Funniest/Most Insightful Comments Of The Week At Techdirt

from the stuff-you-said dept

This week, our first place winner on the insightful side is a very simple anonymous response to a lengthy complaint about Section 230:

Freedom of Speech is more important than your feelings. Period.

In second place, we've got a comment from an exchange on our post about the recent end of our long-running legal dispute. One commenter asserted that we were shown to be "de facto wrong on defamation law", to which Adam Steinbaugh pointed out the district court ruling saying otherwise. The original commenter claimed that because it cost money to mount that defense and achieve that initial ruling dismissing the case, that still somehow means we were wrong about the law, leading Matthew Cline to put forth a rebuttal:

If you defend yourself against a lawsuit and win, the fact that winning cost money doesn't make you wrong.

For editor's choice on the insightful side, we start out with a comment from Stephen T. Stone taking on the now-tired complaints about social media companies violating free speech:

Using a service such as Facebook is a societal privilege, not a legal right. If someone could legally sue that service over a ban — and have a court overturn that ban — it would upend the First Amendment’s protections for association. As for “true diversity” and ideologies and such in yuor last paragraph: (A) Prove that multiple platforms are collaborating with one another to deny specific ideologies a place on those platforms, and (B) recognize that true neutrality/“diversity” would burden a platform with hosting speech and speakers that the administrators of said platform have already chosen not to host.

Next, we've got a thorough response from James Burkhardt to the claim that disclosure of classified material is treason:

Disclosure of Classified material is not, by the constitutional definition, sufficient for the charge of Treason. For instance, a non-citizen (someone who does not owe allegiance to the US) could disclose classified material and can not, by definition, be charged with treason.

Moreover, while disclosure of classified material might fit the definition of treason, there are a number of other requirements and restrictions within the consitution and the law established by congress:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason...

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Disclosure of classified material could be considered adhering to the enemies of the US, however proving that requires a showing of intent, and whom you disclose the information to can significantly change that analysis. Which is why we have the crime of espionage, which Courts have barred from allowing an intent analysis.

Moreover, International law (these were extraterritorial murders, after all) and the UCMJ explicitly do not allow "I was just following orders" as a defense against the killing of non-combatants and that such orders should be disobeyed. Under this principle, disobeying the commands of higher ups and exposing the continued killing of non-combatants would appear to be the right action to take. Courts do seem to have disagreed, but that ruling was not in place when the events in question occurred.

Over on the funny side, we've got a double-winner in Stephen T. Stone. In first place, it's a summary of the general desire some folks have to make platforms responsible for everything, and get anything they don't like taken down:

Ah yes, the Defamatory Intent Prevention and Sequestration of Harmful Internet Topics Act.

In second place, it's a response to the Miami plastic surgeon who sued patients for negative reviews:

It’s all in how you say it.

He went from “It’s the Boob God!” to “it’s the boob, God…” with one lawsuit.

For editor's choice on the funny side, we start out with That One Guy expressing a general sentiment about the week:

Journalist admits mistake on 230 and corrects original article...

USPTO is actually right for once...

Alright, who turned on Hell's air conditioner?

And last but not least, we've got CSI: Houston with a response to the critical question of whether apathy is better or worse than corruption and/or incompetence:

I don't know and I don't care.

That's all for this week, folks!

This Week In Techdirt History: May 12th - 18th

from the how-many-roads dept

Five Years Ago

This week in 2014, we took a look at how the administration's terrible track record on transparency had made lawsuits a default part of the FOIA process, and got an example of how FOIA requests were resulting in agencies sharing less information than they would otherwise. Congress was busy pretending SOPA was actually the law even though it wasn't, the DOJ was trying to downplay its lies to the Supreme Court while also arguing that Americans have no fourth amendment protections for communication with foreigners. Meanwhile, a dangerous court ruling affirmed Europe's right to be forgotten and, predictably, opened the floodgates for abuse. We were also fresh off the Google/Oracle ruling declaring APIs to be copyrightable, which spurred Automattic to pledge that it will not claim such copyright.

Ten Years Ago

This week in 2009, we learned that the recently-discovered fake medial journal published by Elsevier to boost Merck products was not at all an isolated incident. We also saw the beginning of an incredibly important lawsuit that would eventually invalidate the patenting of isolated genes, as the ACLU teamed up with cancer patients to sue Myriad Genetics. It was a question that should have been addressed much earlier.

Meanwhile, Sony's CEO was admitting the company should have taken a more "open" approach to digital music, but they comments were pretty similar to what he'd said years earlier, and the CEO of Sony Pictures was almost simultaneously out saying he thinks no good has come from the internet, at all, period. Universal and YouTube were working on their collaboration to create Vevo, Jammie Thomas refused to settle with the RIAA, and France finally approved its three strikes system for copyright infringement — an approach with problems well illustrated by Ed Felten's modest proposal about applying it to print media as well.

Fifteen Years Ago

This week in 2004, phone networks were still being stupidly hesitant about selling phones with WiFi because they viewed it as a threat instead of an opportunity, much like newspapers did with text messaging. TiVo was fighting to regain some dominance in the DVR market, IBM was making an early foray into web-based office software suites, and an enterprising scammer bilked several people who should have known better out of millions of dollars by telling gibberish lies about moneymaking opportunities tied to a Google IPO. The press was still misreporting fines for distributing music online as fines for downloading, while the creator of a Japanese file sharing system was worryingly arrested for abetting copyright infringement. And, with the school year nearing its end, we got a handful of stories about students getting in serious trouble, and even arrested, for trying to hack their grades.

Filed Under: history, look back

Foxconn Still Trying To Tap Dance Around Its Ever-Shrinking Wisconsin Promises

from the words-are-but-wind dept

If you hadn't noticed by now, Trump and Paul Ryan's once-heralded Foxconn factory deal in Wisconsin quickly devolved into farce. The state originally promised Taiwan-based Foxconn a $3 billion state subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew to $4.5 billion the promised factory began to shrink further and further, to the point where nobody at this point is certain that anything meaningful is going to get built at all.

Reports last fall detailed the ever-shrinking nature of the deal, highlighting how Foxconn was using nonsense to justify its failure to follow through, showing that while the company hadn't built much of anything meaningful in the state, it was still routinely promising to deploy a "AI 8K+5G ecosystem" in the state to somehow make everything better. Those empty buzzwords were accompanied by the promise of fully staffed "innovation centers" around the state.

Back in March, reporters visited many of these innovation centers scattered around Wisconsin and found them to be largely empty. Apparently not liking the bad press, Foxconn executives like Alan Yeung attempted to claim that these centers were in fact not empty and that the reports contained “a lot of inaccuracies." But according to locals in the state these supposed innovation centers are, you'll perhaps be shocked to learn, still empty:

"One month after Yeung’s comments and promise of a correction, every innovation center in Wisconsin is still empty, according to public documents and sources involved with the innovation center process. Foxconn has yet to purchase the Madison building Yeung announced, according to Madison property records. No renovation or occupancy permits have been taken out for Foxconn’s Racine innovation center, though a permit has been taken out for work on the roof of another property Foxconn bought for “smart city” initiatives. There has been no activity in Foxconn’s Green Bay building, either."

So what are Wisconsin residents getting for their whopping $4.5 billion in taxpayer-fueled subsidies? It's still not clear. There are thoughts that the state may see some kind of factory, but it's going to be a far cry from what was originally promised, and there are still questions about whether the state will see even a fraction of the jobs that were originally promised:

"Even if Foxconn does build an LCD facility, many questions remain. The company’s current plan is to build a far smaller factory than it initially promised, one that will employ 1,500 people rather than over 10,000. The shortfall leaves both Foxconn and the state in a tricky position. Given the slower pace of hiring, it may be difficult for Foxconn to reach the hiring quotas needed to receive state subsidies. State and local governments, meanwhile, have been building infrastructure and acquiring land based on the original, far more ambitious plan.

Foxconn still seems to be claiming it will be hiring 13,000 workers in the state, but it's getting harder and harder to find anybody who actually believes them.

Filed Under: boondoggle, donald trump, paul ryan, wisconsin
Companies: foxconn

Independent Forensic Investigation Undermines Houston Cops' Narrative About Fatal Drug Raid

from the cops-lie dept

Everything about the botched no-knock raid by the Houston Police Department just keeps getting worse. Here's how everything has gone down so far:

• The HPD said the raid was predicated on a tip that drugs were being sold in the house. In actuality, the "tip" was one of the now-dead resident's mother calling the police to tell them her daughter was using drugs.
• A drug buy was set up using an informant. The informant claimed he had purchased heroin from the house, seen plenty of heroin packaged for sale, and several guns. No heroin was found during the raid and the heroin sent out for testing came from the console of an officer's vehicle.
• The officers claimed one of the residents, 59-year-old Dennis Tuttle, opened fire on them, necessitating the use of force that left Tuttle and his wife of 20 years dead. The gun supposedly fired at officers was not included in the search warrant inventory.
• The officers involved in the raid are now under investigation by the FBI and the DA's office. This has led to the dismissal of criminal cases the two officers were involved in.

Everything about the raid points to a drug unit that loves to raid houses but no so much the due diligence that goes with it. This, shall we say… "zealous" enforcement of the law ended with the deaths of two drug users -- not dealers -- at the hands of cops who have proven to be entirely unreliable when it comes to the "investigation" part of drug investigations.

Another investigation has been opened. An independent forensic review -- headed by a former NCIS supervisor -- of the crime scene has been conducted and the results are jaw-dropping. Not only do they indicate the officers' narrative of the raid is highly-dubious, it shows the Houston PD's forensic team is possibly no better at its job than the officers behind the botched raid.

Hired by the relatives of Rhogena Nicholas and Dennis Tuttle, the new forensics team found no signs the pair fired shots at police — and plenty of signs that previous investigators overlooked dozens of pieces of potential evidence in what one expert called a “sloppy” investigation.

“It doesn’t appear that they took the basic steps to confirm and collect the physical evidence to know whether police were telling the truth,” said attorney Mike Doyle, who is representing the Nicholas family. “That’s the whole point of forensic scene documentation. That’s the basic check on people just making stuff up.”

The police claimed they started firing when the couple's dog charged at them as they came through the door. But the investigation shows the dog was killed in the dining room, more than 15 feet from the front door. The investigators also couldn't find anything confirming the officers' claims that Tuttle started firing at them as they came through the door. It also appears some of the officers were firing into the house before entering it -- another contradiction of the official narrative.

Some of the bullet holes outside the house appeared at least a foot from the door, a fact that Doyle flagged as troubling.

“You can’t see into the house from there,” he said, “you’re firing into the house through a wall.”

It's not just evidence that appears to contradict the official story. The independent investigators also came across a ton of evidence that was never gathered by Houston PD investigators. Left behind were items tagged as evidence, the drugs the HPD drug unit was so hot and bothered about, and a bunch of bullets and casings that could help reconstruct what actually happened inside the house during the raid.

As Radley Balko points out, this really doesn't look good for the Houston PD Forensics unit. It suggests two things -- neither of them positive.

The most damning explanation is that the investigators were covering for the cops. A slightly less damning, but still pretty bad, explanation is that the investigators simply took the cops’ word about what happened and thus saw no need to carefully inspect the crime scene. The least damning explanation is that the cops got no special treatment at all. But that would mean that this is the way crime-scene investigators handle all homicide investigations. You know you’ve been roped into a scandal when the most flattering explanation for your behavior is that you aren’t corrupt, you’re merely incompetent.

This is bad news for the Houston PD and everyone in their jurisdiction. This case has had zero positive developments since it first started making national headlines. A moratorium on no-knock raids might reduce the number of people killed by police officers, but it isn't going to fix the underlying issues that lead to the deadly raid -- and its horrendous aftermath.

Filed Under: dennis tuttle, drug raid, forensics, houston, houston police, rhogenia nicholas

San Francisco Is The First City In The World To Restrict Government Use Of Facial Recognition Technology. Hopefully It's Not The Last.

from the keep-it-going dept

We welcome the city of San Francisco’s decision to ban the use of AI-enabled facial recognition technology by police and other municipal agencies. Facial recognition technology is prone to misidentification and biased targeting, particularly among members of vulnerable communities. It also opens the door to intrusive surveillance -- beyond the scope of existing technology. Until the technology improves to avoid such harms, its use should be heavily restricted. And even with improvements, the public must confront tough questions about how closely governments should monitor their behavior.

Regrettably, global trends are headed in a reverse direction from San Francisco’s decision. From Azerbaijan to Singapore, governments are enthusiastically embracing facial recognition technology. Led by China, such systems are becoming increasingly ubiquitous. Facial recognition has been incorporated into smart city platforms. Cities are placing them on public lampposts and integrating them into security operations centers. While there is greater public awareness of China’s surveillance strategy – particularly its establishment of artificial intelligence-powered facial recognition repression in Xinjiang -- few realize that numerous other countries are developing facial recognition capabilities as well.

This is particularly problematic in countries that lack basic rule of law protections and are already committing major human rights abuses. In countries such as Kazakhstan, Turkey, and Zimbabwe, facial recognition is a dangerous tool that further augments those governments’ arsenals of digital repression by giving them an enhanced capacity to deploy targeted monitoring in public places, to track and harass dissidents and opposition figures at will, and to suppress democratic political activity.

But even in democracies like the United States, government use of facial recognition technology, in its current form, corrodes civil rights and civil liberties because its errors disproportionately impact vulnerable communities. Astudy published earlier this year by MIT’s Media Lab, for instance, found that Amazon’s facial recognition software, which the company has peddled to police departments and Immigration and Customs Enforcement, more frequently misidentified an individual’s gender if they were female or dark-skinned.

Concerned about such disparities, San Francisco’s decision prohibits municipal agencies from using facial recognition technology except at federal facilities like the airport. Taken under the Stop Secret Surveillance ordinance, municipal agencies must also seek approval for any new surveillance technology they want to acquire. The decision passed 8-1 with overwhelming public support.

Even for a state like California that prides itself on trailblazing legislation (among many ‘firsts’, California led the way in requiring that corporate boards include women and enacting a greenhouse gas cap-and-trade program), San Francisco’s decision is extraordinary. Most of the current commentary points out that San Francisco is the first American city to ban government use of facial recognition technology. However to our knowledge, it’s not just the first American city to do so-- it’s the first city in the world; a feat made only more remarkable by the city’s position as the seat of technological innovation -- a rare instance of Silicon Valley putting values ahead of profits.

San Francisco’s decision also has important international implications. Facial recognition surveillance remains relatively nascent in most countries. While governments are interested in expanding their use of it, few states are deploying facial recognition at scale…yet. The world still has an opportunity to institute global safeguards and norms to shape how governments use facial recognition.

San Francisco’s ban is receiving widespread attention. We sincerely hope that this attention will lead to technological innovations that fix facial recognition’s bias problem and, notwithstanding such improvements, a healthy public discourse about facial recognition’s repressive potential.

Charlotte Stanton is a fellow in the technology and international affairs program and the director of the Silicon Valley office of the Carnegie Endowment for International Peace. Steven Feldstein is a non-resident fellow in Carnegie’s democracy, conflict, and governance program and the Frank and Bethine Church Chair of Public Affairs and Associate Professor in the School of Public Service at Boise State University.

Filed Under: bans, facial recognition, police, privacy, san francisco, searches

Canadian Committee Publishes Ludicrous Fantasy Pretending To Be Copyright Reform Analysis

from the oh-come-on dept

Oh Canada. Not satisfied with a ridiculous plan to fine social media companies for ill-defined "fake news," a Canadian Parliamentary Committee has come out with one of the most laughable copyright reform papers I've ever seen. And I've seen some crazy ones. I'd post the whole report here, but the report itself warns that doing so might violate its copyright, and really, how could the Parliament be incentivized to create fantasy stories masquerading as copyright reform proposals without copyright?

Michael Geist provides the bizarre background on the origination of this report:

The Canadian government announced its plans for a copyright review in December 2017, tasking the Standing Committee on Industry, Science and Technology with the review. That report has been in the drafting stage for several months and is expected before the summer. In an effort to dampen concerns that Canadian Heritage would play a diminished role in the review, the responsible ministers asked the Industry committee to ask the Heritage committee to conduct a review on remuneration models for artists and creative industries. The formal request asked the Standing Committee on Canadian Heritage to “call upon the expertise of a broad range of stakeholders impacted by copyright to ensure a holistic understanding of the issues at play.”

Rather than providing the recommendations directly to the Industry committee as requested, the Heritage committee and chair Julie Dabrusin, a Liberal MP, chose instead to release its full report today. The report, which utterly failed to comply with the request to call on a broad range of stakeholders, is the most one-sided Canadian copyright report issued in the past 15 years, largely mirroring the approach of the discredited 2004 Bulte report that was subsequently rejected by the government.

The report is crazier than even I expected upon hearing the details. It doesn't even pretend that there might be some downsides to over-extending copyright law, or that there should be any exploration of the trade offs of various proposals at all. Instead, it insists that we NEED MORE COPYRIGHT in basically every possible place. As if to prove how laughable the entire report is... it actually recommends extending copyright terms -- something that even American copyright maximalists have mostly given up on (and whom, in quiet, will admit that perhaps copyright terms are already too long). But, that view is not even suggested in Dabrusin's dubious analysis of copyright. Indeed, the report admits that it didn't talk to a single person who didn't think extending copyright was a grand idea:

No witnesses expressed outright opposition to extending of the copyright term from 50 to 70 years after death.

If that's the case, you, uh, did not speak to very many witnesses at all -- and you certainly did not abide by your mandate to talk with a "broad range of stakeholders." Incredibly, the report quotes a musician -- uncritically -- who is flat out admitting that she just wants more money for work she did in the past:

Artist Miranda Mulholland said that extending the copyright term would be a “legacy move” that would give artists like herself “the ability to leverage their success.”

Existing copyright law in Canada allows Mulholland and her heirs to "leverage her success" for 50 years past her death. And she wants more? Come on. And, remember, copyright is supposed to be about an incentive to create. If life+50 was good enough for her to create when she did, why should she get extra benefits (by taking away from the public domain) afterwards? That makes no sense at all. But the report reflects none of that.

The report is also laughably credulous about the debunked concept of the "value gap", which is a meaningless phrase invented by the legacy record labels to mean "internet companies figured out how to innovate, while we just sued our best customers, and why aren't they handing us more money?!?" But, according to this report, it's a real problem that absolutely must be dealt with:

Witnesses from the creative industries spoke about a disparity between the value of creative content enjoyed by consumers and the revenues that are received by artists and creative industries. According to many witnesses, this disparity, which is known as the “value gap,” is growing.

According to Graham Henderson, President and Chief Executive Officer of Music Canada, the origins of the value gap extend back more than two decades. As creative industries shifted with the advent of the internet, copyright policy and protections became outdated and ineffective. Miranda Mulholland, artist and entrepreneur, aptly described, “the biggest reason for [the value gap] is that the laws in place today reflect a time of home phones, of scrunchies, and of buying a CD at a music store instead of today's world of streaming.”

That's silly. Canada went through major copyright reform in 2012. The idea that the laws reflect the 1980s is just silly. And wrong. So is the idea of a value gap.

The report falsely claims that there has been a "decline in the artistic middle class." This is absolutely laughable. As we showed in our recent Sky Is Rising report, the internet has enabled a massive new artistic middle class by allowing them to go direct to fans, and not rely on a single gatekeeper. Instead, there are lots of tools to create, to reach new fans, and to make money -- and all of the data suggests that's happening. What's telling is that nowhere in the report do they cite any actual statistics around this, but merely anecdotes. It's incredible.

The entire report is based solely on anecdotes and quotes from legacy industry insiders, who might have just a wee bit of bias in telling the Canadian government that it needs to force internet companies to pay more. Not surprisingly, this report endorses the approach the EU has taken with its new copyright laws: put all the liability on the platforms. Again, there isn't even an attempt to show why this might create problems or trade-offs -- just quotes in support:

Another approach to combatting piracy that witnesses raised is to involve the intermediaries in content distribution such as Internet service providers (ISPs). Witnesses described different methods to do so. For the Association nationale des editeurs de livres, ISPs ought to “inform their subscribers about copyright” and “[withdraw] access from non-compliers.” For representatives from the music and the film and television industries, the courts ought to be allowed to force ISPs to block access to the websites that allow piracy.

To further curb illegal copying or streaming, it was suggested profiting from the theft and sharing of rights holders' exclusive and copyrighted content on illegal streaming services be deemed a criminal offence.

Many witnesses also asked for modifications to the safe harbour provisions related to digital intermediaries and ISPs. The Committee heard that these provisions ought to be reviewed to ensure that these online services are held accountable for their role in diffusing content. The recommendation is linked to the theme of Canadian content previously discussed. Witnesses told the Committee that the Internet should not be seen as a set of “dumb pipes” and, rather, that ISPs “enjoy and greatly benefit from access to the music they give their clients.”

The whole report is an utter joke. It seems clear that it was written by someone who not only heard from one tiny set of views, but who is either woefully ignorant of the myriad views on copyright and its impact, or who purposefully tried to hide that. Either way, it makes this report not worthy of consideration by any legitimate legislative body.

Filed Under: canada, canadian heritage, copyright, julie dabrusin, middle class musicians, safe harbors, term extension, value gap

Daily Deal: The Ultimate Logic Pro X Music Production Bundle

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

Get started producing your own music with the Ultimate Logic Pro X Music Production Bundle. Logic Pro X is the leading Digital Audio Workstation for Apple users and it's used across professional studios and bedrooms worldwide. Learning how to use your DAW correctly will improve the quality of your music and the speed you create it. Over 8 courses, you'll learn everything from songwriting, mixing and mastering tracks, audio mixing for podcasts, and more. It's on sale for $29.

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

And Now The Prime Minister Of Canada Is Threatening To Fine Social Media Companies Over 'Fake News'

from the please-stop dept

Oh good. Now Canada wants in on the "fake news" action.

Canada is introducing a digital charter that will impose "meaningful financial consequences" on tech companies if they don't reign in misinformation on their platforms, Prime Minister Justin Trudeau said on Thursday.

Trudeau made the announcement during a speech in Paris at the Viva Technology conference. He said that social media companies have “failed their users” and announced the Canada will establish a new digital charter aimed at universal access, countering online extremism and misinformation, and transparency.

Not included in this announcement:

• What "misinformation" means in this context
• How fines will be handed out
• What collateral damage this will cause to free expression
• Why any of this is necessary

Apparently, this all flows from the Christchurch shooting in New Zealand. On top of "eradicating terrorist and violent content… once and for all," the Canadian government will apparently be punishing tech companies for failing to eradicate anything the Canadian government believes isn't real. The phrase "meaningful financial consequences" was used.

Perhaps the biggest misconception government officials hold about social media platforms is that moderation is easy. They find a few examples of stuff they think should be banned and they assume anyone can do the same thing, even when dealing with millions of uploads a minute. They also believe moderators should instinctively recognize this content immediately, no matter the context, and act to remove it before it's seen by others.

Something as nebulous as "fake news" is going to be a lot harder to moderate than "terrorist and violent content." Even the latter has its own issues, as much of what's considered "terrorist and violent" can also be newsworthy or crucial to law enforcement investigations.

"Fake news" tends to be whatever top government officials declare it is. If that's all it takes, tech companies will be fined as often as grandstanders open their mouths. As we've seen here in the US, President Trump can't go more than a day without calling someone or something "fake news." If that same hostility towards the press is shown in Canada -- and it's not inconceivable someone like Trump could become Prime Minister -- tech companies will have two choices: pay fines constantly or subject their users to a ton of moderation collateral damage.

This won't make things better for Canadians. And it won't do them any favors when it comes to them expressing themselves online. Demanding more moderation using meaningless buzzwords is a great way to open up a portal to moderation hell. If the Canadian government can find a better approach to tackling "fake news" than perpetually fining social media companies, it probably should excuse itself from the discussion.

Filed Under: canada, disinformation, fake news, fines, free speech, justin trudeau, social media

Federal Court Says Warrants Are Needed To Grab GPS Data From Third-Party Tracking Services

from the seems-like-an-obvious-extension-of-Carpenter dept

In 2012, the Supreme Court decided that GPS tracking devices require warrants. Notably, this wasn't because the GPS data was deserving of Fourth Amendment protections but because officers had to trespass on private property (a car parked in a driveway) to attach the device.

That left law enforcement with a lot a gray area in which to operate. Since there was no distinct finding that GPS data was protected, it could theoretically be harvested from third-party devices without a warrant. The Supreme Court's decision in the Carpenter case, however, appeared to extend protections to the records themselves. It declared the acquisition of cell site location info requires the use of the warrant, extending Fourth Amendment protections to third party records of people's movements. It could be argued this decision covers GPS data pulled from third party services, since it's basically the same thing: gathering records of a person's movements.

In a recent federal case [PDF], both of these Supreme Court decisions are in play. It appears law enforcement thought it had found a way to route around the Jones decision. Investigating a robbery, detectives approached the dealership that had sold the vehicle spotted at the scene of the crime. The dealership had installed a tracking device to make the car easier to find in case of a repo. This was the data detectives obtained without a warrant.

On March 29, 2017, Hinsdale detectives issued an alert “on multiple databases” seeking information about the Lexus. Id. at 3. On April 4, 2017, a Headers employee told one of the detectives that the Lexus was equipped with a GPS tracking device serviced by Air Assault Asset Track GPS Systems. The Headers employee gave the detective her login credentials for Air Assault’s website and authorized him to access “all the GPS records associated with the Devinn Adams/Lexus RX account.” The GPS records included historical data tracking the Lexus’s “movement and global position.”

Without first obtaining a warrant, the detective downloaded a spreadsheet containing GPS data for the period from March 1, 2017 through April 4, 2017. The spreadsheet sets forth time-stamped entries giving the Lexus’s approximate street address (usually at the block level, such as “5701-5799 S Campbell Ave, Chicago, IL, 60629”) each time it was turned on, approximately every five minutes while it was being driven, and each time it was parked. According to the detective, “[g]reater detail” beyond those approximate street addresses “c[ould] be extracted from the map points” using “the software program that manages the GPS data,” which allowed the detective to “narrow[]” each recorded location “to specific latitude and longitude way points.”

Tobias Diggs, the alleged driver, moved to suppress the evidence, stating that both the Jones and Carpenter decisions prohibited this information being obtained without a warrant. The government argued that neither decision mattered.

The government responds that acquiring the data was not a Fourth Amendment search because: (1) unlike in Jones, the police made no physical intrusion on the Lexus, Doc. 55 at 10-12; and (2) under the third-party doctrine, Diggs lacked a reasonable expectation of privacy in the data because he voluntarily provided it to the third party (Headers) from which the police obtained it, id. at 5-10.

Wrong, says the court. This is exactly what's covered by these two decisions.

The GPS data at issue here fits squarely within the scope of the reasonable expectation of privacy identified by the Jones concurrences and reaffirmed in Carpenter. The GPS data provide “a precise, comprehensive record of [Diggs’s] public movements” over the course of a month.

It goes on to point out the data collected here is pretty much indistinguishable from the data at the heart of the Carpenter decision.

Applying the third-party doctrine to the GPS data here would require essentially the same extension of the doctrine that the Court rejected in Carpenter. Carpenter understood CSLI to present “many of the qualities of the GPS monitoring … considered in Jones”—both are “detailed, encyclopedic, and effortlessly compiled”; both “provide[] an intimate window into a person’s life”; and, in the context of historical information, both provide a “tracking capacity [that] runs against everyone” without any need for the police to “know in advance whether they want to follow a particular individual, or when.” Indeed, at the time of the search in Carpenter, CSLI was still “less precise than GPS information.” Accordingly, Carpenter compels the conclusion that, given the privacy concerns implicated by the “detailed and comprehensive record of [Diggs’s] movements” captured by the Lexus’s GPS tracker, “the fact that the [police] obtained the information from a third party does not overcome [Diggs’s] claim to Fourth Amendment protection.”

The government also tried to get the good faith exception applied. Given that this search occurred prior to the Carpenter decision, the government says the detectives had no reason to believe a warrant was needed. The court disagrees. The government can point to no prior cases specifically authorizing this sort of warrantless search. But more importantly, it reiterates that the Carpenter decision can -- and should -- be applied retroactively.

The Supreme Court could have described what it was doing in Carpenter, not as declining to extend the third-party doctrine to a context not addressed in Smith and Miller, but as partially scaling back the once-categorical doctrine to account for “the seismic shifts in digital technology” that gave rise to widespread, long-term location tracking. 138 S. Ct. at 2219. Had it done so, the Davis good-faith exception might very well have applied here. [...] But instead, the Court said that the third-party doctrine was never broad enough to encompass technology-enabled long-term location tracking in the first place.

[...]

Carpenter thus teaches that general statements of the third-party doctrine uttered in pre-Carpenter decisions not only do not cover CSLI, but never did. And as noted above, what Carpenter said about the third-party doctrine as to CSLI applies with full force to GPS data. It follows that for the Davis good-faith exception to apply to the GPS search here, the government needs more than general statements of the third-party doctrine in a binding appellate decision issued before the search; rather, the government must point to binding appellate precedent applying the doctrine to long-term historical GPS data or its equivalent.

The government loses the GPS data evidence. And it may lose even more than that if any of its other evidence was derived from this unlawful acquisition of data, which possibly includes DNA samples and social media records.

Not every court has read the Carpenter decision as retroactive, but this court's opinion makes really good points about why it should be read that way in all instances. The Third Party Doctrine was altered significantly by this decision, even if it only dealt with cell site location info. It has changed the contours of what can be considered a "reasonable" search of records held by third parties. Location info is only the beginning. The court's extension of this protection to third-party GPS records sends a message to law enforcement that the stuff they did for the last 40 years (thanks to Smith v. Maryland) may no longer survive a suppression challenge.

Filed Under: 4th amendment, carpenter, gps, jones, supreme court, third party doctrine, warrants