Chicago Court Rules Police Misconduct Records Must Be Made Publicly Available

from the it's-called-oversight,-and-if-the-cops-won't-do-it,-the-public-will dept

The insularity of law enforcement — the secrecy and opacity that allows misbehaving officers to escape being held responsible for their actions — has been partially stripped away in Chicago. The city’s appellate court has delivered a decision that puts police misconduct records into the hands of the public.

Citizen complaints about Chicago police misconduct and the related investigative files are public records and must be turned over by the city, an Illinois appeals court ruled this week.

A three-judge panel of the state Appellate Court in Chicago rejected the city’s claim that such files are exempt from the Illinois Freedom of Information Act.

The fact that investigative files are now public records is a big win for public oversight. Internal investigation documents have often been withheld by law enforcement agencies, many of whom seem completely uninterested in opening up their departments to additional scrutiny. Additionally, the city’s appellate court has severely limited the use of existing exemptions to deny requests for police misconduct files.

City lawyers argued such records were covered by an exemption in the state’s Freedom of Information law for “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.”

The judges wrote that exemption only applies to “opinions that public officials form while creating government policy. It does not protect factual material or final agency decisions.”

There’s still a bit of a loophole left for the Chicago PD to exploit, however.

If a complaint results in disciplinary charges against an officer, records from that process may still be kept secret, the appellate court noted.

From what information is out there, it’s unclear whether this exception applies to only documents directly related to the disciplinary process or whether it exempts everything related to the case from public records. In either case (though certainly more damaging to oversight in the latter), this exemption gives back a little opacity to misbehaving cops.

On the plus side, this new ruling allows for easier tracking of Chicago police misconduct.

The appeals court also found that “RL” files are open to the public. Those files identify police officers who have accumulated the most misconduct complaints. At issue were two RL files that named officers with the most complaints between 2001-2006 and 2002-2008.

This transparency is something the city of Chicago sorely needs.

A study by University of Chicago professor Craig Futterman found that just 19 of 10,149 complaints accusing CPD officers of excessive force, illegal searches, racial abuse, sexual abuse, and false arrests led to a police suspension of a week or more. In more than 85 percent of internal investigations of complaints, the accused officer was never even interviewed.

If the Chicago PD decides to return to business as usual in terms of responding to misconduct complaints, it will no longer be able to hide its inactivity behind expansive FOI exceptions. And if officers realize they’re creating easily accessible public records every time someone files a complaint, they’re bound to exercise a bit more discretion while on-duty.

Filed Under: chicago, police misconduct, public information, records

DailyDirt: Playing With Biological Fire By Reviving Ancient Organisms

from the urls-we-dig-up dept

Life has existed on the Earth for a pretty long time, perhaps longer than you might imagine. Biology seems pretty resilient, though, there have been five major mass extinctions (the last of the five killed off the dinosaurs) — and at least 20 total mass extinction events over the last half billion years or so. Maybe we’re working on the sixth major extinction event by messing around with nuclear weapons or the Large Hadron Collider. Or perhaps we’ll bring back something from the past that we’ll regret. Here are a few of examples of ancient organisms that we might not want to revive.

• Scientists pulled up an ancient moss buried below the permafrost from an island called Signy (not too far from Antarctica) — and brought that moss back to life. This particular moss is about 1500 years old, but it’s not the oldest multicellular organism brought back to life by humans. The current record holder is a 31,800 year old flowering plant called Silene stenophylla, but that plant was cloned and required more complex laboratory manipulations to resuscitate. Ancient moss might have another chance to beat the record if researchers can revive 50,000 year old mosses from Canada’s Baffin Island. [url]
• Siberia scientists say they might have a decent shot at cloning a woolly mammoth with the help of a modern female elephant. It might take decades to accomplish a cloning procedure, but they have a woolly mammoth carcass that is well-preserved which is a good starting point. [url]
• A 30,000+ year old virus from the Siberian permafrost has become infectious again, thanks to some French researchers. This ancient virus attacks amoebas (not people or other animals), but its cousins could be lurking in the permafrost, ready to come out if global climate change warms up the right areas. [url]

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: biology, biotech, cloning, extinction, moss, permafrost, resuscitation, silene stenophylla, virus, woolly mammoth

Judge Tells FBI To Explain Its Overly-Broad Use Of FOIA Exceptions

from the Occupy-J.E.-Hoover dept

As we recently covered, a judge had ordered the CIA to explain its ridiculous FOIA response tactics. The CIA had, with a straight face, first claimed it could ONLY produce hard copies of digital files from an internal security journal. Then, it said the only way it could create digital files was by printing out the files and re-scanning them. The judge noted in her order that Congress recognized government agencies would be reluctant to hand over documents to the public, which is why it directed agencies to make every reasonable effort to accommodate requests. This, of course, was not what the legislators had in mind when they crafted the Freedom of Information Act.

Now, it’s the FBI being asked by a judge to explain its overuse of FOIA exemptions to withhold documents. This time, it’s the (in)famous Ryan Shapiro suing our government for access to information. Shapiro is well-known by the FBI, which has attempted to shut down the prolific requester by simply refusing his FOIA requests. It justifies this violation of the FOIA by claiming (somewhat accurately) that Shapiro is utilizing a “mosaic” method to gain access to information the FBI clearly wants to keep hidden. The theory is that with enough overlapping requests, responses will turn up either different documents or inconsistent redactions, thus revealing potentially sensitive information.

Shapiro currently has six open FOIA-related lawsuits (five vs. the DOJ and one vs. the CIA). This one, originally filed in April of last year, centers on Occupy Houston-related FBI documents.

Specifically Shapiro asked for FBI records about “a potential plan to gather intelligence against the leaders of [Occupy Wall Street-related protests in Houston, Texas] and obtain photographs, then formulate a plan to kill the leadership [of the protests] via suppressed sniper rifles…”

Shapiro said he wanted the records for his doctorate work, and that he intended to release urgent info about Occupy Houston to the public.

The FBI found 17 pages of pertinent records, gave Shapiro five of them, with some information redacted, and withheld 12.

The FBI has filed to dismiss, stating that it did a “thorough” search for responsive documents and released all non-exempt papers. But the judge didn’t buy every argument the FBI made, questioning its use of an exemption that excludes “records or information compiled for law enforcement purposes.” (“Law enforcement” being #2 on the FBI’s To Do List [following “national security”] would seemingly make every document the FBI “compiles” exempt if given a broad enough reading.)

“(Shapiro) argues that FBI has not established that it actually conducted an investigation into criminal acts, specified the particular individual or incident that was the object of its investigation, adequately described the documents it is withholding under Exemption 7, or sufficiently connected the withheld documents to a specific statute that permits FBI to collect information and investigate crimes.

Mr. Shapiro further alleges that FBI has failed to state a rational basis for its investigation or connection to the withheld documents, which he describes as overly-generalized and not particular. On the latter point, the Court agrees.”

Now, the FBI will need to prove to the judge that its exemption claim isn’t overly broad, possibly in an in-camera session considering the claimed sensitivity of the withheld documents. But as This Anonymous Coward pointed out on Twitter, a better question might be why the FBI was so interested in protecting the banks from Occupy protestors, rather than investigating the assassination threats against Occupy leaders. Chances are, that question will go unanswered by the FBI, whether or not these documents are finally freed.

Filed Under: exemptions, fbi, foia, mosaic, redactions, ryan shapiro

Thanks Anti-Vax Loons: The Return Of The Measles And The Backlash Against Jenny McCarthy

from the endangering-us-all dept

For all you people out there still going on about how horrible vaccines are for children, still ultimately relying on a thoroughly debunked fraud of a research paper put forth by a quack paid for his quackery by a law firm planning on suing vaccine-makers, thanks a lot. Measles is back. And it’s your fault. What was once limited to some worrying reports in rural areas, often times due to either conspiracy theorists or those practicing an unfortunate brand of theology, measles is now back in populated areas like New York City. Oh, and whooping cough. And mumps.

Measles is spreading in upper Manhattan and the Bronx, according to public health authorities in New York. About 16 cases have turned up, including two that involved contagion in doctors’ offices. Outbreaks have also been reported in the Boston area, San Francisco and Los Angeles. Much of the current outbreak is traceable to the Philippines, where the disease is raging and easily spread to unvaccinated travelers. They come home to the U.S., where the virus is finding a surprising welcome. Health experts add these to the tally of the anti-vaccination movement, which is based almost entirely on a long since debunked and withdrawn paper published in Britain in 1998.

Measles, should you not be aware, was at such low levels as to be officially considered obliterated. It was essentially gone, removed from our daily list of dangers thanks to the power of vaccines. Thanks to the unvaccinated in America, however, when foreign pathogens are brought here, they are allowed to find hosts in which they can mutate such that the vaccinations everyone was supposed to have are no longer as effective, or effective at all. Driving the point home, children too young to be vaccinated often find themselves the victims of the spread of these mutated diseases, resulting in sick children… and dead infants.

And, lest anyone attempt to argue that the vaccinations themselves are more harmful than the diseases they control, or for those that argue that our natural immune system is better suited to fighting off these pathogens:

During a similar outbreak last year, the national Centers for Disease Control concluded that 82% of the cases occurred in unvaccinated persons, and of those, 79% said they deliberately shunned vaccination on “philosophical” grounds.

And, from there, the disease mutates and spreads, mutates and spreads, rinse and repeat until we reach the point where we now have outbreaks in major cities. Fortunately, many folks are looking at this as a teaching moment for the portion of the American public that is endangering the rest of us. Chiefly in the cross-hairs has been Jenny McCarthy, who has been the spokesman for the stupid when it comes to the anti-vaccination crowd for a long, long time. Recently, she asked her Twitter followers “What is the most important personality trait you look for in a mate?” The responses were less than kind.

They vaccinate their kids RT @JennyMcCarthy: What is the most important personality trait you look for in a mate? Reply using #JennyAsks

— Jen (@oneninjen) March 14, 2014

Someone who vaccinates, b/c I’d want our kids to survive. @JennyMcCarthy: Most important trait you look for in mate? Reply w/ #JennyAsks

— Seth Mnookin (@sethmnookin) March 15, 2014

While I do love getting diseases that were eradicated in the last century, I would say vaccinated is a trait I look for #JennyAsks

— Jennifer Lott (@JennLott) March 14, 2014

Now, it’s worth noting that McCarthy has been relatively quiet on the anti-vax topic the past couple of years, as these long-dead diseases have reemerged. Were I her, I wouldn’t want to be spouting off as children get sick either. Maybe she’s learned how wrong she was. If she has, she may want to inform her co-celebrities Katie Couric and Kristen Cavallari and Jay Cutler, because they apparently haven’t gotten the memo yet.

Look, to be clear, if you don’t want to vaccinate your children, you have that free right, but only because I haven’t attained enough power in this country yet to have you summarily arrested and to take your children away from you so that they can live with someone with whom they’ll be more safe, like, say, a family of rabid wolverines. Vaccinate your damned children. It isn’t about you or your kids, it’s about all of us.

Filed Under: anti-vaccination, health, jenny mccarthy, measles, public health, vaccinations

Key Fair Use Case Settles, Rather Than Continue (And, No, It's Not The Beastie Boys)

from the settlement-day dept

Yesterday was apparently “settlement day” for high profile copyright cases. Lots of attention was paid to Google and Viacom finally settling the ridiculous seven year battle in which Viacom tried to fight the future and reinterpret the DMCA… all for naught. And then, you may have seen that the Beastie Boys and Goldieblox settled their high profile lawsuit as well. However, that was almost a foregone conclusion. There was no way that lawsuit was going to move forward.

However, a much more important copyright case, also settled. The legal fight concerning fair use between photographer Patrick Cariou and famed artist Richard Prince also happened to settle on the very same day. We’d been covering that important fair use case, which really highlighted the importance of the “transformative” step in determining fair use. Prince had taken photographs of Cariou and created “collage paintings” in which he added to the photographs. While a lower court had said this was not just infringing, but that Prince’s artwork (valued at millions of dollars) needed to be destroyed, an appeals court, thankfully, mostly overturned the decision, declaring that most of the works in question were fair use, and leaving the lower court to re-examine whether a few more were or were not transformative enough to be fair use.

As with the YouTube lawsuit, the settlement means that the final precedent set by this case is not nearly as clear-cut as it could be, but (again like the YouTube case), on the whole, the state of the case when it ended is generally useful. With YouTube, while the appeals ruling could have been more definitive concerning the DMCA’s safe harbors, it was generally supportive of them and completely rejected Viacom’s wacky theories. Similarly, in this case, while the appeals court didn’t wholly support fair use for all of Prince’s works, at the very least it did find most of them to be fair use, and (unlike the district court) recognized that immediately jumping to a claim of “infringement” and ordering the destruction of artwork that the art world clearly valued quite a lot was a dangerous step to take. While some might argue that having an eventual Supreme Court ruling in either case helps establish a clearer set of rules, given the unpredictable nature of the Supreme Court on copyright issues, the settlement in both of these cases, when the results were generally positive, may be the best thing for the state of copyright law currently.

Filed Under: appropriation art, beastie boys, copyright, fair use, patrick cariou, richard prince, settlements
Companies: goldieblox

Kid Bullied For My Little Pony Backpack Told Not To Bring It To School Anymore

from the blaming-the-victim dept

In the ongoing idiocy that is schools employing zero tolerance policies, the admittedly misguided overbearing results at least tend to have some pretend logic behind them. The school is afraid of guns, so ban everything that remotely looks like a gun, even if we’re just talking about some kid’s fingers. The school wants to curtail bullying, so they go nuclear at anything even remotely resembling bullying. Yes, it’s misguided, yes, it’s stupid, but you can at least follow along the logical path they walked before jumping off the cliff.

But where one California North Carolina grade school got the stones to blame Grayson Bruce and his backpack for the bullying he’s endured is beyond me.

A mother and her 9-year-old son say school officials won’t let him bring a My Little Pony bag to school. The boy and his mother say he’s getting shoved around because bullies think his pick of a favorite toy is for girls.

My Little Pony, which has enjoyed something of a resurgence lately, is a show about friendship. One would have to work extremely hard after being hit in the head with a hammer in order to find anything offensive within it. The only explanation anyone has offered for banning Grayson from bringing his damned backpack to school has been that it sets off the bullies to go about their bullying ways. This, in case you’re dense, is about as pure a form of blaming the victim as one can find. Fortunately, while the school in question decided to paint a damned backpack as the culprit in this scenario, the power of social media has risen to support Grayson.

Since it aired, the story has been picked up by websites, blogs and television stations across the nation. Tuesday it was one of the top stories trending on social media. The Facebook page 9-year-old Grayson Bruce’s parents have set up for him now has more than 3,700 “Likes”. Grayson has developed a following on Facebook after a friend made a support page for him. Grayson stands by his favorite cartoon and the message he says it sends. His mother says, why not?

But Noreen says Thursday the school asked him to leave the bag at home because it had become a distraction and was a “trigger for bullying.”

This is absurd. In a world where too many schools are embracing too many zero tolerance policies, this one is actually going down the road of removing the subject of the bullying instead. What fun! What if the young man was gay? Or black? Mexican? What if he liked a certain kind of music, or was a huge fan of the wrong sports team? What if he had a medical condition? Sorry, sport, but you have to leave your crutches at home, ‘cuz the kids just ain’t down with them.

No, the proper response to is to pull those bullying Grayson aside and explain to them in stark terms why their actions aren’t acceptable. Banning MLP backpacks can’t be the answer, lest we allow all those children to learn the exact wrong lesson in their place of learning.

Filed Under: bullying, my little pony, victim blaming, zero tolerance

UK's Intelligence Watchdog 'Group' Only Has One Full-Time Member, Oversight Efforts Compared To British Sitcom

from the by-comparison,-our-piss-poor-oversight-looks-positively-robust dept

We have firmly established that the NSA’s oversight is a joke. The House Intelligence Committee routinely hid documents from their fellow Congress members. The Senate side is headed by one of the most shameless champions of the surveillance state. (Well, right up until her office was subjected to it…) The administration finally began distancing itself from the NSA’s activities months after the first leak, responding to the concerns of Americans with a brief list of weak reforms.

Unfortunately, it appears that we in the US are completely spoiled, at least in terms of oversight. If nothing else, we’re willing to throw a lot of bodies at the problem. Over in the UK, the so-called “intelligence watchdog group” doesn’t put in enough manhours to be considered a “watchdog” and certainly doesn’t have enough personnel to be considered a “group.”

Britain’s intelligence services had a system of oversight no better than that seen in the TV comedy Yes, Prime Minister, an MP said on Tuesday during a meeting of a Commons committee.

Julian Huppert, a Liberal Democrat, said the sitcom depicting ineffectual government was an appropriate comparison after it emerged that the intelligence services commissioner appearing before MPs worked only part-time, and operated with only one other staff member.

Two members, one part-time, to oversee the activities of British intelligence services. With that level of involvement, it’s hardly a surprise that 6% of the 1,700 warrants issued last year received any sort of scrutiny. With this dearth of personnel, it’s hardly a surprise (albeit still unexcusable) that the initial response to the leaks from Mark Waller, the part-time intelligence commissioner charged with overseeing MI5, MI6 and GCHQ, was incredulity: “Crikey. I wanted to know if I had been spoofed for 18 months.”

Being a decent guy, but one who felt he had been seriously misled during his 18 months of part-time oversight, Waller immediately tried to get it all sorted out. The recounting of his vigorous efforts to get to the bottom of the intelligence community’s misleading portrayal of its activities is what led to the MP’s Britcom comparison.

Waller, who looked ill at ease during much of the questioning, said he had gone to see GCHQ to see if there was anything to the allegations. He saw the deputy chief of the GCHQ and was satisfied the allegations were without foundation.

Vaz said: “And how did you satisfy yourself? It seems from your comment that you had a discussion with them.”

Waller replied: “Certainly.”

Vaz said: “You heard what they had to say.”

Waller replied: “Certainly.”

Vaz probed further: “And you accepted what they had to say?”

Waller: “Certainly.”

“Is that it?” asked Vaz.

“Certainly,” replied Waller.

Vaz added: “Just a discussion?”

Waller: “Certainly.”

Vaz, in conclusion, said: “And that’s the way you were satisfied that there was no circumventing UK law. You went down, you went to see them, you sat round the table, you had a chat?

Julian Huppert, the MP who made the comparison to Yes, Minister summed up Waller’s investigative “interrogation” more concisely.

“Can I come back to this comparison between Britain and the US? I presume you are both familiar with Yes, Prime Minister. There is a line there where it says, ‘Good Lord, no. Any hint of suspicion, you hold a full inquiry, have a chap straight out for lunch, ask him straight out if there is anything in it and if he says no, you have got to trust a chap’s word’.”

So, the “watchdog,” after feeling he had been lied to for 18 months, decided to confront the agency. The agency responded with “We haven’t been lying” and that was apparently good enough for the commissioner. After all, if you can’t trust the spies, who can you trust? Waller had done his due diligence, examining roughly 100 of the 1,700 warrants issued and had found nothing indicating anything was out of order.

In Britain, the question, “Who watches the watchers?” has been answered. The answer is, apparently, hardly anyone. Waller, the part-time commissioner charged with overseeing three intelligence agencies, looked “ill at ease” during questioning and initially refused to attend the hearing. But despite his clear reluctance to provide details of the watchdog “group’s” clearly inadquate oversight and his embarrassing-to-everyone-involved recounting of his “chat” with GCHQ officials, Waller still insisted he had enough personnel to perform the job capably. This sounds strangely like someone whose real desire isn’t to perform rigorous oversight, but rather collect a paycheck untroubled by controversy.

Filed Under: gchq, julian huppert, mark waller, oversight, uk, yes minister

FBI Bust Another Handcrafted 'Terrorist' For The Crime Of Thinking About Supporting A Terrorist Organization

from the snared-in-the-FBI's-(en)trap(ment) dept

The FBI’s string of thwarted, self-created terrorist plots continues unabated. Why look for terrorists when you can just craft them yourselves? Digital Fourth has the rundown on the latest “coup” by the agency.

The news this morning is full of the arrest of yet another American on charges of “attempting to provide material support to a foreign terrorist organization.” Nobody’s suggesting that 20-year-old National Guardsman Nicholas Teausant of Acampo, CA is a terrorist, or that he provided any help whatsoever to terrorists, or that he was in contact, ever, with any actual terrorists. But, the media breathlessly report, he’s still facing charges that can put him in jail through to the 2030s.

The more you dig into the story, the more ridiculous it becomes. And Alex Marthews digs in deeply. The propellant (if you will) for this latest thwarted terrorist plot is little more than a campfire story.

Well, seems that he was on a camping trip sometime last year – or maybe not; investigators couldn’t corroborate that the camping trip ever happened – but anyway, afterwards, Teausant is reported to have said to some guy that he had been on a camping trip and had talked with friends about “blowing up the LA subway,” but that they hadn’t done anything because “they” had been “tipped off”.

Unfortunately for Teausant (but fortunately for America!), the “somebody” he relayed his camping conversation to was an FBI agent. Recognizing that Teausant needed a little more prodding to turn against his own nation, the agent connected him with a terrorist tutor of sorts (another FBI agent). This agent/mentor suggested Teausant travel to Canada to further radicalize and then sent more FBI agents to arrest him at the border. Voila, another terrorist attack thwarted.

Teausant is now facing charges of “attempting to provide material support” to a terrorist organization, a crime that seems to be treated just as severely as actually providing material support. As evidence of Teausant’s terrorist proclivities, agents cited posts to his “online photo account” which said such things as desiring to see America’s downfall and “I would love to join Allah’s Army but I don’t know where to start.”

They also cited the following evidence, which exposes the USA’s contradictory and arbitrary determination of who does and does not qualify as a terrorist.

Also, Teausant was apparently trying to figure out how to go to Syria and fight against Bashar al-Assad. This horrifying offense was committed at the same time that the US government was … trying to figure out how to go to Syria and fight against Bashar al-Assad. Last time I checked, Assad was a brutal dictator. But the winds have changed, and now that some of the people fighting against him are Sunni radicals inspired by, but actually repudiated by, al-Qaeda, I guess that makes Assad now a staunch American ally and defender of secular values?

Here’s some more of the government’s evidence.

The complaint said Teausant referred to himself as a convert to Islam but did not give details about when or why he may have done so. He met the informant through a mutual acquaintance, the document said.

Among Teausant’s plans was to appear in videos for the group, without covering his face — to be “the one white devil that leaves their face wide open to the camera,” he was quoted in the complaint as saying…

The complaint also states that Teausant told the informant he has an infant daughter, and had arranged for his mother to get custody of the girl if he disappeared.

At one point, the informant questioned him about whether he was serious about his plans, given that he talked a lot but did not seem to follow through.

So, while there are indications that Teausant could have wandered down the path into Islamic radicalism, at the point he was arrested he had done little more than talk smack around the campfire with some other young men (Teausant is only 20) and talk further smack with undercover agents. But as usual, it looks as though the FBI had to do most of the legwork to convert this person into a potential terrorist. It was the FBI, not Teausant, that arranged to get him an “application” to join a violent Al-Qaeda-linked group. It was the FBI that pushed him towards Canada to further his terrorist education. And it was the FBI that convinced itself that Teausant was enough of threat to lock up for a potential 15 years, even though he had never actually “provided material support” to a terrorist organization.

The FBI now gets to chalk up another win in the “terrorist captured” column despite having done little more than arrest a guy who talked a lot, but wasn’t big on following through. Sure, there’s always a chance Teausant would have done all of this on his own, but rather than sit back and keep an eye on him, the FBI proactively made his moves for him… and arrested him for following the undercover agents’ bidding.

Marthews points out how completely bizarre this is in a land where free speech is considered a right.

In a more sensible legal environment, Teausant would walk free because, let me think now, because we have a First Amendment and he is entitled to say whatever dumb thing he wants to so long as he doesn’t actually harm anyone, and the FBI informant and agent would be being charged with entrapment.

That’s the way it should work, but that’s not the way it does work. The counterterrorism money train comes off the rails if government agencies fail to capture terrorists. So, rather than restrict themselves to investigating terrorist organizations and sniffing out plots, the FBI has chosen to pad the books with ringers. Teausant may have made some poor decisions and said some unwise things, but even the FBI’s preponderance of evidence fails to portray him as much more than a dumb kid with stupider dreams. And rather than allow the events to play out, and possibly expose the FBI’s alleged terrorist sympathizer as an ineffectual pretender, it set him up for a date with the penal system. All the while, the accolades and money keep rolling in, ensuring the FBI’s terrorist manufacturing apparatus will keep humming smoothly.

Filed Under: doj, fbi, made up plot, nicholas teausant, own plot, terrorism

Based On NSA Defender's Arguments Against Public Debate, The 4th Amendment Should Be Classified

from the sources-and-methods! dept

One of the key points that we keep hearing from defenders of the intelligence community concerning the Snowden leaks, is that all these revelations about what the NSA is spying on is providing important info to “our enemies” who can then use that information to evade the watchful eyes of US intelligence. That’s silly for a variety of reasons, with a big one pointed out by Conor Friedersdorf at The Atlantic. Based on that same logic, you could argue that the Fourth Amendment of the Constitution should be classified as top secret for revealing the same kind of information. Cue the sarcasm:

Notice how much the Fourth Amendment tells our enemies. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” it states, “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Framers are usually considered patriots. Yet they gave traitors and criminals in their midst such powerful knowledge about concealing evidence of skullduggery! Today every terrorist with access to a pocket Constitution is privy to the same text. And thanks to the Supreme Court’s practice of publishing its opinions, al-Qaeda need only have an Internet connection to gain a very nuanced, specific understanding of how the Fourth Amendment is applied in individual cases, how it constrains law enforcement, and how to exploit those limits.

He makes the basic point that you can more or less apply this kind of test to all of the claims by NSA defenders. He points to regular Techdirt favorite, Stewart Baker, who is still apoplectic about the idea that we’re having a public debate about any of this, because:

“You can’t debate our intelligence capabilities and how to control them in the public without disclosing all of the things that you’re discussing to the very people you’re trying to gather intelligence about,” he said. “Your targets are listening to the debates.”

But, uh, yeah, that’s kind of the point of living in a free and open society. Nearly a decade ago, in a totally different arena, Professor Ed Felten talked about how you could debunk calls for stronger intellectual property protections via the Pizzaright Principle, whereby if the identical argument being made for why we need stronger copyright or patent protections could similarly be made for why someone deserves an exclusive right to sell pizza, then the argument is bogus.

It seems that we could do a similar sort of thing for any discussion that tries to cut off public debate and discussion about what the intelligence community is doing as well. If the same argument could equally apply to why we should not have a public 4th Amendment, it should be default evidence that the argument being pushed is completely bogus. We can call it the “Classified 4th Amendment Test.”

Filed Under: 4th amendment, classified, debate, nsa, openness, public discussion, stewart baker

Lt. Governor Of Louisiana Sues MoveOn.org Over Parody Campaign Targeting Governor's Policies

from the doing-MoveOn.org's-awareness-legwork-for-it dept

Here comes IP law, being pressed into service as a censor once again. (h/t to Techdirt reader dave blevins)

The state of Louisiana is suing MoveOn.org for its billboard criticizing the state’s Governor for his Medicaid policies. It uses the state’s trademarked slogan (“Pick your passion!”) as part of its commentary. Here’s the billboard in question.

This billboard prompted Lt. Governor Jay Dardenne into action, who sent a cease and desist on behalf of his office in an effort to get the signs taken down.

Lt. Gov. Jay Dardenne sent a cease-and-desist order to MoveOn on Thursday, asking the advocacy organization to take down a billboard along Interstate 10 that parodies Louisiana’s “Pick your Passion” tourism slogan. The billboard, which mentions [Governor] Jindal by name, is critical of the governor and legislators’ decision not to expand the state Medicaid program under federal health care reform.

Originally, Dardenne claimed the billboard could confuse people, making them think the state itself had created the signs. But his cease and desist order contained more than just that particular claim, with apparent cases of “confusion” only being limited by the lawmaker’s imagination. Here’s some of MoveOn.org’s response to the C&D.

First, the determinative issue is whether the use of the Mark creates a likelihood of confusion among relevant consumers. Clearly, MoveOn is not using the Mark for the advertisement of any goods or services of its own whatsoever. Your letter contends, however, that there is a “strong likelihood that a reasonable consumer will believe the Lieutenant Governor is the source. . .of the billboards” and is likely to be confused into believing this office is involved in a dispute with the Governor over Medicaid expansion.”

To the contrary, MoveOn’s sponsorship of the billboard is clearly denoted. The advertisement is manifestly a criticism by our client of the position of the Governor on Medicaid expansion. The Lieutenant Governor is not mentioned or referenced in any way in the advertisement. No reasonable Louisiana citizen or visitor could conceivably look at this billboard and conclude that it is about a dispute between two state officials, as opposed to a criticism of the Governor’s policy by an advocacy group.

That’s a pretty extreme stretch by Dardenne. Had he stuck with simple confusion of whether the state itself was behind the billboards, he might have been on more solid ground in terms of reasonableness. But as the response letter notes, Dardenne himself implicitly acknowledged the billboard was a parody. When it came to specifics detailing exactly how MoveOn.org was misleading the public, Dardenne failed to provide any.

You allege that the billboard had “already caused confusion regarding the source of the message” but cite no facts or evidence.

Now that Moveon.org has shot down his C&D, Dardenne is taking the organization to court.

“We have invested millions of dollars in identifying the Louisiana: Pick Your Passion brand with all that is good about Louisiana. No group should be allowed to use the brand for its own purposes, especially if it is for partisan political posturing,” Dardenne said in a statement announcing the suit.

“MoveOn.org has every right to attack Gov. Jindal, the state’s refusal to accept Medicaid or, for that matter, me personally. But they do not have the right to use our protected service mark, which is used solely for the purpose of promoting and marketing Louisiana. We own the mark and its use is under the direction of my office, not the Office of the Governor.”

The filing reiterates Dardenne’s claims that the billboard gives the impression that the Lt. Governor’s office is attacking the governor of the state. It also makes the claim that because Governor Jindal is not the “author” of the claimed marks, the billboard is not a protected parody.

Louisiana and federal jurisprudence has provided that a parody is defined as an artistic work that imitates the characteristic style of an author. For the purposes of copyright and trademark law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. Plaintiff avers that infringement of the Service Marks by MoveOn.org does not constitute parody under the fair-use doctrine because the subject of the parody, Governor Bobby Jindal, is not the author of the Service Marks, as is required.

While Dardenne’s claim is technically correct (in regards to commenting on the “author’s” work), in terms of confusion, there’s very little separating a state’s slogan and its government (as a whole, rather than a division of wholly separated offices according to Dardenne’s hair splitting). Dardenne’s claiming that because his office (the Lt. Governor’s) designed the state’s word mark and slogan, it is no longer a protectable parody. This argument utitlizes imperceptible (to outsiders) differences in an attempt to remove the parody protections that would appear to cover MoveOn’s work.

Whether or not the court agrees with Dardenne’s arguments remains to be seen, but the underlying feeling that this is solely a politically-motivated move (with all of its First Amendment implications) is palpable. MoveOn.org is a left-leaning organization, while Gov. Jindal and his lieutenant are both Republicans. Simply utilizing trademark law to shut down criticism is always a bad idea. Allowing political motivations to override common sense is even worse. As the article notes, MoveOn.org has deployed similar campaigns in Texas and Florida, but no state rep has been foolhardy enough to attack speech by brandishing the state’s trademarks as weapons.

In the long run, even if Dardenne wins, he (and the state) still lose. This legal attack has only raised the visibility of MoveOn’s critical campaign. And the cries of “censorship” that would follow a successful lawsuit will only make the office of the governor look worse.

Filed Under: bobby jindal, jay dardenne, louisiana, medicaid, pick your passion, trademark
Companies: moveon.org