from the arrested-for-not-doing-the-impossible dept
Back in December, we noted that, somewhat ridiculously, all of the super popular Whatsapp service (owned by Facebook) was blocked in Brazil, because Facebook refused to reveal information on Whatsapp users as part of a drug trafficking investigation. While the court only allowed the block to last for a little while, apparently things have escalated, with a senior Facebook exec now being arrested for failing to cooperate in this case:
Facebook’s vice president for Latin America has been arrested on his way to work in São Paulo, Brazil. Federal police picked up Diego Dzodan because Facebook disobeyed a court order to help investigators in a drug case that involves a WhatsApp user.
The arrest was made at the request of officials from the state of Sergipe, in Brazil’s north-east. In a statement, the federal police said Facebook/WhatsApp had repeatedly failed to comply with court orders relating to an organized crime and drug-trafficking investigation.
This reminds me, somewhat of the case where some Google execs were tried and convicted in Italy, because they didn't take down a video fast enough (the company took it down, just not fast enough). While the underlying issues are different, arresting execs of tech companies because you don't like the way they operate their business seems like a good way to make sure innovative internet services are not offered in your country at all. And, in this case, where Facebook relies on strong encryption in Whatsapp, it seems likely that the issue may be that it was impossible to comply with the court order in this case (though the full details are not yet known). Either way, arresting an exec over this seems extremely troubling -- especially in a country such as Brazil that has been trying to set itself up as a strong supporter of a free and open internet, and that had argued against surveillance.
from the a-prison-sentence-for-your-(secondhand)-thoughts? dept
Social media platforms are the best (unwitting) honeypots. The FBI continues to prowl public posts on Twitter, Facebook, etc. for "suspicious" material. Whatever triggers the FBI's counterterrorism spidey senses is followed shortly thereafter with subpoenas for user info. This is then followed up by DOJ press releases announcing the successful capture of another dangerous individual.
An Akron, Ohio, man was arrested today on federal charges that he solicited the murder of members of the U.S. military.
Terrence J. McNeil, 25, appeared in U.S. District Court in the Northern District of Ohio after being charged with one count of solicitation of a crime of violence.
The charge was announced by Assistant Attorney General John P. Carlin, U.S. Attorney Steven M. Dettelbach of the Northern District of Ohio and Special Agent in Charge Stephen D. Anthony of the FBI’s Cleveland Division.
“According to the allegations in the complaint, Terrence McNeil solicited the murder of members of our military by disseminating ISIL’s violent rhetoric, circulating detailed U.S. military personnel information, and explicitly calling for the killing of American service members in their homes and communities,” said Assistant Attorney General Carlin. “ISIL and its followers continue to use social media in an attempt to incite violence around the world, including in the United States. The National Security Division's highest priority is counterterrorism and we will use all of our tools to disrupt threats and acts of violence against our military members and their families.”
And just one day after Veteran's Day, as the press release points out. (That would be the arrest, not the post. The reblogging occurred on September 24th. Optics, people.) The complaint details McNeil's social media interactions and postings -- under multiple accounts. Tucked in amongst the banalities of everyday social media life are McNeil's more inflammatory posts (and reposts). The FBI already had him under surveillance by the time he posted the thing that bothered the agency the most.
A man from Akron, Ohio, who has supported the Islamic State online was arrested by federal authorities Thursday and charged because he allegedly "reblogged" a GIF on Tumblr that called for attacks on members of the U.S. military.
The GIF, under the banner "Islamic State Hacking Division," reportedly loops through "several dozen photographs, purportedly of U.S. military personnel, along with their respective name, address and military branch," according to a Justice Department press release.
"Kill them in their own lands, behead them in their own homes, stab them to death as they walk their streets thinking that they are safe," the GIF reportedly stated. McNeil allegedly reblogged the GIF on Sept. 24.
Is a "reblog" the same thing as uttering the threat yourself? This nuance is likely to be lost during the upcoming prosecution. Certainly, it will be argued that "reposts are not endorsements," to paraphrase the Twitter profile stock phrase slightly.
What's in the affidavit shows McNeil apparently had an affinity for ISIS. Whether or not it would have led to anything but spirited reblogging is impossible to determine. At one point, another Tumblr user asked whether his pro-ISIS postings represented the "real" him. His answer?
Somewhat about 60%, if it was 100% I would be in jail
McNeil obviously miscalculated this ratio.
The FBI's affidavit contains little more than a thorough recounting of McNeil's ISIS/Islam-related social media posts. There's nothing in there that suggests McNeil was anything more than someone who made a bunch of ill-advised posts about ISIS and Islam. Reposting someone else's threats isn't really the same thing as rolling your own. But it's apparently enough to result in criminal charges.
The FBI may yet uncover evidence of something more malicious lurking under McNeil's "talks big on Tumblr" exterior. An expansive search warrant attached to the affidavit not only grants the FBI permission to perform forensic examinations of every electronic device in McNeil's possession, but to seize nearly everything else in his possession, including papers, documents, bank records, receipts, weapons, ammo, photos, airplane tickets, "tactical head coverings," and, because this is the way the government does things:
United States Currency in excess of $500.00, precious metals and gems, gold coins, jewelry and financial instruments, including stocks and bonds, deeds of trust, sales contracts, vehicle instruments and artwork.
It looks like McNeil will be getting a public defender, since $500 doesn't buy much lawyering -- not in a case involving alleged threats to kill military personnel. The government hasn't secured a conviction and nowhere in its affidavit does it even suggest McNeil's money came from any other source than his job at a local hospital. But it's going to take it anyway.
As Reilly points out, FBI director James Comey hasn't exactly made it clear what sort of reposting/retweeting will more likely result in federal charges. This was his answer in response to questions after the FBI arrested a Virginia teen for retweeting pro-ISIS tweets. Comey believes the line between benign and nefarious is "pretty darn clear." It isn't, but it's the government that has the privilege of making the initial determination. The rest will be sorted out in court… unless, of course, the DOJ is able to coax obviously impressionable and not overly-bright young men into plea agreements, in which case, no further determinations will be made.
An Argentinian programmer who was trying to do a good thing in exposing severe vulnerabilities in the country's e-voting system was rewarded for his actions -- with a police raid on his home. According to Argentinian news outlet La Nación, Joaquín Sorianello informed MSA, the company than makes the Vot.ar e-voting system, that the SSL certificates used by the system to encrypt transmissions between the voting stations and the central election office could be easily downloaded, allowing for potential voting fraud (or just a good old-fashioned DDOS attack).
Sorianello, who says he never received a phone call from MSA after reaching out to the company to report the flaw, suddenly found his home being raided by Argentinian police, who seized computers, Kindles, and numerous storage devices (from a Google translation of the source):
"The truth is amazing, you notify the company that they have a failure in their voting system and the next thing they do is (raid my home) instead of looking for the real culprits..."I'm just a programmer, I'm not a hacker." Sorianello told La Nacion that he contacted the police station in Caballito to corroborate the raid: "They said yes, but they could not tell me why or how it was going to take." He also said he did not receive any call from the company (after having told them about the flaw a week) ago."
Sorianello has pointed out to numerous news outlets that he's a programmer -- not a hacker, and if he had wanted to hack into the systems to cause damage, he certainly wouldn't have informed the company of the flaw first. He's also repeatedly pointed out that it was the protected @FraudeVotar Twitter account that published the core details of the e-voting internals, not him. That apparently didn't matter to the Argentinian legal system.
This isn't the first problem facing MSA and its e-voting technology, which is being used in Buenos Aires elections for the first time. Two weeks ago, the source code for the company's Vot.ar technology was leaked to Git.hub. A number of researchers also discovered that a smartphone with NFC capabilities (pretty common at this point) could be used to create a specialized e-ballot, capable of tricking the system into counting a single vote numerous times. And this is all before you realize that in many instances, the technology Argentina is using just doesn't appear to work very well:
"Earlier today, the Argentinian site La Política Online reported that 532 polling stations were unable to transmit their results electronically to the central electoral office, and had to be transported there physically for the 184,000 votes involved to be included in the final result. As the article points out, although this failure won't change the outcome of the election for the head of local government in Buenos Aires, it will make a difference to the allocation of seats in the legislature and community boards."
So not only is MSA's e-voting system completely open to several vectors of fraud and attack, it works so damn well you need to physically move the machines back to the central office to count the tallied votes. Meanwhile, Argentinian locals are claiming that the same Judge that thought it was a good idea to authorize the police raid on Sorianello's home, has also ordered Argentinian ISPs to block many of the websites where details on the e-voting flaws and source code can be found (like justpaste.it). Surely if you stop people from discussing the obvious flaws, the problem magically goes away, right?
As we've seen with countless other e-voting scandals of this type, you can't operate a secure, successful e-voting system without trust. And you certainly don't gain the public's trust by shooting as many messengers as possible and playing a futile game of Whac-a-mole censorship with those who point out your system is utterly and painfully flawed. What you do successfully accomplish is make it perfectly clear that you appear to like the fact your electoral process can now be rigged.
The Pasco County Sheriff's Office has charged Domanik Green, an eighth-grader at Paul R. Smith Middle School, with an offense against a computer system and unauthorized access, a felony. Sheriff Chris Nocco said Thursday that Green logged onto the school's network on March 31 using an administrative-level password without permission. He then changed the background image on a teacher's computer to one showing two men kissing.
Seemingly everyone at every level of government wants to talk about cybersecurity. Most of what's discussed is delivered in the breathless cadence of a lifetime paranoiac. (Won't someone think of the poor multimillion-dollar studios?!!?) This school is one level of government. So is the sheriff's office. Both felt the 14-year-old's actions were severe enough to warrant felony charges. Why? Because somebody hacked something. If you can even call it "hacking…"
Green had previously received a three-day suspension for accessing the system inappropriately. Other students also got in trouble at the time, he said. It was a well-known trick, Green said, because the password was easy to remember: a teacher's last name. He said he discovered it by watching the teacher type it in.
The teen changed a computer's wallpaper and was able to do so because the most basic of security precautions weren't taken. Multiple students took advantage of this lax security to access computers with webcams so they could chat "face-to-face" while utilizing the school's network.
The school got all bent out of shape because some of the computers accessed contained encrypted test questions. It turned the student over to law enforcement because it deemed his "breach" of its system too "serious" to be handled by just a 10-day suspension. It had him arrested because of things he could have done, rather than the thing he actually did.
One of the computers Green, 14, accessed also had encrypted 2014 FCAT questions stored on it, though the sheriff and Pasco County School District officials said Green did not view or tamper with those files.
And yet, Sheriff Chris Nocco is still looking to prosecute a 14-year-old for attempting to annoy one of his teachers. Here's the student's description of what he did.
"So I logged out of that computer [because that computer didn't have a webcam] and logged into a different one and I logged into a teacher's computer who I didn't like and tried putting inappropriate pictures onto his computer to annoy him," Green said.
Here's Sheriff Nocco's statement:
"Even though some might say this is just a teenage prank, who knows what this teenager might have done," Nocco said.
Well... you do know what "he might have done," Sheriff Nocco. And yet, your response to this situation is to hand out felony charges to a teen for something he might have done? Is that the way law enforcement is really supposed to work? [The FBI has issued the following statement: "That's the way it works for us. Almost exclusively."]
He told you exactly what he did and why he did it. Your own investigative efforts confirmed he never accessed the oh-so-untouchable FCAT questions. Incredibly, Sheriff Nocco wants to not only punish this student for something he might have done, but any other teens who might do stuff.
The sheriff said Green's case should be a warning to other students: "If information comes back to us and we get evidence (that other kids have done it), they're going to face the same consequences," Nocco said.
Sheriff Nocco: I will arrest and charge teens with felonies for annoying educators and/or exposing their inability to make even the most minimal effort to keep their computers secure. If I lived in this county, I'd be very concerned that law enforcement officials are keen on the idea of arresting and prosecuting teens for stuff they didn't do (access test questions) or things they might have done (TBD as needed for maximum damage to teens' futures).
A San Francisco deputy public defender was handcuffed and arrested at the Hall of Justice after she objected to city police officers questioning her client outside a courtroom…
Here's the video:
The two responses gathered by SFGate show the divide between those who represent the accused and those who haul inconvenient people away so they can continue their "work" unimpeded.
...an incident that her office called outrageous and police officials defended as appropriate.
The public defender, Jami Tillotson, was charged with the one-size-fits-all-who-give-us-any-lip crime of "resisting arrest." This charge doesn't work the way people expect it would, much to their anger, dismay and surprise. One would think that the police would need to be arresting you for a different crime and, after encountering some resistance, add "resisting arrest" to the charges. But no, apparently "resisting arrest" simply means not doing what cops say to do, no matter the legality of the request.
Tillotson was representing her client in a misdemeanor theft case. The police wanted to chat with him about an unrelated case in which he was "a person of interest." Presumably the photo-taking was part of building a lineup.
Now, the Sixth Amendment only guarantees the right to an attorney during criminal prosecution. But being a "person of interest" presents its own problems, what with it usually leading to questioning centered on gathering incriminating evidence -- either against the person being questioned or someone else on the list of suspects.
As an American citizen, you can always refuse to answer questions, especially when you're not in custody. Easier said than done, though, which is why the option of referring law enforcement to a lawyer is always on the table. Of course, police officers will try to avoid this possiblity, usually by framing the questioning as an innocuous, purely voluntary chat. They get irritated, though, when people realize this and tell them to talk to their lawyer or continually ask if they're free to go.
So, while Tillotson's attempt to defend her client from questioning related to a different crime may not have fallen under guaranteed Sixth Amendment protections, her willingness to protect her client from additional police questioning certainly falls within the bounds of what she (and her client) are legally allowed to do in a situation like this (i.e., "Talk to my lawyer.")
But the police weren't interested in speaking to a lawyer. They wanted to take pictures and ask questions without the "interference" of someone who knew how the system works. So, they arrested her for resisting arrest -- which, as the video shows, she was very clearly NOTDOING BEFORE, AFTER OR DURING THE ARREST.
Tillotson objected to the arrest, but she placed her hands behind her back and allowed police to cuff her. She never struggled or otherwise impeded the officers in their duty -- which was [WARNING: circular reasoning ahead] TO ARREST HER FOR RESISTING ARREST.
It's a mindbending, oxymoronic, ugly display of force, where might = right and anyone standing in the way of an investigation needs to GTFO. With cuffs.
Even the law prof [Is it impossible to get quotes from actual lawyers with "in the trenches" experience? Are there really that few of them?] quoted by SFGate -- who believes Tillotson erred by inserting herself between police and their "person of interest" -- had this to say about the PD's actions.
[Hadar Aviram] added, “Regardless of where the constitutional disposition is, the attorney was in no way being violent or resisting arrest or being disruptive in any way. It’s extreme and it’s bad press for (the police). I’m surprised.”
I'm not. Many officers -- far too many -- simply don't care what the public thinks of them or their actions. The detective captured here on video is among that number.
Over the weekend in Paris there was a so-called "Unity March" in response to last week's Charlie Hebdo attack. The photographs from the march were striking -- even if the famed photo of many world leaders holding hands and marching together turned out to a photo op on a closed street, rather than with the rest of the marchers. And, of course, this was all a facade. Many of the leaders who were there oversee governments that don't believe in free speech or a free press at all. Here, for example, is Jillian York trying to figure out if any of the leaders truly support freedom of expression.
And, to just put a big underline on the whole thing, just days later, France has arrested a famous and controverisal French comedian, Dieudonné, who has quite a reputation for his outspoken anti-semitism. The arrest was over a Facebook post that Dieudonné put up that basically mocked the "Je Suis Charlie" campaign that had become the rallying cry following the Charlie Hebdo attack, and instead indicated that he identified more with Amédy Coulibaly, a gunman who killed four people at a Jewish supermarket on Friday.
Dieudonné's views may be offensive, ridiculous or despicable, but it's much more offensive, ridiculous and despicable to have him arrested for a comment on Facebook. And, it's even more ridiculous to do it when his comment concerns the way people were expressing support for freedom of the press and freedom of expression.
To then immediately arrest someone for using that freedom to give a counter-view, just seems ridiculous.
And while it's the most high profile, Dieudonné is hardly the only target, apparently. According to the BBC, France has really ramped up attacks on free speech in response to all this damn support of free speech:
The justice ministry said earlier that 54 cases had been opened since the murders of 17 people in Paris last week. Of those, 37 cases involved condoning terrorism and 12 were for threatening to carry out terrorist acts.
Some fast-track custodial sentences have already been handed down under anti-terror legislation passed last November
A man of 22 was jailed on Tuesday for a year for posting a video mocking one of the three murdered policemen
A drunk driver was given four years in prison after making threats against the police who arrested him
Three men in their twenties were jailed in Toulouse for condoning terrorism
A man of 20 was jailed in Orleans for shouting "long live the Kalash[(nikov]" at police in a shopping center
Hey, France, I don't quite think you're getting the message. "I support free speech... so long as it is free speech that I sort of agree with" kind of misses the point. The views of some of these people expressing support for killers or terrorists or hatred towards certain types of people is speech that I find, personally, to be despicable. But those expressing it should be allowed to express it -- broadcasting their own confusion and ignorance to the world, and allowing others to counter that speech. Arresting people based on their speech only reinforces the ridiculous idea that they've come upon some truth or that they're speaking "truth to power." They're not. They're speaking nonsense, but in a free society we allow nonsense to be spoken.
Pulaski County Prosecuting Attorney Larry Jegley said he will issue an arrest affidavit today against Rodney Forte, the executive director of the Metropolitan Housing Alliance in Little Rock, for a violation of the Arkansas Freedom of Information Act.
Any person who negligently violates any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punished by a fine of not more than two hundred dollars ($200) or thirty (30) days in jail, or both, or a sentence of appropriate public service or education, or both.
It's nice to see someone following the letter of the law. Not following the letter of the law (and steamrolling its spirit) is what put Forte in the prosecutor's sights. Forte had decided to greet a FOIA request he didn't want to fulfill with the time-honored anti-FOIA tactic of pricing his agency out of the market.
The action comes after the Metropolitan Housing Alliance sent an invoice to the Arkansas Democrat-Gazette late Tuesday,charging more than $16,000 to hire outside workers to help the agency comply with a records-release request -- a practice the Little Rock city attorney and other Arkansas Freedom of Information Act experts say is illegal.
It may be illegal, but plenty of agencies do it without suffering anything more than a loss in the court of public opinion. Sure, they may eventually face lawsuits, but that's really just public money being spent in defense of a publicly-funded agency's desire to keep the public separated from public documents. It's about as painful to the offending agency as being punched in someone else's wallet.
This particular form of enforcement is rarely (if ever) deployed, although Arkansas seems to be more aggressive than most states when it comes to punishing violators. In Jegley's 23 years as a county prosecutor, he's never seen this happen. Usually some sort of compromise between requester and requestee is reached before it gets to this point. But that hasn't happened in this dispute, which has been ongoing for several months now -- even involving Little Rock's mayor's intervention on behalf of the requesting party, the Arkansas Democrat-Gazette.
Little Rock Mayor Mark Stodola contacted Forte on Wednesday in an attempt to intervene in the latest dispute over records. Stodola is a former Little Rock city attorney and Pulaski County prosecutor.
"I am not familiar with any request for payment for such a large nature as this and based on my interpretation of the Freedom of Information Act, the computer systems that the agency has are required to make this information readily available," Stodola said.
"These kinds of document requests are routine, and when I was prosecutor, virtually all of this kind of information [at most agencies] is kept in an electronic format that can be downloaded quite easily."
Forte claims proprietary software is involved and all documents would need to be printed and scanned before they could be released, but has failed to detail what software the agency is using or released any other technical details. He has also hasn't discussed his agency's failure to comply with another section of the state's FOIA law.
Arkansas Code Annotated 25-19-105 (g) states that any software acquired by an agency "shall be in full compliance with the requirements" of the Freedom of Information Act and "shall not impede public access to records in electronic form."
So, Jegley has answered Forte's obfuscatory power play with one of his own. At this point, Forte's arrest is in the hands of a judge. Jegley still needs to turn his affidavit into a warrant, at which point it may expand to include others involved in the Metropolitan Housing Authority's $16,000 fiasco.
Hopefully, this move will force the documents out of the agency's hands. Clearly, there's something in there it wants hidden -- something likely related to agency's addition of a $92,000/yr deputy executive director during a period when it was shedding nearly a third of its staff and reducing pay to non-salaried employees.
Even if this goes nowhere, it's still incredibly refreshing to see public servants acting to hold other public servants accountable. Other states should take a good look at Arkansas' FOIA law and think about giving their own a few teeth by making violations an arrestable offense.
We've certainly questioned the efforts by the City of London Police to set themselves up as the legacy entertainment industry's private police force. Over the past year or so, the police operation (which, yes, represents just one square mile of London, but a square mile with lots of big important businesses), has demonstrated that it will be extremely aggressive, not in fighting criminal wrongdoing, but in protecting the private business interests of some legacy companies, often with little to no legal basis. It also appears that the City of London's famed Police Intellectual Property Crime Unit (PIPCU) is not particularly technology savvy, and seems to just accept what big record labels, movie studios and the like tell it.
In the last few months, the City of London Police's PIPCU effort has even gone on a bit of an arresting spree, under questionable circumstances. We noted in August that they had arrested the operator of an anti-censorship proxy service, almost entirely based on the say so of the entertainment industry. In September, PIPCU took a 200+ mile drive up the road to arrest Zain Parvez to great fanfare. PIPCU insisted that Parvez was running a series of streaming sites related to sporting events, and was infringing on the rights of the Premier League (notorious copyright maximalists). PIPCU claimed it was an "industrial scale" operation, and tossed Parvez in jail.
Fast forward a few weeks and... all charges against Parvez have been dropped. Apparently, once the case reached the Manchester Crown Court and the Crown Prosecution Services looked at it, they realized how weak a case there was, and simply dropped the whole thing. Given PIPCU's previous statements and actions, this hardly seems surprising. PIPCU and the City of London Police appear to be the latest in an unfortunately long line of folks who think that copyright infringement is such a black-and-white/open-and-shut thing that you can just declare someone "guilty" based on some questionable assumptions and it's obvious for everyone to understand why.
Perhaps, the UK's Intellectual Property Office, rather than funding PIPCU to be the legacy industry's personal police force, should have spent those resources actually training them to understand technology, due process and such.
Police in Northern California beat and tased a mentally ill man before siccing a dog on him, then turning on citizens who recorded the incident, confiscating cell phones and in one case, ordering a witness to delete his footage.
But one video survived anyway, slightly longer than two minutes, where a cop from the Antioch Police Department can be heard saying he wants cameras confiscated right before the video stops.
The video is shot at a distance that makes it unclear as to how much damage is being done, although you can hear the meaty sound of someone being struck several times, as well as the nearly nonstop barking of the police dog and crackling bursts of Taser fire. Being filmed vertically doesn't help, although I'm generally of the opinion that simply collecting footage that wouldn't normally be captured is always useful and whatever makes the person filming most comfortable (seeing as it's generally a very uncomfortable situation) is the method they should use. The recording also shows the arrival of more officers, as though the nearly invisible civilian at the bottom of the cop pile (which begins with 5 officers and a police dog) was on the verge of escaping the whole time.
Towards the end of a video, an officer pulls his squad car directly in front of the "scene" in an obvious attempt to limit the amount of onlookers with damning recordings. Shortly after that (and after the video ends), the cops started attempting to seize "evidence."
A second witness ABC7 News spoke to says officers began confiscating cellphones from anyone who shot video of the incident. An officer asked for his cellphone after he shot video and the witness said, “Then he took my phone anyway because I didn’t want no problems. He emailed the incident to his phone.
The first witness said, “They didn’t take no for an answer apparently because they pulled one lady out of her vehicle to get it, and she wouldn’t give it up and they were about to arrest her and finally they let her go because I believe she gave it up.”
However, a third witness told ABC7 News he was ordered to erase his video. So he did. He said, “They were being kind of controlling, like demanding, ‘erase your phone’ and they were trying to take people’s phones away.”
No surprises here. Excessive force deployed, followed by a roundup of "witnesses," which actually means recording equipment and not human beings. The police have no right to do this, but in far too many cases, they assume the public either doesn't know this, or can easily be intimidated into complying with the unlawful request.
Here's the absolute bullshit the police department handed over in defense of its ad hoc phone confiscation:
Antioch police told ABC7 News in a statement, “If a person is not willing to turn it over voluntarily, an officer can sometimes seize the device containing the video. The police would have to get a search warrant to retrieve the video from the device.”
As Carlos Miller points out, this is completely wrong and has been wrong for a few years now. Guidelines from the Department of Justice passed down in 2012 state the exact opposite. Police can ask for compliance, but they need to be extremely careful in how they ask.
A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings and the types of circumstances that do—and do not—provide exigent circumstances to seize recording devices, the permissible length of such a seizure, and the prohibition against warrantless searches once a device has been seized. Policies should include language to ensure that consent is not coerced, implicitly or explicitly…
Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”
Cops tend to claim that footage of police misconduct is "evidence" in order to justify warrantless cellphone seizures. It may very well be, but it's the sort of evidence they want to hide, rather than the sort of evidence they'd like to retain. Note that the above officers ordered people to "delete" recordings, something they wouldn't do if the recordings held actual evidence of a crime (or at least, a crime not committed by uniformed officers). Either way, crime or no crime, the police can't just start seizing phones as "evidence." The DOJ guidelines go on to say:
The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct.The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice.
So, cops know -- or should know -- they can't do this. And I firmly believe most of them know this. The problem is that they just don't care. The quickest "fix" is swift seizures of recordings using baseless arrest threats and other forms of intimidation. It's an instinctual closing of ranks. Once the requisite dozen or so officers needed to affect an arrest had been met, one of the officers originally in the one-sided melee stands back and says he wants "that cellphone and that cellphone." Well, he can't have them. Not legally. And yet, officers apparently got what they wanted -- rather than what they could legally obtain -- in the end.
from the i'd-say-everyone's-familiar-with-this-song,-but... dept
So, it's come to this: the heightened paranoia surrounding all things kid- and school-related, post-Newtown (but also post- other school shootings as well) has managed to turn nearly everything into a potential menace. It's one thing to be cautious and alert for warning signs or veiled threats. It's quite another to turn a recorded rendition of the "Fresh Prince of Bel-Air" theme into a police matter.
First, from the increasingly stupid United States of America, a story of how a teen’s life got flip-turned upside down. You see, he was just on the playground where he spent most of his days, minding his own business. You know, chilling out, maxing, relaxing all cool and sometimes with this friends he liked to be shooting some b-ball outside of the school.
WAIT. DID HE JUST SAY SHOOT AND SCHOOL IN THE SAME SENTENCE? ARREST HIM! Once you’re done laughing, know that that’s exactly what happened to 19-year old Travis Clawson because a doctor’s office called his voicemail to confirm an appointment, heard the above line, thought he was shooting people outside the school and called cops. Who arrested him first, then spent the 20 seconds it takes to realize it’s the theme song from Fresh Prince of Bel-Air. No word on whether Carlton showed up to dance and everyone laughed at him.
A few things to note:
1. This was the teen's voicemail greeting. It wasn't as if he was calling the school and making threats. It's highly doubtful that criminals (or aspiring criminals) are leaving records of their future exploits as voicemail greetings. Gideon doesn't seem convinced this is a thing.
Also: is this a thing now? People leave notes of their criminal intent as voicemail messages? "Hi, you've reached my cellphone. I'm unavailable right now because I'm robbing that Stop-n-Go on Orchard and Willard. Leave me a message and I'll get back to you when I get out in 5-20 years because I'm stupid enough to leave --- BEEP."
2. The police arrested the student for something that took likely less than a minute to explain. Couldn't this have been handled with a little in-person questioning, rather than escalating the situation immediately by arresting first, questioning second? I understand that the word "b-ball" could possibly be misheard as "people" and the receptionist probably did the right thing by notifying law enforcement, but it still seems as though this could all have been sorted out in a five minute discussion.
3. This isn't noted in Gideon's commentary, but the police had the teen's school (along with the rest of the district) go into lockdown mode while they searched for the Will Smith-quoting "gunman." From there, it gets even more ridiculous:
The call to 911 forced the entire district into lockdown for about 30 minutes and police said they detained the 19-year-old student for three hours while searching his locker, before determining that it was all one big misunderstanding.
Never mind what I said about point 2. I know it's often said that we should "err on the side of caution," but, seriously, three hours to "search a locker?" Obviously, no one bothered asking the teen anything about the message until they ran about 2:50 off the clock.
Officer Mike Natale says, "[The teen] was afraid and embarrassed." No kidding. I would imagine more of the first than the second. Three hours being detained by police while under lockdown and not being given any hint as to what started the whole debacle would make anyone, possibly even an actual criminal, "afraid."
In wxpi.com's story, the police officer states that the teen "had learned from his mistake" (towards the end of the video). Really? What mistake? There are plenty of mistakes in this story, but a teen recording one of the most well-known TV theme songs as an outgoing voicemail message isn't one of them.