State Investigator Granted Immunity For Hours-Long Detention Of Doctor At Gunpoint During A Search For Medical Records

from the CAREFUL!-HE'S-GOT-A-FAX-MACHINE! dept

How far can a law enforcement officer go to ensure an administrative search -- one looking for records, rather than contraband -- is carried out without interference? Pretty damn far, it appears.

A case before the Fifth Circuit Court of Appeals alleges Fourth Amendment violations during a search for medical records. Dr. Ikechukwu Okorie was on the receiving end of a search due to the state licensing board's suspicion he was over-prescribing opioids. Okorie wasn't facing criminal charges. The state board of licensing had suspended his license while it investigated. Okorie sought recertification. The board agreed to meet with him but also sought an administrative warrant to search his medical office for evidence it needed to make a determination on his recertification.

Serving a warrant of this type -- one not linked to any criminal accusations -- takes a village, apparently. From the decision [PDF]:

According to his complaint and Rule 7 supplement to that pleading, a large team made up of the following executed the warrant: five Board investigators, a Mississippi Bureau of Narcotics agent, a Hattiesburg High Intensity Drug Trafficking Agent, and two federal DEA agents.

Lots of bored federales hanging around Hattiesburg, it seems. That initial show of force -- nine officers, most of them armed -- was followed by more shows of force. One officer in particular -- a board investigator -- was especially enthusiastic about ensuring Dr. Okorie didn't leave the premises or disrupt the search.

On entering the clinic, Board investigator Jonathan Dalton brandished his gun and pushed Okorie into his office. He then served Okorie with the warrant. After reviewing the warrant, Okorie attempted to leave his office to discuss it with his staff. Dalton stopped Okorie. He pushed Okorie down while saying, “if you don’t sit down I will put you down!” Okorie feared for his life. Dalton eventually allowed Okorie to instruct his staff to fax the warrant to his lawyers and print the requested patient records. But while Okorie did so, Dalton stood next to him with his gun drawn.

This is extremely odd behavior for a Board investigator, especially since Dr. Okorie had approached the board to ask for a recertification hearing. But that wasn't the extent of the investigator's abuse of his position.

Once Okorie briefly spoke with his staff, Dalton brought him back into his office, where Okorie was detained for the remainder of the search. After two hours had passed, Okorie asked to go to the bathroom and was told no. Okorie “plead[ed]” with Dalton, explaining that he would have to urinate himself if not allowed to use the restroom. At this point, Dalton, “with his gun drawn,” escorted Okorie to the bathroom. Dalton forced Okorie to leave the bathroom door open the entire time, even though a female investigator and other individuals were present. Dalton also instructed Okorie to keep his hands where Dalton could see them. Only when the agents were done executing the search, three to four hours after it began, was Okorie allowed to leave the clinic.

The lower court granted the investigator immunity, ruling that it was not clearly established government agents couldn't act like unreasonable assholes during an administrative search not related to a criminal investigation. Sure, it seems excessive, considering how many officers were present during the search (nine) and how cooperative Dr. Okorie was, but there's a dearth of caselaw related to the Fourth Amendment and administrative searches.

The Fifth Circuit Court notes that these cases are becoming more common -- suggesting the government behaves just as badly during non-criminal searches. This is the third case dealing with administrative searches it has seen in the last year. Unfortunately for everyone who isn't a law enforcement agent, the cases haven't been perfectly identical, so government employees keep escaping being held personally responsible for rights violations.

The last case the Fifth Circuit examined dealing with these issues resulted in a win for the accused officer and a blistering statement from Judge Don Willett on the farce that is qualified immunity.

The court is right about Dr. Zadeh’s rights: They were violated.

But owing to a legal deus ex machina—the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.

[...]

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.

There's no dissent attached to this one, even though it ultimately finds in favor of the government. The court says Okorie's claims are valid. There was nothing about this search that justified the show of force by Dalton.

Though law enforcement has understandable safety concerns when initially securing any scene, cf. Bailey v. United States, 568 U.S. 186, 195 (2013) (noting that Summers recognizes a need to “secure the premises” and for officers to take “command of the situation”), that would not seem to support hours-long detention of nonviolent individuals present at an administrative search. Yet Dalton allegedly drew his gun while accompanying Okorie and made him keep his hands visible at all times, even two hours into the detention. By this point, concerns about safety did not justify such intrusive measures. And with nine agents present in the office to execute the search, the need for such an intrusive detention was even lower.

[...]

Nothing indicates Okorie would have been uncooperative had he not been detained, and certainly nothing indicates that a drawn gun was necessary to keep Okorie restrained.

Even so, the lack of anything on point means Dalton can't be held accountable, seeing as he was the first to violate someone's rights in this particular manner.

As we have discussed, that at a minimum affects the balancing of Summers’s interests in analyzing the intrusiveness of a detention even if it does not outright eliminate the government’s right to detain without probable cause. But we have never considered the question, and only a few other courts have. The dearth of caselaw on this question might indicate the government rarely detains people while executing administrative searches, a fact that would be consistent with Okorie’s view of the Fourth Amendment. The consequence, though, is that Okorie is unable to point to caselaw clearly establishing the unlawfulness of this type of detention. As a result, qualified immunity defeats Okorie’s claim.

Here's the silver lining: if any armed officer decides to violate someone's rights this way in the future during an administrative search… well, they've been duly warned.

Going forward, an hours-long detention of a person during an administrative search of a medical clinic or similar establishment, during which a gun is drawn, will be unlawful absent heightened security concerns.

That's the bright line. It's very specific, dealing with only one type of search, and has requirements that could possibly be overlooked if the government can make the court believe the search presented "heightened security concerns." Careful with those "furtive movements," searchees.

Filed Under: 5th circuit, dea, ikechukwu okorie, immunity, jonathan dalton, licensing, qualified immunity, warrant

Werner Herzog Joins Plenty Of Other Artists In Recognizing Piracy Isn't The Problem

from the and-can-be-beneficial dept

It's getting a bit silly to have to keep pointing this out, but contrary to the popular narrative, there are tons of artists who not only recognize that the narrative that "piracy is the problem" is false, but many who recognize that piracy actually has its advantages. And, now, apparently, we can add esteemed film director Werner Herzog to that list. In an interview, he made it clear that when other options aren't readily available, he has no problem with people pirating his works:

¨Piracy has been the most successful form of distribution worldwide,” said Herzog after being told by Ukranian producer Illia Gladshtein he was only able to find his films on illegal download sites.

Herzog continued: ”If someone like you steals my films through the internet or whatever, fine, you have my blessing”

He obviously (and perfectly reasonably) would still prefer people pay to see his films, and later in the interview talks up ways the internet has made it easier for people to buy his work, but also notes:

... if someone can’t find his work on “Netflix or state-sponsored television, then you go and access it as a pirate.”

This is a perfectly reasonable and respectful approach. Rather than simply flipping out that there's an alternative, unauthorized distribution system, he recognizes that it exists, admits that it's a very simple, "most successful form of distribution," and supports the fact that, for some fans, it's a perfectly acceptable option, while still politely encouraging others to purchase his stuff in authorized ways when possible.

It still amazes me that more artists don't take this particular approach. Actually treating your fans respectfully, rather than assuming they're all criminals, usually means they're a lot happier to support you when the option is there.

Filed Under: distribution, internet, piracy, werner herzog

Reverse Warrant For Cell Site Location Info Results In Wrong Man Being Jailed

from the first-but-certainly-not-the-last dept

Reverse warrants are the new regular warrants. Ever since law enforcement discovered most Americans carry tracking devices with them 24/7, they've been approaching cellphone providers with warrants targeting geographic areas rather than people.

When a crime has been committed but cops don't have any suspects, they ask Google and others to canvass the area for them. Officers hand providers a geofence and ask for everyone who wandered into the selected area during a certain timeframe. Once cops have everyone, they start looking for someone.

It seems weird but it's really not all that different than sending officers out to areas around crime scenes to ask anyone if they've seen anything. The difference here is cops are getting info about people's movements in an area when they're not suspected of any criminal activity. In addition, the areas covered by warrants often include high-traffic areas like businesses and multi-family housing, increasing the chance cops are going to zero in on the wrong suspect simply because someone lives or works near a crime scene.

That's exactly what happened in Phoenix, Arizona. Detectives investigating a shooting handed a reverse warrant to Google. This data was used to arrest the wrong person, as Jennifer Valentino-DeVries reports for the New York Times.

The police told the suspect, Jorge Molina, they had data tracking his phone to the site where a man was shot nine months earlier. They had made the discovery after obtaining a search warrant that required Google to provide information on all devices it recorded near the killing, potentially capturing the whereabouts of anyone in the area.

[...]

But after he spent nearly a week in jail, the case against Mr. Molina fell apart as investigators learned new information and released him. Last month, the police arrested another man: his mother’s ex-boyfriend, who had sometimes used Mr. Molina’s car.

Police like the new tool, but acknowledge it has its limits. First, there's a lot of junk data to sort through, and not all investigators have the training necessary to make sense of these quasi-tower dumps. But that hasn't stopped them from using this option with increasing frequency. Google -- which holds up to ten years of location data in a massive database referred to by employees as the "Sensorvault" -- is now receiving up to 180 requests a week for mass location data.

Prosecutors seem cautious about the tool as well, which is a good sign. But considering what happened to Jorge Molina, this statement seems a bit too optimistic.

“It doesn’t pop out the answer like a ticker tape, saying this guy’s guilty,” said Gary Ernsdorff, a senior prosecutor in Washington State who has worked on several cases involving these warrants. Potential suspects must still be fully investigated, he added. “We’re not going to charge anybody just because Google said they were there.”

Well, maybe Ernsdorff won't. But it appears others will. The more law enforcement shoots first and asks questions later, the more often it's going to end up putting the wrong person behind bars. Like any other bulk collection, the potential to reach the wrong conclusion while sorting through haystacks is omnipresent. If Google's responding to tens of thousands of requests a year for bulk location data, Jorge Molina's story isn't going to remain an outlier for long. Certainly the tool has proven useful in other cases, but the sheer number of requests suggests law enforcement isn't using this tool cautiously. That's bad news for everyone carrying a cellphone.

Filed Under: cell site location info, csli, false arrests, jorge molina, phoenix, reverse warrant
Companies: google

Twitter Permanently Suspends (Then Unsuspends) Lawyer For Telling NRA Supporters To 'Fuck Off' And 'Own The Death'

from the seems-a-bit-harsh dept

For all the talk of how Twitter supposedly is banning conservatives left and right (it's not), the company is actually dealing with the impossibility of handling content moderation at scale. Adequately determining which content is "good" and which is "bad" is an impossible task.

Let's take an example case, which -- at the very least -- should show that Twitter isn't just banning conservatives. The pseudonymous defense lawyer known as "bmaz" is probably known to many readers here. He's been a long-time co-author of the Empty Wheel blog with Marcy Wheeler. He's also a prolific and emotional tweeter. Sometimes I agree with him and sometimes I do not. When I do not, he doesn't shy away from letting me hear about it, often expressing his opinions strongly -- which is something I've always appreciated about bmaz. He may not be polite, but he's direct and doesn't hide his true feelings.

And as of last week he was gone from Twitter. According to Scott Greenfield, bmaz has been "permanently" banned from Twitter. Why? Because he told a bunch of NRA supporters his general feelings towards their position, with two of them being "Own the death you piece of crap" and "You too are a fucking idiot asshole. As are your whole 62 followers. Fuck off."

If you can't see that, it shows the two tweets quoted above (both directed at a short list of NRA spokespeople or supporters, as part of what appears to be an ongoing thread -- though there's no way to check that now). It also shows Twitter giving its reasons for cutting bmaz off.

You account, bmaz has been suspended for violating the Twitter Rules.

Specifically, for:

Violating our rules against abusive behavior. You may not engage in the targeted harassment of someone, or incite other people to do so. We consider abusive behavior an attempt to harass, intimidate, or silence someone else's voice.

It also warns him against trying to set up an alternative account.

Now, if you were to believe the prevailing narrative among some, Twitter only bans conservatives, not people angrily tweeting at a bunch of NRA folks. But here, it did the opposite. I have trouble seeing how the two tweets in question constitute "targeted harassment" or any sort of "attempt to harass, intimidate, or silence someone else's voice." I mean, among the people the tweet was directed at was Dana Loesch who famously starred in some trolling NRA ads warning the media, athletes, and liberal politicians that their "time is running out." In another ad, Loesch warns that liberals will "perish in political fire."

Those seem a bit more harassing and intimidating than "own the death" and "fuck off," but what do I know?

Anyway, the point here isn't to say that Twitter is bad at this (though, it is). Rather it's to point out that any large social media platform is going to be bad at this. There is no good way to moderate content at scale without making lots of mistakes. In isolation, these tweets certainly appear angry and rude, but without much trouble I could find a dozen similar tweets in various flamewars that are happening on Twitter as we speak. I'm pretty sure I've lost my cool and told folks on Twitter to "fuck off" as well. It happens.

bmaz appealed his suspension, and that's already been rejected as well, with Twitter now giving him a totally different response as to why he was banned:

Hello,
Your account has been suspended and will not be restored because it was found to be violating Twitter’s Terms of Service, specifically the Twitter Rules against hateful conduct.

It is against our rules to promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or disease.

Again, nothing he did appears to involve promoting violence against anyone or threatening people on any of those bases. Instead, he was just venting at people who he believed were idiots. As Scott Greenfield notes:

Disagree with what @bmaz thinks of guns all you want. Disagree with @bmaz’s way of expressing himself. Or agree with him. It doesn’t matter. There was no violation of the terms of service, no targeted harassment, no “attempt to silence” someone else’s voice. There was certainly no violation on the basis of race, etc., unless the mere hint that a woman (and just because the handle says it’s a woman, does that make it so?) was on the receiving end converts all make speech into a sexual assault.

Greenfield asks people to go on Twitter and speak up for bmaz, and ask Jack Dorsey to reverse the ban -- which is probably a good idea (though it's not Jack personally making these calls). And it appears to have worked. As of last night bmaz was back on Twitter, though he notes he has no idea how or why. It seems likely that a bunch of people asking Twitter "what the fuck" probably helped.

But there's a larger point here. When people keep demanding that Twitter "do something" to handle some of the very real problems of abuse and harassment on its site, they have to recognize that "doing something" that doesn't involve some really bad mistakes is effectively impossible at the size and scale that Twitter operates at. It's going to make big mistakes, and it's going to make them frequently. That's not because Twitter is bad or that the people who work there are bad. It's not that there's a "conservative bias" at Twitter (which should be evidence given the players in this particular story). It's that this is an impossible task. Twitter, I'm sure, has some technology tools and some humans trying to review a ton of content, and rather than lots of obvious cases of black and white, the vast majority of them will land in a gray zone. And there's literally no way that anyone can build in "context" into reviewing these kinds of moderation choices, because understanding the context is next to impossible, not to mention incredibly time consuming (especially when that context may involve things totally outside of Twitter).

Twitter almost certainly made a mistake here, but the point isn't to scream that Twitter is awful because it made a mistake. It's to recognize that when we suddenly demand that private companies be in charge of regulating speech, don't be surprised when they do it badly -- because that's the only way to moderate content at scale. Mistakes will be made -- both false positives and false negatives -- and at the scale of the users and content on a platform like Twitter, it's going to impact lots and lots of people.

So, sure, when someone who shouldn't have been gets suspended, feel free to call out Twitter for its mistakes. But don't expect that there's some magic wand that will suddenly make anyone (Twitter or any other company) suddenly able to actually do a good job at content moderation at scale.

Filed Under: bmaz, content moderation, content moderation at scale, policing speech, social media
Companies: nra, twitter

Daily Deal: The 2019 Complete CompTIA Cybersecurity Bundle

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

If you want to work in the booming field of cybersecurity, you need to earn certifications to verify your abilities. CompTIA is the leading certifying body for IT security. In the 2019 Complete CompTIA Cybersecurity Bundle you'll get comprehensive preparation to sit four crucial CompTIA exams: Security+, CySA+, CASP, and PenTest+. It's on sale for $49.

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

Scribd's Takedown Of The Public Domain Mueller Report Is A Preview Of The EU's Future Under The Copyright Directive

from the what-a-mess dept

For years now, people who understand this stuff have been screaming from the rooftops that automated filtering leads to all sorts of legitimate content being taken down -- and yet, the EU went ahead and approved the EU Copyright Directive and its mandatory filters anyway (and, if you're still repeating the lie that it does not require filters, a quick reminder that multiple politicians who supported the Directive have now admitted that of course it requires filters, so don't even bother).

And it didn't take long for a new example of why demanding filters for copyright purposes is incredibly stupid. Last Thursday, the DOJ finally released the redacted version of the Mueller Report. The document is obviously in the public domain as a work of the federal government -- and tons of publishers rushed to get book versions on store shelves as they do with every big government report, often turning them into best sellers, despite their availability for free.

Among the many places that the digital version of the report was made available was Scribd, the sort of Youtube-for-PDFs that remains annoying but very popular. And what happened? Well, of course, Scribd took the report down claiming it violated someone's copyright.

However, in a taste of what’s to come with the EU’s views on copyright enforcement, the online document portal Scribd took down multiple copies of the Mueller Report claiming that their algorithms identified it as a copyrighted work.

Scribd thought the Mueller Report was copyrighted because there was no one to think otherwise—the company uses an algorithm to make determinations about intellectual property violations.

Filters to the rescue in censoring perfectly legitimate public domain content. It wasn't hard to guess what actually happened. With so many big name publishers offering up their own versions in a rush, some probably used their standard processes to alert Scribd to the text it publishes to prevent uploads of actually pirated books. But, here, there's no such thing as a "pirated" copy. Indeed, Scribd eventually admitted this is exactly what happened:

A spokeswoman for the company says that “a leading global publisher” released the report as a book, fooling Scribd’s systems into thinking the report was owned by the publisher. The company identified 32 copies of the document, all of which were removed and then reinstated, she said.

Quartz, who noticed its own copy was taken down due to this automated failure, says that it received a weird sort of apology email from Scribd that basically says "filters, amirite?"

Users affected by the takedown received an email from the company indicating that “Scribd’s BookID copyright protection system has disabled access” to their documents, even though the email admits, “This does not necessarily mean that an infringement has occurred” or that the uploaders “have done anything wrong.”

The email continued, “Like all automated systems, it will occasionally identify legitimate content as a possible infringement. Unfortunately, the volume of content in Scribd’s library prohibits us from reaching out for verification before BookID disables content. Scribd frequently updates BookID in order to reduce false positives.”

As Quartz notes, this is now the future for basically all content in the EU:

The Council of the European Union recently approved legislation known as Article 13. It’s a law that requires internet platforms to police content for copyright violations before it goes up, rather than only after it is reported as infringing by a third party as they do now. In practice, it is expected to lead to more scenarios like the one here: public domain and other legal uses of work get blocked or taken down by an unaccountable system of corporate dragnets based on code so poorly written and algorithms so poorly trained that it mistakes the most talked-about and most widely shared public-domain documents for copyrighted works.

The good folks over at EFF commented on this with even stronger language:

It is impossible for a copy of the Mueller report to be infringement since it cannot be copyrighted. Filters like BookID don’t work, and in this case, actively work against the public interest.

None of this is a surprise to anyone who actually understands the internet, but because some people falsely believe that the internet has been bad for artists, now we get to deal with the fact that automated filters are going to go censorship crazy.

Filed Under: article 13, bookid, censorship, copyright, eu copyright directive, filters, mueller report, public domain
Companies: scribd

Another Attempt To Tie Twitter To Terrorist Acts And Another Dismissal With Prejudice

from the Definition-Of-Insanity,-PLLC dept

"A series of lawsuits," the court calls it. This is the ongoing work of 1-800-LAW-FIRM and Excolo Law -- two firms that specialize in bringing losing lawsuits to federal courts. It's a series of lawsuits and a series of losses. An unbroken string of dismissals at both the district and appellate levels -- all in response to the firms' attempts to hold social media companies responsible for the acts of terrorists.

Mandy Palmucci -- a victim of the terrorist attacks in Paris, France -- filed an incredibly long lawsuit (121 pages!) last year with the assistance of these two law firms. She needn't have bothered. This one joins the pile of rejected complaints passing through the federal court system. (h/t John Roddy)

The only thing notable about this latest loss is how irritated Judge William H. Orrick seems to be with these lawsuits that keep landing in his court. Handling one of these lawsuits twice appears to have dug deep into Judge Orrick's reserves of patience. From the decision [PDF]:

In two decisions – Fields v. Twitter, Inc., 217 F. Supp. 3d 1116 (N.D. Cal. 2016) and Fields v. Twitter, Inc., 200 F. Supp. 3d 964 (N.D. Cal. 2016) – I concluded that surviving family members of government contractors killed by an ISIS-identified terrorist could not pursue claims for direct liability under the ATA (or related state law claims) because there was no proximate cause “between Twitter’s provision of accounts to ISIS and the deaths of” plaintiffs’ family members. Id. at 1127. I also held that Twitter was immune from liability for its provision of services to users (even terrorist users) under Section 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230(c)).

The judge points out the Appeals Court reached the same conclusions, but more expeditiously. It decided the plaintiffs' "proximate cause" claims were so weak it didn't even need to discuss Section 230 immunity.

Then the judge sends a not-too-subtle message to the law firms pushing these baseless lawsuits

Following the Fields decisions, materially similar direct liability claims have been rejected by numerous judges in this District and elsewhere. See Clayborn v. Twitter, Inc., 17-CV-06894- LB, 2018 WL 6839754 (N.D. Cal. Dec. 31, 2018); Copeland v. Twitter, Inc., 352 F. Supp. 3d 965, 17-CV-5851-WHO (N.D. Cal. 2018); Taamneh v. Twitter, Inc., 343 F. Supp. 3d 904, 17-CV04107-EMC (N.D. Cal. 2018); Cain v. Twitter Inc., 17-CV-02506-JD, 2018 WL 4657275 (N.D. Cal. Sept. 24, 2018); Gonzalez v. Google, Inc., 335 F. Supp. 3d 1156, 16-CV-03282-DMR (N.D. Cal. 2018) (Gonzalez II); Gonzalez v. Google, Inc., 282 F. Supp. 3d 1150 (N.D. Cal. Oct. 23, 2017) (Gonzalez I); Pennie v. Twitter, Inc., 281 F. Supp. 3d 874, 17-CV-00230-JCS (N.D. Cal. Dec. 4, 2017); see also Crosby v. Twitter, Inc., 303 F. Supp. 3d 564 (E.D. Mich. March 30, 2018).

Given the short and whatever's the opposite of "illustrious" history of these lawsuits, the judge asked the plaintiff why he should be bothered to allow the case to proceed.

In light of the similarities between Palmucci’s theories of liability and factual allegations here and those in Copeland et al v. Twitter, Inc. et al., No. 17-CV-05851-WHO and Fields v. Twitter, No. 16-CV-0213-WHO, I issued an Order on November 30, 2018, requiring plaintiff to “file a supplemental brief not exceeding five pages identifying what material facts differentiate this case from the facts pleaded in Copeland, Fields” and two other decisions from this District, Cain v. Twitter Inc., No. 17-CV-02506-JD and Gonzalez v. Google, Inc., 16-CV-03282-DMR.

And received, "Ummmmmm... because?" for a reply:

Palmucci was given an opportunity to explain why – in light of the caselaw identified above – her case should continue. She declined, essentially admitting that no additional facts could be alleged that might state her claims under the ATA or state law.

Dismissed with prejudice. That means there will be no re-filing of this lawsuit. Just the inevitable appeal -- one that will be headed to an appeals court that's already found these lawsuits baseless. Another rejection awaits, and a bit more of the courts' time will be wasted by a couple of opportunistic law firms that have discovered a way to make money without actually being of any use to their clients.

Filed Under: mandy palmucci, material support, section 230, william orrick
Companies: 1-800-law-firm, excolo law, twitter

Judge Tells Research Center To Give Back Facial Recognition Documents The NYPD Forgot To Redact

from the was-'lol-gfy'-not-an-option? dept

The NYPD, that paragon of opacity, screwed up. And now it wants its stuff back.

The Georgetown Center on Privacy & Technology has been engaged in a public records lawsuit against the NYPD since 2017. It's seeking records on the department's use of facial recognition technology. The NYPD has fought hard, but has been forced to hand over almost 3,700 pages of relevant info to date. This after initially telling the Center it had "no responsive documents."

Contained in the steady drip of documents handed over to the Center was something the NYPD wasn't supposed to release in unredacted form. It took almost a month for the department to realize it had screwed up. Rather than let uncensored bygones be bygones, the NYPD took it up with the judge presiding over the case. The NYPD's legal rep wasn't too thrilled with the department's inadvertent transparency.

City attorney Jeffrey Dantowitz conceded that the disclosure was a fiasco.

“That a few documents were inadvertently produced without the intended redactions, while careless, was neither an intelligent nor voluntary disclosure," he wrote in court papers.

So what? Why should this be the Center's problem? Especially when the NYPD didn't realize what it had done for more than 20 days, which allowed the security researchers to peruse the unredacted documents. You can't claw back what's contained in people's minds. In this era of digital duplication, you can't really claw back documents at all.

Nevertheless, a Manhattan judge has agreed to let the NYPD engage in this exercise in futility.

A Manhattan judge has ordered academics researching the NYPD’s facial recognition technology to return documents the police cops accidentally turned over.

Justice Shlomo Hagler said the NYPD “should be more diligent” but that it was clear the 20 pages of confidential information were shared with the Georgetown Center on Privacy and Technology due to an “inadvertent error.”

The judge says Clare Garvie, the Center's attorney, can speak about the documents publicly, but cannot specifically reference which documents she's talking about. As Garvie points out, this effectively neuters this knowledge. Garvie can make assertions based on the documents she's seen, but she can't back those assertions up by referencing the documents.

Even more ridiculously, the NYPD has publicly discussed the information it now claims is too sensitive to remain in Center's hands. A presentation on the NYPD's facial recognition systems was given to conference attendees in 2018 -- a conference anyone with $1,700 on hand could attend, including non-law enforcement members of the public.

And yet the order stands resolute, ignoring logic, common sense, and the NYPD's willingness to share this same "sensitive" info with deep-pocketed randos. This reeks of vindictiveness, rather than actual concern about leaking law enforcement tools of the trade. The Center has already forced 3,700 pages out of the hands of an agency that claimed it had zero pages to turn over prior to being sued. It seems like the NYPD just wants to make the Center pay -- in one form or another -- for anything else it can no longer pretend it doesn't have.

Filed Under: clare garvie, leaks, new york, nypd, public records, releases, shlomo hagler
Companies: georgetown center on privacy and technology

Funniest/Most Insightful Comments Of The Week At Techdirt

from the chitter-chatter dept

This week, both our winners on the insightful side come in response to our post about Zoe Keating's detailed look at the problems with last year's Music Modernization Act and its impact on independent musicians. In first place, it's Rico R. highlighting how little many musicians even knew about what was happening:

I'm an independent musician, and this is the first time I'm hearing about this comment period on the Music Modernization Act, and it's almost over! I say this with the utmost respect, but if Techdirt, a non-major small-time news operation, is the first time I hear about a potentially troubling implementation of updated copyright law in a way that directly affects me, there's a major disconnect between legacy gatekeepers and actual creators. I have to wonder if legacy players are hoping that smaller independent artists (like myself) just don't do anything so they can make money off of works they don't own or represent. And they say that copyright law is designed to protect small creators like me? Yeah, right!!

In second place, it's Mason Wheeler with an opinion about word choice when describing how the new copyright process is designed to "help divert money to the big music publishers and away from independent artists":

"Divert."

As important as it is to call out publishing interests on their continuous abuse of the word "steal" WRT copyright infringement, it's equally important to apply it appropriately instead of using euphemisms. So let's call a spade a spade here: the process is rigged to allow big music publishers to steal money from independent artists. The NMPA has designed a system in which they get to take money that rightfully belongs to independent artists, and stuff their own pockets with it instead. That's legitimate theft.

For editor's choice on the insightful side, we've got a pair of comments about the idea that YouTube could moderate all its content. First up, it's Bamboo Harvester with a point about a key obstacle we didn't mention:

You missed...

...a big one. He's assuming all the video is in English.

You're not going to get multi-lingual reviewers for minimum wage.

This clown needs to see the team involved in a "live" (ten to thirty second transmission delay) TV broadcast.

Next, it's a response to that comment from JoeCool with even more to add:

It goes even further than that. Not only is the language an issue, but the content as well. Is this medical video okay, or is it endorsing snake oil? Is this engineering video okay, or is it con artists trying to sell a perpetual motion machine? Is this biography okay, or it is libelous/slanderous/defamation?

It goes on and on and on... you'll need at least as many experts on EVERY subject to sort and vet each video.

Over on the funny side, our first place winner is an anonymous response to a regular critic, regarding claims about leaving the comment section:

No, really, I'm seriously leaving this time.

Did you hear me? I'm leaving!

Just checking in. I wasn't sure if maybe the internet was out and you didn't see that I was leaving.

Guys, it's really difficult to feel self-important when you ignore how significant it is that I'm leaving.

You're all stupid poopyheads and I'm taking my ball and going home! Maybe.

In second place, it's renato with a response to the Tennessee sheriff who claimed his department uses an MRAP to protect children:

Finally someone has thought about the kids.

For editor's choice on the funny side, we start out with Bobvious, who responded to the proposal that the Right To Be Forgotten's alternative name could be the Right To Erasure:

Nominative Antonym: Right to be Streisanded.

(To be honest I'm not 100% sure what a nominative antonym is, and Googling just gets me lists of antonyms for the word "nominative", but right to be Streisanded is apt!)

And last but not least, we've got NoahVail with an alternative proposal to trying to force YouTube to moderate everything:

Baby steps

Before we leap into a huge endeavor like mods reviewing every upload, maybe we should trial the "Review Process" on a more reasonable scale.

I suggest having politicians read and understand every law, before they vote on it.

That's all for this week, folks!

This Week In Techdirt History: April 14th - 20th

from the so-it-was dept

Five Years Ago

This week in 2014, the world was dealing with the Heartbleed bug and turning its attention to the NSA's possible awareness of it — leading Obama to tell them to start revealing flaws but with no particular incentive to actually do so. It wasn't clear if the NSA had definitely known about and used Heartbleed, but there was nothing stopping them and people certainly weren't going to take their advice on dealing with it. Overall, the simple truth was that the government pays to undermine, not fix internet security. Meanwhile, the Guardian and the Washington Post won Pulitzers for their coverage of the Snowden leaks, which made a lot of folks angry including Rep. Peter King and CIA torture authorizer John Yoo.

Ten Years Ago

This week in 2009, the BSA was using the spate of stories about Somali pirates to talk about software piracy in a stunningly tonedeaf fashion, NBC was crafting its plans to make Olympic coverage worse and more expensive, the Associated Press was admitting its attack on aggregators looks stupid to the "untrained eye" while failing to explain why it shouldn't look stupid to everyone else too, and a hilarious but frightening warrant application got a college student's computer seized in part for using "a black screen with white font which he uses prompt commands on". DMCA abuse was chugging along as usual, with an activist group using it to hide exposure of its astroturfing and a news station using it to cover up video of it embarrassingly falling for an April Fool's story. And long before the Snowden revelations, not only were we already seeing revelations about the NSA's abuse of power, we were already unsurprised.

Fifteen Years Ago

This week in 2004, the internet was still beginning to embrace some of the innovations that define it today: location-based services were on the rise, with Google launching localized ads and mobile phone navigation systems threatening to oust expensive dedicated hardware (something also happening in other areas like event ticket handling), and more and more people were going online wirelessly in one way or another. Of course, along with this was the rise of some more problematic trends too, like patent hoarding houses and DRM. In California, the first two arrests were made under a new law banning all kinds of video cameras in movie theaters, while one state senator was seeking to completely ban Gmail (which was still new) for some reason — though at least the legislature shot down another ban on violent video game sales to minors.

Filed Under: history, look back