DOJ Updates Force Policy, Creates Affirmative Duty To Intervene When Officers Violate Rights
from the small-steps-towards-addressing-big-problems dept
A little more than a week ago, the Department of Justice updated its policy regarding CFAA (Computer Fraud and Abuse Act) prosecutions. For years, the DOJ had been complicit in the punishment of security researchers for doing their jobs, reasoning that unauthorized access was the only criminal element it needed to satisfy. The guidance — which had not been completely updated for years — reversed this course, affirmatively stating the DOJ would no longer seek prosecution of good faith security research efforts, making it a bit less dangerous to be a security researcher.
Unfortunately, there are caveats. First of all, it’s a policy update, not a codification of practices. The law still remains abusable should subsequent Attorneys General feel this is the path the DOJ should take in the future. It also does nothing to prevent private parties from suing researchers under the CFAA, although it does increase the risk the DOJ will file briefs siding with the defendants.
It’s a good step forward, though, no matter how limited or temporary it may turn out to be following the next regime change. In that same vein of cautious optimism, the DOJ has updated its use-of-force policy for the first time in 18 years, replacing the 2004 guidance with something that better reflects the standards the DOJ, under AG Merrick Garland, is attempting to instill in law enforcement agencies all over the nation.
Perhaps the biggest change in the new use-of-force policy is this: federal officers are no longer allowed to turn a blind eye to misconduct. The updated policy [PDF] gives officers responsibilities they’ve never had before, making an implicit assumption explicit.
Officers will be trained in, and must recognize and act upon, the affirmative duty to intervene to prevent or stop, as appropriate, any officer from engaging in excessive force or any other use of force that violates the Constitution, other federal laws, or Department policies on the reasonable use of force.
This is what we expect from law enforcement officers. This isn’t what they expect of themselves. And there’s nothing in settled law that imposes this duty. The DOJ is imposing this — via policy — on the federal officers it oversees, which includes those working for the DEA, FBI, ATF, US Marshals Service, and the Federal Bureau of Prisons.
That’s a lot of coverage. But, at this point, it’s only worth the bits it’s printed with. The DOJ will need to enforce it. And it will need to do more than hand out wrist slaps over dead bodies or broken limbs. And it will need to try to keep this policy on the books even after Garland exits the AG office. It’s unclear how the DOJ will handle this moving forward, but hopefully the man they answer to — Merrick Garland — will continue to make it clear federal policing is in need of fixing as much as local law enforcement agencies are.