Court Gives Its Blessing To FBI’s J6 Geofence Warrant, Denies Motion To Suppress

Legal Issues

from the tons-of-data-in-a-pretty-tight-fence dept

Geofence warrants are just part of day-to-day cop business these days. Rather than moving forward with a list of suspects, law enforcement agencies just ask for data on everyone in a certain area at a certain time and move backwards to probable cause to investigate and arrest.

When a bunch of violent jackasses stormed the Capitol in hopes of disrupting a (no longer peaceful) transition of power, they immediately became targets of federal investigators. The Capitol raid gave investigators a haystack of targets, all generating another, larger haystack of location data. The best place to get this data in bulk is from Google, which really enjoys collecting location data.

Shortly after the insurrection attempt, the FBI issued lots of geofence warrants and began working its way back to a (long) list of suspects. How much data the FBI initially obtained wasn’t revealed until a J6 suspect challenged one of the FBI’s geofence warrants in court. It was a lot.

A filing in the case of one of the January 6 suspects, David Rhine, shows that Google initially identified 5,723 devices as being in or near the US Capitol during the riot. Only around 900 people have so far been charged with offenses relating to the siege.

[…]

For the final step, the government sought subscriber information, including phone numbers, Google accounts, and email addresses, for two groups of users. The first was for devices that appeared to have been entirely within the geofence, to about a 70 percent probability. The second was any devices for which the Location History was deleted between January 6 and January 13. 

From this, in early May 2021, the FBI received identifying details for 1,535 users, as well as detailed maps showing how their phones moved through the Capitol and its grounds.

The suppression motion filed last month has been denied. The ruling [PDF] from the DC District Court does have a few problems with geofence warrants generally, but not this particular one. (h/t Michael Vario)

Drawing from a dearth of precedent (one federal court opinion and six magistrate judge examinations of warrant requests), the DC court moves toward creating some of its own.

First, it says the warrant was not “overbroad,” no matter how much data was sorted through by Google and given to the FBI.

Specifically, Defendant first argues that step one, in which Google provided the Government with an anonymized list of devices falling within the geofence’s geographic and temporal parameters, was overbroad because it required Google to query its entire Sensorvault without probable cause “to search untold millions of unknown accounts in a massive fishing expedition.” But, as the Government points out, the relevant question is not how Google runs searches on its data, but what the warrant authorizes the Government to search and seize. Under Defendant’s theory, no doubt many search warrants and most third-party subpoenas for protected records would be unconstitutionally overbroad because they necessarily would require the third party to search some group of records larger than those specifically requested, whether they reside in a file cabinet or on a server…

The court also says there’s no expectation of privacy in anonymized location data. Referencing the Supreme Court’s Carpenter decision, it says hoovering up massive amounts of data related to hundreds of devices isn’t the same thing as harvesting data targeting a particular device over the space of days or weeks. But even though it comes to this conclusion, it still says geofence warrants have the potential to do damage to Fourth Amendment rights.

Defendant has made no allegation that his or others’ identity was knowable based on the anonymized list produced at step one, and considering the geographic and temporal limitations on the geofence area, it likely would not be possible to deanonymize the list indirectly by cross-referencing more revealing location points—for example, the location where the device spent the night. Accordingly, on the facts of this case, the Court has no basis on which to find that Defendant’s Fourth Amendment rights were implicated at step one.

That said, the Court acknowledges that the scope of legally obtainable anonymous data made possible by geofencing technology could present potentially significant risks to privacy, even if those privacy interests cannot be expressed through Defendant’s challenge to step one of this particular warrant, on these particular facts, under current law.

Finally, it says the supposed overbreadth of the warrant was justified by the scope of the (mass) criminal event.

At the outset, because a warrant’s authorization may be “no broader than the probable cause on which it is based,” Hurwitz, 459 F.3d at 473 (citation omitted), it is necessary to define the scope of that probable cause. January 6 was a unique event in a geographically unusual place such that the scope of probable cause was uncommonly large. Because the Capitol building was not open to the public on January 6 due to the counting of the votes of the Electoral College, the fact of having entered the building during the geofence timeframe itself constitutes evidence of a crime…

Based on an unusual abundance of surveillance footage, news footage, and photographs and videos taken by the suspects themselves while inside the Capitol building, there is much more than a “fair probability” that the suspects were within the geofence area and were carrying and using smartphones while there, such that their devices’ LH would provide evidence of a crime.

Also, the geofence set up by the FBI was extremely unlikely to cast a dragnet full of innocent bystanders, given the Capitol building’s location.

[A]s relevant to the 37 deleted devices, the area around the Capitol is unusual for its lack of nearby commercial businesses or residences. Indeed, while Defendant does not make any specific allegations about any such nearby buildings, the Court’s best estimate is that the nearest is no less than about a quarter of a mile away, or approximately 400 meters. By Defendant’s own admission, the error radius is not known to exceed 387 meters, Def.’s Mot.Suppress at 8, and the error radius for Defendant’s location points in particular extends only as high as 264 meters…

Furthermore, while public streets do appear to be somewhat closer to the geofence area, extensive road closures west of the Capitol, in anticipation of the rally on the ellipse on January 6, including on Pennsylvania Avenue, reduce the likelihood that any stray cars would have been picked up in the geofence error radius…

To its credit, the FBI set up a very tight geofence.

And it could do it in this case because, as the court pointed out, pretty much everyone in the Capitol building that didn’t work there was, at the very least, trespassing on federal property.

And, even if it hadn’t found this particular warrant in this particular case to be constitutional, the court still would have given the government a pass on this one. The good faith exception would apply, especially since the defendant’s particularity arguments seem to focus more on the size Google’s data dump, rather than the warrant approved to obtain the location records from Google.

This denial can be appealed. And maybe it will be. But given the facts of the case here, it seems unlikely the DC Appeals Court will find any reason to overturn the lower court’s ruling. The facts favor the FBI here and the dearth of existing precedent will likely result in future applications of the good faith exception. That doesn’t mean these warrants aren’t worth challenging. It just means this geofence warrant was better crafted than most.

Filed Under: 4th amendment, fbi, geofence warrants, january 6th
Companies: google

Elon Promises A Free API For ‘Good Bot Content,’ Again, Demonstrating He Has No Idea How Any Of This Works

Failures

from the whims-are-not-policy dept

It’s been clear since the takeover, that Elon’s running Twitter entirely based on his fleeting and oft-changing whims. The weird decision last week to suddenly, with one week’s notice, remove the free tier for Twitter’s basic API, has create a bit of an uproar, as tons of tools, services, and useful bots made use of it. Many have been posting farewell messages on Twitter, leading Musk (as he seems to do all too often) to announce a policy change in a reply tweet. He did this when he rolled back his bizarrely stupid policy that you were no longer allowed to link to other social media (a policy so obviously stupid, that only Musk’s mother would defend it). Musk rolled that one back in a reply tweet — meaning a tweet that very few people would see, because they don’t show up nearly as much.

Here, Musk responded to a tweet from the automated @PepitoTheCat account, which pointed out his account would have to be shut down under this new policy. The new policy, according to Musk in this reply tweet (which got many fewer views that his regular tweets) is that:

I guess we could give all Verified users access to the API for posts like this

Responding to feedback, Twitter will enable a light, write-only API for bots providing good content that is free

Really.

So… the policy might be that “all verified users” get access to the API… but only for “posts like this.” Or… it could be that a “write-only API” (don’t even get me started on how nonsensical that is) for “bots providing good content that is free.”

The point is: these are not policies. These are brain fart whims. This is no way to run a business with many millions of users.

Of course, it’s reminiscent of the naivety that Musk has demonstrated about all of this before. Like when he declared that content moderation was simple: you just delete the “wrong and bad” stuff, and support the “good” content.

Okay, genius: define “good.” Define “good” in a manner that your remain team of flying monkeys can put it into practice without having to constantly consult your tweet replies to see if they’re doing it right.

The process of content moderation on a competent trust & safety team involves crafting a policy that can be understood by the team in charge of carrying it out. Creating a truly exceptional policy would be one that most users can understand.

None of that is happening here. Musk’s random “well, if it’s good” they can get some sort of weird sorta API access is not fixing anything. This is what good trust & safety teams actually do, and what they’re skilled at doing. It’s a constant challenge, of course, because as you write policies, you’ll constantly be running up against exceptions and things that challenge the policies. But saying “make an exception for ‘good’ bots” is worse than useless.

It’s simply reinforcing just how risky and ridiculous it is for anyone to build anything that relies on Twitter today. Who knows what nonsense will come from a random reply Tweet to a cat meme tomorrow?

Meanwhile, I’ll just note that over the weekend, I discovered three new services being built on the Mastodon API that are replacing things I used to use Twitter for. One of which, FeedSeer, is basically just like TweetShelf, an incredible Twitter tool that seems likely to need to shut down thanks to these changes.

Filed Under: api, bots, content moderation, elon musk, good content
Companies: twitter

Netflix’s Unnecessary Password Crackdown Is Already A Hot Mess

Failures

from the annoyance-as-a-business-model dept

Netflix’s password sharing crackdown hasn’t even launched yet in the States, but is already a public relations mess.

The plan is to try to force Netflix customers to pay an extra $2-$3 every month for service for any users using your credentials outside of the home. An accidentally leaked Netflix help guide last week indicated that users who don’t log into their Netflix account in a 31 day period would face the new surcharges, something that didn’t go over well with either users or celebrities that travel a lot.

The company was then forced to backtrack, stating the guides were posted in error, and intended for customers in countries like Chile and Peru where the crackdown had already launched. Those efforts, as we’d mentioned previously, were also reportedly a confusing mess for subscribers in those countries, who say it was never really clear how the inconsistently-enforced system actually worked.

Netflix is embracing the move because the company’s growth has hit a wall internationally, forcing it to begin nickel-and-diming existing subscribers if Wall Street is to get its improved quarterly returns.

The problem: Netflix has already raised rates recently, and already charges users more money if they want to be able to play multiple streams simultaneously, meaning they’re effectively double dipping after more than a decade of informing customers that they fully supported password sharing.

Netflix is convinced that the move will net them millions in additional revenue, but as we’ve also previously noted, projected revenues from the crackdown don’t appear well-rooted in reality. Some analysts have been highly skeptical that Netflix’s password crackdown pays significant dividends at all:

Benchmark Co. analyst Matthew Harrigan, in a note last week, expressed skepticism that it would be a “growth game-changer,” opining that the strategy “cannibalizes full-ride member growth.” He pegged the incremental revenue lift at less than 4% revenue, even with generous assumptions about how many piggybackers Netflix might be able to convert to Extra Member accounts.

The question then is: is that modest bump in revenue worth alienating and annoying your existing customers in a competitive streaming market? We’re apparently going to find out.

To be clear, I still think Netflix has value at its current monthly rate, and many people who complain about the new rate hikes are lazy and likely won’t cancel. On the flip side, this move remains the latest signal from the company that it’s done with being innovative and disruptive and has, as publicly traded companies usually do, shifted toward nickel-and-diming and turf protection as it attempts to fend off competitors.

But angering your customers, and making them more likely to shift to competitors that don’t try and nickel-and-dime users, isn’t a particularly brilliant business plan any way you slice it. And if the rollout is as sloppy as it was in Chile and Peru, this won’t be the last screw up users experience.

Filed Under: cable tv, competition, netflix, password sharing, password sharing crackdown, streaming, tv, video
Companies: netflix

Daily Deal: Deepstash Bite-Sized Knowledge

Deals

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

Deepstash is a platform for finding and organizing the ideas that matter to you. It helps you become more inspired, wiser, and productive, through bite-sized ideas. These ideas are represented as little cards you can read at a glance, and all ideas have a source: a book, an article, a podcast, etc. Topics covered include: personal development, productivity, psychology, mindfulness, philosophy, and much more. A two year subscription is on sale for $80.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

A Couple Of Fifth Circuit Appeals Court Judges Look Like They Believe Performing Journalism Is A Criminal Act

Legal Issues

from the apparently-the-government-needs-more-rights dept

In 2018, Laredo (TX) police officers arrested independent journalist Priscilla Villarreal after she published the name of a Border Patrol agent who had committed suicide. The alleged crime was “misuse of official information.” But all Villarreal had done was perform an act of journalism: she had asked Laredo police officer Barbara Goodman to verify information she’d obtained elsewhere.

Rather than limit itself to punishing Goodman for leaking information the PD hadn’t made public yet, it went after the local journalist — one many local cops didn’t care for. This move was an anomaly. No journalist has ever been arrested under this statute, mainly because it’s an anti-corruption law meant to deter politicians from using official information to personally enrich themselves.

But the cops claimed the fact that Villarreal had a Facebook account with followers was enrichment in and of itself, stating that she was using this information to attract more viewers for her livestreams. It was all obviously bullshit. It was so obvious the Fifth Circuit denied immunity… twice. First, it stripped the immunity the lower court awarded.

If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well.

[…]

If freedom of the press guarantees the right to publish information from the government, then it surely guarantees the right to ask the government for that information in the first place.

[…]

Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them? See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

Then it republished the opinion a few months later, this time with an extremely stupid dissenting opinion attached.

That dissent was written by Chief Judge Priscilla Richman. Her dissent was torn apart by Judge James Ho, who more politely summarized her arguments this way:

The dissent claims that this concurring opinion “directly conflicts with the majority opinion’s holding.”

I don’t see how. There are two separate and independently compelling reasons why reversal is warranted. And they’re entirely compatible with one another. First, § 39.06(c) can and should be construed not to prohibit Villarreal’s acts as a journalist. Second, if that’s wrong, and the statute does in fact criminalize Villarreal’s acts as a journalist, then § 39.06(c) is obviously unconstitutional.

So far, so good. But two months later, the Fifth Circuit pulled the opinion ahead of an en banc hearing — one prompted by an unnamed judge’s demand the case be reheard.

A member of the court having requested a poll on the petitions for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor,

The smart money says Judge Richman is the “member of the court” who wanted this reheard. I guess it simply wasn’t enough that the Fifth republished its original decision just so it could attach her ridiculous dissent that basically said using an anti-corruption law to jail a journalist is cool and legal.

But to come out ahead in a poll, Richman would need some allies who felt it isn’t clearly settled that it’s a rights violation to arrest journalists for doing journalism. Cameron Langford, covering the oral arguments for Courthouse News Service, has made it much easier to spot Judge Richman’s anti-speech, pro-cop buddies.

A schism emerged in Wednesday’s hearing between Ho and one of his most outspoken colleagues, U.S. Circuit Judge Edith Jones.

Villarreal’s attorney, Morris, argued in his opening that qualified immunity does not shield the defendants because it was clearly established the First Amendment protected Villarreal asking a Laredo police officer questions about two public incidents and then reporting what the officer shared.

Morris said in a nutshell, the basis for her arrest was “routine journalism.”

But Jones pushed back. The Ronald Reagan appointee noted a magistrate judge signed the arrest warrant affidavit prepared by Laredo police and said all the elements of the offense—that Villarreal received nonpublic information from a government official and obtained a benefit—were laid out in the criminal complaint against her.

Jones is definitely on Judge Richman’s side. Her legal history shows there are plenty of rights and protections she feels certain people just shouldn’t have.

In her opinions, she has questioned the legal reasoning which legalized abortion, advocated streamlining death penalty cases, invalidated a federal ban on possession of machine guns and advocated toughening bankruptcy laws. In 2006, Chief Judge Jones found that a death row inmate who had filed a pro se motion to drop his appeal while his attorney was abroad could not later reinstate his appeal.^[7] In June 2017, Jones dissented when the court found that a university did not violate the Due Process Clause or Title IX when it expelled a student for committing a campus sexual assault as well as his girlfriend, who had recorded the assault and shared the video on social media.^[8][9] In May 2018, Jones wrote for the court when it found that Texas Senate Bill 4, which prohibits local governments or public employees from criticizing federal immigration enforcement or from praising sanctuary cities, did not violate the First Amendment.^[10][11]

Who else thinks journalists should be arrested for doing journalism?

Texas Attorney General Ken Paxton’s office intervened in the case and urged the Fifth Circuit to affirm the lower court’s dismissal of Villarreal’s claims.

And the state AG felt he needed to get involved despite the law having already been declared unconstitutionally vague en route to prosecutors dropping the felony charges against Villarreal.

Everything is still up in the air in the Fifth. Strongly worded opinions (the original and Judge Ho’s concurrence) upholding the plainly obvious free speech rights of journalists were swept away because a couple of judges apparently believe people should have fewer rights and cops should have more options when seeking to silence critics.

Filed Under: 1st amendment, 5th circuit, journalism, misuse of official information, priscilla villarreal, qualified immunity

Funniest/Most Insightful Comments Of The Week At Techdirt

Techdirt

from the social-graph dept

This week, both our winners on the insightful side come in response to our post about Elon Musk’s new API pricing plan for Twitter. The first place winner is actually a response to the second place winner, so we’ll present them in reverse order. First off, in second place, it’s James Burkhardt responding to Twitter’s marketing-speak around the move that emphasizes the value of accessing Twitter’s data:

I feel like this shows us something about how Musk misunderstands twitter. He vaguely understands that the ability to look at twitter with the API can be valuable, but only in this passive function, as a data set. He fundamentally misunderstands that twitter isn’t a revenue center for most of its users. He fundamentally misunderstands that having users and content is twitters draw. And he fundamentally misunderstands that while he needs users to drive ads and he needs content to drive twitter’s value to users, his competitors invite that content for free.

In first place, it’s Thad with a reply to that comment:

Stephen King explained this to him at the outset. “I’m providing value to you; if anything, you should be paying me.” (I’m paraphrasing but it was something like that.)

It’s a variation on the old canard that users aren’t customers, they’re the product. Musk can’t understand that and refuses to believe it when people explain it to him. He’s weirdly determined to squish Twitter into an economic model that it really doesn’t fit at all.

For editor’s choice on the insightful side, we start out with a comment from Ninja in response to one of the few people who defend Netflix’s password-sharing crackdown on the basis that “people should pay for what they use”:

I already pay for 4 screens and have been using it like that for years?

Next, we head to one of our posts about DoNotPay and the investigations into it by Kathryn Tewson, where Kathryn arrived in the comments to respond to an accusation of possible conflict of interest (which also suggested DoNotPay is free):

Hi there! Thanks for your interest. Just wanted to clear a few things up:

1. DoNotPay isn’t free. It costs $18/month, and the first two months are billed up front. The site does not offer free trials.
2. The law firm I work for did not pay me to do this and nobody, client or otherwise, was billed for this investigation time.
3. To put it mildly, I am not concerned about the “World’s First Robot Attorney” putting me or any other legal profession out of work.

If you have any other questions, I’d be happy to take a swing at them for ya!

Over on the funny side, both our winners once again come in response to Musk’s Twitter API plans. In first place, it’s Keroberos who dove in with the first comment on the post:

Hey now, if driving away all the advertisers, users, and third party developers — and completely destroying Twitter in the process gets rid of those pesky bots, it’s a small price to pay. Our boy Elon (being such a big brain, smarty-pants, capable of playing 12D chess), must surely be working from home grand multi-step plan that will become crystal clear to us normies at some point. Right?

In second place, it’s That One Guy who was only a few minutes behind:

Musk: Let all bask in my brilliance, now that app developers have to pay to increase the value of my platform our money troubles are over!

Five seconds later

What do you mean they’re ditching Twitter and shifting focus to other platforms rather than pay extortionate rates for the privilege of enriching me, who could have ever seen that coming?!

For editor’s choice on the funny side, we start out with one more comment from That One Guy, this time in response to another funny comment suggesting that, with all our headlines about ridiculous things Trump does, it might be easier to write about the things he does that aren’t ridiculous:

List of Non-Ridiculous Things America’s Biggest Loser Has Done, to be updated as appropriate:

1) Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum.

Finally, it’s Stephen T. Stone with a response to a comment about Twitter being sued for not paying rent:

I guess running a social media service ain’t rocket science. Then again, neither is being the CEO of a company literally dedicated to rocket science.

That’s all for this week, folks!

This Week In Techdirt History: January 29th – February 4th

Techdirt

from the trademark-through-the-ages dept

Five Years Ago

This week in 2018, while Theresa May was repeating her demands that tech companies control more speech on social media, we hosted a series of posts about content moderation surrounding an event at Santa Clara University, with essays by Eric Goldman, Mike Godwin, Kate Klonick, and more. A UK appeals court said the GCHQ’s mass collection of internet communications was illegal, US senators were demanding an investigation into the intelligence community’s refusal to implement whistleblower protections, and ICE finally got its long-sought-after nationwide license plate database. Apple and Verizon were continuing to lobby against right to repair laws, California’s net neutrality law took another step forward, and the FCC “Broadband Advisory Panel” faced accusations of (surprise, surprise) cronyism. Meanwhile, the NFL was playing its usual game of abusing trademark law around the Super Bowl.

Ten Years Ago

Never to be outdone by the NFL, this week in 2013 the International Olympic Committee was getting an early start on trademarking everything including the number “2014”. We looked at the legal situation for unlocking phones following the removal of the DMCA exemption, a copyright spat over the show Glee exposed some of the ridiculousness of copyright law, and (in what now seems mundane, but was surprising news at the time) Netflix released all 13 episodes of a TV show… at the same time! Meanwhile, the Prenda saga continued (and continued, and continued).

Fifteen Years Ago

Don’t count the NFL out of the trademark stupidity fight, though! This week in 2008, the New England Patriots applied for a trademark on “19-0” to represent an undefeated season, while the league was back to ishutting down Super Bowl parties for having screens that are too big. The RIAA was failing to explain why copyright damages should be higher, while one judge was very unimpressed with their lawsuit bundling strategy. Swedish prosecutors, after much anticipation, finally filed charges against The Pirate Bay, while Swiss officials turned their attention to the illegal tactics of an anti-piracy company. And a UK court followed the US’s footsteps by deciding to allow software patents.

Filed Under: history, look back

No Immunity For Cops Who Shot Man Multiple Times, Then Searched His House For Evidence Of ‘Assaulting An Officer’

Legal Issues

from the CYA-failure dept

There are plenty of valid reasons to seek a search warrant. Investigating a crime you can’t punish anyone for (because you’ve killed them) isn’t one of them.

That’s the upshot of this recent federal court decision — one that will no doubt be appealed to the Fifth Circuit Appeals Court to see if the cop-friendly judges can’t give back the immunity these officers definitely didn’t earn.

This decision [PDF] deals with the killing of Miguel Nevarez by Louisiana law enforcement officers in October 2020. Officer Walter Tenney of the Houma PD was investigating reports of gunshots in Nevarez’s neighborhood. He approached Nevarez, who was sitting in his car, which was parked in his driveway. Tenney tried to engage Nevarez in a conversation but Nevarez refused.

Then this happened:

Plaintiffs allege that Tenney, “without any basis in fact,” reported that Mr. Nevarez possibly had a gun in his car. Tenney and other officers further reported that Mr. Nevarez had “barricaded” himself in his vehicle. Plaintiffs represent that, at this point, the officers “continued to escalate the situation” by blocking off the surrounding streets, and calling for additional backup, which resulted in nearly fifty officers from HPD and TPSO [Terrebonne Parish Sheriff’s Office] arriving at the scene.

If escalation is the first move, confrontations like these tend to end in violence. Officers prevented the Nevarez’s wife, Julie, from approaching the house. Miguel tried to call her but Lt. Travis Theriot seized her phone, preventing her from answering his call. Roughly ninety minutes later, Nevarez exited the car and ran towards his house. This run ended in a hail of cop gunfire, ending his life.

In an effort to stop Mr. Nevarez, Officer Theriot allegedly shot at Mr. Nevarez with his 40 mm “impact munition,” and Officer Tenney attempted to tase him. Mr. Nevarez allegedly stumbled but regained his footing and began to run toward the front corner of his house, at which point, according to defendants, Mr. Nevarez “raised a gun towards [HPD Officer] Bolgiano.” Plaintiffs dispute that Mr. Nevarez raised a gun towards Bolgiano. Allegedly in response, Bolgiano fired at Mr. Nevarez as he emerged from the west side of the yard. Several other defendants also reported firing on Mr. Nevarez, and plaintiffs assert that
Mr. Nevarez was ultimately shot at approximately 20 times.

The Louisiana State Police stepped in to investigate the shooting. For reasons only known to State Police, Troopers Justin Leonard and Anthony Leonard sought warrants to search Miguel Nevarez’s house, car, and Ms. Nevarez’s cell phone. While there may have been valid reasons to search the scene of the possible crime (the killing of Nevarez by officers), there was no valid reason given for these searches, which the troopers stated in their affidavits was to investigate “aggravated assault upon a peace officer.”

That’s a big problem. The person suspected of this crime was dead, which means there was no continuing investigation into this crime because there was no prosecution to pursue. That means there’s no probable cause to support these warrants, something the troopers should have known. As the plaintiffs argued, these warrants served no valid law enforcement purpose. Instead, they appear to have been obtained to serve an extremely invalid law enforcement end.

In particular, plaintiffs emphasize that no one “still living—let alone residing in the home—had anything to do with” the alleged crime underlying the warrants, and that law enforcement could not “charge [Mr. Naverez] with a crime posthumously, obviating the need for such evidence.” Plaintiffs also reiterate their allegations from the last version of their complaint about the affirmative misrepresentations contained in defendants’ affidavits. The thrust of plaintiffs’ claims is that defendants obtained warrants to search for information “supporting a defensive narrative to retroactively justify the excessive use of force” that resulted in Mr. Nevarez’s death and to intimidate his family rather than to seek evidence of Mr. Nevarez’s alleged crime.

The court agrees with the plaintiffs.

In light of the fact that the affidavits make clear that Mr. Nevarez died during the altercation with the police, and the affidavits do not include any information that suggests that others may have been involved with the alleged assault on a peace officer, the Court finds that the warrants do not support a finding of probable cause.

Anyone who isn’t a cop probably thinks this sounds bad. But there’s always qualified immunity and/or the good faith exception. The first assumes most cops are idiots and can’t possibly know what might violate rights until it’s clearly and repeatedly established. The second assumes most cops are idiots and will participate in illegal searches simply because some magistrate they woke up with a phone call didn’t bother reading all the boilerplate before signing off on warrants not backed by probable cause.

Either way, the dumber the violation, the more likely it is that cops will be given a free pass. Not here, though. And that’s a call this court makes even though there’s no precedent exactly on point.

Nothing in the warrant affidavits indicates that others were involved in Mr. Nevarez’s alleged crime, nor do the affidavits give any indication that the crime could be ongoing. Much like the officer in Coopshaw who applied for a warrant “essentially to find out what happened,” defendants concede in their motion to dismiss that they applied for the warrants to “investigat[e] the events which unfolded on the night of the incident which necessitated the use of force.”

They do not dispute that Mr. Nevarez could not be posthumously charged of a crime, nor do they contend they were actively investigating anyone else in connection with the alleged assault on a peace officer. Plaintiffs have plausibly alleged that here, as in Coopshaw, law enforcement secured the warrants to uncover exculpatory evidence they could use to defend their own use of force.

No immunity. All of this is clearly established, even if case law doesn’t present a binding opinion dealing with officers investigating crimes that couldn’t be prosecuted.

The Court finds that defendants are not entitled to dismissal on the basis of qualified immunity. The Fourth Amendment right that plaintiffs contend defendants violated—to be free from a search pursuant to a warrant that, on its face, was “so lacking in indicia of probable cause as to render official belief in its existence unreasonable,” Malley, 475 U.S. at 344-45—was clearly established at the time defendants submitted their warrant affidavits.

[…]

A reasonable officer would understand that there is no probable cause to support a search warrant where, as here, the police were investigating their own use of force rather than pursuing an active criminal investigation.

That last paragraph isn’t the court speculating about the troopers’ true motives. The State Police were called in to investigate a shooting by officers, not investigate the person they killed. The fact that the troopers decided to frame their warrant requests this way strongly suggests what the plaintiffs have alleged: they were more interested in exonerating the involved officers than investigating them. And that means they can’t walk away from this lawsuit… at least for the moment.

Filed Under: houma pd, louisiana, miguel nevarez, qualified immunity, travis theriot, walter tenney

Belarus Follows Russia’s Lead & Creates Unfriendly Countries List For Legalized Piracy

Copyright

from the you-know-who-else-made-lists? dept

Roughly a year ago, we discussed Russia’s response to some of the sanctions the West was placing upon it, including its plan to simply legalize copyright infringement, so as to keep the country running despite the crippling sanctions. That blanket legalization plan morphed somewhat months later, when Russia instead pivoted to a plan to create a “unfriendly countries” list for which all kinds of copyright infringement would be legalized. Not surprisingly, that list of unfriendlies mostly amounted to any country that had sanctioned or criticized Russia’s unprovoked invasion of Ukraine. While these laws have yet to be implemented, none of the announcements by Russia created even the mildest surprise to the West.

Nor, likely, will Belarus’ recent announcement that it was following Russia down this path.

The country of Belarus recently passed a law that allows the use of intellectual property without the consent of copyright holders from so-called “unfriendly” foreign nations.  This includes all copyrighted materials such as books, music, movies, TV shows, and computer software.  

The law was signed by president Alexander Lukashenko earlier this month, making it legal in Belarus to access pirated materials if the rights holders are from “unfriendly nations,” meaning “foreign states that commit unfriendly actions against Belarusian legal entities and (or) individuals.”  

If you were to want to make your own list, but one that ranks the closest allies of the Russian regime, that list, without a doubt, would have Belarus near the very top. Belarus is currently conducting military “training exercises” with Russia right on Ukraine’s border, leading Ukraine to believe another major and violent assault is coming shortly. Belarus also allowed Russia to route through its territory during the early days of the invasion, back when Putin thought he could take the entire country, including Kiev.

All of that is to say: it’s no surprise that Belarus is adopting Russia’s proposed stance like this and, frankly, it may simply be following Moscow’s orders in doing so. Perhaps even as a guinea pig, to see how the West responds before Russia goes down this path itself.

Belarus is a signatory to several treaties regarding intellectual property rights as part of the World Intellectual Property Organization, and the new law would violate its obligations under those treaties.  In turn, this will likely isolate Belarus economically and prevent any investment in the country’s local creative industries.    It may also influence Russia, which has also been considering laws intended to legalize use of unlicensed copyrighted content from some western countries.

My only quibble is with that last sentence, because I believe the way it begins likely has things exactly backwards. Russia is almost certainly influencing Belarus to take this step, not the other way around.

So what will this all do? Further isolate Belarus and, should Russia follow suit, Russia as well. It also serves as a nice demonstration for how futile it is for Western nations to spend so much time and capital advocating for stricter copyright enforcement throughout the world, given that other nations are happy to simply change course when it suts them.

Filed Under: belarus, copyright, piracy, russia