Interpol Confirms, Denies It's Against Strong Encryption

(Mis)Uses of Technology

from the wait-that-sounded-better-before-we-said-it-out-loud dept

The latest law enforcement agency to offer up its opinion on end-to-end encryption doesn’t seem to like it either. Joseph Menn reports for Reuters that Interpol is siding with the FBI, DOJ, and a handful of European government agencies in finding that encryption is bad and lets bad people do bad things.

The international police organization Interpol plans to condemn the spread of strong encryption in a statement Monday saying it protects child sex predators, three people briefed on the matter told Reuters.

At the group’s conference in Lyon, France on Friday, an Interpol official said a version of the resolution introduced by the U.S. Federal Bureau of Investigation would be released without a formal vote by representatives of the roughly 60 countries in attendance, the sources said.

This follows the anti-encryption agitating performed by Attorney General William Barr and FBI Director Chris Wray in response to Facebook’s announcement it would add end-to-end encryption to its Messenger service, bringing it more in line with Whatsapp, another of Facebook’s acquisitions. Both used the specter of child exploitation to argue against this implementation — an effort to sacrifice the security of millions for some slight gains in law enforcement efficiency.

Sean Gallagher of Ars Technica obtained a draft copy of the resolution, which adds more redundancy to earlier “think of the children” arguments.

The current path towards default end-to-end encryption, with no provision for lawful access, does not allow for the protection of the world’s children from sexual exploitation. Technology providers must act and design their services in a way that protects user privacy, on the one hand, while providing user safety, on the other hand. Failure to allow for Lawful Access on their platforms and products, provides a safe haven to offenders utilizing these to sexually exploit children, and inhibits our global law enforcement efforts to protect children.

Encryption does not “provide safe havens” for child abusers. This is Interpol’s version of AG Barr’s “lawless spaces” assertions, which doesn’t improve at all on Barr’s fatuous statements. As former FBI General Counsel Jim Baker recently pointed out, Barr’s argument isn’t about where the law is being circumvented, but rather about how he doesn’t like the way relevant laws work.

So, encryption has not, as the attorney general complained in his speech, really created a “law free zone.” It’s just that the law that applies in this area is not what Barr or the Justice Department want the law to be.

Interpol could not be reached for comment in time for publication but it sure had a lot to say about the issue now that its apparent stance on encryption has been made public. It told the New York Times’ Nicole Peroth the Reuters story was inaccurate.

If you can’t read/see the tweet, it says:

Dear Ms Perlroth,

As per our statement there are, and were, no plans at this time for the INTERPOL General Secretariat to issue a statement in relation to encryption.

This contradicts statements made by conference attendees, who said Interpol’s resolution/statement was “due to be published this week.” Perhaps Interpol has undergone some hasty reconsideration after reading its own words on the pages of multiple press sites. Or maybe the timetable is off. All Interpol is really saying is that it won’t be issuing this “at this time.” This isn’t a rejection of these articles’ substance. It appears to be nothing more than a dispute about when Interpol will take a public stance against encryption.

Or maybe it has decided to let the 60 representatives from countries Interpol serves actually vote on the resolution. This would be a far better route than issuing a resolution unilaterally declaring opposition to encryption that many members may not actually support.

Whatever the case, Interpol’s suggestion that encryption’s main beneficiary is international crime is shortsighted and selfish. It’s also dangerous. In a world filled with cyberthreats, efforts to undermine encryption “for the good of the public” won’t actually result in the public being better served. It certainly won’t make them any better protected.

Filed Under: doj, encryption, fbi, going dark, interpol

Brooklyn DA's Office Latest To Release A List Of Cops It Doesn't Want Anywhere Nears Its Prosecutions

Legal Issues

from the permanently-uninvited dept

The trickle of “Brady lists” continues, further enraging New York City’s police unions. The last batch of cops considered too dishonest or crooked to be called on to testify in court led the Sergeants Benevolent Association to claim the Bronx DA’s release of its “naughty list” was an attempt to “smear honest, hardworking cops.”

It was a super-strange claim to make about cops that were too dishonest to be allowed in court, suggesting the SBA felt misconduct and perjury were just part of everyday police work. It’s a stretch to call a list of cops even prosecutors don’t trust a smear attempt. These reputations are already besmirched. The only difference is that the public now knows, rather than just Bronx prosecutors.

Another list of bad cops has been released to Gothamist. This one comes courtesy of a public records request sent to the Brooklyn DA’s office.

Brooklyn prosecutors, complying with a Freedom of Information Law request from Gothamist/WNYC, have released the names of dozens of officers whose credibility has been called into question.

[…]

The list includes 53 cases, some of which are sealed, between 2008 and 2019 in which officers had their testimony discredited or called into question by state and federal judges.

Unlike the release by the Bronx DA, no officers’ names have been redacted, allowing Gothamist to retrace the shady footsteps of some of the officers listed in the document [PDF]. Some have already been named in multiple lawsuits. Others have had their truthfulness questioned by judges during prosecutions as their testimony diverged from official reports and narratives under judicial examination.

The list given to Gothamist appears to be more complete than other versions given to Brooklyn defense lawyers, suggesting the DA’s office hasn’t been completely forthcoming about bad officers in the past.

The DA’s office also tried to get out ahead of the unavoidable police union blow-back by stating this release was not an “indictment” of “thousands of dedicated officers.” It’s a bad apple list, in other words. But this wasn’t enough to prevent the head of the SBA from issuing another nonsensical statement.

Ed Mullins, President of the Sergeants Benevolent Association, said the DA’s priorities are misplaced. “The Brooklyn DA has a long history of bad prosecutions,” Mullins said. “What are they going to do about that? It’s hypocritical.”

I guess whataboutism will have to do in lieu of a real argument.

Even though this list is one of the more complete lists released to the public, it’s still not everything. The DA’s office withheld a bunch of documents that detailed further misconduct by additional officers the DA won’t be allowing anywhere near a courtroom.

Citing the controversial state statute 50-a, which shields police misconduct records, and a consultation with the city’s Law Department, the Brooklyn prosecutors declined to release another list, containing Civilian Complaint Review Board complaints, NYPD Internal Affairs Bureau records, and other credibility findings by judges and Brooklyn prosecutors themselves. The DA said that list includes “attorney notes” and other records it considers to be forms of work product.

OK. Just redact/remove the “work product” and release everything else. Seems like a workable solution, even if it’s going to result in there being far more than 53 cops on the shit list. Untrustworthy cops being relied on to put people in jail is enough of a “public interest” that it should overcome the office’s presumption of opacity.

It’s not just the cop testifying against you in court. It’s the cops that arrested you, booked you, and helped create the official narrative. There are plenty of enablers just as unworthy of trust as the cops that made the final cut on the DA’s “naughty list.” They shouldn’t be shielded from public scrutiny just because their misconduct overlaps their personnel records. Unfortunately, state law covers up for bad cops with this exemption and it’s unlikely the multiple, very vocal, and very powerful police unions in the state will ever allow this to be taken off the books.

Still, it’s a positive step forward for accountability. Prosecutors have almost always sided with cops by refusing to release these lists to the public. Many go further, refusing to create the lists in the first place, ensuring their prosecutions aren’t impeded by judges or defendants questioning the honesty of the officers on the stand.

Filed Under: brady list, brooklyn da, naughty list, police

New York Residents Unprotected, Served Up To Criminals By NYPD Employees

Scams

from the YEAH-BUT-WE'RE-THE-ONLY-GAME-IN-TOWN dept

Yeah, it’s real easy to sit back and second guess the hard work of law enforcement officers. Secure and safe in our warm homes, far away from the mean streets and thin blue line separating us from the criminal apocalypse, we have it easy. As one of the NYPD’s unions pointed out, citizens like us are clueless. We’ve (and I’m directly quoting here) “grown up on the nipple of what’s easy.” We “have no clue what a NYPD officer does,” and yet we criticize and disparage them.

Then one day — after years of criticism and disparagement and [re-reads tweet] nipples — we’ll find we need them. “Evil will be at our door,” as the NYC PBA says. When that happens, we cop-haters will call for help. We will finally recognize we need them. After all, when all hell breaks loose, who else is going to respond to our calls for help and… um… sell our personal info to insurance scam artists?

Six current and former NYPD employees, which included one cop and five 911 operators, were arrested by the feds as authorities smashed a massive $18 million New York insurance fraud operation, the Daily News learned Thursday.

Police Officer Yaniris Deleon was taken into custody in Manhattan while on duty Wednesday after federal agents surrounded her with assault weapons drawn, sources with knowledge of the case said.

[…]

Deleon, five 911 operators and a supervising 911 operator allegedly provided the medical insurance scammers with names, phone numbers and confidential information about car accident victims. The runners then reached out to the victims and steered them toward clinics that would bill medical insurance companies for treatments and procedures they didn’t need.

This is fantastic news for first responders and New York’s Finest. Not so much because it makes some “bad apples™” look bad, but because it shows them there’s a faster route to extra cash than timecard abuse.

If you give people in power access to a lot of personal info, they will abuse this access eventually. It’s not an “if.” It’s a “when.” Not everyone will abuse this access as much as these government employees did, but a wealth of personal data just a couple of clicks away is a very tempting target. Especially when it can significantly boost the income of the underappreciated heroes keeping the city safe.

According to this report, these employees made about $4,000 a month from feeding personal info to scam artists. It also says operators were promised about $24-30,000 “off the books” for continued supply of contact info, so it’s unclear how much any of the arrested employees actually made assisting scammers. However, this selling of personal data allegedly dates back to 2014.

But the officer and 911 operators were only making pennies on the dollar. The middle men were making themselves millionaires.

The scammers received about $3,000 a referral to attorneys and shady doctors, according to court papers. The group made about 6,000 successful referrals over the last five years, netting about $18 million, officials said.

The names, addresses and contact numbers for about 60,000 car accident victims were steered to the scam artists over the last five years, officials said.

Oh my. This is going to lead to a whole lot of litigation. Government employees misusing their power and access to serve up citizens to scam artists is the sort of abuse that can’t be handled solely through prosecution. The government may go after the involved employees and everyone on the non-government side who benefited from this arrangement, but plenty of residents are going to be legitimately pissed that the government they were told to trust sent them off to undergo unnecessary medical procedures.

Maybe this set of prosecutions will act as a deterrent. Or maybe it will just be seen as the exception to the rule, and abuse of access will continue at its normal pace. Whatever the result, at least more citizens will be aware how much damage the government can do with all the information it demands we relinquish in exchange for government goods and services.

And they’ll see how much of this “thin blue line” crap is self-righteous bullshit. The blue line doesn’t stand between civilians and evil. It stands between cops and accountability. Because if anyone took accountability seriously, this sort of thing would be far rarer than it is. It only becomes common when few people are worried about the potential downsides of abusing their positions. And when it’s common practice, that’s when people start getting caught.

Filed Under: 911, fraud, insurance, medical fraud, medical insurance fraud, ny, nypd, scams

Supreme Court's Warrant Requirement For Cell Site Location Info Apparently Killed Another Domestic Surveillance Program

Privacy

from the i,-for-one,-welcome-a-Supreme-Court-killing-spree dept

Oh, guess what? The NSA has ended another third party data collection — one it hopefully ended right after the Supreme Court’s Carpenter decision was released. Spencer Ackerman fills in the details at the Daily Beast.

U.S. intelligence agencies have stopped collecting cell-phone location data without a warrant on people inside the United States, the office of the director of national intelligence has affirmed.

Sounds good. Sounds like the NSA probably doesn’t have a legal way to continue this warrantless collection now that the Supreme Court has ruled historical cell site location info is covered by the Fourth Amendment. It’s been nearly 18 months since this decision was released. The letter sent to Ron Wyden by the ODNI indicates the Intelligence Community abandoned its harvesting of CSLI shortly after that ruling.

But, as Ron Wyden points out, the ODNI isn’t willing to state publicly that the Supreme Court’s decision was a contributing factor to its mothballing of the CSLI collection.

“The Intelligence Community has now publicly revealed that, since the Supreme Court decision more than a year ago, it hasn’t used Section 215 of the PATRIOT Act to track Americans,” Wyden said in a statement provided to The Daily Beast. “At the same time, the government is hedging its bets by not formally acknowledging that the Supreme Court case applies to intelligence surveillance…”

This is another of the NSA’s Section 215 collections. The most famous collection under Section 215 was the one exposed by the first Snowden leak: phone call metadata. This collection was retooled by the USA Freedom Act, which forced the IC to approach telcos with targeted orders supported by reasonable suspicion. The NSA was apparently so used to just collecting it all, it couldn’t manage to find a way to obtain this data without violating the law. It was abandoned and the NSA recommended to have it shut down forever. The FBI doesn’t like that idea, though, and wants Congress to give the phone metadata collection — along with everything else harvested under Section 215 — a permanent reauthorization.

At least that’s not going to happen. It looks like the phone metadata collection will now become the only thing that’s truly forever: dead.

A forthcoming bill from the House judiciary and intelligence committees will reauthorize three other surveillance measures set to expire, but will not permit the Call Detail Records program to survive. With expiration set for Dec. 15, whatever the Senate does the Call Detail Records program, barring some eleventh-hour legislative chicanery, looks like the rarest of birds: a post-9/11 surveillance activity on course for extinction.

You can draw a straight line from the Snowden leaks to the death of this collection. The Patriot Act gave the NSA a handy way to spy on Americans. 14 years later, the USA Freedom Act scaled back that power, altering the program enough that the NSA couldn’t seem to find a way to collect these records without violating the law. Five years after this minor surveillance reform effort, the program will be put out of its misery.

But the NSA has plenty of other collection authorities that will remain unchanged and mostly unexamined. Even this Section 215 collection — which seemingly violates Supreme Court precedent — hasn’t received much public discussion. It seems clear warrantless collection of cell site location info is now illegal, but until more details head Wyden’s way, we probably should assume the Office of Legal Counsel is trying to assemble a rationale that allows the Intelligence Community to route around the Carpenter roadblock.

But, if nothing else, the phone metadata collection is dead. Forever. And that’s worth celebrating.

Filed Under: 4th amendment, cell site location info, csli, location info, nsa, odni, ron wyden, surveillance, warrants

Lawsuit: An Officer's BS Claims About 'Odor Of Marijuana' Led To 14 SWAT Team Members Pointing Guns At Our Kids

Legal Issues

from the maybe-it's-the-DETECTIVE-who-smells-like-marijuana dept

Another bang-up job by our nation’s drug warriors (which included the use of flashbangs!) has resulted in yet another lawsuit alleging a host of rights violations. The Louisville (KY) PD’s SWAT team was in such a hurry to raid a supposed drug dealer’s house, the swearing officer couldn’t be bothered to get any of the facts right. (via Reason)

Fourteen officers descended on Ashlea Burr and Mario Daugherty’s home on October 26. The no-knock raid began with the breaking of the home’s glass front door and didn’t end until everyone in the house — including three teenage children — had assault rifles pointed at them. Despite the assurances of Detective Joseph Tapp that there would be drugs found in the house, there were no drugs found in the house.

The lawsuit [PDF] and the warrant affidavit [PDF] are disturbing reads. It shows just how little is needed to secure judicial permission to point guns at innocent people. They’re best read together to highlight how much bullshit Det. Tapp shoveled onto the affidavit’s pages to come up with something approaching “probable cause.”

From the affidavit:

The complaint [an anonymous tip] stated a black male named Anthony McClain is growing marijuana and has multiple bags of marijuana packaged for sale in the front bed room.

From the complaint:

Nobody named Anthony McClain […] lived at the house at or near the time of the raid.

Affidavit:

Metro complaint [an anonymous tip] also stated a white female named Holly was his girlfriend and owned the house.

Complaint:

A simple search of Jefferson County’s PVA records would have shown that a man named Kevin Hyde owns the house.

[…]

Ashlea [Burr] and Mario [Daughtery] rent the house.

[…]

Ashlea is not white.

Affidavit:

Detective… approached the house to conduct a knock and talk.

Complaint:

[Detective] Tapp did not even attempt to knock on the door.

What makes up the bulk of the “probable cause” is Detective Tapp’s nose. Tapp claimed he approached the house three times over a span of three weeks and each time was hit with the “smell of fresh marijuana.” It’s pretty difficult to dispute someone’s sense of smell. But, by the same token, someone’s subjective statement about an odor only they observed shouldn’t be enough to establish probable cause.

Nothing else in the affidavit points to any evidence of criminal activity other than the (unsworn) assertions of the anonymous tipster — a tip that got all the facts about the home’s owner and residents wrong. Other than the description of the house, the only objectively verifiable fact in Detective Tapp’s affidavit is the linking of a car Tapp saw parked in front of the house with one of the residents of the house (Mario Daugherty) via vehicle registration records. That’s some goddamn fine detective work, Detective.

Thanks to Tapp’s odor assertions, a family was needlessly traumatized by fourteen SWAT team members who recovered exactly zero (0) marijuana from the residence Tapp claimed offended his olfactory senses on no less than three (3) separate occasions.

The “smell of marijuana” is one of the most abused tools in law enforcement’s toolbox a rights violation permission slips. It’s an excuse to raid houses. It’s a justification for invasive searches. It’s a free pass on stealing cash and cars from citizens. It’s a popular premise for pretextual stops, which tend to result in all of the above, plus roadside strip search/proselytizing and/or forcible late night baptisms in nearby lakes. Any time an officer swears they smelled marijuana, magistrates should ask “And?” Someone’s unverifiable claims about odor should not be allowed to morph into guns-out raids of people’s homes. The sanctity of the home — the heart of the Fourth Amendment — deserves more protection than this.

Filed Under: anthony mcclain, ashlea burr, drug war, drugs, joseph tapp, kefferson county, mario daugherty, no knock raid, police, swat team

Appeals Court Denies Qualified Immunity To Cop Who Argued Citizens Have No Right To Defend Themselves Against Armed Intruders

Legal Issues

from the play-no-knock-games,-win-no-knock-prizes dept

The Fourth Circuit Court of Appeals has denied immunity to a cop involved in a no-knock raid that left the raided house’s resident, Julian Betton, paralyzed. This case was touched on briefly in a previous post discussing legal arguments made by law enforcement officers that attempt to portray people in their own homes as dangerous aggressors when police crash through their doors unannounced.

In this case, South Carolina police officer David Belue’s legal rep tried to tell the court Betton’s response to a bunch of heavily-armed men rushing through his door — grabbing a gun and moving into the hallway from the bathroom — created a situation where Betton deserved every bullet fired at him by officers. In other words, if Betton didn’t want to get shot, he shouldn’t have been in his own house when it was invaded by officers who never informed him they were police officers.

Here’s a recap of the events leading to the lawsuit, from the Fourth Circuit’s decision [PDF]:

In the afternoon of April 16, 2015, a team of plain-clothed law enforcement officers armed with “assault style rifles” used a battering ram to enter Julian Ray Betton’s dwelling to execute a warrant authorizing a search for marijuana and other illegal substances. The officers did not identify themselves as “police” or otherwise announce their presence before employing the battering ram. From the rear of his home, Betton heard a commotion but did not hear any verbal commands. Responding to the tumult, Betton pulled a gun from his waistband and held it down at his hip.

Three officers, including Myrtle Beach, South Carolina police officer David Belue, fired a total of 29 shots at Betton, striking him nine times. Betton suffered permanent paralysis resulting from his gunshot wounds.

This shooting was immediately followed by a bunch of lies. Officer Belue first claimed Betton fired his gun at officers. The ensuing investigation showed Betton’s weapon was never fired. Faced with this direct contradiction of his statement, Officer Belue revised his, claiming Betton pointed his gun at officers. According to Betton, he never got the chance to point a gun at anyone. The moment he appeared with his gun, officers opened fire.

Officers also lied about their entrance to Betton’s home. They claimed they knocked and announced their presence. Betton’s surveillance camera told the real story. Nine seconds elapsed between the officers’ arrival on Betton’s lawn and their entrance into his house. None of the officers present appeared to announce anything before bashing down his door and swarming inside.

Officer Belue also initially had asserted that the agents had knocked on Betton’s door and announced their presence, and had waited before forcibly entering the home. However, footage from the video cameras on Betton’s front porch showed that the officers had not knocked on the door or announced their presence, and had not waited any length of time before using the battering ram to gain entry.

To the contrary, the video recordings showed that the officers ran up the front steps and immediately began using the battering ram. Moreover, Garcia confirmed that the officers did not announce that they were law enforcement personnel before entering the home. The record before us also contains a statement from a former DEU agent, who related that the DEU agents “almost always forcibly entered [residences] without knocking and announcing” their presence.

Despite this — and despite inverting the Castle Doctrine to say its the invaders of a home who need protection from the home’s occupants — Officer Belue still sought qualified immunity. The district court denied his request, pointing to the facts still in dispute, as well as the officer’s actions.

Regarding Betton’s unlawful entry claim, the magistrate judge found that the officers had not knocked or announced their presence before entering, and that there were no exigent circumstances warranting abandonment of the “knock and announce” procedure. The district court adopted the magistrate judge’s recommendation to deny qualified immunity on the unlawful entry claim, and Officer Belue has not challenged this ruling in the present appeal.

With respect to Betton’s excessive force claim, the magistrate judge found that there were material facts in dispute regarding whether Betton had pointed a gun at the officers before Officer Belue fired his weapon. Thus, the magistrate judge concluded that a jury could find that Betton did not pose an immediate deadly threat to Officer Belue or others justifying the use of deadly force.

The Appeals Court sees no reason to upend this finding, especially when there’s precedent on point saying actions like this clearly violate Constitutional rights.

[A]s of 2015, the law in this Circuit was clearly established that a person is entitled to be free from excessive force when the person “is on his property or in his residence, is in possession of a gun that he is not pointing at police officers, and is not given a warning or command to drop the gun before he is shot.”

Officer Belue also argued Julian Betton was so inherently dangerous it didn’t matter whether officers announced themselves or ordered him to put his weapon down before opening fire. This claim basically turns Betton’s mere existence into an exigent circumstance where Constitutional rights no longer apply. The Appeals Court isn’t interested in advancing this terrible legal theory.

[N]o information in Betton’s criminal history suggested that he was inherently violent to a degree that the officers would have been justified in storming into his home unannounced and in firing their weapons at him when he did not present a current threat. Notably, the search warrant was based on Betton’s conduct of selling small amounts of marijuana on two occasions. And, although the informant observed security cameras and two firearms in Betton’s home, there was no evidence indicating that Betton had engaged in threatening or violent conduct toward the confidential informant.

Betton’s case goes back to the district court and Officer Belue will have to face a jury if he doesn’t attempt to settle this lawsuit first. Denying immunity preserves the rights of homeowners to defend themselves from unexpected intruders in their homes. Officer Belue’s attempt to separate one action (his shooting of Julian Betton) from another of his actions (entering a home unannounced) is soundly rejected. Even when an officer subjectively “fears for his safety,” context matters. If officers want to use the element of surprise to their advantage in no-knock raids, they can’t turn around and claim residents have no right to react with alarm to armed intruders.

Filed Under: 4th circuit, david belue, julian betton, myrtle beach, no knock raid, qualified immunity, south carolina

Journalists Publish List Of Convicted Cops The State's Attorney General Said Was Illegal For Them To Have

Journalism

from the bluff-called dept

The list of convicted cops the California Attorney General tried to keep secret has just been made searchable by the Sacramento Bee. It contains hundreds of current and former police officers who’ve been convicted of criminal acts over the last ten years.

This collaboration of multiple newsrooms and journalism advocates began with an unforced error by a state agency. Taking advantage of a new state law allowing the public to access police misconduct records, journalists asked the California Commission on Peace Officer Standards and Training for relevant documents. The agency handed over a list of 12,000 former and current officers — a list that apparently was never supposed to be made public.

The state’s Attorney General claimed the journalists had broken the law simply by possessing a document the Commission never should have given them. This couldn’t be further from the truth, but AG Xavier Becerra continued to make this claim, as though it were possible to codify something just by saying it out loud often enough.

I can see why AG Becerra wants this list buried. There’s nothing on it that makes cops or their oversight (which includes Becerra) look good. While the 12,000 officers in the database are a small percentage of the total number of California law enforcement officers employed over the past ten years, this small portion includes a number of cops who were never fired from their agencies despite committing criminal acts that would have put regular people out of a job.

Reporters found at least a dozen deputies with prior convictions are still on the roster at the Los Angeles County Sheriff’s Department. And the five officers with convictions working for the Riverside police include the acting chief — Larry Gonzalez was a lieutenant in 2013 when he pleaded guilty to DUI after reportedly crashing a city-owned SUV with a blood-alcohol level nearly twice the legal limit.

There’s a Kern County Sheriff’s deputy still working despite a conviction for manslaughter after running over two people while recklessly speeding to a call. And a Santa Clara County Sheriff’s deputy is back on the force after dozing off at the wheel and killing a pair of elite cyclists on a training ride.

Sheriff’s departments are especially fond of hiring and retaining the worst people. They’re the agencies most willing to overlook long histories of misconduct and the most hesitant to hand down significant punishments when laws are broken by law enforcers on their payroll. The L.A. Sheriff’s Department is filled with suspicious individuals who hang out in a high crime area every time they show up at the office.

The list has been trimmed considerably since its surprising release to journalists. Due to the lack of cooperation from law enforcement agencies and the general sloppiness of large-scale bureaucracies, the names in the database are only those that have been verified by journalists. The original list had 12,000 names but the database only contains 630 current and former officers.

Even so, there’s plenty to be concerned about. Some officers have multiple convictions but were never fired. Officers have driven drunk, left their children in cars with their loaded guns, and engaged in fraud. There’s also lots of domestic abuse — most of which has gone unaddressed by officers’ employers.

Richard Sotelo was an Imperial County Sheriff’s Department correctional officer in February 2013 when he was charged with domestic violence for assaulting his estranged wife. He was allowed to keep working despite the pending charges. But months later he was accused of a crime again, this time sexual battery against a male co-worker. He was charged for that as well. Sotelo ultimately took plea deals and was convicted in both cases and left the force.

[…]

In one incident investigated by the Bell Police Department months before his reckless driving, [LAPD Officer David] Guerrero allegedly “threatened, assaulted and battered” a woman who was in a dispute with his girlfriend, according to court records.

“That’s how you do it, LAPD style,” Guerrero allegedly said as he drove away.

The DA’s office didn’t file charges. It also didn’t prosecute Guerrero in 2013 when he allegedly threatened to kill the mother of his child, court records show.

The recycling of California cops isn’t going to stop unless the state legislature steps up and makes it possible for officers to lose their certification following a conviction. California is one of only five states with no decertification process, so officers can avoid accountability simply by drifting from agency to agency in the (apparently unlikely) event they’ve been fired. A few more firings will probably occur as a result of increased access to misconduct records, but that’s hardly going to budge the needle when some agencies in the state have shown they don’t feel staffing their departments with known criminals is a problem.

Filed Under: california, database, journalism, police, xavier becerra

Court To Racist Douchebags: It's Not Defamatory For A Newspaper To Call You 'Racist Douchebags'

Defamation

from the how's-all-that-racism-and-douchebaggery-working-out-for-you dept

When is it defamatory to call people “racist douchebags?” Well, let’s start with the “douchebag” part. This is always a statement of opinion and never actionable. Calling someone (in this case, several someones) a “douchebag” is like calling them an “asshole.” It’s not something that is possible of defaming anyone since it’s always, without exception, a statement of opinion.

Calling someone a racist is almost always a statement of opinion. Unlike calling someone a felon or a child molester, claims of racism are based on perception. This makes them closer to a statement of opinion than an actionable fact.

So, calling people “racist douchebags” isn’t defamatory. And it certainly isn’t defamatory in a situation like this, where the group of people being called “racist douchebags” acted like racist douchebags. In this case, six members of a South Carolina high school football team sued the Charleston City Paper for calling them “racist douchebags.” The events leading to the Charleston paper’s column were filled with douchebaggery of the racist variety. (h/t Adam Steinbaugh)

Here’s the super-dry take on the events from the South Carolina Appeal Court’s decision [PDF] — a take made even drier by the school’s press conference statements.

Superintendent McGinley asked the School District’s diversity consultant, Kevin Clayton and Associate Superintendent Louis Martin to conduct the investigation. Mr. Clayton and Mr. Martin interviewed the students on the football team and the coaches. The investigation revealed that “players would gather in a circle and smash the watermelon while others were either standing in a group or locking arms and making chanting sounds that were described as ‘Ooo ooo ooo,’ and several players demonstrated the motion.” Superintendent McGinley stated the AMHS team named the watermelons “Bonds Wilson” and drew a face on each watermelon “that could be considered a caricature.”

Some football players had created their own post-game ritual of demolishing a watermelon bearing the name of the defeated school while making monkey noises. Most of the schools this predominantly-white school faced during the football season were predominantly black. The “Bonds Wilson” referenced on this particular watermelon was the name of a segregated school that used to be located on the campus where Academic Magnet High School is located. It was named after two African-American educators. The students demolishing the “Bonds Wilson” watermelon were AMHS students.

The paper’s op-ed opened with this paragraph, which triggered the football players. (And the lawsuit.)

Today, Charleston was consumed by one story and one story only: the removal of Academic Magnet football coach Bud Walpole amid allegations that his players more or less behaved like racist douchebags. And if there’s one lesson to be learned from all of this[,] it’s this: big toothy grins, watermelons, and monkey noises don’t mix. Any sensible person can see that.

It went on to point out any of the adults overseeing AMHS’s students and football team could have stopped this. But no one did until the ritual became public knowledge.

The point is that an entire team of players thought it was OK to draw a grinning face on a watermelon, smash it on the ground each time they beat a largely black team, and make monkey noises—and no one apparently told them to stop.

No one said, “Hey guys, I know not a single one of you has a racist bone in your body, you know, because that’s a bad thing, and well, you’re an Academic Magnet kid, and you come from a good middle-class white family and you’re going to college, and there’s no way in hell you’d, you know, draw a racist caricature on a watermelon and make monkey noises and do it fully aware of, like, what all that stuff means, because if you did, knowing all that stuff, then yikes, people might start thinking you’re racists. Hell, I’d think you’re a racist, and, well, I just don’t know if I can deal with the fact that Charleston’s best and brightest students are racist douchebags. I mean, it’s just a joke right? Right?”

The paper’s publisher argued these statements were protected speech. It noted the columnist had formed his opinions based on the students’ actions as depicted in statements made by the school during its press conference. Those facts led the columnist to the conclusion the students acted like “racist douchebags” and the football coach at least implicitly condoned racist douchebaggery.

The students hilariously argued this was actual malice, engaged in by the paper “without any investigation, without any evidence, without anything to come to that conclusion.” Perhaps the plaintiffs failed to attend the press conference in which the school said football players were demolishing watermelons painted with the names of predominantly-black schools while making monkey noises.

This was not the students’ stupidest argument. This one is:

Appellants asserted the players’ motives were not racially based but more akin to the movie Castaway where Tom Hanks drew a face on a volleyball and named it “Wilson;” here, the football players drew a face on the watermelon and named it “BondsWilson.”

Oh, OK. [Recalls classic scene in “Castway” where Hanks’ character beats the hell out of “Wilson” while conjuring Jim Crow imagery.]

The court could not disagree more. It upholds the lower court’s decision by pointing out obvious things about defamation law that the plaintiffs’ lawyer should have used to dissuade them from suing.

First, the circuit court found that all of the factual statements in the articles were “accurate reproductions of comments made publicly by School District officials, and thus [were] protected by the fair report privilege.” Next, the circuit court found the remaining statements in the articles were “merely expressions of the writer’s opinions and ideas on a matter of public concern. Under established First Amendment jurisprudence, Jones Street [Publishers] cannot be held liable for such statements.”

[…]

The court indicated that it was “settled law that expressions of opinion on matters of public concern are immune from liability for defamation.” The court noted that once the factual statements in the articles that summarized the statements made by the School District are removed, none of the remaining statements “assert[] any verifiable, objectively provable fact. They are expressions of the editorial writer’s ideas and opinions, using rhetorical hyperbole to emphasize his views.”

More simply put:

We do not find that the term “racist douchebag” can “reasonably [be] interpreted as stating actual facts” about Appellants.

Especially when, as the court notes, even the plaintiffs agreed that declaring something or someone to be “racist” is a matter of opinion. A footnote contains statements made by the players and coach in court that attest to the Appeals Court’s stated fact:

Appellant Adam Ackerman was asked, “Do you believe that whether or not something is racist is a matter of opinion?” Appellant replied, “It is a matter of opinion.”

Appellant R.M. was asked, “[D]o you think that people can have different opinions as to what is racist?” Appellant responded, “Absolutely.”

Appellant C.F. was asked, “Do you think whether or not the watermelon ritual, the perception of the watermelon ritual, whether or not that’s racist is a matter of opinion?” Appellant responded, “[I]t is a matter of opinion, but it’s also—it’s an opinion generated on what you’ve heard.”

Appellant Coach Walpole was asked, “Who determines whether or not something is racist?” Appellant responded, “It’s up to the—it depends on what it is, up to the individual interpretation, I don’t know.”

More inadvertent hilarity. In their effort to prove they weren’t “racist douchebags” by claiming they didn’t believe beating watermelons bearing black school names while hooting like monkeys was racist, the appellants made it clear the labeling of something or someone as “racist” is a matter of opinion, not a statement of fact. Trying to rid themselves of the “racist douchebag” label only made it easier to apply and even less likely to result in a victory.

There’s nothing here for the “racist douchebags.” They will continue to be “racist douchebags” upon their return to the lower court where their lawsuit will be dismissed. Maybe they’ll continue to be “racist douchebags” long after the last check to their representation has cleared. Who knows. But for at least one awful night in South Carolina, they were racist douchebags.

This douchebaggery might have faded into the background months ago, but the plaintiffs desire to be proven right apparently outweighed their desire to put this racist activity behind them. Welcome back to the news cycle, douchebags.

Filed Under: 1st amendment, charleston, defamation, free speech, opinion, racist douchebag, south carolina
Companies: charleston city paper

Troll Lawyer Shows Up In Court To Explain His 'Dead Grandfather' Excuse, Gets His 'Fitness To Practice' Questioned By The Judge

Copyright

from the putting-the-'lie'-back-in-'Liebowitz' dept

Just a few days ago, copyright troll lawyer Richard Liebowitz was being threatened with jail time for refusing to provide a judge with some evidence his grandfather had died. If that doesn’t seem like something most judges would demand, you’re right. It takes a special kind of lawyer to drive a federal court judge to start demanding proof of death from an attorney.

Liebowitz had blown off a discovery conference. When called on it, he claimed his grandfather had died on April 12th, forcing him to miss the scheduled conference. The judge had other reasons to doubt Liebowitz’s claim — like other screwing around he had performed during this litigation, as well as his short, but colorful (read: sanction-heavy) litigation career.

This information was demanded again and again by the judge. Liebowitz again and again refused to provide documentation of his grandfather’s death. Sanctions were handed down, rising from $100/day to $500/day as Liebowitz continued to refuse to respond to the judge’s order. The judge gave Liebowitz one more chance to turn up in court with the proper paperwork. If he failed to do so, he was to be arrested.

Since then, there have been a couple of developments. William Bastone of The Smoking Gun managed to find evidence of Liebowitz’s grandfather’s demise.

A TSG investigation has determined that Liebowitz’s maternal grandfather did, in fact, die in April. But not on April 12, the Friday morning he failed to appear before Seibel.

Jaime Radusky, 93, died on April 9 at Weill Cornell Medical Center on Manhattan’s Upper East Side. Radusky, a Cuban émigré, lived in a penthouse apartment about 10 blocks from the hospital where he died. In the above Facebook photo, Radusky is seen poolside at the Miami Beach condominium complex where he owned a unit.

Details of Radusky’s death are contained in a probate petition filed in Surrogate’s Court in Manhattan by the two executors of Radusky’s estate, his son Henry Radusky and daughter Sara Liebowitz (Richard Liebowitz’s mother). Additionally, an affidavit sworn by an attorney representing Radusky’s heirs reported that, “The decedent died on April 9, 2019.”

So, the excuse wasn’t complete bullshit. But it was still mostly bullshit. Liebowitz swore repeatedly in multiple declarations that his grandfather died on April 12th. That was his excuse for missing the April 12th discovery conference. Liebowitz had a legitimate reason for missing this conference — the recent death of his grandfather — but for some insane reason, chose to give the judge the wrong date and spend the next six months adamantly swearing this falsehood was the truth.

Liebowitz’s last-ditch excuse — a filing that included some rather audacious assertions about the judge’s alleged inability to do her job — said the death of his grandfather was “too private” to be discussed in court. There’s not much that’s private about death. His grandfather’s death certificate is handed out to a number of government agencies to end benefits payments, cancel voter registrations, and — in this case — allow the state court to appoint a legal guardian for his grandfather’s surviving wife.

There’s more to this story. The Smoking Gun showed up in court for Liebowitz’s “tell me why I shouldn’t throw your ass in jail” hearing. This time, Richard Liebowitz showed up as well. Liebowitz showed up with representation. Good call. Not only was he facing possible jail time, but he had proven in this case (and multiple others) he probably shouldn’t ever represent himself, much less clients. It did not go well for the copyright troll lawyer.

[Judge Cathy] Seibel stated that Liebowitz knew he was lying about the date of his grandfather’s death, but “chose to repeat that lie six, eight, ten times” in court filings that the jurist said were part of a “long-term campaign of deception.” Liebowitz, Seibel remarked, “double-downed, triple-downed, quadrupled-downed, octupled-down, I don’t know what would come after that.”

“I question Mr. Liebowitz’s fitness to practice,” Seibel said at one point during the hearing.

There are many, many good reasons to question Liebowitz’s fitness to practice. This debacle is just the latest reason. Liebowitz has only been practicing for five years, but he’s been sanctioned multiple times and his shady litigation strategies have resulted in several orders to post high-dollar bonds before his clients’ cases can proceed.

His short history is catching up to him. It’s going to be a bit more difficult for Liebowitz to flood courts with speculative invoices.

Noting the significance of a lawyer who “intentionally lies to the court,” Seibel said she has referred the Liebowitz matter to the Grievance Committee for review and possible disciplinary sanctions. Seibel added that her contempt rulings against Liebowitz will require him to disclose the sanctions to other courts and prospective clients.

Good. This kind of litigation — threatening people with statutory damages and long, expensive litigation to extract quick settlements — is garbage. So are the people who practice it and profit from it. Liebowitz hasn’t been around long, but he seems determined to make the Prendas of the world look just a tiny bit better by comparison. If he’s forced to disclose his checkered courtroom past before approaching judges or clients, there will be fewer of each willing to entertain his bullshit.

Filed Under: cathy siebel, copyright, copyright trolls, lies, richard liebowitz, sanctions

Federal Court Says ICE, CBP's Suspicionless Searches Of Electronic Devices Is Unconstitutional

Legal Issues

from the warrant-requirement-in-our-lifetime? dept

There’s a bit more Constitution in the “Constitution-free zone.” A federal court in Massachusetts has ruled [PDF] border agents can no longer perform suspicionless device searches. This ruling aligns itself with the decision handed down by the Ninth Circuit Court of Appeals earlier this year. If the government wants to dig into travelers’ phones and laptops without a warrant, it needs to show it believes contraband will be located on the seized device.

It’s not quite a warrant requirement, which would align it with the Supreme Court’s Riley decision. No court has been willing to apply this decision at the border, but requiring reasonable suspicion is a step in the right direction.

The lawsuit was filed by 11 travelers whose devices were seized and searched by CBP and ICE agents. For some of the plaintiffs — represented by the ACLU — this happened multiple times. The court provides a snapshot of the intrusions central to the group complaint.

Without recounting the nature and circumstances of all of the Plaintiffs’ searches, a sample of them is illustrative. Nadia Alasaad has twice had her iPhones searched at the border over her religious objections to having CBP officers, especially male officers, view photos of her and her daughters without their headscarves as required in public by their religious beliefs. During the second search, which was of her daughter’s phone, Alasaad alleges, and Defendants have not disputed, that a CBP officer mentioned a photograph that had been on Alasaad’s phone during her earlier search but was not present in the second search.

[Plaintiff Zainab] Merchant is the founder and editor of a media website and has had her phones searched multiple times despite her concerns about officers seeing pictures of her without her headscarf on the phones and, on one occasion, her declining to give consent to search her phone since it contained attorney-client communications. Merchant observed a CBP officer viewing communications between her and her lawyer. [Jeremie] Dupin’s phone contained information from his work as a journalist, while [Sidd] Bikkannavar’s phone was a work phone officially owned by NASA’s Jet Propulsion Laboratory, and containing information from his work there.

The government tried to get out of this lawsuit by claiming the plaintiffs couldn’t show they had suffered harm or would continue to suffer harm if these agencies weren’t prevented from performing suspicionless searches. The court says it really can’t take the government’s word for this because the government continued to search the plaintiffs’ devices after this litigation commenced.

That such search of electronic devices continues for Plaintiffs, even in the midst of their ongoing legal challenges to same, serves as further, undisputed indication of the sufficient likelihood that, unremedied, such alleged harm will continue in the future, particularly given the Plaintiffs’ future plans for international travel.

The court agrees the government has a compelling interest to secure our borders. That’s why there’s no warrant requirement for device searches, despite the Riley decision. But, while the expectation of privacy may be reduced near the nation’s borders, it doesn’t disappear completely.

Agencies that patrol the borders are there to prevent illegal immigration and the transport of contraband into the country. That’s where the line is drawn by this federal court: if the government wants to search someone’s device, it needs to show it will find that contraband on the searched device. Searching for evidence of criminal activity simply isn’t allowed — not without a warrant.

Undisputedly, interdiction of inadmissible persons and goods are legitimate governmental interests at the border. Plaintiffs do not dispute that CBP and ICE officers have the unenviable task of screening “[o]ver one million travelers per day [who] go through U.S. ports of entry,” and although they have some information about travelers (particularly those traveling by air and otherwise through agency databases), they have little time to process it. Even so, the record that recites “searches of electronic devices at the border have successfully uncovered threats to national security, information pertaining to terrorism, illegal activities, contraband, and the inadmissibility of people and things,” without explanation of the frequency, nature of same or the manner of the discovery of same, is not a strong counterweight to the intrusion on personal privacy evidenced by such searches.

The court quotes from Riley to drive home the point about the privacy expectations of today’s laptops, tablets, and cellphones — all of which contain far more than the contents of a car trunk or luggage.

Defendants… point to the broad latitude border officials have to search physical items, but comparisons between searches for digital evidence or contraband and searches of other physical items or travelers themselves are inapposite. Riley recognized as much in responding to the government’s argument that officers could search a cell phone if there were a sufficiently similar non-digital analogue that officers could have searched by noting that “the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years.

[…]

Unlike a vehicle, vessel or even a home at the border, see 19 U.S.C. §§ 482, 1582, 1595(a)(2) (regarding inspections of vessels and homes), “the data stored on a cell phone is distinguished from physical records by quantity alone, [but] certain types of data are also qualitatively different.” It can “reveal an individual’s private interests or concerns” as evidenced by internet search and browsing history, “reveal where a person has been” through historic location information, and reveal which files a person created, accessed and when he or she did so through metadata. The potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.

The court says any search of a device beyond “a brief look reserved to determining whether the device is owned by the person carrying it across the border” requires reasonable suspicion. It does not give a free pass to “basic” searches (i.e.,non-forensic searches). As the court notes, CBP and ICE’s definition of a “basic” search includes asking a person about their photos, emails, and contacts, asking one of the plaintiffs about their blog posts, and routinely removing the devices to perform “basic” device searches out of view of the plaintiffs. There’s nothing “basic” about these searches and the government will need reasonable suspicion to engage in them in the future.

The court’s ruling says ICE and CBP’s border device search policies are unconstitutional as presently defined and deployed. Reasonable suspicion is the new standard for device searches in this jurisdiction.

Filed Under: 4th amendment, border searches, cbp, constitution free zone, device searches, reasonable suspicion, suspicionless searches