Appeals Court: Not A Crime To Say A Mayor Should Get His Ass Capped

Legal Issues

from the especially-when-no-one-seems-to-know-what-exactly-that-means dept

Harassment statutes tend to be broadly written and often undergo legislative surgery after they’ve been challenged in court. This isn’t one of those cases. The statute stands. But the conviction does not.

A New Jersey man was arrested and charged with harassment after his handwritten criticism of the Secaucus mayor was discovered and brought to the attention of the mayor, who then had to ask his daughter what the note meant.

Here’s a brief summary of the alleged crime from Keldy Ortiz of NorthJersey.com.

The arrest came after [Michael] West put a sign on a locked fence on the end of Farm Road in Secaucus that read “the mayor is out of control with his draconian rules & somebody must cap his ass.” The note was found by a department of public works employee.

West had a reason for doing this:

The sign from West came after he took issue with a tree that was cut down in town.

Most people know what having your ass capped means. Most people do. Michael West claimed he didn’t know what that phrase meant when he wrote it. More importantly, Mayor Michael Gonnelli didn’t know what the phrase meant. Not only was the note placed somewhere the mayor was unlikely to discover it, the note was discovered by a third party who informed the mayor of its existence.

The decision [PDF] recounts what took place once the mayor took possession of the indecipherable note.

The Mayor took the note and brought it back to his home but, at that time, he did not “realize what the note meant.” His wife was equally mystified. However, when he showed the note to his daughter, she “immediately told [him] what it meant.”

It was only after all of this that the mayor decided he felt “uncomfortable” and decided to report it to law enforcement. The defendant spoke in his own defense at the bench trial but that didn’t go all that well.

His attorney asked him: “What was the purpose? Why did you . . . put . . . that note there?” The record shows defendant’s response consisted of a rambling, nonsensical diatribe in which he alleged to “being watched by two detectives” that were “standing by a rock.”

He was also asked about the tree that triggered his angry note writing.

Defendant continued this stream of consciousness with irrational testimony for several transcription pages until the municipal court judge intervened…

The municipal court decided this was still harassment, mainly because of the “cap his ass” phrase. The appellate court disagrees… about a number of things.

First, the court says the municipal court judge should have recused herself since she was the one that approved the arrest warrant for the person whose case she was now trying.

But more to the harassment point, the state failed to prove this was harassment, that the defendant was trying to threaten the mayor, or even that anyone involved knew for sure the phrase “cap his ass” was clearly threatening.

The Mayor was the State’s only witness. The Department of Public Works employee who discovered the note and brought it to the Mayor’s attention did not testify. The note stated: “the mayor is out of control with the draconian rules & somebody must cap his ass.” Both the Mayor and defendant testified that they did not know what the phrase “cap his ass” meant. The Mayor testified that his daughter told him what the phrase meant to her. The State did not produce any competent authority of the meaning of the phrase. It is undisputed that the note was posted at a place unlikely to be discovered by the Mayor. Based on the testimony of the only two witnesses, the meaning of the phrase “cap his ass” remains unsettled.

The defendant claimed he didn’t know what “cap his ass” meant. He also posted the sign in a place where it was unlikely to be discovered by its supposed “target.” The defendant had not engaged in any previous harassment of the mayor or any other city employees. In fact, there had been no interaction at all between the accused and the man in need of ass capping.

The state appeals court dumps the conviction.

[W]e are satisfied that based on the record before us, no reasonable fact-finder could find defendant guilty of harassment beyond a reasonable doubt.

The mayor remains as safe as he ever was. A note suggesting he would be better suited with a cap in his ass probably just summarized the opinions of his critics in somewhat cruder fashion than they would have chosen to deploy but it’s still pretty far from a threat or harassment. A single note hung on the fence across an out-of-the-way road is the least effective harassment ever but it took three courts to finally come to this conclusion.

Filed Under: free speech, harassment, micael gonnelli, michael west, new jersey, secaucus

Ring Throws A Moist Towelette On Its Dumpster Fire With A Couple Of Minimal Security Tweaks

(Mis)Uses of Technology

from the [yelling-over-the-roaring-flame]-WE-CARE-DEEPLY-ABOUT-OUR-USERS dept

Things have gotten worse and worse for Amazon’s Ring over the past several months. Once just the pusher of a snitch app that allowed city residents to engage in racial profiling from the comfort of their homes, Ring is now synonymous with poor security practices and questionable “partnerships” with hundreds of law enforcement agencies around the nation.

Ring owners recently discovered how easily their cameras could be hijacked by assholes with no moral compass and too much time on their hands. Using credentials harvested from security breaches, online forum members took control of people’s cameras to entertain a podcast audience who listened along as hijackers verbally abused Ring owners and their children.

Ring is now being sued for selling such an easily-compromised product. Ring’s response to the original reports of hijackings was to blame customers for not taking their own security more seriously. Ring does recommend two-factor authentication but that’s about all it does. It does not inform users when login attempts are made from unrecognized IP addresses or devices, and does not put the system on lockdown after a certain number of failed attempts are made.

Yes, users should use strong passwords (and not reuse passwords), but blaming customers for engaging in behavior most customers will engage in is unproductive. Instead of making two-factor authentication a requirement before deployment, Ring has just repeatedly pointed to its prior statements about its “encouragement” of 2FA — an “encouragement” that is mostly comprised of defensive statements issued in response to another negative news cycle.

Since it can’t keep blaming its millions of customers for its own failings, Ring is taking a very, very small step in the direction of actually taking its customers’ security seriously. [Please hold your tepid applause until the end of the announcement.]

Ring has announced that it is adding a new privacy dashboard to its mobile apps that will let Ring owners manage their connected devices, third-party services, and whether local police partnered with Ring can make requests to access video from the Ring cameras on the account. The company says that other privacy and security settings will be added to the dashboard in the future. This new Control Center will be available in the iOS and Android versions of the Ring app later this month.

It’s barely enough to make any one feel whelmed, much less overly so. There are two small additions that put this ahead of what Ring offered prior to the newsworthy camera hijackings. First, the app will allow users to see who’s logged in at any given time and logout unrecognized IP addresses or locations from within the app.

The second addition finally puts some (baby) teeth into Ring’s 2FA recommendation:

[R]ing is continuing to inform its customers of the importance of two-factor authentication on their accounts and will be making it an “opt-out” thing for new account setups, as opposed to the opt-in setup it currently is.

Swell. So that’s kind of… fixed. I guess. Now Ring just needs to work on all the other problematic things about itself, like the fact that it’s still not going to notify users when new IP addresses, devices, or locations attempt to access their cameras. And it’s not going to stop using cop shops as Ring marketing street teams. And for all of its insistence footage is never handed over to cops without the proper paperwork, it still deals from the bottom of the deck by claiming end users own all their footage even as it’s handing this footage to law enforcement without the end user’s permission or involvement.

Ring has a lot to fix if it’s ever going to make its way out of the PR pit it’s dug for itself. This is something, but it’s just barely something. It’s not enough. And it says Ring still isn’t serious about protecting its customers — not from law enforcement and not from malicious idiots who’ve found a new IoT toy to play with.

Filed Under: cybersecurity, dashboard, doorbells, police, ring doorbell, security
Companies: amazon, ring

NYC's Transportation Authority Says It's Doesn't Use Facial Recognition Tech; Activists Say 'Prove It' With Public Records Lawsuit

Legal Issues

from the as-evidence-of-our-claim,-we-are-withholding-all-documents dept

Like pretty much everyone else, New York City’s Metropolitan Transportation Authority (MTA) is using facial recognition software. Like pretty much everyone else, it doesn’t really have any success stories to share.

According to the [MTA] email, the “initial period for the proof of concept testing at the (Robert F. Kennedy Bridge connecting Manhattan, the Bronx and Queens) for facial recognition has been completed and failed with no faces (0%) being detected within acceptable parameters.”

Besides the RFK Bridge, the MTA is testing the technology at the Throgs Neck and Whitestone bridges, as well as at the Midtown and Hugh L. Carey tunnels.

Unceremoniously ushered to the exit by its failure to recognize faces, the pilot program was shelved until tech catches up to the MTA’s surveillance desires.

But does that mean the MTA isn’t utilizing the tech elsewhere? That’s what New Yorkers wanted to know earlier this year, when a Twitter user noticed the little yellow squares being placed around commuters’ faces as they went through the turnstiles.

In a statement given to The Verge, the MTA denied these squares signified anything.

The New York Metropolitan Transportation Authority has denied suggestions that it’s putting facial recognition cameras in the subway, saying that a trick designed to scare fare-dodgers was misinterpreted. “There is no capability to recognize or identify individuals and absolutely no plan” to do so with NYC subway cameras, says MTA spokesperson Maxwell Young.

It scared more than fare-dodgers. Lots of people who never dodged a fare were possibly being recorded and routed through unproven facial recognition tech. The words from MTA were reassuring but they were only words. And they came from MTA, which had already field-testing facial recognition tech elsewhere.

Beyond that, the monitors used by MTA bore the name of Wisenet, a company that is very proud of its facial recognition tech. Just saying you don’t have the capability now doesn’t mean you can’t silently add it later without having to replace any hardware.

Since MTA has only been straightforward about its facial recognition tech use after being caught using it, the Surveillance Technology Oversight Project (STOP) sent a FOIL request to MTA asking for copies of any of its facial recognition tech documents. So far, MTA has refused to release anything to STOP about its Wisenet hardware and its capabilities.

It forwarded the request to New York City Transit, which has now spent nearly eight months not responding. STOP has now sued, hoping to force NYCT into action. The lawsuit [PDF] asks the court to compel production of these documents ASAP as well as make the government agencies pay STOP’s expenses for having to litigate this in the first place.

If the MTA really wants to reassure New Yorkers about its facial recognition plans, it needs to release documents backing up its public statements. If it prefers commuters to continue to not trust it, it can keep doing what it’s doing: stonewalling public records requests from privacy activists.

Filed Under: facial recognition, mta, nyc

Malibu Media's Former Law Firm Says The Copyright Troll Has Been Screwing It Out Of Settlement Payments

Legal Issues

from the trollololololol dept

Few things are more satisfying than watching copyright trolling efforts disintegrate. Prolific abuser of the court system, Malibu Media, has been slowly self-destructing over the past few years.

In 2016, Malibu Media sued its legal reps because they were at least as corrupt as Malibu Media is. From the filings, it appeared attorney Keith Lipscomb wasn’t sharing the settlements he extracted from alleged pirates. Malibu’s new reps, Pillar Law Group, filed the suit for Malibu. In the court documents, Lipscomb said he felt the copyright trolling business model had outlived its usefulness and was no longer profitable. While this was likely true, it also did double duty as an excuse for Lipscomb’s failure to send Malibu its cut of the settlements.

The relationship with Pillar Law only lasted until last summer. As Fight Copyright Trolls notes, X-Art’/Malibu’s owner is now engaged in a legal dispute with the law group in the Los Angeles County Court.

Roughly about the same time this suit was filed, Malibu was sued by two investors who were promised half of all settlements and half of all profits from Malibu’s media. Apparently, they haven’t been paid either.

This leads us to the current litigation, brought by Malibu’s most recent legal reps. Once again, the non-sharing of settlement funds is the issue.

Lomnitzer Law has followed suit and sued Malibu for breach of contract demanding $280,058.32 plus interest (The Lomnitzer Law Firm, P.A. v. Malibu Media, LLC, FLSD 20-cv-80027-RKA):

Beginning at a date presently unknown, Malibu instructed attorneys in various jurisdictions that were representing Malibu in the nationwide litigation that was being coordinated by the Firm to by-pass the Firm and to remit settlement monies from such litigation other than to the Firm while still expecting the Firm to pay court filing fees, process server fees, etc., all incurred for and on behalf of and for the benefit of Malibu.

Good old Malibu: against the notion of sharing right up until the bitter end. God, I hope it’s the end. Soon. And a super-bitter ending at that.

Let’s not line up to applaud the numerous entities that have sued Malibu Media for being fraudulent. They all got in bed with Malibu at one point. It was only when they personally got screwed that they decided to distance themselves from this syphilitic troll. If this mesh network of litigation can somehow find a way to bankrupt everyone involved, we’ll all be better off.

Filed Under: copyright trolls, legal fees, scams
Companies: lomnitzer law, malibu media, pillar law group, x-art

Data From Smartwatch Help Investigators Solve The Case Of The Stabbing That Never Happened

(Mis)Uses of Technology

from the regular-wikipedia-browns-these-guys dept

Once again, another crime has been solved with the help of smart devices that shows “going dark” is mainly just an FBI product it’s having trouble moving in such a sunshine-y market.

Third party apps and a surveillance camera allowed investigators to solve one crime (by determining it never happened) and charge someone for the crime that actually happened. [via Slashdot]

A 26-year-old man faked his own stabbing at the West Bloomfield synagogue where he worked and then reported he was attacked because of his Jewish faith, authorities say.

Now Sean Samitt is facing a felony charge of filing a false police report, according to West Bloomfield Police.

Samitt claimed to have been attacked while leaving work at the Temple Kol Ami. Supposedly the attackers stabbed him while yelling things about “you Jews” and “too many immigrants.” Investigators were unable to find a weapon, blood, or any other evidence of the crime in the parking lot that Samitt claimed the attack took place.

What they were able to find was a security camera attached to a house across the street that captured the crime that never happened. When they confronted Samitt with this, his story changed. He hadn’t actually been hate crimed. Instead, he claimed he had passed out (due to an unnamed health condition) while doing dishes at the synagogue.

He then claimed that this was kind of a hate crime as well, because he had been “harassed” about his medical condition at the synagogue and felt compelled to create a cover story for his inability to do dishes without losing consciousness.

Sometimes the best surveillance is the surveillance we inflict upon ourselves.

Officers were able to obtain information from Samitt’s cellphone health application that was synced to his Apple Watch, confirming he did not lose consciousness. Samitt then admitted to intentionally stabbing himself.

A wealth of data about people’s lives is generated daily by anyone carrying a smartphone or wearing a smartwatch. Device encryption is only preventing investigators from seeing a very small slice of that. Almost every third party app generates records law enforcement can obtain from developers or in the multiple clouds storing data and communications. The few communication options that are completely locked down may impede a handful of investigations. But for the most part, law enforcement is coming out ahead in the so-called tech war, years after device encryption became a standard offering.

Filed Under: data, evidence, sean samitt, smartwatch, stabbing, west bloomfield

Company Says It's Built A Marijuana Breathalyzer, Wants To Roll It Out By The Middle Of This Year

(Mis)Uses of Technology

from the how-much-'yes'-is-actually-impairment-tho dept

Breathalyzers have been in use for more than 100 years at this point and we still don’t have all the kinks worked out. Testing equipment used by law enforcement frequently isn’t calibrated or maintained correctly. Some devices have been set up improperly, which leads directly to false positives when the tests are deployed.

Unfortunately, impaired driving isn’t going away. And neither are the tools cops like well enough to deploy in the field, but apparently not well enough to engage in routine maintenance or periodic quality control testing. This is already a problem for citizens, who can find themselves behind bars if the testing equipment is faulty. The problem is only going to get worse as marijuana legalization spreads to more states.

There’s currently no field test equipment that detects marijuana impairment. A company in California thinks it has a solution.

By mid-2020, Hound Laboratories plans to begin selling what it says is the world’s first dual alcohol-marijuana breath analyzer, which founder Dr. Mike Lynn says can test whether a user has ingested THC of any kind in the past two to three hours.

“We’re allowed to have this in our bodies,” Lynn said of marijuana, which became legal to use recreationally in California in 2018. “But the tools to differentiate somebody who’s impaired from somebody who’s not don’t exist.”

We won’t know if these claims are true until the testing equipment is deployed. And even then, we still won’t know if the machines are accurate or the drivers they catch are actually impaired. Marijuana doesn’t work like alcohol, so impairment levels vary from person to person. In addition, there’s no baseline for impairment like there is for alcohol. That will have to be sorted out by state legislatures before officers can begin to claim someone is “impaired” just because the equipment has detected THC. At this point, the tech pitched by Hound Labs only provides a yes/no answer.

There’s a very good chance this new tech will go live before the important details — the ones safeguarding people’s rights and freedoms — are worked out. The founder of Hound Labs is also a reserve deputy for the Alameda County Sheriff’s Office. And it’s this agency that’s been test driving the weedalyzer.

The Alameda County Sherriff’s Office agreed to test the Hound Breathalyzer in the field.

“What we’ve seen trending with the addition of the legalization of cannabis in California is that we are coming across more and more marijuana-impaired drivers,” said Alameda County Sheriff spokesperson Sgt. Ray Kelly.

“It’s not hard to determine if there is THC on someone’s breath if they have been smoking it,” Kelly said. “It’s when they’re ingesting it through edibles, which have become much more popular. That’s extremely valuable to law enforcement.”

These tests are completely voluntary and drivers who submit to them won’t be criminally charged even if the device says they’re under the influence. But in a few months — if everyone agrees they’re good enough to be used on civilians — the tests will no longer be voluntary and the consequences will be very real.

Impaired driving that doesn’t involve alcohol is going to increase with the legalization of marijuana. But this new tech should be greeted with the proper amount of skepticism. Breathalyzers that detect alcohol have been around for decades and are still far from perfect. A new device that promises to detect recent marijuana use just because researchers say consumption can be detected for up to three hours shouldn’t be treated as a solution.

The device is stepping into a legal and legislative void with no established baseline for marijuana “intoxication.” It can only say it does or does not detect THC in a person’s breath. It can’t determine whether the amount is a little or a lot, and no one has any guidance stating how much of a THC concentration should be considered impairing or illegal. But it’s pretty much a given these will hit the roads before the law is ready for them, and that should concern drivers in every state where marijuana is legal.

Filed Under: breathalyzer, false positives, field tests, marijuana, police, testing
Companies: hound laboratories

Shocking Absolutely No One, Ring Admits Employees Improperly Accessed Customers' Data

(Mis)Uses of Technology

from the who-could-have-seen-this-coming dept

Ring never fails to disappoint. And by “disappoint,” I mean never fails to be disappointing. This pleases me. So, I guess Ring never fails to please… by being incessantly disappointing.

I realize this is beginning to resemble a beating that continues long past the point the victim has lapsed into unconsciousness. But if Ring hadn’t made itself such an inviting punching bag, I would not continue to rain down printed blows on its oh so very soft body.

Ring first grabbed our attention by offering up a snitch app that encouraged neighbors to start talking about suspicious people in their neighborhood. This app also happened to be a portal for the voluntary sharing of footage captured by Ring cameras, most of which were built into Ring’s “smart” doorbells.

From there, things went from bad to worse to godawful to horrendous to PR-team-on-constant-suicide-watch. It has been super-enjoyable for me (and hopefully for Techdirt readers) for two reasons:

1. Ring promiscuously got in bed with over 600 law enforcement agencies, selling them “free” cameras to hand out to homeowners with some implicit/not-so-implicit strings attached. In return, law enforcement agencies gave up their authority and autonomy, granting Ring permission to write their press releases and statements for them.

2. Ring does not care about its customers. It enjoys a commanding lead in the market, but it has produced yet another internet-connected thing that it does not bother to secure properly. When breaches happen — and they are unimaginably horrifying breaches that involve hijacked cameras — the company says customers should have done more to secure their devices, rather than accept any responsibility for doing as little as possible to prevent this sort of thing from happening.

So, the latest news is more fuel for the dumpster fire. It’s not just cops grabbing footage without bothering with the Fourth Amendment niceties. There’s also abuse happening internally — the sort of abuse you’d expect when you give people access to a wealth of personal information.

The doorbell-camera giant Ring has terminated employees in recent years for improperly accessing users’ video data, parent company Amazon told lawmakers this week, an admission that could increase pressure on the firm to prove it protects customer privacy.

The company has investigated four complaints regarding employees abusing their access to camera data over the past four years, Brian Huseman, a vice president of public policy at Amazon, wrote in a letter to five senators this week.

The company did not provide any detail about the data that was improperly accessed, but considering how much data Ring collects — along with footage from millions of cameras — the imagination is free to run wild.

This is the latest unsurprising development for Ring. Give enough people access to intimate recordings and data, and abuse is bound to happen. Maybe the Ring employees were just following the lead of their law enforcement partners, who also have access to a great deal of personal info and abuse this access with alarming frequency.

I’m sure Ring will weather this news cycle as it has every other over the past 12 months: by claiming it takes everyone’s security seriously and sending out tweets to anyone tagging the company with the latest bad news saying the coverage is inaccurate. But no one believes Ring, especially when its defensive tweets talk their way around direct questions and link to talking points delivered by Ring reps.

Ring is no longer just a dumpster fire d/b/a a security camera company. Its flaming dumpster existence is mounted to every flatbed car on a never ending train wreck. It can’t pull the plug on its thousands of buddy cops. And it appears to be far more interested in market growth than properly serving the customers it already has. Things will get worse. That’s it. There’s no “before it gets better.” At best, Ring can only hope to fade from the public eye before it alienates any more of its past and future customers.

Filed Under: abuse, doorbells, employees, police, surveillance, video
Companies: amazon, ring

San Bernardino 2.0: FBI Asking Apple To Crack Encryption On Phones Owned By Pensacola Naval Station Gunman

(Mis)Uses of Technology

from the encryption-is-letting-dead-men-get-away-with-crimes-they-already-committed dept

It looks like the FBI wants to relitigate the San Bernardino shooting. After that tragedy, the FBI tried (and failed) to obtain legal precedent forcing cellphone manufacturers to crack open seized phones at the drop of a warrant. Finally, a third party sold a solution to the FBI that opened the phone and allowed it to recover nothing useful whatsoever from the shooter’s device.

The FBI was displeased that it didn’t get this precedent. Internal communications showed FBI officials were doing everything they could to avoid using a third-party solution. The theoretical existence of evidence related to a tragic shooting was the only leverage the FBI had and a private company’s cracking service took that leverage away. It could no longer claim approaching Apple directly was the only way to access the contents of the phone.

The FBI is trying again. It has more locked phones and another shooting to use as leverage.

The FBI is asking Apple Inc. to help unlock two iPhones that investigators think were owned by Mohammed Saeed Alshamrani, the man believed to have carried out the shooting attack that killed three people last month at Naval Air Station Pensacola, Florida.

In a letter sent late Monday to Apple’s general counsel, the FBI said that although it has court permission to search the contents of the phones, both are password-protected. “Investigators are actively engaging in efforts to ‘guess’ the relevant passcodes but so far have been unsuccessful,” it said.

Apple is helping the FBI but it’s not doing the only thing the FBI really wants it to do. Apple’s statement says it’s already turned over “all the data in [Apple’s] possession.” But it’s not going to break the devices’ encryption.

And no matter what legal precedent the DOJ obtains — should it decide to force the issue by seeking a court order compelling decryption — it still may not find anything useful, or indeed anything at all, if it manages to unlock the devices. There’s a twist in this case that sets it apart from the San Bernardino shooting.

A law enforcement official said there’s an additional problem with one of the iPhones thought to belong to Alshamrani, who was killed by a deputy during the attack: He apparently fired a round into the phone, further complicating efforts to unlock it.

Shooting someone right in the evidence is a new logistical hurdle — one that probably can’t be cleared with a stack of legal paperwork and precedent. But this is the FBI’s latest attempt to undermine device encryption. Attorney General Bill Barr has made it clear he feels encryption is only good for criminals. If the DOJ decides to take another run at this, it will be less likely to back down even if presented with a third-party solution.

The FBI and DOJ are always on the lookout for another tragedy to use as leverage for anti-encryption precedent. Unfortunately, this country produces more than its share of mass shootings, so the FBI and DOJ will always have plenty to work with.

Filed Under: doj, encryption, fbi, going dark, pensacola
Companies: apple