The CBP is searching more devices than ever and ramping up an "extreme vetting" program that includes biometric scans, demands for social media account passwords, and more intrusive searches across the board. As the number of device searches continues to increase, the agency's technical chops and and internal oversight aren't keeping pace.

That's according to recently-released Inspector General's report [PDF], which finds little to like about the CBP's search processes and policies, other than they occasionally manage to catch criminals attempting to enter the US. The CBP's Office of Field Operations is supposed to be taking charge of device searches, ensuring they're done effectively and intelligently. So far, it appears the OFO has taken a hands-off approach to management, resulting in bad practices and worse security.

[B]ecause of inadequate supervision to ensure OFO officers properly documented searches, OFO cannot maintain accurate quantitative data or identify and address performance problems related to these searches. In addition, OFO officers did not consistently disconnect electronic devices, specifically cell phones, from networks before searching them because headquarters provided inconsistent guidance to the ports of entry on disabling data connections on electronic devices. OFO also did not adequately manage technology to effectively support search operations and ensure the security of data.

Here's the kicker: the OFO is so laid back it still hasn't begun to address a problem raised by the Inspector General more than a decade ago.

Finally, OFO has not yet developed performance measures to evaluate the effectiveness of a pilot program, begun in 2007, to conduct advanced searches, including copying electronic data from searched devices to law enforcement databases.

Considering the pace of technology development, the OFO has managed to put the CBP more than a decade behind. Playing catch up now will probably bring them to five years behind schedule sometime within the next couple of years and ahead of the office's baseline expectations sometime around never.

These device searches can be intrusive. In some cases, devices are held for months as the agency performs forensic searches and analyzes the data. These intrusions need to be justified, but the IG found CBP officers can hardly be bothered to do the paperwork.

We reviewed 194 EMRs [Electronic Media Reports] and identified 130 (67 percent) that featured one or more problems, which totaled 147 overall.

The DHS's own search policies say device searches will be limited to data at rest, unless a deeper search can be justified. The OIG says none of the 154 EMRs compiled before the DHS reiterated this rule in April 2017 contained any evidence data connections were disabled before searches were performed.

This lack of care undercuts one of the arguments the DOJ offered when fighting against a warrant requirement for phone searches: that criminals could destroy evidence on a seized device using remotely-triggered software. The CBP either doesn't think this is a possibility or it sincerely doesn't care if it's jeopardizing its own searches. Either way, it does nothing to give the government's overdramatic assertions any more credibility.

The list of bad news goes on and on. The CBP failed to renew licenses for forensic software, resulting in the inability to perform advanced searches for period of months. It also ignored retention policies, allowing data copied from people's devices to sit around on external storage devices indefinitely. As the OIG points out, this isn't just a policy violation. It's also a security issue. Agents could peruse communications and data they have no business looking at and the theft of a storage device could result in unauthorized disclosures of travelers' data.

If there's a silver lining, it's that the CBP concurs with the IG's determination that it sucks. There's been no pushback from the agency -- only vows to make the needed improvements. But that's tempered by the fact the CBP still hasn't begun to address issues raised by the OIG in 2007. These recommendations will likely put the agency even further behind the technological curve, raising the chance of criminals and terrorists escaping detention and increasing the risks posed to travelers that their data might be abused by the CBP, or worse, some rando who happens to walk off with an unguarded USB stick.

While we've spent some time here talking about the emergence of eSports and online gaming generally, it's safe to say that South Korea was one of the trailblazers in this space. This has led to a remarkable ecosystem in the country for online gaming and competitive gaming. But it's also led to South Korea introducing some fairly problematic laws at the request of the gaming industry. For instance, criminalizing cheating in online gaming is very much a thing in South Korea, though this is actually done by making it illegal to break a game's ToS, which nobody reads.

Now, however, South Korea is going a much more targeted and direct route by criminalizing "boosting", the practice of experienced players of a particular game contracting their services to help less-able gamers to climb the level ranks.

An amendment has passed in Korea’s National Assembly that could charge players found guilty of boosting with a two-year suspended prison sentence and a fine up to $18,000 (20 million won), according to Korean news site Inven.

The law, an amendment to the Game Industry Promotion Act, was first proposed in June 2017. Working with game developers in the country, the government will target boosters and boosting companies that charge for rank inflation across a number of games, including Overwatch and League of Legends.

This is yet another one of those situations where it's important to fight off the initial normal reaction, which is typically to decide that anything that negatively impacts those cheating within online games is just fine. There is such a thing as overkill, in other words, and assessing five-figure fines for the crime of playing an online game for somebody else so the game thinks he or she is better at it then they actually are should certainly fall into that category.

This isn't to say that boosting isn't a problem for these online ecosystems of course.

Boosting is a problem in games that rank players by skill; artificially inflating one’s rank disrupts the normal flow of play. The business of boosting is complex and far-reaching. A number of Overwatch League players have been punished for past boosting in the league’s first season. Philadelphia Fusion player Kim “Sado” Su-min was suspended for 30 games for the practice, while Son “OGE” Min-seok sat out four gamesfor boosting. Blizzard continues to issue large scale bans against boosters nearly every month.

The problem is that these developers are outsourcing the enforcement of their own platforms to the South Korean government, often to the tune of large sum fines and potential jail time. Does nobody else remember when we were kids and couldn't pass a level in a game, so we handed the controller to an older sibling to get past it for us? That's essentially what this is, with the big difference being that doing so effects the experience and rankings of everyone else playing as well. That's certainly annoying, and no doubt a problem.

But worthy of this kind of litigation? It's hard to make sense of that argument.

We've got a double winner on the insightful side this week, with That One Guy taking on a pair of bad excuses from law enforcement. In first place, it's his response to the Kansas Supreme Court ruling that officers can search houses without a warrant if they say they smelled marijuana:

"I love the smell of warrantless searching in the morning."

Why do I suddenly suspect that claimed weed use is about to skyrocket in the state of kansas, as suddenly cops are going to be smelling it everywhere they feel like searching?

And all of this over a substance that multiple states have been sane enough to decide should be legal. Lovely.

In second place, it's a response to the New York police union objecting to having to document their use of stop-and-frisk:

Telling objections

If simply documenting what they are doing accurately is considered a hindrance to the point that it would interfere with (what they imagine are) their jobs then that seems a pretty blatant admission that what they are doing wouldn't stand up under any scrutiny, and as such they almost certainly shouldn't be doing it.

Someone for whom a gun is standard gear had damn well better be mentally competent enough to document what they do on the clock, and if the incredibly low bar of recording their own actions is too much then clearly the job they are in is far beyond their ability. Any 'cop' who finds something that pathetically simple too difficult to manage deserves to lose their job and/or be fired for gross incompetence.

For editor's choice on the insightful side, we start out with a long comment from cpt. kangarooski responding to another comment full of false claims about copyright:

[The US Constitution] recognizes the Right of Authors and Inventors to EXCLUSIVELY control their works. Period.

No it doesn’t.

The Constitution doesn’t grant copyrights and doesn’t mandate that Congress enact copyright law. It merely empowers Congress to do so, should it wish. That authority is then sharply limited in several respects. Here’s what it says:

The Congress shall have Power ... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

You’re misreading the “exclusive right” sub-clause. It doesn’t mean that they can “exclusively control” their works as though no one else can. An exclusive right is literally a right of exclusion. That is, the copyright holder (who may not be the author) can exclude other people from engaging in certain, limited, types of behavior with regard to the pertinent copyrighted works. It doesn’t mean that the copyright holder has control. It’s the difference between a shield and sword.

This is most clearly seen in the example of blocking patents. (In short, inventor 1 invents and patents an invention. Inventor 2 later invents and patents an improvement to the invention. Inventor 1 cannot use invention 2, and Inventor 2 cannot use Invention 1. Each one excludes the other unless they come to an agreement — or patent 1 ceases to exist, which frees up Inventor 2 to do as he likes.)

Another example would be a libelous book — the copyright holder can use the copyright to prevent other people from printing copies, and his copyright is never diminished in the least during the term, but he cannot himself print the book because it’s libelous.

There can be no quarter given to those with [the view that copyright is artificial in nature and, at the very least, so-called common law copyrights do not survive publication].

Well, that’s basically all copyright scholars then. The Supreme Court too, which rejected your ideas almost 200 years ago in Wheaton v. Peters, 33 US 591 (1834), which was, ironically, about copyrighting Supreme Court opinions — they said no, it cannot be done, and found in favor of the guy accused of piracy.

Since the creators have all of the moral basis which is on bedrock Constitutional law, pirates are not going to win.

There is no moral basis to copyright. It’s amoral, like an ordinance regulating what sort of fence your house can have.

The productive part of society has given pirates every opportunity to show restraint, but there can no longer be doubt: NO ONE WILL PAY IF DON'T HAVE TO.

Your grammatical error aside, there was never any doubt and there has never been any restraint. Publishers have always been nasty about piracy — often even when they themselves were pirates.

But there’s a far easier solution. If authors don’t think they’re getting a good deal, just stop creating and publishing works. Let’s see for once and for all of there are enough authors who care to have an effect or whether society can keep humming along without them.

Next, we've got John Roddy with a good summary of the state of copyright in the culture:

Overreaching copyright laws have bred an entire generation of consumers who see no reason to respect copyright anymore. It is used to shake down innocent people for settlements in literal criminal rackets (see: Prenda), retroactively take away content you paid for (Apple, Amazon, etc.), and lock down your own property because you aren't allowed to own anything anymore.

Why on earth would you believe that making the laws even more draconian will improve anything?

Over on the funny side, our first place winner is Shufflepants who took our baby-and-bathwater analogy about the EU Copyright Directive and... ran with it:

It's a nice and simple metaphor, but the real situation is even worse than that. It'd be more like, throw out any bathwater on request, and if you've already thrown out that bathwater, make sure to never let anyone else add that water back into the bath, but don't supervise the tub, don't throw out any babies, especially not babies that are made of water, except for some of the babies that are made of water, unless that baby was added to the water by its guardian, then it should stay in or if the baby's guardian gave some one else permission to put the baby in the bath, so make sure you've monitored communications between all people everywhere so that you'll know which is which, but don't do that if it's too much trouble or impossible, but if you don't we'll fine you a lot.

In second place, we've got an anonymous response to an incredibly bizarre and paranoid comment about Google's leftwing bias being proven by difficulty in finding some arcane radio frequency data:

"I don't know how to use web search terms effectively, it must be a conspiracy!"

For editor's choice on the funny side, we start out with a response from Baron von Robber to Joe Arpaio's defamation lawsuit that actually only earned an insightful badge, but nevertheless made me chuckle:

For a party that claims the others are snowflake, they sure melt easy.

Last but not least, we've got an anonymous response to the suggestion that the only way to effectively abide by the EU Copyright Directive would be to "hire God to do it", noting that even this idea just puts us in theological paradox territory:

Sorry, the Supreme Being is still busy creating a stone so heavy that He cannot lift it.

Perhaps, after that minor task is done, He may be willing to create an upload filter that is not an upload filter.

That's all for this week, folks!

Five Years Ago

This week in 2013, we learned about how the NSA and GCHQ infiltrated World Of Warcraft and Second Life, and about how the NSA was to track people. Most big tech companies were calling for major surveillance reform while AT&T was rebuffing criticism from shareholders — but the government's plan for reform seemed mostly cosmetic and ineffectual. Law enforcement was also ramping up its collection of cellphone data and use of Stingray devices, though for the time being the feds were accepting a ruling saying they need a warrant to put GPS devices on cars. But the feds definitely didn't want to share their FISC legal filings with companies suing them over surveillance, and Keith Alexander was insisting he couldn't think of any way to keep Americans safe without bulk metadata collection.

Ten Years Ago

This week in 2008, Warner Music was pushing for a music tax and we were explaining why that's a bad idea. Universal was continuing to wage war on Redbox, online video sites were harming themselves with geographical restrictions, and a hairdresser in New Zealand got billed for playing the radio in her shop. In the DRM world, Nokia's flopped "Comes With Music" scheme for devices had its DRM cracked, while Ubisoft finally decided to drop DRM on Prince of Persia in a highly passive-aggressive way.

Fifteen Years Ago

This week in 2003, the deluge of online music offerings got even sillier with Coca Cola launching its own download store, even while across the industry customers were starting to question the standard pricing (and it was becoming clear that the real money was in selling hardware). Meanwhile, the RIAA hired ATF chief Bradley Buckles to head up its anti-piracy efforts, while a court was telling MPAA head Jack Valenti that he doesn't get to decide whether studios can send out DVD screeners. But Hollywood was winning on other fronts, trying to push its anti-camcorder laws to the national level, and doing well in its fight for a broadcast flag because consumer electronics companies weren't united in their opposition.

The Kansas Supreme Court has just given cops a pass to treat residents' homes like cars on public roads. Being in a car greatly diminishes your Fourth Amendment protections and many a warrantless search has been salvaged by an officer (or a dog) testifying they "smelled marijuana" before tearing the car apart.

Unlike a car on a public road, a person's home has traditionally been given the utmost in Fourth Amendment protections. The bar to search a home is higher than the bar to search a vehicle. Cops aren't supposed to be walking up to windows to peek inside. Nor at they supposed to hang out by the door, hoping to catch a whiff of something illegal.

But that's exactly what they'll be able to do now. If they can find a reason to approach someone's home, all they need to do is declare they smelled marijuana to get past the front door without a warrant. This completely subjective form of "evidence" can be used as probable cause to effect a warrantless search.

The stupefying opinion [PDF] opens with an equally-stupefying bit of exposition:

While on routine surveillance at a local convenience store, Lawrence Police Officer Kimberly Nicholson checked a vehicle's license plate. That records check indicated the car had been stopped several weeks earlier with Irone Revely driving. It was noted there was an active arrest warrant for Revely's brother, Chayln Revely. Nicholson confirmed Irone was the driver, and she believed the passenger matched Chayln's description.

Nicholson followed the vehicle, looking for a traffic violation that would permit a vehicle stop and might allow the officer to confirm the passenger's identity. No violation occurred, so Nicholson followed the vehicle to an apartment complex. The passenger got out and ran into an apartment. Irone trailed behind. Nicholson approached and asked Irone if the person who ran into the apartment was his brother. Irone did not answer and continued walking toward the apartment with Nicholson following.

I'm still trying to wrap my mind around the phrase "routine surveillance at a local convenience store" that's just casually dropped into the opening of the opinion as if that collection of words made any sort of sense. Is this how we're spending our law enforcement dollars? Hanging out by local businesses and running plates? It seems, at best, incredibly inefficient.

That being said, the 7-11 stakeout (or whatever) led Officer Nicholson to the door of Lawrence Hubbard's apartment. That's when the law enforcement magic happened:

Nicholson later testified she was about 2 feet from the front door when Hubbard exited. She further testified she "smelled a strong odor of raw marijuana emanating from the apartment." The officer questioned Irone and Hubbard about the smell. Hubbard denied smelling anything and said his lawyer told him humans cannot detect a marijuana odor.

(That last sentence is equally stupefying. Marijuana does have an odor. That being said, that odor is not always present when an officer claims it is. See also: every search predicated on the smell of marijuana that fails to turn up any marijuana.)

More officers had arrived by that time and decided they might need a warrant. The officers told everyone present to leave until the apartment could be searched. Three officers, including Nicholson, performed a "security sweep" to make sure everyone had left. During this sweep, officers saw drug paraphernalia, a gun, and a locked safe. The warrant arrived and the safe was pried open, resulting in the discovery of 25 grams of marijuana.

Now, let's look at Officer Nicholson's claim:

Nicholson said she "smelled a strong odor of raw marijuana emanating from the apartment."

Here's what was found:

[O]fficers pried open the safe and found 25.07 grams of raw marijuana inside a Tupperware container…

So, from two feet outside the doorway, Officer Nicholson smelled raw marijuana located in Tupperware container inside a locked safe inside a bedroom inside the "back bedroom" closet. That's the story she stuck with, which seems facially unbelievable given the facts of the case.

Whatever, says the Kansas Supreme Court. Officer Nicholson was declared credible, given her past nasal expertise. The same with the other officer, who also smelled raw marijuana through the Matryoshka-esque layers shielding the contraband from random apartment visitors.

Among its factual findings, the court concluded: (1) Nicholson had "detected the smell of raw marijuana 200 to 500 times and burnt marijuana 100 to 300 times" in her law enforcement training and professional experience; (2) when Hubbard came out of his apartment, closing the door behind him, both Nicholson and Ivener could smell what they identified as the odor of raw marijuana coming from the apartment; (3) Ivener testified the smell was "potent" and "overwhelming…"

LOL at "overwhelming." One burnt cig and 25 grams in a locked safe inside a sealed Tupperware container. Officer Ivener is more bloodhound than human and is obviously credible as fuck. This third attempt to suppress the evidence fails because the state Supreme Court says assertions that cannot be proven are all that's needed to waive probable cause search requirements. If an officer claims to smell marijuana, the exigent circumstances exception to the warrant requirement kicks in. After all, preventing someone from flushing weed down the toilet is more important than ensuring the rights of the policed.

[W]e agree with the panel that the probable cause plus exigent circumstances exception permitted the warrantless sweep. Therefore, to the extent the paraphernalia evidence and the search warrant were fruits of a warrantless search, the sweep was not illegal and the challenged evidence is not subject to exclusion.

The sound you hear accompanying this sentence is the Constitution being run through the shredder like Banksy artwork:

We hold that the totality of the circumstances surrounding a law enforcement officer's detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime.

There's all officers need to obtain a warrant. And since you can't have anyone destroying the evidence you claim you smell while you're waiting for a warrant, you get a free warrantless peek.

The panel focused on the second, fourth, and fifth Dugan factors. Under the second, the court highlighted Ivener's testimony that he did not know how many people had been in the apartment originally and whether they all left, so the officers could not know whether everyone was out. This weighs in the State's favor. Under the fourth factor, the panel noted there was evidence the occupants were aware of the officers' presence, so this also weighs in the State's favor because it demonstrates anyone staying behind would be alerted to the likelihood of an impending search.

The dissent says the lower court did not do enough to vet the officers' claims about their ability to identify the odor of raw marijuana a few dozen feet away from where it resided inside a sealed container inside a locked safe. It points out that if officers want to be considered experts on the odor of marijuana, they should be treated as expert witnesses when testifying. Instead, the lower court accepted their claims of expertise (the hundreds of past marijuana odor sniffs) but then decided they should only be held to the same standard as a lay person giving non-expert testimony. From the dissent:

The officers in this case were not testifying as mere lay persons. On the contrary, they specifically stated that the origin of their ability to smell and identify the source of their olfactory perception as raw marijuana stemmed from their brief exposure to the identified odor during their study at one or more police academies, followed by their experience with numerous cases in which they had successfully detected the substance. This uncontroverted dependency between the officers' training and experience on the one hand and the opinions they expressed on the other hand qualified their testimony about detecting the strong, potent, or overwhelming odor of raw marijuana as expert opinion testimony.

[...]

As urged by the defense, the science, if any, behind the officers' apparently sincere belief in their professed ability to detect an odor of raw marijuana should have been subjected to vetting under the rule of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which is now codified in subsection (b). The officers' expert opinion testimony should have been admitted on the critical issue of the existence of probable cause at the time of the sweep of the apartment only if "(1) [t]he testimony [was] based on sufficient facts or data; (2) the testimony [was] the product of reliable principles and methods; and (3) the witness[es] ha[d] reliably applied the principles and methods to the facts of the case." K.S.A. 2017 Supp. 60-456(b). The district judge erred by failing to exercise her gatekeeping function under subsection (b).

This would have given the defendant a chance to raise a Daubert challenge during trial, which could have resulted in the lower court finding in his favor on the unconstitutional search argument. Rather than officers simply saying "Oh, I've smelled weed a lot and also this time," they'd actually have to provide some evidence of their claims. Is there anything "scientifically valid" about claiming to have experienced the "overwhelming" odor of raw marijuana safely ensconced in a goddamn safe? Probably not. But we'll never know because Kansas courts won't apply that standard. And the state's courts will never have to apply the standard because the top court has stated it's now OK for cops to rescue a warrantless search simply by saying they smelled something illegal.

Gamers of a certain age will be very familiar with the insanity from roughly 2010 that was Sony's reaction to having its Playstation 3 console hacked to return functionality that Sony initially advertised and then rescinded via a firmware update. While PS3 owners cheered on the hack, as many of them loved the function that Sony took away, Sony instead began a full on legal war with the Geohot, the hobbyist who gave users what they wanted. The whole thing was a complete mess that made Sony look awful and ultimately resulted in the Playstation 4 of course not having the function that users wanted, and the console being much, much more locked down at release.

I'm going to take a moment again to remind you that this all occurred only roughly 8 years ago. Why? Well, because Sony recently released its Playstation Classic retro console... and apparently made it very, very easy to hack.

The PlayStation Classic was a great idea that was disappointingly executed. Not surprisingly, hackers have been hard at work trying to crack the novelty console as they’ve done already with Nintendo’s NES Classicand SNES Classic.

The job’s been made easier, the hackers claim, thanks to Sony reportedly housing the key to decoding the PlayStation Classic’s firmware on the device itself, rather than utilizing a private key held by Sony. The underlying code that runs on game console is encrypted to prevent people from tampering with it, but in this case the tools to unlock and start changing how the console operates were available to anyone who dug through the code by copying it onto a PC. As first reported by Ars Technica, console hacker yifanlu pointed it out on Twitter late last week in-between streaming his attempts to break open the console’s digital architecture on Twitch. So far they’ve been able to play unincluded PS1 games like Spyro using a thumb drive and are currently working on getting other emulators working on it as well.

Here again we see hackers enabling what gamers wanted out of their Playstation Classic devices, but which Sony failed to provide. The biggest disappointment in the Playstation Classic has been the short game library. By screwing around with the console, tinkerers can enable playing many, many more games. And, given that this is Sony we're talking about that just went through all of this with the PS3, you have to wonder just how much of this was done on purpose, and how much is Sony not having things buttoned up on their end.

“There really isn’t any security on the device at all,” yifanlu told Kotaku in an email. “Sony managed to accidentally include their firmware update private keys on every console.”

If that's true, you have to wonder if another round of stupid of the kind we saw with the PS3 is about to happen. Sony is notoriously protective of its hardware, often leading it down a litigious path. But if the company were to once again attack tinkerers and deprive users of useful features for its product, and did so after so willfully ignoring securing its consoles from this type of thing, that would nearly smack of a honeypot rather than Sony having any true gripe.

The FCC this week voted yes on a new proposal the agency says will help combat the scourge of robocalls, but critics and consumer groups say opens the door to wireless carriers being able to censor text message campaigns they don't like, or SMS services that may compete with their own offerings.

In a 3-1 party line vote, the FCC approved (pdf) redefining text messages as an "information service," therefore freeing such services from FCC oversight. In its announcement, the agency was quick to insist that this was done specifically to help carriers better fight robocalls and robotexts without worrying about running afoul of government rules:

"In today’s ruling, the FCC denies requests from mass-texting companies and other parties to classify text messaging services as “telecommunications services” subject to common carrier regulation under the Communications Act—a classification that would limit wireless providers’ efforts to combat spam and scam robotexts effectively. Instead, the FCC finds that two forms of wireless messaging services, SMS and Multimedia Messaging Service (MMS), are "information services" under the Communications Act. With this decision, the FCC empowers wireless providers to continue taking action to protect American consumers from unwanted text messages.

Critics, however, charge that this was another example of the FCC's motives not being made entirely clear to the public at large.

As we've noted previously, this particular debate over text message classification began some time back, after Verizon decided to ban a pro-choice group named NARAL Pro-Choice America from sending text messages to Verizon Wireless customers that had opted in to receiving them. Ever since then, consumer groups, worried that cellular carriers would use their power as gatekeepers to stifle certain voices, have been urging the FCC to declare text messages a “telecommunications service," making it illegal for carriers to ban such select SMS services.

This being the Ajit Pai FCC, the agency went the complete opposite direction in a move that largely benefits wireless carriers. The fight somewhat mirrors the net neutrality battle involving whether to classify ISPs themselves as "information services" under the telecom act (freeing them from significant oversight), or "telecommunications services"--keeping them locked into oversight by the FCC. Consumer groups like Public Knowledge were quick to issue statements pointing out this had everything to do with ensuring telecom giants are less accountable, and little to nothing to do with actually combating robocalls and robotexts:

"No one should mistake today’s action as an effort to help consumers limit spam and robotexts. There is a reason why carriers are applauding while more than 20 consumer protection advocates -- along with 10 Senators -- have cried foul. This decision does nothing to curb spam, and is not needed to curb spam. It is simply the latest example of Chairman Pai’s radical agenda that puts companies ahead of consumers. We urge members of Congress to overturn this decision and ensure that wireless carriers cannot block or censor personal text messages."

Those concerns were mirrored by FCC Commissioner Jessica Rosenworcel in her lone dissent:

Like net neutrality, gutting oversight of companies with decades of anti-competitive behavior under their belts (not to mention flimsy and dwindling organic free market pressure to behave) generally doesn't work out very well for end users or those looking to compete with these entrenched network operators. It's worth noting the ruling doesn't apply to the next-generation texting standard, RCS, though carriers like Verizon have already called for that to occur in future orders; something Ajit Pai is likely to approve as well.

It's great to know the FBI wants encryption broken so it can forensically molest any devices in its possession to find the mother lode of culpatory evidence these devices always contain. ("Always," you ask? The FBI irritatedly taps the word "always" repeatedly in response.)

The reason this is such good news is that the FBI can't even manage to reliably extract content from phones it issues to agents and other personnel. If you can't expertly handle data migration/storage from phones in your control at all times, how badly are you going to bungle forensic evidence extraction at scale if the government ever green lights encryption backdoors?

The DOJ Inspector General has just released a report [PDF] detailing its investigation of missing text messages sent by two agents at the center of a Congressional hearing about supposed biased behavior during the FBI investigation of Hillary Clinton and Mueller's investigation of Donald Trump. Agents Peter Strzok and Lisa Page exchanged text messages expressing their dislike of Trump and made some comments suggesting they would do something to harm his presidential chances. Critics believed this showed these agents -- if not the agency itself -- were guided by political bias when investigating Trump's ties with Russia.

Maybe there was more to this than there first appeared to be. Thousands of text messages from the agents' devices went missing -- a gap that stretched from December 2016 to May 2017. The Inspector General's office used forensic tools to recover roughly 19,000 text messages from the two phones. The culprit appears to be standard operating procedure rather than a deliberate attempt to destroy evidence.

Strzok and Page had each returned their DOJ-issued iPhones six months earlier when their assignments to the SCO (Special Counsel's Office) had ended. The OIG was told that the DOJ issued iPhone previously assigned to Strzok had been re-issued to another FBI agent… CYBER obtained a forensic extraction of the iPhone previously assigned to Strzok; however, this iPhone had been reset to factory settings and was reconfigured for the new user...

The same thing happened to Page's phone. It was reset in July 2017 by personnel at the DOJ's Justice Management Decision. It hadn't been issued to another agent but it had been restored in preparation for reassignment.

Resetting phones just makes sense. Nothing about the FBI's handling of records its supposed to be retaining does. Text messages are official communications. They're subject to public records requests and they're often responsive to subpoenas in criminal cases. Wiping a phone without ensuring existing communications have been backed up is monumentally stupid and possibly illegal.

To the agency's credit, it does try to retain these communications before resetting issued devices. The problem is its tool works poorly. As does its management:

FBI Assistant General Counsel [redacted for some fucking reason] informed OIG that there does not appear to be a directive for preservation of texts by ESOC [Enterprise Security Operations Center], but that ESOC retains text messages as a matter of practice.

Define "retain" and "matter of practice" in the context of a six-month gap of non-retention of Strzok/Page text messages. I guess it's the thought that counts?

[E]SOC could not provide a specific explanation for the failure in the FBI's text message collection relating to Strzok's and Page's S5 phones…

ESOC did offer up a set of possible explanations for the failure, none of which are reassuring. First, it could have been a bug reported by the vendor in 2016 but not fixed until March 2017. The application itself could have been misconfigured. The application may not have been compatible with device software updates.

Efforts were made to mitigate the issue. But those failed as well. The FBI phased out Samsung S5s and replaced them with S7s. Nothing changed but the phone model.

[A]ccording to FBI's Information and Technology Branch, as of November 15, 2018, the data collection tool utilized by FBI was still not reliably collecting text messages from approximately 10 percent of FBI issued mobile devices…

That the OIG was able to recover thousands of messages from forensic extraction and scouring the FBI's enterprise database isn't really good news. It's unlikely the FBI will make the same effort when hit with discovery demands and it already won't thoroughly search databases it has full access to when responding to FOIA requests. So, records are going to go missing and it won't be until the OIG steps in that any effort will be made to find the missing records, much less take a good look at the broken processes that caused them to go missing in the first place.

Former sheriff (and ongoing blight on the state of Arizona) Joe Arpaio has decided to sue a handful of new agencies for defamation. The slightly-overwrought press release from FreedomWatch (and founder Larry Klayman) alleges defamation per se on the part of CNN, the Huffington Post, and Rolling Stone and claims these three publications caused $300.5 million in damage to Arpaio's otherwise impeccable reputation.

Here's Freedom Watch's zesty summation of the lawsuit:

"It's time that someone stood up to the Left's 'Fake News' media, which is bent on destroying anyone who is a supporter of the president and in particular Sheriff Arpaio. My client will not be bullied by the likes of Jeff Zucker, Chris Cuomo, the Huffington Post, and Rolling Stone, as he alone has the courage to stand up for not just himself, the President of the United States but also all fair-minded and ethical Americans."

Ok, then. If you think the lawsuit itself is a much more buttoned-down affair, then you haven't read a Larry Klayman complaint before. It starts with the usual stuff establishing standing before getting down to the focus of the complaint. The alleged defamation committed by all three defendants is referring to Joe Arpaio as a "convicted felon" when his only conviction was for a misdemeanor. Rolling Stone issued a correction but the other two defendants haven't corrected their original misstatements. Hence the lawsuit -- Arpaio and Klayman's public attempt to stick it to the "Left Fake News media."

Here's why Arpaio feels he's owed $300 million for a couple of standing misstatements. Running for an open US Senate seat must pay really well.

Plaintiff Arpaio’s chances and prospects of election to the U.S. Senate in 2020 have been severely harmed by the publication of false and fraudulent facts in the Defamatory Article. This also harms Plaintiff financially, as his chances of obtaining funding from the Republican establishment and donors for the 2020 election have been damaged by the publication of false and fraudulent representations in the Defamatory Article.

Given the pardon issued to him by the Republican president currently in office, it seems unlikely his reputation suffered any damage from these incorrect statements. If anything, it only further damaged the reputation of these publications, at least in the eyes of Arpaio supporters (which presumably includes a sizeable percentage of Republican voters).

Arpaio managed to survive hundreds of self-inflicted reputational wounds during his years as sheriff, so it's a bit of a stretch to claim three "fake news" sources have done anything more than further cement his reputation as a martyr to the cause.

Arpaio also claims this has damaged his reputation within the law enforcement community. Again, it seems unlikely to have budged the needle there either. Law enforcement agencies tend to view the press with the same suspicion Arpaio does and probably agree the ex-sheriff was persecuted rather than prosecuted.

Nevertheless, there's potential money to be made. And Klayman, representing Arpaio, isn't above using a federal lawsuit as soapbox. At times, the complaint [PDF] more resembles a transcript of a YouTube monologue than a statement of facts and allegations.

Defendants are aware of these prospective business relationships and thus, given their malice and leftist enmity of Arpaio sought to destroy them with the publication of the subject Defamatory Publications.

Defendants published the Defamatory Publications to influence the RNC, the RNCC and affiliated political action committee and persons, and other donors, to withhold funding for Plaintiff Arpaio’s 2020 political campaign by smearing and destroying his reputation and standing in his law enforcement, government and political community.

Plaintiff Arpaio has been harmed as to his reputation as “America’s Toughest Sheriff” and financially by the publication of the Defamatory Article.

[insert fire emoji]

While it's true publications got the facts wrong, Joe Arpaio is an extremely public person. This raises the bar he must meet to succeed in this lawsuit. While the publications may have been careless in incorrectly noting the level of the offense that Arpaio was convicted for, that's not nearly enough to secure a favorable ruling.

The difference between convicted felon and convicted misdemeanant probably doesn't mean much when placed in the totality of Arpaio's recent history. Arpaio was convicted of contempt and spent part of the last decade being investigated by the DOJ. Add this to his long history of civil liberties violations and refusal to adhere to court orders, and the difference between a felony conviction and a misdemeanor is a rounding error.

Arpaio's reputation has been leaking hit points for a long time, but it has never affected his popularity with his presumed voter base. The rest of America may hate "America's Toughest Sheriff," but his supporters can't get enough of him. Three mistakes by three publications is unlikely to have caused $300-worth of damage to the ex-sheriff's Senatorial chances, much less $300 million. Some people are just defamation-proof and it's a good bet Joseph Arpaio is one of them.

Arpaio's welcome to waste the court's time and his own money claiming the "fake news" media dinged his rust bucket of a reputation, but he's not going to be happy when the court apprises him of the above facts. The problem is these three publications will have to spend some money of their own defending against a seriously weak lawsuit. With the DC circuit having decided it doesn't need to apply the District's own anti-SLAPP law to federal cases, it's likely the defendants will be stuck with covering their own costs, even if they prevail. On top of that they'll have to deal with an opposing counsel with a penchant for pissing off judges and treating the courtroom like a heated Periscope broadcast. It's a waste of everyone's time and money but Klayman's. I'm pretty sure he didn't take this on contingency.

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