AG Bill Barr Pretends The Nation Was Better Off Being Bullied By Cops, Lies About The Success Of 'Tough On Crime' Policies

Legal Issues

from the any-AITA-will-tell-you-Barr-is-the-asshole dept

Bill Barr continues to burn the bridge between him and the public he’s supposed to represent. And why shouldn’t he? It’s not like the administration will rein him in, not when he’s willing to act as flak-catcher for the president we’ve all been forced to serve.

It’s good work if you can get it, and by “get it,” I mean subvert the idea of “justice” to mean what it apparently means to Bill Barr. The man has already declared war on the general public, and the encryption the general public uses to protect itself against criminals and state-sponsored hackers. What does “justice” mean to a man like this? It means destroying the populace to ensure cops aren’t unduly burdened by the everyday life of the people they are under no obligation to protect and serve.

Barr’s recent sermon to the converted contains more of the same. The administration that has made a mockery of the phrase “rule of law,” still insists the rule of law is the best thing since improperly-jailed black teens. Barr spoke to a conference you would swear I was making up if I couldn’t produce a link — “Major County Sheriffs of America Winter Conference.” And he delivered just what they wanted to hear: invective insulting anyone who might have the temerity to suggest we (as a nation) jail people far too frequently for far too long.

There have been a few “progressive” prosecutors elevated to the office of District Attorney. This makes Barr sad. But it makes him mostly angry. No one should be allowed to plug up the prison pipeline, not even those who realize the country is not best served by people who think the “fullest extent of the law” is the best interpretation of thousands of vague laws.

So, Barr attacks “progressive” DAs — the one who see prison is not the rehabilitation paradise so often promised by the people Barr fronts for. In fact, it can be argued Barr gives zero shits about rehabilitation. All he cares about is punishment, so it should be painfully aware he should not be heading up an agency with the word “justice” in its title.

Barr’s speech twists facts and hurls invective at those who dare to suggest the best path out of a life of crime might not run through the US penal system.

But before we get to that, let’s get to this outright lie:

You and your deputies face unprecedented challenges. Every day, deputies head out on patrol, never knowing precisely what trials they will face. And the list of assignments we give our deputies and officers keeps getting longer and longer. We no longer merely ask them to keep us safe – we ask them to manage the fallout from a vast range of social pathologies, such as mental illness, widespread homelessness, and drug abuse. It is quite a lot to ask men and women trained to protect the public from dangerous criminals to simultaneously do the jobs of social workers and psychiatrists. Yet our committed law enforcement officers do their best to carry these ever-expanding burdens.

While it’s true we do ask law enforcement officers to handle social problems, it is not truthful to say officers carry this out with the best of their abilities. Law enforcement agencies generally do not train their employees to handle these problems with a different tool set. Instead, they send them out armed with the usual tool set (guns, force deployment) that makes bad situations worse, and results in the wounding or killing of our most marginalized members of society.

But this is Barr’s biggest lie. He claims these new progressives will return us to violent crime’s heyday of the 1990s. And he does this using “facts” that claim the 90s were the safest time of all for Americans.

Another similar problem is the increasing number of district attorneys who have fashioned for themselves a new role of judge-legislator-prosecutor. These self-styled “social justice” reformers are refusing to enforce entire categories of law, including law against resisting police officers. In so doing, these DAs are putting everyone in danger.

Their policies are pushing a number of America’s cities back toward a more dangerous past. Under the district attorney in Philadelphia, the murder rate in that city is at its highest point in over a decade. Other cities with these “progressive” DAs – like San Francisco, Seattle, St. Louis, Chicago, and Baltimore – have all suffered historic levels of homicide and other violent crime. This is while crime nationwide, generally, is going down.

Barr is right. Nationwide violent crime is on the decline. That a few outliers are producing spikes has nothing to do with “progressive DAs” and everything to do with regression to the mean. No one can say definitively why crime has declined so much, but to pin it on Reagan-era policies (as Barr does) is fucking ridiculous.

We have seen these policies before. They reigned supreme at the state level from the 1960s to the early 1990s. During this time, violent crime rates tripled in our country. They peaked in 1991 and 1992. By that time, the country had had enough. Following the lead of the policies of the Reagan, H.W. Bush administrations, the states started to make their systems tougher on crime.

This is a lie. There is no way around this. Nobody was being “progressive” about crime/incarceration during that 30-year span. Reagan kicked off a whole new wave of “tough on crime” politicians. And his tough-talking inspired a new generation of short-sighted legislators who increased incarceration rates while crime spiraled to unparalleled levels. Perhaps Barr should be pointed to Prohibition, where its enactment caused violent crime to spike while resulting in an unprecedented number of cops being killed. It was peak “Tough on Crime,” and it resulted in more crime and more dead law enforcement officers than at any other time in our nation’s history.

Anyway, fuck this guy. Let’s hear what he has to say about “progressive DAs:”

The policies of these DAs also sabotage the effectiveness of community policing and “precision” policing, which depend heavily on obtaining information from members of the community. When DAs engage in catch-and-release and revolving-door policies, people in the neighborhood who might otherwise provide information are scared to come forward.

Hmm. Let’s just swap the words “law enforcement officials” for “DAs” in that paragraph and see if we can’t suss out why people might not trust the police.

The policies of these [police officials] also sabotage the effectiveness of community policing and “precision” policing, which depend heavily on obtaining information from members of the community. When [police officials] engage in catch-and-release and revolving-door policies, people in the neighborhood who might otherwise provide information are scared to come forward.

Law enforcement agencies operate the worst revolving door — one that allows bad cops to whitewash their past and return to work with zero lessons learned. The near-constant application of qualified immunity to rights violations makes this worse. And police unions have generated enough power politicians are afraid to cross them when implementing accountability policies, stripping them of their teeth and usefulness.

William Barr has presumed everyone but government employees to be guilty. That’s why we don’t deserve relief from the US’s world-leading incarceration rate or the protection that device encryption gives us. The general public is presumed guilty and the only people with unvarnished halos are hovering above an agency willing to sacrifice its morals to appease the man on top.

Filed Under: bill barr, doj, law and order, law enforcement, police, tough on crime

CBP Memo Confirms Bus Drivers Have A Right To Deny Agents Permission To Search Buses And Passengers

News

from the Greyhound-rings-in-with-the-loudest-of-'no-comments' dept

Customs and Border Protection has confirmed that its agents can’t legally do one of things they’ve been doing pretty regularly. Under Trump, the CBP has stepped up its sweeps of mass transportation, targeting buses operated by Greyhound and others.

These searches are happening as far inland as the law allows, up to 100 miles from any border (and, technically, any international airport). This isn’t just happening near the southern border. Travelers in New York and Maine have reported being questioned and otherwise harassed by CBP agents, who have been given permission to search buses by drivers.

According to a memo obtained by the Associated Press, CBP does not actually have the legal authority to conduct sweeps of public transportation.

The memo obtained by the AP was dated Jan. 28, addressed to all chief patrol agents and signed by then-Border Patrol Chief Carla Provost just before she retired. It confirms the legal position that Greyhound’s critics have taken: that the Constitution’s Fourth Amendment prevents agents from boarding buses and questioning passengers without a warrant or the consent of the company.

“When transportation checks occur on a bus at non-checkpoint locations, the agent must demonstrate that he or she gained access to the bus with the consent of the company’s owner or one of the company’s employees,” the memo states. An agent’s actions while on the bus “would not cause a reasonable person to believe that he or she is unable to terminate the encounter with the agent.”

Sadly, this means one person’s consent trumps the rights of every person on the bus. And this memo conflicts with statements made both by the CBP and representatives for Greyhound, the latter of which have routinely insisted they have no right to deny CBP access to buses.

Border Patrol officials claim they always ask for consent from drivers. Even if this is true (and it probably isn’t), there’s little to indicate the actions taken by agents once on a bus would make it clear to passengers that any questioning or searches are optional.

Last year, Greyhound said it could not refuse entry to federal officers. Spokespeople went so far as to suggest people (like ACLU reps) saying it did have a choice were being “false and tendentious.” Well, it’s now clear who’s going to be false and tendentious if bus drivers continue to let the CBP search their vehicles (and their vehicles’ occupants). The company already seems to be stepping out on the “false” limb, insisting it has always been opposed to the sweeps it has never opposed:

Greyhound said that it appreciated the Border Patrol “clarifying” its policy. “We were unaware of USBP’s memo clarifying their practices regarding transportation and bus check operations,” the company said. “We are pleased there appears to be greater context about these practices as we have publicly stated we do not consent to these searches and maintain that position.”

To reverse this, Greyhound needs to make an affirmative statement that it categorically does not consent to bus searches and post signage that allows the company to speak for its drivers when drivers might feel pressured by federal agents to ignore company policy.

So far, Greyhound has done nothing to make it clear its anti-sweep. Jeremy Stahl of Slate tried to get a direct answer from the company and got some runaround and deflection instead.

When I asked Tricia Martinez on Friday if she maintained the legal position that “Greyhound cannot deny Customs and Border Protection (CBP) access to its buses,” she told me, “I’m maintaining the position that you need to call our communications specialist.”

Greyhound’s communications specialist informed Slate that “[t]he company will not be providing any statements at this time.” Greyhound is being sued in California by a U.S. citizen for allegedly allowing CBP to racially profile its passengers.

Despite the use of Border Patrol and Customs and Border Protection officers, this tactic sometimes doesn’t seem to have much to do with patrolling and protecting borders. The AP reports arrests in Spokane, Washington area (nearly 100 miles from the Canadian border) more than doubled from 2017 to 2019, despite the fact no Greyhound lines operating from that terminal cross international borders. A recent experience related by comedian Mohanad Elshieky detailed the CBP’s boarding of his bus in Spokane — one that culminated in agents unilaterally declaring he was in country illegally despite verifying both his work permit and license were valid.

Until Greyhound joins other bus lines in denouncing CBP sweeps and promising to protect their customers from suspicionless searches, the agency will continue to target these passengers. If you want your rights asserted on your behalf, you’re better off with a competitor.

Filed Under: 4th amendment, buses, cbp
Companies: greyhound

College Student Gets Thrown On The Ground And A Gun Pointed At His Head For Committing The Crime Of 'Taking A Selfie While Black'

Legal Issues

from the lots-of-power,-zero-impulse-control dept

The latest crime to result in civil litigation is “taking a selfie while black.” Doing so in Illinois gets your face pushed in the snow, a knee in your back, and a gun held to your head. (via Simple Justice)

Jaylan Butler was traveling back from a swim meet in South Dakota with the EIU swim team. During a break at an East Moline rest stop, the bus driver suggested Butler take a selfie in front of the “BUCKLE UP, IT’S THE LAW” sign at the rest stop.

This somehow prompted all law enforcement hell to break loose. From Butler’s lawsuit [PDF]:

Mr. Butler took a photo of himself smiling in front of the sign, and then began walking back toward the bus.

[…]

After only a few steps, several law enforcement vehicles with flashing lights suddenly pulled up in front of him.

[…]

When Mr. Butler saw the law enforcement vehicles pull up, he was surprised and confused, but knew what to do. He instantly stopped, put his hands up, dropped the cell phone that was in his hand, and dropped to his knees.

[…]

Defendants exited the vehicles with their firearms pointed at Mr. Butler. At least one Defendant was carrying what appeared to be a rifle.

Defendants shouted at Mr. Butler: “Get down!” and “Don’t fucking move! Stay right there!” Mr. Butler kept his hands up and complied with Defendants’ orders.

Defendants forced Mr. Butler to lie face down on the snowy ground.

On information and belief, Defendants Staes, Asquini, Pena, and additional Defendants held Mr. Butler down while Defendant Bush handcuffed his arms behind his back.

At least one Defendant had his knee pressed into Mr. Butler’s back, and at least one Defendant was pressing down on Mr. Butler’s neck.

Another Defendant was squatting down in front of Mr. Butler. He put his handgun against Mr. Butler’s forehead and said, “If you keep moving, I’m going to blow your fucking head off.”

This impromptu show of force somehow involved officers from three different law enforcement agencies. The whole thing played out in front of several witnesses and no officer bothered to explain why they suspected a student in an EIU jacket to be worthy of guns-out force deployment while standing a few feet away from an EIU bus manned by an EIU bus driver.

In the absence of any explanations from the involved agencies, this appears to be intra-agency cooperation at its worst, where every officer has the same bias towards black males.

Everything about this gets worse when you read Barb Ickes’ article for the Rock Island Dispatch-Argus. (We’ll assume she did not write the unfortunate headline that tries to exonerate everyone currently being sued.) Not a single officer or official can explain what happened or why it happened. There is not a coherent answer to be found in this report.

The Rock Island Sheriff’s Department’s lawyer denies the two Does listed as defendants were involved in this incident. The attorney offered no comment about the two named Rock Island deputies. According to the attorney, the Rock Island officers were called in to assist Henry County Sheriff’s deputies. This assertion was not backed by the Henry County Sheriff.

Henry County Sheriff Kerry Loncka looked up records from Feb. 24 and said no reports were filed by Henry County deputies.

I guess a guns-out stop that results only in Constitutional violations isn’t worth noting. The sheriff speculated it might have had something to do with a report of a driver shooting at another vehicle but the suspect went into Rock Island county before crashing his car and the sheriff had no further details.

The Rock Island Sheriff was also mostly unaware of what happened that night.

Rock Island County Sheriff Gerry Bustos said he knew little about the incident but said he was not, as the officers who arrested Butler are said to have claimed, responding to an active-shooter event that night.

The only thing even close to an “active shooter” on the books that night was a call about a 10-year-old playing with a toy gun down by the railroad tracks, which was resolved by a deputy speaking to the child’s parents.

The Henry County Sheriff also said his deputies asked for Rock Island’s assistance after being asked by the Illinois State Police to assist in whatever it was that no involved agency can clearly state they were combining forces to handle. The State Police have refused to offer any comment on this incident. And it’s now stonewalling requests for information about its involvement in the arrest/assault of Jaylan Butler.

In response to a Freedom of Information Act request seeking records that would explain what police were responding to when they mistakenly took Butler into custody, a FOIA officer responded that no information could be supplied without the name and date of birth of the person arrested.

Despite objections that the FOIA request sought only incident reports related to the events of Feb. 24, the FOIA officer did not respond. A public information officer for the Illinois State Police said last week that she would try to help provide information “ASAP.” Five days later, no information was provided.

Even if we assume the drive-by shooting that appears to be a post facto rationalization for the treatment of Butler is actually true, it still makes no sense. Why would officers assume a person wearing an EIU jacket standing near an EIU bus full of other students wearing EIU jackets is the shooter they were looking for? Why were they at the rest stop in the first place? This speculation does us no good, but the shittiest part of this is that we shouldn’t need to be engaging in speculation in the first place. The involved agencies should have had an answer for what happened here, but between the three of them, not a single person could explain what happened here, much less why it happened.

We’re not going to get a real answer from these agencies, not even under oath. What it looks like is probably what is, as Scott Greenfield explains.

No matter how you twist this, when the deputy put the one black guy on the ground and uttered the words taught in every police academy everywhere, “If you move, I’ll blow your fucking (expletive added) head off,” there was no excuse, rational or not, credible or not, offered. They couldn’t even be bothered to make up a lie. Maybe, in response to Butler’s suit, they’ll get another chance to come up with something to at least pretend it wasn’t pure, unadulterated racism.

No officer is going to testify that they saw a black male and made their move, presuming they’d find something to justify the stop and use of force later. But, in the deafening absence of any explanation that fits the most minimal definition of the word “credible,” it’s not at all far-fetched to assume the officers think “black” is the same thing as “suspicious.”

Filed Under: east moline, gerry bustos, illinois, jaylan butler, racism, rock island sheriff

GAO Says TSA Has No Idea If Its Screeners Are Up To Date On Their Training

Failures

from the front-line-defense-composed-entirely-of-benchwarmer-grade-personnel dept

Here comes more evidence explaining why the TSA sucks at prevention and blows at cures. Presented to voters as a proactive defense against sophisticated terrorism threats, the TSA has become an agency that belatedly reacts to each observed threats — threats normally defused by passengers who don’t work for the government and haven’t received extensive training on anti-terrorism protocols.

Passengers can’t screen other passengers, but they’ve proven pretty adept at defusing airborne threats. The TSA has the power to do both, but usually does neither, spending its time dumping breast milk into trash cans, fondling toddlers and people with rare diseases, and proudly displaying every inert grenade it seizes as evidence of its travel safety prowess.

When it comes to prevention, the TSA can’t even meet the low bar of recognizing and seizing the items they’re specifically trained to recognize and seize. And the longer the TSA exists, the worse it seems to be getting at providing transportation safety. Maybe it’s because agents are spending more time searching for cash than explosives. Or maybe it’s because the TSA believes its own “behavioral detection” snake oil. Or maybe it’s because the TSA is a large bureaucracy more interested in its continued existence than delivering results.

The Government Accountability Office’s latest report [PDF] says the TSA isn’t doing much to ensure its personnel are hip to the latest threats and knowledgeable about current protocols. Training is mandatory… or so the TSA says. But it has no paper trail that might indicate it’s actually providing necessary training or improving the skills of its screeners.

TSA screens millions of airline passengers and their bags each day at commercial airports. To do so effectively, it requires its screener workforce to complete trainings on screening procedures and technologies. TSA has updated these trainings in recent years to keep up with emerging threats.

However, we found that TSA has not documented its process for monitoring whether its screeners are taking these required trainings. The agency also hasn’t looked at its training data across years to identify trends that may require action.

The TSA Modernization Act of 2018 has not made the TSA any more modern, apparently. It gave the TSA a new set of check boxes to check off. The TSA has put checks in the required boxes, but it seems to feel the job is done when those boxes are checked. The goal of the 2018 act was to push the TSA to ensure it provided the most safety for travelers. Instead, all it did was get a few pencils pushed at the administrative level with no measurable effect on the rank-and-file.

TSA relies on an online database to monitor screener compliance in completing required training at the nation’s commercial airports. However, TSA has not documented its process for monitoring screener training compliance, including for analyzing compliance data and reporting and addressing instances of noncompliance at airports. Moreover, while TSA monitors airport compliance rates in a given year, it does not analyze the data across fiscal years for potential trends in noncompliance by individual airports that may warrant corrective action at the headquarters level.

What the TSA doesn’t know can’t hurt it. It may hurt some travelers but they’re not on the screener matrix so no one cares. If the TSA did even the slightest bit of analysis, it would have realized it still had several severe problems to solve. Instead, an outside agency is pointing out what the TSA should have already known.

GAO found that in fiscal years 2016 and 2017, screeners at 435 commercial airports met TSA’s 90 percent target compliance rate, while in 2018, five airports had compliance rates well below this target, dropping 15 to 26 percentage points from the prior year. TSA officials stated they were unaware of this development.

The thing that still isn’t being done is the same thing the GAO recommended in 2018, when it previously took a look at the TSA’s under-performing personnel and its similarly weak training programs. Two years later, the GAO remains unimpressed. And the TSA remains unchanged. This is unacceptable for an agency our politicians have agreed to pretend provides a valuable service. We’re all being forced to play along. The least the TSA could do is provide better lip service. You can’t head off emerging threats if you’re not even willing to stay current on the existing ones.

Filed Under: gao, security theater, training, tsa

Doctor Suing A Patient Over A Negative Review Has His Case Dismissed Under Tennessee's New Anti-SLAPP Law

Free Speech

from the when-your-attorney-doesn't-seem-to-be-aware-of-updates-to-the-law dept

For the second time in less than a month, I’m reporting on Tennessee attorney Dan Horwitz’s anti-SLAPP powers. The state — once home to a bunch of really stupid defamation lawsuits targeting protected speech — is no longer as welcoming to this particularly vexatious form of litigation thanks to its new anti-SLAPP law.

No sooner had the law passed than a doctor decided to sue a patient over an unfavorable Yelp review. Dr. Kaveer Nandigam was apparently unhappy Kelly Beavers recorded an appointment with her father, who is suffering from dementia. Beavers routinely did this to ensure she was providing proper care for her dad. Dr. Nandigam took exception to her recording process, demanding she delete the recording and yelling at her for doing something fully within her rights (Tennessee is a one-party consent state).

Beavers expressed her displeasure on Yelp and Dr. Nandigam expressed his displeasure by suing her. He dropped the lawsuit when Beavers secured the assistance of Dan Horwitz, who has been beating back bullshit lawsuits in Tennessee for years now.

But this win was very short-lived. Nandigam refiled his dismissed lawsuit in the county’s General Sessions Court, supposedly for “procedural reasons.” Maybe so, but it seems like the not-so-good doctor maybe thought doing a court switcheroo would shake his anti-SLAPP tail, personified by Horwitz.

It didn’t work. Horwitz is now reporting he’s secured a win that will keep Nandigam from trying to fire up his SLAPP suit for a third time. (Well… barring any inexplicable takes from the state’s appeals court.)

Several defendants quickly benefited from the TPPA’s [Tennessee Public Participation Act] added protections after the statute took effect, resulting in plaintiffs quickly dropping defamation claims or providing additional bases for dismissal in speech-based lawsuits that were ultimately dismissed on other grounds. Today, however, in a ruling by Wilson County General Sessions Judge Barry Tatum, the first-ever petition to dismiss a plaintiff’s claims under the Tennessee Public Participation Act has been granted.

The one-page order dismisses the case with prejudice and says all costs will be paid by Dr. Nandigam. Horwitz and Beavers are still waiting for a ruling on legal fees and/or sanctions but the law is on Horwitz’s side. The state’s anti-SLAPP law allows the prevailing party to recover fees and this swift dismissal (with prejudice) of Nandigam’s second attempt suggests that will go Beavers’ way as well.

The law works. It should work better this time around with a full dismissal, rather than a case dropped just so the plaintiff could try again in an adjacent venue. If Nandigam ends up having to pay the winner’s legal fees, the new anti-SLAPP law may finally act as a deterrent, with the doctor providing a test case other attorneys can use to dissuade similarly-aggrieved residents from suing people for criticizing them.

Filed Under: 1st amendment, anti-slapp, daniel horwitz, free speech, kaveer nandigam, kelly beavers, reviews, tennessee
Companies: nandigam neurology, yelp

NYPD Lied About National Security During An Attempt To Obtain A Journalist's Records From Twitter

News

from the IN-CASE-OF-REALLY-REALLY-WANTING-SOMETHING,-BREAK-GLASS dept

This is a lie. There’s no way around it. I’m sure the NYPD will come up with some excuse for this, but it will probably take a lawsuit to obtain the underlying documents, if not the NYPD’s internal justifications.

This all started with shooting in New York City. NY Post Police Bureau Chief Tina Moore obtained — and tweeted — graphic crime scene photos apparently leaked by an NYPD employee. Rather than limit itself to investigating the leak internally, the NYPD decided to drag the reporter into this.

The subpoena to turn over documents, provided to The Post by Twitter, directs the social media company to produce all device and contact information associated with the user handle @Tinamoorereport, as well as all the handle’s connection history between Oct. 9 and Oct. 14.

During that time, Moore obtained and tweeted a gory crime scene photos from a dice-game shooting in Brooklyn that left four dead and three injured. Those photos appear to be at the center of the NYPD subpoena.

This isn’t just sort of wrong. This is very wrong. The state’s shield law explicitly says this sort of thing isn’t allowed.

New York’s Shield Law codifies the privilege, arising under the First Amendment, that protects professional journalists from compulsory disclosure of confidential sources contacted or materials obtained in the course of gathering information for public dissemination.

Under New York law a professional journalist is defined as one who is engaged in “….gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public…”

Maybe the NYPD thought it wasn’t breaking the law because it sent the subpoena to Twitter, rather than to the journalist. Maybe the NYPD just didn’t care. Either way, the state’s law shields Moore from these demands for information. If the NYPD has a leak problem, it needs to handle it without threatening First Amendment-protected activities.

But it somehow gets worse. The NYPD cited two authorities in its subpoena [PDF]. The first is somewhat redundant: Section 14-137 of the New York City administrative code simply gives the NYPD the power to issue subpoenas. The second citation, however, makes no sense. And it’s this citation that makes it a lie.

See also USA Patriot Act, P.L. 107-56, Section 211 codified at 47 USCS Section 551(c)(2)(D).

This isn’t a terrorism case. This is a standard shooting case not tied to any suspected terrorist activity. But it appears the NYPD thought throwing that on the form would maybe allow it to gather all of the following with minimal protest from Twitter:

any/all detailed subscriber, profile, contact, billing and payment information; any/all associated email account(s)/ screen name(s)/ user name(s)/ domain name(s); any/all associated ISP/ESP provided or externally based storage account(s); any/all SERVER, CM, CPE, DHCP, GUID, FTP, IIS, Twitterpic address history and connection logs; any/all MAC or IP address history, length of service and connection logs related to this request for the account(s), subject(s), and any associated electronic device(s) using the following Twitter user name: @TinaMoorereport

It’s a fishing expedition designed to give the NYPD additional entities to throw subpoenas at, presumably with the same nonsensical reference to the Patriot Act attached. It’s unclear whether Twitter handed over this info. Whatever the case, it has actually made the pro-NYPD New York Post a bit less supportive of New York’s Finest. An op-ed from the paper’s editorial board says the NYPD should know better than to go after a journalist’s sources… and it definitely shouldn’t do this while pretending a normal shooting was somehow related to national security.

Unfortunately, the NY Post can’t bring itself all the way around on the issue, which results in the incongruity of a city paper seeing actual abuse of a law it loves but still refusing to criticize the abused law.

We’ve been firm supporters of the Patriot Act from the start, even as its critics have warned that law enforcement would seek to abuse such extraordinary powers by applying it to cases that have nothing to do with national security.

Now the NYPD — or its lawyers — has just given those critics some powerful fodder, undermining a law that helps keep this terror-target city safe.

Yes, people who abuse easily-abusable laws are bad. But bad laws that lend themselves to abuse are bad too, whether or not anyone gets around to abusing them. That’s the hard truth the Post will have to face at some point. But I guess the wholly-unjustified targeting of one of its reporters isn’t the “road to Damascus” moment it’s looking for.

Filed Under: 1st amendment, abuse, leaks, nypd, patriot act, shield law, subpoena, tina moore
Companies: ny post

Judge Shuts Down Copyright Troll's Cut-And-Run Effort; Hits It With $40K In Legal Fees

Copyright

from the striking-three-to-a-match dept

The art of copyright trolling is completely artless. There’s no subtlety to it. Flood federal courts with filings against Does, expedite discovery requests in hopes of subpoenaing a sue-able name from a service provider, shower said person with threats about statutory damages and/or public exposure of their sexual proclivities, secure a quick settlement, and move on.

It doesn’t always work. At the first sign of resistance, trolls often cut and run, dismissing lawsuits as quickly as possible to avoid having to pay the defendant’s legal fees. This isn’t anything new. And there are very few courts left that treat the rinse/repeat cycle as novel. Judges are calling trolls trolls with increasing frequency and more than a few trolls and their legal representation have turned to theft and fraud to make ends meet.

Via Fight Copyright Trolls comes another decision where a porn-based copyright troll is getting its financial ass handed to it by a federal judge. Strike 3 tried to dismiss a lawsuit when it became obvious it couldn’t prove infringement, opting for a voluntary dismissal without prejudice in hopes of dodging a bill for legal fees. It didn’t work.

After some discussion of the technical aspects of Strike 3’s aborted discovery attempt — which involved Strike 3’s experts failing to find evidence of infringement on the defendant’s hard drive — the court gets down to the business of cutting the troll off at the knees to prevent it from escaping the costs of its bogus litigation.

The court [PDF] says Strike 3 can’t have everything it wants — the cake, the celebratory disposable plate, the opportunity to consume the cake at its leisure, etc. Arguing that this is cool because some other troll tried it doesn’t impress Judge Thomas Zilly.

Unlike in LHF Productions, in which an alleged BitTorrent user’s counterclaim for a declaration of non-infringement was dismissed as moot in light of the plaintiff’s dismissal with prejudice of the underlying copyright infringement claim, in this matter, Strike 3’s voluntary dismissal was without prejudice, see Notice (docket no. 53), and in contrast to the plaintiff in Crossbow, Strike 3 has not provided any covenant not to sue. Indeed, not only has Strike 3 preserved its ability to pursue further litigation against John Doe, it has indicated that it will not consent to a declaration of non-infringement unless John Doe is precluded from receiving attorney’s fees and costs and Strike 3 is explicitly permitted to bring copyright infringement claims against John Doe’s son.

Then the court quotes another case involving yet another copyright troll (Malibu Media) to shut down Strike 3’s “heads we win, tails you lose” exit strategy.

In essence, Strike 3 is attempting to thwart John Doe’s efforts to obtain attorney’s fees and costs by, on the one hand, refusing to dismiss its Copyright Act claim with prejudice and thereby denying John Doe “prevailing party” status, while on the other hand, deploying its dismissal without prejudice as a jurisdictional shield against John Doe’s declaratory judgment claim. The Court will not permit Strike 3 to use such “gimmick designed to allow it an easy exit… [now that] discovery [has] reveal[ed] its claims are meritless.”

The court is going to hand the defendant the victory, as well it should. The burden of proof for infringement rests on the accuser and Strike 3 failed to show any infringement occurred. Since Strike 3 can’t prove this — and its attempt to dismiss the case makes it clear it has no intention of proving infringement occurred — the defendant’s declaration of non-infringement is the default winner.

Consistent with Strike 3’s lack of proof of copying, John Doe’s expert has indicated that John Doe’s computer does not contain any of the motion pictures described in Exhibit A to the Complaint. No genuine dispute of material fact exists, and John Doe is entitled to judgment as a matter of law. John Doe’s motion for summary judgment is GRANTED, and a declaratory judgment of non-infringement will be entered.

Since Strike 3 lost — and engaged in a bad faith dismissal to dodge paying Doe’s legal fees — the defendant and his representation are getting almost everything they’ve asked for. That’s $40,000 in legal fees and $7,000 costs Strike 3 will have to pay for two years’ of failed litigation. But mostly Strike 3 paying because it tried to forfeit rather than take the L.

As the court notes, the tide of trollish litigation may be slowing, thanks to the Ninth Circuit’s Cobbler Nevada decision. It’s not over yet. This isn’t the last time we’ll see a troll light itself on fire in its haste to escape a losing lawsuit. But it’s enjoyable all the same.

Filed Under: copyright, copyright troll, copyright trolling, sanctions
Companies: strike 3

Federal Agencies Are Still Abusing Their Favorite, Super-Vague FOIA Exemption Thousands Of Times A Year

Failures

from the (b)ecause-we-can-can-can dept

The Freedom of Information Act was supposed to result in, you know, the freedom of information. Obviously, not everything the government produces paperwork-wise can end up in the public’s hands, but far more should be turned over to the public than has been.

Using a proprietary blend of stonewalling and excessive fee demands, countless government agencies have managed to keep public documents away from the public. It takes a lawyer to win FOIA lawsuits, which may be why corporations are getting their hands on far more documents than American citizens.

Exemption b(5) is, by far, the federal government’s favorite. It’s vague enough it can cover just about anything.

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

Sprinkle a little intra-agency imagination over a pile of paperwork and responsive documents suddenly become unresponsive and are removed from life support as soon as feasibly possible. FOIA lawsuits are the metaphorical families in the waiting room, begging Dr. Info to reconsider pulling the plug.

Exemption b(5) has been used to withhold everything from State Department’s “what a load of crap” Post-It note (attached to a Congressional proposal to designate Pakistan as a sponsor of international terrorism) to the CIA’s files on the 1961 Bay of Pigs invasion.

The abuse of this exemption may have peaked in 2013, when federal agencies used it more than 81,000 times. But things haven’t necessarily improved in the last seven years. In 2018, (b)5 was still cited more than 60,000 times. The (otherwise considerable) drop in deployment may be due to 2016 legislation, as the Project on Government Oversight explains:

One possible factor in the reduced use of Exemption 5 since its peak in 2013 may be reforms instituted by the FOIA Improvement Act of 2016. One reform barred the use of the exemption for records more than 25 years old…

That would remove the CIA’s strategic blockade of its Bay of Pigs docs. But there’s plenty of info far less dated that still receives the (b)5 “get out of transparency free” card. Multiple investigations of ICE detention centers highlighted the inconsistent application of the feds’ go-to exemption. Documents handed to NPR [on the left in the image below] by ICE contained plenty of information. The docs handed to POGO, however, contained only redactions and the b(5) excuse.

Somehow the same information was both able to be released and able to be withheld under exemption b(5). As POGO points out, the b(5) boilerplate makes zero sense when applied to the text released to NPR. This exemption isn’t supposed to deny the public access to common sense conclusions.

It’s difficult to understand how these statements—that inadequate mental health care leadership leads to poor care, and that solitary confinement is the “most important issue” at this particular detention center—can be properly withheld under Exemption 5. There is no attorney-client advice, and no deliberation on a pending policy decision.

If this is repairable, it will take an act of Congress, just like it did the last time. This exemption is like qualified immunity for cops: why not toss it up against the wall and see if it sticks? Since it usually takes litigation to reverse agency non-judgment calls, the house — which spends other people’s money to stick it to the people — almost always wins.

Filed Under: b5, foia, government, inter-agency communications, secrecy, transparency

CBP, ICE Hoovering Up Cell Location Data From Third Party Vendors To Track Down Immigrants

Privacy

from the 'legal-gray-areas'-is-where-we-do-our-best-work dept

Supreme Court precedent says the government needs a warrant if it wants to get cell-site location info. This ruling altered the contours of the Third Party Doctrine, making it clear not every third-party record exists outside the Fourth Amendment’s protections.

But that only applies to location info gathered from cell service providers utilizing the data they collect from cell tower connections. When the government wants to track the movement of individuals, it can do it, but it needs a warrant. When it just wants a bunch of location data on everyone in an area, somehow the warrant requirement disappears.

That’s what CBP and ICE are doing. According to a report by the Wall Street Journal [paywall], the agencies are buying location info in bulk from third-party vendors. No warrant required.

The Trump administration has been using commercial data that tracks millions of smartphone users’ locations to help enforce its policies on immigration and deportation, according to a report Friday from the Wall Street Journal.

The database, owned by a company called Venntel Inc., collects information from run-of-the-mill games, weather and shopping smartphone apps where users have agreed to share their location, according to the report.

This isn’t cell-site location info, technically. But a lot of this location data wouldn’t exist without cell towers. The CBP believes this is all very legal, as it does not target any one person and, in a rather stupid assertion, claims the data is “pseudonymized.” This means the location data isn’t linked to identifying info about the cell phone’s owner. But that word means even less than the usual “anonymized.” The application of analytic tools can strip this anonymization away, even without additional data pulled from other sources.

If the data were truly anonymized, it would be worthless: just a bunch of data points unrelated to anything. But it obviously isn’t anonymized — or at least isn’t that way for long after the agencies obtain it — or the government wouldn’t be saying things like this:

Sources told the Journal that Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two divisions under the Department of Homeland Security (DHS), have used the location data to help them identify and locate those who may have entered the country unlawfully, whom they later arrested.

Both agencies have been using this data since 2017, according to contract info obtained by the Wall Street Journal. For now, it’s still legal to obtain this data from third parties without a warrant. It’s unlikely this data will see a successful challenge any time soon, not if it’s coming from third parties that have been given explicit permission to collect location data.

But that doesn’t mean current protections for cell-site location info won’t eventually expand to cover third parties like Venntel. Voluntarily sharing location info with a company isn’t the same thing as voluntarily sharing data with the government, no matter how much the government argues there’s no expectation of privacy in records freely given to third parties. Many people feel more comfortable sharing data with companies, since the end result tends to be things like targeted ads, rather than targeted investigations.

Oddly, CBP claims the data is not “ingested in bulk,” which seems to run counter to how this data is purchased. If it’s truly anonymized, the CBP has no choice but to obtain it in bulk and work from there to determine who it’s targeting for removal. Perhaps the CBP’s definition of “bulk” is different than the common definition of “bulk.” Maybe the agency believes that throwing up a couple of geofences prevents this from being a “bulk” collection. If so, the government is wrong. Anything that provides massive amounts of data from multiple sources is a, by definition, a “bulk collection.”

This is working for the government right now. But sooner or later, this haystack-building method will likely find itself on the wrong side of the Constitution, especially when courts are informed of just how meaningless the word “anonymized” is in the context of bulk location data.

Filed Under: 3rd party doctrine, cbp, cell site location info, commercial purchases, csli, dhs, ice, location tracking, privacy, warrants

Court To Prosecutors Who Sent Crime Victims Fake Subpoenas Threatening Them With Arrest: Pretty Sure Immunity Doesn't Cover That

Legal Issues

from the DA:-pretty-sure-we-can-do-whatever-we-want-without-being-sued dept

A few years ago, The Lens exposed a super-shady tactic being used by Louisiana prosecutors. In an attempt to obtain a bit more compliance from witnesses in criminal cases, the Orleans Parish District Attorney’s office started issuing fake subpoenas to witnesses that contained (an also-bogus) threat of imprisonment.

Rather than do it the legal way — using office letterhead with no threat of incarceration — the DA’s office opted for a hard sell tactic that deliberately mislead citizens. The office claimed this was fine and that no one paid attention to the big, bold print promising jail time for not cooperating.

Two weeks after The Lens exposed the practice, the lawsuits began flowing in. Some lawsuits sought copies of the fake subpoenas the office had issued. Others sued over the practice itself. Crime victims, who had been falsely threatened with being treated like criminals themselves, sued the DA. The problem with this is prosecutors are generally given absolute immunity which makes them nearly impervious to civil lawsuits.

Fortunately, a Louisiana federal court allowed the lawsuit to proceed, finding (on very narrow grounds) absolute immunity couldn’t be stretched to cover every bit of this nasty, deceitful scheme.

This Court finds that granting the Individual Defendants absolute immunity for allegations of systematic fraud that bypassed a court meant to check powerful prosecutors would not protect the proper functioning of a district attorney’s office. It would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.

The DA’s office is still hoping to shut the lawsuit down. It appealed the lower court’s decision, but it’s not finding any receptive judges at the higher level. Again, the DA is pitching absolute immunity — a complete, judicially-approved whitewashing of all its sins. This pitch did not perform well at the oral arguments.

It was unclear when the three-judge panel of the 5th U.S. Circuit Court of Appeals would rule, but panel members sounded clearly skeptical as W. Raley Alford III, attorney for the prosecutors, made his case.

“Threat of incarceration with no valid premise?” Judge Jennifer Elrod said at one point during arguments. She later drew laughter from some in the audience when she said, “This argument is fascinating.”

“These are pretty serious assertions of authority they did not have,” said Judge Leslie Southwick, who heard arguments with Elrod and Judge Catharina Haynes.

Tough to retain immunity without a lawful premise. As for the DA, he’s not willing to back down from his assertions the fake subpoenas were a net good for the community he inflicted them upon. DA Leon Cannizzaro was filled with compassion when he falsely threatened people with arrest for not complying with a fake subpoena.

Cannizzaro also has said the warrants are rarely used to arrest victims of domestic violence or sexual crimes.

What a guy. Material witness warrants were rarely used to further traumatize victims of trauma. For everyone else though, Cannizzaro was willing to jail crime victims until they talked.

The lead plaintiff said she was jailed after declining to pursue charges against a man who shattered her cellphone during a fight. Cannizzaro’s office responded to that part of the complaint by saying the woman was legally incarcerated after avoiding legitimate court-issued subpoenas.

Oh, okay. Given the office’s routine deployment of fake subpoenas, it’s a bit rich to accuse them of dodging the real ones. Also, someone refusing to press charges shouldn’t be locked up until they decide to assist prosecutors in prosecuting a case the crime victim has no desire to see prosecuted.

Hopefully, the appeals court will uphold the lower court’s decision and prevent the prosecutors from dodging accountability completely.

Filed Under: da, fake subpoenas, immunity, law enforcement, louisiana, orleans parish