Amazon: Cops Can Get Recordings From Ring, Keep Them Forever, And Share Them With Whoever They Want

Say That Again

from the prime-video dept

Even more alarming news has surfaced about Amazon’s Ring doorbell/camera and the company’s ultra-cozy relationship with police departments.

Since its introduction, Ring has been steadily increasing its market share — both with homeowners and their public servants. At the beginning of August, this partnership included 200 law enforcement agencies. Three months later, that number has increased to 630.

What do police departments get in exchange for agreeing to be Ring lapdogs? Well, they get a portal that allows them to seek footage from Ring owners, hopefully without a warrant. They also get a built-in PR network that promotes law enforcement wins aided by Ring footage, provided the agencies are willing to let Ring write their press releases for them.

They also get instructions on how to bypass warrant requirements to obtain camera footage from private citizens. Some of this is just a nudge — an unstated quid pro quo attached to the free cameras cops hand out to homeowners. Some of this is actual instructions on how to word requests so recipients are less likely to wonder about their Fourth Amendment rights. And some of this is Ring itself, which stores footage uploaded by users for law enforcement perusal.

If it seems like a warrant might slow things down — or law enforcement lacks probable cause to demand footage — Ring is more than happy to help out. Footage remains a subpoena away at Ring HQ. And, more disturbingly, anything turned over to police departments comes with no strings attached.

Statements given to Sen. Edward Markey by Amazon indicate footage turned over to cops is a gift that keeps on giving.

Police officers who download videos captured by homeowners’ Ring doorbell cameras can keep them forever and share them with whomever they’d like without providing evidence of a crime, the Amazon-owned firm told a lawmaker this month.

Brian Huseman, Amazon’s VP of Public Policy, indicates the public is kind of an afterthought when it comes to Ring and its super-lax policies.

Police in those communities can use Ring software to request up to 12 hours of video from anyone within half a square mile of a suspected crime scene, covering a 45-day time span, Huseman wrote. Police are required to include a case number for the crime they are investigating, but not any other details or evidence related to the crime or their request.

Ring itself maintains that it’s still very much into protecting users and their safety. Maybe not so much their privacy, though. The company says it takes the “responsibility” of “protecting homes and communities” very seriously. But when it comes to footage, well… that footage apparently belongs to whoever it ends up with.

Ring… “does not own or otherwise control users’ videos, and we intentionally designed the Neighbors Portal to ensure that users get to decide whether to voluntarily provide their videos to the police.”

It’s obvious Ring does not “control” recordings. Otherwise, it would place a few more restrictions on the zero-guardrail “partnerships” with law enforcement agencies. But pretending Ring owners are OK with cops sharing their recordings with whoever just because they agreed to share the recording with one agency is disingenuous.

Ring’s answers to Markey’s pointed questions are simply inadequate. As the Washington Post article notes, Ring claims it makes users agree to install cameras so they won’t record public areas like roads or sidewalks, but does nothing to police uploaded footage to ensure this rule is followed. It also claims its does not collect “personal information online from children under the age of 13,” but still proudly let everyone know how many trick-or-treaters came to Ring users’ doors on Halloween. And, again, it does not vet users’ footage to ensure they’re not harvesting recordings of children under the age of 13.

The company also hinted it’s still looking at adding facial recognition capabilities to its cameras. Amazon’s response pointed to competitors’ products utilizing this tech and said it would “innovate” based on “customer demand.”

While Ring’s speedy expansion would have caused some concern, most of that would have been limited to its competitors. That it chose to use law enforcement agencies to boost its signal is vastly more concerning. It’s no longer just a home security product. It’s a surveillance tool law enforcement agencies can tap into seemingly at will.

Many users would be more than happy to welcome the services of law enforcement if their doorbell cameras captured footage of criminal act that affected them, but Ring’s network of law enforcement partners makes camera owners almost extraneous. If cops want footage, Ring will give it to them. And then the cops can do whatever they want with it, even if it doesn’t contribute to ongoing investigations.

These answers didn’t make Sen. Markey happy. Hopefully, other legislators will find these responses unsatisfactory and start demanding more — both from law enforcement agencies and Ring itself.

Filed Under: doorbell, ed markey, police, privacy, ring, videos
Companies: amazon, ring

Court Says Portland, Oregon City Government Can No Longer Screw Public Records Requesters With Excessive Fees

Legal Issues

from the gently-reminding-the-public-who's-paying-whose-salary dept

It’s a small win for the plaintiff — probably less than $100 in total — but it’s a bigger win for the residents of Portland, Oregon. The Multnomah County Court says the city has been routinely overcharging public records requesters for fulfilling routine public records requests. (via Merrick Law, LLC)

The brief ruling [PDF] contains enough detail to show how city employees inflated costs they passed on to requesters who were made to pay up front before document searches would commence. In this case, the requester (Alan Kessler) sought metadata from four government email accounts. The city first gave him an estimate of $205.61, based on an estimated two hours of search and prep time with a 39% markup for “overhead costs.”

As the court notes, the city admitted the overhead costs collected rarely went to cover employee overhead. On top of that, the hourly rate used was calculated using the hourly wages of the employees performing the search. This sounds reasonable, but it actually isn’t. In this case, the search was performed by two of the city’s higher-paid employees, both of whom appear to be overqualified for the work they’d been tasked to do.

Mike Nichols, an Information Systems Technical Analyst V, conducted the search of relevant email accounts. The City’s estimate for Nichols wage rate was $78.15 per hour. This rate was incorrect. The actual wage rale plus 39% should have been $66.09 per hour. Nichols’ actual time billed for the search was 1.25 hours. Nichols’ time record attributed 1 hour to the search.

[…]

Paul Rothi, the City Enterprise Architect Manager, conducted the oversight and record keeping at a rate of $91.92 per hour for 0.5 hours, Rothi’s records show the time he billed to plaintiff’s request totaled 37 minutes, rather than 30.

Once this search was completed, it was handed off to a third person. This person, the city’s Public Records Coordinator, did everything but coordinate public records once she received the request. First, she added another 2.5 hours to the estimate, raising the cost by $106. Then she devoted her partial attention to it over the next month while suffering an illness, attending a funeral, and spending six days covering someone else’s job.

As the court notes, this estimate process has almost nothing to do with actual costs and artificially inflates them by handing the job over to some of the city’s highest-paid employees.

Here, the City presented testimony and evidence of the hourly rates (including the 39% mark-up for benefits) for two employees involved in responding to plaintiff’s public records request along with the City’s fee schedule established by City ordinance. The City also presented testimony that no study had been done relating to the fees charged by the Bureau of Technology Services, rather the City occasionally brought in consultants to review rates and overhead costs.

Rothi testified that when preparing an estimate for a public records requester, he prepared a “worst case” estimate. Rothi and Nichols are two highly paid members of the BTS department. The City presented no evidence of the rates charged for other members of the department who may have been available to conduct the records search. The City presented no evidence of the rates charged for Baribeau’s records review.

The city argued this was okay because it gave refunds to requesters who had been overcharged. But the court points out that there’s actually no mechanism in place to challenge fee assessments or demand refunds. Requesters just have to hope the city is being honest in its assessment of costs and that they will see a refund check if the city decides it has overcharged a requester.

Since this request resulted in litigation, there’s no reason to believe the city reviews request fees it has collected and issues refunds voluntarily. The plaintiff was refunded $52.00, but this happened more than a month after he filed his lawsuit. That appears to have been the motivating factor.

That’s not nearly good enough, the court says. The city needs to change the way it assesses fees and handles refunds. The order gives the city a list of things to correct while blocking it from overcharging for routine document searches in the future.

The City’s current method for determining fees for routine email and document search, including providing a “worst case estimate” IS NOT reasonably calculated to reimburse it for its actual cost of making the records available and results in overcharging the public records requester without providing a method to refund of any overcharges.

The City is hereby enjoined from charging excessive fees for routine email and document searches.

The City must recalculate the time spent responding to Plaintiff’s public records request at the lowest hourly rate charged by any department personnel who could be responsible for responding to public records requests, plus any overhead factor, and refund Plaintiff the difference, if any, over and above the $52.00 already refunded to Plaintiff.

The city is also responsible for part of the requester’s legal fees since he partially prevailed in his lawsuit. The final total won’t be in the thousands of dollars, but this small win for Kessler is a bigger win for other Oregonians. The city can’t continue to hand public records work to people at the top end of the wage scale and assume that follows the spirit and letter of the law.

Excessive fees deter requesters — something that only benefits governments opposed to accountability and transparency. Deterrence may not have been the goal here, but it’s a fortunate side effect. Now that option is gone, at least for public records requests determined to be “routine.”

Filed Under: excessive fees, foia, journalism, oregon, portland, public records, transparency

Surprising No One, The FBI's Watchdog Says The Agency Is Handling Its Informants Improperly

Failures

from the consummate-professionals dept

Confidential informants are only as trustworthy as their law enforcement handlers. The FBI isn’t the only agency to have problems with handling confidential human sources (CHSs), but it’s one of the more notorious, thanks to its botched handling of James “Whitey” Bulger.

This questionable legacy lives on, as the FBI’s Inspector General reports. “Whitey” Bulger is name-checked early on in the report [PDF], setting an appropriately cautionary tone for the rest of the document.

The FBI loves its CHSs. Without them, it can’t radicalize random people into arrestable would-be terrorists. Without the assistance of criminals, it apparently can’t go after other criminals. While a certain amount of criminal activity is necessary to maintain cover, the FBI doesn’t appear to be keeping close tabs on its informants, which isn’t going to minimize collateral criminal damage during investigations.

The FBI spends $42 million a year paying CHSs but doesn’t seem to care whether that money is being wisely spent. The actual number of informants the FBI employs is redacted, but the IG notes that 20% of these are “long-term,” having been used by the FBI for at least five years.

The longevity of CHSs is a concern that the FBI doesn’t seem to be concerned about. The longer the FBI uses the same informants, the greater the risk they’ll be exposed. But beyond that, there’s the problem of familiarity. Every five years, CHSs are supposed to be assigned new handlers in order to prevent agents from becoming too close to their charges. The FBI isn’t doing this. In fact, the FBI doesn’t appear to track length of service with any accuracy, which means the agency potentially has more “Whitey” Bulgers on its hands: criminals whose close relationship with a single handler allows them to engage in far more criminal activity than guidelines (and human decency) would allow.

According to this report, the FBI’s inability to properly track CHSs has led to a backlog of required “enhanced reviews” — the validation process put in place to ensure proper handling of long-term informants. To make matters worse, the FBI unilaterally decided to remove “long-term” as a potential risk factor for CHSs, allowing these problematic informant-handler relationships to fly under the radar.

The few people performing CHS validations are further restricted by FBI policy. It’s almost as though the FBI has decided that what it doesn’t know can’t hurt it. The limitations prevent reviewers from accessing anything more than one year of files, denies them access to other helpful FBI databases, and discourages them from providing recommendations or drawing conclusions from the limited info they can actually access.

The FBI also has problems with automation. The system does not automatically flag CHSs when they hit the five-year mark. This has to be done manually by the informant’s handler. Without this feature, handlers and reviewers are left in the dark about CHS longevity, which further hinders the review process and adds to the backlog the FBI will never catch up to at its current review pace.

The FBI knows this is a problem but continues not to care.

Although the FBI has considered improvements to address the shortcomings, it has not taken corrective action by implementing an automated mechanism in Delta.

This refusal to fix this issue has lead to further failures up the line. Handlers with long-term CHSs are supposed to obtain approval from Special Agents in Charge (SAC) for continued handling of these informants. Since the system doesn’t flag long-term informants, SACs are not automatically notified and CHSs continued to be handled by the same agents in direct violation of FBI policy.

The problem becomes exponential once FBI field offices are factored in. CHSs in use at field offices are subject to the same review, but review personnel at FBI HQ appear to believe they are there to grease the wheels, not act as oversight.

Several FBI officials suggested to us that there is a risk that field offices may avoid the selection of certain CHSs for validation review because the field offices may wish to continue using those CHSs despite the presence of particular risk factors. In fact, one of these officials told us that the field offices may be sending “softballs,” meaning field offices may be sending CHSs lacking any significant risk factors.

It’s not just the field offices. The FBI is actively avoiding documenting negative information about CHSs to subvert the justice system. It’s just that simple.

[O]ne Intelligence Analyst told us that he was permitted to recommend a CHS receive a polygraph or operational test to the handling agent by phone by not permitted to document the recommendation in the CHS’s validation report. Additionally, multiple FBI officials told us that they believe that field offices do not want negative information documented in a CHS file due to criminal discovery concerns and concerns about the CHS’s ability to testify. For example, one FBI official told us that some U.S. Attorney’s offices will not use a CHS at trial if there is negative documentation in the CHS’s file.

The Inspector General obviously recommends the FBI stop doing this sort of stuff but it’s obviously already entrenched in the FBI’s culture. Officials recognize field offices are harboring shady CHSs but have done almost nothing about it.

Then there’s the infosec part. Confidentiality is key to the handling of confidential human sources. But FBI agents don’t appear to care that they’re putting their sources at risk by carelessly handling communications. Since no policy specifically forbids the use of government equipment to contact CHSs, many agents simply use their FBI-issued phones. The use of electronic communication methods is discouraged, but simply telling people they shouldn’t do something is rarely an effective deterrent.

In addition, the central CHS database is on a shared site that grants access to personnel not involved with handling human sources. This increases the risk to CHSs by eliminating the “confidentiality” of the arrangement. The only thing mitigating this increased risk is the fact that the database is riddled with errors and incomplete information. Incompetence might save the day as CHS files improperly accessed may not contain enough accurate information to expose a confidential source. Win-win, I guess.

That the FBI concurs with all of the OIG’s recommendations is hardly heartening. Included in this review are recommendations issued by the OIG six years ago in response to CHS handling issues that occurred in 2006. To date, the FBI has only implemented five of the eleven recommendations from the 2013 report.

It’s a mess. And it’s a mess the FBI continues to make worse. The underlying problem appears to be the FBI’s unwillingness to cut loose informants who might be a liability. The only effort that gets made in these situations is to find some way to work around an already-very permissive system to ensure agents can retain the CHSs. A system that fails to flag risk factors or periodic review periods is the kind of system that allows the FBI to engage in business as usual with just enough plausible deniability to avoid the few accountability tripwires built into the system.

Filed Under: fbi, informants

'Give Til It Hurts,' Says The NYPD To City Residents While Racking Up A Half-Billion In Lawsuit Settlements In Two Years

Legal Issues

from the $500-million;-zero-fucks dept

Time to start sending out some customer satisfaction surveys to New York City residents. After all, they’re the ones paying for this. (via Boing Boing)

New York City taxpayers spent a whopping $230 million to pay off 6,472 lawsuits settled against the NYPD in the last fiscal year, according to an annual report released Monday by Comptroller Scott Stringer’s office.

The amount reflects settlements made from July 2017 through June 2018, and marks a 32% decrease from the prior year, when the city paid out $335 million for lawsuits against the police department.

This is the work of New York’s Finest — a police department that figures it’s the FBI, CIA, and NSA rolled into one. When not bumptiously interloping as the East Coast wing of Team America World Police, the NYPD is busy back home violating rights and blowing off public records requests.

The department is infamous for its suspicionless surveillance of Muslims, its suspicionless searches of hundreds of thousands of young black men, and the occasional homicide.

The NYPD’s spokeswoman apparently has only read the parts of the report she likes. Sgt. Jessica McRorie says the 32% reduction in claims shows the NYPD is serious about deterring officer misconduct. But the overall drop in claims is counteracted by the NYPD’s 100% increase in police misconduct settlement payments over the past decade.

Roughly $108 million was related to allegations of police misconduct like false arrests and excessive force, more than doubling the $48 million paid out for such issues a decade ago.

No matter what spin is applied, the numbers speak for themselves. Since the middle of 2017, the city has paid out a half-billion dollars in settlements in lawsuits against the NYPD. The spokeswoman’s cheery spin on $233 million in settlements as an indication of officers behaving $100 million better than last year doesn’t say much about the force in general.

Granted, the amount of settlements will never reach $0, no matter the length of the timeline. But if the NYPD is serious about reducing misconduct and improving its relationship with the public, it can’t keep allowing things like this:

[Peter] Valentin, a hard-charging Bronx narcotics detective whose online handle is “PistolPete,” has been sued a stunning 28 times since 2006 on allegations of running slash-and-burn raids that left dozens of lives in ruins while resulting in few criminal convictions.

The city has paid out $884,000 to settle cases naming the stocky, 36-year-old detective, but he doesn’t seem too concerned.

“I’m not aware of that,” he scoffed at a Daily News reporter when told of his claim to shame. “Once it goes to court, I don’t follow it.”

This 2014 report showed 55 NYPD officers have been sued 10 or more times. If Valentin’s shrug of indifference is indicative of the NYPD’s collective mindset, lawsuits are no deterrent to misconduct. And neither are NYPD officials, even when they’re claiming otherwise when issuing statements or holding press conferences. The same people who defend misconduct by saying it’s just “bad apples” are the same people refusing to remove the bad apples from the barrel.

Being a repeat offender is bad news in every part of the criminal justice system except the component that initiates the process. Three strikes laws proliferate, exponentially increasing sentences for criminal violators. Meanwhile, those policing the streets are barely policed at all. Those that do manage to create enough headaches for their departments that they’re terminated can usually find steady law enforcement work at another agency.

The message being sent to the public by the NYPD isn’t the one its spokesperson is offering. It’s actually saying it doesn’t care how much of the public’s money it has to spend to keep bad cops employed.

Filed Under: lawsuits, new york city, nyc, nypd, settlements, taxpayers

Lawyer With Neo-Nazi Ties Loses Defamation Lawsuit Against SPLC For Calling Him A Neo-Nazi

Defamation

from the guess-it's-one-way-to-stay-busy-when-you're-unemployed dept

People keep suing the Southern Poverty Law Center and they just keep losing. More specifically, certain types of people keep suing the SPLC and losing. The type suing most frequently are individuals with bigoted beliefs who aren’t too thrilled the SPLC considers them to be bigots.

The key word is “considers.” The “Hate Map” the SPLC compiles lists individuals and entities the Center considers to be spreaders of hate. It includes litigants like Proud Boys founder Gavin McInnes and Truth In Action Ministries, the latter of which has made it clear it hates both the sinner and the sin when it comes to anyone veering from the sexual straight and narrow.

The latest lawsuit trying to turn protected opinion into defamation involves a Baltimore city lawyer who claimed it was defamatory for the SPLC to say he had links to white supremacist groups when he had links to white supremacists groups.

The case dates back to 2015 when the SPLC got a tranche of documents from an accountant who worked for alleged white supremacist group National Alliance, according to Wednesday’s ruling.

[…]

Among the names published was Glen K. Allen, a contractor in the city of Baltimore’s legal department. The group published a picture of him alongside the words, “When the City of Baltimore recently hired Glen Keith Allen, a neo-Nazi, nobody knew of his involvement with the white supremacist group, except for us.”

An August 2016 article from the SPLC reported on Allen’s ties to National Alliance, including receipts for dues payments, and also claimed that a political party he donated to, the American Eagle Party, was “racist.”

Allen was seeking $6 million for damage to his reputation supposedly caused by the publication of this collection of facts and inferences, which ultimately resulted in him being fired by the city. Oh, and there’s a RICO claim thrown in there for good measure because supposedly SPLC’s purchase of “stolen” documents is evidence of racketeering. (The court points out a single allegedly-criminal act does not show the “pattern” of illegal activity needed to sustain a RICO claim.)

Doesn’t really matter how much this lawyer threw at the wall in his 85-page complaint. Sandwiched between his glowing autobiography and editorializing on the SPLC are some questionable allegations. The court doesn’t appear to be a fan of Allen’s complaint in general according to the first footnote of the opinion [PDF]:

The complaint is 85 pages long, with multiple pages devoted to attacking the fundraising and “enormous headquarters” (“The SPLC uses the word ‘Poverty’ in its name but in reality is fabulously wealthy,”) and describing Allen’s early life, extracurricular activities, and accolades (“[Allen] was a diligent student and did well in law school, finishing near the top of his class and serving as Executive Director of the law review,”). This section summarizes only the relevant parts of Allen’s complaint.

The court isn’t much more impressed with Allen’s legal arguments. Allen’s attempt to bypass First Amendment defenses by attaching a bunch of random, non-speech related torts doesn’t work. As the court points out, clearing the First Amendment bar comes first, prior to any discussion about other allegations stemming from the SLPC’s publication of the leaked files and its corresponding “Hate Map” updates. Allen can’t clear the first hurdle.

As explained below, the August 17, 2016, article and 2016 Hate Map are protected by the First Amendment. First, Allen does not allege the factual statements in them are false. Second, the statements he objects to are non-actionable opinion or hyperbole.

Allen’s complaint doesn’t complain about anything but protected speech.

Allen does not dispute the underlying factual assertions namely, his ties to NA and the American Eagle Party in the article. Allen alleges that the article contained the false implication that he would act unethically in litigation he was. involved in. While the article noted that the “hiring of a known neo-Nazi to litigate [for Baltimore] surely raises questions” it cannot be said that the article implies that Allen would act unethically.

Allen’s other allegations concern statements that are not actionable. He objects to the defendants’ characterization of him as a “well known” neo-Nazi lawyer. Although he argues that the sources the article cites do not support that he is “well known,” it is not clear whether he asserts the statement is false. To the extent he does, that he is “well known” is not a provably false factual connotation. Further, the characterization of the American Eagle Party as “racist” is opinion “that cannot be proven as verifiably true or false” and is not actionable.

And that’s even when the court has considered Allen’s “but I have black friends!” assertions.

In his brief, he argues that the defendants should have included in the article Allen’s pro bono work on behalf of African Americans, as “Neo-Nazis do not do such things, let alone ‘well known neo-Nazi lawyers.’ The SPLC Defendants knew this. But portraying the truth about Allen would undercut the message that the SPLC constantly sends in order to fundraise[.]” These statements do not directly dispute the characterization as false; therefore, to the extent that Allen objects to the “neo-Nazi” label, he has not shown falsity.

[…]

[A]llens’ pro bono work does not prove or disprove the documents showing Allen’s payment of dues and donations to National Alliance, which was the basis for the defendants’ characterization of him as a neo-Nazi.

The lawsuit is dismissed. It seems that the best course of action Glen Allen could have taken to avoid being portrayed as a neo-Nazi would have been to not associate with an avowed neo-Nazi organization. That he was outed via exfiltrated documents does not change his connection with neo-Nazis, nor does his pro bono work for African Americans. The best defense against defamation claims is the truth and the SPLC’s portrayal of Allen was based on underlying documents Allen didn’t even attempt to claim were false.

Fortunately for Allen, he won’t be out much for legal fees since he incapably represented himself throughout these proceedings. Truth is fatal to defamation claims, as are statements of opinion, and inferences based on disclosed facts. But Allen moved forward anyway with his DOA lawsuit, with allegations that were never going to be greeted with anything more than a time of death declaration from a judge.

Filed Under: baltimore, defamation, glen allen, libel, neo-nazi
Companies: splc

Roadside Breath Tests Are Just As Unreliable As Field Drug Tests

(Mis)Uses of Technology

from the magic-8-ball-says... dept

Portable alcohol testing equipment (a.k.a. breathalyzers) have been called “magic black boxes” and “extremely questionable” by judges. And yet, they’re still used almost everywhere by almost every law enforcement agency. They’re shiny and sleek and have knobs and buttons and digital readouts, so they’re not as immediately sketchy as the $2 drug-testing labs cops use to turn donut crumbs into methamphetamines. But they’re almost as unreliable as field drug tests.

Even when the equipment works right, it can still be wrong. But it so very rarely works right. Cops buy the equipment, then do almost nothing in terms of periodic testing or maintenance. A new report from the New York Times shows this equipment should probably never be trusted to deliver proof of someone’s intoxication. And the failure begins with the agencies using them.

The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high. Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.

There are also problems with the machines themselves, even when they’ve been properly maintained. And the problems aren’t limited to single manufacturer. Dräger, the company that owns the name “Breathalyzer,” produced a machine that experts said with “littered with thousands of programming errors.” This finding was made during a rare examination of breath-testing equipment by defense attorneys granted by the New Jersey Supreme Court. Those findings resulted in zero lost law enforcement customers for Dräger.

CMI’s breath tester fared no better when examined by toxicology lab experts. CMI’s Intoxilyzer gave inaccurate results on “almost every test,” according to the report. This didn’t stop multiple law enforcement agencies from purchasing CMI’s tech, even when a Florida court had this to say about the Intoxilyzer.

The Intoxilyzer 8000 is a magic black box assisting the prosecution in convicting citizens of DUI. A defendant is required to blow into the box. The defense has shown significant and continued anomalies in the operation of the Intoxilyzer 8000’s operation. The prosecution argues most of the tests do not show anomalies. In fact, a high percentage of the tests may show no anomalous operation. That the Intoxilyzer 8000 mostly works is an insufficient response when a citizen’s liberty is at risk.

In the state of Washington, state police spent $1 million on Dräger breath testers to replace aging machines. Rather than roll this out in a controlled fashion with proper testing, state officials opted to bypass outside testing of the software to speed up deployment to police officers. Six years after this speedy rollout, the device’s reliability was called into question in court. The court allowed defense lawyers to review the software. The result of this testing was never made public… at least not officially. The experts who reviewed Dräger’s equipment had this to say about it:

The report said the Alcotest 9510 was “not a sophisticated scientific measurement instrument” and “does not adhere to even basic standards of measurement.” It described a calculation error that Mr. Walker and Mr. Momot believed could round up some results. And it found that certain safeguards had been disabled.

Among them: Washington’s machines weren’t measuring drivers’ breath temperatures. Breath samples that are above 93.2 degrees — as most are — can trigger inaccurately high results.

Dräger sent the researchers a cease-and-desist order, forbidding them from discussing their findings with anyone and demanding they destroy all copies of their report. Unfortunately for the company, the preliminary report had already been distributed to other defense lawyers and made its way to a number of websites.

The rush to deploy equipment wasn’t just a problem in Washington. The same thing happened in Colorado, but the rollout was even more haphazard and borderline illegal. There weren’t enough techs available to set up the purchased equipment, so the manufacturer (CMI) sent a salesperson and one of its lawyers to help with the initial calibration and certification. Only one actual lab supervisor was involved. The rest of the workforce was composed of assistants and interns. At best, one person was qualified to do this job. Since this seemed likely to pose a problem down the road if the equipment or readings were challenged in court, the state lab used an extremely-questionable workaround.

[T]he lab’s former science director said in a sworn affidavit that her digital signature had been used without her knowledge on documents certifying that the Intoxilyzers were reliable. The lab kept using her signature after she left for another job.

In Washington, DC, faulty equipment wasn’t taken out of service by the person overseeing the program. Instead, the person meant to ensure the equipment was working properly was making everything worse when not acting as a freelance chemist.

Mr. Paegle’s predecessor, Kelvin King, who oversaw the program for 14 years, had routinely entered incorrect data that miscalibrated the machines, according to an affidavit by Mr. Paegle and a lawsuit brought by convicted drivers.

In addition, Mr. Paegle found, the chemicals the department was using to set up the machines were so old that they had lost their potency — and, in some cases, Mr. King had brewed his own chemical solutions. (Mr. King still works for the Metropolitan Police Department. A department spokeswoman said he was unavailable for comment.)

Once the courts were informed, 350 convictions were tossed. The damage here was relatively minimal. In Massachusetts — where crime lab misconduct is an everyday occurrence — 36,000 tests were ruled inadmissible. In New Jersey, 42,000 cases were affected by breath test equipment that had never been set up properly.

Very few corrective measures have been implemented by law enforcement agencies. The fixes that are being made have almost all been the result of court orders. The unreliability of roadside breath tests have led several courts to reject pleas or prosecutions based solely on tests performed by officers during traffic stops. But none of this seems to have had an effect on law enforcement agencies who continue to purchase unreliable equipment and deploy it with proper safeguards or testing.

Breathalyzers are field tests in more than one sense of the word. Drivers are merely lab rats who face the possibility of losing their freedom, their licenses, and possibly their vehicles because a “magic black box” told a cop the driver was under the influence.

Filed Under: accuracy, breathalyzers, dui, evidence, police, roadside breath tests, testing

Photographer's Bullshit Arrest By A Dallas Transit Cop Nets Him A $345,000 Settlement

Legal Issues

from the get-out-your-checkbook,-Joe-Public dept

Dallas residents are now going to be $345,000 lighter thanks to the actions of one Dallas Area Rapid Transit cop. (via Reason)

DART officer Stephanie Branch decided the law was on her side when she demanded photographer Avi Adelman stop recording EMS personnel dealing with an apparent overdose. Officer Branch claimed Adelman’s photography violated the medical privacy rights of the person being attended to, saying things about HIPAA (not at all relevant here) and “establishing a perimeter.” Branch was in the wrong. She was violating DART policy by shutting Adelman down and she compounded this error by making twenty-three “false or misleading” statements in her report of the arrest.

Adelman spent 20 hours in jail after being charged with criminal trespassing. That charge was dropped and DART itself apologized to him for the actions of its “rogue” officer. Officer Branch escaped being held liable for violating Adelman’s First Amendment rights as the right to record public employees in public areas wasn’t clearly established in the Fifth Circuit until a year after Adelman’s arrest.

His Fourth Amendment claim moved forward though and Officer Branch appealed the stripping of her qualified immunity on this count. Her appeal was rejected by the Fifth Circuit Court of Appeals, which found Branch’s arrest of Adelman unreasonable. As the court pointed out, Branch’s actions directly violated a DART policy issued two years before the 2016 incident. Branch tried to reclaim her immunity shield by claiming ignorance, but the court shot that down.

Branch’s mistake was not reasonable. She didn’t misinterpret an unclear policy or law; she simply failed to learn about DART’s updated policy. And “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.” Heien, 135 S. Ct. at 539–40.

It’s good to see Adelman will be compensated for his violated rights, but this settlement comes courtesy of Branch’s employer, which means Officer Branch really isn’t being held responsible for violating the photographer’s rights. When qualified immunity is stripped, another shield usually takes it place. Government employees generally benefit from indemnification, which ensures they won’t personally be out any money no matter how often they lose lawsuits.

This indemnification helps plaintiffs, since it pretty much guarantees they’ll get paid. But it doesn’t result in greater accountability, as can be observed in multiple cities where law enforcement officers are costing residents millions of dollars every year, year after year. If there’s no direct financial pain, officers who engage in abusive behavior aren’t deterred from violating rights in the future.

Between DART policies and circuit precedent, no transit officer should make this same unreasonable mistake again. It’s too bad taxpayers have to keep paying for these expensive learning experiences.

Filed Under: 4th amendment, avi adelman, dallas, dallas area rapid transit, dart, ems, false arrest, filming police, stephanie branch

Attorney General Calls FOIA Requests 'Harassment' During Long Rant About How Much It Sucks To Be Running The Nation

Say That Again

from the sit-your-whiny-ass-down dept

I’ve never seen a Presidential administration so thoroughly pissed off it’s in power. Despite having his boy in the White House and a Senate majority, the DOJ’s top man spent most of a memorial lecture complaining about how hard it is to be in charge.

Attorney General William Barr’s main complaint — which runs for a majority of his speech to the Federalist Society — is that the Executive Branch just doesn’t have enough power. Barr believes one part of the co-equal government should be more equal than the others.

The most telling moment is this: Barr believes things began to go downhill for the Executive Branch during an administration that made the best case for limiting Presidential power.

I am concerned that the deck has become stacked against the Executive. Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate. More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.

Using a president that resigned on the verge of impeachment as an example of the “weakening” of the Executive Branch may be timely, but it’s also amazingly tone deaf. A person who provided a clear example of how dangerous an unchecked Executive could be really shouldn’t be touted in mid-bemoanment of the current state of affairs… unless you’re arguing for fewer checks and balances, which is what Barr is doing.

Barr also conveniently glosses over the expansion of the Executive Branch’s powers following the 9/11 attacks. It also glosses over Barr’s unilateral expansion of the DOJ’s powers under his leadership back in 1992. His complaints aren’t backed by facts. They’re only backed by Barr’s bitterness, which is aimed at Congressional leaders, who are investigating the President, and at the nation’s courts, which have shot down a few of the president’s immigration edicts.

But it goes further than an angry man shaking his fist at checks and balances. Barr also takes a shot at the Freedom of Information Act — yet another way the Executive Branch is somehow being screwed. The most powerful executive branch in the world is being “harassed” by citizens.

The costs of this constant harassment are real. For example, we all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function. Congress and the Judiciary know this well, as both have taken great pains to shield their own internal communications from public inspection. There is no FOIA for Congress or the Courts. Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process. That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.

All of this is true (minus the editorializing). The public can seek documents from Executive Branch agencies like the DOJ. However, they cannot seek documents directly from the President. Congress is exempt from most FOIA requests. So is the judicial branch, although the presumption of an open court does tend to make the concept of public records requests redundant. (Citizens can sue for the release of sealed documents though.)

This isn’t harassment. Quite possibly the agencies Barr is speaking for — 15 agencies, including the State Department, DHS, DOJ, and DoD — view FOIA requests as “harassment.” But it’s not. It’s something a 1967 law established to make the government more accountable and transparent. Barr feels this mandatory openness is bullshit. Worse, he claims this is somehow partisan bullshit that unfairly targets his president and his executive agencies, overlooking the fact that this same “harassment” has “targeted” other Executive Branches for more than 50 years.

Barr’s speech is nothing more than a preacher whining to the converted that life is unfair. He seems to have bought into Trump’s mistaken belief that being in charge should prevent criticism, accountability, or professional responsibility. Barr is about as unhinged as Trump, but he doesn’t have the excuse that he’s new to the job. Trump was elevated into the Oval Office after a lifetime of grandiose real estate failures and a stint as the host of a successful “reality” show. But Barr is a g-man with plenty of government experience. He knows how all of this really works. He’s just angry it doesn’t work the way he wants it to. He’s a dangerous man in a position with a lot of power. He’s abused the office before. His attitude toward the public suggests he’s willing to abuse it again.

Filed Under: doj, executive branch, executive power, foia, william barr
Companies: federalist society

Judge Says The FBI Can't Keep Refusing To Confirm Or Deny The Existence Of Social Media Monitoring Documents

(Mis)Uses of Technology

from the that-thing-we're-all-doing...-we-can't-really-say-we're-doing-it dept

The ACLU is one step closer to obtaining documents detailing the FBI’s use of social media monitoring tools. The FBI replied to the ACLU’s FOIA request with a Glomar and a denial.

First, it neither confirmed nor denied it had responsive records. Then it said even if it did have some, it still wouldn’t release them. According to the FBI, releasing documents about the government’s well-known use of social media monitoring software would somehow allow criminals to take a peek at super-secret law enforcement tools. It made these assertions despite the fact it publicly secured contracts for social media monitoring tools.

The ACLU sued. And now, it’s obtained at least a partial victory. The court says it’s not quite accurate to say the DOJ has already publicly acknowledged use of social media monitoring tools. Citing the ACLU’s victory in an FOIA lawsuit over drone strike documents, the court points out the bar to clear first is whether it can be said the DOJ — not the FBI — has made it clear it’s in the social media monitoring business. From the decision [PDF]:

[ACLU v. CIA] does not suggest that the known use of a technique by one agency creates public knowledge of use by a different agency, unless it is publicly known that the agency’s parent agency utilizes that technique. Here, the FBI’s parent agency is the Department of Justice, and the ACLU presents no evidence that it is publicly known that the Department of Justice utilizes the social media monitoring techniques in question.

But that’s not the end of the discussion. The FBI works with several other federal agencies and the documents requested would cover any secondhand use of monitoring tools. So, is it public knowledge other federal agencies engage in social media monitoring?

Given the wide array of evidence indicating (1) that other agencies engage in social media monitoring in the immigration and transportation contexts, and (2) that those agencies cooperate, coordinate, and share information with the FBI, the Court also considers whether such evidence makes it possible to impute, for purposes of applying Exemption 7(E), social media monitoring in the immigration and transportation contexts to the FBI. The ACLU presents extensive evidence that the Department of Homeland Security (“DHS”), U.S. Customs and Border Patrol (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), Immigration and Customs Enforcement (“ICE”), and the Department of State (“DOS”) engage in social media monitoring.

Following this are six straight pages detailing these agencies and their monitoring programs, all of which have previously been discussed publicly. But that still isn’t enough.

[T]he Court finds that the weight of authority suggests that the ACLU cannot seek disclosure of the FBI’s policies based on other agencies having disclosed their own policies, together with acknowledgement that they share information with the FBI.

If this seems to be going the government’s way, it actually isn’t. The Glomar and the attached exemption don’t pair as well as the government would like. The Glomar, at least, is a step too far in the direction of unjustified opacity.

The problem for Defendants is that disclosure of social media surveillance—a well known general technique—would not reveal the specific means of surveillance. Denying a Glomar response would only reveal in general the application of a known technique by the FBI to immigration- or transportation-related investigations. Merely requiring the FBI to answer whether there are documents of the kind requested would not, at this juncture, require the disclosure of those documents which might reveal specific tools and techniques utilized by the FBI.

The government then argued denying a Glomar might expose the FBI’s lack of social media monitoring. The court says the FBI can’t have its Glomar and its FOIA exemption if it wants to make that argument.

[T]he language of Exemption 7(E) refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure, and the Ninth Circuit has limited the application of “risk of circumvention” of the law under Exemption 7(E) to guidelines, not techniques and procedures. Hence, it is not clear whether Defendant’s negative inference argument is cognizable under Exemption 7(E).

In the end, it’s the level of perceived harm that gives the ACLU a shot at obtaining these records. The FBI and DOJ claim any release of info would result in criminal mayhem due to criminals suddenly being made aware of the existence of social media monitoring programs. The court says that’s just not going to happen.

[T]he risk of criminal activity escaping detection thru social media if the FBI were to reveal it has no records is substantially mitigated by two facts. First, it is well known that many related agencies do engage in social media surveillance in the immigration centers and share that information. This lessens the risk that people will be emboldened by the FBI’s disclosure to spread criminal or terrorist messages through social media. Second, even if the FBI were to disclose it has no records of purchasing or acquiring products or services used to surveil social media, that does not mean that the FBI has no such tools at its disposal, as it could have developed such tools internally.

This kills the FBI’s Glomar. It will now have to at least confirm or deny it has records relevant to the ACLU’s request. And once it’s done that, it can start arguing about whether or not it can use Exemption 7(e) to keep them out of the ACLU’s hands. Given the previous paragraph, it’s difficult to see how the FBI can possibly justify a refusal to release any of the documents it may (or may not lol) have on hand. Social media monitoring efforts are well-known in the public and private sectors. If the FBI is doing something new and interesting with this, it might have a point. But if it’s just doing the same thing other agencies are doing, it really can’t justify rejecting this request.

Filed Under: doj, fbi, foia, glomar, social media monitoring, transparency

Federal Judge Asks DEA To Explain Why All 179 Of Its Stash House Sting Targets Are Minorities

Legal Issues

from the stings-themselves-still-problematic-even-without-the-bias dept

Federal judges appear to be tiring of the government’s long-running entrapment programs. One of the federal law enforcment’s favorite “enforcement” efforts is creating crime in order to bust “criminals.” Agencies like the ATF and DEA find someone in need of cash — usually a minority someone — and use undercover agents and confidential informants to convince them to raid a drug stash house for some easy money.

The twist is the drug stash house is fake. There are no drugs. There are no armed guards protecting the drugs. Once the mark arrives with a weapon and a plan of attack, the ATF arrests the person for thinking about robbing a fake stash house to steal nonexistent drugs.

The other twist is the prosecution. Since the drugs never existed, the ATF is free to claim the targeted stash was large enough to trigger mandatory minimum sentences.

A handful of judges have already found stash house stings to be a questionable use of government resources, if not ultra-shady operations that put the government in the position of being the judge and the jury by fabricating drug amounts to ensure longer sentences are handed down.

Here’s what federal judge Ruben Castillo had to say about stash house stings:

It is undisputed that between 2006 and 2013, the defendants charged in this District in the ATF false stash house cases were 78.7 black, 9.6 percent Hispanic, and 11.7 percent white. During this same period, the District’s adult population was approximately 18 percent black, 11 percent Hispanic, and 63 percent White. These numbers generate great disrespect for law enforcement efforts. Disrespect for the law cannot be tolerated during these difficult times. It is time for false stash house cases to end and be relegated to the dark corridors of our past. To put it simply, our criminal justice system should not tolerate false stash house cases in 2018.

Castillo also noted that the government never engaged in this type of borderline entrapment during the darkest days of Prohibition.

[E]ven during the low points of the great violence caused by the alcohol wars of Prohibition, the ATP did not seek to use “false alcohol warehouse” tactics against any ethnic organized crime groups to promote public safety.

Judge Jane Stranch’s words — written for the Sixth Circuit Court of Appeals — were no less harsh.

The unseemly nature of the Government’s activity is emphasized by its failure to achieve its declared goals of jailing dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups achieve the stated goals was not proffered and the facts here demonstrate why: no known dangerous individuals or criminal enterprises were researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record.

Unfortunately, the court found no way to reverse the sentence handed down. The barriers to a successful lawsuit against a federal government agency are almost insurmountable, and the ATF knows this, so it has no reason to stop performing the laziest form of “enforcement” it can engage in.

Judge Otis Wright tore into the ATF in his decision as well:

In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.

The end result was only five years shaved off the defendant’s 19-year sentence — a sentence that rested solely on the ATF’s claims about the total weight of the nonexistent drugs in the nonexistent stash house the defendant never raided.

Perhaps the remedy lies somewhere earlier in the process, well before mandatory minimum sentences — prompted by government agents’ claims about nonexistent drugs — are imposed. Judge Jed Rakoff is demanding the government produce some evidence that its stings don’t primarily target minorities.

This case involves a DEA sting operation utilizing a number of fictitious drug shipments. They follow the same pattern as the ATF’s stings. The government approaches its marks and tries to talk them into robbing fake drug dealers of their fake drugs. Then it swoops in and arrests its dupes the moment they start moving forward with robbery suggested by the government.

The opening paragraph of the order [PDF] makes it clear Judge Rakoff thinks these stings are bullshit:

By their very nature, so-called “reverse sting” operations, in which the Government creates the illusion of crimes in order to catch would-be criminals, are open to potential abuse, since they are not cabined by the demands of reality, but only by the vagaries of imagination.

The seven defendants in this case — all “men of color” — are arguing the government is engaging in selective enforcement by primarily targeting minorities with sting operations. Judge Rakoff appears to think that might be true. Or, at the very least, the government should be obliged to explain why every single one of its sting efforts result in arrested minorities.

After some discussion about which discovery standard should be applied to selective enforcement allegations, the court comes to this conclusion:

[T]he appropriate standard is that where a defendant who is a member of a protected group can show that that group has been singled out for reverse sting operations to a statistically significant extent in comparison with other groups, this is sufficient to warrant further inquiry and discovery.

Here, defendants have presented evidence that not a single one of the 179 individuals targeted in DEA reverse sting operations in SDNY in the past ten years was white, and that all but two were African-American or Hispanic. This is in stark contrast to the racial makeup of New York and Bronx Counties, which are 20.5% African-American, 39.7% Hispanic, and 29.5% White. This is also in contrast to NYPD crime and enforcement data for felony drug arrests (42.7% African-American, 40.8% Hispanic, and 12.7% White), firearms arrests (65.1% African-America, 24.3% Hispanic, 9.7% White), and robbery arrests (60.6% African-American, 31.1% Hispanic, 5.1% White).

And, just in case the government wants to argue this is merely a statistical fluke, the defendants also have some expert testimony they’d like the DEA to attempt to rebut.

Furthermore, defendants have provided compelling expert analysis demonstrating that these numbers are statistically significant. According to a rigorous analysis conducted by Dr. Crystal S. Yang, a Harvard law and economics professor, it is highly unlikely, to the point of statistical significance, that the racially disparate impact of the DEA’ s reverse sting operations is simply random.

Here’s how Yang explains the unlikeliness of 177 of 179 targets being “randomly” Black or Latino:

[U]nless the pool of similarly situated individuals is comprised of at least 96.0% Latinos or Blacks~ it is highly unlikely that one could get a sample of 179 targeted individuals where 177 or more individuals are Latino or Black.

The government will need to produce paperwork showing how it initiates stings and how it decides on sting targets.

Accordingly, and for now, discovery will be limited to the Government providing to the defendants, by no later than November 22, 2019, (1) all DEA manuals, circulars, protocols, and the like that provide guidelines for how and when reverse stings should be originated; and (2) all notes, memoranda, or other investigative material showing how defendants were identified and evaluated as targets in this particular reverse sting operation.

It’s unlikely anything turned over by the DEA will say “exclusively target Latinos and Blacks.” But this won’t help the government, which will still need to explain how guidelines and protocols that don’t insist on targeting minorities seem to produce nothing by minority defendants. And if it can’t explain that to Judge Rakoff’s satisfaction, the claims of selective enforcement will move forward.

More judges should push back against “reverse sting” operations. There’s been no evidence offered these operations do anything more than put harmless people behind bars for years. When the targets are fake drugs and fake drug runners, zero drugs/drug runners are being taken off the streets.

Filed Under: dea, doj, entrapment, jed rakoff, racism, stash houses, targeting minorities