Court Dumps Almost All Of A New York Sax Player's Lawsuit Against Fortnite Over Use Of His 'Likeness'

Culture

from the beginning-of-the-end-of-emote-based-litigation dept

Last year, a New York saxophonist decided Fortnite was going to make him rich. He wasn’t going to livestream his gameplay or join the development team. Instead he, like far too many others, decided a Fortnite “emote” had ripped off something of his: his “likeness.”

Joining such illustrious and aggrieved stars like Alfonso Ribeiro and… um… “Backpack Kid,” Leo Pellegrino decided a sax-playing emote took his personality and gave it away to Fortnite players. His legal reps managed to ignore the fact the “emote” played a tenor sax, rather than Pellegrino’s signature bass sax, along with some recorded evidence that the emote in question might actually be an homage to a completely different saxophonist.

The court has now weighed in on Pellegrino’s suit and found there’s (almost) nothing in it he can sue about. Eric Goldman’s post on the ruling opens with this fun fact about the plaintiff.

Pellegrino is a saxophone player with “externally rotatable feet,” which has helped him develop a nifty “signature” dance move while playing.

So, Pellegrino has that going for him. But really nothing else. The court [PDF] has this to say about the alleged use of Pellegrino’s “likeness” by Fortnite.

Applying the test as articulated in Hart, we observe that the Complaint does not allege that the Fortnite avatars equipped with the Phone It In emote, i.e., Pellegrino’s likeness, share Pellegrino’s appearance or biographical information. Indeed, the Complaint contains a picture of a Fortnite avatar equipped with the Phone It In emote, and the avatar does not bear a strong resemblance to Pellegrino. The Complaint also alleges that Fortnite players can customize their avatars with “new characters” and a variety of emotes mimicking celebrities other than Pellegrino. The Complaint further alleges that the avatars fight in a battle royale and can execute emotes like Phone It In “while in the Fortnite Universe,” amidst “us[ing] weapons and violence to eliminate the competition,”, whereas Pellegrino is alleged to be a musical performer who executes his Signature Move at musical performances. These allegations establish that the avatars in Fortnite do not share Pellegrino’s identity nor do what Pellegrino does in real life. We therefore conclude that Epic’s use of Pellegrino’s likeness is sufficiently transformative under the Transformative Use Test to provide it with First Amendment protections that are not outweighed by Pellegrino’s interests in his likeness.

Pellegrino’s right to publicity and privacy claims are dead, partially undone by Pellegrino’s own filing which inadvertently pointed out the transformative aspects of the Fortnite emote. His unjust enrichment claim is equally faulty as Pellegrino can’t show any agreement was reached between him and Epic Games, making it impossible for Fortnite to have unlawfully taken anything it had agreed to give to Pellegrino.

There’s no judicial sympathy for Pellegrino’s extremely-distended unfair competition claims either.

Epic maintains that the Complaint alleges that Epic is a video game publisher and that Pellegrino is a saxophone player, and thus, the parties supply different goods. Indeed, the Complaint alleges that Pellegrino is a saxophone player, a member of “two brass-based musical groups” and performs music at musical performances. In contrast, the Complaint alleges that Epic develops and sells video games. Based on these allegations, it is plain that the parties do not supply similar goods or services. Pellegrino nevertheless maintains that the parties are competitors “in the field of selling dance performances” because Epic sells emotes that are “virtual dance performances.” Pellegrino, however, provides no case law, and we are aware of no case law, that would support such a broad construction of “competitor.

The only thing that survives the court’s examination is Pellegrino’s “false endorsement” claim. And that just barely does. The court says it could be argued the use of Pellegrino’s likeness falsely suggests Pellegrino endorses Fortnite, but since the court has already said the use is transformative, it’s unlikely Fortnite players are drawing this conclusion from the Phone It emote.

Every other claim is dismissed with prejudice, with the court pointing out there’s zero chance Pellegrino could somehow amend his complaint into something actionable. This was an opportunistic lawsuit, pushed by an opportunistic firm. It should have been dead after the first motion to dismiss. That it wasn’t isn’t a reflection on the merits of Pellegrino’s lawsuit. Allowing one claim to move forward is only going to cost Pellegrino more money while giving him almost no chance of succeeding. If Epic moves for a fee shift after prevailing, it will cost him even more.

Filed Under: avatars, dance moves, emotes, false endorsement, fortnite, leo pellegrino, likeness rights, publicity rights
Companies: epic games

Red Light Camera Company Says It's Dying Of Coronavirus

(Mis)Uses of Technology

from the putting-it-out-of-our-misery dept

Things change. And the stuff that used to work just doesn’t anymore. We’ve covered a lot of this over the years, mainly focusing on how the rise of the internet was greeted with rent-seeking and protectionist policies meant to extend the upper hand that incumbent industries had enjoyed for years.

But things are changing elsewhere, outside of industries reliant on intellectual property protection and Congressionally-approved monopolies. Marijuana is being legalized (or at least decriminalized) all over the nation, resulting in an upheaval of sorts in the drug dog industry. According to a few law enforcement officials, drug dogs can’t live full lives without sniffing drugs and marijuana legalization is probably just going to result in some mercy killings. A life that doesn’t involve being run around a car during an illegally-extended pretextual stop apparently isn’t worth living.

We are again being asked to shed a tear for a law enforcement-adjacent industry. Social distancing and sheltering-in-place in response to the coronavirus has led to a downturn in driving. And if there’s fewer drivers on the road, proxy cops are seeing their revenue streams dry up.

Redflex, an Australian company that operates “traffic safety programs” in roughly 100 US and Canadian cities, warned that less traffic and suspended construction amid the pandemic will be a stress on its balance sheet.

“Approximately 15% of group revenue is dependent on volume-based contracts,” the company said in a regulatory filing Monday first spotted by The Wall Street Journal, hinting at its business line that includes enforcement cameras. “We anticipate our revenue from these contracts will be impacted broadly in line with the reduction in traffic volumes as well as the duration of the disruption.”

Yeah, that’s a real shame. It’s too bad a company that engaged in bribery to grab market share won’t be able to weather this unexpected downturn in questionably-obtained income. There are several competitors in the crowded “worst traffic cam ever” field, but Redflex did everything it could to stay ahead of the pack. This behavior resulted in other unexpected downturns, like refunding millions of dollars of tickets in multiple locations due to the tech’s inability to do the little things… like accurately judge vehicle speed.

Hope springs eternal at Redflex, even with COVID-19’s wet blanket dampening the company’s enthusiasm.

On a call with investors Monday, Redflex CEO Mark Talbot warned that further travel restrictions could delay new installations and therefore impact revenues.

Let’s hope there are no more installations ever, even if drivers return to the roads to undo the environmental damage reduction they inadvertently contributed to by staying home. Redflex is a terrible company with terrible ethics and terrible products. Its tech remains unproven, years after deployment. If the virus manages to take out Redflex, we’ll at least have one thing to thank the pandemic for.

Filed Under: covid-19, pandemic, red-light cameras, tickets
Companies: redflex

NSO Fires Back At Facebook, Says It's Not Responsible For Malware Deployments By Foreign Governments

Legal Issues

from the fair-point-but-doesn't-really-make-NSO-Group-look-any-better dept

NSO Group has finally decided to engage in the lawsuit Facebook filed against it late last year. The Israeli surveillance tech company has shown itself to be pretty cavalier about its market expansion plans. Despite being located in a country surrounded by unfriendly governments, NSO is more than willing to give Israel’s enemies something to use against it. Its client list includes Saudi Arabia, United Arab Emirates, Bahrain, and Kazakhstan.

Facebook’s lawsuit is questionable and if it wins, it would cause a lot of damage. Facebook is unhappy NSO software uses WhatsApp to deliver malware payloads to targets. But seeking precedent that would criminalize terms of service violations isn’t going to help anyone, much less stop NSO from using encrypted messaging apps as attack vectors.

NSO is now firing back. And it makes a point that’s true, if not all that sympathetic. It is not its customers. Much like the gun dealer who sells the gun eventually used in a mass shooting, NSO’s sales of malware to governments that use them in questionable ways isn’t really NSO’s fault. It may have provided the surveillance tech, but it is not telling governments who to target or participating in the surveillance directly.

In its first substantive legal filing in the case, filed last week, NSO hit back at WhatsApp and its parent company, Facebook, which it said were seen by governments as “safe spaces for terrorists and other criminals” who – without NSO’s services – could operate “without fear of detection by law enforcement”.

NSO Group also argued that WhatsApp had “conflated” NSO Group’s actions with the actions of NSO’s “sovereign customers”. While NSO Group licenses its signature spying technology, Pegasus, to government law enforcement and intelligence agencies and assists with “training, setup, and installation”, it said it did not operate the technology.

This is NSO arguing it cannot be held responsible for the actions of others. If Facebook doesn’t like what these governments are doing with NSO’s tech, it’s welcome to sue those governments directly. Not that those lawsuits would succeed. We’re not the only nation that extends sovereign immunity to government agencies. That’s standard operating procedure around the world. This is what NSO is hoping will convince the court to toss the suit.

“For that reason,” the company said in the filing, “permitting this litigation to proceed would infringe critical national security and foreign policy concerns of sovereign governments”.

NSO is also fighting back with a little dirt of its own. Long before it was sued by Facebook, it spent a little time discussing its spyware with the company.

In October 2017, NSO was approached by two Facebook representatives who asked to purchase the right to use certain capabilities of Pegasus, the same NSO software discussed in Plaintiffs’ Complaint.

The Facebook representatives stated that Facebook was concerned that its method for gathering user data through Onavo Protect was less effective on Apple devices than on Android devices. The Facebook representatives also stated that Facebook wanted to use purported capabilities of Pegasus to monitor users on Apple devices and were willing to pay for the ability to monitor Onavo Protect users. Facebook proposed to pay NSO a monthly fee for each Onavo Protect user.

Onavo was Facebook’s VPN — one that had little to do with offering privacy to its users. It may have shielded them from others attempting to take a look at their web traffic, but it didn’t do anything to prevent Facebook from collecting tons of data on users, which included a whole lot of minors. It was booted from Apple’s App Store in 2018 for hoovering up too much sensitive data. Roughly six months later, Facebook killed the faux VPN for good.

Facebook claims this is an “inaccurate” portrayal of its meeting with NSO, but it’s not like Facebook has much credibility on the privacy front. Its thirst for data has been unquenchable and its mitigation attempts have been provoked by Congressional inquiries and years of work by privacy activists. It hasn’t suddenly become altruistic.

Facebook is right to be concerned about the use of WhatsApp to spread malware. But this lawsuit that attempts to use the already badly-abused CFAA to cover things Facebook doesn’t like other people doing is going to cause collateral damage to researchers and journalists, rather than prevent NSO from selling WhatsApp-exploiting malware to government agencies.

Filed Under: cfaa, governments, hacking, liability, malware, privacy
Companies: facebook, nso, whatsapp

Another Coronavirus Side Effect: In-Home Surveillance By Remote Workers' Employers

(Mis)Uses of Technology

from the spyware-but-for-people's-faces dept

Well, it took a pandemic to normalize domestic surveillance by [checks notes] employers. Not sure if this is the dystopia we needed or the one we deserved, but the shelter-in-place policies that have turned lots of office workers into telecommuters has led to incredible growth in one particular market sector.

With so many people working remotely because of the coronavirus, surveillance software is flying off the virtual shelves.

“Companies have been scrambling,” said Brad Miller, CEO of surveillance-software maker InterGuard. “They’re trying to allow their employees to work from home but trying to maintain a level of security and productivity.”

Axos spokesman Gregory Frost said in a statement that “the enhanced monitoring of at-home employees we implemented will ensure that those members of our workforce who work from home will continue” to meet quality and productivity standards that are expected from all workers.

This new surveillance obviously doesn’t extend to the executive levels of these companies. It’s the rank-and-file that will feel it the most — the same that have been subjected to always-on monitoring of their computer and internet use while at the office.

It’s another system — one that can be gamed just as easily as those deployed in the workplace. Actually, these will probably be gamed even more easily considering some companies are using weird metrics like “emails sent” to gauge worker productivity.

But there’s more to it than virtual bean-counting and hall-monitoring. The spyware that works-from-home will also alert clients if employees engage in certain behavior.

Managers using InterGuard’s software can be notified if an employee does a combination of worrisome behaviors, such as printing both a confidential client list and a resume, an indication that someone is quitting and taking their book of business with them.

Companies that don’t want to pay extra for snooping software are relying on existing systems to make sure their employees are earning their paychecks. But these methods are even more intrusive than software specifically crafted to track telecommuter productivity.

“I’ve heard from multiple people whose employers have asked them to stay logged into a video call all day while they work,” said Alison Green, founder of the workplace-advice website Ask a Manager.

Slightly less intrusive than this low-tech “solution” is a new product that acts like a low-power CCTV camera installed by proxy in every telecommuting employees’ home.

In order to keep productivity high while working remotely, some companies are turning to tools like Sneek. The software features a “wall of faces” for each office, which stays on throughout the workday and features constantly-updating photos of workers taken through their laptop camera every one to five minutes.

Welcome to micromanagement hell:

If a coworker clicks on their face, Sneek’s default settings will instantly connect the two workers in a live video call, even if the recipient hasn’t clicked “accept.” However, people can also configure their settings to only accept calls manually — and only take webcam photos manually — if their employer allows it.

Chances are, none of these employees were subjected to supervisory visits to their desks every few minutes while at work. There’s no reason for them to be subjected to it now just because they’re working from home. The only reason this is happening is because it can happen. It’s seamless, automated, and makes zero physical or mental demands from their employers.

If you can’t trust your employees to work remotely, you probably can’t trust them at the office either. And if there was any mutual respect between the employer and its employees, efforts like this will erode that very quickly. Employees who feel their employers don’t trust them aren’t too motivated to add value to the company they work for. Always-on surveillance isn’t going to result in productivity. It will result in pointless busywork and a shit-ton of resentment.

Sneek’s CEO Del Currie issued one of stupidest defense of pervasive surveillance of employees while defending his product from critics.

The purpose of Sneek isn’t surveillance, Currie said, but office culture.

Currie claims a wall-of-faces that’s continuously connected to each other (as well as their mutual supervisors) will keep people from feeling “isolated” while working from home. Currie may sincerely believe his remote work tool is better for employees’ wellbeing, but it’s doubtful most of the companies signing up for Sneek accounts to deal with newly-minted teleworkers are concerned about anything more than ensuring no one’s getting paid to do nothing — even if they’ve paid for plenty of hours of zero productivity back when everyone was under one roof.

Things aren’t going to go back to normal once the coronavirus is under control. Employers may find they can still get work done without needing everyone in the same building breathing the same air. Some will find they can get the same amount done with fewer employees. The only constant will be the ability to invade their employees’ homes to “ensure productivity” or “build office culture” or whatever. That will be here to stay.

Filed Under: bad boss, covid-19, employees, employers, surveillance, work at home

Navy Deploys USS Barbra Streisand After Firing A Captain For Expressing His Coronavirus Concerns

Failures

from the walking-your-own-plank dept

In the midst of a pandemic, a Navy captain pleaded for the health and safety of his sailors. And for that, he was relieved of duty.

A letter to Navy officials, written by Captain Brett Crozier of the USS Theodore Roosevelt, was obtained by the San Francisco Chronicle. Social distancing doesn’t work when you’re stuck on a ship. Just ask anyone stuck on the handful of luxury cruise liners that became floating attack vectors for the coronavirus.

“This will require a political solution but it is the right thing to do,” Crozier wrote. “We are not at war. Sailors do not need to die. If we do not act now, we are failing to properly take care of our most trusted asset — our Sailors.”

In the four-page letter to senior military officials, Crozier said only a small contingent of infected sailors have been off-boarded. Most of the crew remain aboard the ship, where following official guidelines for 14-day quarantines and social distancing is impossible.

“Due to a warship’s inherent limitations of space, we are not doing this,” Crozier wrote. “The spread of the disease is ongoing and accelerating.”

Crozier went through the proper channels but one copy of his letter made its way to the press. This resulted in the acting Secretary of the Navy, Thomas Modly, relieving him of command — supposedly for not ensuring his letter was not leaked to the press.

On Thursday, after the letter was leaked to the San Francisco Chronicle, the acting secretary of the Navy, Thomas Modly, declared that he’d “lost confidence” in the captain and was therefore relieving him of his command.

This wasn’t necessarily Modly’s idea. But it appears to be Modly’s idea of what he thought the Commander-in-Chief would want him to do.

Two days later, David Ignatius reported in the Washington Post that Modly had told associates he’d acted at the behest of President Donald Trump. Modly then phoned Ignatius at 1 a.m. to deny the story, saying he’d moved against Crozier before he heard from Trump. Rather, he acted in anticipation that Trump would want him to do so.

The removal of Crozier from the ship should have been the first indication the Navy would be unable to control this narrative. Several recordings exist of Crozier’s exit from the ship, accompanied by sailors applauding him and chanting his name. Here’s one of them:

Modly made it worse by boarding the ship and addressing the sailors. His efforts to win hearts and minds consisted of telling sailors to stop complaining and do their jobs, punctuated by him insulting the man he had fired.

“If he didn’t think, in my opinion, that this information wasn’t going to get out into the public, in this day and information age that we live in, then he was either A, too naive, or too stupid to be a commanding officer of a ship like this,” Modly told the Theodore Roosevelt’s crew on April 5. “The alternative is that he did this on purpose. And that’s a serious violation of the UCMJ which you are all familiar with.”

A recording of this speech leaked, too. An unknown sailor speaks for everyone at the 1:57 mark, when he responds to Modly’s “too naive or too stupid” comment with a very audible “WHAT THE FUCK?”

The Navy’s damage control continues, but it appears to consist solely of dispatching more shovels and shovel operators to its hole. A self-serving communication from Navy brass telling sailors to STFU about the Crozier debacle was leaked to another journalist, which made its way to social media immediately.

Here’s the best bit of Navy’s insistent self-Streisanding:

*** Please engage with your sailors onboard and let them know that they need the person’s permission to record them and put them online. If they posted SECNAV’s 1MC remarks on social media, they need to take them down immediately. ***

It does not get any less laughable:

I know everyone’s emotions are running high but posting negative comments on social media regarding Senior Leaders will not help our current situation.

[…]

Bashing a Senior Leader online will not rally the troops.

Looks like the troops are plenty rallied already, judging from the fond farewell they gave to their unceremoniously shit-canned senior officer. And they seemed pretty united in their rejection of SECNAV Modly’s “shut up and go back to work” speech.

Modly appears to have belatedly realized his speech to the Theodore Roosevelt sailors was a mistake. But his non-apology isn’t going to make things any better. Modly wants people to believe he was misunderstood by everyone that heard his comments, rather than actually take responsibility for the things he said.

I want to apologize to the Navy for my recent comments to the crew of the TR. Let me be clear, I do not think Captain Brett Crozier is naive or stupid. I think, and always believed him to be the opposite. […] I apologize for any confusion this choice of words might have caused.

Shorter Modly: “I’m sorry you thought I called Crozier naive and stupid when I was calling him naive and stupid.”

This whole response has been the epitome of “naive and stupid.” The Navy’s best option for letting this debacle get swept under the tidal wave of news that flows through social media every day would have been to let its original response — given to the San Francisco Chronicle — be its only response. Within 48 hours, no one would have cared. But it chose to fire an obviously-beloved and respected captain, insult him in front of his crew, and threaten unhappy personnel with punishment for sharing anything about this on social media. The Navy’s measured response to the leak of Crozier’s letter is all but forgotten now, buried under layer after layer of self-sabotaging hubris.

And, of course, as the finishing touches were being put on this post, Modly announced he was resigning. Apparently he realized that he was either “too stupid or too naive” to run the Navy, if he didn’t realize how nearly all of his decisions in the last few days would play out.

Filed Under: brett crozier, coverup, covid-19, donald trump, leadership, leaks, streisand effect, thomas modly, us navy, uss theodore roosevelt, whistleblowing

DC Court Says Terms Of Service Violations Can't Trigger Federal CFAA Prosecutions

Legal Issues

from the forcing-discretion-on-DOJ-prosecutors dept

In a win for researchers and the ACLU, a federal court has ruled that violating a site’s terms of service is not a criminal violation of the CFAA.

The ACLU filed this lawsuit in 2016, representing researchers, scientists, and journalists who were looking into whether employment websites engaged in discriminatory behavior. To do so, the researchers needed to deliberately violate the terms of service of the websites they were studying by creating bogus accounts and providing other false information.

Since the CFAA has been the go-to law for companies seeking to silence security researchers and critics, the ACLU and its plaintiffs raised a pre-enforcement challenge, seeking a ruling declaring this work legal before the DOJ had a chance to abuse this terrible law to shut the research down.

The DC federal court doesn’t go so far as to extend First Amendment protection to these actions, but it does hold, importantly, that the CFAA does not criminalize terms-of-service violations. From the decision [PDF]:

The Court agrees with the clear weight of relevant authority and adopts a narrow interpretation of “exceeds authorized access.” Without weighing in on the circuit split over employers’ computer-use policies, the Court concludes that violating public websites’ terms of service, as Wilson and Mislove propose to do for their research, does not constitute a CFAA violation under the “exceeds authorized access” provision.

The DOJ tried to argue the plaintiffs had no case because it would never in a million years even think about bringing a CFAA prosecution over terms of service violations. The court says the government’s own words and actions contradict its assertions.

The government argues that plaintiffs fail to establish a credible threat of prosecution under the CFAA, contending that (1) plaintiffs’ testimony shows that they do not fear prosecution (and, indeed, already have engaged in such research); (2) past CFAA prosecutions do not establish a credible threat that plaintiffs’ proposed conduct will be prosecuted; and (3) the government’s charging policies and public statements undercut plaintiffs’ attempt to establish a credible threat of prosecution.

[…]

[E]ven assuming the absence of prior prosecutions, but see Sandvig, 314 F. Supp. 3d at 19–20 (discussing two previous prosecutions under the Access Provision), plaintiffs still are not precluded from bringing this pre-enforcement action. When constitutionally protected conduct falls within the scope of a criminal statute, and the government “has not disavowed any intention of invoking the criminal penalty provision,” plaintiffs are “not without some reason in fearing prosecution” and have standing to bring the suit.

It’s not enough for the government to declare it probably won’t pursue ToS-violation prosecutions, the court says.

[T]he government points to guidance from the Attorney General that “expressly cautions against prosecutions based on [terms-of-service] violations,” as well as statements to Congress by Department of Justice officials, as evidence that plaintiffs face no credible threat of prosecution. Gov’t’s Opp’n at 16–17. But the absence of a specific disavowal of prosecution by the Department undermines much of the government’s argument.

All we’re left with is the DOJ’s prosecutorial discretion, which is extremely suspect and not backed by any statements from officials that would assure the plaintiffs the government would not choose to take action against them in the future.

Discovery has not helped the government’s position. John T. Lynch, Jr., the Chief of the Computer Crime and Intellectual Property Section of the Criminal Division of the Department of Justice, testified at his deposition that it was not “impossible for the Department to bring a CFAA prosecution based on [similar] facts and de minimis harm…” Although Lynch has also stated that he does not “expect” the Department to do so, Aff. of John T. Lynch, Jr. [ECF No. 21-1] ¶ 9, “[t]he Constitution ‘does not leave us at the mercy of noblesse oblige…’”

This may keep the DOJ off researchers’ backs but it won’t shield them from lawsuits from the targeted sites.

The Court concludes that agreeing to such contractual restrictions, although that may have consequences for civil liability under other federal and state laws, is not sufficient to trigger criminal liability under the CFAA.

This at least will deter the DOJ from pursuing these prosecutions in its “home” court. Most CFAA action still takes place in the Ninth Circuit, where most tech companies are located. Opinions on civil CFAA cases have been hit and miss, but at least one major case (LinkedIn v. HiQ) saw the court come down on the side of the party doing the scraping, a violation of LinkedIn’s terms of service. This decision is being appealed, but for now, it still stands.

The research can move forward without the threat of government prosecution dangling over its head. That’s a start.

Filed Under: cfaa, criminal, doj, research, security research, terms of service
Companies: aclu

Donald Trump Fires Inspector General Who Brought Ukraine Phone Call Whistleblower Complaint To Congress

Failures

from the just-more-retaliation-targeting-the-proper-channels dept

No one really needs to wait until Friday afternoon to bury bad news. Not these days when bad news is all we seem to have, occasionally mixed with even worse news. But the White House remains the White House, so the time-honored process of dumping stuff you want to stay out of the headlines right before everyone punches out for the weekend remains in place.

The government as a whole claims it wants whistleblowers to report wrongdoing through the proper channels. It then routinely follows this up by ensuring the proper channels remain the best way to see good deeds punished.

The whistleblower that reported President Trump’s inappropriate conversation with Ukraine president Volodymyr Zelensky saw their report buried by the White House’s Office of Legal Counsel. So much for the proper channels. President Trump himself asked for the whistleblower to be outed, undermining the protections the federal government has established to ensure wrongdoing is reported.

The only party receptive to the whistleblower’s complaints has now been fired by President Trump, closing the loop on the White House’s retaliatory actions.

President Donald Trump on Friday fired Intelligence Community Inspector General Michael Atkinson, who had told Congress about the whistleblower complaint that led to Trump’s impeachment, the President told Congress in a letter obtained by CNN.

So, there’s another spot open in the administration — one that will probably be filled by an underqualified suck-up, rather than someone who can actually do the job. Trump’s faith in appointees often appears to be directly related to how good they make him look, rather than how well they do their jobs.

“As is the case with regard to other positions where I, as President, have the power of appointment … it is vital that I have the fullest confidence in the appointees serving as inspectors general,” Trump wrote. “That is no longer the case with regard to this Inspector General.”

Atkinson’s response letter is worth reading. It makes it clear his firing was politically motivated and had nothing to do with his ability to carry out his duties.

It is hard not to think that the President’s loss of confidence in me derives from my having faithfully discharged my legal obligations as an independent and impartial Inspector General, and from my commitment to continue to do so.

More of the same from this administration, which isn’t all that different from the actions of the administrations that preceded Trump’s. Whistleblowers get punished. Those aiding whistleblowers in their efforts by following the law are also retaliated against with alarming frequency.

This is what whistleblower laws are supposed to deter. But they’re ultimately toothless, especially when it comes to presidential appointees who can be hired and fired at will. Since the protections only go so far, whistleblowers are likely to be deterred by appointees inhabiting the “proper channels,” who may selectively bury reports to ensure their own employment continues. Those that do pass on information that will displease the administration put their own necks on the line, and that’s the sort of ideal that rarely has a 100% participation rate in Washington, DC.

It would be nice if these protections — and the rules against retaliation — were respected across the board. But they’ll never be. They’ll only be used when they’re politically expedient.

Filed Under: donald trump, friday night massacre, inspector general, leaks, michael atkinson, retaliation, whistleblower protections, whistleblowers

Sheriff's Office That Employed A Deputy Facing 9 Lawsuits And 44 Criminal Charges Says It Has Lost All Of His Dashcam Footage

(Mis)Uses of Technology

from the nothing-suspicious-about-this-at-all dept

Hamilton County (TN) Deputy Daniel Wilkey is in more trouble than possibly any other law enforcement officer has ever been in. Currently facing nine lawsuits over his bizarre and disturbing rights violations, Wilkey is simultaneously facing 44 criminal charges, 25 of which are felonies.

Wilkey’s rights violations were especially creative. He forced one woman to undergo an involuntary mid-winter baptism in a nearby lake in exchange for some assistance with the drug charges Wilkey was filing against her. In another incident, Wilkey pulled over a car full of minors, forcing the only male occupant to strip to his boxers while he alternated between swearing at the teens and preaching to them.

The criminal charges against Wilkey are a hideous blend of mundane and horrifying — ranging from reckless driving to false imprisonment to stalking to rape. Wilkey could have been taken off the street anytime before this turned into national news, but the Hamilton County Sheriff’s Department apparently felt eight internal affairs investigations in ten months was acceptable behavior, rather than a continuous stream of misconduct it should have diverted before it overflowed the office’s capacity to control the narrative.

But the Sheriff’s Office seems determined to protect Wilkey from the consequences of his actions. As Courthouse News reports, a whole lot of camera footage from Wikey’s patrol car has suddenly gone missing. The attorney for the woman who was forcibly “baptised” by Wilkey has just discovered months of possibly-damning footage has mysteriously vanished.

A few weeks ago, the woman’s attorney, Robin Flores, learned that the county admitted in another case in Tennessee state court that the server storing all the dash-cam footage the Hamilton County Sheriff’s Office recorded from Oct. 25, 2018, to Jan. 23, 2020, suffered a software failure.

According to the county, all the footage is gone and unrecoverable.

Flores has asked the court to ensure any recoverable footage is recovered and anything else that may have been recorded be preserved and handed over to his client. The court agrees this is a suspicious and oddly convenient software failure.

Before appointing a forensic examiner or considering sanctions against a Tennessee county for the loss of months of dashboard-camera footage — possible evidence for nine lawsuits against a single sheriff’s deputy accused of a range of misconduct — a federal magistrate wants to ensure the footage is actually gone.

Calling the loss of the data a “front-burner item,” U.S. Magistrate Judge Christopher Steger in Eastern District of Tennessee said Tuesday that Hamilton County, which sits in the southeast corner of the state, had a duty to preserve evidence — including the dash-cam footage of the traffic stops in question.

The preservation request [PDF] points out that the date range of the “lost” footage covers most of the incidents Wilkey is being sued over. It also points out the Sheriff’s Office never notified any of the nine plaintiffs (or the judges overseeing the cases) about the lost footage.

Here, this data appears to have been lost for more than a month yet no notice of its loss has ever been provided to the Plaintiff, notwithstanding her spoliation demands and her properly served discovery demands. The only way this loss came to Plaintiff’s attention today (February 28, 2020) was when counsel was reviewing the Hinds matter and saw the undated letter attached to a state court pleading filed on the same day. The letter indicates that the Sheriff’s Office has been working on this problem for “several weeks” and it may be inferred that the loss occurred on or about January 23, 2020, the last date for which the data was lost.

There’s nothing in it for the Sheriff’s Office. Ensuring the footage remains intact only raises questions about why it didn’t do anything sooner to get Wilkey taken off the streets, if not removed from the force entirely. So, it took 180 hours of dashcam footage, moved it to an external hard drive, and than claimed a “software failure” suddenly made all of this evidence irrecoverable. There’s no reason to believe this was an accident — not until the Sheriff’s office makes some sort of showing it actually cares about the people it’s supposed to be protecting and serving.

Filed Under: daniel wilkey, dashcam, evidence, evidence destruction, tennessee

Congress Let Spy Powers Expire Last Month, Which Is Having Almost No Effect On Current Spying

Privacy

from the hey-you-guys-need-to-knock-it-off-whenever-it's-convenient-for-you dept

Thanks to the goddamn everything else going on in the world right now, we’ve now learned what happens when Congress lets surveillance authorities expire. Nothing, really. Here’s Charlie Savage for the New York Times.

House Democrats left the capital on Friday after passing the $2 trillion coronavirus relief legislation without taking up a Senate bill to temporarily revive three expired F.B.I. surveillance tools for terrorism and espionage investigations, ensuring that the laws will remain lapsed at least until the Senate returns from vacation next month.

The authorities created by the US Patriot Act — specifically, the bulk collection of business records and roving wiretaps — both expired on March 15th. More pressing issues backburnered the reauth, which is probably preferable to the alternatives: a blanket reauthorization rush job or some rights-wrecking abomination tacked onto a must-pass coronavirus response bill.

But letting these authorities expire doesn’t change much of anything, especially since the FISA Court is presumably on limited duty like other courts in the nation while waiting for the pandemic curve to flatten a bit. It’s still business as usual for any surveillance business in progress before the March 15th cutoff, as Julian Sanchez explains.

A so-called savings clause permits the laws to remain in effect for investigations that already existed on March 15, or for new investigations into events that occurred before then.

“The authorities remain available for either investigations open at the time of expiration or investigations predicated on underlying conduct that predates the sunset date,” Mr. Sanchez said.

This means agencies can initiate surveillance using these expired authorities so long as they backdate the impetus for the investigation. We’re in the midst of a never-ending War on Terror, so any targets loosely associated with the terrorist networks we’ve targeted for decades will remain surveilled under expired authorities. And that will continue up until Congress gets around to actually reauthorizing the surveillance that never stopped.

In practice, this means all sorts of surveillance is continuing without explicit Congressional permission. But that’s the way the law was written. The escape hatch says nothing needs to stop even when nothing governing surveillance says it’s alright to keep going. Securing the nation is too important to be left in the hands of three branches. Congress has cut itself out by not handling the reauthorization in a timely manner. And the FISA Court can’t do anything about since it’s forced operate (and authorize) in the void Congress created.

There’s a lot of power in play here and it’s being handled irresponsibly. Just when the FBI has shown it can’t be honest with the FISA Court (and hasn’t been for most of two decades), no one’s stopping anyone from doing anything, much less instituting needed reforms. While tackling the virus may have been the more important job, it’s disheartening to know there’s really no expiration date on surveillance authorities, no matter what might be said in Congress during these periodic battles over domestic surveillance.

Filed Under: fbi, fisa, fisa court, fisc, patriot act, section 215, surveillance

Texas Court Says City, PD Must Answer Questions About Botched Drug Raid Led By A Crooked Cop

Legal Issues

from the start-talking dept

The Houston Police Department’s botched drug raid that resulted in the killing of the home’s two occupants continues to cause problems for the PD and the city of Houston. The raid was predicated on a phone call from an unbalanced, vengeful neighbor with a history of calling in bogus crime reports. Probable cause was bolstered (if that’s even the word) by dirty cop Gerald Goines, who fabricated a confidential informant and provided evidence for drug trafficking allegations by pulling heroin from the console of his cop car.

The end result was the execution of Dennis Tuttle and Rhogena Nicholas — a couple who had been together for 21 years and whose house contained nothing more than personal use amounts of marijuana and cocaine. There was no evidence of the heroin dealing alleged by Goines’ nonexistent informant.

Goines is now facing murder charges and a handful of other felony charges. The PD’s drug task force has been disbanded. And Rhogena Nicholas’ mother — who was at one point falsely named as the person behind the anonymous tip Goines supposedly received — is suing the city for its failure to properly oversee the police department. (via Courthouse News)

The city has so far refused to cooperate with the lawsuit. Nicholas wants to depose city officials about the raid but the city has chosen to continue its stonewalling and obfuscation. The city (and the PD) have done everything they can to avoid giving Nicholas anything to work with, starting immediately after it became clear the raid wasn’t justified and had been led by an incredibly dirty cop. Here’s the Texas appeals court’s description [PDF] of the city’s post-raid recalcitrance:

After the Harding Street Incident, the City did not contact Petitioners and did not respond to Petitioners’ request to publicly correct or retract what Petitioners contended were factually incorrect statements. For example, Rhogena’s neighbor provided a cell phone video that suggested a different account of what happened at the Harding Street home than that set forth by the City. The City has resisted efforts by Petitioners to secure the 911 records related to the Harding Street Incident. Moreover, HPD has refused to disclose what physical materials may have been removed from the scene.

Weird. I always thought this was something guilty people did — you know, “nothing to hide, nothing to fear,” etc. I understand there’s no reason to hand plaintiffs ammo to use against you, but the city was unwilling to do anything to correct the record even before it was sued.

The order also points to the independent forensic examination of the crime scene which made it clear Houston PD investigators were either horrifyingly inept or trying to cover something up.

Petitioners retained an independent forensic investigator to conduct an independent investigation at the Harding Street home. After analyzing the scene, the investigator concluded that HPD failed to conduct a full ballistic recovery and left significant forensic materials untouched and unrecovered, preventing a full reconstruction of the incident.

The plaintiffs also pointed out a legitimate investigation includes confidential informants that actually exist and controlled drug buys that actually occurred. None of that happened here and Nicholas alleges the city and PD officials continued to refer to the residence as a “drug house” even when it presumably had been made aware of Goines’ fakery.

And there was oh so much lying by Gerald Goines.

Petitioners further plead that local news media revealed that in the last 109 cases filed by Gerald Goines based on a sworn affidavit in support of a search warrant: “In every one of those cases in which he claimed confidential informants observed guns inside, no weapons were ever recovered, according to evidence logs Goines filed with the court.” On this basis, Petitioners request the depositions of the two HPD managers responsible for oversight of Gerald Goines in the HPD Narcotics Division.

The city and the PD argued the court had no jurisdiction to tell it to comply with these pre-trial discovery requests. The appeals court says the government is wrong.

[T]he statutory probate court has subject matter jurisdiction over the anticipated action under the Estates Code. Hence, the trial court did not err in denying the City’s plea to the jurisdiction regarding the Rule 202 proceeding. […] The City’s issue is overruled.

The city and PD will have to face questions from the relatives of people officers killed during a completely unjustified drug raid. Good. They have a lot to answer for. And the more they talk, the more obvious it will be no one in power really cares how the Drug War is carried out, just as long as it never stops.

Filed Under: dennis tuttle, drug raid, gerald goines, houston, houston pd, rhogena nicholas, texas