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ACLU Suggests Jury Instructions Might Be A Fix For 'Missing' Police Body Camera Recordings (Legal Issues)

by Tim Cushing

from the opting-out-of-creating-evidence-means-no-credit-for-not-trying dept on Friday, December 2nd, 2016 @ 7:39PM

We've written plenty of posts about police body cameras -- how useful they can be and how useless they often are. What should result in additional law enforcement accountability has been turned into a mostly-optional documentation system. The new tech and its accompanying guidelines have done very little to increase accountability.

Body cameras are pretty much mainstream at this point, but when excessive force and/or misconduct are alleged, footage captured by police is often nonexistent. Officers disable recording equipment, delete footage, or simply claim the camera "malfunctioned." Some repeatedly "forget" to activate their cameras ahead of controversial arrests and interactions.

But what can be done about it? So far, law enforcement agencies have done little but promise to create more policies and guidelines -- ones that can continue to be ignored by officers who'd rather not create a permanent record of their actions. There's been some discipline, but what little of it there is hasn't been very severe. And stories of repeated tampering with recording devices in some agencies suggests what is in place isn't much of a deterrent.

The ACLU of Massachusetts has a suggestion: if missing/incomplete recordings are central to a prosecution or a civil rights lawsuit, a better deterrent might be to allow juries to impose evidentiary consequences for failures to record. From the ACLU's "No Tape, No Testimony" report [PDF]:

This instruction would tell the jury that, if it finds that the police unreasonably failed to create or preserve a video of a police-civilian encounter, it can devalue an officer’s testimony and infer that the video would have helped the civilian. If the jury finds that the case involves bad faith, such as the outright sabotage of body cameras, then it should be instructed to disregard officer testimony altogether.

This all tracks back to multiple lies told by officers that have been uncovered by cameras carried by citizens. In the Walter Scott shooting, the officer's narrative of a struggle over a Taser was rebutted by a cell phone recording that showed the officer shoot Scott in the back while he ran away from him and then dropping something that looked like the officer's Taser next to Scott's dead body. The ACLU's report lists several other shootings -- like Laquan McDonald's -- in which recordings directly contradicted official police reports.

While this instruction may encourage some officers to record more questionable arrests and stops, it may also encourage more law enforcement agencies to unofficially instruct officers to hold off on writing reports until after they've reviewed recordings. If there's no way of salvaging the incident, recordings will probably continue to disappear, but at least the officer's testimony will disappear right along with it, should the jury decided the missing/incomplete recording was a "bad faith" effort.

Officers have long relied on "our word against yours" to win testimonial battles. But if an officer cannot produce a recording of an encounter, lesser weight should be given to an "eyewitness" whose testimony could have easily been verified but who chose not to document the incident.

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Court Rubber Stamps IRS's Demand To Get All Coinbase User Data (Legal Issues)

by Mike Masnick

from the um... dept on Friday, December 2nd, 2016 @ 4:47PM
A couple weeks back, we wrote about a ridiculous and massively overbroad demand from the IRS that virtual currency exchange/online wallet host Coinbase turn over basically all info on basically all Coinbase users. They did this because they saw evidence of a single person using Bitcoin to avoid paying taxes. Coinbase expressed concern over this, but Judge Jacqueline Scott Corley didn't seem too concerned, and has granted the IRS's request by literally rubber stamping the DOJ's request. I know it's not all that uncommon for judges to accept "proposed orders" but it's still a bit disturbing to see it happen on something with potentially massive consequences.
Coinbase has indicated that they're going to push back on this legally, but it's still quite unfortunate that the judge didn't seem all that concerned about this. While Coinbase says it expected the court to grant this order, and that "we look forward to opposing the DOJ's request in court," it's unfortunate how quick judges are to agree to these kinds of orders. Either way, this is going to be a case to follow.

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Canada's Attempt To Force Cheaper, More Flexible Cable Packages Is A Bit Of A Joke (Failures)

by Karl Bode

from the the-illusion-of-choice dept on Friday, December 2nd, 2016 @ 2:42PM
Canada's attempt to force Canadian cable providers to deliver cheaper, more flexible cable TV bundles appears to be a comedy of errors. Last year, driven by user complaints, the CRTC passed rules requiring Canadian cable companies to provide a $25 so-called "skinny bundle" of discounted TV channels starting March 1 of this year, and the option to buy channels individually (a la carte) starting December 1 (aka this week). Companies responded by first pouting, then by offering new "discounted" TV bundles so layered with hidden fees, surcharges, and caveats as to be effectively useless.

This week's deadline to offer a la carte TV channels doesn't appear to be going much better. Companies like Rogers, Shaw, and Bell are now allowing users the option to buy TV channels individually -- but they've again priced each channel high enough to make the option completely pointless. Under this new pricing paradigm, buying individual channels can cost you anything from $6 to $20 per channel. After having a little time to crunch the numbers, consumers were quick to complain to the BBC about the absurdity of the entire effort:
"Turns out, to add CNN and CP24 individually, Spitz would pay $14 a month instead of $15. That's only a $1 savings, and her mother would lose a handful of extra channels included in the theme packs.

"That's ludicrous; that's ridiculous," said Spitz.

But some industry experts are not surprised by the pick and pay prices. That's because, they say, TV providers are for-profit companies, and their main objective is to protect the bottom line.

"What did you really expect?" says telecom expert Gerry Wall.
Incumbent Canadian TV providers, as you also might expect, insist that offering "discounted" service that really doesn't provide any discount is the height of value, and that the way they've always done things (read: offering you a bloated, expensive bundle of channels you don't actually watch) is the best way to continue to do things:
"Rogers told CBC News that adding individual channels to a plan won't benefit everyone and that most customers instead opt for its bigger TV packages "which offer great value." It said the cable company's standalone channel pricing is "reasonable and competitive."
Part of the problem is that the CRTC doesn't really have the authority or willingness to fully regulate rates, so it's demanding less expensive options for consumers -- but isn't really willing (or in some instances able) to hold companies accountable when they tap dance around the requirements. In a March interview with The Globe and Mail, CRTC boss Jean-Pierre Blais tried to downplay public criticism of the effort (and the CRTC's unwillingness to follow through) by claiming the goal was never to lower soaring cable bills:
"People may have thought, mistakenly, that the CRTC was going to reduce everybody’s cable bills – that’s not what we promised. We said we’re going to give you more choice,” Jean-Pierre Blais, chairman of the Canadian Radio-television and Telecommunications Commission, said in an interview."
But what people actually got was the illusion of more choice under what appears to just be regulation theater. Given the fact that streaming video competition (and by proxy lower prices and more choices) will be arriving whether these cable companies like it or not, the CRTC's effort could just be a giant waste of time. A better tack for regulators would be to focus not on trying to drag legacy TV kicking and screaming into the modern era, but to focus on improving broadband competition and obstacles (usage caps) to the rise of cheaper, better, and more flexible streaming TV alternatives.

Antigua Says It Will Certainly, Absolutely, Definitely Use WTO Permission To Ignore US Copyright And Set Up A Pirate Site, Maybe (Say That Again)

by Glyn Moody

from the don't-make-us-do-this dept on Friday, December 2nd, 2016 @ 1:11PM

One of the longest-running, and most extraordinary, sagas on Techdirt concerns the island of Antigua. Over 13 years ago, the country filed a complaint at the World Trade Organization (WTO) over the US ban on online gambling, which Antigua said violated a trade agreement between the two countries. Long story short, the WTO not only agreed, but said that the Caribbean country could ignore US copyrights, and set up a WTO-authorized pirate site to obtain the $21 million in WTO sanctions that the US was refusing to pay as compensation for blocking Antigua's online gambling sites. In 2013, Antigua was still saying it was definitely going to do this if it couldn't come to some agreement with the US on the matter, and the US was still refusing to settle.

Three years later, Antigua -- officially known as Antigua and Barbuda -- has just told a meeting of the WTO's Dispute Settlement Body (DSB) the following:

Antigua and Barbuda now informs the DSB that, if an appropriate and beneficial settlement is not reached with the US by year-end, the government will be compelled to take action to enforce the suspension of copyright on the sale of US intellectual property, consistent with the award of the DSB.
That's from a copy of Antigua's statement (pdf), obtained by IP Watch. The spokesperson claims the country has suffered serious losses as a result of the US gambling ban:
Over that entire 12-year period, my small country with a Gross Domestic Product of just $1 billion has been deprived of trade revenues which now exceed $250 million.
The statement points out that for the US, $250 million represents just 0.0003% of its annual GDP, and that over the last 12 years, the US has enjoyed a trade surplus of $1 billion with Antigua. Moreover:
While the US continues to act in contradiction of the rulings and recommendations stipulated by DSB concerning my country, it remains the most active user of the institution's Dispute Settlement System.
As a result of the continuing US intransigence, Antigua feels it has no choice but to take the momentous step of absolutely definitely setting up that WTO-authorized piracy site -- just like the last time it said that.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

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More National Security Letters Made Public After Government Drops Its Attempt To Keep Its Gag Orders In Place (Privacy)

by Tim Cushing

from the most-transparent-administration-still-all-about-forced-transparency dept on Friday, December 2nd, 2016 @ 11:49AM

Thanks to the EFF's efforts, another set of National Security Letters have been published and their recipient freed to discuss them. CREDO Mobile received two NSLs in 2013 -- both accompanied with the usual indefinite gag order. The NSLs [PDF 1] [PDF 2] requested a wealth of data on three of CREDO's customers -- including all call records, financial information (credit cards used, etc.), and personal information (name, address, etc.) -- dating back to April 2008.

CREDO challenged the constitutionality of the indefinite gag orders as well as the constitutionality of the NSLs themselves.

“A founding principle of CREDO is to fight for progressive causes we believe in, and we believe that NSLs are unconstitutional. These letters, and the gag orders that came with them, infringed our free speech rights, blocking us from talking to our members about them or discussing our experience while lawmakers debated NSL reform,” said Ray Morris, CREDO CEO. “We were proud to fight these NSLs all these years, and now we are proud to publish the letters and take full part in the ensuing debate.”

CREDO's challenge to the gag order was upheld [PDF] by a federal judge in March, who struck it down when the FBI failed to show a need for the continued secrecy. This decision was held pending the FBI's appeal, but the government apparently decided this wasn't a battle it wanted to fight and dropped its appeal of the court's order.

The government's decision to drop the appeal highlights one of the (many) problems with NSLs. These are self-issued administrative orders subject to very little, if any, oversight. The FBI can issue as many of these as it wants without ever having to get a judge involved. Every one of these arrives with an indefinite gag order attached, forcing recipients to lawyer up if they want to challenge the government's demands for secrecy.

The government clearly felt it couldn't demonstrate why this gag order should still be in place. But the government doesn't have to justify its demands for secrecy at the point the NSL is issued. It only needs to do this if challenged in court. While some judges have expressed an interest in periodic reviews of NSLs to determine the need for ongoing secrecy, these conclusions are the exception rather than the rule.

That judges are the ones making this determination is another part of the problem. In response to the USA Freedom Act, the DOJ instituted a policy requiring a "periodic" review of issued NSLs. Unfortunately, that's all it does. There's no definition attached to "periodic," which means the review could happen every few years… or never.

The constitutionality of the orders themselves should still be actively challenged. While much of what is sought with these falls under the very generous definition of "third party records," the lack of any oversight or judicial review makes these the go-to tool for the FBI -- which has been known to issue NSLs when its warrant requests are turned down by federal courts. Throw an indefinite gag order on it, and the FBI can pretty much ensure complete compliance from recipients, whose only option is to fight an often-futile legal battle against the government.

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