Taser/Axon Separating Defense Lawyers From Body Camera Footage With License Agreements

from the how-badly-do-you-want-this-evidence? dept

Taser Inc.'s quiet takeover of evidence generation and storage -- through extensive body camera offerings -- was put on public display when the company rebranded as Axon. The company was willing to give away cameras in exchange for something far more lucrative: software licensing and footage access fees in perpetuity.

Axon even nailed down a choice URL: Evidence.com. This is the portal to law enforcement body camera footage stored in Axon's cloud -- the real moneymaker for Axon. The cameras are just the gateway drug.

But much of what's stored at Evidence.com could be considered public records. Much of what's stored there could also be subject to discovery by defense attorneys during criminal proceedings. But no one asked defense attorneys if this arrangement worked for them. It was enough that it worked for cops.

Defense attorney Rick Horowitz has a problem with contractual agreements he's being asked to sign when attempting to gain access to records regarding his client. Instead of handing out files, prosecutors are handing out URLs. To obtain the records he needs, Horowitz is forced to use Axon's portal… and sign agreements with Axon before he's allowed to access anything. (via Simple Justice)

[I]n the case of Evidence.com, such access does come from Axon. In fact, I have so far been prevented from obtaining the discovery in my juvenile case. Why? Because I refused to sign the license agreement with Axon to obtain access to their—not the city, county, or city and county’s, but Axon’s—website.

Why did I do that? Because, among other things, The “Evidence.com Terms of Use” require me to promise certain things I will not promise. I can’t find a link to the Terms of Use online—there are links to a Master Agreement that apparently whoever purchases the use of the system signs, and to some kind of user manual (which I haven’t yet read)—so I saved the Evidence.com Terms of Use I was asked to sign here.

The first thing that draws one up abruptly (again, aside from the fact that law enforcement is ignoring the law by disseminating juvenile records to Axon in the first place) is this:

"You consent to Axon’s access and use of the Account Content in order to….improve Axon’s Products and Services. In addition, for content that is covered by intellectual property rights, like photos and videos (“IP Content”), you specifically give us the following permission: you grant us a non-exclusive, transferable, irrevocable, royalty-free, sub-licensable, worldwide license to use any IP Content that you post on or in connection with the Services (IP License)."

The EULA may be boilerplate, but the situation is anything but normal. Horowitz doesn't care much for the fact that Axon's storage of court records and discovery documents is controlled solely by Axon by forcing users to waive a great deal of their rights in exchange for access.

But it's even worse in this case, which involves a juvenile. California law provides extensive protections for the privacy of juveniles -- even those accused of crimes. But these appear to have been ignored by every law enforcement agency that agreed to do business with Axon. These are also being ignored by Axon, which treats all uploaded footage equally. It doesn't meet California's privacy standards -- a problem that only seems to concern those defending juvenile arrestees.

[N]either Evidence.com, nor Axon—not even in its prior incarnation as “Taser International,” for that matter—are listed in WIC 827 as lawfully able to receive, or disseminate, juvenile records. No corporation is.

[...]

This is problematic not just because it means that law enforcement officers, and complicit District Attorney Offices—and, by the way, defense attorneys who signed up for the service, and thereby not only acquiesced, but agreed to give up certain rights regarding their clients’ data, too—have ignored the law. It is also problematic because, so far as I know, the courts are unaware of this. At least, I hope the courts are unaware of this, because if they are aware of this, that means that the courts have also sanctioned ignoring the laws of the State of California as pertains to juveniles.

If you don't agree to a third party's terms of service, you don't get access to records that belong to the public. This isn't just stored camera footage stashed away in Axon's cloud. It's evidence that's supposed to be handed over to the defense. It's evidence that's supposed to be presented in court by prosecutors. It's public records of public employees' interactions with the public. It's a lot of things that shouldn't be tied up by a EULA that demands users give up some of their rights to access public records.

And if this seems to have been handled badly in regards to California's privacy laws, this is only the tip of the iceberg. Axon is everywhere. Axon/Taser has locked down a majority of the body camera market. Its cloud storage and footage access front end is the moneymaker that allows it to lock down even more of the market by giving law enforcement free cameras subsidized by perpetual access and licensing fees. All of this is being agreed to with almost zero input from the public, which is now being forced to play by Axon's rules if it wants to access public records and court documents.


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  • icon
    Ninja (profile), 8 May 2017 @ 11:56am

    Ah the wonders of capitalism. All of your evidences are belong to U$!

    reply to this | link to this | view in chronology ]

    • identicon
      SpaceLifeForm, 8 May 2017 @ 2:10pm

      Not Capiatlism but Fascism at it's finest

      -
      Where 'evidence' can be photoshopped in the cloud.

      Any sane judge should exclude.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 May 2017 @ 3:05pm

        Re: Not Capiatlism but Fascism at it's finest

        oh they do but only when it supports the defendants story, gotta fill those corporate prisons somehow.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 May 2017 @ 5:08am

        Re: Not Capiatlism but Fascism at it's finest

        If they exclude then it becomes the cop's word against the defendant. I wonder how THAT will play out?!

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 May 2017 @ 1:23pm

    But corporate law trumps everything.
    We can not let rights or pesky laws keep them from profiting.
    The cloud will solve all of the problems!
    We are the cyber, you will pay us handsomely for things you've already paid for.

    Nothing says Make America Great Again, then allowing more public records to be locked away behind a paywall.

    reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 8 May 2017 @ 1:27pm

    Just like Britain only more so and mobile

    Remember when a number of people became concerned when fixed, public cameras started appearing on the streets in Britain, and a number of privacy issues were raised. Now imagine a world where every cop is a camera and all the video is held by a private company with little or no oversight. The only up side is that they will be so deluged with data that it will be very difficult to analyze most of it. (For now.)

    reply to this | link to this | view in chronology ]

    • identicon
      Machin Shin, 8 May 2017 @ 2:00pm

      Re: Just like Britain only more so and mobile

      "you grant us a non-exclusive, transferable, irrevocable, royalty-free, sub-licensable, worldwide license to use any IP Content that you post on or in connection with the Services (IP License)."

      From my understanding of that, they could team up with another company to do whatever they want with the data. That means no..... it is not "very difficult to analyze most of it". Pretty sure a company like Google could analyze most of it without really breaking a sweat.

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 8 May 2017 @ 2:33pm

        Re: Re: Just like Britain only more so and mobile

        That data mining will have consequences.

        Before the ACA, Americans would be denied insurance coverage for cancer treatment merely for not reporting teenage acne when they applied for insurance.

        The police interview witnesses to violent incidents. Their names are duly recorded. Over a decade this includes many thousands of people.

        Then when the normal percentage of them are diagnosed with mental health issues - even just needing stress leave - don't be surprised if insurance coverage is denied because they "never reported a pre-existing PTSD triggering situation on their insurance form."

        reply to this | link to this | view in chronology ]

        • icon
          John Snape (profile), 8 May 2017 @ 3:05pm

          Re: Re: Re: Just like Britain only more so and mobile

          Before the ACA, Americans would be denied insurance coverage for cancer treatment merely for not reporting teenage acne when they applied for insurance.

          I've been trying to find a reputable source for a story about this, but I can only find far-left websites making this claim.

          Do you have a link to a website that isn't directly linked to the Democrats that has this story?

          reply to this | link to this | view in chronology ]

          • icon
            R.H. (profile), 8 May 2017 @ 7:42pm

            Re: Re: Re: Re: Just like Britain only more so and mobile

            Technically, he's right but, in most cases, if you were denied you'd win an appeal. I can only speak for Michigan (I'm licensed to produce life and health insurance contracts here) but, any material omissions on an application can cause a claim to be denied. The key term there is material.

            Acne normally wouldn't be considered a material omission but, for example, if you have skin cancer near an acne scar, the insurance company could argue that they would have charged you a higher premium or denied you outright due to the additional risk and win the appeal. I haven't heard of any capricious denials myself though, I got into the business right around the time when pre-existing conditions gained required coverage status.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 9 May 2017 @ 12:01am

            Re: Re: Re: Re: Just like Britain only more so and mobile

            Do you have a link to a website that isn't directly linked to the Democrats that has this story?

            This is difficult. Let us reason by analogy here.

            If you drop a 120 pound anvil on your foot, you may expect to experience discomfort, perhaps injury.

            Now you want me to tell you that you need another source for fact checking this.

            Perhaps you should just drop an anvil on your own foot and report back?

            TL;DR - Some situations should generate within your intelligence some obvious conclusions. If they do not, question the situation or your intelligence. That is legitimate.

            But don't throw baby out with the bathwater - if some counter desirable outcome happens due to "policy" there are at least a few examples available of it happening - even if it is from sources you question. If it's about insurance, it is difficult to imagine finding a complete lack of counter desirable outcomes.

            I'm still complaining about a common pain pill I got after surgery that the co-pay cost was $300. Oh, not a 90 day supply every 4 hours. ONE pill, ONCE.

            ok.

            reply to this | link to this | view in chronology ]

  • identicon
    Anon, 8 May 2017 @ 1:33pm

    So, can they compel?

    Can they compel an Axon employee to come and testify to the chain of custody and what's on the video instead? Compel them to produce it?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 May 2017 @ 4:22pm

      Re: So, can they compel?

      That would seem to me to be the appropriate path. If Axon has the evidence, they should be served with a subpoena to provide it.

      But this ignores the bigger issue: they are currently in breach of California privacy law, as is everyone who has been providing or retrieving video of a juvenile subject via the site.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 May 2017 @ 5:11am

        Re: Re: So, can they compel?

        SInce when can juveniles, or any other person, be exempt from being recorded in public places? I presume this does not include bits about asking for personally identifiable information but otherwise it ought to be public record from the moment it's recorded. That's the meaning of "in public" on the one hand and the duty of the government to share all "public" information it has with The Public on the other.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 May 2017 @ 7:17am

          Re: Re: Re: So, can they compel?

          Since when can juveniles, or any other person, be exempt from being recorded in public places?

          Since California passed a law saying that. That's how this works. It's why "in public" means what it does, because we have laws defining it.

          More broadly, police cameras cover a lot of things which are not "in public". If they show up at your house to arrest you, the inside of your house does not qualify as a "public place" just because police are now inside of it. "Public place" does not translate to "anywhere where a police camera is."

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 May 2017 @ 1:38pm

    They are making themselves a State Actor

    By integrating themselves into the legal process and holding the copies of videos that prosecution and defense both require for legal purposes, they have created a legal quandary. They do not have the right to do what they have done, but having done so already makes this a slam dunk for everyone who has evidence held by them and can't get it without signing away the right to your evidence. The police have agreed to let a 3rd party suddenly be front and center in the law enforcement problems, without bothering to consider the long term implications. It sounds like every police department that has done this without state approval, needs to be replaced.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 8 May 2017 @ 1:58pm

    The legal system writing their own comedy routines

    I can't wait to hear what some judges have to say about the lack of discovery production. I am not hopeful that they will say the right thing, but I expect that some of the hemming and hawing will certainly be entertaining.

    They should, unanimously, grind the DA's and their minions into fish food and toss all prosecutions that fail to produce, automatically, as they are legally required to do.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 8 May 2017 @ 2:28pm

      Re: The legal system writing their own comedy routines

      I guess I should add, they can pay Axon all they want, so long as they do not use our money.

      reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 8 May 2017 @ 2:55pm

    There appears to be a simple solution...

    ...but, is pirated evidence admissible in court?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 May 2017 @ 3:25pm

    The courts should be very worried about this because if Axon/Taser, Evidence.com has possession of this evidence, it means that the chain of custody has been broken and that it has also been tampered with. Axon simply is not a duly authorized law enforcement agency and Axon is a private company. Not only that, but they are also violating privacy laws by holding onto evidence where a minor is concerned.

    Expect major lawsuits to be filed against Axon. What a great way to re-brand yourself by tampering with evidence. Nowhere in the "due process" clause of the constitution does it state you must sign a licensing agreement in order to gain access to evidence against your client. Not even an amendment has been passed to update the "due process" clause because it is ridiculous to place such a burden on a defendant.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 May 2017 @ 6:41am

      Re:

      Scouts ruled a few times, correctly, that gov cannot force a citizen to enter into contract with private third party. Sample of buying broccoli comes to mind.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Hero, 8 May 2017 @ 3:57pm

    I volunteer...

    ...to sign up for Axon, request the materials a defense attorney needs, and then make them publicly available for download by anyone who wants it, including the defense attorney. Axon can then come after me. Might be a bit trick since I'm not a US resident.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 May 2017 @ 4:09pm

    The comments here got abstract real quick... maybe roll it back a bit and just say the obvious guys... Axon / Taser is a real piece of shit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 May 2017 @ 4:21pm

    The videos nor evidence is intellectual property by any stretch.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 8 May 2017 @ 4:48pm

      Re:

      Indeed. And any copyright claim has to be by assignment, and since the DA doesn't use a body cam, then the DA cannot assign that copyright. Might it also be argued that the copyright belongs to the public, as it might be a work for hire, and the public hires the police who do wear the body cams?

      The other possibility is that the individual wearing the body cam has the copyright, but I have my doubts, and doubts that they individually assigned the copyrights to Axon.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 May 2017 @ 4:49pm

    I thought that during discovery, the court could subpoena evidence - I was unaware of any strings. Are they going to challenge the judicial?

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 8 May 2017 @ 5:16pm

    Should be interesting...

    Should be interesting when lots of video gets released because of a data breach.

    I wonder if it'll get used for blackmailing cops.

    reply to this | link to this | view in chronology ]

  • identicon
    Erik, 8 May 2017 @ 6:28pm

    State actor?

    Can the case be made that since they are holding public records at the request of a public entity that they are a state actor? I would think that would invalidate any contract.

    What if someone FOIAs the info?

    reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 8 May 2017 @ 6:44pm

    Some stories of old....

    In my *personal* experience, the police and the courts do not actually believe their records are public, and that they believe it is possible to control what you do with them.

    Sure, you can look it up...if you come downtown... (meaning you are rich enough to afford the time). No, we won't tell you, you don't need to know. There's PACER fees, and Georgia suing Carl Malamud over the annotated Georgia revised code, and oh yeah, if you want your building code it's copyright and paywall ASME or NFPA.

    I don't think they've quite come to understand that once a record goes onto the internet these days, it's for the world to see. With security the way it is, it isn't clear that something doesn't become (eventually) available as soon as it is on an internet-connected computer.

    Truly "sealing" juvenile records is going to require some serious diligence on the part of the police that I just don't see happening, and a serious conversation about who has the right to release all that body cam footage -- the cops took a picture of me, I have a privacy interest. But I do see a few police departments in the future not only morally bankrupt but also fiscally bankrupt.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 May 2017 @ 5:26am

    Idiocracy II: The World View of Axon

    Can you say, "subpoena"?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 May 2017 @ 8:37am

    Future Clause

    Look forward to future changes in the EULA "If you are accused of a crime or are an agent of someone accused of a crime depicted within footage from the archive you agree to plead guily." You want evidence for discovery, no problem just agree to a guilty plea.

    reply to this | link to this | view in chronology ]

  • identicon
    RubberBabyBuggyBumper, 9 May 2017 @ 10:11am

    I smell a class action lawsuit. Of course the end results will be Axiom gets to keep doing what they are doing, class attorneys get millions of dollars and class members get a box of chicklets and some onerous process to request their records get removed.

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 9 May 2017 @ 8:36pm

    Interesting Problem

    In some areas, evidence collected by the state, such as these recordings, is discoverable. If you are representing the defendant, you have a right to the evidence.

    If the state has, for whatever reason, entrusted the evidence to some third party, then it will be up to the state to retrieve it and furnish it. Otherwise, having put potentially exculpatory evidence out of reach, you have a fairly bad <i>Brady</p> [373 U.S. 83] problem.

    I do not normally do criminal, I am not licensed in your state, and I am not your lawyer.

    reply to this | link to this | view in chronology ]


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