, under every circumstances. The cop who beats a man one day may have saved a kitten in a tree the day before.
Maybe the school has had an admirable track record on curtailing bullying. Maybe Officer Kurta doesn't always seek to find something to charge a person with when put in this position. But everyone here came together to make a string of regrettable decisions that led to a bullied student being punished, rather than the aggressors. Maybe the future holds better outcomes, but for right now, everyone involved had a chance to stop this from reaching this illogical conclusion, but no one -- from the administrators to their legal team to local law enforcement to the presiding judge -- was interested in reining this in. In the end, it looks as though an innate desire to punish someone was satisfied every step of the way.

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Posted on Techdirt - 14 April 2014 @ 3:33am

Government Forces Free Press Advocacy Group To File Its Amicus Brief In NSL Case Under Seal

from the now-they're-OUR-secrets dept

Throw the words "national security" around frequently enough and you might start to believe it actually means something. The EFF's battle against the government's use of National Security Letters (NSLs) is being fought mostly under seal (the EFF can't even reveal whom its clients are). To be sure, there is sensitive material being discussed, but the government's paranoia has extended so far as to seal documents written by entities with no access to classified or sensitive material. (h/t to Trevor Timm)

The Reporters Committee for the Freedom of the Press (RCFP) recently filed an amicus brief in this case on the EFF's behalf, arguing that the non-disclosure demands of NSLs are a form of prior restraint, something that is clearly unconstitutional. It also notes the chilling effect this has had on journalism.

The information at issue is not just important for its own sake, but because, as recent reports have shown, fear of government surveillance has deterred confidential sources from speaking to journalists about a wide range of topics. The brief emphasizes that more knowledge about the NSL program can give sources and reporters confidence that their communications are confidential.
The government's desire for secrecy extends even further than the NSLs' gag orders. This secrecy has now spilled over into what would normally be the public's domain.
The Electronic Frontier Foundation’s challenge involves three cases, all of which are under seal. The Reporters Committee was required to file its briefs under seal, but submitted a motion to the Ninth Circuit asking it to unseal its brief.
Whatever the government's stated reasons for requiring the brief to be filed under seal, it's clearly wrong.
“The Court cannot constitutionally seal this brief,” the Reporters Committee wrote in the motion. “Amici have had no access to confidential materials in the case; the brief only includes information that is already public; and there are clear public policy reasons for requiring that the materials be open.”
The government doesn't know when to quit. It's sealed brief requirement makes about as much sense as government agencies' initial reactions to the first few leaked NSA documents -- instructing their employees to not look at publicly-available information because the documents were supposedly still "classified." As if that designation made any sense under the circumstances.

This is the same sort of reasoning: NSLs are super-secret and therefore, anything related to these should be withheld from the public, even if the brief contains nothing more than publicly-available information.

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Posted on Techdirt - 11 April 2014 @ 7:39pm

Supreme Court May Take A Shot At Defining The Point At Which Protected Speech Becomes An Unprotectable 'Threat'

from the yes,-there's-a-lousy,-dark-humored-joke-in-that-headline dept

The Supreme Court may take up the question of whether or not communicated threats are still threats even if the person making the statement doesn't necessarily have the ability or the intent to carry them out. In short, at what point does it turn from protectable speech into something the First Amendment won't cover?

The latest case involving the legal parameters of online speech before the justices concerns a Pennsylvania man sentenced to 50 months in prison after being convicted on four counts of the interstate communication of threats. Defendant Anthony Elonis' 2010 Facebook rant concerned attacks on an elementary school, his estranged wife, and even law enforcement.

"That's it, I've had about enough/ I'm checking out and making a name for myself/ Enough elementary schools in a ten mile radius/ to initiate the most heinous school shooting ever imagined/ and hell hath no fury like a crazy man in a Kindergarten class/ the only question is … which one?" read one of Elonis' posts.
This is a subject we've discussed several times previously. People (mainly teens) have made statements and comments via social media that have veered close to being threats, but once investigated, turn out to be nothing more than stupid kids being stupid. Prosecutors and law enforcement have made some questionable decisions in their attempts to portray youthful indiscretions as the words of would-be killers, such as withholding the surrounding context or willfully misreading the words themselves.

Elonis' case is a bit more complicated. For one, Elonis is 30 years old. While growing older doesn't necessarily make you immune from stupidity, the expectations are a bit higher in terms of online discourse. It's a little harder to claim you're running on the same high-octane concoction of hormones and blood displacement that teenage boys are. Not that all youthful indiscretions are excusable, but given that age group's tendency towards disproportionate drama in all things, it does make it more understandable.

In addition, Elonis' statements were directed at a variety of targets, any of which would seem to be a viable recipient for his anger. Not only did Elonis mention shooting up a school (specifically a kindergarten), but he also apparently had dire "plans" for his wife and local law enforcement. Again, the post-Sandy Hook law enforcement/judicial mentality further clouds the issue, raising the question that if Elonis had left out the part about the school shooting, would he still be facing 30 months in prison? (Of course, threatening law enforcement tends to create just as much of a legal mess, usually one far worse than simply threatening your estranged spouse does…)

But the odds are fairly long that the Supreme Court will find the ability to carry out the threat matters as much as the perception of everyone else but the person making the statement.
Only one federal appeals court has sided with Elonis' contention that the authorities must prove that the person who made the threat actually meant to carry it out. Eight other circuit courts of appeal, however, have ruled that the standard is whether a "reasonable person" would conclude the threat was real.
This long shot is also reliant on another long shot: that the administration will support this appeal. A similar case involving an Iraq War vet was greeted by the White House with a written petition asking the Supreme Court to reject the case. These two obstacles make it unlikely that the judicial system will start treating so-called "threats" any differently than they have in the past. And it's a very long past. David Kravets at Ars Technica points out that the statute being applied to these cases originated in 1932.

There are legitimate threats and these are rightly not treated as free speech. But there are others that are treated as legitimate threats even when there's no evidence the person uttering them has the ability, much less the intention to back up their unfortunate statements. Applying a 1932 statute to the wide open discourse platform that is the internet is doing little more than putting loudmouths and idiots in jail. Those who mean actual harm to others generally don't enlighten their future targets via Twitter, Facebook and forum posts.

By all means, potential threats should be investigated, but the courts need to come to the realization that these statements cannot be entirely robbed of their context (including intent and ability) and presented "as is" to the hypothetical "reasonable person." Reasonable people are completely capable of understanding that not every hurtful word can actually hurt someone, nor do they believe every "threat" is the sign of impending danger. Not only should the statute be reconsidered, but so should the court's "reasonable person" ideal.

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Posted on Techdirt - 11 April 2014 @ 5:31pm

Los Angeles Cops Found To Be Tampering With Mandated Recording Devices

from the all-the-power,-zero-accountability dept

Who watches the watchers? Well, when you're the Los Angeles Police Department, you watch yourself. And when that kind of watching seems to be inhibiting, you just screw with the "watching" equipment. (via Ars Technica)

Los Angeles police officers tampered with voice recording equipment in dozens of patrol cars in an effort to avoid being monitored while on duty, according to records and interviews.

An inspection by Los Angeles Police Department investigators found about half of the estimated 80 cars in one South L.A. patrol division were missing antennas, which help capture what officers say in the field. The antennas in at least 10 more cars in nearby divisions had also been removed.
These antennas, linked to both in-car camera systems and officers' body mics, helped increase the recording range. Removing the antennas didn't completely prevent recordings, but it did make it harder to pick up officers' voices once they entered buildings or ventured further away from the receivers located in the vehicles. According to the manufacturer, the antenna boosts the effective range of the body-worn transmitters by roughly a third.

When you're watching yourself (something prompted by a decade-long DOJ investigation of the LAPD), you have this luxury. No cop's going to turn in another cop who removes an antenna or otherwise tampers with the department-imposed oversight measures. A whole lot of time elapsed between when the tampering was discovered and when it was finally brought to the attention of those charged with monitoring the monitoring.
Members of the Police Commission, which oversees the department, were not briefed about the problem until months later. In interviews with The Times, some commissioners said they were alarmed by the officers' attempts to conceal what occurred in the field, as well as the failure of department officials to come forward when the problem first came to light.

"On an issue like this, we need to be brought in right away," commission President Steve Soboroff said. "This equipment is for the protection of the public and of the officers. To have people who don't like the rules to take it upon themselves to do something like this is very troubling."
This is very troubling, and while it's nice of the Police Commission to admit that fact, this tampering points to the officers' underlying resentment of nearly any method of monitoring or control. Many police officers don't like being recorded in public by citizens, so it stands to reason they don't much care for being recorded by the department itself. Hence, antennas go missing.

Those who are supposed to be making sure the police officers aren't becoming a law unto themselves seem to have little interest in attacking the mindset that leads to this sort of behavior.
"We took the situation very seriously. But because the chances of determining who was responsible was so low we elected to … move on," [LAPD Commander Andrew] Smith said, adding that it cost the department about $1,500 to replace all the antennas.
Too hard, won't try. That's the standard being applied to the LAPD. Instead of making an effort, band aids are being applied. Officers are now supposed to sign off that the antennas are in place at the beginning and end of their shift. This leaves a gaping hole in coverage (otherwise known as the shift itself) should officers decide they'd rather not be recorded. This hole has received its own band aid.
To guard against officers removing the antennas during their shifts, Tingirides said he requires patrol supervisors to make unannounced checks on cars.
Great, but considering there are many more officers than supervisors, and considering the fact that it took months before the missing antennas were brought to the attention of the Police Commission, who really believes this is going to stop officers from disabling antennas during work hours?

Oh, Commander Smith believes.
Since the new protocols went into place, only one antenna has been found missing, Smith said.
Well, that's the sort of result you can expect from self-reporting. Sure, a few cops may get a verbal handslap from a supervisor if they happen to come across a missing antenna, but it's a safe bet these supervisors aren't any happier about their men and women being recorded while on duty. Because if they did care, it never would have gotten to the point where nearly half of the antennas in a single division went missing.

With these cops being charged with keeping department-issued antennas present and accounted for, some have opted to go a different route to avoid being recorded.
Last month, the department conducted a follow-up audit and found that dozens of the transmitters worn by officers in Southeast Division were missing or damaged.
This time there's actually an investigation being opened, months after the original antenna abuse was uncovered by an internal audit (but hidden from the Police Commission). Judging from what's happened previously, there's very little reason to believe this will lead to the ouster of bad cops who don't like accountability. A few scapegoats may be offered up to calm both the public and department oversight, but if a ten-year investigation by the DOJ failed to bring about the sort of systemic change needed, it's highly unlikely an internal investigation will result in anything better.

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Posted on Techdirt - 11 April 2014 @ 2:33pm

DOJ Issues Scathing Review Of Albuquerque Police Department' Use Of Force, Tempers It By Prioritizing Officer Safety

from the if-you-don't-like-the-risks,-don't-take-the-job dept

The Albuquerque, New Mexico police department has been a mess for quite some time now. Recently, it has gained national attention for two seemingly unjustified shootings of New Mexico residents. This is in addition to the 37 people the police force has shot since 2010, with 23 confirmed kills. As Ed Krayewski at Reason points out, the APD has shot more people than the NYPD, despite policing a city sixteen times smaller.

The Department of Justice was already investigating the department before the two latest shootings. The first involved a homeless person "illegally" camping, an infraction apparently punishable by death in New Mexico. The officers claimed the man came at them with knives, but video clearly shows him surrendering and attempting to walk down to them before being hit with a concussion grenade, followed shortly by several bullets. As for the danger poised by the knives he was carrying, the 20-30 feet between him and the officers at the beginning of the video (not to mention the difference in altitude) makes this much less of a threat than the reports indicated.

While the city of Albuquerque was still digesting the news of this apparently unjustified shooting, the APD shot another person. The police claimed he fired at them (and they did recover a gun at the scene) but video shot by an onlooker appears to show the man holding something (gun or cellphone) to his own head before shots ring out and he drops to the ground.

These shootings sparked a series of increasingly confrontational protests against the police, as well as drawing the attention of Anonymous, which took down the APD website.

The release of the DOJ's report is certainly well-timed, if nothing else. Those who have seen the entire thing call it "scathing." The prepared remarks from the DOJ's Jocelyn Samuels are certainly damning enough.
Officers use deadly force in an unconstitutional manner. Our investigation looked at officer-involved shootings that resulted in fatalities from 2009 to 2012 and found that a majority of them were unreasonable and violated the Fourth Amendment to the United States Constitution. We found that officers used deadly force against people who did not pose an immediate threat of death or serious harm to officers or others, and against people who posed a threat only to themselves. In fact, sometimes it was the conduct of the officers themselves that heightened the danger and escalated the need to use force.

We found that officers use other types of less lethal force, especially electronic control weapons, or Tasers, in an unconstitutional manner. Our investigation looked beyond just the use of deadly force and found a significant number of improper uses of force in our review of over 200 force reports generated between 2009 and early 2013. We found that officers routinely fired their Tasers, which discharge 50,000 volts of electricity, against people who were passively resisting and non-threatening or who were unable to comply with orders due to their mental state. Indeed, we found that encounters between police officers and persons with mental illness or in crisis too frequently resulted in a use of force or a higher level of force than necessary.
The remarks run on for much longer, noting the steps that will be taken to put the APD back in compliance with the Constitution and temper its officers' tendency to apply as much force as possible in a majority of situations. However, Samuels also takes the time to pat the heads of a police force so out of control the government was forced to step in.
To the women and men of the Albuquerque Police Department, we know your work is difficult and that you face dangers, known and unknown, when you hit the streets every day to keep this city safe. We recognize that many of you are dedicated public servants who wear your badge with distinction. We do not intend our findings today to mean that you must needlessly risk your lives or safety. You must come home safely to your family and loved ones.
This is what Scott Greenfield refers to as the "First Rule of Policing:" make it home safe. Even the DOJ follows it, apparently. But this should be a goal, not a priority. The "dedicated officers" know they're putting themselves in a dangerous position by taking the job. This doesn't give them permission to do whatever it takes to save their own lives.

Firemen don't just walk away from a fire if it looks life-threatening. Soldiers aren't told they can indiscriminately open fire if things feel a bit sketchy. Airline pilots aren't encouraged to jettison planes full of people (or over populated areas) in order to assure they "come home safely." Any other person taking a job that's potentially life-threatening assumes the risks. Cops somehow don't. And they use this "rule" as a justification for swift, thoughtless reactions that result in teens carrying Wii controllers getting shot and homeless schizophrenics being beaten to death.

By adding this disclaimer, Samuels partially absolves the APD of all of its wrongdoing. "You did what you had to do to survive." That attitude isn't going to fix anything and as long as police officers are encouraged to view their own safety as paramount, excessive force will continue to be applied.

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Posted on Techdirt - 11 April 2014 @ 1:29pm

Journalists Sue Government After Military Security Seizes Cameras And Deletes Photos Of Publicly-Visible Structures

from the abusive-powers-gorging-on-self-induced-paranoia dept

Photography is the new "driving while black." Not that the original "driving while black" has actually vanished, what with New York City making "walking while black" the equivalent of reasonable suspicion, but now people of all races, even those normally somewhat immune to harassment, can join in on the "fun" of low-level oppression.

Two members of the Toledo (OH) Blade found themselves being screwed with by military security while taking photographs of stuff in plain sight. (via Poynter)

Mr. Linkhorn and Ms. Fraser were in Lima covering a Ford Motor Co. news conference at the automaker’s plant there. Afterward, they went to shoot photos of businesses in the area for future use, including the tank plant, which is also known as the Joint Systems Manufacturing Center.

The reporters were at the entry portions of the plant, in an area where no fence or gate restricted access, according to the complaint. They did not pass a guard hut, which is about 30 feet from Buckeye Road.
The Lima, OH tank plant is well known and has been photographed before. The company makes no secret about what it manufactures, having placed this right in front of its plant.

But because all things, even photography of visible structures, inevitably lead to terrorism, security at the Lima plant decided to step in and stop the two Blade employees from gathering any more "intel."
Blade reporter Tyrel Linkhorn and photographer Jetta Fraser were detained March 28 by military security outside the plant and had cameras confiscated and pictures deleted.
This alone would step outside the boundaries set by the Constitution, but the security officers went even further, harassing the photographer by making various comments about her (perceived) lack of femininity, including referring to her using masculine pronouns and offering to "go under her bra."

Now, because those in charge of "protecting" the plant from photography of visible "assets" were unable to restrain themselves, a long list of names linked to the military contractor have been named in a civil rights lawsuit.
The lawsuit claims Ms. Fraser and Mr. Linkhorn's First, Fourth, and Fifth Amendment rights were deprived, as were their rights under the First Amendment Privacy Protection Act.

"At all material times, Plaintiffs Fraser and Linkhorn were present in places that were open to the public and in which Plaintiffs had a lawful right to be," the lawsuit states. "At all material times, Plaintiffs Fraser and Linkhorn were engaged in fully lawful and constitutionally protected conduct, observing and photographing subjects that were and are open to public view and that Plaintiffs had full legal and constitutional rights to observe and photograph."
As is noted in the lawsuit, everything photographed could be seen from a public road. You can see satellite photography of the plant via Google Maps, not to mention closer looks via Street View. None of this has been redacted by government request. Details on buildings, including interior structures, are listed in a 1984 "Historic American Engineering Record" produced and made public by the contractor itself. Much of what's contained is now outdated, but what's included in this public report was current as of 1980, four years prior to its release.

An image search for "Lima Army Tank Plant" brings up a host of current photos, many of which show the inside of the building, something that would be vastly more sensitive than anything obtained by a photographer located outside the boundaries of the plant itself.

Despite all of this info being readily available, plant security allegedly named the following as the impetus for its seizure of the camera and deletion of photos.
Ms. Fraser said that an officer told her that taking pictures of the plant’s power supply that is visible from the street raised the “suspicion of terrorism.”
Much like the DHS and its useless Fusion Centers, everyone in the military-industrial complex (along with the intelligence community in general) is buying into the lie that photographing visible structures is "terrorism." If these publicly-viewable buildings pose so much of a threat simply by being observed, maybe security officers should stop harassing photographers and throw a few tarps over the sensitive structures or something.

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Posted on Techdirt - 11 April 2014 @ 10:36am

Midwestern Town Of 7,000 Approves Military Surplus Armored Personnel Carrier For Its 12-Member Police Force

from the officer-safety-INTENSIFIES dept

The US government's promise to give everyone affordable healthcare coverage and an armored vehicle in every law enforcement agency's garage continues to come to fruition. Sure, the healthcare thing may have hit multiple technical snags during rollout, but the assault-rifles-and-assault-vehicles part is swiftly turning every police chief and sheriff's domain into Kabul Lite™.

The latest recipient of a free MRAP (Mine Resistant Ambush Protected vehicle) is none other than Washington, Iowa, a town of 7,000 residents and a police force of 12.

Tuesday night, in a four to one decision, the Washington City Council approved Police Chief Greg Goodman's request for a "demilitarized" MRAP or Mine Resistant Ambush Protected troop transport...

MRAPs typically cost about $500,000. [Another article puts the prices at $733,000.] Washington Police are getting theirs for free under a U.S. Defense Department program that gives surplus military equipment to law enforcement. Washington Police said the only cost will be the transportation fee to bring vehicle up from Texas.
Nothing like a free armored personnel carrier, just the sort of thing a bustling metropolis of 7,000 needs, at least according to the police chief.
Chief Goodman calls the MRAP a big win for his officers’ safety.
I would think so, considering he can probably fit his entire police force into it. Goodman envisions it rolling up at a local school or workplace in the unlikely event that an "active shooter" situation develops. Not only that, but Chief Goodman apparently feels his department can no longer afford to be without this sort of protection based, again, on another outlying incident.
The chief said he saw the need for an MRAP in 2011, when Keokuk County Sgt. Eric Stein was shot and killed by a gunman. Goodman believes the armored vehicle might have allowed police to approach the home in safety from gunfire and use non-lethal means to subdue the shooter.
Eric Stein was shot during a four-hour standoff with a resident of Sigourney, Iowa, home to a little over 2,000 Iowans. Goodman seems to believe this sort of threat is persistent (even in Washington, Iowa), despite the fact that Stein became only the second peace officer killed in Iowa in nearly thirty years (September 1985).

But Washington now has an MRAP to deal with its crime "problem," which include three murders since 2001. Oddly, the grant money isn't going towards outfitting the town's 7,000 citizens with bulletproof vests, despite it apparently being at least three times as dangerous to be a member of the general public.

Robert Shellmyer, the lone "no" vote on the city council, raises a valid question about the "safety" the MRAP's acquisition supposedly brings with it.
"How do we know, having a six-wheel armored vehicle, it's going to be on the site when the bullet's shot that's going to do the injury?" Shellmyer said.
That's it. You don't know. So to be safe, you take it everywhere. The MRAP will likely be deployed to handle any situation where officers believe they might encounter resistance, which will turn every banal warrant service into a quasi-military operation. You don't get something like this and not use it. Chief Goodman says it will be "rarely used," but plans are already in place to contact other local law enforcement agencies to spread the MRAP around and, in the process, have these entities contribute to the upkeep.

Many people are wary of militarizing police forces, a number which includes a vast amount of law-abiding citizens. The government, however, seems perfectly willing to make law enforcement agencies virtually indistinguishable from the armed forces by giving away military guns, equipment and vehicles to any entity that's willing to check the box next to "active shooter" (or "terrorism") on the request form.

The vehicles and weaponry will be put into use frequently, contrary to the assertions of small town law enforcement officials, and this escalation -- during a time when crime rates continue to fall -- will push these same officials to misrepresent and exaggerate the dangers they face in order to keep playing their martial law dress-up game.

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Posted on Techdirt - 11 April 2014 @ 7:45am

NY Prosecutor: Annoying Someone Is A Criminal Act, Especially If It's In Writing

from the because-'on-a-computer' dept

Some very interesting claims arose from oral arguments related to a case that has been kicked around the court system for a couple of years now. The case is People v. Golb, one that arose out of an extended disagreement between two college professors (Norman Golb of the University of Chicago and Lawrence Schiffman of NYU) over the origins of the Dead Sea Scrolls.

One thing led to another… which then (inexplicably) led to Norman Golb's son, Raphael, creating more than 50 online aliases to create a ground swell of support for his father's views… which then (even more inexplicably) led to Raphael Golb impersonating Lawrence Schiffman (via email) in order to portray Schiffman as a plagiarist -- using Schiffman's own email address. It is this Golb the People have a problem with.

(Even more inexplicably, this somehow also led to a lawyer claiming to represent Schiffman sending legal threats to bloggers who had covered the case, asserting that their "criminal postings" needed to be taken down immediately. Clifford A Rieders Esq. could not have picked a worst trio of bloggers to send baseless legal threats to: Scott Greenfield of Simple Justice, Eugene Volokh of the Volokh Conspiracy and Ken White of Popehat. Lessons were indubitably learned.)

In January of 2013, the court found that the younger Golb's First Amendment rights had not been violated during his prosecution for impersonating Schiffman in order to discredit him.

The pre-Washington Post version of Volokh Conspiracy covered the relevant parts of the decision.

Defendant’s convictions arise out of his use of emails to impersonate actual persons. Nothing in this prosecution, or in the court’s jury charge, violated defendant’s First Amendment or other constitutional rights… Among other things, defendant sent emails in which one of his father’s rivals purportedly admitted to acts of plagiarism…

Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails. The First Amendment protects the right to criticize another person, but it does not permit anyone to give an intentionally false impression that the source of the message is that other person (see SMJ Group, Inc. v 417 Lafayette Restaurant LLC, 439 F Supp 2d 281 (SD NY 2006]).
This decision is now being appealed, and the Volokh Conspiracy (Beltway Edition) is again on the scene, pointing out how the prosecutor is pushing for a very broad reading of relevant statutes -- something that will be of concern to anyone who might say something offensive via the internet.
I’ve blogged before about the danger of criminal harassment laws, when they are extended beyond offensive speech to one particular unwilling person — the traditional telephone harassment example — and apply instead to speech about a person. (See posts here and here, as well as this law review article, which starts by concrete examples of how such laws have been used.) And the prosecutor’s statement in this argument helps illustrate just how broadly prosecutors can read such laws.
Eugene Volokh quotes part of the oral arguments presented April 2nd. Here's the lead-up and the relevant quote, both of which highlight the prosecutor's (Vincent Rivellese) ridiculous stance, as well as the judges' incredulity at what's being claimed.
CHIEF JUDGE LIPPMAN: Is this aggravated harassment or is this just annoying behavior?
MR. RIVELLESE: Well, it's both, that's for sure. What's the - - -
CHIEF JUDGE LIPPMAN: Well, but is it technically a crime? Can it be in this kind of - - -
CHIEF JUDGE LIPPMAN: Isn't that a little bit overbroad?
CHIEF JUDGE LIPPMAN: No? Go ahead. Why not?
MR. RIVELLESE: This - - - this is the closest argument obviously in the case, but the aggravated harassment involves an intent to harass, annoy or alarm, and it's - - - it's got an intent that's required. It's also got the likelihood of harassing or alarming the recipients or the victims. It's also got - - -
JUDGE SMITH: If I - - - if I ask you a question that I expect to be an annoying question, and is likely to be an annoying question, am I committing a misdemeanor by asking the question?
MR. RIVELLESE: No, because there's no writing. The aggravated harassment - - -
JUDGE SMITH: Oh, but - - - oh, but if I submitted the question in writing, it would be a misdemeanor?
MR. RIVELLESE: Well, if - - - if you conveyed to somebody. So if you e-mailed somebody or you wrote a letter - - -
JUDGE SMITH: Really? Really?
The delineation is obviously foggy if saying something is no crime, but writing it down is. Further on:
JUDGE SMITH: If I e-mail someone an annoying question, I get a year?
MR. RIVELLESE: Well, it has to be likely to annoy, harass, or alarm - - -
CHIEF JUDGE LIPPMAN: So if Judge Smith put what he's asking you now in writing, this is a crime?
MR. RIVELLESE: I'm not annoyed. I'm not annoyed. So I'm fine.
CHIEF JUDGE LIPPMAN: Oh, okay, you're not annoyed. Okay. It might have been mis - - -
JUDGE SMITH: Give me - - - give me time.
MR. RIVELLESE: The proper discussion - - -
JUDGE ABDUS-SALAAM: Counsel, is it that subjective that the person who receives the question has to feel that it's annoying?
MR. RIVELLESE: Well, no, it is - - - it's reasonableness.
JUDGE ABDUS-SALAAM: It has to have an objective right.
So it would appear. Objective but not subjective, but in this case, with the impersonation of another person, Rivellese seems to feel that it's actually more a subjective problem, especially when it's not even the victim who's being directly targeted. And the "intent to annoy and alarm" exception to the First Amendment should be enforced even if the speech is about a person rather than directed at a person.
JUDGE PIGOTT: But as a third - - - you're saying there can be a third-party aggravated harassment.
MR. RIVELLESE: Yes, if still - - - there's still an intended victim.
JUDGE PIGOTT: So if - - - well, that's I - - - you get - - - you get three college kids - - - you get some college kid who write - - - who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim, boyfriend/roommate?
MR. RIVELLESE: Yes, because it's got - - -
MR. RIVELLESE: It meets all the elements. It does not require that the person that you send the communication to is the same person that you intend to harass, annoy and alarm.
This is what alarms Volokh. The narrow targeting of the First Amendment exceptions are being broadly read by prosecutors. This is the sort of expansion -- one that pushes behavior normally subject only to civil actions into criminal territory -- that invariably makes its way into newly-crafted laws targeting online behavior.

Here's what Volokh originally said about the decision that's now being appealed.
Intentionally trying to make others believe that someone did something (write an e-mail) that he did not inflicts specific harm on that other person, whether by harming his reputation or at least by making others think that he believes something that he doesn’t (which will often be civilly actionable under the false light tort). To be sure, that usually leads to civil liability, but nothing in the Court’s decision suggests that criminal liability in such cases is impermissible, especially when the law is limited to relatively clearly identifiable falsehoods, such as falsely claiming to be someone you are not.
That's much more limited than what the prosecutor's arguing. His argument removes the limitations (falsehoods and false impersonation) and suggests that nearly any attempt to harass or annoy someone is a criminal offense. This is on top of his claim that there's a clear delineation between oral and written speech, with the latter being the more "criminal" of the two. It's this sort of broad reading that makes nearly every new cyberbullying/harassment law a handy new tool to criminalize a vast swath of online behavior.

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Posted on Techdirt - 11 April 2014 @ 5:48am

Sen. Coburn Offers To Put An Outdated Agency Out Of Its Misery With His 'Let Me Google That For You' Bill

from the microsoft-now-hastily-composing-angry-response-letters dept

No entity highlights the ridiculous amount of bureaucratic inefficiency and ineptitude of government agencies better than the Government Accountability Office (GAO). Its reports are loaded with the sort of damning evidence that would lead those unfamiliar with how government actually works to assume that heads will be rolling. In reality, the agencies investigated by the GAO soldier on from scathing report to scathing report with little to no sign of improvement.

Tom Coburn, a long-time combatant of government waste and fraud who publishes a yearly report exposing the worst of worst in terms of senseless government spending (the "Wastebook") is now using the GAO's own words to craft a bill targeting the money pit that is the National Technical Information Service (NTIS).

Here's the leadup:

(3) NTIS is tasked with collecting and distributing government-funded scientific, technical, engineering, and business-related information and reports.
(4) GAO found that NTIS sold only 8 percent of the 2,500,000 reports in its collection between 1995 and 2000.
(5) A November 2012 GAO review of NTIS made the following conclusions:

(A) 'Of the reports added to NTIS's repository during fiscal years 1990 through 2011, GAO estimates that approximately 74 percent were readily available from other public sources.'
(B) 'These reports were often available either from the issuing organization's website, the Federal Internet portal ( or from another source located through a web search.'
(C) 'The source that most often had the report [GAO] was searching for was another website located through'
(D) '95 percent of the reports available from sources other than NTIS were available free of charge.'

(6) No Federal agency should use taxpayer dollars to purchase a report from the National Technical Information Service that is available through the Internet for free.
And here's the punchline:

This Act may be cited as the 'Let Me Google That For You Act.'
Someone had fun cranking out this "Short Title."

As the bill points out, it was suggested by the Secretary of Commerce in 1999 that the NTIS would eventually outlive its usefulness. According to the GAO's 2012 findings, that sell-by date was reached more than a decade ago.
NTIS product expenditures exceeded revenues for 10 out of the past 11 fiscal years.
The "Let Me Google That For You" Act calls for the repeal of the 1988 National Technical Information Act and the disbandment of the agency itself, with the redistribution of whichever of its duties are still deemed essential to the Commerce Department.

It's not often you get the chance to watch an extraneous government agency be put down and even rarer still under a snarky, incisive, short title. This is for the best. As we've seen all too frequently, time marches on, swiftly distancing itself from the glacial pace of government innovation.

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Posted on Techdirt - 11 April 2014 @ 3:51am

DOJ Updates FISA Court On Its Bulk Record Data Retention, Glosses Over Earlier Misconduct

from the see-how-GREAT-we-are-at-STUFF! dept

The DOJ, via its Deputy Assistant Attorney General, has sent a memo to FISC Judge Reggie Walton, informing him of just how compliant the agency has been during the last couple of months as conflicting orders over the retention of bulk record data went flying as a result of multiple BR-related lawsuits.

The DOJ, speaking for the NSA and FBI (who actually collect the collections), went from one court to the other (the Northern District Court of California and the FISA Court), trying to figure out whether it would be destroying aged-off data or holding onto it. It was hard to discern which route the DOJ preferred to take, but FISA Judge Walton managed to sniff out the agency's true intentions, calling them out for not only failing to inform the FISA court of standing retention orders but also attempting to talk the involved plaintiffs from passing this information along to the involved courts.

Given these actions, it would appear the DOJ preferred to dump the data rather than have it actually appear in court as evidence. But Judge Walton, along with the district court, prevented that. The DOJ's letter to Judge Walton conveniently glosses over its misconduct, instead portraying the agency as a conscientious party doing the best it could under the circumstances.

The DOJ's letter notes that it managed to restrain itself from destroying any aged-off data while waiting for the conflicting orders to be settled (March 5 - March 12), which means the BR data still has a chance to be used in court. According to the letter, this retained data is being held separately from the rest of the bulk collections, which means it can't be accessed by analysts searching the metadata. Supposedly, the NSA will only be allowed to peek in on the retained data to verify it's all still present and accounted for.

While this sort of hi-gloss portrayal is to be expected from an agency that probably still believes it did nothing wrong, it's rather audacious of the DOJ to attempt to pass this narrative off to the same judge that called it out for misleading the FISA court and attempting to bury plaintiffs' concerns.

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Posted on Techdirt - 11 April 2014 @ 12:02am

German Town Shoots Down Father's Plan To Name His Son 'Wikileaks'

from the leaked-birth-certificate-confirms! dept

One of the great unwritten rules of parenthood is that the right to name your offspring should be treated as a privilege. The temptation is to give the child a "unique" name that sets him or her as far apart for his/her eventual peers as humanly possible, thus living up to the common parental delusion that each child is its own special flower, unlike the millions born before it or after it.

Unfortunately, a "unique" name is often just an unwieldy name, if not simply embarrassing. And the unlucky child has to bear that clumsy moniker until he or she hits the legal paperwork-filing age and changes it to something that won't trigger an inadvertent laugh from college staff and potential employers. The intervening years will pass excruciatingly slowly as the child awkwardly orbits his peers like a gatecrasher at a menage a trois, trying desperately to find somewhere to fit in. This is generally made worse by the "unique" parents, who somehow view intense shunning as more "evidence" of their child's one-in-a-million qualities.

This unwritten rule holds true even if (or especially if) the abusive-by-proxy moniker holds some deep and special meaning to the parent attempting to sabotage their child's future before the ink on the birth certificate is dry.

Hajar Hamalaw wanted to name his son, who was born on March 14th, after the online whistleblowing platform as it “changed the world”, the Passauer Neue Presse reported.

But the 28-year-old failed to get the name past authorities in Passau, Bavaria.
Hamalaw's heart is in the right place, at least in terms of having a decent reason to name his new child "Wikileaks." But first he had to convince local officials, which went just about as well as could be expected from any place where newborns' names get run past local officials.
But Wikileaks did not make it onto the birth certificate. "The registrar said that this was not a first name. He thought it was a series or TV show," said Hamalaw.
Beyond the out-of-touch registrar, there's another rule on the books that keeps Passau parents from saddling their offspring with ridiculous names.
A spokesperson for the town of Passau said the decision by the registry office was based on legal rulings which state a child’s name should not be granted if it could endanger their welfare.
I don't agree that any government entity should keep you from naming your child whatever you want, but if you're going to have a stupid rule like this, at least have one that looks out for the child's best interests. When "Dako" (the "Plan B" name, apparently) hits legal age, he'll have the option to change his name to "Wikileaks" or "Full Metal Havok More Sexy N Intelligent Than Spock And All The Superheroes Combined With Frostnova" if he'd like and no one, not even a person who thinks "Wikileaks" went downhill after its third season, will be able to stop him. But until then, he's got several years of pre- and post-pubescent awkwardness to live through that will have nothing at all to do with his father's love for leaked documents.

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Posted on Techdirt - 10 April 2014 @ 7:19am

Indiana Supreme Court Declares An Officer's Testimony Is More Reliable Than Video Evidence

from the apparently,-LISTENING-is-believing dept

Seeing how often official reports by law enforcement are contradicted by video recordings, you'd think judges would have become a bit more skeptical about the supposed "superiority" of officers' recall powers. But that's apparently not the case, at least not in Indiana, where the state's Supreme Court has ruled that officer memory trumps video recordings.

Videotape evidence can be overruled by the testimony and after-the-fact interpretation of a police officer, the Indiana Supreme Court ruled last week. In a 6 to 1 decision, justices overruled the state Court of Appeals which reviewed dashcam footage of Joanna S. Robinson driving her Chrysler PT Cruiser at around 1am on October 15, 2011 in Elkhart County and found no evidence of a crime.
In the case being discussed, the officer following Robinson's car observed it veering over the fog line twice, which gave him the reasonable suspicion he needed to pull her over. Once pulled over, Robinson blew a .09 BAC (.01 over the legal limit) and volunteered to the officer that she was also in possession of a small amount of marijuana. During her trial, she attempted to have the evidence suppressed on the basis that the officer did not have the reasonable suspicion needed to pull her over.

The Supreme Court reviewed the dashboard cam recording, concluding that while it may have not showed exactly what the officer claimed (or indeed, any solid evidence that Robinson's driving was impaired), it was clearly inferior to the officer's observational skills and experience.
Deputy Claeys, as he drove down County Road 4 on that October night, was observing Robinson’s vehicle through the lens of his experience and expertise. And when Deputy Claeys testified at the suppression hearing, the trial judge heard his testimony—along with the other witness testimony and evidence, including the video—through the lens of his experience and expertise. Ultimately, that experience and expertise led the trial judge to weigh Deputy Claeys’s testimony more heavily than the video evidence, and we decline Robinson’s invitation to substitute our own judgment for that of the trial court and rebalance the scales in her favor.
This conclusion was reached despite Claeys' "superior" observational skills observing things that didn't actually happen.
Deputy Claeys testified “both passenger side tires were over the fog line” and “completely off the roadway” “twice.”
As the single dissenting opinion notes, the previous court found Claeys' recall of the events suspect.
The trial court summarized the evidence presented, observing that “the officer in this case has testified that defendant drove off the roadway on two occasions.” The court further acknowledged that “[i]t is quite possible that the officer’s actual visual observation of the defendant’s vehicle was superior to the video camera in his car.” But the court recognized that the video did not reflect that the vehicle “actually left the roadway” but only that it “veer[ed] on two occasions onto the white fog line.”
Despite this disparity, the trial court still felt that "veering onto the fog line" was enough reasonable suspicion (for a "well-trained officer") to justify a stop. Judge Rucker points out how ridiculous this assumption is.
The Court of Appeals reviewed numerous cases from other jurisdictions as well as prior Indiana precedent, all of which support the proposition that mere “brief contact with the fog line or swerving within a lane”—without more—is ordinarily insufficient to establish reasonable suspicion of impaired driving [...] I agree and would reiterate the observation that “if failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”
Despite the appeals court's conclusions and the deputy's faulty recall, the Indiana Supreme Court agreed with the trial court's finding.
The trial court found, as a matter of fact, that to the extent Deputy Claeys’s testimony conflicted with the video, the former was more reliable than the latter.
While it's certainly true that video itself can be open to the interpretation of its viewers (as is noted in the majority opinion), it's hardly as subjective as a single officer's portrayal of events. What is often depicted as superior instinct and training may actually be nothing more than self-delusion or post facto justification for rights violations. This sets a precedent for Indiana that suggests exculpatory video evidence will be given less weight than the "expert" testimony of law enforcement officers.

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Posted on Techdirt - 10 April 2014 @ 3:15am

Patent Trolls Still Very Busy: These Two 'Innovators' Have Filed 22 Lawsuits Since January Of This Year

from the keeping-lawyers-employed-is-not-a-'good'-or-'service' dept

Here comes another round of lawsuits from non-practicing entities. With patent reform constantly just around the corner, it appears that those seeking to extract money from actual businesses with actual products and services are making a push to get some lawsuits filed before reforms kick in.

Landmark Technology, LLC makes no products and offers no services, something that can easily be surmised by its "address" in Tyler, Texas. It does, however, generate lawsuits and demand letters, most referencing patent 6,289,319: 'Automatic Business and Financial Transaction Processing System.' Or, as the EFF puts it more succinctly: paying with a credit card online.

Landmark Technology is Lawrence Lockwood's latest incarnation. Lockwood pushed this patent through back in 2001, apparently racking up 'tens of thousands of dollars' in costs while doing so. Since that point, he has sued multiple companies for infringing on his patent and extracted several settlements. Many he sued under the name of Pangea IP (PanIP), which was covered here in 2003.

Under this name (originated in 2008), Lockwood has sued multiple companies (Justia lists 79 lawsuits under this name). His latest batch of lawsuits was filed last Friday, naming such diverse entities as Dunkin' Donuts, Abercrombie & Fitch, Caesar's Gaming, Hitachi and Harley-Davidson. His previous batch, filed January 15th, named Louis Vuitton, The Children's Place, Rubbermaid and a handful of others.

Landmark's physical address in Tyler, Texas shares office space with other patent trolls, including Techdev Holdings, Eon Corp. IP Holdings and US Ethernet Innovations. Lockwood's m.o. seems unchanged from a decade ago: send demand letters and follow up with a lawsuit. The America Invents Act may have (mostly) gone into effect in March of last year, but it's had little discernible effect on those who do nothing more than hold onto exploitable patents without ever making use of the "invention."

Like Better Mouse Company, LLC, a company that doesn't seem to exist outside of lawsuits filed in East Texas. Better Mouse Company has filed 10 patent infringement lawsuits in the last 30 days, targeting Mad Catz, AsusTech and Corsair, among others -- all over a patent described as "Apparatus for setting multi-stage displacement resolution of a mouse." The patent was originally issued to SunPlus Technology Co. of Taiwan, but judging from the lawsuit activity, it looks to be in the hands of a patent-exploiting shell company. Bonus: Better Mouse is represented by the law firm of Antonelli, Harrington & Thompson LLP, the same team that represented patent troll Execware in its losing battle against

This ongoing trolling is why entities like the EFF are pushing the Senate to pass its version of the Innovation Act, which sailed through Congress late last year. Although the Act was watered down by lobbying efforts, the Senate has an opportunity to build something stronger before it makes its way to the President. Until then, AIA or not, it still seems to be business as usual for non-practicing entities.

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Posted on Techdirt - 9 April 2014 @ 2:58pm

Fox Accidentally Releases Family Guy Game Early, 'Fixes' This By Issuing YouTube Copyright Claims And Killing Twitch Channels

from the no,-unsuspecting-user,-it-is-YOU-who-have-fucked-up dept

Fix your mistake or make it worse? That's the question facing so many, so often. Let's make it worse, shall we? I mean, that's the way it frequently seems to go. And, why not, let's use that infamous "shut the hell up" multi-tool Copyright as well, so that everyone's respect for the concept continues its irreversible decline.

Touch Arcade reports that Fox screwed up a little with its release of its new Family Guy game. But rather than move on, it decided to become a bully when it didn't immediately get its way.

Earlier today, we assumed FOX soft launched the upcoming Family Guy: The Quest for Stuff. Folks on our forums, as they always do, downloaded the game, and started posting impressions and videos. Instead of embracing this sort of community activity, FOX apparently decided to go totally nuclear, shutting down absolutely everything they could that had to do with the game being posted anywhere.
The "soft launch" was actually a botched delivery. New Zealand users weren't simply getting a headstart on the rest of the world. No, Fox simply pushed the wrong button somewhere and accidentally put the app out there for public consumption. As Eli Hodapp points out, nothing untoward or illegal happened, but the response was completely indistinguishable from that sort of situation.
[K]eep in mind, Family Guy: The Quest for Stuff was fully available for download earlier today. No tricks were needed, nothing was stolen or otherwise pirated. Instead, people with New Zealand App Store accounts were just downloading the game like any of us download these games, direct from the App Store without any other associated drama.
But Fox thought that, despite its misstep, it should still have control of the situation. So, it first asked a user via Twitter to remove his gameplay video from YouTube until "launch day," while admitting the game was availabe due to an error on Fox's part.

This user returned to his YouTube account only to find that Fox had already issued a copyright claim against his video. So, rather than be allowed to comply, the user received a strike against his account. Then, Fox went even further and had his Twitch channel shut down. Completely. As of the time of this writing, his account is still closed, supposedly due to "terms of service violations."

Nice work, Fox. Now instead of people talking about the game, they'll be talking about how the entity holding the IP rights hammered potential fans in order to hold onto the game for another couple of days. And instead of giving one fan a chance to comply with its request, it decided to give him an undeserved YouTube strike and shut down his Twitch channel -- all because Fox failed to handle its own end of the app business. Ridiculous.

(But Fox can't shut everything down. Here's a rather amusing video of the Forbidden Game in action.)

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Posted on Techdirt - 9 April 2014 @ 3:40am

DC Judge Smacks Down Government For Vague iPhone Search Warrant

from the 'with-a-computer'-doesn't-really-specify-a-search-method dept

Trying to pin down DC Magistrate Judge John Facciola is tricky. Early in March, he issued an order denying a government warrant for an email search, stating the following:

[T]he government continues to submit overly broad warrants and makes no effort to balance the law enforcement interests against the obvious expectation of privacy e-mail account holders have in their communications.
So far, so good, as far as upholding the Fourth Amendment goes. Then later in the month, Facciola appeared to switch sides, rejecting a warrant application for a cell phone search because, as he saw it, there was no need for the police to obtain one. This determination was based on the warrant application's description of the phone as being "abandoned" by the suspect, when in all reality, it may have just been dropped inadvertently. This strange order put the police in the strange position of being forbidden to obtain a warrant, something that could potentially jeopardize the prosecution's case if another judge later determines a warrant was, in fact, needed before performing the search of the phone.

That backwards step has now been followed by another step forward in terms of the Fourth Amendment. Facciola has again smacked down a government warrant request for being too broad and too unconcerned with potential privacy implications.
Although Attachment B provides a sufficiently particularized list of the data that the government will search for and seize, the Forensic Analysis section fails to provide this Court with the same level of detail as to the methodologies to be used to conduct the search. Specifically, the government fails to articulate how it will limit the possibility that data outside the scope of the warrant will be searched. For the reasons stated below, the government’s Application for a search and seizure warrant will, therefore, be denied.
Specifically, Facciola finds this warrant approved from others he has blocked in the past, but the government still seems hesitant to explain exactly how it plans to limit its search to just pertinent data and documents.
The Court also requires a search protocol for a separate Fourth Amendment reason—to particularly describe the place to be searched. In a broad manner, describing the iPhone and its specific IMEI number certainly describes the “place to be searched” in a particular manner. But an electronic search is not that simple. An iPhone 4 has either 16 GB or 32 GB of flash memory, 10 which could allow storage of up to around two million text documents. Obviously no one—especially not a college student—would fill an iPhone with text documents, but it is inconceivable that the government would go file by file to determine whether each one is within the scope of the warrant. Instead, as the government has explained in extremely general terms, it will use some sort of “computer-assisted scans” to determine where to look because those scans will determine which parts will be exposed “to human inspection in order to determine whether it is evidence described by the warrant.”
Facciola notes that the fact that so much can be stored similarly increases the chance of abuse. All he's asking for is for the government to be more specific in its description of how it will minimize accessing data not related to the case at hand, and all the government has provided so far is vagaries like "computer-assisted scan" and "keyword searches."
It tells the Court nothing about what will actually happen and does not provide a means of searching so that this Court is assured that it is the type of particularized search that the Fourth Amendment demands. What the government has submitted is no better than the vague explanation in In re Search of Odys Loox that it will “image each device, search them, and keep all files.”
If Facciola sounds irritable, it's probably because this is the third time he's sent the government back to work on this particular warrant request. And this is the third time he's had to make this statement, one which still seems to elude the agency making the request.
Until the government actually explains how the search will proceed, and thus how the government intends to limit its search of data outside the scope of the warrant, this warrant cannot be issued.
So, it appears Facciola's fighting for citizens' Fourth Amendment rights against a government that seems unwilling or unable to narrow the scope of its electronic searches. Of course, this protection seemingly only extends to citizens whose phones have been properly seized as evidence, rather than dropped/abandoned and claimed by pursuing law enforcement agents. If it's the latter, Facciola appears to believe it's an imposition on law enforcement to demand a warrant. Still, two out of three (in just this month alone) is a pretty good batting average for Americans' rights, something that tends to be subverted very easily by expansive judicial readings of the Third Party Doctrine.

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