Appeals Court Says It's OK For Cops To Steal Stuff From Citizens

Legal Issues

from the surprisingly,-this-isn't-about-asset-forfeiture dept

Qualified immunity isn’t a codified defense. Congress never passed a law granting public employees this exception to Constitutional protections. This exception — one that allows public servants to avoid being directly sued by the public whose rights they’ve violated — was crafted by the Supreme Court. The theory is it’s too hard for the government to fully comprehend the rights it’s supposed to be guaranteeing, so there needs to be an escape hatch for government employees.

This escape hatch has allowed an amazing amount of abuse to go unpunished. As long as the government employees were the first to engage in egregious Constitutional violations, they’re given a free pass. The free pass runs indefinitely if courts refuse to draw a bright line in published opinions. It doesn’t seem like it would be that difficult to comply with the Constitution, but here we are.

Qualified immunity has again been extended in a case where the behavior the government engaged in was not only unconstitutional, but criminal. (h/t Clark Neily)

In this case, an illegal gambling investigation led to the search of property owned by the plaintiffs. The search warrant authorized the seizure of cash, gambling machines, and anything else the government determined was derived from illegal activity. So, the government did some seizing. But the inventory sheet didn’t match up with what was taken. From the decision [PDF]:

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties. Appellants allege, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claim that the City Officers stole the difference between the amount listed on the inventory sheet and the amount that was actually seized from the properties.

The Ninth Circuit Court of Appeals says there was no Fourth Amendment violation because the officers were authorized to seize this property. As for the theft, the court says it won’t even examine the Fourth and Fourteenth Amendment implications of the alleged misconduct because it must consider the defendants’ qualified immunity defense first. That leads directly to this jaw-dropping statement from the court:

The panel determined that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.

This dismaying conclusion was reached by examining similar caselaw from other circuits. The Ninth Circuit isn’t the only circuit saying rights aren’t violated when the government steals citizens’ property… so long as the theft is accompanied by a warrant.

At the time of the incident, the five circuits that had addressed that question, or the similar question of whether the government’s refusal to return lawfully seized property violates the Fourth Amendment, had reached different results.

Four of the five circuits have stated the Constitution does not protect against theft by the government provided the initial seizure was legal. The only holdout is the Fourth Circuit, which stated theft of property (obviously) interferes with citizens’ interest in the property they no longer have.

Worse, the Ninth Circuit is unwilling to establish this right and put the government on notice that similar theft in the future will be considered a Constitutional violation.

The allegation of any theft by police officers—most certainly the theft of over $225,000—is undoubtedly deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, is not obvious. The split in authority on the issue leads us to conclude so.

Given that law enforcement is still allowed to steal property when executing search warrants, the court’s final words to the plaintiffs are the appellate equivalent of “thoughts and prayers.”

We sympathize with Appellants. They allege the theft of their personal property by police officers sworn to uphold the law. […] But not all conduct that is improper or morally wrong violates the Constitution.

Sure, but we expect our government to engage in proper and moral behavior. Qualified immunity allows the government to do the opposite of that, and to violate Constitutional rights on top of it, all without having to answer for its misdeeds.

Filed Under: fourth amendment, ninth circuit, qualified immunity

Oversight Report Says DEA Ran Multiple Bulk Data Collection Programs With Zero Legal Clearance

Privacy

from the can't-have-your-rules-interfering-with-our-drug-war,-man dept

The NSA isn’t the only collector of bulk phone records. The NSA may not even be doing this anymore, but for a long time, it was not only the NSA’s bread-and-butter, but the DEA’s as well.

The DEA has run multiple bulk records collections for more than 20 years, given the green light by our current Attorney General, William Barr, who also ran the DOJ back in 1992. These not only targeted calls placed to “drug nexus” countries, but purchase records as well. “Nexus” is a slippery word — one the NSA takes advantage of as well. US law enforcement considers almost anywhere in or out of the country to be a “drug nexus,” which gives it the suspicion it needs to pull over drivers on interstate highways or rifle through their belongings at airports looking for drugs cash.

Using this flimsy connective tissue and a bunch of subpoenas, the DEA approached private companies and demanded vast amounts of third party records. Some of these details were exposed when the DEA’s “Hemisphere” documents were published. Six years after Ed Snowden let the world know the NSA was collecting phone records in bulk, the Inspector General of the DOJ has finally released a report [PDF] on the DEA’s bulk collections.

According to the IG report, the DEA ran three bulk collection programs. Program A collected bulk telephone records on calls from the US to “drug nexus” countries. These were obtained with “non-target-specific” subpoenas directly from the service provider. Like the NSA, the DEA wanted metadata about these calls, like date, time, and duration.

Program B did pretty much the same thing: non-targeted subpoenas were handed to “selected vendors” to gather data on purchases, which were then cross-referenced with the DEA’s bulk records database to (finally!) identify targets to investigate. (What purchases? According to Charlie Savage of the New York Times, the DEA is tracking purchases of money counting machines. This is probably information the DEA didn’t want the public to have, but a redaction failure caught by Savage exposed the intent of this collection program.)

That instruction, it said, “was intended to protect the program’s sources and methods; criminals would obtain money counters by other means if they knew that the D.E.A. collected this data.”

Program C resembled the modified Section 215 program — the one that appears to never have gotten off the ground following the USA Freedom Act reforms. Non-targeted subpoenas were handed to telcos, which then searched their own databases to find connections that might be of interest to the DEA, handing it only the results of these restricted searches, rather than dumping everything into the DEA’s data stores.

There’s a similar thread holding all of these programs together: they weren’t strictly legal.

Our review found that the DEA (and the Department with respect to Program A, Collection 1) failed to conduct a comprehensive legal analysis of the DEA’s use of its administrative subpoena authority to collect or exploit bulk data before initiating or participating in any of the three programs. We found this failure troubling with respect to Program A, Collection 1 and Program B because these programs involved a uniquely expansive use of Section 876(a) authority to collect data in bulk without making a prior finding that the records were, in the language of that statutory provision enabling DEA’s subpoena authority, “relevant or material” to any specific defined investigation.

Several published court decisions have clearly suggested potential challenges to the validity of the DEA’s use of its statutory subpoena power in this expansive, non-targeted manner. We also found the absence of a robust legal review troubling because the DEA utilized the bulk data collected by means of Program A, Collection 1 and Program B subpoenas on an unknown number of occasions in support of investigations by non-DEA federal agencies that had no apparent connection to specific drug investigations. This utilization raised significant legal questions because the DEA had amassed the Program A, Collection 1 and Program B bulk data collections under its statutory authority, in 21 U.S.C. § 876(a), to require the production of data that was “relevant or material” to a drug investigation.

We found that Program C raised different kinds of challenging legal issues that the DEA also failed to fully assess. We found that the DEA failed to formalize a complete and adequate legal assessment regarding its use of Program C to obtain reports and other advanced analytical information to ensure such use was lawful and appropriate under its administrative subpoena authority, 21 U.S.C. § 876(a), and the Electronic Communications Privacy Act, 18 U.S.C. § 2703(c)(2).

These legal problems were compounded by the DEA’s careless approach to the few legal boundaries it chose to respect. The DEA used untargeted subpoenas that failed to show the records had relevance to active drug investigations. What little there was in place to vet subpoenas prior to issuance consisted of a pull-down menu that only listed kinds of sources (confidential informant, other ongoing investigation, etc.). Nothing specified exactly why the records requested were being sought. The DEA’s sole backstop for auditing its subpoenas was nothing more than confirming the pulldown menu of vague sources had actually been used when filling in the boilerplate. The DEA allowed agents to shrug their way into hundreds or thousands of records at a time using nothing more than this:

In practice, the DEA typically did not require more “particularization” than a single conclusory sentence, and did not explicitly require the documentation or certification that the request was relevant to a drug investigation…

Then there’s the DEA’s massive data retention problem. However indiscriminate the collection process was, the retention/deletion “process” was even worse.

We also found that the DEA failed to establish any policies on storage or retention of the Program B bulk data at any time before or during the operation of that program. Although Program B is no longer active, the DEA has failed to develop a final disposition plan regarding tens of thousands of records of purchases that reside on DEA servers.

The IG has a few problems with the DEA’s parallel construction, but it doesn’t really have a problem with parallel construction itself. It doesn’t consider hiding the origin of evidence “inappropriate,” but it does draw the line at hiding this from everyone involved in a prosecution.

[P]arallel construction should not be used to prevent prosecutors from fully assessing their discovery and disclosure obligations in criminal cases.

However, most the DOJ IG’s sympathies fall on the side of the prosecution, which should surprise no one.

While the DEA has denied misusing parallel construction in this manner, we found some troubling statements in the DEA’s training materials and other documents, including that Program A investigative products cannot be shared with prosecutors. Such statements appear to be in tension with Department policy on a federal prosecutor’s “duty to search” for discoverable information from all members of the “prosecution team,” which typically includes federal law enforcement officers who participated in the investigation of the defendant.

This doesn’t leave much consideration for defendants, who are forced to fight blind when challenging evidence used against them.

There are recommendations, but they’re not of much use since two of three programs are pretty much dead. The bulk collection of purchase data (Program B) was killed in 2014, following the Snowden leaks. Program C operates pretty much like the modified Section 215 collection — with telcos searching and storing records, rather than dumping them into the DEA’s databases. Program A was also modified shortly after the Snowden leaks began, with a heavier emphasis on ensuring subpoenas were linked to ongoing drug investigations.

It will probably be several years before we see a follow-up report on the DEA’s bulk collections. As the IG notes, the DEA did everything it could to stonewall this investigation.

For a substantial period after we initiated this review, the DEA took many actions that hindered the OIG’s access to information available to it that the OIG was plainly authorized to obtain under the Inspector General Act.

These actions included failing to produce or delaying the production of relevant and responsive materials without any compelling or sufficient basis.

[…]

Further, the OIG discovered many highly relevant documents, which had not been produced, only after learning about them in witness interviews. This latter issue was particularly significant with respect to the dearth of documents containing legal reviews of programs in our review, which the DEA failed to produce to the OIG until a witness identified their existence to us. The DEA’s actions significantly delayed our review and were wholly inconsistent with the requirements of the Inspector General Act.

This tracks with the Inspector General’s problems with multiple DOJ agencies over the past several years. The FBI and DEA blow off investigations, refuse to produce documents, and do as little as possible to ensure their oversight can actually do any overseeing.

As the report notes, the programs were never on solid legal ground. It points out the programs were brought to life under AG Barr, who never bothered to ask for a legal opinion from the DOJ’s Office of Legal Counsel before setting them in motion. The FBI had concerns about these programs when the DEA offered it access, but those questions went unanswered. The last time the legal questions were thoroughly discussed was in 1999, seven years after the programs went into effect.

Between 1999 and the 2013 Snowden leaks, only a single memo discussing the potential legal pitfalls of these bulk collections was issued. The single conclusion drawn was that the public should never be allowed to find out about these collections. And for the most part we didn’t — not until years after the fact. Good job… I guess.

Two decades and no definitive legal clearance. The only blip in the data stream was the unscheduled leaking of NSA documents. Without Snowden, these programs would likely still be running unaltered — hoovering up millions of phone records with zero reasonable suspicion.

Filed Under: bulk data collection, dea, privacy

Copyright Enforcement Service Claims $600 Billion-Worth Of Images Are 'Stolen' Every Day

Copyright

from the why-settle-for-anything-less-than-impossible dept

A new “report” has been released by Copytrack, supposedly detailing the insane amount of “stealing” that goes on every day. “Report” is in quotes for reason. First, the “report” [PDF] opens up with a literally unbelievable statistic conjecture.

[I]t is estimated that more than 2.5 billion images are stolen daily. These license violations have the potential to result in up to €532.5 billion in damages daily.

Not even in the most fevered dream of the most overwrought copyright maximalist could this number be considered plausible. As attorney/law professor Jeff Pearlman points out, this hilarious extrapolation from facts not in evidence conjectures that copyright infringement of images alone results in a number that swallows the entirety of the world’s economy.

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

Let’s do some math! GWP (combined global GDPs) is ~$87 trillion. That’s ~$240 billion/day. Copytrack says $600 billion/day in “stolen” images.

So: they say the value of “stolen” images is more than twice what the entire world produces in goods and services.

Color me skeptical.

Yes. Skepticism — massive amounts of it — is called for. Copytrack’s assertion of GWP-destroying infringement starts with another unbelievable number.

Two studies from IMGembed and Copytrack show that of the 3 billion images shared on the internet daily, around 85 percent are used without a valid license.

Let’s talk about sharing. Images are shared frequently, often without licenses. Does this mean each share can be equated with lost income? Of course not. People often use images on social media as placeholders for reactions or as standalone comments. There’s no replacement of the market for these images, unless someone — possibly Copytrack — assumes such innocuous, non-commercial use of images is a market that hasn’t been captured.

Supporters of Article 13 seem to believe this is the case. So does Copytrack. While the legislators behind the internet-crippling law in Europe may be beholden to powerful lobbyists, Copytrack’s reliance on ridiculous extrapolations to compose this report is pure self-interest. Copytrack follows its laughable claim about the “cost” of infringement with a sales pitch. And not “follows” as in “a few pages later,” but “follows” as in “it’s the very next damn sentence.”

Here’s the whole paragraph:

According to the figure above, it is estimated that more than 2.5 billion images are stolen daily. These license violations have the potential to result in up to €532.5 billion in damages daily. Many image owners feel that the extent to which image rights are violated signals a lack of respect for photographers’ work. Looking one step further, violations result in the loss of important revenues for rights holders on a daily basis. In 2018, Copytrack was able to obtain an average of €320 for each copyright infringement case submitted by a Copytrack user.

The pitch goes on from there, assuring users that a) billions of dollars are being “lost” every day and b) Copytrack can help them claw back a few of the billions of “lost” Euros.

If you have anything less than complete skepticism by this point, you’re probably a Copytrack employee.

Somewhat ironically, Copytrack claims the country performing the most infringement isn’t any of the countries listed on the USTR’s annual country-shaming Special 301 reports. According to this report, the USTR’s home country is worst infringer.

Our leader in regards to copyright infringement was not Asia, as many may have assumed, but rather North America with 33.90 percent of image copyright violations coming from this part of the world.

The US is ahead of every other country by a healthy margin, something Copytrack believes is due to the large percentage of the population with internet access. It then breaks this down by city, coming to the astonishing conclusion that the most infringing US city is… Scottsdale, Arizona. Here’s how Copytrack attempts to explain this finding:

Scottsdale was responsible for 5 percent of image infringements and did so with a population of only about 250.000 inhabitants! Finding reasons for this placement is not easy, however, in 1993 Scottsdale was rated the “most liveable city in the USA and made a name for itself in tabloid media as a celebrity vacation spot. In Scottsdale, photos of popular locations are some of the most commonly used pictures without a license. It is therefore quite possible that the sudden fame of the city was picked up locally and was spread across the internet – without sufficient diligence for image rights research.

Ok then. Maybe next time, try to perform some of that “sufficient diligence” before hitting the “publish” button. Here’s a more likely explanation why so much infringement appears to be coming from Arizona: domain registrar GoDaddy is headquartered in Scottsdale, Arizona and private registrations default to GoDaddy’s home address. This logic failure is especially ridiculous considering Copytrack suggested it was private domain registrations driving the surprisingly high amount of alleged infringement in Panama City, Panama — which leads the world in infringement percentage according to this report.

Given Copytrack’s inability to rein in its statistical leaps of faith or its bizarre theories about mass infringement in the Arizona real estate industry, perhaps it shouldn’t have applied its… um… prowess to minutia no one cares about. But it did and so there’s a whole page dedicated to breaking down the resolutions most commonly “stolen.” This, unsurprisingly, turns out to be 1920×1080, followed by sizes commonly used by online publications to ensure viewability across a wide variety of platforms and devices (600×400). Basically, the most popular sizes for infringement are also the most popular sizes for non-infringing use.

I mean, is there really any usable knowledge to be gleaned from this chart?

Obviously, Copytrack thinks so. Maybe this chart is included to let rights holders know they can limit infringement by uploading creations in resolutions no one would even take for free… like 600×150 or 350×1200 or whatever. Sometimes you just have to realize that not all data is relevant, useful, or even marginally interesting. Copytrack appears to feel it needs to use all the data it collected, even if the data is completely devoid of information.

I guess if the ultimate point is to pitch your services to new customers, Copytrack’s report can be considered a success… but only if it results in new customers. By any other standard, it’s a failure. And an embarrassing one at that.

Filed Under: copyright, photography, piracy
Companies: copytrack

Aussie Senate Rushes Thru Bill That Would Fine Social Media Companies For Not Taking Down 'Abhorrent' Content Fast Enough

Legal Issues

from the WE-HAVE-DONE-SOMETHING-the-AG-exclaimed dept

Following the Christchurch mosque shooting, the New Zealand government swiftly declared footage and photos of the shooting illegal and started rounding up citizens who violated the censorship body’s new declaration. The government of its closest neighbor has responded to the tragedy in a similar fashion, outlawing the sharing of “abhorrent violent material.”

Tragedies make for bad laws. And Australia — while relatively short on tragedy — has been crafting some supremely bad laws lately. The national security flag was waved around a bit to justify encryption-breaking mandates. Now, the government has rushed through a bill targeting content like the Christchurch shooter’s livestream of his violent act.

The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 has been loosely characterised as a crackdown on social media companies to prevent a recurrence of what transpired during the Christchurch massacre, where live video was streamed by the perpetrator and then shared by users.

But the text of the amendment [pdf] shows it takes a far wider brush than just to social media companies, instead hitting a wider range of online content storage and carriage service providers, with very few exceptions.

Abhorrent material is defined as relating to terrorism, murder, attempted murder, torture, rape or kidnapping.

This bill [PDF] was rushed through a Senate session with 18 other bills — all of this accomplished in under 45 minutes. Such was the sense of urgency that Senate members voted sight unseen. Only one Senator even bothered asking for the text of the bill being voted on. It didn’t matter. There was no text to be had at the time of the vote.

The bill demands the removal of “objectionable” content within a “reasonable amount of time.” “Reasonable” isn’t defined. The bill simply demands “expeditious removal” after notification and an initial fine of $168,000 for not being expeditious enough.

There’s no legal definition of “expeditious” to rely on, so social media providers will apparently have to make do with the Attorney General’s feelings.

[A]ttorney-General Christian Porter gave some indication during a televised briefing of how quickly individuals and companies might have to act.

“Using the Christchurch [massacre] example, I can’t precisely say what would have been the point of time at which it would have been reasonable for [Facebook] to understand that this was live streaming on their site or playable on their site, and they should have removed it,” Porter said.

“But what I can say – and I think every Australian would agree – [is] it was totally unreasonable that it should exist on this site for well over an hour without them taking any action whatsoever.

So, tech companies have an hour to remove anything the Australian government claims is abhorrent, whether or not the content was uploaded by an Australian. If this vague deadline isn’t met, the fines begin escalating. $168,000 is merely the starting point.

Individuals can be hit with a three-year jail term, up to $2.1 million in fines, or both. Companies meanwhile can face fines up to $10.5 million or 10 percent of their annual turnover.

The Attorney General is inordinately proud of his plan to fine and lock up tech company execs because of content their users posted. He calls it a “world first” and says it’s supported by a “near unanimous view amongst Australians.” This does not mean Australians were consulted while the bill was being drafted. There was also no input from tech companies which will have to respond “expeditiously” to a vague, overbroad directive.

The AG stands united with a bunch of people he didn’t speak to while talking up a bill no Senators read before passing. What could possibly go wrong?

Filed Under: australia, christchurch, social media

UK Government Misses Another Ship Date On Its Porn Filter

Failures

from the an-Easter-miracle dept

Good news, UK porn aficionados: the porn filter is backed up.

The U.K. Government has postponed the introduction of controversial new regulations that have come to be known as the ‘Porn Block’ and would have blocked those under the age of 18 from viewing online porn from April.

[…]

According to the Mirror Online a Department for Digital, Culture, Media & Sport (DCMS) spokesperson has now “confirmed that the official rollout plans will be announced shortly” and the April 1 commencement date no longer stands.

And so the plan that won’t work — one that’s going to under- and over-block when not being circumvented with remarkable ease — is on the back burner again. This doesn’t mean the government is going to fix it. It just means the government hasn’t been able to convince anyone in the private sector that it’s being foisted upon that it will work as intended.

The government “refreshed” its porn blockade late last year, softening a few mandates into suggestions. But the newly-crafted suggestions were backed by the implicit threat of heavier regulation. All the while, the government has ignored the hundreds of critics and experts who have pointed out the filtering plan’s numerous problems — not the least of which is a government-mandated collection of blackmail fodder.

The government is no longer demanding retention of site logs by sites performing age verification, but it’s also not telling companies they shouldn’t retain the data. Companies likely will retain this data anyway, if only to ensure they have it on hand when the government inevitably changes it mind.

As for keeping kids away from porn, the proposed system is already an admitted failure. Exemptions are in place for sites like Reddit, which has no shortage of porn to offer. Meanwhile, the government continues to insist this will all work out wonderfully whenever the long-delayed filtering system is finally rolled out.

“This is a world-leading step forward to protect our children from adult content which is currently far too easy to access online,” a spokesperson for the Department for Digial, Culture, Media and Sport (DCMS) said. “The government, and the BBFC as the regulator, have taken the time to get this right and we will announce a commencement date shortly.”

“Shortly.” April 1st will come and go with no porn filter. The next best guess is around Easter (April 21st). But I’d wager that date comes and goes as well with zero new porn filters. The UK government only knows what it wants. It has no idea how to get it. If UK citizens are lucky, the porn filter will end up being government vaporware — a minor annoyance only noticed every time a ship date is cancelled.

Filed Under: filtering, porn filter, uk

Court Says Government Can Continue To Withhold Six 'Significant' FISA Court Opinions In Their Entirety

Legal Issues

from the releasing-even-a-single-word-would-apparently-destroy-the-nation dept

The EFF’s attempt to force critical FISA court opinions out of the DOJ’s hands has been rejected by a California federal court. The EFF was seeking to obtain unreleased FISA opinions by utilizing some of the new review requirements enacted with the USA Freedom Act. Unfortunately, the court has rejected the EFF’s compound argument, as Aaron Mackey explains:

Although the court did not rule on whether USA Freedom requires the government to review and disclose significant FISC opinions created before May 2015, it decided that EFF could not rely on USA Freedom’s transparency provisions while seeking FISC opinions as part of a Freedom of Information (FOIA) lawsuit. The ruling also upheld the government’s decision to completely withhold six significant FISC opinions based on the government’s claims that disclosing even a single word would jeopardize national security.

If there’s any good news in this decision [PDF], it’s the court taking a pass on the retroactivity issue, rather than offering judicial backing for the DOJ’s opacity. Nothing in the law suggests the new FISA opinion review process only affects opinions created after the law went into effect. The law’s language simply states that “each” significant FISA decision must undergo a declassification review. There’s no time limit inherent to “each” significant decision, but the DOJ has chosen to read the language in a way that’s most beneficial to it. With the court not giving its explicit blessing to the DOJ’s interpretation, it can still be challenged.

That’s pretty much the end of the good news. While the EFF has managed to pry loose 70 significant decisions, the government still wants to fully withhold six of them. The EFF argued that the review requirement prevents the DOJ from relying on blanket FOIA exceptions to keep these from being released. As the EFF pointed out, the government has offered no evidence these opinions have ever undergone a declassification review.

The court likes the argument, but doesn’t agree with the EFF’s assertions.

Although Plaintiff presents a creative argument, the Court agrees with Defendant that Plaintiff cannot enforce Section 402 [the declassification review] through this FOIA action. See Dkt. No. 69 at 2. While courts have not addressed this specific issue, the Court is persuaded by the decisions of courts interpreting FOIA’s relationship with other disclosure statutes.

[…]

Absent clear evidence that Congress intended Section 402 to be applied when reviewing FOIA exemptions, the Court will not impute such an intent to hybridize two statutory schemes. […] The purpose of Section 402 was to allow for more transparency of FISC and FISCR opinions by requiring the Director of National Intelligence and the Attorney General to release information that they determined were not classified, not to override “the ability of the government to claim proper FOIA exemptions.”

The court also says the government’s use of blanket exemptions is proper. It bases this on its own limited experience with national security issues.

Recognizing the Court’s “limited institutional expertise on intelligence matters,” see Hamdan, 797 F.3d at 770, the Court accords substantial weight to Ms. Gaviria’s representation that “disclosure of this information could reasonably be expected to cause serious damage, and in some instances, exceptionally grave damage to the national security of the United States.” See Gaviria Decl. ¶ 30. In the area of national security, “it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.”

With that bit of deference, the court declares the government to be the winner — at least in terms of these six withheld decisions. Unfortunately, this means the government can continue to pretend it doesn’t have to review old decisions until the court — or Congress — tells it otherwise.

Filed Under: doj, eff, fisa, privacy

Judge Rips Drug Task Force For Going On Asset Forfeiture 'Shopping Sprees'

Legal Issues

from the tough-to-tell-who-the-real-criminals-are-in-this-case dept

A Pennsylvania judge has delivered an earful to the York County Drug Task Force and its handling of property forfeitures. Christopher Hawkins, represented by Korey Leslie (who was kind enough to email me the ruling the York Dispatch couldn’t be bothered to post with its article), challenged the seizure of two vehicles and a bunch of electronics from his house. Hawkins was arrested after a controlled heroin purchase. There appears to be no question Hawkins participated in drug dealing. But that doesn’t excuse the government’s decision to take two cars and some TVs from him as “evidence.”

Judge Craig T. Trebilcock doesn’t like anything about the Task Force’s seizures, since it appears to be more concerned with taking things with resale value, rather than property with an actual nexus to drug distribution. The opinion [PDF] repeatedly calls Task Force detectives out for their lack of credibility and the dollar signs continually dancing in their eyes. The Task Force originally seized four vehicles from Hawkins before returning two of them for a lack of drug nexus. But it still couldn’t connect the two it kept.

Detective S. testified that the Dodge Neon and the Mercedes were kept by the police because “we thought there was clear and convincing nexus between drugs and those vehicles” However, no credible facts were provided by Detective S. to substantiate these conclusions. During cross examination. Detective S. indicated the vehicles did not play any role in the drug transactions on the 22nd or 23rd.

The only thing Detective S. offered as evidence of this drug nexus was a statement by Hawkins that he used the Mercedes to “meet people for money primary for drugs.” But, as the court notes, this statement was not corroborated by any other detectives involved in the arrest and seizure, nor was it recorded in any fashion. The court, however, knows exactly why these two vehicles were seized, even if the Task Force members won’t admit it.

Detective S. testified that there was no lien on either the Neon or Mercedes Benz, the apparent sole distinguishing factor as to why they were seized, instead of the other vehicles.

The detectives also couldn’t offer a good explanation for the seizure of two flatscreen TVs from the house. One claimed Hawkins wasn’t working, so he couldn’t have purchased them with legal funds. Again, the court points out Hawkins offered proof of his employment with a temp agency and lived with his girlfriend, who had a full-time job. And again, the court knows the Task Force just took the TVs because it thought it could turn them into cash quickly.

[T]here was no factual evidence to support the conclusion that Mr. Hawkins (or another resident) could not legitimately afford a television being present in his home. The task force seized the property simply because it had resale value.

The judge also calls out the perverse incentives that have led to the task force appearing before him repeatedly to forfeit televisions, video game systems, and vehicles — all without making much of an effort to tie these items to illegal activity.

Forfeitures… result in additional income streams to the very officers seizing the property, a source of concern to this Court.

The court notes that the state’s forfeiture laws are Constitutionally sound. But not when they’re applied the way the York County Task Force applies them. The court says the task force engages in “arbitrary” seizures that violate citizens’ due process rights. Then Judge Trebilcock hammers the point home:

This case is being decided on the facts of this case alone. It is important to note, however, that overzealous forfeiture actions by the Drug Task Force in the time frame of this case have not been isolated in nature. Dozens of forfeiture actions are brought before this court each year. While the property seized may vary from case to case, with some cases involving automobile, firearms or other property, a disconcerting pattern is evident that Drug Task Force officers seize big screen TVs that are present in the property regardless of any link to drug money or illegal activity. In addition, they disproportionately seize all game systems and video games, present in the property. The decision as to which property to seize is driven, in the words of Detective S., by which property has resale value.

The Drug Task Force does not seize furniture or clothing, silverware, or other items that have low resale value. They focus upon items that have high resale value. That is not a problem in itself, until the police begin to ignore that there must be a nexus to drug dealing or drug money to seize those higher high value assets. […] In this case the Drug Task Force personnel ignored the need for such a nexus and engaged in a shopping spree, for the benefit of their budget, based solely on the property’s resale value.

The court goes even further than this. It suggests the Drug Task Force also uses these seizures to coerce confessions or plea deals from defendants. It says it may not have happened in this case, but the court is sure it has happened in the past. Going forward, the York Drug Task Force will be under the microscope every time it tries to forfeit property.

[I]n the absence of reform and a greater demonstration of responsibility in future Drug Task Force practices, this issue will remain to be decided to the voluntariness of plea deals, questions of double jeopardy, and the personal or institutional liability/culpability of those officers who seize private property unlawfully.

In the future, Trebilcock’s court will also be requiring hearings for all forfeiture — hearings that defendants will be allowed to attend and testify at on their own behalf, even if they’re currently incarcerated. Trebilcock signs off his scathing opinion with this:

Taken in its entirety, the testimony of the officers in this case indicates that the police made the subjective assessment that the Defendant is too poor, absent drug dealing, to have nice possessions. This was nothing more than a hunch, unsupported by any investigative rigor, and clouded by an overzealous desire to forfeit the possessions.

Not enough judges are willing to go this far when criticizing law enforcement’s abusive practices. This probably won’t result in a come-to-Jesus moment for the Task Force, unfortunately. It may decide these drug cases now have a federal nexus and ask Uncle Sam to help them keep robbing people. But at least they know they’re no longer welcome to pull this bullshit in Trebilcock’s court, so it’s a start.

Filed Under: asset forfeiture, christopher hawkins, pennsylvania

Federal Court Says Teen's 'Fuck Cheer' Is Protected Speech

Free Speech

from the fuck-censorship dept

Pennsylvania teens will be relieved to know their Constitutional right to disparage their school remains intact. A lawsuit brought by a student who was suspended for expressing her displeasure with several school traditions has been given the federal court seal of approval.

At the heart of the case is a string of Snapchatted F-bombs. The student, referred to only as B.L., expressed her displeasure using curse words — a teen tradition that dates back at least as far as the traditions she expressed her displeasure with. The decision [PDF] recounts the sweary events leading to this Constitutional violation, which began with B.L. being passed over for a varsity cheerleading spot:

Posing in street clothes with a friend, middle fingers raised, B.L. took a “selfie” at the Cocoa Hut, a local store and student stomping ground. On top of the photo, B.L. added the following text: “fuck school fuck softball fuck cheer fuck everything.” B.L. then posted the captioned photo—the “Snap”—on her private Snapchat account, where it could have been viewed briefly by about two-hundred and fifty (250) of her friends. She posted a follow-up Snap just after, reading: “Love how me and [my friend] get told we need a year of jv before we make varsity but that[] doesn’t matter to anyone else?” Many of B.L.’s friends on Snapchat are students at District schools; some are fellow cheerleaders.

One of B.L.’s Snapchat “friends” — who also happened to be a cheerleader and a cheerleading coach’s daughter — took screenshots of this Chat and brought it to the cheerleading coaches. The coaches kicked B.L. off the team, suspending her from cheer activities for an entire year. Supposedly, this was due to multiple complaints about words that routinely come out of teenagers’ mouths.

The coaches also claimed B.L. had violated the cheer team rules with her “fuck cheer” post. Specifically, her Snapchat post violated the “Negative Information Rule,” which states:

“There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”

The court notes that students’ Constitutional rights do not end when they enter the school. The district argues students’ rights “end” if students waive these rights, as it claims B.L. did when she agreed to not post “negative information” about the cheer program on the internet. The court points out this waiver could hardly be considered voluntary.

[N]either B.L. nor her mother had bargaining equality with the coaches or the school; the Cheerleading Rules were not subject to negotiation; and B.L. and her mother were not represented by counsel when they agreed B.L. would abide by the Rules. Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive.

After deciding B.L. retained her First Amendment rights despite the wording of the cheer team agreement, the court moves on to dismantle the district’s other defense: that B.L. had no Constitutional right to engage in extracurricular activities. As the court points out, this determination is irrelevant to determining whether or not B.L.’s rights were violated by her suspension from the cheer team. The district wants the court to approach the question from the wrong side. The court declines the district’s invitation to enter the argument through the back door.

I agree with B.L. What the District’s argument does is put the constitutional cart before the horse. […] The issue with this reasoning, which assumes all student athlete speech is ipso facto less protected, see Lowery v. Euverard, 497 F.3d 584, 605 (6th Cir. 2007) (Gilman, J., concurring in the judgment) is two-fold: it muddies the First Amendment analysis, and conflates it with Due Process analysis.

[…]

The right a public school infringes by punishing a student for protected speech is not the right to education or to play a sport, it is the right to freedom of speech.

In the end, the court finds the school’s punishment of B.L. was unconstitutional. While it recognizes students engaging in extracurricular activities may be subject to more rules governing their behavior, the rules cannot infringe on their protected rights. Speech that occurs outside of the school walls is not completely out of reach of the school’s disciplinary policies, but the school needs to show the severely disruptive effect this extracurricular speech caused. In this case, all the district could point to were claims by cheer coaches the f-bombs had the potential to be disruptive.

If teens dropping F-bombs on or off school property were enough to disrupt schools, approximately 0% of the nation’s high schools would be operational for more than a few hours at a time, much less the entire school year. “Fuck cheer” is protected expression. The fact that the school doesn’t like hearing its activities criticized doesn’t budge the free speech needle.

Filed Under: first amendment, free speech

EFF Fights For Redditor Targeted By Religious Organization For Forum Posts About Its Data Collection Policies

Free Speech

from the shut-up,-they-dmca'ed dept

There goes the DMCA, being wielded as a tool of censorship again. The EFF is currently battling for a Redditor’s anonymity — something threatened by a bogus DMCA takedown and a subpoena seeking to unmask this supposed infringer.

It’s about much more than simply disappearing content from the internet one party didn’t want exposed. It’s about targeting an individual to deter them from ever posting content like this again. Behind the subpoena is a powerful religious entity — one that’s seeking to shut down criticism of its means and methods.

The Electronic Frontier Foundation (EFF) is representing an anonymous Reddit commenter who is facing an abusive copyright claim from the Watchtower Bible and Tract Society, a group that publishes doctrines for Jehovah’s Witnesses. Today, EFF filed a motion to quash the attempt by Watchtower to unmask the online commenter.

The commenter referred to as “John Doe” in the filing is a lifelong member of the Jehovah’s Witness community. Using the handle “darkspilver,” Doe has chosen to share comments and concerns via one of Reddit’s online discussion groups. Darkspilver’s posts included a copy of an advertisement asking for donations that appeared on the back of a Watchtower magazine, as well as a chart Doe edited and reformatted to show the kinds of data that the Jehovah’s Witness organization collects and processes. Earlier this year, Watchtower subpoenaed Reddit for information on “darkspilver” as part of a potential copyright lawsuit.

There is no legitimate reason for the Watchtower’s actions. The point of these efforts is to chill free speech about a large religious organization that engages in questionable behavior. Anonymity is essential to these discussions. Without this protection, Watchtower could track down users whose comments it didn’t like and engage in targeted harassment until the comments stopped.

The EFF is asking the court to quash the subpoena and stand up for the right to engage in anonymous speech. As the EFF’s motion [PDF] points out, members of the church stand to lose a lot more than the ability to comment on their church’s actions if exposed. Their social and familial lives could be completely disrupted.

The ability to speak pseudonymously is crucial to Doe’s ability to comment freely about matters that can be deeply divisive and contentious among both current and former members of the Jehovah’s Witness community. Doe’s lifelong experience with that community makes Doe afraid to question or doubt religious doctrine or administration in public. Doe believes that dissenting points of view are strongly discouraged in the Jehovah’s Witness community, and that those who express them are likely to be labeled “apostates,” and excommunicated, or “disfellowshipped” from the community. For Doe and others, who grow up and live their lives within the Jehovah’s Witness community, alienation from their religious community means alienation from central social relationships with friends and family.

As the EFF points out, the content targeted by the bogus takedown can only be considered “infringing” if everything else contained in copyright law is thrown out. One targeted posting was a scan of the back of a Watchtower magazine containing instructions on how to donate to the organization. The other contained information about the organization’s compliance with European data collection regulations. These were posted for informational purposes, allowing members of the subreddit to express their opinions about the organization’s data collections and policies. Even if Watchtower has legal ownership of both of these pieces of content, copyright law wasn’t violated by the user’s posting.

If Watchtower is able to establish ownership for both items, its infringement claims would still fail because both posting are lawful fair uses. The doctrine of fair use “allows the public to use copyrighted works ‘for purposes such as criticism, comment, news reporting, teaching … and scholarship.’”

[…]

The first posting, the Ad, was originally intended to raise money for the organization. Doe, by contrast, posted it on Reddit in order to spark further commentary regarding the organization’s solicitation strategy – which it did. Moreover, there is no evidence that Doe had any conceivable commercial purpose. The Chart, appears to have been originally created to summarize the Jehovah’s Witness organization’s storage and handling of personal data in connection with obligations of a new European data privacy rule. Doe’s reformatted version, by contrast, was intended to give subreddit members truthful information about the type of data the Jehovah’s Witness organization stores, and how it handles that information, to assuage potentially misguided concerns, and thus help encourage the preservation of information that might be useful in the future to reveal or punish past abuse.

The court has an obligation to protect free speech — even the anonymous speech of a person who may reside outside of the United States. Commentary on issues of public interest is an essential element of free speech. The internal workings of a religious organization with 20 million members worldwide is definitely of interest to the public — especially members of an online forum dedicated to discussion of this organization. Hopefully, this attempt to intimidate a forum member into silence by abusing copyright law will be decisively rejected by the court.

Filed Under: copyright, dmca, eff, free speech, watchtower
Companies: reddit