5th Circuit Continues To 5th Circuit, Issues Yet Another Version Of Its Injunction, This Time Including CISA

Legal Issues

from the the-5th-circuit-is-where-law-goes-to-die dept

Look, I don’t want to suggest that maybe the 5th Circuit’s analysis on issues in the Missouri v. Biden case is not particularly well considered, but, um, it’s not at all clear that the 5th Circuit’s analysis on the Missouri v. Biden case is well considered. After all, the original ruling made a series of embarrassing factual errors, falsely presenting comments by White House officials as being about content moderation when they were not, and failing to highlight how certain speech was coercive beyond “we think it is.” It also failed to attribute many of the comments it quoted, so it was impossible to backtrack who said what and in what context, and further failed to distinguish between different platforms who acted very differently.

Even more pointedly, one of the big criticisms of the 5th Circuit ruling was that it provided no standards for understanding what activity crossed the line from government attempts at persuasion (legal) to government attempts at coercion (not legal). It just said that the activity by the White House, FBI, and CDC were over the line and coercive, while the activity of CISA, the State Department, and NIAID were not over the line (and therefore those entities were not limited by the injunction).

This lack of clarity as to why some agencies were included in the injunction and some were excluded is part of why the White House went to the Supreme Court to ask it to put the injunction on hold.

The Supreme Court did put the ruling on hold for a few days (and then a few more days) and then… did nothing. Really. If you look at the docket for this case at the Supreme Court site, you see that Justice Alito initially stayed the 5th Circuit injunction until Friday, September 22nd at 11:59pm.

Then, on the On the 22nd, he gave himself more time, to the following Wednesday the 27th at 11:59pm.

And on the 27th… he did… nothing. Nothing at all. To date that docket has not been updated, other than by the respondents in the case (basically Louisiana and Missouri) updating the court on things. I don’t know if this is because Alito forgot about it, or thought that it didn’t matter any more? Or because of some other confusion over what the 5th Circuit did in the interim.

On September 25th, the 5th Circuit withdrew the original injunction from the 8th. On September 26th, it withdrew the order from the 25th which withdrew the order from the 8th. It was suggested that it did this upon realizing that the order from the 8th was currently under review by the Supreme Court.

So… I guess the fact that Alito has ignored the docket and let his stay expire on the 27th meant that the injunction went back into effect… and now the 5th Circuit can issue another new injunction? Because that’s what it’s done. Yesterday the 5th Circuit basically issued more or less the same injunction that it issued on the 8th… except that this time, CISA is included among the enjoined parties (which was a piece of what the states had asked for whenthey asked the 5th Circuit to review the original ruling).

But all of this is procedurally weird. Not even getting into the injunction withdrawals and withdrawal of withdrawals, this new ruling wasn’t done en banc (with all the judges) or with any oral arguments. Just with the petition from the plaintiffs and the reply from the White House.

I mean, maybe that’s how the 5th Circuit rolls, but it all seem ridiculously ad hoc.

As is the case with the new ruling, which now adds in CISA as an enjoined party. I ran the two opinions through a diff checker, and they are literally the same, except where the original ruling said that while CISA did flag content to social media websites and hold meetings with them, it wasn’t coercive, now it suddenly says that it is. With basically no explanation whatsoever.

Seriously.

The new ruling includes ONE new paragraph saying “oh yeah, CISA too.”

Next, we examine CISA. We find that, for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment. First, CISA was the “primary facilitator” of the FBI’s interactions with the social-media platforms and worked in close coordination with the FBI to push the platforms to change their moderation policies to cover “hack-and-leak” content. Second, CISA’s “switchboarding” operations, which, in theory, involved CISA merely relaying flagged social-media posts from state and local election officials to the platforms, was, in reality, “[s]omething more.” Roberts, 742 F.2d at 228. CISA used its frequent interactions with social-media platforms to push them to adopt more restrictive policies on censoring election-related speech. And CISA officials affirmatively told the platforms whether the content they had “switchboarded” was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently. Rather, the platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information. Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment. See Blum, 457 U.S. at 1008; Howard Gault, 848 F.2d at 555.

This replaces the following paragraph in the original ruling:

Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.

There is no discussion as to why the court changed its mind. There is no discussion about the details of what made it persuasion in the first opinion, but coercion in the second opinion. There is… nothing.

To the argument that the White House made that this ruling provides them with no actionable details of how the line is drawn, the fact that the new ruling just rewrites this one paragraph, without details, to switch from “persuasion” to “coercion” is a disaster of jurisprudence.

It’s basically the 5th Circuit admitting that its decision on the difference is not driven by any test (like the rest of the opinion pretended it was setting up), but rather by its somewhat arbitrary whims.

That is not at all how courts should rule.

Beyond replacing that one paragraph with another, the opinions are effectively the same (a few other references to CISA were removed from the rest of the ruling about entities that were not violating 1st Amendment rights).

That does mean that the State Department and NIAID are still excluded from the injunction. But… it gives the government literally nothing to work from in determining what is allowed and what is stomping on people’s rights.

You have to imagine that the White House is going to turn around and go right back to Alito to say “yo, put this on hold until you can review.”

Filed Under: 1st amendment, 5th circuit, cisa, content moderation, fbi, jawboning, louisiana, missouri, niaid, samuel alito, social media, state department, supreme court, vivek murthy

New York Bans Facial Recognition Tech In Schools While Montana Decides Students Aren’t Covered By Its Statewide Ban

(Mis)Uses of Technology

from the oh-but-not-for-*these-children dept

For the children. For the children. For the children.

That’s all we hear. And it’s always from people arguing to expand government power. It’s never from anyone who actually cares about protecting children from their government. Instead, it’s almost always used as leverage to increase government power using the theory that only a monster would oppose something that may, albeit only theoretically, help the children.

Enter facial recognition, which is (unbelievably) now a fixture in schools around the nation. Moving far past the RFID tracking of attendance and movement, facial recognition is now being deployed to determine whether or not someone can actually enter a school.

Years of “stranger danger” misinformation delivered by schools has convinced school administrators predators will actually attempt to breach these relative fortresses to abscond with children when, in fact, most sexual abuse of children is perpetrated by people these same educational entities have already determined to be benign (family members, clergy, family friends, other close acquaintances).

Schools are also hoping to deter school shootings. But rather than align behind gun control legislation (which would certainly alienate a large percentage of parents), schools decide to spend tax dollars on automation that’s rarely capable of deterring actual threats to student safety.

Facial recognition is (nearly) omnipresent. But many states and cities have actually taken action to prevent always-on surveillance from becoming the new day-to-day reality for their residents. Facial recognition bans have been enacted around the nation. They’re still anomalies, but the fact that these bans exist is heartening. It shows governments aren’t always interested in doing whatever’s easiest for them. Sometimes, they actually care about the people they represent.

In the state of New York, schools and their students are no longer considered to be fair game for this form of biometric surveillance, as the Associated Press reports:

New York state banned the use of facial recognition technology in schools Wednesday, following a report that concluded the risks to student privacy and civil rights outweigh potential security benefits.

Education Commissioner Betty Rosa’s order leaves decisions on digital fingerprinting and other biometric technology up to local districts.

Good news and bad news. But, hey… good news! This moratorium (which means it’s not actually a ban, but will do until an actual ban comes along) was prompted by judicial challenges filed by concerned parents as well as well as a government report showing one such tech deployment was completely useless.

The Lockport school district deployed facial recognition tech in 2020 with the stated aim of detecting “disgruntled employees, sex offenders, or certain weapons.” The detection of “disgruntled employees” could surely be handled by non-disgruntled employees. (Disgruntled school employees rarely, if ever, return to their former employers to engage in acts of violence, most likely because schools are relative fortresses when compared to other public employment venues.)

Sex offenders, as noted above, aren’t just going to try to walk through the doors. And (as also noted above), the people most likely to engage in sex offenses won’t be recognized as sex offenders, either by school personnel or their tech.

All that leaves is the “certain weapons,” which — it must be noted — AREN’T FUCKING FACES.

So, what is it for? It’s almost useless for the reasons stated, which must mean it’s more useful for reasons school administrators and the companies they buy tech from aren’t willing to state publicly. Not that any of that matters, at least for the moment, now that the state of New York has declared schools off limits for facial recognition tech.

That seems like the right thing to do, especially given all the factors in play. But, somehow, across the nation in a state where criminal activity of all kinds is far less likely (if we don’t consider the robber baron-esque activities of wealthy Hollywood figures), it has been decided by state legislators that children should be first (and possibly only) people first against the (facial recognition) wall. This is what’s going on in Montana at the moment.

The state Legislature earlier this year passed a law barring state and local governments from continuous use of facial recognition technology, typically in the form of cameras capable of reading and collecting a person’s biometric data, like the identifiable features of their face and body. A bipartisan group of legislators went toe-to-toe with software companies and law enforcement in getting Senate Bill 397 over the finish line, contending public safety concerns raised by the technology’s supporters don’t overcome individual privacy rights. 

Cool cool cool. Except:

School districts, however, were specifically carved out of the definition of state and local governments to which the facial recognition technology law applies.

Oh, wow. The state decided those legally incapable of consent should be subjected to biometric surveillance the legislature wasn’t willing to deploy against actual adults.

Public schools are government entities. A ban covering government use of this tech should absolutely have prevented schools from using this tech. But instead of protecting the kids, the legislature decided only minors were unworthy of being protected by this so-called “ban.”

According to estimates by education groups and school administrators, at least 50 schools in Montana are currently deploying facial recognition tech. That may seem like a small number, but Montana is home to less than 700 schools with an enrollment of nearly 109,000 students. Compare that to New York, which has more than 4,300 public schools hosting nearly 2.5 million students.

The asshattery of this legislated exception is backed by the asshattery of school administrators who seem to believe subjecting everyone to facial recognition in a largely rural area is a net good for students and the society they exist in.

For Sun River School District Superintendent Dave Marzolf, school safety superseded any hesitancy about installing facial recognition technology around the school. 

“I just like to have the comfort to know if somebody’s buzzing at our door, and facial recognition comes up showing they’re not supposed to be on school property, it’s a good safety feature,” Marzolf said. 

I would love to know how often this is actually a problem in a school district that oversees three schools and less than 300 students. The number of people not allowed on school property must number into the low 1’s. And yet, this small district that presumably has limited public funding still feels it’s worth blowing bucks on tech more likely to misidentify the FedEx driver than actually detect any real threat to school safety.

It’s weird. One would expect a very populated state to be more willing to subject people to mass surveillance for supposed “safety” reasons. Instead, we have this bizarre dichotomy where a “liberal” state cares more about protecting students from itself, while a “conservative” state thinks only children should be exempt from limits on government surveillance. But I guess it just goes to show that this era of so-called “conservatives” only cares about children until they’re born. After that, they’re unworthy of being protected from their government.

Filed Under: biometric surveillance, biometrics, montana, new york, protect the children, schools, students

Daily Deal: DevDojo Pro

Deals

from the good-deals-on-cool-stuff dept

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Filed Under: daily deal

Google Accused Of Secretly Altering Search Queries To Drive More Ads And Sales

(Mis)Uses of Technology

from the didn't-they-just-remove-the-'don't'-part-of-their-old-motto? dept

I know many of you have heard this before, but Cory Doctorow’s “enshittification” concept is such a useful framework to think about things:

first, companies are good to their users; then they abuse their users to make things better for their business customers; finally, they abuse those business customers to claw back all the value for themselves.

As I’ve highlighted, much of this is driven by the ridiculous demands of Wall St. and the belief that companies have a fiduciary duty to shareholders to increase profits at the expense of everything else, but that’s not just wrong, it’s incredibly short-sighted. Because the conclusion to the enshittification concept is that once companies go down the enshittification curve, at some point they die. This is why one of the keys to avoiding enshittification is knowing how and when to tell Wall St. to piss off.

There was a time when it looked like Google understood this lesson. When the company filed to go public, Sergey and Larry started the S1 with a letter in which they basically insisted that they wouldn’t go down this path, and would always put users first — and that anyone looking to buy shares in the company needed to understand that. Among many similar statements, the letter said:

As a private company, we have concentrated on the long term, and this has served us well. As a public company, we will do the same. In our opinion, outside pressures too often tempt companies to sacrifice long term opportunities to meet quarterly market expectations. Sometimes this pressure has caused companies to manipulate financial results in order to “make their quarter.” In Warren Buffett’s words, “We won’t ‘smooth’ quarterly or annual results: If earnings figures are lumpy when they reach headquarters, they will be lumpy when they reach you.”

If opportunities arise that might cause us to sacrifice short term results but are in the best long term interest of our shareholders, we will take those opportunities. We will have the fortitude to do this. We would request that our shareholders take the long term view.

There was a time when it felt like Google kept that promise, but that time seems long past. As the company grew and grew it’s clear that it started to go down the enshittification curve just like everyone else, and started to prioritize Wall St.’s quarterly demands over serving users.

I’ve noted that I don’t think the current Google antitrust case (where the trial is currently ongoing) is all that strong, though I think a more recent case that was filed earlier this year seems much stronger. That stronger case is the one involving how Google’s ad team manipulated the ads market in a way that it could extract more value out of it, while attempting to block effective competition.

The ongoing case is more about how Google sought to have its search included as the default on various browsers and phones and such.

However, it looks like some of the ad shenanigans are showing up in this case too. Megan Gray (who worked at the FTC and as General Counsel at DuckDuckGo) has been attending the trial and wrote a piece for Wired about a bit of evidence that flashed on the projector screen, suggesting that Google is secretly altering search queries to drive more ads and commerce. If accurate, this is (1) quintessential late stage enshittification and (2) obnoxiously evil:

This onscreen Google slide had to do with a “semantic matching” overhaul to its SERP algorithm. When you enter a query, you might expect a search engine to incorporate synonyms into the algorithm as well as text phrase pairings in natural language processing. But this overhaul went further, actually altering queries to generate more commercial results.

There have long been suspicions that the search giant manipulates ad prices, and now it’s clear that Google treats consumers with the same disdain. The “10 blue links,” or organic results, which Google has always claimed to be sacrosanct, are just another vector for Google greediness, camouflaged in the company’s kindergarten colors.

Google likely alters queries billions of times a day in trillions of different variations. Here’s how it works. Say you search for “children’s clothing.” Google converts it, without your knowledge, to a search for “NIKOLAI-brand kidswear,” making a behind-the-scenes substitution of your actual query with a different query that just happens to generate more money for the company, and will generate results you weren’t searching for at all. It’s not possible for you to opt out of the substitution. If you don’t get the results you want, and you try to refine your query, you are wasting your time. This is a twisted shopping mall you can’t escape.

I’m guessing that Google would claim that it’s not so much “replacing” your search as doing an additional search alongside it that (it will claim) helps provide more relevant answers. But, it sure sounds like the line between “more relevant” and “better for our short-term revenue” got pretty blurry.

As Gray notes:

It’s unclear how often, or for how long, Google has been doing this, but the machination is clever and ambitious. I have spent decades looking for examples of Google putting its enormous thumb on the scale to censor or amplify certain results, and it hadn’t even occurred to me that Google just flat out deletes queries and replaces them with ones that monetize better. Most scams follow an elementary bait-and-switch technique, where the scoundrel lures you in with attractive bait and then, at the right time, switches to a different option. But Google “innovated” by reversing the scam, first switching your query, then letting you believe you were getting the best search engine results.

It’s also how you destroy trust. I’d move to Bing or DuckDuckGo, but considering both still have Techdirt mostly deleted from their index, that won’t work. Guess it’s finally time to try Kagi (which people keep telling me is great).

Filed Under: ads, antitrust, competition, enshittification, search, search results, semantic matching
Companies: google

Court Dismisses Medieval Times’ Trademark Suit Against Its Own Employee’s Union

Trademark

from the peasant-revolt dept

Roughly a year ago, we discussed one of a few instances of a company filing a trademark infringement lawsuit against its own employees as a retaliation tactic for those employees forming a union. In this specific case, it was the company behind Medieval Times, an organization that builds fake castles and sells food and drink while customers watch fake jousting matches. The suit was fairly laughable by my estimation, with the complaint for some reason listing claims of the union having confusing symbols and iconography in its branding, alongside pictorial evidence of the exact opposite. There was little that was similar in any of this and the claims that the public would somehow be confused by branding and a website that was directly hostile to the corporation was absolutely silly. In other words, it seemed very clear that this was a bullying tactic, in retribution for the forming of the labor union in the first place.

And now it seems the court has agreed that the infringement claims were indeed silly.

In an opinion issued Thursday, the judge said the dinner theater chain failed to demonstrate that the union, called Medieval Times Performers United, was creating “confusion” among consumers and leading people to believe the labor group was somehow endorsed by the company.

“The Court concludes there is no plausible likelihood of confusion,” wrote Judge William J. Martini of the U.S. District Court for the District of New Jersey.

The ruling itself obviously goes into much more detail than that, putting the claims of infringement through the Lapp test. The Lapp test is a series of criterium to determine whether one trademark in use is indeed likely to cause confusion with that of the accuser’s. Those factors include:

For the vast majority of those factors, the court sides heavily with the union, and for obvious reasons. The union took great pains to make it very clear that it is not affiliated with the Medieval Times corporation, even going so far as to note on its website landing page that the union was on strike. To use but one example, on the question of the similarity of the branding for the company and union, the court writes:

“Although both employ red and yellow in some fashion (in the logos and costumes), ‘Medieval Times’ is written in different stylized fonts and colors,” Martini wrote in his opinion, which was first reported by Bloomberg Law. “The Medieval Times Mark is written in yellow or red lettering in contrast to the [union] logo which is in black font.” 

“In sum,” he added, “neither a side-by-side comparison nor the overall impression is confusingly similar.”

Notably in terms of the claim that all of this is part of the company’s plan to unfairly punish or discourage the forming of the union and its membership, the NLRB has filed a complaint against the company accusing it of other unfair labor practices.

We’ll see where that ends up going, but it appears that the abuse of trademark law in order to bully the union will no longer be one of the company’s arrows in its quiver.

Filed Under: lapp test, likelihood of confusion, strike busting, trademark, union
Companies: medieval times

Court Tells Cop They Need More Than ‘It’s A Vehicle’ And ‘Guy Looked Nervous’ To Engage In Warrantless Searches

Legal Issues

from the cruising-the-perimeter-of-the-4th-is-not-the-same-as-being-inside-it dept

Adding to the case law of small, but significant, Fourth Amendment law is this decision [PDF] handed down by a Maine federal court. (h/t FourthAmendment.com)

The Fourth Amendment makes things pretty clear: to perform invasive searches, cops need warrants. But over the years since the erection of that standard, we’ve seen it loosened. A host of exceptions exists. If it’s a “Third Party record,” the Fourth (in most cases) won’t cover it. If it’s a car on a public road, the Fourth rarely covers it. If things seem to be going bad in a hurry (“exigent circumstances“), the Fourth won’t cover it. If reasonable suspicion develops (but not actual probable cause), the Fourth (sometimes) won’t cover it. If it’s in “plain view,” the Fourth often won’t cover it. If an officer’s nose (“odor of marijuana“) or an officer’s dog (“probable cause on four legs“) says it’s cool to perform a warrantless search, the Fourth won’t cover it. And, if all else fails, the Fourth might be violated, but the violators will be granted preemptive forgiveness with the application of qualified immunity.

Do you see that? That’s a pretty long paragraph. And that doesn’t even cover other things like border security, national security, transportation security, or any other rationale that might allow the government to pretty much pretend (with courts’ blessings!) the Fourth Amendment doesn’t exist.

Given this wealth of options, it’s always strange (but never a surprise) when law enforcement officers still choose (repeatedly!) to violate the Fourth Amendment when they could have achieved the same results lawfully with extremely minimal effort. And why wouldn’t they just do the bad thing and roll the dice? Case law also shows ignoring this plethora of options rarely results in any direct harm to cops or the agencies that employ them.

So, that’s why small-ish decisions like these count. It establishes — or at least reiterates — the confines of the Fourth Amendment, ensuring future violations won’t be considered mere mistakes of law by law enforcement officers.

In this one, we start with someone already convicted of a crime, which means the Constitutional deck is stacked against them. Randolph Bourgoin had served his prison time. But he was still serving his “free” time: three years of supervised release. He was, more or less, treated no differently that someone riding out their sentence on parole.

As a convicted felon, he was forbidden to possess firearms or ammunition. (Or vote, etc.) All of this began with what was basically a traffic stop, even though said “traffic” had already been “stopped” by something other than a Maine state trooper.

The evening of May 19, 2022, a complainant reported that a tractor trailer hit a tree on Springy Pond Road in Otis, Maine. According to the complainant, a tractor trailer hit a tree and blew a tire. Trooper Travis Chapman began driving to Springy Pong Road, a narrow dirt road, to respond to the complaint. He found it unusual for a tractor trailer to be on a narrow dirt road, especially at nighttime.

The list of things officers “find unusual” encompasses pretty much any conceivable activity engaged in by human beings. That assertion means nothing more than the trooper wanted to go off task with a fishing expedition. Tractor trailers, especially in rural areas or farming communities, are on “narrow dirt roads” frequently.

From that point of not-all-that-unusual activity, things got a whole lot weirder… at least according to the trooper’s report and testimony.

Upon arriving at Springy Pong Road around 10:30 p.m., Trooper Chapman saw a tractor trailer along the road about fifty or sixty yards from a mobile home with its interior and exterior lights on. From inside his cruiser, Trooper Chapman looked for identifying information about the tractor trailer. He first ran the license plate, which he could only partially read, and there was no match. Next, Trooper Chapman drove around the tractor trailer and saw the blown tire. As he reached for his PA to identify himself and request the tractor’s operator to speak with him, Trooper Chapman heard a gunshot from the direction of the residence. Trooper Chapman retreated from the scene and informed others about the incident.

A tractor trailer with a blown tire. A residence located in a completely non-suspicious place (literally anywhere). An alleged gunshot from said trailer. None of these things could be considered parts of cohesive, suspicious whole. And yet, that’s exactly where this went.

If there was a shot from the trailer home (not the tractor trailer), the most immediate problem was the residence, not the “suspicious” vehicle on a dirt road.

And, at first, the Maine state police focused their attention on the residence, albeit for extremely specious reasons, (alleged) gunshot notwithstanding.

While Trooper Chapman waited nearby for more officers to assemble, Sergeant Gavin Endre told him that one of the occupants of 760 Springy Pond Road was Randy Spencer, who Trooper Chapman knew from previous encounters. The officers knew that Spencer disliked law enforcement.

You know what’s not a crime, much less reasonably suspicious? Disliking law enforcement. A mere dislike of law enforcement does not suggest a person is willing to shoot and/or kill law enforcement officers. Millions of Americans dislike law enforcement. Yet, every year, only a very small percentage of law enforcement officers are actually killed by criminal suspects.

Also note that the defendant in this case isn’t Randy Spencer, The Man Who Disliked Law Enforcement. It’s Randy Bourgoin, who was driving the tractor trailer with the flat tire when the trooper reported he heard a gunshot originating from Spencer’s residence. Bourgoin, for his part, cooperated fully. He told the troopers he was headed to Spencer’s home to fix his car. He also volunteered that Spencer once told him he had shot at a car (but apparently not a law enforcement car) and (allegedly) sold a bit of meth.

Using this information, the troopers applied for a warrant. But the warrant asked to search things that were not Spencer’s residence. The affidavit asked to search the trailer home and Bourgoin’s tractor trailer for evidence of a firearms discharge, “driving to endanger,” and “reckless conduct with a deadly weapon.”

That’s quite the mishmash of probable cause. At the point the troopers encountered Bourgoin, he was no longer driving, much less “driving to endanger.” That the tractor trailer was on a dirt road and the plate was illegible did not create probable cause to search the vehicle for evidence of [checks court ruling] “driving to endanger.”

Another warrant was obtained to search the Spencer residence and any outbuildings. That affidavit was apparently supposed to include a request to search Bourgoin’s truck, but that was (supposedly mistakenly) omitted from the second warrant request.

The searches were carried out, despite a whole lot of missing assertions and/or probable cause statements.

Sergeant Endre and two other state troopers executed the search warrant. While on the scene, Sergeant Endre learned that the tractor trailer belonged to Aggregate Solutions and that it was assigned to Bourgoin, who was on federal probation for stealing a firearm. The officers first searched Spencer’s residence, finding counterfeit money and marijuana—but no firearm. Next, the officers searched Bourgoin’s tractor trailer. They found ammunition and a methamphetamine- or cocaine-base pipe. Along with the ammunition, officers allegedly discovered two receipts from Old Town Trading Post. Eventually, law enforcement went to Old Town Trading Post with these receipts, where store personnel used the timestamp to get a picture of Bourgoin purchasing the ammunition.

So, first we have a search of a mobile home and outbuildings where a state trooper claimed he heard a gunshot originate from — one that failed to produce a firearm or ammunition. Then there’s the search of Bourgoin’s truck, which did produce contraband, but no contraband related to the alleged crime: “driving to endanger.”

But the discovery of ammunition and drug paraphernalia was enough to revoke Bourgoin’s probation, leading to this challenge.

The government argued against Bourgoin’s suppression motion, despite admitting it did not have probable cause to search his truck. It instead argued case law allowed it perform a warrantless search. It cited the automobile exception, which lowers the bar to reasonable suspicion, and the good faith exception, which says officers too stupid to understand the law can’t be sued as long as they rely on a warrant obtained by another officer too stupid to understand the law and that has been signed by a judge who can only work with what’s been handed to them by officers too stupid to understand the law and, in too many cases, can’t even be bothered to challenge the boiler plate assertions that tend to make up the bulk of search warrant affidavits.

Wrong on both counts, says the federal court. If you want to pull crimes out of the air to justify searches, then your affidavit better make it clear that evidence of the supposed crime will be found in the place you intend to search.

[T]he officers lacked probable cause to believe that evidence concerning driving to endanger would be found inside the tractor trailer. Maine law criminalizes driving with criminal negligence4 and “endanger[ing] the property of another or a person, including the operator or passenger in the motor vehicle being driven.” 29-A M.R.S. § 2413(1). While the officers knew that the tractor trailer had recently hit a tree, they had no reason to think that evidence concerning this offense would be found inside the tractor trailer. The most probative evidence of this crime was the blown tire—which was, naturally, on the outside of the vehicle.

And from there, the assertions of the troopers gets even worse.

Second, the officers did not have probable cause to believe that evidence of reckless conduct with a dangerous weapon, 17-A M.R.S. § 211, would be found in the tractor trailer. While near the tractor trailer, Trooper Chapman heard shots from the direction of the residence.

Banging the point home:

Third, and for the same reasons, the officers did not have probable cause to conclude that evidence regarding the discharge of a firearm near a dwelling, 12 M.R.S. § 11209, would be found in the tractor trailer.

Adding it all up, these assertions cannot be given credence by any court of law in the United States. It’s bullshit. And it’s dangerous bullshit if courts decide it’s okay for cops to cite literally any crime to support search warrant requests.

The upshot of all this is that warrantless searches of automobiles do not survive constitutional rigor on the close-enough-is-good-enough model. That the suspected criminal activity occurred in the neighborhood of an automobile does not, standing alone, supply the connective tissue necessary to dispense with the warrant requirement to search all the automobiles in the neighborhood.

If “close enough” isn’t “good enough,” then it’s too far away from any law enforcement notions of “faith” to be considered “good faith:”

The Government appears to argue that close only counts in horseshoes, hand grenades and warrantless searches so long as the police work was not hallmarked by nefarious intent. I do not believe the state troopers’ conduct was based on anything other than a mistaken belief, albeit unjustified, that the particulars of the warrant included the tractor trailer, just as the application materials had. However, that reflection of reality fails to get at the heart of the Leon rule and it does nothing to ameliorate the search of property that was not included at all, much less with particularity, in the warrant.

Sure, the troopers here weren’t necessarily intending to violate rights. But they were either too quick or too careless to avoid doing that. Either way, it’s the same thing: violated rights and… the loss of their evidence. The court says the evidence is suppressed. Bourgoin is free to go, or at least as free to go as anyone on probation is.

It’s a small win but it has larger repercussions. The automobile exception has its limits clearly defined. Officers are put on notice (yet again) that particularity matters when it comes to requesting search warrants. And, on top of everything else, it makes it clear the government can’t get away with rights violations simply because it wasn’t being deliberately evil. Even the more, shall we say, “innocent” violations are just as likely to empty the government’s evidentiary pockets as the more nefarious ones. And that’s something the government would be well-served to remember.

Filed Under: 4th amendment, maine, probable cause, randy bourgoin, warrant, warrentless searches

Google Is Still The Search Engine Of Choice For Law Enforcement

Privacy

from the everything-everywhere-all-in-one-place dept

Dominating a field is a mixed blessing. On one hand, it gives you extensive reach, immensely profitable products, and — if you’re just too good at it — the horrific realization your brand name has been commodified to the point that hundreds of millions of people now use your proper noun as a verb. (It also gets you targeted by the DOJ.)

On the other hand — if you’re good at what you do and hundreds of millions of people access your services every day — you become a place cops come first when they have no better investigative ideas.

This has been true for years with Google. Its collection of location data — as well as searches performed by users — makes it an extremely convenient starting point for law enforcement investigations where investigators have no leads at all.

This trend of law enforcement googling was first noted more than a half-decade ago. In some cases, warrants delivered to Google sought specified targets. The others, however, sought location data on anyone in the area of a suspected crime, with Google (and the courts) expected to trust investigators to use this wealth of data responsibly to identify potential suspects.

A few months later, it was revealed (to no one’s surprise) that federal agencies were also approaching Google for massive amounts of user location data, gathering haystacks in search of needles aided and abetted my Google’s massive collection user data.

In addition to location data, investigators were also asking Google for information on anyone who used certain search terms. While these requests were often limited to specific time frames and (if possible) certain areas, the fact was Google was expected to search all stored user data (with a single warrant) to provide investigators with this information.

The Supreme Court’s Carpenter decision was delivered less than three months after the revelation of this search, potentially limiting access to weeks or months of user location data. However, that decision dealt with location data gathered by cell service providers. Moving this data out from under the Third Party Doctrine’s free pass meant recognizing that data collected to provide service was hardly data voluntarily turned over by cell phone users. Either you agreed to turn on cell tower access or you went without phone service.

That hole in the Third Party Doctrine has been repeatedly exploited by law enforcement agencies, who have continued to approach Google to collect data on multiple people in order to find specific people. And that’s when they can’t get this data from other sources even less likely to push back against broad law enforcement requests, like data brokers who harvest all the information they can from app users who clearly aren’t aware the data they agree to hand over to app creators is being sold to others who then sell it to the government.

A half-decade on and the only thing that has changed is how often law enforcement goes to the Google well to turn tons of data points into possibly usable information. Here’s the latest, as reported by Julia Love and Davey Alba for Bloomberg. Their report opens with anecdotal evidence about Google-derived evidence — something that starts with a would-be cop being saved from his own carelessness by the readily available access to Google user data.

One morning in January 2020, Robert Potts was loading up his SUV for a trip to the police academy in Raleigh, North Carolina. He started warming up the car, his mind on exams, and went back into his apartment to grab his lunch. When he returned the SUV was gone, along with a rubber training pistol, a set of handcuffs and a portable radio.

Raleigh cops found the SUV by lunchtime. Potts was distraught. Losing your gear is very bad form for a cop, especially a rookie, and the thief had walked off with some of Potts’, including the most sensitive item—the radio. Someone could use that to disrupt the police department’s communications with false reports. Potts’ supervisors reassured him they’d take care of it.

Potts returned his focus to exams, completely unaware of the events his early-morning blunder had set in motion. He says the Raleigh PD was able to remotely disable his radio, ensuring that their communications remained uncompromised. But the cops weren’t ready to drop the matter. In their determination to recover the radio, they capitalized on two cutting-edge investigative tools available to local law enforcement—both made possible by Google.

Within days of the theft, the Raleigh PD sent Google a search warrant demanding a list of people who were in the neighborhood when the gear was stolen. They also secured a judge’s order for the company to identify anyone who Googled “Motorola APX 6000,” the model of the radio, and similar phrases in the days after the device went missing. Google handed over user location data in response.

And thus begins another law enforcement career, in which a rookie blunder is handled by the rest of the PD with no apparent effort to hold the prospective cop responsible for screwing things up this badly. Instead, investigators doubled down on Google, asking it for both location data and Google searches.

The only probable cause is the probability Google retains this data. The only specificity is whatever restraints investigators impose on themselves (geofence limitations, time period limitations). In rare cases, judges push back against these warrants for exactly these reasons. In other cases, judges don’t know (or don’t care) how much information is being gathered or how broad these requests are.

While Google is (theoretically) free to challenge these warrants, in many cases courts will decide Google can’t intercede on behalf of those targeted by these broad requests. Because Google’s intercession is limited and often ultimately ineffective, law enforcement has steadily increased its reliance on a third-party to hand over as much data as they can possibly obtain. We’re not seeing massive year-over-year gains in crime clearance rates. But we’re definitely seeing exponential growth in these warrants, which ask magistrate judges to do nothing else but decide whether or not it’s likely Google has (at least some) of the requested data on hand.

Google says it received a record 60,472 search warrants in the US last year, more than double the number from 2019. The company provides at least some information in about 80% of cases. 

Cops aren’t going to cut themselves off. Google can only do so much because of legal standing issues. The rest is up to the courts. And, in most cases, magistrates are rubber-stamping these requests, while the courts above them are mostly willing to settle for the backwards interpretation of probable cause wherein Google becomes the “suspect” for the purposes of the search because it has the data investigators seek. It’s only after they receive the bulk data that investigators go to work to determine who might actually be a criminal suspect. It’s not a house-to-house search for a suspect in a physical sense. But, in a digital sense, that’s exactly what’s happening.

Since little limits law enforcement from exploiting this handy byproduct of Google products, cops are using it for everything, despite it being clear to everyone (but cops) that broad searches should be restrained to the most severe crime, otherwise it’s law enforcement making a mockery of law enforcement.

Bloomberg Businessweek collected and analyzed 115 warrants for the company’s location and search data in five states, one of the largest known reviews of such documents. The analysis, based on search warrants filed from 2020 to 2023 with courthouses in Austin, Denver, Phoenix, Raleigh and San Francisco, showed that departments used them not only to solve violent crimes but also for more routine offenses. About 1 in 5 location warrants were for offenses such as theft and vandalism. A detective in Scottsdale, Arizona, got one in search of somebody accused of stealing a Louis Vuitton handbag. In that investigation and many others, the Google data offered nothing useful.

[…]

In the Phoenix suburb of Surprise, Detective Taylor Knight obtained five geofence warrants in a span of less than three months to investigate a spate of burglaries and vandalism at construction sites last year. Among the equipment police sought to recover were a microwave and a cooktop. One of the warrants, obtained for the theft of a wood chipper, demanded information on anyone who was near the construction site for almost an entire week. The Surprise Police Department says no prosecutions have materialized.

And that’s how cops are going to end up burning their Google sources. When it’s easiest to sit at a desk and fill out a form, that will remain the preferred option for investigators. Much like cops started out using Stingrays to track people suspected of major crimes, the easy access to EASY button tech soon resulted in cops deploying repurposed war gear to hunt down people suspected of stealing fast food worth less than $100 at full retail.

It’s clear Google needs to keep collecting this information to retain its (seemingly) insurmountable search engine/advertising lead over its competitors. While that shouldn’t be considered an acceptable tradeoff for access to goods and services, the exploitation of this collection by law enforcement is a bigger concern. US law enforcement has been granted considerable leeway and considerable power to engage in investigations. That cops have decided to do all their “investigating” from their desks, moving nothing more than a mouse-finger, should be considered early-onset dystopia. But, until courts are willing to actually confront what’s happening here — rather than pushing its own EASY button (the Third Party Doctrine) — we’ll never see cops deterred from going where the data’s at, rather than doing what’s been expected for years before the internet even existed: finding suspects first and working backwards to find the evidence they need to support their suppositions and searches.

Filed Under: 4th amendment, data, evidence, law enforcement, privacy, reverse warrants, third party doctrine
Companies: google

Daily Deal: The Ultimate Python & Artificial Intelligence Certification Bundle

Deals

from the good-deals-on-cool-stff dept

The Ultimate Python and Artificial Intelligence Certification Bundle has 9 courses that cover topics like AI, deep learning, machine learning, neural networks, and more. You’ll also learn Python, PyTorch, Keras, and more. It’s on sale for $40.

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Filed Under: daily deal