Another Baltimore Cop Facing Criminal Charges, This Time For Stealing 3 Kilos Of Coke From A Drug Bust

Legal Issues

from the know-thy-enemy-or-whatever dept

All hail the mighty drug warriors! The War on Drugs is being fought by people who like cash, easy busts, and imagined traffic violations. The “soldiers” in the “trenches” literally believe they’re soldiers in the trenches, fighting a war at home — not as protectors and servants, but as a conquering army sent in to control the local populace.

The Baltimore PD has problems within its drug enforcement units. Several. Enough that the DOJ stepped in and forced the city and the PD to sign a consent agreement in which the PD would be forced to do what it always should have done: respect the Constitution and the rights of the people the PD serves.

Dozens of cases were dismissed after a cop was caught by his own body camera appearing to plant drugs at the scene of an arrest. It turned out he was just doing a dramatic reenactment of his own discovery earlier, but forgot about the rolling 30-second buffer which caught him shoving drugs into a coffee can and then pretending to have just discovered it the second time around.

But that’s only one tip of the PD’s garbage floe. Hundreds of cases are up for dismissal now. Misconduct appears to be the rule, not the exception. And it has resulted in the city’s drug warriors being exposed as no better than the perps they went after. Here’s Justin Fenton reporting for the Baltimore Sun:

It was billed as the biggest cocaine bust in Baltimore Police Department history: officers from the elite Violent Crimes Impact Division conducting surveillance on a West Baltimore drug trafficker a decade ago found 41 kilograms of cocaine in the back of a truck.

“Just good old fashioned police work from the ground up,” read the commendation awarded by the department to officers in on the bust.

[…]

Detective Ivo Louvado was charged Thursday with lying to the FBI about participating in a scheme to sell cocaine from that bust. Prosecutors said in court records that he and two others conspired to sell 3 kilograms that were not reported as seized, giving the drugs to a confidential informant to sell and dividing the proceeds among themselves. Louvado’s alleged cut: $10,000.

The glowing commendation that has been tarnished by this discovery can be seen here. It lauds seven members of the PD’s violent crime unit for their bust of “five violent traffickers” along with the recovery of 44 kilos of drugs. Or 41, as it was reported at the time:

“These [drugs], wherever they were destined, whether Western Maryland, the Eastern Shore or East or West Baltimore, they are affecting our communities,” [Police Chief] Bealefeld said at a news conference. “Forty-one kilos of cocaine will not reach the streets of our city. All of us can take some comfort in that.”

All seven of the officers were given Bronze Stars for their anti-drug work “along the I-95 corridor.” But at least three of those officers decided a commendation and a paycheck wasn’t enough appreciation for their hard work. All of this escaped notice for nearly a decade.

Now that someone outside of the department is paying attention — specifically the US Attorney’s office — things like this are no longer going unnoticed (or deliberately being ignored). Louvado’s indictment makes him the 14th officer charged in this investigation.

All of this stems from the PD’s Gun Trace Task Force, which ran pretty much unsupervised for years. It’s former leader, Sgt. Wayne Jenkins, is serving a 25-year sentence on federal racketeering charges. And its former members are the reason prosecutors are dropping hundreds of cases and opening up belated investigations into its strike force’s tactics.

Fourteen cops facing criminal charges is absurd and should be shocking. This just means 14 cops were finally caught, not that the PD and federal prosecutors have actually rid the department of most of its bad cops. Any department that finds itself under a DOJ consent decree has allowed enough misconduct to go unpunished it has managed to alter almost every aspect of day-to-day police work to the detriment of those asked to fund the PD and pay for substandard, abusive policing. There’s a small chance this will result in a better police department, but history has shown us bad cops — and those who enable them — are incredibly resilient.

Filed Under: baltimore, drug bust, drugs, ivo louvado, police, stealing

First Circuit Appeals Court: 'Community Caretaking' Function Applies To Warrantless Seizures, Not Actually Caring For The Community

Legal Issues

from the no-obligation-to-help,-every-excuse-to-hurt dept

The First Circuit Court of Appeals has confirmed what we’ve already assumed: the “community caretaking” function law enforcement performs is there to help it dodge the Constitution, not to ensure it actually takes care of the community. Citing Simpsons’ episode BABF18*, Judge Selya (trigger warning: overwrought English) says nothing about the community caretaking function prevents officers from harming you. But it does not mean officers ever need to help you.

*Judge Selya does not actually cite this, but let’s just take a look at what these decisions actually mean:

The Supreme Court has made it clear — repeatedly — that officers are under no obligation to “serve and protect,” with emphasis on the latter. You’re on your own as a citizen when it comes to harm being inflicted on you. Cops are here to file reports and investigate the tragic aftermath of the harm inflicted on you. They are under no obligation to protect you against violence, even if you’ve repeatedly informed them someone means to do you harm.

But cops suddenly become inspired and proactive members of the community when it comes to the community caretaking exception, which allows them to perform searches and seizures without a warrant. In the interest of protecting the community, cops will tow your car and perform a pretextual search. But they’ll also go into your house and there’s nothing in the Fourth Amendment that can prevent that, apparently.

Selya opens the First Circuit’s opinion [PDF] by painting a rosy picture of cops as local heroes who would never abuse rights to achieve their own ends.

There are widely varied circumstances, ranging from helping little children to cross busy streets to navigating the sometimes stormy seas of neighborhood disturbances, in which police officers demonstrate, over and over again, the importance of the roles that they play in preserving and protecting communities.

Selya’s first egregious abuse of readable English starts on the next sentence, where he asserts without facts in evidence that this Norman Rockwell-esque picture he’s painted is based on fact:

Given this reality, it is unsurprising that in Cady v. Dombrowski, 413 U.S. 433 (1973), the Supreme Court determined, in the motor vehicle context, that police officers performing community caretaking functions are entitled to a special measure of constitutional protection. See id. at 446-48 (holding that warrantless search of disabled vehicle’s trunk to preserve public safety did not violate Fourth Amendment).

And with that, the court decides the exception that has swallowed the rule for cars is perfectly capable of swallowing homes.

We hold today — as a matter of first impression in this circuit — that this measure of protection extends to police officers performing community caretaking functions on private premises (including homes). Based on this holding and on our other conclusions, we affirm the district court’s entry of summary judgment for the defendants in this highly charged case.

This case involves a domestic dispute that may or may not have involved a gun and threats. After this dispute had dissipated, the victim called the police the next morning, concerned that her husband might now be suicidal and was in possession of a (possibly unloaded) gun. The spouse made it clear she was worried about the harm he might do to himself and that she was not actually afraid he might come after her. It’s unclear what was said about the magazine of ammo, which might not even have been on the suspect, who had left the house with an otherwise unloaded handgun.

The cops got ahold of the man, who confirmed his wife’s narrative: he had asked his wife to shoot him because he was “sick of the arguments.” The cops decided this meant he was a threat to himself and others, and went looking for him.

Using this information, the officers decided to start seizing weapons from the home, even though the husband had voluntarily checked into a local hospital.

At some point that morning, someone (the record is unclear as to whether the “someone” was Kim or the plaintiff) informed the officers that there was a second handgun on the premises. After the plaintiff departed by ambulance for the hospital, unaccompanied by any police officer, Sergeant Barth decided to seize these two firearms. A superior officer (Captain Henry) approved that decision by telephone. Accompanied by Kim, one or more of the officers entered the house and garage, seizing the two firearms, magazines for both guns, and ammunition. Kim directed the officers to each of the items seized. The parties dispute both whether Kim indicated that she wanted the guns removed and whether the officers secured her cooperation by telling her that her husband had consented to confiscation of the firearms. There is no dispute, though, that the officers understood that the firearms belonged to the plaintiff and that he objected to their seizure.

After he was cleared by the hospital, the man asked the cops to give him his guns back. They refused, holding onto them for two more months until his lawyer intervened. No criminal investigation was ever initiated. The man sued… and the First Circuit has told him there’s nothing he can sue about.

Since it’s Selya writing the opinion, we’re forced to sit through phrases like “asservational array” and “salmagundi of claims” before reaching the conclusion. And the conclusion is this: “We care a lot” as it applies to officers means cops can go into your house and take your guns even if it’s an open question as to whether you pose a threat to anyone and have committed no crime they feel is worth investigating.

The court even points out this search and seizure was anything but consensual:

It is uncontroverted that the defendant officers understood that the two handguns belonged to the plaintiff and that he objected to any confiscation of them. And in this venue, the defendants press no argument that they secured valid consent from the plaintiff’s wife to seize the firearms.

So, here’s what we, the people in the First Circuit, end up with:

We conclude that the officers could reasonably have believed, based on the facts known to them at the time, that leaving the guns in the plaintiff’s home, accessible to him, posed a serious threat of immediate harm.

And, since no officer accompanied the “suspect” to the hospital for diagnosis/observation (even after officers made it clear they would do it for him if he didn’t choose to do it himself), they were perhaps deliberately unaware of the man’s current mental state and his threat level.

On this record, an objectively reasonable officer remaining at the residence after the plaintiff’s departure could have perceived a real possibility that the plaintiff might refuse an evaluation and shortly return home in the same troubled mental state. Such uncertainty, we think, could have led a reasonable officer to continue to regard the danger of leaving firearms in the plaintiff’s home as immediate and, accordingly, to err on the side of caution.

And so this most hallowed place — the starting point for Fourth Amendment protections — the home/castle is just another place officers can intrude upon without a warrant if they feel ways about stuff.

We need go no further. Police officers play an important role as community caretakers. As this case illustrates, they sometimes are confronted with peculiar circumstances — circumstances that present them with difficult choices. Here, the actions of the defendant officers, though not letter perfect, did not exceed the proper province of their community caretaking responsibilities. The able district court recognized as much and, for the reasons elucidated above, its judgment is affirmed.

While there were some justifiable concerns about the man, he voluntarily admitted himself to a hospital and the officers had several hours between the initial call and the follow-up (in which the wife expressed concern the man would harm himself rather than her) in which to develop some probable cause for a search and seizure. They proceeded without a warrant and consent, and held onto the man’s property for two months without ever bringing criminal charges. The community caretaking exception has made a mockery of the Fourth Amendment — especially when it comes to vehicles — but this decision allows the exception to cross the threshold of homes in the circuit, giving officers ample opportunity to perform warrantless fishing expeditions as long as they can claim they were worried about something.

Filed Under: 1st circuit, 4th amendment, community caretaking, law enforcement, police, protect and serve, seizures, warrants

FBI Says It Will Only Accept Snail Mail FOIA Requests Until Further Notice, Due To Coronavirus Concerns

(Mis)Uses of Technology

from the and-it's-not-even-going-to-respond-to-those dept

With the Coronavirus grinding everything to a halt (except for stock market losses! [sobs in 401(k)]), it’s understandable that public services would be affected as well. The unexpected shift to telecommuting means everything is going to slow down as public and private entities figure out how to still serve customers/citizens while still keeping the spread of the virus to a minimum.

But none of that explains this completely incomprehensible response from the FBI, which appears to be using the virus as a way to become even more tight-fisted with its stash of FOIA-able files. “FOIA terrorist” Jason Leopold reports the FBI is seeking to serve the public in the worst way possible during this national health crisis.

A message posted on the FBI’s Freedom of Information Act website Tuesday says:

“Due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information/Privacy Act requests or sending out electronic responses through the eFOIPA portal at this time. You may still submit a FOIPA request via standard mail. We apologize for this inconvenience and appreciate your understanding.”

Left unexplained by the agency is how sending out snail mail — which could conceivably carry a bit of COVID with it — is preferable to email requests, which can only infect others if they insist on opening sketchy attachments.

This is also against the law, unless the administration decides it’s going to suspend FOIA law until the it’s declared safe to act sane again. The regulations governing FOIA responses say all federal agencies must have the capability to “receive requests electronically” either via email or their FOIA portals. It appears the FBI has simply chosen to ignore its online portal and its capability to receive emailed requests.

Even if lower staffing levels might result in slower responses, the agency’s virus response shouldn’t be to switch off the online portal and direct everyone to another government service that itself might be negatively affected by the virus in the near future.

But there’s more to it than this inexplicable explanation for shutting down the internet-friendly side of its FOIA services. Those bothering to send snail mail shouldn’t expect responses, either.

Katie Townsend, the legal director for the Reporters Committee for the Freedom of the Press, told BuzzFeed News that in a FOIA case she is litigating, an assistant US attorney filed court papers Tuesday saying the office that handles the FBI’s FOIA requests is “closed at least until March 30, 2020 because of the current coronavirus outbreak.”

This has been confirmed by other attorneys involved in FOIA litigation with the FBI. The regulation-dodging statement on the FBI’s website doesn’t inform requesters that the FBI won’t be touching any requests for the rest of the month. The FBI — through its lawyers — insists this all very logical because FOIA response personnel can’t work from home due to security issues. Even if so, encouraging people to climb into an FOIA time machine to take them back before the internet was a thing isn’t helping anyone but an agency that would rather not answer FOIA requests at all.

Filed Under: coronavirus, covid-19, fbi, foia, pandemic, transparency

The US Government Is Also Looking At Increasing Domestic Surveillance To Fight The Spread Of The Coronavirus

Privacy

from the big-brother-just-wants-to-make-sure-you're-healthy dept

Say hello to the coronavirus and goodbye to privacy. The government is working with a variety of tech companies — including infamous analytics companies like Palantir — to get a grasp on the spread of the virus. Unfortunately, this means the data citizens have generated for a variety of tech companies will become a handy way to track them and their movements, especially if they’re infected or in contact with those who are.

Technology giant Palantir Inc., which was credited with helping to find Osama bin Laden, is helping the Centers for Disease Control and Prevention model the virus outbreak. Other companies that scrape public social-media data have contracts in place with the agency and the National Institutes of Health, documents show.

The push is in part being coordinated by a task force working in conjunction with the White House, and includes startups as well as tech giants such as Alphabet Inc.’s Google unit, Facebook Inc. and Amazon.com Inc. The task-force discussions involving the White House and tech companies were reported by The Wall Street Journal on Sunday.

The legal limits on what the government can grab from service providers and platforms are pretty much waived if there’s a national emergency. No one’s arguing the spread of the virus isn’t at least a crisis. But only a few people are arguing this justifies domestic surveillance aided and abetted by an abundance of third party records. Normally, the government would have to show at least reasonable suspicion before collecting these records from third parties, but it won’t even need this minimal, individualized showing if it can declare this an emergency.

Even privacy-focused legislators seem to be on board with broad harvesting of location data for this reason.

Sen. Ron Wyden, a Democrat from Oregon, is among the lawmakers who have been briefed on the discussions. In a statement, Sen. Wyden said the efforts are sensible as long as the appropriate conditions are in place. “There must be procedures to keep this information safe, to delete information once it’s no longer in use, and to ensure it isn’t used against Americans by law enforcement,” he said.

Good luck ensuring it isn’t used by law enforcement. The only thing keeping them honest, for the most part, is their own honesty — something that seems rarely an innate part of US law enforcement. Even if things appear to be above-board, parallel construction can whitewash info gathered by government agencies purportedly for tracking the spread of the coronavirus.

What we don’t have at this point in time is many details on how this would happen and what constraints would be placed on data collection and use. But what little we do have isn’t promising.

Public-health experts are interested in the possibility that private-sector companies could compile the data in anonymous, aggregated form, which they could then use to map the spread of the infection, according to three people familiar with the effort, who spoke on the condition of anonymity because the project is in its early stages.

First off, anonymized data is never truly “anonymized.” With very little effort, data can be stripped of its anonymity to identify the people who generated the data. Second, if efforts already in place in other countries are any indication, this is only the starting point, not the entire plan. Government agencies are going to want to track infected citizens in order to ensure/enforce self-quarantining and track potentially-infected friends and acquaintances of those who’ve tested positive for COVID-19.

Location data is what the administration wants — something no longer under the purview of the Third Party Doctrine thanks to the Supreme Court’s Carpenter decision.

In recent interviews, Facebook executives said the U.S. government is particularly interested in understanding patterns of people’s movements, which can be derived through data the company collects from users who allow it.

Google is saying pretty much the same thing. Government officials and health experts want access to location data. At this point, the government seems willing to collect this data in aggregate form to predict trends and determine the impact of social distancing and local bans on gatherings.

An open letter to tech companies from dozens of engineers and epidemiologists suggests the government should have this data, but possibly only with the approval of platform users who would have to opt-in. It’s a little disconcerting to read a call for handing over user location info to the government coupled with complimentary reference to China’s surveillance state.

Apple, Google, and other mobile operating system vendors should work to provide an opt-in, privacy preserving OS feature to support contact tracing. Users who opt in could be notified in a non-identifiable way if they had been in the same spaces as subsequently identified cases, in order to enable self-quarantine, monitoring, early detection and prevention of tertiary cases. If such a feature could be built before SARS-CoV-2 is ubiquitous, it could prevent many people from being exposed. In the longer term, such infrastructure could allow future disease epidemics to be more reliably contained, and make large scale contact tracing of the sort that has worked in China and Korea, feasible everywhere.

At this point, everything is still in the planning and development stages. Google and Facebook collect tons of user info, including their locations, and it is true tracking people’s movements — even in “anonymized” form — might slow the spread of the virus. There’s a tradeoff here, one that isn’t limited to this disease. The government — without directly asking — wants people to sacrifice some of their privacy for the benefit of the nation as a whole. But there’s no expiration date on the request and there’s no ensuring this will actually benefit the nation. And once the government is in, it’s going to be very hesitant to step back out. There’s always another emergency just over the horizon.

I’m all for a completely voluntary system that fully informs citizens who opt in what their rights are, one of which should be the right to revoke consent at any point in time. Anything else sounds like a convenient way to engage in domestic surveillance and ignore the Constitutional protections afforded to these particular third-party records. And while I appreciate tech companies’ willingness to do anything they can to curb the spread of the virus, they should be asking the tough questions that need to be asked on behalf of their millions of users, rather than deciding they can contribute to the greater good of the public without asking for the public’s permission.

Filed Under: coronavirus, covid-19, mission creep, privacy, surveillance, us government

Governments Around The World Are Tracking Their Citizens' Movements To Prevent The Spread Of COVID-19

Privacy

from the our-new-pervasive-overlords-etc. dept

In an effort to turn an unmitigated disaster into something a bit more mitigated, governments around the world are heading towards the “drastic” end of the scale to slow down the spread of the coronavirus. Cities and everything in them have been effectively shut down. Preventing the spread of the virus depends a lot on the voluntary cooperation of citizens to self-report and self-quarantine. Meanwhile, no one has any toilet paper. What a time to be alive, at least temporarily.

How do you enforce “voluntary” quarantine without filling cities with cops and/or soldiers? You turn to the tracking devices nearly everyone carries. Extreme times/extreme measures and all that, so every bit of location data hoovered up by carriers of phones and/or viruses is now apparently fair game.

It’s already happening in the countries we expect it to happen in. China is still being China, except moreso:

In China, SenseTime, a highly valued AI firm, is being deployed in multiple cities in order to identify people with elevated temperatures, as well as those who aren’t wearing face masks. On its website, the company touts its “Smart AI Epidemic Prevention Solutions.” The company calls it a “quick and effective system in screening and detecting individuals with elevated temperature in a crowd.

You don’t erect a massive surveillance infrastructure if you don’t plan to exploit every bit of it. This new deployment might be one of least nefarious uses of China’s massive camera network, but that doesn’t make it any less frightening. China’s government has given itself a lot of power and every new iteration of its surveillance network shows just how pervasive its surveillance of its own citizens is.

Over in Hong Kong, every new arrival is being tracked from the moment they set foot in the country.

Hong Kong has made it mandatory for all new arrivals to wear an “electronic wristband” that links to a smartphone to provide location-tracking services, so that authorities can be sure they’re observing COVID-19 quarantine requirements.

This sounds very intrusive. But, rest assured, it actually isn’t because the government has clearly explained it is not intrusive.

[T]he city-state insists its privacy commissioner has signed off on the idea because it “does not pose privacy concerns.”

Oh. OK. I guess it’s not a location tracker because it does not constantly track location, only any “changes in the location.” This is the equivalent of a parolee’s ankle bracelet, except it’s on people’s wrists and escapees will be hit with fines rather than jail time. That could change in the future. In fact, it probably will if enough suspected carriers wander around too much. The government will also be making “surprise video calls” to wristband-wearers to verify they’re in the places they’re supposed to be.

There’s no wristband system in Israel. But that’s because there’s something worse.

Prime Minister Benjamin Netanyahu of Israel has authorized the country’s internal security agency to tap into a vast and previously undisclosed trove of cellphone data to retrace the movements of people who have contracted the coronavirus and identify others who should be quarantined because their paths crossed.

Information harvested for supposed national security reasons is now being used to track non-security threats and everyone they’ve come in contact with. It’s a scary new version of contact chaining that treats everyone as some sort of public health criminal for moving around the country in the proximity of other people. The plan is to sort through the data to find people who have come in contact with known carriers and send them text messages telling them to immediately isolate themselves. They will become the new “targets” and everyone they’ve come in contact with are the next links in the chain. And so on.

None of this was discussed with the public, who will now be receiving unsolicited texts from their government, which is using data citizens were previously unaware was being collected en masse. The consequences of ignoring the Israeli government are dire: six months in prison and the authorization of police use-of-force to break up any gatherings of ten or more people.

This virus is unusual and unpredictable. Responses from world governments have been just as unusual and unpredictable. But once a new domestic surveillance baseline is established, it’s tough to roll all of it back after the virus is contained and treatable.

Filed Under: china, covid-19, hong kong, israel, privacy, surveillance, tracking

EU Considering Enacting Right-To-Repair To Return Power To Consumers, Protect The Environment

Legal Issues

from the hopefully-not-too-little-too-late dept

Right-to-repair laws are still a work in progress, mainly due to industry opposition. The wants and needs of millions of device/vehicle owners don’t amount to a hill of beans in this world full of interloping industry leaders, as noted DIY repairman/nightclub owner Rick Blaine once sourly noted.

Allowing people to actually own the things they’ve purchased seems like a foreign concept to US tech leaders, even though that was the status quo long before goods went digital and the DMCA was enacted. Why should people be at the mercy of those whose profits depend on walled gardens, closed loops, and well-funded lawyers issuing cease-and-desist orders at the drop of a proprietary screwdriver? Well, as someone else sourly noted, those with the gold make the rules.

While we struggle through with some piecemeal replacements for our assumed rights of ownership here in the US, it appears the European Union is going to get serious about handing customers back their purloined rights. As the New York Times reports, a right-to-repair is up for discussion — not so much because of the impact on customers, but because of the impact on the environment.

The “right to repair,” part of a wide-ranging policy package known as the Green Deal that was introduced this month, is the latest example of the European Union’s ambitions to promote more sustainable economic growth and to prevent waste. It extends standards brought in last year that put “right to repair” obligations on the manufacturers of some large appliances.

“The linear growth model of ‘take-make-use-discard’ has reached its limits,” Virginijus Sinkevicius, the union’s environment commissioner, told reporters in Brussels as he presented the “Circular Economy Action Plan,” which includes the “right to repair” initiative.

“We want to make sure that products placed on E.U. market are designed to last longer, to be easier to repair and upgrade, easier to recycle and easier to reuse,” he added.

Obviously, providing people with a right-to-repair (and the information to make those repairs) will help curb the amount of dangerous chemicals and minerals being dumped into the ecosystem. Planned obsolescence has been the status quo for years, with repair prices and restrictions making it far easier to replace items than repair them. This has added up to serious environmental damage. It has also added to problems around the world where rare minerals are mined under the direction of governments who use their profits to finance war, rape, and numerous other atrocities.

But it will also give people back something they’ve historically enjoyed: the ability to tinker with and repair their purchased products without being locked out by proprietary tools and methods that are shared with only certain gatekeepers to ensure steady purchases of new products and the speedy destruction of anything slightly out-of-date.

Here’s how the EU’s proposal [PDF] puts it [all emphasis in the original]:

Empowering consumers and providing them with cost-saving opportunities is a key building block of the sustainable product policy framework. To enhance the participation of consumers in the circular economy, the Commission will propose a revision of EU consumer law to ensure that consumers receive trustworthy and relevant information on products at the point of sale, including on their lifespan and on the availability of repair services, spare parts and repair manuals. The Commission will also consider further strengthening consumer protection against green washing and premature obsolescence, setting minimum requirements for sustainability labels/logos and for information tools.

In addition, the Commission will work towards establishing a new ‘right to repair’ and consider new horizontal material rights for consumers for instance as regards availability of spare parts or access to repair and, in the case of ICT and electronics, to upgrading services. Regarding the role that guarantees can play in providing more circular products, the Commission will explore possible changes also in the context of the review of Directive 2019/771.

This would be a step up from the EU’s aggressive recycling requirements, which demands companies selling electronics recycle at least 65% of the total weight of goods sold (i.e., recycling 65 tons for every 100 tons of goods put on sale). As it stands now, zero companies have met that requirement, which has been in place since 2012.

This would hand power back to consumers. It won’t make it easier for companies to hit recycling targets, but it may alter the market for new goods, making it more financially feasible for device makers to slow the rollout of new products and extend the life of those already on the market.

If enacted, it will drastically change the way electronics manufacturers do business in Europe. It may see some drop out of the market completely. But expect a lot of opposition from the companies affected as this legislative proposal moves forward. If there’s one thing companies like Apple and Microsoft can agree on, it’s that customers shouldn’t be allowed to cut them out of the repair/modification/replacement chain.

Filed Under: consumers, eu, right to repair

Body Camera Once Again Catches An NYPD Officer Planting Drugs In Someone's Car

Failures

from the just-here-to-ruin-lives-and-collect-a-paycheck dept

If at first you don’t get punished, plant, plant again.

When a police officer in Staten Island was caught by his own body camera in the apparent act of planting marijuana in the car of a group of young men, the video evidence against him was strong enough to prompt prosecutors in the resulting case to throw out the marijuana charge in the middle of a pretrial hearing. A judge cut short his testimony, and prosecutors recommended he get a lawyer.

This incident of unlawfulness by a law enforcement officer received national coverage via the New York Times. In that case, NYPD officers Kyle Erickson and Elmer Pastran stopped a car for a minor traffic violation, claimed they smelled marijuana, and ensured they smelled marijuana by planting some in the man’s car. Officer Erickson turned his camera off during the search, turning it back on in time for him to “discover” some marijuana in the back of the car — in an area his partner had already declared “cleared.” The man, who was unable to afford bail, spent two weeks in jail until his case was thrown out.

As for Erickson — whose actions caught on camera were sketchy enough that prosecutors tossed the case — he went right back to patrolling Staten Island.

[A]n internal review by the New York Police Department found that no misconduct had occurred.

If there’s no deterrence, nothing gets deterred.

Now a new video — published exclusively by The Intercept — shows the same officer again seemingly planting marijuana during a different traffic stop just a few weeks after the first, raising questions about the credibility of internal review processes and highlighting the lack of transparency in cases of police misconduct. The video, which didn’t emerge for nearly two years, also underscores the limited information available not just to the public but also defendants, and validates criticism by police accountability advocates that body cameras are of no use if the evidence they capture remains inaccessible.

Here’s the video:

As Alice Speri points out for The Intercept, body cameras are useless if people — especially criminal defendants — can’t obtain copies of the evidence being used against them. In this case, the defendant pled guilty to a crime he didn’t commit to avoid jail time. He didn’t see the video until attorneys with the Legal Aid Society showed it to him. Even worse, the man was only the passenger in the car and was somehow held responsible for drugs planted in a vehicle that didn’t belong to him and that he wasn’t driving.

The video the NYPD kept hidden from the public shows officers removing Jason Serrano from the car, ignoring his warnings that he had just been stitched up after being stabbed in the stomach. The cops decided Serrano’s reluctance was an invitation to throw him on the ground and reopen his wound. Once they were done brutalizing Serrano, they decided this might pose less of a problem for them if they came up with something they could bust him for.

As Serrano curls up on the sidewalk, bleeding from his wound, and as more officers and bystanders gather on the scene waiting for an ambulance, Pastran searches Serrano’s jacket. “We gotta find something,” Erickson tells him. […] Erickson again returns to the car and continues to meticulously search it, while Pastran briefs a supervisor who has arrived on the scene. Erickson then appears to place something in the car’s drink holder, before opening the front seat’s console and a small toiletry box. Erickson then says “I smell a little weed” just as he appears to pick up and move the little bud he seemed to have dropped in the drink holder moments earlier. Erickson then searches the back of the car, and when Pastran approaches, the two exchange a charged look as Erickson tells Pastran “I see nothing. … You know what I mean?” He then returns to search the front seat area for a third time, this time dropping a larger bud in the drink holder and saying, “There’s a little bit of weed.”

That’s the end result of the NYPD’s internal investigation deciding two years ago that planting evidence was no big deal. The cop went back out on the street with a partner who enabled evidence-planting. Serrano didn’t spend two weeks in jail but he did spend five days handcuffed to a hospital bed. He pled guilty to the resisting arrest charge, even though it was a blatantly bogus arrest.

And the unwillingness to discipline officers for more minor things — like editing body cam footage on the fly — ensures these officers won’t be an anomaly.

A report released last month by the Civilian Complaint Review Board, which relies heavily on the footage as it investigates complaints of police misconduct, noted that officers “often failed to properly use their cameras by turning on the BWC late, turning the BWC off early, or not turning the BWC on at all,” the report noted, using an acronym for body-worn cameras.

Officers don’t start their careers planting evidence in vehicles to turn routine traffic stops into drug busts. They do it because years of experience have shown them cops — and supervisors — don’t care what they do as long as it results in arrests. The narrative here confirms it. Cops did a bad thing, got away with it, and went right back to doing the wrong things. The cycle of law enforcement continues with citizens being nothing more than grist for the criminal justice mill.

Filed Under: body camera, elmer pastran, jason serrano, kyle erickson, nypd, planting drugs, police, staten island

Texas Court Says State's Constitution Protects Cell Site Location Info

Legal Issues

from the guess-Texas-won't-be-seceding-from-Fourth-Amendment dept

The Texas Criminal Court of Appeals has looked at the Supreme Court’s Carpenter decision and decided it applies to cell site location info, even when that information was obtained by law enforcement years before the Supreme Court came to this conclusion. (via Courthouse News)

The location records obtained from AT&T without a warrant destroyed the accused murderer’s alibi. From the decision [PDF]:

Christopher James Holder, Appellant, was charged with capital murder. During the course of the investigation, police accessed 23 days of his CSLI to corroborate his alibi that he was out of town when the victim was killed. But Appellant lied. The records showed that he was near the victim’s house at the time of the murder.

Holder filed motions to suppress the CSLI, arguing the records were obtained without reaching the required “specific and articulable” suspicion standard set by the Stored Communications Act. He also argued it violated the Texas Constitution’s version of the Fourth Amendment, which reads:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Here’s where the investigator went wrong. There’s a defining line between “reasonable suspicion” and “probable cause.” The officer who approached AT&T apparently felt the terms were interchangeable and he could use whichever of those to obtain CSLI records.

The morning of November 12, police obtained a court order directing AT&T Wireless (AT&T) to disclose call log and CSLI records showing the location of Appellant’s cell phone between October 20 and November 12, but an AT&T representative declined to produce them because, according to them, the court order had to be based on probable cause. After changing the phrase “reasonable suspicion” to “probable cause,” the petitioning officer took the new order to a judge, who signed it. According to the officer, “[i]t was simpler for [him] to just change the wording[,] have it re-signed[,] and bother the judge one more time . . . .”

The footnote attached to this paragraph notes the State admitted during oral arguments the request did not have “sufficient facts to establish probable cause.” Cutting corners isn’t acceptable when rights are on the line, no matter how heinous the crime.

The court says suppression is not the appropriate remedy for “non-Constitutional” violations of the Stored Communications Act. But it is likely the appropriate remedy when the Texas Constitution and the Supreme Court’s Carpenter decision are taken into consideration. The court undoes its own precedent to align the Texas Constitution with the US Constitution.

The question we must answer now is whether the Supreme Court’s analysis in Carpenter is persuasive, or whether we should take the position that Texas citizens have less privacy rights under the Texas Constitution than the United States Constitution based on a Supreme Court doctrine that even it has declined to apply to CSLI. We think that it makes more sense to adopt the Supreme Court’s reasoning in Carpenter and to no longer apply the third-party doctrine to CSLI records under Article I, Section 9.

Just because this court hasn’t examined a case directly on point with the Carpenter decision doesn’t mean Texans should have fewer rights just because they live in Texas.

The Supreme Court exhaustively analyzed the privacy issues implicated by CSLI, which we did not do in our original Hankston opinion, and we share the Court’s grave concerns about the Government’s ability to use a continuous, surreptitious, precise, and permeating form of surveillance to continually track its citizens’ every move retrospectively for up to five years. The same privacy concerns are implicated regardless of whether CSLI is accessed under the Fourth Amendment or Article I, Section 9. Further, we have reviewed the constitutional debates in Texas, which we did not previously do, and they show no intention on the part of our framers for Texas citizens to have less protection from unreasonable searches and seizure under the Texas Constitution than the United States Constitution.

Under the Texas Constitution, the search was unreasonable.

Generally, an Article I, Section 9 search is unreasonable absent probable cause, exigent circumstances, or some other recognized law-enforcement need. Here, because the State was acting in its traditional crime-fighting role, and it did not allege exigent circumstances or some other recognized law-enforcement need, the search had to be supported by probable cause to be reasonable. However, the State concedes that the petition does not support a probable cause finding. We agree.

This doesn’t automatically lead to suppression of the CSLI records. But it does overturn two previous decisions by the lower courts. It heads back to the county’s court of appeals for the judge to decide whether the illegally-obtained records gave the prosecution an unearned edge. Whatever the court decides, the rule is in place: the third-party doctrine does not apply to historical CSLI. Get a warrant.

Filed Under: 4th amendment, carpenter, cell site location info, christopher holder, csli, texas
Companies: at&t

Since The FBI Can't Be Bothered To Do It, Motherboard Has Compiled A Database Of Attempts To Access Encrypted IPhones

Failures

from the thanks-for-nothing,-g-men dept

The FBI continues to avoid playing its hand honestly in the “going dark” debate. It continues to do things like call strong encryption “warrant-proof” encryption, damning it by associating its very existence with unlawfulness. FBI Director Chris Wray continues to claim he’s not asking for encryption backdoors while calling for encryption backdoors. And for nearly two years, the FBI has refused to update its erroneous count of uncracked devices in its possession.

The last time the FBI delivered a number, it claimed it had about 7,800 devices in its possession that it couldn’t get into. After being questioned by Congress about its claims, the FBI went back to count devices and found its tracking method had resulted in a severe miscount. No real number has been delivered yet, but the early estimate was that the actual number was slightly over 1,000 devices. Not quite the apocalypse the FBI needed us (and our Congressional reps) to believe it was.

As usual, when the government fails, private citizens step in to do the work that government agencies are spending our tax dollars not doing. The DOJ and FBI have spent years hardly bothering to compile an accurate accounting of police use of deadly force, resulting in a small cottage industry of journalists, activists, and hobbyists doing the work for them.

The same thing can be said about the “going dark” narrative. The FBI loves the narrative but can’t be bothered to provide any hard data backing its assertions that encryption is destroying the criminal justice system. So, it’s left up to people like Joseph Cox and his team members at Motherboard to try to get a grip on how often device encryption is disrupting criminal investigations.

Using information gathered from more than 500 iPhone search warrants and other court records, Motherboard has compiled a database that gives readers a better idea of encryption’s impact on law enforcement investigations — a narrative stripped of all the competing narratives, if you will.

In conclusion, Going Dark is a land of contrasts:

[T]he records compiled by Motherboard show that the capability to unlock iPhones is a fluid issue, with an ebb and flow of law enforcement sometimes being able to access devices and others not. The data solidifies that some law enforcement officials do have trouble accessing data stored on iPhones.

What this doesn’t answer is the question the FBI and DOJ want answered in their favor: should access to encrypted content and communications be guaranteed? Is it better for citizens to be less secure but possibly more “safe” by making encryption inherently flawed? Of course, the answer is “no,” but those at the top of the law enforcement food chain are never going to stop arguing that their lofty ideals should trump the rights and protections of all the little people below them. Only a criminal would want encryption because innocent people have nothing to hide and all of that garbage.

But Motherboard is providing a valuable service — one the government refuses to do itself: it’s providing data about the law enforcement v. encryption battle which should better inform everyone on both sides of the issue. For all of its insistence that encryption is an evil that’s not even necessary, the FBI has done next to nothing than provide a handful of anecdotes about its experience with encrypted devices. And for more than a half-decade, these anecdotes have been backed by extremely faulty numbers. Let’s hope throwing a little more reality around will bring the agency back to earth — and more in agreement with the millions of people who ensure it stays funded.

Filed Under: chris wray, encryption, fbi, going dark, law enforcement, william barr