Whistleblower Accidentally Demonstrates How Much Of The TSA's Security Efforts Is Pure Theater

Say That Again

from the Best-Actor-In-An-Inadvertently-Comedic-Disclosure dept

There’s a whistleblower talking about TSA stuff, but it’s not the sort of whistleblowing you’re probably accustomed to. Frustrated by the internal routing of his complaints, the TSA’s highest-ranking official in [checks notes] Kansas has brought his complaints to CNN.

We all know the TSA has done almost nothing to make traveling safer over the course of its existence, but what the TSA’s Jay Brainard has observed shows the actors in our nationwide security theater are tiring of their roles.

A whistleblower with the Transportation Security Administration is sounding the alarm about loosened security at US airports, charging that top TSA officials have prioritized speed over security by reducing the sensitivity of metal detectors, disabling technology on some X-ray machines, issuing orders to keep the baggage conveyor belts moving in certain circumstances and ordering policy changes that result in fewer pat-downs.

It’s true the TSA is somewhat concerned about long lines. This concern doesn’t seem to be enough to rid the agency of extraneous steps or equipment that make traveling a hassle without providing a security boost in exchange for longer waits at checkpoints. Every so often the TSA will do weird things like waving no-Precheck passengers into Precheck lanes to speed up processing. This temporarily alleviates the problem while also providing a clear demonstration of just how theatrical the TSA’s security theater actually is.

Jay Brainard, has a long list of complaints. Among them are accusations that walkthrough detectors have had their sensitivity lowered, X-ray belts aren’t being stopped to examine questionable items in bags, and passengers with medical devices being allowed to self-frisk if they’ve tripped an alarm.

None of this is particularly surprising. This new laxness appears to date back to at least 2015 and may have something to do with TSA screeners repeatedly (and spectacularly) failing explosive device audits by government oversight agencies.

Here’s what’s motivating Brainard’s disclosures:

“In the last two years, the focus of sacrificing security over wait times has increased tremendously,” Brainard said. “That’s the reason I have come forward. It is happening so fast that it’s difficult to keep up with the notes.”

But is the TSA really “sacrificing security?” Or is it just streamlining processes that have done more to increase the length of screening than generate any additional security?

Brainerd’s right to complain the TSA isn’t doing its job properly. But claiming these efforts have resulted in less travel security simply doesn’t make sense. If this was resulting in less security, you’d think we’d be hearing more about attempted hijackings, explosives/weapons being discovered on board, or would-be terrorists successfully boarding planes. We’ve heard nothing like this over the past couple of years. Whatever the TSA is sacrificing for efficiency doesn’t seem to be making fliers any less safe.

At some point, a report by the US Office of Special Counsel will release its report on Brainerd’s accusations. Don’t bother flagging the CNN article for future reference. The OSC has repeatedly delayed its release of this report. It’s currently 500 days overdue.

But the lack of corroborating evidence in the “less secure” column makes Brainard’s dire warnings seem a whole lot less dire.

He believes airports are less safe than they were five years ago due to the “diluted” security procedures — a trend that he says has accelerated in the last two years.

Maybe some terrorist will be emboldened by the public release of the TSA’s dwindling attentiveness. But that seems unlikely. The TSA has admitted terrorists aren’t nearly as interested in planes as they used to be. Most terrorism carried out today involves vehicles not subject to a gauntlet of screening devices. And with cockpits being pretty much inaccessible, hijackings are all but impossible. Someone could still blow up a plane, but there have been no recent attempts made by passengers to take a plane down — at least nothing during this time period of escalating laxness.

The whistleblowing is still valid. Americans should know when the agencies they fund are underperforming. But claiming the skies are less safe is a bit much. If Brainard’s going to suffer any retaliation, it won’t be because he exposed the TSA’s adjustments to screening procedures. It will be because he exposed just how many of these screening procedures are absolutely useless.

Filed Under: jay brainard, security theater, tsa, whistleblower

Nearly 4,000 Ring Credentials Leaked, Including Users' Time Zones And Device Names

Failures

from the Ring-PR-team-looking-to-expand:-masochism/sociopathy-a-plus! dept

The eternal flame that is Ring’s dumpster fire of an existence continues to burn. In the past few months, the market leader in home surveillance products has partnered with over 600 law enforcement agencies to:

• Engage in law enforcement stings that don’t sting anyone
• Teach cops how to bypass warrant requirements
• Sign up a bunch of people for its snitch app
• Use said snitch app to generate “suspicious person” alerts
• Blame users for not securing their cameras properly
• Admit the company places no restrictions on sharing of subpoenaed footage by law enforcement agencies
• Let everyone know it’s collecting images of children

The latest bad news for Ring — via Caroline Haskins of BuzzFeed — is another PR black eye inflicted on a company whose face that still hasn’t healed from the last half-dozen black eyes.

The log-in credentials for 3,672 Ring camera owners were compromised this week, exposing log-in emails, passwords, time zones, and the names people give to specific Ring cameras, which are often the same as camera locations, such as “bedroom” or “front door.”

The compromised data plays right into the hands of the assholes who hang out in certain online forums solely for the purpose of hijacking people’s Ring devices to hassle individuals who thought their homes would be more secure with the addition of an internet-connected camera.

Ring says this leak of personal data isn’t its fault. The company claims there’s been no breach. Maybe so, but the information is out there and presumably being exploited.

And it’s kind of hard to take Ring’s word for it. The company has been doing nothing but putting out PR fires ever since its law enforcement partnerships came to light earlier this year. And its explanation for where the sensitive data came from makes very little sense.

“Ring has not had a data breach. Our security team has investigated these incidents and we have no evidence of an unauthorized intrusion or compromise of Ring’s systems or network,” the spokesperson said. “It is not uncommon for bad actors to harvest data from other company’s data breaches and create lists like this so that other bad actors can attempt to gain access to other services.”

Ring’s spokesperson did not specify which other “companies” it suspected of carelessly handling device names given to Ring devices by Ring users. The spokesperson also failed to explain why Ring took no interest in this sensitive Ring user info until after the security researcher who discovered the compromised credentials discussed his findings on Reddit. “Unable to assist” is not a proper response to notification of a possible breach, but that’s exactly what Ring reps told the researcher when he first informed them of what he had found.

Ring may have been quick to blame users for the commandeering of their cameras by a forum full of shitbirds, but the company does almost nothing to ensure users are protected from malicious activity. The only thing Ring does is recommend users utilize two-factor authentication and “strong passwords” (whatever that means). It does not alert users of attempted logins from unknown IP addresses or inform users how many users are logged in at any given time. Ring is doing less than the minimum to protect users but still seems to feel device hijackings are solely the fault of end users.

This is a garbage company. There’s no way around it. Ring has prioritized market growth and law enforcement partnerships over the millions of citizens/customers who own its products. Rather than provide a secure product that makes people safer, it’s selling a domestic surveillance product that comes with law enforcement strings attached. It has shown it will bend over backwards for the government but is only willing to deliver the most hollow of “we care about our customers” statements in response to news cycle after news cycle showing it absolutely gives zero fucks about its end users.

Filed Under: credentials, data breach, doorbells, leaks, ring, security
Companies: amazon, ring

Appeals Court Revisits Its Terrible New Orleans Protest Decision, Changes Nothing About Its Rejection Of First Amendment Protections

Free Speech

from the where-is-the-1st-amendment? dept

Earlier this year, the Fifth Circuit Appeals Court inexplicably allowed an anonymous police officer to continue suing activist DeRay McKesson for the injuries he sustained when someone (not DeRay McKesson) threw a chunk of concrete at him during a protest in New Orleans.

Never mind the First Amendment, said the court. What about the duty of care McKesson somehow inherited when he chose to organize a protest? Since the protest deliberately broke the law by blocking traffic, the court decided McKesson was at least indirectly responsible for any violence resulting from the inevitable clash between protesters and law enforcement.

Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

If a protest results in unlawful actions, the people organizing the protest bear the collective guilt of every unlawful action engaged in by other protesters. It’s an authoritarian’s wet dream come true, courtesy of one of the most conservative appellate courts in the land.

The Appeals Court has revisited this decision. Don’t bother holding your breath. The retake [PDF] changes nothing in the majority opinion. The replacement opinion is the same opinion, restating the things the court said last time when it decided McKesson’s “negligence” makes him responsible for the injuries sustained by a cop attacked by another protester.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

The table is pounded once more for emphasis:

We iterate what we have previously noted: Our ruling at this point is not to say that a finding of liability will ultimately be appropriate. At the motion to dismiss stage, however, we are simply required to decide whether Officer Doe’s claim for relief is sufficiently plausible to allow him to proceed to discovery. We find that it is.

McKesson may ultimately be cleared, but it’s going to cost him even more time and money. This isn’t the way this should have worked out. The only thing worth reading in this opinion is Judge Don Willett’s addition. In it, Willett reverses his original position, which agreed with the majority’s conclusion that the First Amendment didn’t cover McKesson’s actions. It opens with an apology of sorts:

I originally agreed with denying Mckesson’s First Amendment defense. But I have had a judicial change of heart. Further reflection has led me to see this case differently, as explained below. Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Willett says the case should be remanded to Louisiana’s Supreme Court for it to decide whether there is actually a “duty of care” present in situations like these, and if so, is it still recognized when there is no direct relationship between McKesson and the protester who assaulted the unnamed police officer? Willett points out that if there’s no “duty of care,” there’s no case. And if there’s no case, the First Amendment escapes unscathed.

The appeals court’s decision, however, does do damage to free speech rights.

Even assuming that Mckesson could be sued under Louisiana law for “negligently” leading a protest at which someone became violent, the First Amendment “imposes restraints” on what (and whom) state tort law may punish. Just as there is no “hate speech” exception to the First Amendment, “negligent” speech is also constitutionally protected.

Willett says the facts of the case shouldn’t allow it to proceed any further. There’s no “there” there and it seems highly unlikely Officer Doe could sufficiently amend his complaint to clear this initial hurdle.

Doe strings together various unadorned contentions—that Mckesson was “present during the protest,” “did nothing to calm the crowd,” “directed” protestors to gather on the public street in front of police headquarters, and “knew or should have known . . . that violence would result” from the protest that Mckesson “staged.” Even taking these impermissibly conclusory allegations as true, the complaint lacks sufficient factual detail to state a claim for negligence, much less to overcome Mckesson’s First Amendment defense.

At best, the officer’s allegations are still the worst.

Indeed, the lone “inciteful” speech quoted in Doe’s complaint is something Mckesson said not to a fired-up protestor but to a mic’ed-up reporter—the day following the protest: “The police want protestors to be too afraid to protest.” Tellingly, not a single word even obliquely references violence, much less advocates it. Temporally, words spoken after the protest cannot possibly have incited violence during the protest. And tacitly, the majority opinion seems to discard the suggestion that Mckesson uttered anything to incite violence against Officer Doe.

Willett notes the Supreme Court of the United States has recognized First Amendment protections for speech far more inciting than anything McKesson uttered. Bypassing this precedent in favor of vague state-level law is the wrong call, especially if the Appeals Court isn’t going to let the state’s highest court weigh in on the issue.

This second take is being appealed by McKesson. That’s more money and time being spent to defend against a lawsuit composed mostly of boilerplate cribbed from one of Larry Klayman’s more outlandish efforts. And yet the case still lives and still threatens to undermine the First Amendment. As Garrett Epps points out for The Atlantic, time is of the essence and only the nation’s top court can stop the bleeding.

Earlier this month, Mckesson, represented by the ACLU, asked the Supreme Court to review the case. If the Court is serious about its First Amendment jurisprudence, it should grant the petition and, in a one-line opinion, summarily reverse the Fifth Circuit. If it’s unwilling to do that, it should stay the trial below and hear the case now.

What it should not do is deny the petition and allow a civil trial against Mckesson, then review the First Amendment issue if Mckesson loses. The danger of cases like this is not simply the possibility of local juries turning their ire on unpopular defendants; it is the certainty that this type of lawsuit will impose crippling litigation costs on those defendants. Appellate vindication years later will be of little use; they will likely be bankrupt by then.

Until (or if) SCOTUS takes this up, the ruling stands. Being at the same protest as people who attack law enforcement is now the problem of protest organizers, at least in the state of Louisiana. Officer Doe may not ultimately prevail, but someone engaged in supposedly-protected activity still has to defend himself against the cop’s ridiculous claims.

Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, new orleans, protests

Second Circuit Says Warrantless Backdoor Searches Of NSA Collections Might Violate The Fourth Amendment

Legal Issues

from the stay-in-your-own-lane,-g-men dept

The Second Circuit Court of Appeals has suggested — not exactly ruled — that backdoor searches of Section 702 collections targeting Americans (citizens and permanent residents) is a violation of the Fourth Amendment.

The case involves Agron Hasbajrami, a lawful permanent resident who was arrested in 2011 as he attempted to board a flight to Turkey. The government claimed Agron — an Albanian immigrant — was ultimately headed to Pakistan to join a terrorist organization.

Agron is somewhat of a unicorn. He’s one of the few defendants that’s actually been informed the evidence used against him was derived from NSA collections under Section 702. The DOJ is supposed to be proactive about this, but instead has chosen to emphasize parallel construction over transparency.

The evidence appears to have come from a backdoor search by the FBI. The FBI is allowed to access Section 702 collections, but domestic data and communications are supposed to be “minimized” to protect US persons swept up by the NSA. If the FBI performs backdoor searches to access Americans’ communications that have been incidentally collected by the NSA foreign-facing surveillance programs, it should have to obtain a warrant. But that’s not actually the case for a couple of reasons. First, very few defendants are ever informed of the true source of the evidence against them. Second, the secrecy shrouding the NSA’s collections and the Intelligence Community’s access prevents a lot of judicial examination in the few cases where evidence can actually be challenged.

The Second Circuit’s ruling [PDF] kicks Hasbajrami’s case back down to the lower court so it can reexamine the Fourth Amendment implications of warrantless backdoor searches. The Appeals Court has no problem with the NSA’s collections, which putatively target foreigners. The court says these are lawful. Accessing collected communications from Americans via the NSA’s collections, not so much.

The issue here isn’t the collection itself or any inadvertent collection of US persons’ communications. The problem is the querying of stored communications without a warrant when the target of the queries is a US person. The court doesn’t say the FBI can’t look at its own stored collections without a warrant to locate intelligence or evidence. Stuff it has already acquired is fair game, more or less. The court makes a physical analogy:

It is true the FBI does not need an additional warrant to go down to its evidence locker and look through a box of evidence it collected from a crime scene.

But that’s where the analogy ends.

But lawful collection alone is not always enough to justify a future search.

Pointing to the Riley decision, the court notes that the lawful seizure of an arrestee’s phone does not give law enforcement the right to perform a warrantless search of its contents.

Searching the FBI’s own data stores tipped to it by the NSA isn’t nearly as problematic as what the FBI appears to have done here: browsing the NSA’s much larger collection without a warrant to find more communications originating from a US person. Say goodbye to any flattering “evidence locker” analogies.

If such a vast body of information [250 million emails as of 2011] is simply stored in a database, available for review by request from domestic law enforcement agencies solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.

And there’s where the Fourth Amendment fits in:

To permit that information to be accessed indiscriminately, for domestic law enforcement purposes, without any reason to believe that the individual is involved in any criminal activity and or even that any information about that person is likely to be in the database, just to see if there is anything incriminating in any conversations that might happen to be there, would be at odds with the bedrock Fourth Amendment concept that law enforcement agents may not invade the privacy of individuals without some objective reason to believe that evidence of a crime will be found by a search.

The case returns to the lower court so it can consider the Fourth Amendment implications it chose to ignore when considering the defendant’s motion to suppress evidence that is starting to look like it was acquired unconstitutionally.

If this results in suppression, this case is going to travel right back up the judicial ladder. There’s no way the government is going to let its backdoor searches be subject to a warrant requirement. Warrants create paper trails, and the last thing the IC wants is more paperwork linking domestic surveillance to foreign-facing NSA collections. This isn’t a win yet, but if the district court aligns itself with the Appeals Court’s suggestions, it could be a game changer.

Filed Under: 2nd circuit, 4th amendment, agron hasbajrami, backdoor searches, evidence, fbi, nsa, parallel construction, section 702

San Francisco Amends Facial Recognition Ban After Realizing City Employees Could No Longer Use Smartphones

(Mis)Uses of Technology

from the just-as-long-as-the-only-exceptions-are-cameras-pointed-at-city-employees dept

In May, San Francisco became the first city in the United States to ban facial recognition tech by city agencies. Being on the cutting edge has its drawbacks, as the city has now found out several months later. Tom Simonite and Gregory Barber of Wired report the city’s legislation inadvertently nuked many of its employees’ devices.

After San Francisco in May placed new controls, including a ban on facial recognition, on municipal surveillance, city employees began taking stock of what technology agencies already owned. They quickly learned that the city owned a lot of facial recognition technology—much of it in workers’ pockets.

City-issued iPhones equipped with Apple’s signature unlock feature, Face ID, were now illegal—even if the feature was turned off, says Lee Hepner, an aide to supervisor Aaron Peskin, the member of the local Board of Supervisors who spearheaded the ban

The law forbids the use of facial recognition tech, even if all it’s doing is allowing employees to use their own faces to unlock their phones. An untold number of devices were rendered useless by the ban, but it’s probably safe to assume the law was broken repeatedly until its very quiet amendment last week. Municipal agencies are once again allowed to procure devices that utilize facial recognition tech as long as they’re “critically necessary” and there are no other alternatives.

This does not mean agencies can continue to purchase facial recognition tech that does anything more than secure employees’ devices. And it also means the San Francisco Police Department had to give up one of its toys — one city leadership apparently knew nothing about.

Around the same time, police department staffers scurried to disable a facial recognition system for searching mug shots that was unknown to the public or Peskin’s office. The department called South Carolina’s DataWorks Plus and asked it to disable facial recognition software the city had acquired from the company, according to company vice president Todd Pastorini.

This surveillance tool went unacknowledged during the city’s institution of a facial recognition ban. As Wired reports, San Francisco claimed it had stopped testing facial recognition software in 2017. This denial sidestepped the untested (I guess) acquisition of DataWorks facial recognition tech with a contract that was originally due to run through 2020. According to documents obtained by Wired, the SFPD “dismantled” its DataWorks servers and allowed the contract to lapse after its 90-day trial period. That apparently ended in January before the law took effect.

Even so, it’s not exactly comforting that the SFPD was able to secure and test drive facial recognition tech with zero public notice. City legislators made no mention of this tech or the SFPD’s prior exploration of facial recognition when they began moving forward with the legislation earlier this year.

The other concern is a new one: the SF legislature has already amended its ban to allow city use of smartphones with biometric security features. While this may have been necessary to ensure employees could use city-issued devices, it also shows the city can be talked into punching holes in its brand new legislation. The city may hold firm in the future, but there’s a good chance it will create other loopholes if the arguments are persuasive enough. It all depends on the definition of “critically necessary” — terms that can become especially malleable following a mass tragedy or an uptick in violent crime, for example.

But for now, the ban holds, minus the inadvertent collateral damage. The city’s government should still be applauded for its willingness to put its citizens above its own interests with this legislation, but any further requests for exceptions should be greeted with an overabundance of caution.

Filed Under: face id, face recognition, facial recognition, iphones, san francisco, sfpd
Companies: dataworks

Indian Government Sets New Record For 'Internet Shutdown By A Democracy'

(Mis)Uses of Technology

from the headed-down-to-the-UN-to-collect-its-medal... dept

India’s internet blockade targeting the Kashmir state has set a dubious record that really shouldn’t be held by a government that considers itself a democracy.

It is now 134 days since the seven million residents of Kashmir had regular access to the internet beyond a handful of government controlled outlets, the longest denial of access by a democratic state.

This brings India close to its nearest competitors in shutdown longevity, China and Myanmar — neither of which consider themselves responsive to public concerns or demands. Ever since the Kashmir region lost its autonomy earlier this year, the Indian government has been in crackdown mode. The easiest way to control a population you feel needs more controlling is to remove their communication options.

When the region was still independent, it engaged in its own internet blackouts. But those were nothing compared to the Indian government’s efforts, which began with the selective censorship of certain content and expanded to eliminate access to almost everything internet-related.

The excuse for the blackout is national security. The Indian government claims it’s necessary to prevent Pakistani-led terror groups from organizing. Whether or not that’s been effective, the elimination of internet connectivity has done severe damage to the region’s population. People with no connection to terror groups and otherwise uninterested in shrugging off the Indian government’s shackles are being hurt.

Asmita Bakshi’s article for LiveMint covers the human cost of the internet shutdown. Killing off the internet has disabled support systems for women targeted by violent acts and made people — like Uber driver Dipesh Sharma — pretty much unemployed.

His earnings are crucial for his family—his wife and daughter, parents and younger siblings, all of whom he supports financially. He also pays ?4,000 as rent for his two-room accommodation and ?11,000 as monthly instalment for his vehicle.

The weekend without mobile internet, therefore, was particularly hard on him. “Saturday-Sunday aap samajh lo main berozgaar tha (On Saturday-Sunday, it was like I was jobless),” he says.

One doesn’t typically view India as an authoritarian regime, but Baskhi’s report points out India’s 134 internet shutdowns in 2018 outpaced a number of countries with worse international reputations, including a handful of nations on the UN’s human rights blacklist. Its 2018 total was more than Russia, Congo, Yemen, Iraq, Pakistan, and the Philippines combined.

The long-term shutdown is also causing other collateral damage. The region’s service providers are losing money every day no one’s paying for internet access they don’t actually have. Since they’re at the mercy of the government, they’re being forced to bleed cash until the Indian government feels it’s “safe” enough to lift the blockade.

On top of that, there’s further annoyance ahead for residents if the Indian government ever decides to give them back their internet connections. As James Vincent reports for The Verge, those affected by the blockade will likely have to rebuild their personal social networks from scratch.

On Wednesday, reports on social media appeared of Kashmiri WhatsApp users leaving group chats in droves. This was a surprise to friends and relatives outside the region given that India has shut down Kashmir’s internet for over four months as part of a dispute over the area’s autonomy.

Some thought the activity might be sign of a further crackdown, but, as first reported by BuzzFeed News, the accounts are being automatically removed in line with Facebook’s inactivity policy. If users don’t log into their account for 120 days (four months), they’re deactivated, meaning individuals will have to sign up to the service again.

It’s not an insignificant loss for WhatsApp, which has almost five times as many users in India than it does in the United States. It’s definitely a significant loss for Indian users, whose government has managed to terminate their accounts through an extremely disruptive action followed by more than three months of inaction.

The Indian government may be claiming this is a national security necessity, but the reality is it’s insulating itself from criticism and preventing unhappy Kashmir residents from organizing or protesting the absorption of the previously-independent region. Any collateral damage here is acceptable because it helps the Indian government achieve its goal of complete control.

Filed Under: democracy, india, internet shutdown, kashmir

Losing Streak Continues For Litigants Suing Social Media Companies Over Violence Committed By Terrorists

Legal Issues

from the twelve-straight-losses-to-open-the-season dept

According to Eric Goldman’s count (and he would know), this is the 12th ridiculous “blame Twitter for terrorism” lawsuit to be tossed by a federal court. The dubious legal theory — one so dubious it has yet to find any judicial takers — is that Twitter and other social media platforms “allow” terrorists to converse and radicalize and do other terrorist things. What no one has successfully alleged is that Twitter, Facebook, etc. are directly or indirectly responsible for terrorist attacks.

This lawsuit was one of the dumbest. The brain geniuses at Excolo Law convinced a client this would be a winning strategy: claim the shooting of some cops by a shooter in Dallas was Twitter’s fault because possibly the shooter thought terrorist group Hamas was pretty cool. 96 pages of lawsuit and this was the tenuous allegation plaintiffs Jesus Retana and Andrew Moss thought might finally prove social media companies are providing material support to terrorists.

Micah Johnson was radicalized by HAMAS’ use of social media. This was the stated goal of HAMAS. Johnson then carried out the deadly attacks in Dallas. Conducting terrorist acts in the United States via radicalized individuals is a stated goal of HAMAS.

Not only did the lawsuit fail to include anything linking Twitter to the killing of Dallas police officers, it failed to include anything linking the shooter to Hamas. That didn’t stop Excolo Law from claiming that the only thing propelling the shooter to start killing Dallas police officers was Hamas’ social media presence, aided and abetted by Twitter.

As Goldman points out, the court “expressly does not reach the Section 230 defense.” That’s not because it’s not a good defense. It’s because the lawsuit — and the law firm shoveling as many of these into federal courts as possible — is so awful.

The court opens its dismissal [PDF] by noting the string of courtroom failures Excolo Law (and 1-800-LAW-FIRM) doesn’t seem to be interested in discussing when pursuing another lost cause in a federal court.

This case is the latest in a string of lawsuits that Plaintiffs’ lawyers have brought in an attempt to hold social media platforms responsible for tragic shootings and attacks across this country—by alleging that the platforms enabled international terrorist organizations to radicalize the attacks’ perpetrators. In fact, Plaintiffs’ lawyers brought a suit in the Northern District of California, Pennie v. Twitter, Inc., 281 F. Supp. 3d 874 (N.D. Cal. 2017), concerning the same Dallas shooting this Court is confronted with here, albeit with different plaintiffs. The court in that case dismissed the claims with prejudice, finding that there was no connection between the shooting and Hamas, the terrorist organization at issue. Id. at 892. Yet, Plaintiffs’ counsel made no mention of that case in their briefing; counsel discussed the case only after the Court questioned about it at oral argument.

The court then notes it can do its own research if the law firm isn’t willing to discuss past work that hews super-closely to the case at hand. GTFO, says the Texas federal court.

The Court dismisses this lawsuit with prejudice. Although the complaint here alleges additional facts not found in Pennie, the complaint nonetheless suffers from many of the same deficiencies discussed in Pennie. Plaintiffs here have not and after multiple attempts, clearly cannot connect Hamas to the Dallas shooting.

Need more? No link between the cop killer and Hamas:

Simply put, the SAC does not allege any facts that show that Hamas radicalized Johnson to commit the Dallas attack, not to mention by using Defendants’ websites. Plaintiffs’ injuries,therefore, were not “by reason of” Hamas, or Defendants’ alleged support of Hamas.

No link between the claimed violation of the ATA (Anti-Terrorism Act) and the Dallas shooting, either:

Plaintiffs’ secondary liability claims fail for an additional, yet similar, reason: Plaintiffs do not allege that the Dallas shooting was an act of international terrorism.

[…]

[T]he SAC is devoid of allegations connecting Hamas to the shooting, even after it occurred. There is no transnational component to Johnson’s planning and execution of the shooting. Instead, this tragic shooting appears to be an act of domestic terrorism.

The case is dismissed with prejudice, continuing Excolo Law’s losing streak. This obviously won’t keep the firm from trying again, not as long as it can convince victims of violence they have a shot at extracting a large settlement from social media companies. Sure, it hasn’t worked yet. But that can only mean Excolo, et al are due for a win! Right?

Filed Under: andrew moss, intermediary liability, jesus retana, material support, section 230, social media, terrorists
Companies: 1-800-lawfirm, excolo law, twitter

FISA Court Benchslaps FBI For Its Abuse Of The FISA Warrant Process During The Trump Campaign Investigation

Legal Issues

from the FBI-finally-uses-up-all-of-its-unearned-trust dept

This didn’t take long. The Inspector General’s report on the FBI’s Trump campaign investigation had nothing positive to say about the FBI other than it sucked at its job. Unbelievably, this was better than the IG saying the FBI performed its job in a biased fashion as part of a concerted Deep State effort to prevent Trump from taking office. (Or from staying in it, I guess, since the prevention plan obviously didn’t work.)

But there was also an aspect of the FBI’s investigation that should probably be chalked up to malice, rather than stupidity: the FISA warrant process. The FBI was so very determined to keep campaign advisor Carter Page under surveillance it cherry-picked statements from cooperators and buried everything that might have suggested Page was not actually involved in a Trump-Russia conspiracy.

The Inspector General said the FBI’s FISA affidavit process was so full of failure, the office would be performin an audit of the FBI’s FISA application processes and procedures. That’s still in the works. Until then, there’s the FISA court itself, which is incredibly peeved by these findings.

An order issued December 17 by FISA judge Rosemary Collyer was released publicly — something the FISA court rarely does without allowing the IC to perform a few rounds of declassification vetting first. Charlie Savage of the New York Times was the first to report on the order [non-paywalled link here], but the order [PDF] does a pretty good job of speaking for itself.

The order opens by making it clear Judge Collyer is incredibly unhappy with the FBI’s behavior, as uncovered by the IG’s investigation.

This order responds to reports that personnel of the Federal Bureau of Investigation (FBI) provided false information to the National Security Division (NSD ) of the Department of Justice, and withheld material information from NSD which was detrimental to the FBI’s case, in connection with four applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance of a U.S. citizen named Carter W. Page. When FBI personnel mislead NSD in the ways described above, they equally mislead the FISC.

After detailing the OIG’s findings, the court delivers its message to the FBI.

The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.

Oof. The FISA Court just said it no longer trusts the FBI.

To earn back this trust, the court has ordered it to deliver a sworn submission that outlines the agency’s efforts to ensure every application going forward will not contain material omissions or otherwise untrustworthy statements. Better, the court orders the FBI to undergo an immediate review of the December 5th order (which demanded the FBI explain the statements [or omissions] made in the Page warrant affidavits) in preparation for it to be released to the public. The last sentence of the order makes it clear any attempts to subject this soon-to-be-declassified order to further convenient omissions won’t be tolerated by the Court.

In view of the information released to the public in the OIG report, the Court expects that such review will entail minimal if any redactions.

How many times must the FISA court benchslap IC members for abusing processes and powers? At least once more apparently. It’s refreshing to see the FBI called out for its misconduct, but the FISA court has been soundly and serially abused for years by multiple agencies who know the real benefit of a non-adversarial system is it minimizes the number of parties capable of calling bullshit.

Filed Under: deception, fbi, fisa, fisa affidavit, fisa court, fisa warrants, fisc, lying, rosemary collyer

Oregon Cops Complain State Supreme Court's Traffic Stop Decision Is Making Their Job Harder

Legal Issues

from the respecting-rights-is-a-drain-on-productivity dept

Oregon’s Supreme Court threw local law enforcement for a loop by removing the pretext from “pretextual stop.” The ruling handed down late last month went further than the US Supreme Court’s Rodriguez decision. The SCOTUS decision simply said traffic stops can’t be extended without reasonable suspicion. When a citation or warning is handed out, the stop ends.

The Oregon ruling expanded on that. The court said that if a cop stops someone for speeding, they’d better stay focused on the speeding. In the case before them, an officer testified he always asked drivers a bunch of questions unrelated to the traffic stop when conducting traffic stops. The state’s top court said that’s no longer permissible. The “unavoidable lull” during traffic stops can now only be used to ask questions related to the purpose of the stop, rather than to fish for consent to a search or to extend the stop until reasonable suspicion of some other criminal act develops.

This is a pretty drastic change and it’s already resulted in the dismissal of a drug bust apparently stemming from a pretextual stop.

Johnathan Chavez, 30, of Variello, California was stopped on northbound Interstate 5 in December 2018 with more than four and a half pounds of methamphetamine, according to court documents filed by Oregon State Police in Jackson County Circuit Court. In October, the case went to a jury, who found Chavez guilty on felony counts of delivering and possessing methamphetamine.

This week, however, Jackson County Deputy District Attorney Johan Pietila moved to dismiss the charges pursuant to a recent Oregon Supreme Court opinion.

A wave of new “technicalities” is poised to sweep Oregon courtrooms, where prosecutors will find their cases have been hampered by law enforcement officers more interested in turning routine stops into drug-related expeditions than in enforcing traffic laws.

Needless to say, cops aren’t fans of the ruling. Here’s what Washington County Sheriff spokesman Danny DiPietro told CNN: cops will have to alter their traffic stop patter.

“If we see the individual and they have bloodshot watery eyes, flushed looks … and we believe that they’re under the influence of alcohol then we establish what’s called reasonable suspicion,” he said.

How much patter is allowed is apparently unclear.

But the problem with the ruling, he says, is it doesn’t specify what they are and aren’t allowed to say.

“We haven’t gotten complete clarification on that and that’s what’s frustrating,” he said. “We don’t want to be robotic.”

This probably isn’t a deliberate misreading of the opinion. But the opinion is actually very clear: no questions not supported by reasonable suspicion. If suspicion is present, cops are free to explore that conversation tree. If not, cops can’t pepper drivers with questions in hopes of developing enough suspicion to take the traffic stop further.

Another Oregon law enforcement official is convinced the ruling will allow criminals to freely travel public roads without fear of police interference.

The Hermiston Police Department is prepared to comply, according to Hermiston Police Chief Jason Edmiston.

“This is going to further hinder the ability to stop potential criminal activity in motion,” He said. “So much contraband is in motion all the time in vehicles.”

He said the ruling could eventually cause a decline in DUI enforcement.

Chief Edmiston isn’t wrong. Plenty of contraband is in motion at all times. But plenty of contraband is also motionless, stashed away in people’s houses at all times. And cops aren’t allowed to go from house to house knocking on doors and hoping residents will let them in without a warrant. Cops need a reason to approach someone’s house. The contours of the Fourth Amendment shouldn’t drastically change just because someone decided to drive from point A to point B.

As for DUI enforcement, it seems pretty clear the physical manifestations of intoxication are reasonably suspicious enough to allow a traffic stop for a minor infraction to develop into a roadside DUI investigation.

The decision does make it more difficult for officers to do their jobs they way they’re used to doing their jobs. It does not make it more difficult for them to do their jobs properly. The Constitution hasn’t changed. What has changed is the jurisprudence surrounding it. Over the years, cops have been given a lot of slack when it comes to traffic stops and searches of vehicles on public roads. This ruling only reels in a bit of the line. It won’t create more criminals or encourage existing criminals to carry more contraband more often. All it really does is prevent cops from treating a large percentage of routine traffic stops as the first step in a spontaneous criminal investigation.

Filed Under: 4th amendment, oregon, police, pretextual stops

Another Law Enforcement Investigation Tool Found To Be A Junk Science Coin Toss

(Mis)Uses of Technology

from the Detective-Mesmer-is-on-the-case dept

Ken Armstrong of ProPublica and Christian Sheckler of the South Bend Tribune have uncovered more pseudoscience cops rely on to put people behind bars. It’s called SCAN, and it’s the creation of Avinoam Sapir.

SCAN stands for Scientific Content Analysis. What’s “scientific” about it is undetermined. Sapir believes it is. Sapir’s background as a polygraph examiner for Israeli law enforcement apparently turned him into a “human lie detector.” Sapir appears to believe his own press, as long as it’s positive.

Here’s how SCAN works. Or, rather, here’s how SCAN operates.

1. Give the subject a pen and paper.

2. Ask the subject to write down his/her version of what happened.

3. Analyze the statement and solve the case.

Those are the steps according to Sapir’s site. Law enforcement agencies around the world have spent money purchasing Sapir’s SCAN products and training. The scientific breakthrough they’re buying has no science backing it. According to Sapir, different words or tense changes in people’s written statements can let officers know whether or not suspects are lying.

How does anyone know if SCAN works? Just ask Sapir, apparently.

SCAN works, the site says. “Analysis of statements has been found to be highly accurate and supported by a validation survey conducted in a U.S. governmental agency. In that survey, when SCAN was compared to other methods, the validity of SCAN reached above 95%,” the site says, without identifying the agency or citing or linking to any survey.

SCAN’s junk science may be in wide use but it hasn’t really made headlines like other forensic pseudoscience — bite mark analysis, blue jeans analysis, etc. — but it’s no less questionable or potentially dangerous. No one runs SCAN on confessions. They only use the tool to “analyze” statements made by suspects and witnesses. These analyses are rarely introduced as evidence in court.

Good thing, too. It seems unlikely stuff like this would be considered admissible evidence.

After the person writes a statement, the SCAN investigator looks for signs of deception, analyzing, among other things, pronouns used, changes in vocabulary, what’s left out and how much of a statement is devoted to what happened before, during and after an event. Indications of truthfulness include use of the past tense, first-person singular (“I went to the store”); pronouns, such as “my,” which signal commitment; and direct denials, the best being: “I did not do it.” Signs of deception include lack of memory, spontaneous corrections and swapping one word in for another — for example, writing “kids” in one place and “children” in another.

It’s not exactly handwriting analysis, which has its own problems. It’s its own animal, one that’s only available through Sapir. He’s offered up some bizarre analysis of his own — applying his proprietary SCAN to things like Anita Hill’s statements about Clarence Thomas, Magic Johnson’s disclosure that he has HIV, and James Comey’s memoir. His conclusions? Anita Hill had sexual identity issues, Johnson “admitted” to being bisexual, and James Comey is a victim of child abuse.

Comey’s statement on Sapir and the SCAN analysis of his memoirs?

“No comment. Never heard of the alleged tool. (And by using the word ‘never’ in conjunction with the word ‘heard,’ I mean only ‘never heard’ and not to suggest childhood trauma. Yikes.) I’m sorry about your five bucks.”

The “five bucks” refers to the amount ProPublica spent to obtain Sapir’s analysis of Comey’s memoirs. He also sells an analysis of the Mueller Report.

Law enforcement agencies rely on this dubious technique to solve crimes. Their reliance on Sapir’s assertions SCAN actually has something to do with science is misplaced. SCAN is apparently used by the FBI (despite Comey’s denial), CIA and US Army Intelligence. A government study commissioned to find which, if any, interrogation methods produced usable intelligence had this to say about SCAN:

Studies commonly cited in support of SCAN were scientifically flawed, the review said. “When all 12 SCAN criteria were used in a laboratory study, SCAN did not distinguish truth-tellers from liars above the level of chance,” the review said. The synopsis also specifically challenged two of those 12 criteria, noting: “Both gaps in memory and spontaneous corrections have been shown to be indicators of truth, contrary to what is claimed by SCAN.”

Four more studies — conducted over a span of twenty years — arrived at the same conclusion:

Each of those studies (in 1996, 2012, 2014 and 2015) concluded that SCAN failed to help discriminate between truthful and fabricated statements. The 2016 study found the same. Raters trained in SCAN evaluated 234 statements — 117 true, 117 false. Their results in trying to separate fact from fiction were about the same as chance.

This is what scientists think about SCAN, something Sapir says can turn normal cops into “walking polygraphs.” If law enforcement experts were upfront about the dubiousness of SCAN conclusions, it wouldn’t be an issue. But they’re not. Much like every other pseudoscience deployed by investigators, experts testifying in court routinely overstate the certainty of their conclusions. SCAN is a coin toss, but no one presenting this analysis in court is ever going to admit this under oath.

Cops apparently believe it’s a coin flip worth investing in. ProPublica’s investigation found at least 40 agencies had purchased SCAN training in the last decade. Sapir’s website claims agencies in 49 states utilize SCAN. Very few agencies want to talk about their SCAN expenditures and the CIA has refused to confirm or deny the existence of SCAN use records.

The agencies that do believe SCAN works really believe it works. But these are statements of faith. They have no evidence it works, only the word of its creator who says it works. And if you’re spending money to train investigators to deploy SCAN analysis, you kind of have to believe it works because the alternative is knowingly throwing money down a hole. Fervently believing something is scientific just isn’t good enough when people’s freedom is on the line. But not good enough has been good enough for plenty of agencies and the junk science their investigations rely on for years now, and it’s not going to change just because another emperor has been discovered wandering naked.

Filed Under: avinoam sapir, content analysis, lie detector, pseudoscience, scan