After 48 Years, DC Appeals Court Overturns Murder Conviction Based On FBI's Garbage 'Hair Match' Evidence

Legal Issues

from the yes,-i-have-a-doctorate-in-magnification dept

For decades, the FBI pushed junk science on the courts, resulting in the wrongful convictions of an untold number of people. It wasn’t until 2009 that it started trying to undo the damage. And even then, the FBI wasn’t 100% sure it shouldn’t hold onto to at least some of its favorite junk, even if it had been repeatedly shown there was very little verifiable science behind their expert witnesses’ assertions.

All that seemed to matter were the convictions. Appealing a conviction is hard work — something that takes years to do and requires the assistance of experienced lawyers. The damage has been done and the FBI’s belated recognition of its contribution to the farce that is our criminal justice system isn’t going to give back years of wrongfully-obtained lives.

By the FBI’s own admission, “nearly every” forensic expert deployed to criminal trials gave flawed testimony that overstated the certainty of their findings. This included experts testifying about fingerprints, DNA, and hair analysis, not just those discussing complete garbage like bite-mark matching or asserting mass-produced clothing is as unique as someone’s fingerprints.

The DC Appeals Court has just overturned a conviction based on faulty hair match analysis. It comes nearly fifty years after the conviction, meaning the government exchanged bad testimony for most of a person’s life. The opening of the decision [PDF] lays out the facts concisely.

Almost fifty years ago, appellant Dennis Butler was convicted of murder. At his trial, an FBI forensic expert testified that hairs found on the victim were microscopically identical to Butler’s hair. The government recently acknowledged, though, that hair evidence of the kind introduced against Butler was false and exceeded the limits of science, and that the prosecution knew or should have known as much at the time of his trial.

Butler has spent decades in prison because the FBI spent decades saying having a microscope was the same thing as being a scientist. The court says it’s not even close… and it’s a statement made using the FBI’s own findings.

Hair microscopy called for forensic examiners to conduct side-by-side, microscopic comparisons of hair samples in an effort to ascertain whether hairs from a crime scene matched hairs from a suspect. The government used ostensible matches at trial as scientific evidence linking defendants to crimes.

There was, however, a significant problem with that field of analysis: science had not validated its foundational premises. Existing studies failed to support a trained examiner’s ability to identify a “match” based on any objective system of visual hair comparison or to validly estimate the frequency of hair characteristics (and therefore of matches) in the general population.

This lack of scientific confirmation didn’t stop the FBI from using hair matches in court, even after it knew the “science” behind it was lacking. It wasn’t until the National Academy of Sciences called the FBI out in its report on hair analysis that the FBI began reining in its expert witnesses. Following this public fisking by actual scientists, the government reviewed thousands of convictions obtained with hair analysis prior to the year 2000. Butler’s was one of them.

So, the question is: did the prosecution rely on the FBI’s faulty testimony to secure this conviction? The answer is “yes.” The government’s evidence (beyond the supposed hair match) were two unreliable witnesses whose stories changed frequently, some paint chips (from the recently-painted apartment Butler had visited while it was being painted), and some eyewitnesses who put Butler near the crime scene (with the prosecution dodging the fact that Butler was often in the area where the murder took place for non-murderous reasons).

Here’s the prosecutor during closing arguments, discussing the expert witness’ testimony.

He said when he compared the hairs that were found on the victim’s clothing with the defendant’s hairs that were taken by [the detective] from him at the infirmary, when he compared those two, what were they? They were the same in every microscopic detail, the same. I said, how often . . . does it happen? You can’t be positive, yes, but how often does it happen that two people’s hair, two different people, are so similar and so alike that you would be unable to tell? Out of 10,000 examinations, he said he recalls it happening approximately four times.

And again:

You have the FBI report saying that this man’s hair compared with the hairs found on the body of the dead man. They are the same in every microscopic characteristic—every one. You heard the sixteen possible combinations, lack thereof, etc. Every one matched.

This influenced the jurors, the Appeals Court says. The jurors could have found the other evidence circumstantial, at best. But the repeated (incorrect) assertion that hair match analysis could positively identify Butler as the murderer most likely swayed the jury, resulting in a conviction that resulted in Butler being behind bars since late 1970.

We found it satisfied in Ausby, and we do likewise here. And we thus conclude that the government’s presentation against Butler of evidence that it knew (or should have known) was false denied him a fair trial.

For the foregoing reasons, we reverse the judgment of the district court and remand with instructions to grant Butler’s motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

The FBI convinced itself it could craft new forensic techniques out of thin air and deploy them without making sure they actually had some scientific basis. This is the end result of this hubris — acts that took decades to correct and even longer to result in actual justice, rather than unearned convictions. Some of the people screwed by the FBI’s junk science are already dead. Others, like Butler, may finally see their lives given back to them — but with hardly any life left to live.

Filed Under: dennis butler, false convictions, fbi, hair match

Appeals Court Says Parents Can Continue Suing The Three Mesquite Police Officers Who Helped Kill Their Son

Legal Issues

from the wheels-of-justice-continue-inching-forward dept

It has been nearly seven years since 18-year-old Graham Dyer died due to injuries he sustained while riding in the back of Mesquite (TX) Police car. Dyer, all of 5’4″ and 110 pounds, was picked up by Mesquite officers while experiencing a bad acid trip. Dyer had no idea what was happening to him or where he was. As the officers transported him to jail, he thrashed around in the back of the patrol car, ultimately slamming his head into the seat, window, and metal bars forty-six times.

The officers never bothered to restrain him. But they did stop the car to head into the back seat to tase him, including one prolonged burst (eight seconds) delivered directly to Dyer’s testicles. Dyer’s parents had no idea what had happened to their son, who was picked up in good health (bad trip notwithstanding) but was dead less than 24 hours later. The Mesquite PD refused to release any records of this arrest to Dyer’s parents. The Dyers finally obtained some records, but from the FBI, which had been called in to investigate the in-custody death.

Armed with these records, the Dyers sued the officers and paramedics who handled the arrest and the less-than-adequate care their son received. The paramedics have been dismissed from the lawsuit, but most of the allegations against the officers survive. Two of the three officers involved are still facing the Dyers’ lawsuit. And the Fifth Circuit Appeals Court has just thrown the third officer back into the mix, stripping the qualified immunity the lower court awarded him.

The Appeals Court says the lower court made the right call for two of the officers, who are facing deliberate indifference claims for apparently not caring at all the arrestee they were delivering to jail was possibly seriously injured. From the decision [PDF]:

The district court correctly found a genuine dispute concerning whether Gafford and Heidelburg were deliberately indifferent to the serious medical needs of a detainee in their custody. A reasonable trier of fact could find that those Officers were aware that Graham, in the grip of a drug-induced psychosis, struck his head violently against the interior of Heidelburg’s patrol car over 40 times en route to jail and thereby sustained severe head trauma. Both Officers told Graham to stop hitting his head and Heidelburg even pulled his patrol car over in an effort to stop him. Gafford acknowledged that, during his encounter with Graham, he knew “[t]here could be some inherent dangers” associated with head trauma; Heidelburg testified that what Graham was doing “certainly could” cause a head injury. Yet the Officers sought no medical care for Graham when they arrived at the jail. Nor did they alert jail officers (who had no way of knowing what had happened en route to the jail) of the possibility that Graham had seriously injured himself. The record instead reflects that the jail sergeant was “[i]nformed by [the] transport officers [that] Dyer had been medically cleared at the scene.”

As the court noted there, “no officer” informed jail staff about Dyer’s possible injuries. That includes Officer Zachary Scott, who was also aware of Dyer’s unrestrained thrashing in the back of the patrol car, but similarly chose to say nothing about it.

The district court found the Dyers “failed to present evidence that [Scott was] aware of facts indicating a risk of injury and inferred a risk of injury to Graham.” True, Scott’s affidavit stated he “never observed anything or any action by anyone which might cause a head injury on the part of [Graham],” nor did he “observe[] anything to indicate [Graham] might have any serious injury.” But his deposition testimony was quite different. Scott testified he assumed Heidelburg pulled the patrol car over because Graham “was banging his head.” Scott also testified he tried “to prevent [Graham] from banging his head on the back of the car.” Lastly, Scott stated he did not tell the jail sergeant about Graham slamming his head, nor did he recall hearing anyone else report it.

None of the officers seemingly cared if Dyer lived or died or even got a second look from jail medical staff. Dyer died and now all three officers will face deliberate indifference claims from Dyer’s parents.

[I]n this case a reasonable jury could find that (1) Graham violently bashed his head against the interior of Officer Heidelburg’s patrol car over 40 times while en route to jail; (2) Officers Heidelburg, Gafford, and Scott were fully aware of Graham’s actions and of their serious danger; (3) the Officers sought no medical attention for Graham; and (4) upon arriving at jail, the Officers failed to inform jail officials what Graham had done to himself, telling them only that Graham had been “medically cleared” at the scene. From this evidence, a reasonable jury could conclude that the Officers “were either aware or should have been aware, because it was so obvious, of an unjustifiably high risk to [Graham’s] health,” did nothing to seek medical attention, and even misstated the severity of Graham’s condition to those who could have sought help.

Let’s hope the jury is reasonable, because everything about these officers’ actions isn’t. The officers chose to handle a small teen’s horrific drug reaction by subjecting him to further horrors, including several tasings. The audio from the in-car camera caught one officer telling the traumatized Dyer, “Motherfucker, I’m going to kill you.” And so he did. Maybe not immediately, but that was the end result of these officers’ actions — actions that included choosing not to inform anyone about the multiple head injuries Dyer suffered while in their “care.”

Filed Under: 5th circuit, graham dyer, mesquite, police, qualified immunity, texas

NYC Mayor Asks Residents To Snitch On Social Distancing Violators, Gets Dick Pics And Hitler Memes Instead

Culture

from the socially-distance-THIS-yo dept

“See something, say something” but for the coronavirus. How could it possibly go wrong?

Everyone put your hands down. Of course we know how it could go wrong. Opening up the lines to callers never works. The DHS knows this, even if it chooses to ignore this. Years of “see something, say something” did nothing more than fill its data stores with reports from curtain twitchers about things their brown neighbors were doing and do-gooding randos calling in everyone they saw walking around with a camera.

The home to the most “every Muslim is a suspect” city in the US should have known better than to open up a snitch line to the public. But officials like Governor Andrew Cuomo have already shown they’re unable to fathom the concept of unintended consequences. Cuomo issued a mandate for mask-wearing in public while allowing an anti-mask law to run concurrently, inviting state law enforcement officers to engage in very selective enforcement.

Without a doubt, the state has a COVID problem. But doing dumb shit isn’t going to fix it. At best, it’s just going to tie up city resources.

Enter NYC Mayor Bill De Blasio. A city in the deep throes of a pandemic needs solid leadership. This isn’t it. This is only something that seems sort of useful until someone gives it a few seconds of thought.

On April 18, Mayor De Blasio took decisive action in an effort to curb the spread of the coronavirus:

If you see someone failing to practice social distancing, rat them out, Mayor Bill de Blasio urged Saturday as part of a new city effort to corral the coronavirus.

“We still know there’s some people who need to get the message. And that means sometimes making sure the enforcement is there to educate people and make clear we’ve got to have social distancing,” Hizzoner said in a video posted to Twitter

To do that, is “simple,” he explained.

Snap a photo of an offending person or crowd, set the location on the image, and text it to 311-692.

I don’t know what he expected, but anyone who’s had any internet experience knows what the public will do when it’s given access to a government hotline (or an internet poll, etc.).

Photos of extended middle fingers, the mayor dropping the Staten Island groundhog and news coverage of him going to the gym have all been texted to a special tip line that de Blasio announced Saturday, according to screenshots posted on Twitter.

Believe it or not, that’s the better stuff. The government wanted the public to respond and respond the public did. Emphatically and obscenely.

An NYPD source said that “dick pic” photos of real penises have also been texted to 311, and a caller phoned in a tip that de Blasio was seen performing oral sex on someone “in an alleyway behind a 7-11” early Sunday.

Feeling any safer, New York? If you ask people to become informants, you’re going to have to sift through a lot of bullshit. If you ask people to report their neighbors for being in the proximity of other people, you’re going to get Hitler references and dick pics. And if you haven’t prepared for this inevitable eventuality, you’re going to have to cut off your access to the very small amount of genuine tips to clean out all the garbage you didn’t realized you’d asked for.

City Hall confirmed Tuesday that the 311 text line was shuttered to clear out a backlog of crank complaints on Sunday.

The solution isn’t a new tip line that’s going to quickly turn into an IRL 4Chan. The solution is to let existing systems handle the influx and hope for the best. Yes, too many people still use 911 and dispatch lines like all-purpose complaint boxes but asking New Yorkers to snitch on each other for being social was never going to work out well.

People are already feeling the encroachment of the government as the pandemic wears on. Asking residents to be part of the perceived problem is always going to result in little-a anarchy. Government officials never seem to understand most Americans think being a snitch is pretty much un-American. This is something we expect authoritarian nations to do: turn citizens against each other. We don’t care for it much in the Land of the Free. There will always be outliers willing to sell the person across the street out to the fuzz, but most Americans would rather let their fingers (or other appendages) fly when the government asks them to be unpaid informants.

Filed Under: 311, bill deblasio, covid-19, new york, nyc, say something, see something, snitch line, social distancing, tipline

Federal Court Dismisses Twitter's Long-Running Lawsuit Over NSL Reporting

Legal Issues

from the tiny-win-in-the-margins dept

All the way back in 2014, Twitter sued the DOJ over its National Security Letter reporting restrictions. NSLs are the FBI’s weapon of choice in all sorts of investigations. And they almost exclusively come packaged with lifetime bans on discussing them publicly or disclosing the government’s request for info to NSL targets.

Things changed a little with the passage of the USA Freedom Act and a couple of related court decisions. The DOJ is now required to periodically review NSLs to see if the ongoing silence is justified. The Act also finally provided a way for companies to challenge gag orders, which has resulted in a somewhat steady stream of published NSLs.

What’s still forbidden is publishing an actual count of NSLs a company has received. Supposedly the security of the nation would be threatened if Twitter said it had received 118 NSLs last year, rather than “0-499.” The reforms in the USA Freedom Act didn’t change that aspect of NSL reporting and the government still argues any accurate reporting would allow the terrorists to win… or somehow avoid being targeted by an NSL.

Twitter argued the publication of an accurate number was protected speech. The government, of course, argued the opposite. The federal judge handling the case ruled that accurate reporting wasn’t protected speech back in 2016, but did say Twitter could move forward with its challenge of the classification of this data.

Roughly a year later, the court changed its mind. The government’s motion to dismiss was denied by the court, which said it needed to come up with better arguments if it wanted to escape Twitter’s lawsuit. The court pointed out that denying Twitter the right to accurately report NSLs was a content-based restriction that couldn’t be justified by the government’s bare bones assertions about national security.

Nearly three years later, we’re back to where we were four years ago. The court has dismissed Twitter’s lawsuit, denying its attempt to escape the “banding” restrictions that limit the transparency it can provide to its users. (via Politico)

The decision [PDF] — which ends nearly six years of litigation — says the court believes the things the government says about detailed NSL reporting. Since these declarations tend to be delivered in ex parte hearings and/or under seal, we have to believe them, too. Actual numbers are more dangerous than vague numbers.

The declarations explain the gravity of the risks inherent in disclosure of the information that the Government has prohibited Twitter from stating in its Draft Transparency Report, including a sufficiently specific explanation of the reasons disclosure of mere aggregate numbers, even years after the relevant time period in the Draft Transparency Report, could be expected to give rise to grave or imminent harm to the national security. The Court finds that the declarations contain sufficient factual detail to justify the Government’s classification of the aggregate information in Twitter’s 2014 Draft Transparency Report on the grounds that the information would be likely to lead to grave or imminent harm to the national security, and that no more narrow tailoring of the restrictions can be made.

And that’s it. The restrictions stay in place and recipients of NSLs will only be able to deliver government-approved information about them. The good news is there’s a bit of a loophole — one the court discusses in a footnote. The DOJ may want to restrict almost all NSL reporting, but the court isn’t convinced companies can be limited to using the DOJ-approved “bands” only.

The [complaint] alleges a facial constitutional challenge to FISA’s secrecy provisions to the extent they categorically prohibit the reporting of aggregate data. The Court does not find that they do so restrict the aggregate data at issue here. The Government has, in part, argued that FISA’s statutory nondisclosure provisions, applicable to the existence and contents of individual orders, logically prohibit reporting of aggregate data about the number of such orders. The Court has never found the Government’s logic persuasive on this point. The requirement not to disclose a particular order is completely distinct from disclosing the aggregate number of orders.

This seems to say companies can accurately report the total number of NSLs they’ve received, rather than using the far more vague 0-499, etc. reporting they’ve been limited to. It’s not a lot but it’s an improvement.

Filed Under: fisa warrants, national security, nsl reporting, transparency, transparency reports
Companies: twitter

New York's Governor Hands Down A Mask Mandate While The State's Anti-Mask Law Remains On The Books

Legal Issues

from the house-divided-against-itself-can-still-disproportionately-arrest-young-black-men dept

The spread of the coronavirus throughout the nation is turning some old laws into new ridiculousness. One of the hardest hit areas in the US is New York, which has nearly 30% of the nation’s total cases. This has led to lockdown orders and spread deterrent efforts more severe than seen elsewhere in the country.

One of the new mandates handed down by Governor Andrew Cuomo is a mask requirement when in public. The executive order that went into effect a few days ago says this:

Effective at 8 p.m. on Friday, April 17, 2020 any individual who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance.  

Sounds good and necessary, but as appellate public defender Sam Feldman points out on Twitter, this executive order conflicts with a law that’s been around since the middle of the 19th century. That’s going to be a problem.

If you can’t read/see the tweets, Feldman says the new order does not suspend Penal Law § 240.35(4), which has been in existence since 1845. People trying to follow the executive order may find themselves engaging in criminal behavior. Here’s Feldman:

As of 8pm tonight, wearing a mask in public places around other people who are also wearing masks is both forbidden and required by New York law. I’m sure the police will enforce these contradictory mandates in a completely rational & nondiscriminatory fashion.

Here’s the law that’s still on the books while the governor is mandating mask-wearing:

Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place;  except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities…

Perhaps the swiftest (or at least most entertaining) resolution would be for Governor Cuomo to issue an executive order declaring the entire state a “masquerade party” until the COVID-19 threats subsides. It might be the best thing for Cuomo himself, who appears to have run afoul of the law by “knowingly permitting or aiding persons so masked or disguised to congregate in a public place.”

Given the law’s origins, maybe it’s time to take it off the books. Unlike others in the nation targeting KKK members, this one was a response to the “Anti-Rent War” in which protests by tenants culminated in a battle between anti-renters and local law enforcement. Some protesters disguised themselves as Indians, leading to the anti-mask ordinance. Rent is a pretty hot topic at the moment, what with 22 million Americans now unemployed. With planned rent strikes on the way in New York City, the new mask mandate is likely to run head on into the state’s anti-mask law once law enforcement arrives on the scene.

A mask-wearing mandate coupled with an anti-mask law is selective enforcement just waiting to happen. And if it’s anything like the last few hundred years of selective law enforcement, it will be minorities who pay the price for conflicting messages. We’ve already seen this happening elsewhere in the nation, where social distancing mandates are being enforced against minorities who throw parties but ignored when a bunch of white people decide stay-at-home orders violate their god-given right to act as attack vectors during a pandemic. Leaving it up to police officers to decide whether a person wearing a mask is a compliant citizen or a lawbreaker is going to result in a lot of blown judgment calls.

Filed Under: andrew cuomo, anti-mask law, covid-19, executive order, mask mandate, masks, new york

Oversight Board Calls Out Austin PD For Revamping Policies To Minimize Citizen Complaints

Failures

from the [PD-divests-trustworthiness] dept

The Austin (TX) police department barely avoided being hit with a DOJ consent decree a little over a decade ago. The sheer number of recommendations makes you wonder where the consent decree bar sits at the DOJ.

The U.S. Department of Justice has made 160 recommendations to improve Austin Police Department policies and procedures, as part of the ongoing federal investigation of department practices. APD Chief Art Acevedo said Jan. 5 that his department has implemented, or is in the process of implementing, the majority of the recommendations, outlined in a 50-page letter of “technical assistance” delivered to city officials late last month.

If the name Art Acevedo rings a bell, it’s because he’s now the head of another problematic police department. Acevedo runs the Houston Police Department — now mostly known for being the home of corrupt cops, who strung together a bunch of lies to engage in a drug raid that resulted in the senseless killing of two residents.

The DOJ also recommended the APD make it easier for citizens to file complaints.

A majority of the DOJ recommendations involve policies governing police use of force. The DOJ also makes substantive suggestions on how citizen complaints should be classified and reviewed by Internal Affairs and recommendations that emphasize the need for comprehensive and ongoing police training.

The city did set up an Office of Police Oversight to facilitate the filing of complaints against police officers. The Office is supposed to provide a layer of independent oversight. But investigations are still performed by the Austin PD personnel, which makes this a bit of a closed loop.

Grits for Breakfast reports the Austin PD is looking to close the loop even further by revamping the complaint process. Nothing about the alterations will make it easier for citizens to file complaints or for the PD’s independent overseers to, you know, actually oversee the process. Maybe it’s just bureaucracy rather than malice, but the re-categorization of complaints seems geared towards making it more difficult for everyone (outside of the PD, that is) involved.

Without getting too deep into the weeds, the new orders… changed how complaints submitted to the OPO are classified by the department. Previously, there were three complaint categories at the OPO: formal complaints, supervisor referrals, and citizen concerns. Now, “citizen concerns” will be recorded as “external information,” and may be closed by IA upon initial categorization with no investigation required.

Supervisor referrals, bizarrely, will now be categorized as “citizen concerns,” while a new category called ‘Minor Policy Violations’ will now be labeled “supervisor referrals.” Got that?

Finally, incoming complaints historically are categorized A, B, C, or D, depending on an initial assessment of their validity/severity by either IA or the officer’s supervisor. Another big change is that only those classified A or B will now be considered “formal” complaints.

The weeds are indeed very deep. This nonsensical reclassification of complaints is listed towards the end of a 783-page PDF. (The section on “Administrative Investigations” starts at page 548.) The new designations seem designed to obscure the origin of the complaints and to facilitate the wrist-slapping of misbehaving officers.

This hasn’t escaped the attention of the Office of Police Oversight. A letter [PDF] to the PD from its director, Farah Muscadin, calls the PD out for needlessly complicating the complaint review process.

The OPO asserts that this unnecessary change and filtering of complaint data will mislead the public and continue to feed a false narrative that complaints filed with the OPO against APD are not rigorously assessed. More importantly, it will leave complainants without any meaningful resolution or sense of procedural justice. Furthermore, the OPO contends that this new category is detrimental to the established process and attempts to minimize complaints from the public. The OPO recommends that “minor policy violations” continue to be handled through the OFCA process already outlined in APD policy.

And that’s not all. It’s more than just making the process complicated for the apparent purpose of making citizen complaints more difficult to identify and track. The PD also ignored recommendations from the oversight committee even though it specifically asked the Office of Police Oversight for its input. The letter points out the Department’s Internal Affairs office has been particularly resistant to Oversight suggestions, refusing to sign a joint agreement that would have made the complaint process an actual collaboration between the OPO and APD. Instead, the PD has decided it can handle citizen complaints on its own without outside input. Without this, the APD becomes its own oversight and literally any police department in the nation can demonstrate why allowing law enforcement agencies to self-police is a terrible idea.

The Austin PD is not alone in its thwarting of its oversight. It’s a longstanding law enforcement tradition that reaches all the way up to the agencies the DOJ directly oversees. That’s a shame. But law enforcement agencies have proven themselves shameless. When given the opportunity to restore trust and repair relationships with the communities they serve, they opt for obfuscation and opacity almost every time.

Filed Under: austin, austin police department, citizen complaints, consent decree, doj

Another Federal Court Says Chalking Tires Is A Violation Of The Fourth Amendment

Privacy

from the bring-on-the-touchless-surveillance dept

In one of the more surprising Fourth Amendment decisions ever handed down, the Sixth Circuit Court of Appeals ruled “chalking” tires for parking enforcement was a search and, as such, violated the Constitution. The ruling, handed down last spring, sided with the plaintiff. It found that the use of chalk to mark tires for parking enforcement was an investigative act. The intrusion onto citizens’ private property — their cars — for investigative reasons (rather than the community caretaking function the government claimed) was impermissible without a warrant, even if the cars were parked on public streets.

The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

As is stated above, the Appeals Court didn’t say the city wouldn’t ultimately prevail, but that it couldn’t prevail on the arguments made in this case. A trespass is a trespass, even if it’s only with a piece of chalk. Parking enforcement officers use chalk to determine whether criminal infractions have occurred. That’s an investigation, not caretaking. And the case returned to the lower court for a second pass with the Appeals Court’s jurisprudence in mind.

This case, via Orin Kerr, is similar. But it originates in the Ninth Circuit. Nevertheless, the judge in this case applies the Sixth Circuit’s ruling to the facts to find that chalking tires is a search under the Fourth Amendment. Taking into account this ruling — along with the Supreme Court’s ruling on the warrantless attachment of GPS trackers to people’s cars — the California federal court says this trespass violates Constitutional rights, no matter how minimal the trespass. From the decision [PDF]:

Considering Jones, a technical trespass occurs when there is unauthorized physical intrusion. Jones, 565 U.S. at 420 (Sotomayor, J., concurring). Although Jones does not outline the boundaries of how intrusive this unauthorized physical intrusion must be to be considered a trespass, the Supreme Court found that the physical contact of a GPS beeper to the undercarriage of a car was sufficient, even though the actual contact of the beeper did not cause any damage to the defendant’s effect.

Here, considering whether the Defendants’ conduct was trespassory, the Court finds Plaintiffs have pled sufficient facts to establish their claim. Defendants physically placed chalk marks on the tires of vehicles. Although this contact does not cause outward damage to Plaintiffs’ property, it is a technical trespass nonetheless.

Moreover, constitutionally protected areas include persons’ papers, houses, and effects. U.S. Const. amend. IV. This case involves constitutionally protected personal property – personal vehicles – belonging to the Plaintiffs. Once a technical trespass has been established, it must also be shown that the trespass is conjoined with an attempt to obtain information.

This is a fairly evident point established both in Jones and here. In Jones, the police used the installed beeper to track the defendant for investigatory purposes. Here, the police chalked Plaintiffs’ tires to obtain information as to whether Plaintiffs violated the parking limitations in order to issue a citation.

Chalking could still be permitted if the search is reasonable or supported by an exception to the Fourth Amendment. Community caretaking doesn’t work, even if the court says chalking isn’t necessarily always investigatory.

Although tire chalking is arguably divorced from investigation, it is unclear whether there is a public safety risk to justify the Defendants’ actions. Defendants have merely offered that it applies to address the “immediate need for safety in the City’s rights of way.” Accordingly, the Court finds Defendants are not entitled to dismissal under the community caretaking doctrine at this juncture.  

Neither does the “special needs” exception. While “maintaining order in the public ways” is in the public interest, the method of doing this involves an unjustified trespass that exceeds what’s needed to accomplish this goal. The privacy expectation inherent in people’s cars outweighs the government’s needs under this exception.

There is also no “implied license” exercised in the act of parking on a public street… at least not when it comes to allowing literally unwarranted trespasses by the government.

It is possible that law enforcement has an implied license to touch a vehicle in the same manner, and for the same purpose, as a private citizen distributing advertisements, but does not have an implied license to make contact for the purpose of investigating whether a violation of law has occurred. Defendants’ position seemingly ignores the purpose behind the two types of action: one is innocuous while the other is investigatory. On its face, the practice of chalking tires seems more investigatory than innocuous…

Like the Sixth Circuit, the California court doesn’t say there’s no way the government will be able to talk it into continuing to mark tires without a warrant. But it’s not willing to dismiss the lawsuit at this point. For now, chalking tires in this federal district is an invitation to be sued.

Filed Under: 4th amendment, 9th circuit, chalking tires, parking enforcement, search, trespass

Cybersecurity Firm Finds A Bunch Of Clearview's Secret Stuff Sitting Around In An Poorly-Secured Cloud Storage Bucket

Failures

from the just-scraping-it-from-the-unsecured-web-so-to-speak dept

As if we needed any further evidence that Clearview is a terrible company. The web-scraping, facial recognition provider has been pitching its unproven tech to an assortment of law enforcement agencies, one-percenters, and questionable governments for a little while now. It shows no sign of slowing down either, no matter how many people (including members of Congress) are now aware of its business practices and cheerful exploitation of billions of images found all over the web.

Someone grabbed a few internal Clearview documents and shared them with BuzzFeed earlier this year. Maybe they shouldn’t have bothered. Clearview likes harvesting data and images as quickly as possible. But it’s apparently less concerned with keeping its scraped stash secure from outsiders. As Zack Whittaker reports for TechCrunch, Clearview’s internal files have been accessed by a security researcher, giving us yet another reason to distrust Hoan Ton-That’s company.

Mossab Hussein, chief security officer at Dubai-based cybersecurity firm SpiderSilk, found the repository storing Clearview’s source code. Although the repository was protected with a password, a misconfigured setting allowed anyone to register as a new user to log in to the system storing the code.

The repository contained Clearview’s source code, which could be used to compile and run the apps from scratch. The repository also stored some of the company’s secret keys and credentials, which granted access to Clearview’s cloud storage buckets. Inside those buckets, Clearview stored copies of its finished Windows, Mac and Android apps, as well as its iOS app, which Apple recently blocked for violating its rules. The storage buckets also contained early, pre-release developer app versions that are typically only for testing, Hussein said.

If you’ve ever wanted to roll your own affront to humanity, Clearview helpfully left a starter kit out in the open. Of course, it’s nothing without a few billion scraped images, so it’s not exactly an all-in-one-kit. Maybe some Clearview insider could have hooked Hussein up with its stash of personal info. Couldn’t have hurt to ask. And he could have. Included in the repository were the company’s Slack tokens, which would have allowed anyone to access the company’s internal communications. Also included in the storage buckets: 70,000 security cam videos of residents entering and leaving a residential building.

Hussein did disclose this issue to Clearview, but declined to take the offered bug bounty since it would have forbidden him from publicly discussing his findings. For refusing to shut up, Hussein was thanked by being called a criminal by Clearview’s founder.

Ton-That accused the research firm of extortion, but emails between Clearview and SpiderSilk paint a different picture.

Lovely. Well, I’m sure this won’t be the last public gaffe by the Company Most Likely To Trigger New Privacy Legislation (State or Federal). People have seen things Clearview never wanted them to see. And they’ve shared this stuff with the public, which now knows quite a bit about this app-based embodiment of oversharing and the damage done. It’s in the midst of a very Ring-esque news cycle where every bit of new reporting makes it look even worse. But unlike Ring, it doesn’t have the billions of Amazon to back it when its fortunes start to fade.

Filed Under: facial recognition, leaks, mossab hussein, security, source code
Companies: clearview, clearview ai, spidersilk