Reverse Warrant Used In Robbery Investigation Being Challenged As Unconstitutional

from the gradually-narrowed-crafting dept

Reverse warrants are being challenged in a criminal case involving a bank robbery in Virginia. These warrants (also called "geofence warrants") work in reverse, hence the nickname. Rather than seeking to search property belonging to a known suspect, investigators approach Google with a demand for information on all cellphones in a certain location at a certain time and work backwards from this stash to determine who to pursue as a suspect.

Warrants require probable cause. And there doesn't seem to be much in the way of specific probable cause supporting these fishing expeditions. In this case, a bank was robbed in the late afternoon, resulting in plenty of people unrelated to the robbery being in the vicinity. This is all it takes to turn random people into suspects. And that has gone badly for investigators and, more importantly, innocent citizens on more than one occasion.

Accused bank robber Okello Chatrie is challenging the reverse warrant that led to his arrest and indictment on federal charges. Chatrie hopes that warrant will be found deficient because it will make it easier to undo the damage he seemingly inflicted on himself after he was taken into custody.

In Chatrie’s case, bank cameras showed the robber came and went from an area where a church worker saw a suspicious person in a blue Buick. Chatrie’s location history matched these movements. Prosecutors say Chatrie confessed after officers found a gun and nearly $100,000 in cash, including bills wrapped in bands signed by the bank teller.

Chatrie first moved to suppress this warrant late last year, arguing [PDF] that it's impossible for a warrant that targets no one in particular to contain the necessary probable cause for the search of Google's location records.

This is no ordinary warrant. It is a general warrant purporting to authorize a classic dragnet search of every Google user who happened to be near a bank in suburban Richmond during rush hour on a Monday evening. This is the kind of investigatory tactic that the Fourth Amendment was designed to guard against. Geofence warrants like the one in this case are incapable of satisfying the probable cause and particularity requirements, making them unconstitutional general warrants.

His motion also points out that the location info gathered by Google via the Android operating system is far more precise than cell site location info gathered by cell service providers.

[T]he location data available in Google’s Sensorvault is even more precise than the data in Carpenter. Google can pinpoint an individual’s location to approximately 20 meters compared to “a few thousand meters” for cell site location data...

In this case, investigators received "anonymized" data on nineteen cellphones that were in the area at the time of the robbery. From there, investigators determined Chatrie to be the most likely suspect. That's detailed in the warrant application [PDF] for a search of Chatrie's Google accounts.

Based upon Google's return of anonymized information, your Affiant discovered a Google account that: (1) was near the corner of Journey Christian Church prior to the robbery at approximately 4:30 to 4:40 p.m. -- the time period [redacted] recalled encountering a suspicious individual wearing reflective glasses in a blue Buick sedan; (2) was near the southwestern corner of Journey Christian Church prior to the robbery at approximately 4:48 p.m.; (3) was inside the Credit Union during the time of the robbery; and (4) immediately left the area following the robbery, leaving from the southwestern corner of Journey Christian Church.

Chatrie filed a supplemental suppression motion [PDF] in May of this year. This one expands on points previously made, as well as adding new information gathered from a few rounds of discovery. It opens with this statement, again characterizing reverse warrants as general warrants forbidden by the Fourth Amendment -- something that doesn't become acceptable just because investigators don't have any immediate leads.

Local police had no suspects in the robbery of the Call Federal Credit Union, so they decided to enlist Google to sleuth for them. Investigators went to a Virginia magistrate and, without conveying critical information, obtained a staggeringly broad and unparticularized warrant to go fishing in a pool of private location data that most people have never heard of. They demanded the location information associated with all Google users who happened to be in the vicinity of the bank during rush hour on a Monday evening, and thus, caused Google to search numerous tens of millions of accounts at their behest.

As the motion notes, the Supreme Court has said historical cell site data is protected by the Fourth Amendment, requiring the use of a warrant to obtain it. Even though there was a warrant involved here, it did not satisfy the particularity needed to justify this search of Fourth Amendment-protected records.

While the government obtained a warrant in this case, it did not obtain one for Mr. Chatrie’s Location History data. In fact, it did not seek anyone’s data in particular. Rather, the government compelled Google to search everyone’s data in order to develop an investigative lead. This warrant was unconstitutional. It was both overbroad and lacking in particularly, a forbidden general warrant purporting to authorize a dragnet search of Google users. It did not—and could not— satisfy the Fourth Amendment’s probable cause and particularity requirements, rendering it wholly impermissible and void from the beginning.

The government's response [PDF] portrays Google as nothing more than a nearby resident who could be approached with the proper paperwork to compel it to disclose what it "saw."

The investigators were correct: Google had been a witness to the robbery. Pursuant to the warrant, Google produced to the United States a small set of records: location information over a two-hour interval of three identified and six unidentified individuals, and limited location information over a one-hour interval of ten other unidentified individuals. This information was sufficient for investigators to recognize that the defendant’s Google account likely belonged to the robber, and subsequent investigation led to his indictment.

The government says the Carpenter decision doesn't apply because -- unlike cell location data gathered by service providers -- users must opt in to allowing Google to collect their location data. The argument is an old one: that a person's agreement to share data with a company is an agreement to share data with a government.

Google could not obtain and store the defendant’s location without his undertaking multiple affirmative acts. He had to opt in to Location History in his account settings, and he had to enable Location Reporting for his phone. The defendant had discretion regarding whether Google stored his location information, and he retained the ability to delete it. And none of the services associated with Google’s storage of location information are indispensable to participation in modern society. The defendant thus voluntarily disclosed his location information to Google, and Google’s conveyance of that information to the United States did not infringe his reasonable expectation of privacy.

The government also argues that a warrant targeting nothing more than anonymized data is still somehow particular. It says warrant affidavits only need to show there's a probability that evidence will be found in the place searched.

In particular, the affidavit established: (1) that an unknown subject committed an armed bank robbery at a particular place and time; (2) that prior to the robbery, the robber held a cell phone to his ear and appeared to be speaking with someone; (3) that the majority of cell phones were smartphones; (4) that “[n]early every” Android phone “has an associated Google account,” and that Google “collects and retains location data” from such devices when the account owner enables Google location services; and (5) that Google can collect location information from non-Android smartphones if the devices are “registered to a Google account and the user has location services enabled.” From this information, there was a substantial basis for the magistrate to find probable cause to believe that Google possessed evidence related to the robbery.

The defendant argues that the warrant lacked probable cause because it “did not identify any individuals or accounts to be searched because investigators did not know who they were searching for, or even if Google would have relevant data.” However, a warrant for evidence of crime need not identify specific individuals or establish with certainty that evidence will be found—all it must do is establish a fair probability that specified evidence will be found in the place to be searched.

The judge has yet to rule on this suppression attempt. The government's arguments seek to turn a broad warrant into something that "narrowly" targets what may be a very large data subset collected and stored by Google. The implications of claiming everyone who uses Google's location services voluntarily waives their privacy right in this information are far-ranging and somewhat opposed to the Supreme Court's Carpenter decision. While the Supreme Court only delivered a narrow ruling on the warrantless acquisition of several days of cell site location info, it pointedly did not state this was the only way this decision should be applied. Other courts have already found Carpenter's reasoning capable of covering third-party records not explicitly discussed in that decision.

Finally, also of interest in the reporting on this case is that reverse warrants are the target of legislation in New York. And we have, of all people, the Proud Boys, to thank for it.

“If you are someone who went out on the streets to express your rage, your sadness and your hope that there is a better way to do policing and are then subject to a warrant, I think that would go against everything we are telling people they have the right to do,” said New York state Sen. Zellnor Myrie, a lead sponsor of a bill to ban geofence warrants.

The legislation was prompted in part by a New York Times report that prosecutors sought Google’s cellphone records around the spot where the Proud Boys, a far-right group, brawled with anti-fascist protesters in 2018. Several Proud Boys were later convicted of assault.

If this challenge ends up in a federal appeals court, more attention will be drawn to these questionable warrants that allow investigators to treat everyone in an area as a suspect by leveraging data many cellphone users may not realize is being collected and stored. And, because this is a relatively new investigative option, judges aren't being provided with all the details needed to make informed decisions, which is going to result in even more collateral damage in the future if courts don't start doing something about this now.

Filed Under: 4th amendment, okello chatrie, privacy, reverse warrant

Clearview Calls It Quits In Canada While Under Investigation By The Privacy Commissioner

from the come-back-and-take-your-beating,-you-cowards dept

Clearview AI -- the facial recognition service that gives all kinds of entities access to billions of face images scraped from the web -- is suddenly scaling back on its aggressive expansion plans. Once the plaything of billionaires, the unproven AI has been sold to retailers, fitness centers, police departments, and a handful of human rights violators.

Soon after its existence was exposed by the New York Times, Clearview AI proceeded to announce its plans to expand worldwide -- something it hoped to achieve while being sued multiple times in its home country. Canada was in its sights, but not so much any more.

In February, the Privacy Commissioner of Canada announced its office would be investigating Clearview AI and its still-not-independently-tested algorithm. This was triggered by numerous reports from journalists exposing how Clearview obtained its massive database of photos and how it was being used by government agencies and private entities.

The Privacy Commissioner was not impressed with Clearview's apparent disregard for privacy, saying it was specifically looking into reports that Clearview was collecting and using personal info without consent.

The investigation is still ongoing. But it appears Clearview is hoping to dodge the worst of it by removing itself from the Canadian market:

Clearview AI has advised Canadian privacy protection authorities that, in response to their joint investigation, it will cease offering its facial recognition services in Canada.

This step includes the indefinite suspension of Clearview AI’s contract with the RCMP, which was its last remaining client in Canada.

Clearview is making like a cop under investigation and retiring before it's concluded. But that's not going to save Clearview from findings that are pretty much guaranteed to be damning.

The investigation of Clearview by privacy protection authorities for Canada, Alberta, British Columbia and Quebec remains open. The authorities still plan to issue findings in this matter given the importance of the issue for the privacy rights of Canadians.

And the investigation Clearview can't dodge by saying "you can't fire me, I quit" will continue, looking into the company's slurping of Canadians' data as well as any attempts it makes to divest itself of contested Canadian data as it promises to pull out.

Good riddance, I say. And Canada says. Not directly, as of yet, but when the investigation concludes, I doubt the Privacy Commissioner will be offering Clearview a "we had you all wrong, bro." Clearview is the pox upon the humanity that is the facial recognition arms race. Weaponizing people's online postings against them using unproven AI is just pure evil.

Filed Under: canada, facial recognition, privacy
Companies: clearview, clearview ai

Twitch Faces Sudden Stream of DMCA Notices Over Background Music

from the open-the-hatches dept

There is obviously a great deal of action going on currently in the streaming world, spurred on in part by the COVID-19 crises that has many people at home looking for fresh content. Between the attempts to respond to social movements and tamp down "hateful" content to changes to the competitive landscape, streaming services are having themselves a moment. But with the sudden uptick in popularity comes a new spotlight painting a target on streaming platforms for everyone from scammers to intellectual property maximilists.

Twitch has recently found itself a target for the latter, suddenly getting slammed with a wave of DMCA notices that appear to focus mostly on background music.

Copyright strikes are an occupational hazard for many Twitch streamers and content creators, but a recent surge of DMCA takedown requests has overwhelmed the community. Now, Twitch support staff has responded to complaints, stating that the claims are focused on clips with background music from 2017 to 2019, and recommending that streamers remove them. The tweets also state that this is the first time that Twitch has received mass DMCA claims against clips.

Given that Twitch is still most popular as a site for live-streams and let's-plays of video games, the speculation is that a great deal of this is targeting clips that include video game music. And, as we've seen elsewhere, it's also the case that scammers are currently using game music as a method to try to takedown or monetize the videos of others. Whether or not that's what is going on here is anyone's guess, as Twitch is making it fairly clear that the flood of notices is so large that it's simply taking down content and advising its streamers to proactively take down anything that might include this sort of copyrighted content.

Except that leaves no room for a number of things, including arguments for Fair Use of certain music, not to mention streamers that may be using game music from individuals or companies that don't mind their work being up on Twitch. In the case of the latter, this is where scammers can most insidiously insert themselves into the mix.

And, what's more, even the lawyers are telling streamers not to counter the claims without getting an attorney, so fraught is the copyright landscape.

The action also prompted a response from advocates like Ryan Morrison, better known as the Video Game Attorney. Morrison advised content creators not to counter the claims without speaking to an intellectual property lawyer. "You are quite literally telling them you are going to continue what you’re doing unless they sue you," he tweeted. "Don’t threaten billionaire companies to sue you. Lawyer up."

So here's this newly thriving ecosystem of Twitch streamers, creating content that is not a mere copy of anything, but may use some copyrighted content in streams, and a huge chunk of it could get disappeared either out of legal compliance by Twitch or proactive fear-based takedowns by the streamers themselves.

All over some clips including background music? I'm trying to picture myself explaining all of this to the framers of copyright law, but somehow I don't think they'd get it.

Filed Under: background music, copyright, dmca, takedowns
Companies: twitch

EFF, Orin Kerr Ask The Supreme Court To Prevent Turning The CFAA Into A Convenient Way To Punish Site Users, Security Researchers

from the another-way-to-break-the-internet dept

As we reported here earlier, the Supreme Court is examining a CFAA case that could have far-reaching implications for… well, just about anyone who uses any online service, website, platform, or device. The case deals with a cop who abused his access privileges to run unapproved searches of government databases in exchange for cash. Obviously, this is far from an ideal case to argue against overbroad readings of an overbroad law. But, given the abuses perpetrated under this law, non-ideal cases will have to do if we don't want to be turned into criminals by generous judicial interpretations of the phrase "unauthorized access."

Plenty of people and entities are lobbing briefs in the Supreme Court's direction, begging it to avoid criminalizing activities honest Americans participate in every day. It's not just about security research. But it definitely does affect researchers -- both those engaging in normal security research efforts, and those ignoring websites' terms of service in attempts to determine whether sites engage in biased practices.

The EFF's brief [PDF] focuses mainly on the negative effects on researchers -- security and otherwise. It points out security researchers are often threatened with CFAA prosecutions/lawsuits just because entities engaging in lax security practices don't like having their lapses noticed, much less pointed out publicly. These researchers perform a valuable public service.

Decades of experience have shown that independent auditing and testing of computers by members of the security research community—often in a manner unanticipated and even disapproved by the computers’ owners—is particularly effective at discovering serious vulnerabilities in widely used software and devices.

But far too often they're punished for providing this service.

In 2008, the Massachusetts Bay Transit Authority (“MBTA”) invoked the CFAA to try to enjoin two independent security researchers from presenting truthful information about vulnerabilities in the MBTA’s fare collection system at a security conference. And in United States v. McDanel, the government brought criminal CFAA charges against a defendant who discovered a security vulnerability, alerted the company, and then, when the company refused to fix the problem, alerted the company’s customers…

If arguments about security researchers are too esoteric, perhaps Orin Kerr's arguments [PDF] will hit closer to home. According to the Eleventh Circuit's interpretation of the CFAA, Kerr himself is a criminal.

Like the majority of American adults, I have a Facebook account. Facebook’s terms of service require its users to “[p]rovide accurate information about” themselves. See Facebook Terms of Service, https://www.facebook.com/legal/terms/plain_text_ terms (last visited July 1, 2020). I recently violated that term by listing my home city as Sealand. Sealand is an offshore platform in the North Sea near England built during World War II to host anti-aircraft guns. It’s not actually my home city. I list it only to make a point about the CFAA. But under the government’s position, my joke is no laughing matter. It is a federal crime.

Interpreting the CFAA this way makes every website owner a jokester and every website user the punchline. If you think the thousands of federal laws are arbitrary, just wait until you run into the whims of the thousands of people running sites and platforms.

Part of the problem is that written restrictions placed on computers can be entirely arbitrary. These days, anyone can run a website. Anyone can buy a computer for another person to use. And the computer owners or operators can impose whatever restrictions they want. Their limits don’t need to serve an important interest. They don’t even need to make sense.

Kerr cites the Lori Drew case as a real world example of how the law can be abused by federal prosecutors. Back in 2006, a teen girl committed suicide after being duped into an online relationship with a nonexistent 16-year-old male.

The Drew prosecution started with a terrible tragedy in a suburb of St. Louis, Missouri. In October 2006, a 13-year-old girl named Megan Meier committed suicide. Meier had regularly used the social media networking site MySpace, a then-popular forerunner to today’s Facebook. In the weeks before her death, Meier had communicated with a MySpace profile of what appeared to be a handsome 16-year-old boy named Josh Evans. The Evans account had befriended Meier, and Evans expressed his admiration and affection for Meier.

But the online friendship soured. In messages sent soon before Meier committed suicide, Evans had abruptly ended the relationship. According to one witness, the last message Evans had sent to Meier had said, “You’re a shitty person, and the world would be a better place without you in it.” Lauren Collins, The Friend Game, The New Yorker, Jan. 14, 2008.

An investigation into Meier’s suicide revealed that Josh Evans did not exist. The account was fake. It had been created by a group that knew Meier and used it to learn what Meier was saying about her friend Sarah Drew. The senior member of the group was Sarah’s mother, Lori Drew. Other participants included Ashley Grills, an 18-year-old employee of Mrs. Drew who actually devised the idea and used the account, and Sarah Drew herself.

This was abhorrent behavior by a bunch of adults who discovered the internet provided an avenue for the complete destruction of a person's life. But was it a criminal act? Local prosecutors said being an asshole isn't a crime, no matter how much we'd like it to be.

Despite intense public demand to punish Drew, Missouri state prosecutors declined to file charges. A law enforcement spokesperson explained that decision straightforwardly: Drew’s conduct “might’ve been rude, it might’ve been immature, but it wasn’t illegal.”

With Drew facing intense criticism for her actions, the federal government stepped in with the CFAA in hand to engage in a prosecution for the clicks.

The terms of service gave prosecutors a hook. Because Josh Evans did not exist, using the account violated MySpace’s terms of service. According to prosecutors, this rendered every use of the Evans account an unauthorized access in violation of 18 U.S.C. § 1030(a)(2). And because MySpace’s computer servers were in Los Angeles County, federal prosecutors could bring charges in California even though everyone involved was in Missouri.

Ultimately, Drew was only convicted of misdemeanors. But the feds did such a good job convincing everyone she had broken the law that jury members expressed disappointment in their own verdict.

This -- along with Kerr's example about lying to Facebook about his personal info -- is the reality facing everyone if the Supreme Court decides the Eleventh Circuit is right about this and every other circuit that disagrees with it is wrong. It won't just be the Lori Drews of the world at the mercy of federal prosecutors. It will be everyone who ignores certain parts of terms of service agreements or engages with sites in ways the owners' did not anticipate or explicitly approve.

Filed Under: cfaa, scotus, security, security researchers, supreme court, terms of service

Daily Deal: The Epic Python Developer Certification Bundle

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

The Epic Python Developer Certification Bundle has 12 courses aimed at anyone having little or no experience in coding and a great desire to start learning Python from scratch. This hands-on training takes you from "Hello World!" to advanced Python topics in just a few hours. You will then put your knowledge into practice by answering quizzes, exercises, and doing the actual coding. It's on sale for $40.

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

Small ISPs Being Forced To Eat The Costs Of FCC's Huawei Ban

from the do-as-we-say,-not-as-we-do dept

We've repeatedly noted that while Huawei certainly engages in some clearly sketchy shit (like many modern US telecom giants), the evidence supporting the Trump administration's global blacklist of the company has been lacking. Despite more than a decade of accusations and one eighteen month investigation that found nothing, the Trump administration still hasn't provided any public evidence supporting the central justification for the global blackballing effort (that Huawei works directly for the Chinese government to spy wholesale on Americans).

While there's certainly some valid natsec concerns in the mix when it comes to letting an authoritarian government dominate global network builds, at least some portion of the effort appears to be protectionism driven by US network hardware makers that simply don't want to compete with cheaper Chinese gear. Some of the effort is also Trump trying to obtain leverage for his often ridiculous tariff and trade war, which at least, for some advocates, is driven more by partisan patty cake or bigotry than substantive reason.

Regardless, the US effort to blackball Huawei from all global technology networks continues apace, without much concern about (1) the lack of public evidence, (2) the fact that the United States routinely does most of the stuff we're accusing China of, and (3) much of this pearl clutching has been co-opted by US companies that simply want to avoid international competition (especially in the smartphone and 5G network realm), but have had great lobbying success disguising those motivations under the guise of national security hyperventilation.

There are other problems with the campaign as well. This week the FCC formally announced it would be banning companies that take taxpayer subsidies from using any Huawei or ZTE hardware in their networks. At the moment, the ban just prohibits them from buying new Chinese gear or maintaining it, but the FCC may expand eventually to forcing these ISPs to remove existing gear entirely. Smaller telecom and broadband providers were quick to note that they're not exactly thrilled:

"As a result, rural carriers who have deployed Huawei or ZTE equipment or services in their networks will now lack the ability to support their critical networks that are serving hundreds of thousands of rural Americans and those traveling through rural America. Given the difficulty in demonstrating where specifically their USF support is being utilized in their networks, this puts rural carriers in a precarious situation while they strive to offer extended payment terms for their customers as requested by FCC Chairman [Ajit] Pai, adjust to the fallout of the T-Mobile/Sprint merger, and continue to keep rural Americans connected to broadband and telephone services during the COVID-19 pandemic."

Smaller carriers state that while the FCC is granting waivers, they didn't give carriers enough time to apply. And while there was also talk about helping fund these network gear removal and replacement efforts, that money appears lost in regulatory and legislative purgatory, according to FCC Commissioner Geoffrey Sparks:

"Funding is the missing piece. Congress recognized in the Secure and Trusted Communications Networks Act that many carriers will need support to transition away from untrustworthy equipment, but it still has not appropriated funding for replacements. I look forward to working with Congress and my colleagues to ensure there are sufficient funds to get the job done."

In the interim small ISPs have to apparently just eat those costs, at the same time they're being expected to maintain connectivity during a pandemic, which is... not great. Of course broadband subsidization has a long, ugly history where we throw billions at giant companies for doing less than nothing. Here we have the small businesses US leaders routinely pay ample lip service toward being forced to (for now) foot the bill for policy that doesn't seem fully thought out.

None of this is to suggest that the Chinese government and Huawei don't engage in terrible behavior. They do. But the US approach of a blanket global blacklisting is a cumbersome, evidence-optional mess. The UK and Germany have kicked back a bit against the US approach, arguing that existing security standards (where you judge the safety of each piece of hardware based on its actual lack of security or vulnerabilities) makes a lot more sense than a cumbersome, global blackballing effort based at least in part on protectionism, and so far justified by very little in the way of hard, public evidence.

There's also the hypocrisy of a country that routinely engages in all manner of sketchy global surveillance lecturing other countries on sketchy global surveillance. Can you imagine if other countries began blacklisting AT&T for the fact it's effectively bone grafted to the NSA? The amount of patriotic pearl clutching from fans of the blackballing effort would easily make your head spin. There's an underlying logic at play that because the US does it, it must be good, and the "do as we say, not as we do" messaging at play here gives off a ripe stink of hypocrisy.

Filed Under: broadband, china, competition, fcc, protectionism
Companies: huawei

L.A. Newspaper Sues Sheriff's Department Over Its Repeated Refusal To Comply With The Law

from the law-ignorement-officers dept

Very few California law enforcement agencies welcomed a new state law that finally lifted the ordained opacity that shielded misbehaving cops from the public's scrutiny. The law that went into effect at the beginning of 2019 gave California residents access to records dealing with misconduct, use-of-force, and other "bad apple" behavior for the first time in decades.

State law enforcement agencies responded to the new transparency by obfuscating, stonewalling, and suing. The smartest agencies destroyed records with their cities' blessing before the public could get to them. The state's top cop even claimed the law did not affect records created before the law went into effect, directly contradicting the legislation's author. Public records requesters sued back, knowing they were in the right. After all, not a single court in the state has aligned itself with law enforcement's fervent belief it should never be accountable ever, no matter what laws are on the books.

The Los Angeles Times is suing the Los Angeles Sheriff's Department for refusing to follow the new law. But who could blame the gang-infested LASD for being evasive, what with its unusually large number of reasons to keep the public in the dark about its activities?

Eighteen months after making a very detailed request for information about misbehaving officers, the LA Times is asking a court to benchslap the Sheriff's Department around a bit. As additional leverage, the Times is quoting the law, which makes compliance mandatory, rather than something whose nuances should be sorted out in front of a neutral party.

Before we get into the LA Times' lawsuit [PDF], let's just warm up with a statement from the LASD:

A county spokeswoman… said in a statement that L.A. County is “committed to fulfilling its responsibilities” under the California Public Records Act.

is it tho?

[T]the Sheriff’s Department denied The Times’ first and second CPRA requests for electronic records and letters of discipline, claiming that The Times’ requests were overbroad. LASD claimed that it was “unable to assist … with your request as it is too broad in scope” and that The Times had not made requests that “reasonably describe the identifiable record or records.” The Sheriff’s Department claimed that The Times would have to identify specific names to obtain SB 1421 records, even though SB 1421 has no such requirement and the names of deputies disciplined were not public before the Legislature enacted SB 1421.

First, the LASD demanded the LA Times request records using officers' names -- information that had been unavailable for years until this law was passed. Then it decided to keep playing hard to get even after the newspaper came up with the names the law didn't say it had to have in its possession to request these records.

While Cmdr. Scott Johnson of the Sheriff’s Department stated on April 5 and 8, 2019, in communications by phone and email, that the Sheriff’s Department would provide records on a rolling basis regarding the 325 named individuals, the County has failed to provide responsive information on more than 300 of them even though more than 18 months have passed since SB 1421 went into effect.

Out of the 325 officers' records requested, the LASD has only bothered responding with info on nine of them. And, despite claims that a shortage of manpower was keeping them from complying with the new law, the department had time to shower the LA Times with tons of bullshit-laden digital paper.

On February 6, 2020, the Sheriff’s Department sent several hundred identical emails claiming that “stays … prohibited the Department from releasing records until they were lifted,” even though the stays had been lifted eleven months earlier.

After screwing around for another couple of months with supposedly limited resources, the LASD asked the Times if it really wanted the records it had spent most of 18 months asking for. The answer is this lawsuit.

For a few more months, the LA Times continued to request more records. And the LASD continued to claim it was "gathering" records while failing to produce any evidence of this "gathering" or, indeed, the records themselves. And so the narrative continues for several more pages, part of the Times' 155-page lawsuit.

But, hey, taxpayers: this is all fine. The LASD doesn't just blow off newspapers and their public records requests. It's also sticking it to The Man!

L.A. County’s chief law enforcement watchdog, the Office of Inspector General, also sought documents — through a subpoena — related to allegations that Villanueva directed the coverup. The Sheriff’s Department did not comply.

God bless the boys in whatever-the-fuck-color they're wearing now, who are willing to spend our tax dollars thwarting the oversight we're paying for and ignoring the laws we want them to comply with.

Filed Under: bad apple, california, lasd, police misconduct, records, transparency
Companies: la times

U.S. Court Of Appeals Hears Arguments That Lawsuit Against Disney For 'Pirates' Shouldn't Have Been Dismissed

from the argh dept

Back in 2019, we wrote about a lawsuit filed against Disney by two writers that pitched a piratey movie to the company. The writers' screenplay about Davey Jones, they said, was so similar to Disney's Pirates of the Caribbean movies so as to constitute copyright infringement. Much of this appeared to stem from the fact that the two writers had pitched the screenplay to Disney a few years before the Pirates franchise began, but the similarities laid out in the lawsuit were classic idea/expression dichotomy stuff.

The writers and Laiter said the movies, like the screenplay, diverged from the traditional canon by portraying pirates as humorous, good men rather than terrifying brutes. They also claimed both works featured supernatural cursed, skull-faced pirates, and that actor Johnny Depp’s Captain Jack Sparrow character was substantially similar to the screenplay’s Davy Jones.

But the “single purported similarity” between the widely varying plots—cursed pirates—was an idea that flows naturally from a basic plot premise and therefore unprotectable, the judge said. The dark mood driven by pirate battles and sea monsters also stemmed naturally from the pirate premise, Judge Consuelo B. Marshall said.

And so the court dismissed the suit, laying out a reasoned argument that all of the similarities the plaintiffs had brought before the court were pirate tropes of the sort one would find in pretty much every pirate movie. Any minor deviations from those tropes, even if shared by both screenplays, were not protectable. Meanwhile, there were marked differences in the screenplay and characters, with one notable exception being that the plaintiff's Davey Jones gives up pirating to work in an orphanage, while Disney's Jack Sparrow very much does nothing of the sort.

Well, those writers appealed the decision and recently argued before the U.S. Court of Appeals that, basically, there are lots of other similarities that they forgot to mention in the first go around.

Creators of a pirate-themed screenplay argued Monday before the U.S. Court of Appeals for the Ninth Circuit that a lower court dismissal merely filtered unprotectable elements from the allegedly infringing movie franchise without considering their protectable arrangement. The appeals court panel seemed receptive to the idea that the case against Walt Disney Co. should have at least survived a quick dismissal by the U.S. District Court for the Central District of California.

Those creators are pointing to the recent ruling in the The Shape of Water case, which similarly was dismissed early on, only to be revived on appeal when it was argued that expert testimony during the trial could have made a difference in the outcome. But, as Disney has argued in response, that case contained far more allegations of similarity than exists here. That, according to the plaintiffs in this case, is because the court didn't hear their new argument that these piratey tropes were protectable because of their specific combined arrangement.

U.S. Circuit Judge Bridget Shelton Bade noted that section and arrangement wasn’t mentioned in the decision and asked if it was argued. Lowe acknowledged the prior legal team was denied the chance to amend its complaint a second time to add it. Bade pushed back and said the court concluded the similarities were just pirate tropes “one would expect in any pirate movie.”

Lowe pointed to the opening brief, which laid out various alleged character, dialogue, plot, theme, and pacing similarities showing an architecture “identical for all intents and purposes” to the screenplay. He also said there are always “slight differences” between works, but that literary works were afforded “very thick protection.”

Disney attorney Melinda Eades LeMoine of Munger, Tolles & Olson LLP said the court didn’t err by skipping the arrangement analysis because it wasn’t presented—and wasn’t present—in the case. Many of the alleged similarities could be found in various pirate tales as well as Disney’s own Pirates of the Caribbean ride, which opened in 1967 at California’s Disneyland theme park and includes alleged similarities such as a port town, skeletons, and treasure, she said.

Hard as it may be to back Disney in a copyright lawsuit, its position makes sense. There are instances where an arrangement of unprotectable elements can qualify for copyright protection due to the originality of that arrangement, but nothing the plaintiffs point out here seems to move beyond a mashed together list of pirate tropes. That, combined with the stark differences that are present in the screenplay's story and characters, really does put this back into the idea/expression dichotomy territory.

And, yet, it wouldn't be terribly surprising to see the court decide that those are arguments best made at trial.

U.S. Circuit Judge Richard A. Paez said district courts can dismiss cases based on a lack of similarity, “But I think it’s difficult.” Not letting questions about arrangement and what elements were generic at least get to the summary judgment phase “just strikes me as odd,” he said.

“It does seem that you’ve got to be very careful when you do that, you’ve got to be sure. What you’re saying is there’s no plausible claim,” Paez said.

To be clear, this is the court hinting that it will err on the side of caution, not any sort of affirmation that the plaintiffs have an actual case. Still, it's annoying that any creator, even Disney, would have to go through a trial over this sort of thing.

Filed Under: copyright, expression, idea, idea/expression dichotomy, pirates, pirates of the caribbean
Companies: disney

Colorado Government Dumps Qualified Immunity For Cops

from the still-leaning-on-the-taxpayers-though dept

Since qualified immunity isn't actually a law -- but rather a Supreme Court construct -- states are under no obligation to adopt this doctrine and apply it to lawsuits against law enforcement officers. But most states have, with Iowa's top court being the latest to inflict this atrocity on the populace.

The Supreme Court has fine tuned qualified immunity over the years, turning it into a speedy way to dispense with lawsuits brought by people whose rights have been violated. As long as the rights violation was committed in a novel way, cops are free to go. And as long as lower courts never have to address the question of whether or not a rights violation was committed, no new precedent is established that would put officers on notice that their rights violations are actually rights violations.

Legislation has been introduced that would end qualified immunity at the federal level. There's basically no chance it will pass, not with Senator Mitch McConnell deciding what bills get voted on. That leaves it up to the states, which are free to eliminate this SCOTUS construct at any time.

That's what has happened in Colorado. The governor has signed into law a rejection of law enforcement's favorite "get out of lawsuit free" card.

In a fitting tribute to Juneteenth, Colorado Gov. Jared Polis signed a sweeping law enforcement reform bill on Friday that marks one of the most significant changes to policing amidst the protests over the brutal killing of George Floyd. Among the new law’s many reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses, the Enhance Law Enforcement Integrity Act (SB20-217) allows plaintiffs to bypass “qualified immunity,” one of the biggest barriers to holding government agents accountable in court.

The law says officers cannot raise qualified immunity as a defense to civil actions. It's part of a set of police reforms that includes mandated body cameras (with sanctions for failing to activate them), expanded reporting on officer-involved killings and officers who resign while under investigation, limits on force deployments during peaceful protests, and a ban on chokeholds. It also gives the state more options for decertifying officers, including the stripping of certification for failing to intervene when other officers are using unlawful force.

But there's a lot of bad news to go along with this good news. First, ending qualified immunity at the state level does not prevent officers from using this defense in federal cases. Unfortunately for state residents, most civil rights lawsuits are handled at the federal level.

The deterrent effect is further muted by the law's refusal to actually hold officers accountable for their own misconduct. Cops may no longer have qualified immunity to protect them in state lawsuits, but they'll still have the state shielding them from the consequences of their actions.

The bill requires a political subdivision of the state to indemnify its employees for such a claim; except that if the peace officer's employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable for 5 percent of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer's employer satisfies the whole judgment .

Sure, some departments may fire a judgment-proof cop after they've been asked to open up their wallets a few times. But indemnification means cops can do bad things and expect someone else -- state taxpayers -- to pay for it. At the very most, an officer will be out $25,000. But collecting that judgment will be a rarity. Government employees know all the best ways to game a system and it will be the rare misbehaving cop that will have $25k laying around where litigants can find it.

It's better than the nothing governments have done for years when asked to deal with systemic police misconduct. Acting like disappointed parents rather than responsible overseers of the public trust has turned many departments into receptacles for bad apples. Taking away a bad cop's favorite shield is a start. More states should do the same thing. Maybe then the Supreme Court might be willing to take another look at its enabling of rights violations and remove this blight from the federal landscape.

Filed Under: colorado, qualified immunity