Here we go again. Want to keep citizens away from their requested public records? Do what you can to ensure they can't afford it.

Nathanael King sent a request via Muckrock to the Texas Department of Criminal Justice. He was seeking records on all investigations of alleged sexual abuse in Texas prisons. Either the problem with prison sexual abuse is completely out of hand or the Texas DCJ really really really wants to keep King from seeing these investigative records.

Our request for investigations of sexual assault in Texas correctional facilities since 2013 returned a price tag of $1,132,024.30 from the Department of Criminal Justice (TDCJ), which says there are more than 260,000 pages of responsive documents that would require more than 61,000 hours to process.

Considering the agency had pretty much already told King it wouldn't be turning over a ton of info thanks to a wide variety of exemptions, the cost estimate seems completely unhinged from reality. Obviously, very few private parties have a million in cash laying around for public records fees. I'm sure this is what the DCJ is counting on. A great majority of detailed info will be stripped and the agency has agreed to turn over only "basic information" on 2,000 cases. Apparently each case averages around 130 pages requiring nearly 15 minutes per to "process."

All told, the Department suggests it will take nearly 3,000 hours just to search for responsive documents. From there, it's on to the pricey processing and a fee request that would make Texas oil magnates balk. To its credit, the Texas Attorney General suggested it might be less expensive to ask another agency entirely for the information King is seeking.

The Office of the Attorney General recommended filing with the Prison Rape Elimination Act offices, who subsequently requested a far more reasonable, though still costly, $551.39 for copies of their division level audits of the Safe Prisons/PREA program since 2016.

Safe Prisons Program Management Office records report that in 2016 alone, the OIG opened 238 sexual assault cases in state-run facilities and another 4 in private prisons.

Of course, $500 only gets you a little more than a year of reports that only cover Inspector General investigations, rather than every investigation opened by state prisons for the last four years. The Department can't seriously be thinking of allocating 61,000 hours to this task so the fee estimate is mainly there to discourage King from pursuing this request any further.

There's plenty of methods incumbent ISPs use to keep broadband competition at bay, from buying protectionist state laws to a steady supply of revolving door regulators and lobbyists with a vested interest in protecting the status quo. This regulatory capture goes a long way toward explaining why Americans pay more money for slower broadband than most developed nations. Keeping this dysfunction intact despite a growing resentment from America's under-served and over-charged broadband consumers isn't easy, and has required decades of yeoman's work on the part of entrenched duopolies and their lobbyists.

Case in point: Google Fiber recently tried to build new fiber networks in a large number of cities like Nashville and Louisville, but ran face first into an antiquated utility pole attachment process. As it stands, when a new competitor tries to enter a market, it needs to contact each individual ISP to have them move their own utility pole gear. This convoluted and bureaucratic process can take months, and incumbent ISPs (which often own the poles in question) often slow things down even further by intentionally dragging their feet.

So in cities like Nashville and Louisville, Google Fiber and other competitors have pushed for so-called "one touch make ready" utility pole reform. These reforms let a licensed an insured contractor move any ISP's pole-mounted gear if necessary (usually a matter of inches), as long as the ISP is notified in advance and the contractor pays for any damages. Under these regulatory reforms, the pole attachment process can be reduced from six months or more to just a month or so -- dramatically speeding up fiber deployment. ISPs like Verizon (in part because Google Fiber isn't encroaching on their East Coast turf) has supported the changes.

But because this would speed up competitor broadband deployments as well, incumbent ISPs like AT&T and Charter did what they do best: they filed lawsuits against both Nashville and Louisville -- claiming they'd exceeded their legal authority in updating the rules. The companies proclaim they're simply concerned about the potential damage to their lines (ignored is the fact that the contractors doing the work are often the same people employed by ISPs), but the lawsuits are driven by one thing: fear of competition.

In Louisville, things haven't worked out very well for AT&T, with a Judge recently declaring that the ISP's claim that Louisville had somehow exceeded its authority doesn't make any legal sense:

"AT&T claimed that Louisville has no jurisdiction under federal or state law to regulate pole attachments, an argument that the district court judge picked apart. AT&T argued that the rule referred to in-court documents as Ordinance No. 21 "impermissibly regulates the terms and conditions of pole attachments," but in doing so AT&T "narrowly characterize[d] Ordinance No. 21 as one that regulates pole attachments," the judge wrote. In reality, "the ordinance actually prescribes the 'method or manner of encumbering or placing burdens on' public rights-of-way," Hale wrote.

"Kentucky's state Public Service Commission has exclusive jurisdiction over regulation of rates and services of utilities, but cities are allowed to "regulate local utilities in every area except as to rates and service," the judge wrote.

That's good news for Louisville and people looking for beefed up broadband competition, but the damage is still done, and the delay still benefited AT&T (who'll likely appeal) all the same. Google Fiber wound up being forced to consider a pivot to wireless in Louisville after the company's efforts to deploy gigabit-capable fiber in the city took notably longer than expected. Thanks, in large part, to large incumbent ISPs like AT&T, which at one point publicly mocked Google Fiber's struggles while omitting its lawyers were a major reason for the delays in the first place.

Somehow newspaper publishers -- especially those located in Europe -- believe the road to recovery is paved with income siphoned off Google. There have been plenty of proposed "snippet taxes" and other demands Google pay online publications for sending traffic their way. So far, nothing has panned out as the papers had hoped. In extreme cases, Google has offered to just stop sending any traffic their way by pulling out of the snippet-taxed market.

The newspapers claim Google would be nothing without them, which is, at best, extremely dubious. There's a wealth of news and information out there that doesn't come from legacy newspaper publishers. The internet isn't going to be bereft of news services if certain papers decide to pull the plug because Google isn't propping them up.

But even if they were right about this, there's a very good chance Google can't save them from drying up and blowing away. Media consultant Thomas Baekdal has done the math on proposed snippet taxes. Even with Google serving up more than a trillion search results a year, there's no money in taxing clicks.

Baekdal's back-of-the-envelope math starts out big -- the only thing publications see when they start demanding link/snippet taxes:

First of all, Google is big, in fact, the current estimate is that Google is serving up between 1.5 to 2 trillion searches per year.

That amounts to 125 billion searches per month.

Google also makes a lot of money. In the last quarter, it made a stunning $26 billion, of which $4.1 billion was profit.

This is where most publications stop when griping about Google's billions in comparison to their declining net worths. Assuming the equation is zero sum is only part of the problem. The rest of it's the math they don't feel like doing. But Baekdal follows through. Not all of this profit is related to Google's searches. Alphabet -- Google's parent company -- has a lot of irons in the internet fire, some of them actually profitable. Stripping everything out but search revenue, we end up with this:

Google Search has a revenue of $4.65 billion per month, of which about $700 million (not billion) is profit per month.

Smaller, but still hundreds of millions more in profit than most papers make. Again, these are dollar signs in publications' eyes, each of them apparently believing a revenue-"sharing" plan forcibly applied to Google with net thousands of dollars in new revenue for each participant.

Not so:

Now, we can take the $700 million in profit and divide that by the 125 billion searches to get the profit per search query.

The result is that Google makes... $0.0056 per search query.

That's almost nothing, even for a publication receiving millions of hits via Google every month. As Baekdal does the math, the revenue per month is obviously nothing compared to what publications believe it should be. Even with every search monetized by Google's ad placement (which nets higher revenue for Google and more to "share" with publications), the total payout for a site receiving 3 million hits per month (Baekdal uses Denmark's largest paper as an example) would be between $930-1000/month. Not exactly business model-saving $$$. And not every search is monetized, so the payout would likely be even less.

Nate Hoffelder of the Digital Reader points out Baekdal's math is slightly off, thanks to a misconception about how the snippet tax would be collected.

Baekdal made a couple goofs in his calculations (he thought Google would be paying for clicks rather than for impressions)...

But even so, there's no money there:

Google is making under 4 cents per search, and turning a profit of around a half a cent per search.

Of course, that is an average across all of Google's search results, and it includes search terms and even whole verticals which are not monetized (Google News, for example). And that is also a global average and not based on EU revenues, so it is not 100% applicable. (And those calculations are based on a bunch of unsupported assumptions.)

Leaving those caveats aside, the point that matters is that news publishers want Google to pay for the use of their links and snippets. This means that Google would need to take that 3.7 cents and divide it between all of the relevant links returned with each click of the search button (after taking a cut for itself).

That money is not going to go nearly as far as the news publishers think.

Would having this math in front them cause publishers to rethink their plans to divert Google's "billions" into their own pockets? Probably not. Not understanding how this all actually works is extremely helpful when demanding a billion-dollar tech company start handing over cash for directing more traffic to the publications' sites. The very premise is beyond stupid, but it gets even more stupid when each publisher acts like the biggest cut of an apparently minuscule payout won't have to be shared with every other publisher whose sites end up in the same search results.

If these publications are dying, it's not because of Google. And they apparently have enough cash flow to pay lawyers and lobbyists to keep pushing local governments to craft anti-internet legislation on their behalf.

It has become the laziest "hot take" in technology media. Once a month or so, a writer decides to subscribe to as many streaming video services as possible. They then proudly declare that this whole cord cutting thing (ditching traditional cable TV for streaming video) is a waste of time. Why? For whatever reason, these writers feel compelled to try and use streaming alternatives to perfectly mirror the existing, bloated cable bundle consumers have spent two decades complaining about, only to shockingly wind up disappointed by the cost (gosh, it's almost as if broadcasters dictate the pricing for both services!).

Each time one of these stories pops up (from Gizmodo to USAToday,) we note how these writers are completely missing the point. Cord cutters aren't trying to precisely mirror traditional cable bundle, they're simply looking for greater flexibility. Cord cutting provides just that, in that if you don't like sports -- for example -- you don't have to subscribe to any services that offer it. As such, "cord cutting is really expensive when I subscribe to every streaming service in the known universe" is just an odd narrative that just keeps bubbling up across various media outlets despite not really making much sense.

The latest culprit is the New York Post, which recently penned a missive declaring that "streaming TV is getting as bad as cable." Why? Again, it's apparently because when you sign up for every streaming service imaginable, it starts to get somewhat expensive:

"Home entertainment is really starting to add up. Want to watch “The Crown,” “The Handmaid’s Tale,” “Transparent,” “Game of Thrones” and “Homeland”? Prepare to drop $51 a month — minimum. And that number doesn’t even include your Internet package or basic options such as Food Network, Travel Channel and Syfy.

And just when we thought we’d reached maximum capacity, in September, CBS will resurrect “Star Trek” for a new series called “Discovery.” Fans rejoiced at the announcement — they’d been without a “Trek” series for 12 years — until they made a rude discovery of their own: The new show would only be available on the CBS All Access app. That’s $5.99 a month to basically watch one show. Absolutely nobody is signing up for the “NCIS” reruns. So now we’re at $57 a month.

So, several things. One, $57 a month is still significantly less money that what many people pay for cable. Two, writers like this ignore a number of obvious realities that can lower your costs further, including the fact that countless people share streaming service passwords (something most streaming companies don't care about because they see it as free advertising). You also need to factor in things like over the air antennas (and the rising number of solutions that let you record this content to DVR), which provide additional options for less money -- or free.

Writers like this also hysterically like to avoid so much as mentioning piracy. Too many writers bizarrely act as if you're not allowed to even acknowledge piracy exists because it's naughty. But if you're "analyzing" how much it costs for an ordinary consumer to get TV content and you're not factoring in piracy, you're missing a fairly massive part of the overall picture. It doesn't really matter if you or your publisher don't like it, or don't think people should be doing it. It's happening, it's part of the overall cost-saving picture, and it's something companies have to compete with. Yet it's never even mentioned in these reports.

That said, journalists pushing the "if I buy everything in the store it gets expensive" narrative are missing the most important point: actual consumers repeatedly say cord cutting saves them significant sums of money each and every month. And if any of these writers had actually bothered to, say, talk to actual cord cutters, they would tell them the same thing.

Every time a story like this pops up I enjoy heading over to Reddit where users quickly point out how cord cutting is saving them plenty of money. Why? Because it provides something most traditional cable providers aren't willing to: flexibility and choice. With cord cutting, the end user gets to decide how to best balance their viewing options to build a content package that works for them and their budget. That's in contrast to your cable provider, who'll consistently pay empty lip service to choice and flexibility, right before it raises both your cable bill and set top box rental fee.

Yet somehow the reality that consumers are truly saving money escapes these pearl-clutching authors. Like in this recent story at Wired pushing the same, stale narrative. One user at Reddit put their objection to these reports rather succinctly:

"I don't know why every article like this dives into recreating cable, and then laments that it's not that much cheaper than cable. He's way more concerned with watching channels than watching shows or entertainment."

Look, if you really like paying a significant sum of money for 500 channels to a company with a worse customer service rating than the IRS nobody's stopping you. In fact, if you truly need to access every shred of programming imaginable and have oodles of disposable income, cable remains your best bet. But the idea that cord cutting is somehow "failing" just because it's not good at mirroring the abysmal value presented by the traditional cable bundle makes no coherent sense. At the very least, the next time you proudly declare that cord cutting doesn't save consumers money -- perhaps talk to some actual consumers first?

Fake news is old news now. The hope has to be that we have all become slightly more suspicious when we read astonishing stories online (well, we can hope). It also means that those peddling fake news have to work a little bit harder to make us fall for their tricks. Like this:

Fake articles made to look like they have been published by legitimate news websites have emerged as a new avenue for propaganda on the internet, with experts concerned about the increasing sophistication of the latest attempts to spread disinformation. Kremlin supporters are suspected to be behind a collection of fraudulent articles published this year that were mocked up to appear as if they were from al-Jazeera, the Atlantic, Belgian newspaper Le Soir, and the Guardian.

The Guardian report on this new development says that it's not just a matter of getting the typography and layout right: even the domain names are similar. For example, the fake Guardian site's URL replaced the usual "i" in Guardian with the Turkish "ı" -- a tiny change that is easy to miss, especially when it's in a URL.

What's particularly problematic with these fake newspaper sites is that their domain names add an extra level of plausibility that make it more likely the lie will be spread by unsuspecting Internet users. Even when stories are debunked, the online echo of the false information lives on as people re-post secondary material, especially if legitimate sites are fooled and repeat the "news" themselves, lending it a spurious authenticity. Taking down the material can make things worse:

Ren TV, which has a history of producing pro-Kremlin content, did a piece portraying the removal of the article as a deletion by the Guardian of a true article, an angle also taken by an Armenian outlet following the fake Haaretz piece on the Azerbaijani first family.

In other words, deletion might be used as "proof" that powerful forces did not want people to see the "truth". Even though the original is removed, the rumors and conspiracy theories might actually increase as a result. This latest evolution of fake news shows that we are still nowhere near to tackling the problem. Indeed, it looks like things are going to get worse before they get better -- assuming they do.

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It looks like the FBI has secured another anti-terrorism "win." Once again, the agency controlled the terrorism sting from beginning to end, ensuring the suspect communicated with no one but confidential informants and undercover agents. And, once again, the FBI has utilized the sort of person who probably poses more harm to themselves than others.

The FBI has arrested an Oklahoma man on charges that he tried to detonate what he thought was a 1,000-pound bomb, acting out of a hatred for the U.S. government and an admiration for Oklahoma City bomber Timothy Mc­Veigh, according to court papers.

Jerry Drake Varnell was arrested shortly after an attempt early Saturday morning to detonate a fake bomb packed into what he believed was a stolen cargo van outside a bank in Oklahoma City, according to a criminal complaint filed in federal court. He was charged with attempted destruction of a building by means of an explosive.

This is taken from the FBI's statements and criminal complaint [PDF]. There's another side to the story -- some of which can be sussed out from the complaint itself. Varnell's family, however, has stepped up to offer their side of the story -- one that involves Varnell's paranoid schizophrenia, which goes unmentioned in the government's filings.

We as a family are extremely distraught about this situation with our son Jerry Drake Varnell, but what the public must understand is that he is a paranoid schizophrenic and is extremely susceptible to different types of ideology that normal people would deem immoral. Underneath his condition, he is a sweet-hearted person and we are extremely shocked that this event has happened. However, what truly has us flabbergasted is the fact that the FBI knew he was schizophrenic. The State of Oklahoma found him mentally incompetent and we, his parents have legal guardianship over him by the Court. These documents are sealed from the public, which is why no news media outlet has been able to obtain them. The FBI clearly knew that he was schizophrenic because they have gathered every ounce of information on him.

If true, this prosecution will make the FBI's counterterrorist operations look even worse. This isn't the first time the FBI has exploited the weakest of humans to rack up terrorist busts. This includes the prosecution of a man agents referred to as a "retarded fool" and the dumping of an 18-year-old with a 51 IQ into the lap of local prosecutors. Now we have the FBI steering a paranoid schizophrenic into a self-destructive path, utilizing a confidential informant who apparently made several misrepresentations during his work with the FBI.

The CI claimed to have seen a "bunker" at Varnell's home (where he lived with his parents because he is mentally unable to live on his own). The Varnells claim the "bunker" is nothing more than a partially-buried storage container, meant to be used as a storm shelter. Adding to its un-bunkerlike aspects are the fact that it locks from the outside and contains no food, water, or source of electricity.

From the criminal complaint, other facts emerge. Varnell lived with his parents and only had access to the full residence occasionally. Varnell talked about bombing US government buildings but was unable to secure a vehicle to house the explosives. (He told the undercover agent he might be able to "borrow" a vehicle from some relatives.) The affidavit says the undercover agent supplied everything needed to build the explosive device -- not a single element came from the alleged terrorist. The undercover agent also supplied the vehicle.

So, in the end, the FBI got its man: Jerry Drake Varnell, lifelong schizophrenic with the inability to obtain a vehicle, much less build his own bomb. Varnell talked a lot about sending a message to the government using violent means, but it's unclear how much he actually would have done if he hadn't been nudged towards self-destruction by an overly-helpful CI and FBI undercover agent.

According to the Varnells, this may never have gone this far if the FBI's informant had simply done what he'd been told. The Varnells claim Jerry Varnell's father kicked the CI off the property and told him he'd be arrested for trespassing if he came back. This was due to apparent drug abuse by the CI. And yet, the CI returned, presumably at the behest of the FBI, which was willing to overlook the CI's drug use if it could keep its terrorism sting on track.

Varnell's lawyer has asked for a hearing [PDF] to determine whether Varnell is competent to stand trial. Based on Varnell's long history of mental illness, it would seem apparent the man can't be expected to stand trial, much less carry out an attack on a federal building… at least not without a lot of outside help from the feds themselves.

Earlier this year, a Pennsylvania magistrate judge decided Google needed to turn over data to US law enforcement despite it being housed (possibly temporarily) in overseas servers. The overseas housing was simply part of Google's data flow, which routes communications around the world for efficiency, rather than to keep them out of local governments' hands.

This contradicted an earlier decision by the 2nd Circuit Appeals Court, which ruled Microsoft did not have to turn over data held in overseas servers in response to a US search warrant. The fact that Google does not explicitly hold certain data in certain servers was key to this decision. The conclusion the magistrate reached was no seizure of the data took place until Google stopped the data flow and gathered it up locally. That decision seemed to rewrite the definition of the word "seizure," as the warrant compelled Google to grab the data and compile it domestically. Stopping the flow of data traffic to grab stuff certainly sounds like Google is "seizing" it -- and it's only doing so because the government has ordered it to.

Google asked for a judicial review of the magistrate's decision. Unfortunately, the Pennsylvania federal judge one step up from the magistrate has upheld the magistrate's order. (h/t Brad Heath) From the memorandum [PDF]:

Although Google and each of the account holders in question are based in the United States, Google contends it is the physical location of the data to be retrieved—which Google, not the account holder, controls, and which Google can change at any time for its own business purposes—that determines whether the statute is being applied extraterritorially. Because this Court agrees with the government that it is the location of the provider and where it will disclose the data that matter in the extraterritoriality analysis, and because Google can retrieve and produce the outstanding data only in the United States, the Court agrees with the Magistrate Judge’s conclusion that fully enforcing the warrants as to the accounts in question constitutes a permissible domestic application of the SCA. The Order granting the government’s motions to compel will therefore be affirmed.

The memorandum runs several pages, but basically reiterates the magistrate's findings. The warrant is lawful under the Stored Communications Act and provides for the seizure of the data requested. That the data is located extraterritorially would normally pose a problem, but Google's overseas data stores are only filled for Google's convenience, rather than being a place where any of the sought data resides permanently. This decision basically lays it all out for US service providers, stating that because warrants are served to their domestic offices, data located anywhere in the world is within reach of a US search warrant.

The court gets around the contradictory nature of its conclusion by quoting heavily from the dissenting judges in the 2nd Circuit Appeals Court decision.

Although the panel decision in the Microsoft case was unanimous, the decision drew vigorous opposition from other judges of the Second Circuit when the case came before the full court on the government’s petition for rehearing en banc. The petition was denied by an equally divided court, but the denial generated four separate dissents by judges who agreed that enforcing an SCA warrant to require a domestic service provider to disclose information in the provider’s possession, which the provider can access within the United States, constitutes a domestic application of the statute’s warrant provision, regardless of where the provider has elected to store the information. See Microsoft Reh’g, 855 F.3d at 61-62 (Jacobs, J., dissenting); id. at 66-68 (Cabranes, J., dissenting); id. at 70-73 (Raggi, J., dissenting); id. at 75-76 (Droney, J., dissenting). The Microsoft court’s analysis has also been rejected by every magistrate judge and district court that has considered the issue to date, including the Magistrate Judge in this case.

However, there's nothing in the memorandum that even hints at the dangerous precedent the court is helping set. The Pennsylvania court views the Second Circuit decision as an anomaly and will afford it zero respect when discussing challenged warrants. Presumably, ignoring an outlier will continue through any suppression hearing once this case moves forward. Google will certainly appeal this decision, but the absence of favorable rulings from within this circuit (Third Circuit) likely make this non-starter. As it stands now, one circuit in the nation holds the government to the letter of the law when issuing SCA warrants. For everyone else, it's still up in the air, with more courts likely to side with the 2nd Circuit dissent, which will result in more US law enforcement demanding data from overseas simply because they have a US entity to hand the warrant to.

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With the direction of intellectual property rights in America generally being driven down a one-way street towards expansionism, the associated culture of permission has ridden sidecar. Unlike intellectual property rights, however, permission culture is bound not by statute and legal interpretation, but rather by the wider understanding of public opinion on those matters, which tend towards being flawed and uninformed. Still, permission culture counts even large corporate interests with lofty legal budgets among its victims.

See, for instance, the recent revelation that Major League Baseball's upcoming "Players Weekend" jerseys, which will feature hip player nicknames on the backs of jerseys, will not feature all the nicknames players requested as MLB attempts to navigate the tumultuous trademark waters.

Major League Baseball is playing it safe with player nicknames that will adorn novelty uniforms during what it calls Players Weekend at the end of August. But there won't be any nicknames that could possibly bring MLB trademark infringement troubles.

However, Philly.com reported that at least two Philadelphia Phillies players were denied their preferred nicknames because of intellectual property concerns. Zach Eflin and Hoby Milner wanted to wear the nicknames "Led Zeflin" and "Hoby Wan Kenobi" on their backs, but MLB nixed them. Promo Marketing Magazine reported that MLB rejected "Kojak" as a nickname for Adrian Beltre of the Texas Rangers. He'll have to settle for "El Koja" instead.

Now, the article makes the point that this isn't strictly about players having these names on their jerseys during games. It's also about MLB being able to sell and market those jerseys and concerns that actually selling jerseys with those names would open up serious trademark actions. But whether or not that concern is actually valid is an open question. Entities like Led Zeppelin and LucasFilms/Disney are not remotely in the baseball business, even if they are in the apparel business. These names, however, are pretty clearly a form of parody, even if its the lame pun type of parody. There's also zero in the way of potential customer confusion. This isn't to say that there would be absolutely no merit to a trademark claim brought by those groups, but it should be obvious that how meritorious those claims are would require a fight in court to decide.

But those viewing this through the lens of the culture of permission will see the infringements here as obvious. After all, they are references to other works and that kind of fun cannot be had unless licenses are paid. It's as though all of culture is constrained by some sort of first-to-file, or first-to-create standard, with fun gimmicks like Players Weekend in baseball living only at the pleasure of pure originality. Harm to others is not the concern; it's all about squeezing every possible revenue stream out there.

Eric Ball, an intellectual property lawyer with Fenwick & West LLP, Mountain View, Calif., said that “Hoby Wan Kenobi” probably wouldn’t harm the Walt Disney Co.’s Star Wars trademark if it appeared on the player’s shirt.

“But it’s a source of licensing revenue that those companies could have used,” Ball said. “Also, it’s not necessarily three days, because how long will these jerseys stay in the MLB shops?”

As we said, that's true, but the purpose of trademark is not and never was to keep anyone anywhere from ever making any money off of content that is not purely original and without nod or reference. But here we are. Thanks to permission culture.

The DC Court of Appeals has shot some holes [PDF] in a favorite law enforcement assertion: that cellphones are automatically containers of criminal evidence just because suspected criminals -- like nearly everyone else in the nation -- have cellphones. A criminal case involving a suspected getaway driver for a year-old homicide somehow led to police seeking a warrant to seize and search all electronics found at the suspect's current residence.

The details of the case are as follows: defendant Ezra Griffith talked to a couple of people about law enforcement's interest in his vehicle, which was apparently caught on surveillance cameras near the homicide crime scene. He had these discussions while incarcerated for something else, acting as his own tipster by discussing the car on jail phones. (ALL CALLS ARE RECORDED, etc.)

After being released, Griffith moved in with his girlfriend. Police sought a warrant to search this residence as part of its ongoing homicide investigation. The 22-year law enforcement veteran who obtained the warrant made the following declaration in his affidavit:

Based upon your affiant’s professional training and experience and your affiant’s work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the Internet, to include Facebook, Twitter and E-mail accounts.

Based upon the aforementioned facts and circumstances, and your affiant’s experience and training, there is probable cause to believe that secreted inside of [Lewis’s apartment] is evidence relating to the homicide discussed above.

What wasn't mentioned was anything indicating a) Griffith owned a cellphone or b) evidence related to last year's homicide would be found on it. Obviously, the cop swearing out the warrant didn't have much confidence in this assertion either, as he broadened it to cover all electronics located in an apartment that, until very recently, had only been lived in by Griffith's girlfriend.

As the Appeals Court points out, there's not enough in the warrant to support these assertions.

The government’s argument in support of probable cause to search the apartment rests on the prospect of finding one specific item there: a cell phone owned by Griffith. Yet the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cell phone, let alone that any phone belonging to him and containing incriminating information would be found in the residence. At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach.

It's not that the warrant was short on probable cause. It's that it was the wrong kind of warrant for the assertions made.

Here, the lion’s share of the affidavit supporting the warrant application is devoted to establishing Griffith’s suspected involvement as the getaway driver in a homicide. That information might have established probable cause to arrest Griffith for his participation in the crime. The warrant application, though, was for a search warrant, not an arrest warrant. And to obtain a warrant to search for and seize a suspect’s possessions or property, the government must do more than show probable cause to arrest him. The government failed to make the requisite showing in this case.

As the court notes, the warrant asked for all kinds of things it had no business asking for, not with the dearth of supporting probable cause for a search. It allowed the police to seize any electronic device found in the residence, along with any other documents, newspapers clippings, photographs, etc. related to the homicide.

The court also says the officer made a logical leap he shouldn't have. While it is indisputable cellphones are ubiquitous, there's nothing in the affidavit supporting the officer's conclusion Griffith owned one.

There was no observation of Griffith’s using a cell phone, no information about anyone having received a cell phone call or text message from him, no record of officers recovering any cell phone in his possession at the time of his previous arrest (and confinement) on unrelated charges, and no indication otherwise of his ownership of a cell phone at any time. To the contrary, the circumstances suggested Griffith might have been less likely than others to own a phone around the time of the search: he had recently completed a ten-month period of confinement, during which he of course had no ongoing access to a cell phone; and at least one person in his circle—his potential coconspirator, Carl Oliphant—was known not to have a cell phone.

The court points out the government could have avoided this mess. It had enough for an arrest warrant. With that, it could have arrested Griffith and searched him for any belongings, which likely would have included a cellphone. But it chose to go with an amazingly broad search warrant instead -- one that allowed it to seize all electronics before determining if any belonged to the suspect.

The court allows suppression of the evidence. The warrant was invalid upon issuance, thanks to the lack of probable cause. Even good faith can't save it.

We conclude that the affidavit in this case fell short to an extent precluding good-faith reliance on the warrant. As explained, the government’s theory of probable cause to search the apartment runs as follows: (i) Griffith might own a cell phone; (ii) if so, his phone might be found in the residence; and (iii) if so, the phone might retain incriminating communications or other information about a crime committed more than one year earlier. Whatever may be the reasonableness of any of those inferences standing on its own, demonstrating probable cause required adequately establishing all three in combination. The affidavit did not approach doing so. It provided no explanation at all of whether Griffith might own a phone or whether any such phone might be in his home. And with regard to whether any phone would retain any incriminating information about a shooting occurring more than one year beforehand, it observed only that gang members often stay in contact about their activities.

In this case, it's nothing found on the devices being suppressed, but the gun tossed out the window by Griffith when police knocked on his girlfriend's door. Along with the suppression comes the reversal of Griffith's conviction.

The dissenting opinion, written by Judge Janice Brown, is positively overwrought in its fear of what this decision will do to "good" police officers who are used to relying on broad assertions and compliant magistrates.

This result is directly contrary to the purpose of the exclusionary rule and Supreme Court precedent that reserves suppression only for the most serious police misconduct. If courts are going to impose a remedy as extreme as excluding evidence that is probative, reliable, and often determinative of a defendant’s guilt, we have a duty to protect officers who are doing their best to stay within the bounds of our ever-evolving jurisprudence. We live in a society where virtually every action an officer takes is now being heavily-scrutinized. Thus, the need for vindication when law enforcement officers behave in an exemplary fashion is more critical than ever. Unfortunately, the officers in this case are not going to get the vindication they deserve. Furthermore, I have no doubt this case will be used in future cases to further undermine the good faith exception until either this Court sitting en banc or the Supreme Court steps in to cure today’s grievous error.

This is a bit much, considering the good faith exception is pretty much the rule everywhere and the government routinely survives suppression motions in all but the most egregious of cases. Asking cops to provide probable cause before seizing and searching electronics is just following the word (and spirit) of the Supreme Court's Riley decision, which makes cellphones (and other electronic devices) every bit as sacrosanct as the homes and lives they vicariously represent.