Supreme Court Says It's OK For Border Patrol Agents To Kill Mexican Citizens As Long As They Die In Mexico

from the precedent-controls-bullets-right-up-until-they-cross-an-imaginary-line dept

Border Patrol agents kill a lot of people, most of them citizens of another country. For years, agents have been able to open fire on people in moving vehicles and [checks Congressional report] people throwing rocks at them. New guidelines were handed down by the agency in 2014 following an outside investigation of the Border Patrol's use of force. The investigation contained many recommendations that could have resulted in fewer killings, but the Border Patrol rejected the conclusions and the suggested fixes.

So, the killings continue. And not much is being done to stop them. The Ninth Circuit Court of Appeals stripped qualified immunity from a Border Patrol agent who fired at leaast 16 bullets across the border at a 16-year-old resident who was allegedly throwing rocks at him. Ten of them hit the teen, killing him. The court ruled this was basically murder, something clearly not covered by qualified immunity. The Fourth Amendment governs what US government employees do. It makes no difference that the victim was not a US citizen.

That finding is likely to be struck down if it makes its way to the Supreme Court. A similar case involving the killing of Mexican resident by a Border Patrol agent standing on US soil has just received the Supreme Court stamp of approval.

Fifteen-year-old Sergio Adrian Hernandez Guereca was shot and killed by Border Patrol agent Jesus Mesa, Jr. as he played with friends in a culvert along the US-Mexico border. According to Hernandez's survivors, he and his friends were running back and forth across the culvert to touch the US border fence before running back to the Mexican side of the culvert. Agent Mesa claimed the teen was "involved in an illegal border crossing attempt" and "pelting" him with rocks.

The shooting resulted in an international incident. The Mexican government wanted the agent extradited to face murder charges in Mexico, the country where the murder occurred, even if the bullets originated on the US side of the border. The US government, on the other hand, decided Agent Mesa had done nothing wrong - that his deadly actions were clearly justified by the presence of rocks and/or border-crossing attempts.

Hernandez's parents sued. The Fifth Circuit took two swings at the case (once at the Supreme Court's request) and both times refused to extend the scope of Bivens to cover an incident where a government agent on the US side of the border shot and killed someone on the other side.

The Supreme Court likewise has refused to read Bivens as supporting a lawsuit against US government employees on behalf of a citizen of a foreign country. The Supreme Court believes doing so would upset the delicate balance currently preserved by Mexican outrage and US government indifference. From the ruling [PDF]:

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.

This sounds positively Solomonic until you read the next paragraph of the ruling, along with some context that isn't discussed in the ruling.

In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy––and that has occurred. The broad issue of violence along the border, the occurrence of cross-border shootings, and this particular matter have been addressed through diplomatic channels. In 2014, Mexico and the United States established a joint Border Violence Prevention Council, and the two countries have addressed cross-border shootings through the United States-Mexico bilateral Human Rights Dialogue. Following the Justice Department investigation in the present case, the United States reaffirmed its commitment to “work with the Mexican government within existing mechanisms and agreements to prevent future incidents.”

That 2014 date is key. That's the same year the Border Patrol was given new use-of-force guidelines while simultaneously rejecting the findings of an outside investigation that said agents used their weapons far too often in situations that either didn't require deadly force (rock throwing) or created new dangers (shooting at moving vehicles). The US government also cleared Agent Mesa of any wrongdoing, which suggests it has zero desire to hold its own people accountable for extrajudicial killings of foreign citizens -- something that can be easily accomplished by firing bullets from the US side of the border into Mexico.

In conclusion, the Supreme Court recommends trying not to get shot on the wrong side of the border.

Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. For example, recovery under 42 U. S. C. §1983 is available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either.

The 5-4 majority says too much is at stake in terms of border security and international relations to come to any other conclusion. Since it's not going to legislate from the bench, US government employees can kill people in other countries without fear of being held personally responsible for their rights violations until Congress steps in -- something it's obviously in no hurry to do.

The concurrence, written by Justices Thomas and Gorsuch, is mainly annoyed the Court wasted time discussing a Congressionally-created escape hatch for federal officers and suggests tossing the Bivens doctrine altogether, further limiting lawsuits brought against federal officers/agents for Constitutional violations.

The dissent, however, points out this isn't an extension of Bivens across the border. While Hernandez may have died in Mexico, the bullets were fired by an officer on United States soil.

Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plaintiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. foreign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders.

Even the government concurred a Bivens action could be brought against Agent Mesa if one key element had been satisfied.

The complaint states that Mesa engaged in that very conduct; it alleged, specifically, that Hernández was unarmed and posed no threat to Mesa or others. For these reasons, as Mesa acknowledged at oral argument, Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment.

"Wrong place, wrong time" shouldn't be the determining factor.

The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit.

[...]

Mesa’s allegedly unwarranted deployment of deadly force occurred on United States soil. It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.

If Bivens is neutered, there's nothing left for plaintiffs. And the agency benefitting from this already does next to nothing to deter misconduct by its agents.

Regrettably, the death of Hernández is not an isolated incident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing individuals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal decisions, no action was taken.

Zero accountability, blessed by two government branches. Here's the third branch doing the same thing. The message it sends is this: if you're going to kill a Mexican citizen, make sure they're still in Mexico. And that message means the case coming up from the Ninth Circuit is going to give another Border Patrol agent a free pass on taking a foreigner's life.

Filed Under: bivens, borders, cbp, jurisdiction, mexico, shooting, sovereignty, supreme court, us

FCC To Dole Out Some Dainty Wrist Slaps For Wireless Carrier Location Data Scandals

from the ill-communication dept

As you know by now, all four major wireless carriers have been selling access to user location data for the better part of the last decade to pretty much any nitwit with a nickel. Journalists subsequently exposed how nobody was really policing the use of this data, resulting in it being abused by law enforcement, people pretending to be law enforcement, and even stalkers. Worse perhaps, wireless carriers were even selling access to even more sensitive 911 emergency location data, something that's very clearly prohibited.

It's that last bit that probably finally forced the hand of Ajit "what broadband competition problem" Pai, who after a year of doing nothing is poised to announced that AT&T, Verizon, T-Mobile, and Sprint are likely to soon face a collective $200 million fine (warning: WSJ paywall):

"The Federal Communications Commission (FCC) will propose fines for the nation's largest telecom companies for selling the location data of their customers without consent. In all, the FCC says the carriers should pay around $200 million, according to a person familiar with the matter. The Wall Street Journal first reported the fines, and said the action includes AT&T, T-Mobile, Sprint, and Verizon."

Assuming wireless carriers don't win an appeal and the FCC follows up on the fine, that's around $50 million per company, which isn't likely to be much of a deterrent. AT&T's revenues last year topped $180 billion, and these four companies have received tens of billions in Trump tax cuts, regulatory favors (killing net neutrality, broadband privacy rules), and other perks during the last three years of the Trump administration. AT&T alone scored an estimated $42 billion from the Trump tax cuts in exchange for promises the company completely lied about delivering. Accountability has been nonexistent.

In total, $50 million is a pretty great deal given these companies likely made countless billions over the course of a decade selling access to this data. Needless to say, lawmakers like Ron Wyden released statements to journalists making it clear he wasn't particularly impressed by this regulatory theater:

"Based on today’s news reports, it seems clear Chairman Pai has failed to protect American consumers at every stage of the game – this issue only came to light after my office and dedicated journalists discovered how wireless companies shared Americans’ locations willy nilly. He only investigated after public pressure mounted. And now his response is a set of comically inadequate fines that won’t stop phone companies from abusing Americans’ privacy the next time they can make a quick buck.

"Time and again, from Facebook to Equifax, massive companies take reckless disregard for Americans’ personal information, knowing they can write off comparatively tiny fines as the cost of doing business. The only way to truly protect Americans’ personal information is to pass strong privacy legislation like my Mind Your Own Business Act to put teeth into privacy laws and hold CEOs personally responsible for lying about protecting Americans’ privacy.”

The FCC is expected to offer more details at its Friday meeting. Of particular note will be what the FCC requires carriers do with the decade-plus of consumer location records already collected, and how diligent the agency will be to ensure this doesn't continue. Knowing AT&T and Verizon pretty well, it would be unlike them to leave tens of billions in location data revenues on the table, especially given the feckless nature of this FCC. It wouldn't be all that hard to revamp and rename these programs, purge 911 data specifically from collection, then bury these new projects under layers of subsidiary deniability and obfuscation.

After all, who's really going to make sure they've learned the error of their ways? Ajit Pai? The former Verizon lawyer that has rubber stamped every fleeting desire of some of the most anti-competitive and scandal prone companies in American history?

Filed Under: ajit pai, fcc, fines, location data, privacy
Companies: at&t, sprint, t-mobile, verizon

Netflix Seeks Cancellation Of "Choose Your Own Adventure" Trademark

from the you-have-chosen...poorly dept

This really should happen more frequently than it does. You will hopefully recall the ongoing drama between Chooseco, the company behind the Choose Your Own Adventure series of books we all remember from the 80s and 90s, and Netflix, producer of the hit series Black Mirror and its recent iteration entitled Bandersnatch. To catch you up, Bandersnatch was an interactive streaming show that billed itself as a "choose your own adventure" show, allowing the viewer to influence the progression of the story via choice. Chooseco sued Netflix over this production, claiming trademark infringement. Chiefly at issue is the appearance of a book mockup in the series, trade dress and marketing surrounding the show, and the fact that a character in the show refers to his own video game creation as a "choose your own adventure" game.

Separately, wielding this trademark, Chooseco inked a lucrative deal with Amazon to develop CYOA stories for the Amazon Alexa (keep this in mind for later). Chooseco also separately went after other indie game developers for using the phrase in their own marketing (again, important for later). And while Netflix sought to have the case tossed on grounds that its use of the phrase and trade dress was protected by the First Amendment, and was not protectable for Chooseco, and that there was no chance of customer confusion. The court, somewhat predictably, decided that those were arguments better made at trial.

And so here we are, with Netflix setting forth those same affirmative defenses... but with one notable addition.

Netflix is asking for the cancellation of Chooseco’s ‘Choose Your Own Adventure’ trademark, as the dispute between the two companies over a “Black Mirror” episode rumbles on.

Netflix, in a new filing at the US District Court for the District of Vermont on Tuesday, February 25, argued that not only has the term “choose your own adventure” become generic (and available under principles of fair usage), but also that characters and storylines from its 2018 interactive episode “Bandersnatch” differs from other interactive productions.

Yup. In addition to the affirmative defenses laid out in its motion for dismissal, Netflix is now asking that Chooseco's trademark be cancelled entirely. This is going to have a ripple effect across all of the other actions Chooseco has taken as set forth above. Those indie game threats? Those go away if Chooseco doesn't have a trademark to wield. Future lucrative deals such as that struck with Amazon? Nope, those are gone, too, potentially. By picking this wholly unnecessary fight, Chooseco has potentially given Netflix the ability to yank away the one poker chip it had left to play.

From the filing:

The alleged “Choose Your Own Adventure” marks that are the subject of Registration Nos. 2,913,403; 4,682,357; 5,651,588; 2,807,473; and 3,234,147 lack distinctiveness, are generic, and therefore are unprotectable. As detailed herein, the phrase “Choose Your Own Adventure” no longer denotes a single source or origin. Instead, it is a common phrase used by the general public to refer (a) to any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly, or (b) to any interactive fictional work that employs a “branching” narrative style, regardless of the source or origin of the work.

As used in the context of fictional works, the phrase “Choose Your Own Adventure” encompasses the entire genre of interactive-narrative fiction, a genus of media of which Chooseco’s book series is just one species.

Anyone really want to argue that the above isn't true? It sure seems to be. I have long known what a CYOA book was. I, until covering this story, had zero idea that there was a single company with a registered trademark behind those books. Because, really, there isn't. CYOA is essentially a genre. And somewhat descriptive. And not particularly identifying as to a source of a product.

There are legions of interactive novels, for instance, that are self-described as CYOA. And, yet, here we are in 2020, the year of our lord, first seeing legal action by Chooseco over it? Come on.

Again, I wish we saw this more often. Trademark bullies looking for a payday should more often have to at least face the risk of losing their trademarks entirely. While there is no guarantee that this will work in Netflix's favor at trial, at least this threat would deter more bullying in general.

Filed Under: bandersnatch, black mirror, choose your own adventure, generic, trademark
Companies: chooseco, netflix

PetNet 'Smart' Pet Feeders Go Offline For A Week, Customer Service Completely Breaks Down

from the smart-tech-is-often-dumb dept

The "smart" internet of things era was supposed to usher forth a new era of convenience. Instead, it somehow keeps managing to advertise how dumber technology is often the smarter option, and you're not being particularly innovative if your product actually makes life harder. From "smart" door locks that are easily hackable to hackable "smart" TVs that are so smart they spy on you, there's near daily examples showing how connecting old tech to the internet and calling it innovation--is itself not particularly innovative.

Smart pet feeders are apparently no exception.

PetNet, whose products promise to intelligently feed your pets the right amount of food at the right time, didn't have much fun this month. Starting on February 14, the company announced that it was investigating a system outage affecting its second-generation SmartFeeders that made the feeders appear to be offline. In a series of Tweets, the company insisted that the feeders would still dispense food on a schedule, even though users couldn't change settings or use the app. The company also couldn't really specify why the system was having problems:

Many consumers found that the feeders weren't working at all, and the problems continued for almost a week before the company was able to provide any clearer answers. Adding insult to injury, when customers reached out to the company to complain, they hit a complete and total brick wall in terms of functioning customer service. Emails and phone calls weren't returned, and the company simply refused to answer annoyed customer inquiries on Twitter or Facebook. Even emails to company execs wound up being undeliverable:

"During that time, customers voiced frustration at the company’s lack of responses to their questions on Twitter and Facebook. Messages to the company’s support email and CEO Carlos Herrera were undeliverable.

TechCrunch tried contacting their emails and got delivery failure notices. A message sent to their Twitter account was also not replied to. We have contacted the company again for comment.

Petnet customers were not amused to discover that neither PetNet the company, nor its products, were particularly "smart":

This is not the future the Jetsons promised. And once again, dumb tech is often the smarter option.

Filed Under: iot, ownership, pet feeders, pets, smart devices
Companies: petnet

State Actors Are Increasingly Targeting Journalists With Surveillance Malware

from the more-bad-news-on-the-press-freedom-front dept

Columbia Journalism Review is reporting it has witnessed more malware attacks targeting journalists. An article by Financial Times cyber security head Ahana Datta details attempts to compromise a Middle East correspondent's phone via WhatsApp.

The correspondent, who I will not name for reasons that will soon become clear, mentioned that in recent weeks they had been receiving mysterious WhatsApp calls. The numbers were unrecognized. Afterward, their phone battery had drained quickly. And they were sometimes unable to end other calls, because the screen seemed to freeze.

They had been working on an investigation into surveillance on journalists and human rights activists in a particular Middle Eastern nation, and had been in contact with sources the government was hostile to. We decided the reporter was safer with a separate device for this story.

This unnamed reporter wasn't the only one targeted. Datta asked other journalists if they'd experienced similar issues. Four reporters also had noticed unusual performance issues and reported they had received fake SMS authentication codes for secure messaging apps -- codes that were sent unprompted. A few had been duped into downloading unknown software. Others reported their phones behaving strangely after their devices had been in the hands of others, like personnel at border checkpoints.

Touring other Financial Times branches, Datta found more of the same, even if the deployment methods varied a bit.

In parts of Eastern Europe, the flavor seems to be plausible deniability: threats commonly manifest in the form of creative phishing attacks, such as imposters trying to connect on LinkedIn or impersonating emails from known contacts.

[...]

In Asia, journalists are more often targeted by people on the ground. State agents often inexplicably show up where correspondents and their sources are scheduled to meet. Some countries have a centralized database of residents’ IDs, including facial recognition, so the federal police and regional police are largely in sync. In some areas, messaging apps can be disabled based on where you’re located.

In one Asian office, state officials called to question wording in articles that had yet to be published, indicating journalists' devices had been compromised by state actors.

Unfortunately, this isn't news in the normal sense of the word. It's mainly just the continuation of distressing developments around the world. Governments are increasingly targeting journalists, especially those they might want to deter from publishing unflattering reports about government activities. Equally as unfortunate is these tools are being sold to them by a number of companies that insist they're in the national security/law enforcement business but are more than willing to sell malware to countries known for their stifling of dissent, targeting of journalists, and long histories of human rights violations.

Israeli tech company NSO Group is one of the worst offenders. It has sold malware and spyware to blacklisted countries and seems unconcerned that it's providing nearby enemies with the tools to target the residents of its home country.

Making matters worse are law enforcement agencies in countries where human rights are considered to be respected. Many have already expressed their displeasure that Facebook is adding end-to-end encryption to Messenger. But they're also upset Facebook is warning WhatsApp users when it detects abnormal activity that could indicate they've been targeted by state actors or malicious hackers. These agencies would apparently rather see journalists and activists harmed than watch a single suspected criminal avoid being compromised by law enforcement-deployed malware.

So, what can journalists do to protect themselves? Datta suggests the same things that have worked for years. Use encrypted communications methods. Turn on two-factor authentication. Encrypt devices and their content. Toss devices in a Faraday bag if traveling in high-risk locations.

Most importantly, though, is that journalists never give up. If a state-sponsored hacker wants to compromise a device, there's a good chance it will eventually be compromised. But that's no reason for journalists to sit back and allow it to happen. Why make it easy on them? Be a frustrating target -- one that makes it as difficult as possible for those seeking to do harm to journalists and their sources.

Filed Under: journalism, journalists, malware, surveillance

No, Google Isn't Hiding Elizabeth Warren's Emails To Promote Mayor Pete

from the not-how-it-works dept

Content moderation at scale is impossible. This time, it's email content moderation. This week a new publication called The Markup launched. It's a super smart group of folks who are doing deep data-driven investigative reporting of companies in and around the tech space -- and I'm very excited to see what they do. I was going to write about the project overall and its goals, but instead I'm going to write about one of its first stories, done in partnership with the Guardian, entitled Swinging the Vote?, and which looks at Gmail's filtering system, specifically as it regards political emails from Presidential candidates.

A few years back, Google added the "Promotions" tab to Gmail, as a way of hopefully, automagically sorting not-quite-spam emails, but general promotional emails that you probably don't want cluttering up your inbox. Personally, I don't use it, as I use a different filtering setup entirely that overrides Gmail's defaults. However, for many people it's proven to be quite useful. The reporters at The Markup conducted a worthwhile experiment:

The Markup set up a new Gmail account to find out how the company filters political email from candidates, think tanks, advocacy groups, and nonprofits.

We found that few of the emails we’d signed up to receive —11 percent—made it to the primary inbox, the first one a user sees when opening Gmail and the one the company says is “for the mail you really, really want.”

Half of all emails landed in a tab called “promotions,” which Gmail says is for “deals, offers, and other marketing emails.” Gmail sent another 40 percent to spam.

Very interesting! What was perhaps even more interesting was the chart -- which quickly rocketed around social media -- showing that some candidates had their emails go into the Primary Inbox at a much, much higher rate than others:

You'll notice a few standouts. 63% of Pete Buttigieg's emails made it to the Inbox, as did 47% of Andrew Yang's. Everyone else was much closer to 0% with quite a few -- including both Elizabeth Warren and Joe Biden -- at 0%.

The reporters at The Markup also published a companion piece that gives the details of how they went about doing this research and (yes!) they even provide the data and the code on Github. This is a fantastic and transparent way of doing such journalism -- and I applaud them for that.

However, the very framing of the original story itself... is problematic. It's one thing to be open about how you conducted the research. But starting with a title like "Swinging the vote" and highlighting the chart above almost immediately resulted in lots of people on Twitter assuming (or suggesting) that Google was doing this deliberately, and that they were purposely making the decision to tilt the playing field towards Buttigieg. This includes vocal big tech critic Roger McNamee, who declared this was evidence that "Gmail has its thumb in the scale." Another Google critic, who is fond of misleading conspiracy theories about the company, called it "election meddling" and claims that Google was giving certain candidates "special treatment."

Except... that's almost certainly not the case. No one at Google on the Gmail spam team is thinking about promoting one Presidential candidate over another. Instead, this is just yet another example of Masnick's Impossibility Theorem, but applied to email moderation, rather than social media. Content moderation at scale is impossible to do well and will always piss off some people.

Indeed, looking over the data, the most obvious and most likely solution is simply this: Buttigieg and Yang hired competent email marketers who know how to craft emails that are (1) less likely to trigger the algorithm, and (2) less likely to be clicked on as spam by users (an important signal that feeds back into the algorithm). The rest of the candidates... did not. And thus, their emails went to the promotions and spam folder because they had characteristics that are more closely associated with promotions and spam. And, yet, The Markup story doesn't bother to get into any of that -- and thus leaves the speculation wide open, allowing plenty of folks to leap in.

Again, I'm super excited about The Markup as a project and believe it will put out plenty of important and impactful journalism in the days, weeks, months and years to come. I recommend people read over The President's Letter from the site's President Nabiha Syed (a past podcast guest) and Editor's Letter from Julia Angwin -- both of which present a compelling vision of what The Markup will be.

But this story shows how important context is in presenting a story. This is a data driven story -- which is great. But if the necessary context is not provided, especially on a topic so fraught with speculation, people are going to rush in and jump to conclusions. The Markup itself did not directly say that Google was doing this deliberately, but its total failure to suggest why this might be happening, along with a cringe-worthy headline, opened the door for others to jump in and assume as much -- and that's a shame.

Filed Under: andrew yang, content moderation, content moderation at scale, elizabeth warren, email, gmail, pete buttigieg, political emails, promotions, spam
Companies: google

State Court Says It Isn't Theft To Remove An Unmarked Law Enforcement Tracking Device From Your Car

from the hey-guys-you-left-this-thing-on-my-car? dept

If you've ever wondered how far the government will go to justify its illegal actions, here's one for you.

In July 2018, the Warrick County Sheriff's Office obtained a warrant to place a GPS tracking device on Derek Heuring's car under the theory Heuring was selling meth from his vehicle. Heuring discovered the tracking device and removed it. Rather than chalk this up as a failure, the Sheriff's Office decided to get some more warrants.

After waiting another 10 days to see if it would start working again, detectives applied for a warrant to search Heuring's home and a nearby property belonging to Heuring's parents. US law requires law enforcement to show probable cause that a crime had been committed before engaging in a search. In this case, police said they suspected that Heuring had committed the crime of theft by taking the GPS device.

Police did find the tracking device. They also found methamphetamine and drug paraphernalia—evidence that police say show that Heuring had been dealing drugs.

So Heuring was charged both with drug dealing and with theft of the GPS device.

But was this theft? That's what the detective swore it was in the affidavit. Heuring's lawyers pointed out there could have been any number of reasons the Sheriff's Office stopped receiving a signal from the tracking device. It could have broken or fallen off. And even if Heuring did remove the device, he couldn't be sure who it belonged to. (It wasn't labeled "IF FOUND, PLEASE RETURN TO THE WARRICK COUNTY SHERIFF'S OFFICE.) With this much in question, it was a stretch for the officer to assert Heuring had "stolen" the device and use this assertion to justify a search of his house for "stolen property."

The state's top court agrees with Heuring. This isn't theft, as Timothy B. Lee reports for Ars Technica.

Last Thursday, Indiana's highest court made it official, ruling that the search warrant that allowed police to recover Heuring's meth was illegal. The police had no more than a hunch that Heuring had removed the device, the court said, and that wasn't enough to get a search warrant.

Even if the police could have proved that Heuring had removed the device, that wouldn't prove he stole it, the high court said. It's hard to "steal" something if you have no idea to whom it belongs. Classifying his action as theft would lead to absurd results, the court noted.

"To find a fair probability of unauthorized control here, we would need to conclude the Hoosiers don't have the authority to remove unknown, unmarked objects from their personal vehicles," Chief Justice Loretta Rush wrote for a unanimous court.

The ruling [PDF] notes the GPS device had no markings and the officer who obtained the warrants was aware other GPS devices deployed by agencies had fallen off vehicles in the past. Despite this, he sought the warrants anyway, alleging the device had been stolen by Heuring. The assertions in the affidavits don't add up to sufficient probable cause a crime was committed -- especially when all the officer had to work with was the fact that he was no longer receiving a signal from the tracking device.

Putting this together, the affidavits needed to establish probable cause that someone—aware of a high probability that they were doing so—took the GPS device from Heuring’s vehicle without proper consent from the sheriff’s department. The affidavits, however, are devoid of the necessary information to make such a showing. Instead, they support a fair probability only that Heuring—or someone—found a small, unmarked black box attached to the vehicle, did not know what (or whose) the box was, and then took it off the car.

In the affidavits, Officer Busing notes that the GPS device “placed on the subject vehicle” was “black in color [and] approximately” six inches by four inches. The affidavits also include facts tending to show that, at some unknown time over a ten-day period, the device was removed. That’s all. There is no evidence of who might have removed it. And there is nothing about markings or other identifying features on the device from which someone could determine either what it was or whose it was. In other words, what the affidavits show, at most, is that Heuring may have been the one who removed the device, knowing it was not his—not that he knew it belonged to law enforcement.

The court goes on to say the affidavits were so lacking in "indicia of probable cause" it cannot possibly consider extending the good faith exception to the detective who wrote them.

Though Officer Busing obtained the warrants to search for evidence of theft, the affidavits did not include facts supporting essential elements of the alleged crime. Rather, they were based on noncriminal behavior, a hunch, and a conclusory statement. Thus, a reasonably well-trained officer, in reviewing these affidavits, would have known that they failed to establish probable cause and, without more, would not have applied for the warrants.

Then it goes further, stating that the warrants were so bad nothing obtained in the searches is salvageable.

[T]he exclusionary rule requires suppression of all evidence seized from Heuring’s home and his father’s barn. The evidence found during the initial search of each location must be excluded because those searches were illegal. And it was “by exploitation of that illegality” that law enforcement secured warrants to search each location a second time.

I know it sucks when your surreptitious tracking device suddenly becomes less surreptitious. But the correct response isn't a stack of Constitutional violations. Take the loss and move on. Suspects get spooked. It happens. But patience is a virtue. Impatience is whatever this was. And this inability to let bygone tracking devices be bygone means the detective is now saying goodbye to a drug bust and a possible conviction.

Filed Under: derek heuring, gps devices, theft, tracking, warrant, warrick county

Daily Deal: The Ultimate Cisco Networking Expert Training Bundle

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

The Ultimate Cisco Networking Expert Training Bundle has 8 courses designed to help you become a networking pro. You'll learn how to manage Cisco devices, how to create VRFs and VPNs, how to assign IP addresses to PCs & routers, and much more. You'll also receive test prep for various Cisco certification exams. The bundle is on sale for $31.

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

The Law Doesn't Care About Your Feelings: 9th Circuit Slams Prager University For Its Silly Lawsuit Against YouTube

from the go-to-another-bakeshop-dennis dept

Dennis Prager and his silly propaganda machine, PragerU, push out videos about how "facts don't care about your feelings" and how "if a baker won't bake you a cake, find another baker."

Yet, when his feelings were hurt (barely) by a private platform -- YouTube -- he immediately played victim and sued, insisting that YouTube had to host his nonsense. And, remember, YouTube did not "ban" Prager. Indeed, PragerU still has a massive following on YouTube. The issue was just that it put a very small percentage of Prager's videos into "restricted mode," which just meant that for the 1.5% of YouTube users who have restricted mode turned on (generally kids whose parents turned it on), a few of Prager's videos won't show up as highly. But, for that slight, Prager sued YouTube, whining about how it was "anti-conservative bias."

As the case went on, YouTube showed that, actually, the videos of "left leaning" accounts were put into restricted mode at a much higher rate. Prager's actions here were more about playing victim, whining about his hurt feelings, and trying to work the ref to force a private platform to promote more of his videos. It didn't work. Prager lost in federal court and then lost in state court. It wasn't particularly close either.

And yet, despite those losses, Prager continued to whine and whine about how victimized he was by this big bad private company. Even the Wall Street Journal let him publish a facts-optional piece about how oppressed he was by Google (and this was after he'd lost his case).

When we pointed all of this out, Prager fans (and employees...) kept insisting that he'd easily win on appeal. But the 9th Circuit has pretty impressively shut that down with a ruling that comes close to saying "What the fuck is wrong with you."

Despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment. Prager University (“PragerU”) sees things differently and claims YouTube’s outsize power to moderate user content is a threat to the fair dissemination of “conservative viewpoints and perspectives on public issues,” and that YouTube has become a public forum.

PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent. Just last year, the Court held that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1930 (2019). The Internet does not alter this state action requirement of the First Amendment. We affirm the district court’s dismissal of PragerU’s complaint.

Throughout the decision, you can almost visualize the judges rolling their eyes:

PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause “prohibits only governmental abridgment of speech,” and “does not prohibit private abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its “operation” of the private property as “a public forum for speech.” Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.” Id. at 1930–31. Instead, the Court reaffirmed that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930.

Importantly, private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is “not transformed” into a state actor solely by “provid[ing] a forum for speech.” Halleck, 129 S. Ct. at 1930, 1934.

The court quickly explains why each and every nonsense theory put forth by Prager does not change reality. The law doesn't care about your hurt feelings, Dennis.

The relevant function performed by YouTube—hosting speech on a private platform—is hardly “an activity that only governmental entities have traditionally performed.” Halleck, 139 S.Ct. at 1930. Private parties like “[g]rocery stores” and “[c]omedy clubs” have “open[ed] their property for speech.” Id. YouTube does not perform a public function by inviting public discourse on its property. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Lloyd Corp., 407 U.S. at 569. Otherwise “every retail and service establishment in the country” would be bound by constitutional norms. Cent. Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972) (private parking lots do not become state actors just because they are open to the public).

That YouTube is ubiquitous does not alter our public function analysis. PragerU argues that the pervasiveness of YouTube binds it to the First Amendment because Marsh teaches that “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the … constitutional rights of those who use it.” 326 U.S. at 506. PragerU’s reliance on Marsh is not persuasive. In Marsh, the Court held that a private entity operating a company town is a state actor and must abide by the First Amendment. Id. at 505–08. But in Lloyd Corp. and Hudgens, the Court unequivocally confined Marsh’s holding to the unique and rare context of “company town[s]” and other situations where the private actor “perform[s] the full spectrum of municipal powers.”...

YouTube does not fit the bill. Unlike the company town in Marsh, YouTube merely operates a platform for user-generated video content; it does not “perform[] all the necessary municipal functions,” Flagg Bros., 436 U.S. at 159, nor does it operate a digital business district that has “all the characteristics of any other American town,”

Also, nice try at a hail Mary based on nothing, but, nope:

Shifting gears slightly, PragerU posits that a private entity can be converted into a public forum if its property is opened up for public discourse. This theory finds no support in our precedent. As the Supreme Court has explained, to create a public forum, the government must intentionally open up the property to public discourse.... That YouTube is not owned, leased, or otherwise controlled by the government undermines PragerU’s public forum theory

The court also laughs off the idea that YouTube's statements about its support for free expression somehow bind it to continue to monetize all Prager videos:

PragerU’s attempt to foist a “public forum” label on YouTube by claiming that YouTube declared itself a public forum also fails. YouTube’s representation that it is committed to freedom of expression, or a single statement made by its executive before a congressional committee that she considers YouTube to be a “neutral public fora,” cannot somehow convert private property into a public forum. Whether a property is a public forum is not a matter of election by a private entity. We decline to subscribe to PragerU’s novel opt-in theory of the First Amendment.

Remember back when Prager used to pretend to be a "conservative" who was against the state forcing private businesses to do something they didn't want to? Apparently, that only applies when it's the other guys.

Somehow I doubt that Prager will stop playing the victim and whining about this. He might even try to appeal to the Supreme Court. But given just how recent the Manhattan Neighborhood Network ruling was, which is what the 9th Circuit relies on heavily in this decision, there seems to be close to zero chance that cert is granted -- and even if it was, there's an even lesser chance of the court ruling against Google.

But, thanks to the 1st Amendment, Prager can go on playing the victim, and see if any more suckers fall for it.

Filed Under: 1st amendment, 9th circuit, content moderation, dennis prager, free speech, intermediary liability, section 230
Companies: google, prageru, youtube

Hoping To Combat ISP Snooping, Mozilla Enables Encrypted DNS

from the encrypt-ALL-the-things! dept

Historically, like much of the internet, DNS hasn't been all that secure. That's why Mozilla last year announced it would begin testing something called "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it more difficult (though not impossible) to see which websites a user is visiting. Obviously, this puts a bit of a wrinkle in government, telecom, or other organizational efforts to use DNS records to block and filter content, or track and sell user activity.

As a result, a lot of these folks have been throwing temper tantrums in recent weeks.

The telecom sector, which makes plenty of cash selling your daily browsing habits, have spent much of the last year trying to demonize the Google and Mozilla efforts any way they can, from insisting the move constitutes an antitrust violation on Google's part (it doesn't), to saying it's a threat to national security (it's not), to suggesting it even poses a risk to 5G deployments (nah, that's an entirely different mess). Mozilla's response to telecoms' face fanning? To first urge Congress to investigate telecom's long history of privacy abuses, then proceeding this week to enable the feature by default in the Mozilla browser.

In a blog post, Mozilla explains its thinking as such:

"At the creation of the internet, these kinds of threats to people’s privacy and security were known, but not being exploited yet. Today, we know that unencrypted DNS is not only vulnerable to spying but is being exploited, and so we are helping the internet to make the shift to more secure alternatives. We do this by performing DNS lookups in an encrypted HTTPS connection. This helps hide your browsing history from attackers on the network, helps prevent data collection by third parties on the network that ties your computer to websites you visit."

While there's a lot of overheated rhetoric about the risk of DNS over HTTPS from the likes of big telecom and government surveillance aficionados, there are some legitimate concerns about the standard from more above-board cybersecurity professionals. They'll be quick to note there's several other points at which ISPs can still engage in data surveillance and sales. They'll also argue that DNS over HTTPS really complicates life for enterprise IT managers, and in some instances encrypted DNS could derail existing cybersecurity solutions or parental control solutions.

Mozilla says it's listening to these complaints, so it's starting slowly with a gradual roll out across the US only. The organization says Firefox will disable encrypted DNS if it conflicts with parental controls. The feature will also be disabled by default in enterprise configurations. Firefox's encrypted DNS will use Cloudflare by default, though users can switch to other encrypted DNS providers manually in their browser settings. Those curious about the particulars can dig through Mozilla's FAQ here.

Filed Under: browsers, dns, dns-over-https, encryption, firefox, privacy, snooping
Companies: mozilla