ICE Officers Forging Signatures, Deploying Pre-Signed Warrants To Detain Immigrants

Legal Issues

from the at-this-point,-only-ICE-thinks-ICE-shouldn't-be-abolished dept

[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Or whatever.

Here’s ICE’s much vaguer take on the Fourth Amendment, according to documents obtained by Brent Oxley, a fired ICE officer.

Internal emails and other ICE documents he obtained through a Freedom of Information Act request, since reviewed by CNN, show that other officers across the five-state region where Oxley worked had improperly signed warrants on behalf of their supervisors — especially on evenings or weekends. Some supervisors even gave their officers pre-signed blank warrants — in effect, illegally handing them the authority to begin the deportation process.

Oxley forged signatures of supervisors. Other ICE officers didn’t go that far. Many simply phoned up the supervisor who was supposed to be reviewing the warrants — you know, to ensure they were compliant with the Constitution — and then signed them on their behalf. In all the cases reviewed by CNN, no one was following the rules.

The President claims the “crisis” at the southern border warrants a national emergency declaration. The job ICE does is, apparently, too important to be done correctly. The agency is cooking the books to make it appear as though the nation is overrun by dangerous immigrants. Simultaneously, ICE threw manpower and funding at creating a fake college so it could sweep up immigrants and visitors attempting to comply with the law.

This warrant process that can barely be called a “process” is resulting in the illegal detention of immigrants who haven’t violated the law. The Fourth Amendment is supposed to limit government wrongdoing, but ICE officers appear to believe civil rights are inconveniences to be routed around. It wants to make the fun part of the job — rounding up people and detaining them — more efficient.

The process is detain first, ask questions later, if ever.

One ICE deportation officer in the Northwestern United States, who asked not to be named because he wasn’t authorized to speak for the agency, said his supervisors were not reviewing and signing individual warrants, called I-200s, as prescribed.

“I’ve had two supervisors since the memo came out. Both do it different ways, neither in the way that’s outlined in the policy,” the officer said. “My first supervisor would just sign the I-200s; he’d leave them blank and I would fill in the name later. My current supervisor tells us to sign his name for him.” Most supervisors in that office do the same, he added.

It’s only after ICE has someone in custody that anyone conducts a review of the paperwork. Apparently the agency feels comfortable abusing the rights of non-citizens, even though these same protections are extended to them by the government. It’s a collective shrug from ICE towards the Constitution the agency’s officers are sworn to uphold.

Brent Oxley is no hero. He’s not even a whistleblower. This misconduct has come to light because the union representing ICE officers is trying to get a man who forged supervisors’ signatures on warrants his job back. All Oxley was trying to show was that ICE’s Fourth Amendment violations are common practice. He wasn’t trying to expose the agency’s wrongdoing. He was simply trying to justify his own.

Filed Under: 4th amendment, blank warrants, dhs, general warrants, ice, immigrants, immigration, pre-signed warrants, rule of law

Federal Court Blocks Washington State's Unconstitutional Cyberstalking Law

Free Speech

from the fixing-stupid dept

When legislators craft unconstitutional laws, it’s a safe bet the first people to abuse them will be members of the government. We’ve seen this happen with outdated criminal defamation laws and the new wave of “Blue Lives Matter” legislation. Attempts to curb online evils like cyberbullying and revenge porn tend to disregard the First Amendment. If they’re not challenged, they go on to be tools deployed by government officials to silence critics.

That’s what happened in the state of Washington. A vociferous government critic found himself targeted by a displeased politician who used the state’s cyberstalking law to obtain a very restrictive protective order to silence his online nemesis. As the federal court notes in its decision [PDF], the speech the critic engaged in is the very reason for the First Amendment’s existence. (via Courthouse News)

Rynearson is an online author and activist who regularly writes online posts and comments to the public related to civil liberties, including about police abuse and the expansion of executive power in the wake of September 11. Rynearson’s writings are often critical—and sometimes harshly so—of local public figures and government officials. These writings are well within the traditions of independent American political discourse, and are intended both to raise the awareness of other citizens regarding the civil-liberties issues that Rynearson writes about, and to hold civic and political leaders accountable to the community through pointed criticism. This sort of expression is at the very heart of political speech which the First Amendment most strongly protects.

Rynearson’s online posts were highly critical of politicians he felt didn’t condemn the indefinite imprisonment of foreigners, something authorized by the NDAA (National Defense Authorization Act). One politician he felt was too enthralled with indefinite detention was Clarence Moriwaki.

[I]n February 2017, Rynearson wrote a series of public posts on Facebook criticizing Clarence Moriwaki, the founder of the Bainbridge Island Japanese-American Exclusion Memorial (“Memorial”), for failing to criticize Governor Inslee and President Obama for voting for/signing the NDAA. The thrust of Rynearson’s posts was that Moriwaki should be removed from his role as board member and de facto spokesperson for the Memorial because Moriwaki used the lessons of the internment, and his role with the Memorial, to criticize Republican politicians (chiefly, President Trump) in many media articles or appearances related to the Memorial, but failed to criticize Democratic politicians.

As the court notes, Rynearson used “invective” and “ridicule” to make his points. Moriwaki reported this ridicule (which, as the court points out, did not contain obscenity or threats) to local law enforcement. This did not result in an arrest, but Rynearson received a letter from the prosecutor notifying him she would “revisit” the possibility of prosecuting him if he didn’t shut the hell up.

This also resulted in Moriwaki obtaining a protective order against Rynearson — one that decided the First Amendment simply didn’t exist.

For a period of time, from March 2017 to January 2018, Rynearson was also subject to a civil protection order imposed by the Bainbridge Island Municipal Court based on posts critical of Moriwaki. Moriwaki v. Rynearson, No. 17-2-01463-1, 2018 WL 733811, at *12 (Wash. Sup. Ct. Jan. 10, 2018). The cyberstalking statute was one of the statutes invoked by the Municipal Court in imposing the protection order. Moriwaki, 2018 WL 733811, at *5. The order imposed sharp limits on Rynearson’s speech, such as barring the use of Moriwaki’s name in the titles or domain names of webpages.

This order was vacated by the same court after Rynearson’s Constitutional challenge. Now, Rynearson is challenging the law itself, pointing out (very reasonably) that the law’s unconstitutional restrictions could see him on the receiving end of future protective orders or criminal charges.

The federal court says Washington’s law is unconstitutionally overbroad, threatening a whole lot of protected speech.

Section 9.61.260(1)(b)’s breadth—by the plain meaning of its words—includes protected speech that is not exempted from protection by any of the recognized areas just described. Section 9.61.260(1)(b) criminalizes a large range of non-obscene, non-threatening speech, based only on (1) purportedly bad intent and (2) repetition or anonymity.

The state couldn’t come up with much to defend its bad law — just a couple of unpublished opinions that don’t say quite what the state imagines they say. The federal court offers its rebuttal, which only cites the highest court in the land.

[T]he Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because “in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.”

With that, the federal court declares the law unconstitutional, handing Rynearson an injunction preventing the state of Washington from using the law against him.

Based on the record before the Court it is highly likely that in the final analysis the Court will declare the provision is unconstitutional and therefore unenforceable. Anonymous speech uttered or typed with the intent to embarrass a person as here, is protected speech. The plain meaning of the italicized words render 9.61.260(1)(b) unconstitutional.

For the reasons given here, this Court concludes that RCW 9.61.260(1)(b) is facially unconstitutional.

The law is effectively dead. The only thing surprising about this is that the law has survived so long without being struck down. For 15 years, it’s been illegal to “embarrass” people online. It took a politician abusing the law to silence a critic to finally get it struck down.

Filed Under: 1st amendment, cyberstalking, free speech, washington

ICE Has Access To ALPR Databases, Bypasses Internal Restrictions By Outsourcing Searches To Local Cops

Privacy

from the get-all-you-can,-then-ask-for-more dept

ICE has been wanting full access to the billions of license plate records stored in ALPR databases for years. The DHS first floated the idea more than five years ago. It was reined in briefly in response to public backlash and Congressional criticism, but the idea of a national ALPR database was never truly killed off.

ICE was the agency sending out quote requests for a national database access. A few minimal protections were put in place, but all that was holding ICE back was logistics. The contract was finalized at the beginning of last year, hooking ICE up with ALPR records gathered by the hundreds of plate readers operated by local law enforcement agencies. Now, all that third party work is paying off.

More than 80 law enforcement agencies in the US have agreed to share with US Immigration and Customs Enforcement (Ice) license plate information that supports its arrests and deportation efforts, according to the American Civil Liberties Union (ACLU), which obtained a trove of internal agency records.

The documents acquired by the ACLU show that Ice obtained access to a database with license plate information collected in dozens of counties across the United States – data that helped the agency to track people’s locations in real time. Emails revealed that police have also informally given driver information to immigration officers requesting those details in communications that the ACLU said appeared to violate local laws and Ice’s own privacy rules.

When the agency takes the formal, contracted path to ALPR data, it’s running through two third parties: Vigilant, the leading manufacturer of plate readers, and Thomson Reuters, a multimedia conglomerate that has added data brokering to its portfolio of journalistic endeavors.

The original proposal limited ICE’s access to the 50 biggest metropolitan areas. That’s a lot of ground already, but the agreement allows local law enforcement in other areas to give ICE permission to browse their end of the Vigilant database. Not that it ultimately matters. Vigilant doesn’t seem to worry too much about siloing off data. Most law enforcement agencies are sharing data with lots of other agencies already, so intermingling is an inevitability.

It also appears there’s no expiration data on a lot of the data ICE is accessing. According to the documents, over 9,000 ICE agents have access to years a plate/location data, allowing them to reconstruct people’s movements over a long period of time.

Whatever restrictions exist on ICE’s access to Vigilant databases are easily avoided.

Emails showed that a police detective in Orange county, California, repeatedly conducted database searches in response to requests from an Ice specialist in criminal investigations. The two appear to have worked together frequently over several years, with the Ice employee providing details of the immigration investigations (such as information from a target’s Facebook page) and the local detective responding with license plate information.

“I am here for ya. :),” the detective wrote in one email to Ice, which included a report. In another exchange, after the Ice officer said “hate to ask” for more reports, the detective responded: “Come on, you don’t really hate to ask.. :).”

As the ACLU points out, these informal requests allow ICE to bypass the internal processes that are supposed to ensure access to this wealth of plate/location data is justified. The communications contained in these documents show ICE repeatedly ignoring these requirements.

At this point, everything will have to be fixed in post. Cops have been utilizing plate readers for years and Vigilant has been storing the billions of plate records generated every year for just as long. The DHS never needed to build a national license plate/location database. One was being built while it put on its little charade about respecting rights and citizens’ freedom to move around the country without being surveilled.

The ACLU is demanding legislators enact more privacy protections for this data and engage in some actual oversight, but that ship has been sailing for years. ICE’s access was an inevitability. It enacted privacy protections just so it could ignore them by asking local law enforcement to perform database searches. And it was all sold to the public with assurances ALPR tech would hunt down car thieves, kidnappers, and violent criminals. In reality, it’s being used to track people who’ve overstayed their visas.

Filed Under: 4th amendment, alpr, ice, law enforcement, license plate recognition, local police, privacy

Court Dismissed Lawsuit Brought Against Social Media Companies Alleging An Anti-Conservative Conspiracy

Legal Issues

from the lawsuits-are-the-new-tinfoil dept

Alt-right sideshows Laura Loomer and Larry Klayman sued Twitter, Facebook, Google, and Apple for [checks filing] participating in a government-enabled conspiracy to deplatform Freedom Watch/Loomer in order to further a leftist agenda, etc. etc. ad nauseum. Their complaint alleged violations of the Sherman Act, DC’s public accommodation law, and the First Amendment. In support of these allegations, the plaintiffs offered vague theories about “public platforms” and some misreadings of pertinent court precedent. (via Eric Goldman)

After a round of motions, the court has ruled in favor of everyone being sued. The decision [PDF] makes it clear none of the arguments made by the plaintiffs hold water, much less achieve complete coherence. The only thing the court agrees with is that Loomer and Freedom Watch have standing to bring the suit. But standing is only worth something when your arguments have merit.

While they have established standing, the Plaintiffs have failed to state viable legal claims. Consider first their Sherman Act arguments. Section 1 of the Sherman Act states that “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce among the 7 several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. “Independent action is not prescribed” by § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 760 (1984). So a valid claim must allege that the Platforms “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Id. at 764. The Plaintiffs’ claim fails to do this.

True, the Amended Complaint repeatedly states that the Platforms have engaged in a conspiracy or illegal agreement. See, e.g., Am. Compl. 4, 5, 12, 17. But it offers only these conclusory statements to suggest the existence of such an agreement. It includes no allegations, for example, that any of the Platforms met or otherwise communicated an intent to collectively suppress conservative content.

A conspiracy requires the participation of conspirators. But some of the alleged conspirators still played ball with the plaintiffs, which undercuts the conspiracy needed to sufficiently allege antitrust violations.

The Plaintiffs also suggest that the Platforms “have engaged in ‘conscious parallelism’ and in concert mimicked each others’ refusal to deal with Freedom Watch and Ms. Loomer.” Am. Compl. 21. But Freedom Watch admits that it “has and still does pay Google and YouTube, Facebook and the other Defendants for services.” Id. at 11. This admission contradicts assertions of a coordinated “refusal to deal” with the Plaintiffs.

The complaint fares no better when dealing with the second antitrust allegation — the supposed “monopoly” power of the [checks notes] four defendants being sued. As the court points out, the plaintiffs could have brought some data to their legal fight. Instead, they chose to bring conclusory statements and assertions about “leftist agendas.”

[T]he Plaintiffs offer no market share data for any of the Platforms in either the local or worldwide markets for media and news publications. Instead, they make claims about the “social network global market,” the “social networking advertising revenue” market, the “digital ad revenues” market, and the “mobile ad market.” Am. Compl. 18. And though the Amended Complaint states that “59% of Twitter users get their news through the Twitter platform” and that “48% of all American adults [get] their news from Facebook,” it offers no support for the notion that either firm has achieved or tried to achieve monopolization of the nationwide media and news publications market.

The allegations claiming that kicking Loomer/Freedom Watch violated DC’s Human Rights Act is just as ridiculous. The court points out the law refers only to physical public spaces and it’s not willing to re-litigate a DC circuit opinion and/or rewrite local law on behalf of the plaintiffs.

Finally, the court addresses the most ridiculous of all the lawsuit’s assertion: that moderation decisions by social media services somehow violated the plaintiffs’ First Amendment rights. The plaintiffs cite the Packingham decision by the Supreme Court, completely misreading that decision’s findings. In that case, the court said the government couldn’t prevent people from accessing internet services. Loomer and Klayman pretend it actually said platforms can’t ban people from accessing their platforms. The district court points out the distinction the plaintiffs are ignoring.

True, in Packingham, the Supreme Court recognized that Facebook and Twitter are among the “most important places (in a spatial sense) for the exchange of views” in society today. 137 S. Ct. at 1735. But the case involved a challenge to a state law that limited the speech rights of certain criminals on these platforms. Id. at 1738. It did not create a new cause of action against a private entity for an alleged First Amendment violation.

The second citation from the plaintiffs isn’t any better, and the court again restates the obvious: moderation decisions by private companies are not actions taken by government entities, no matter how many users the platforms accommodate.

[T]he Plaintiffs here allege no nexus between the Platforms’ actions and a function traditionally reserved exclusively to the state. Nor do they contend that the Platforms were designated by the state to perform a governmental operation. Instead, the Amended Complaint focuses on the Platforms’ alleged suppression of conservative political content. It details, for instance, the seemingly disparate treatment of conservative news publishers on Facebook and of conservative commentators on Twitter. Am. Compl. 4-5. But while selective censorship of the kind alleged by the Plaintiffs may be antithetical to the American tradition of freedom of speech, it is not actionable under the First Amendment unless perpetrated by a state actor. Thus, their claim must be dismissed.

This will surely be appealed. But the outcome will be the same. Actions by private companies can’t violate rights and the existence of multiple social media platforms simultaneously preemptively defeats most antitrust allegations.

Some conservatives are convinced there’s a leftist agenda being played out in social media. But rather than fight it with more speech, they’re trying to bring the government in to fix these perceived problems. Whatever floats your speech boat, but remember, any “fixes” you get will remain in place for years — even if the perceived pendulum swings the other way. The rules that “level the playing field” will come back to bite these agitators in their asses if they ever manage to talk a court or a bunch of legislators into taking their bad ideas seriously.

Filed Under: antitrust, bias, conservative bias, first amendment, free speech, larry klayman, laura loomer, monopoly, social media
Companies: apple, facebook, google, twitter

Appeals Court: Stored Communications Act Privacy Protections Cover Opened And Read Emails

Email

from the shouldn't-have-needed-to-be-said,-but-at-least-it-was-said-forcefully dept

The Fourth Circuit Court of Appeals has handed down an important decision [PDF] bolstering privacy protections for stored email. As we’re painfully aware, unopened email older than 180 days is granted zero privacy protections, treated like unopened snail mail left at the post office. Opened email, on the other hand, would seem to carry an expectation of privacy, but a district court ruling came to exactly the opposite conclusion, prompting this appeal.

A lawsuit involving a pair of affairs and one party’s decision to read someone else’s emails surfaced a question not often posed without a government party involved. Here’s the court’s summary of the convoluted backstory that led to accusations of federal law violations:

From August 2011 to February 2015, [Patrick] Hately had an intimate relationship with Nicole Torrenzano (“Nicole”), with whom Hately has two children. During their relationship, Hately and Nicole shared login and password information for their email accounts—including Hately’s Blue Ridge College email account. But when, about March 2015, Nicole informed Hately that she also was involved in an intimate relationship with [Dr. David] Watts, who was her co-worker and married to Audrey Hallinan Watts (“Audrey”), Hately and Nicole separated.

Pertinent to this action, Hately did not change the password that he shared with Nicole for his Blue Ridge College email account. Watts and Nicole continued their personal relationship, and during the fall of 2015, Watts and Audrey initiated divorce proceedings. In an effort to help Watts in his divorce proceedings, Nicole told Watts that Hately and Audrey were having an affair. Nicole said she knew of emails between Hately and Audrey that Watts could obtain by using the password that she had to Hately’s Blue Ridge College email account.

This certainly doesn’t make what Watts did OK, but he seemed to feel it at least made his actions legal.

Watts stated that he used the password Nicole gave him to browse through Hately’s emails but contended that he “did not open or view any email that was unopened, marked as unread, previously deleted, or in the [student email account]’s ‘trash’ folder.”

This bizarre defense of invading someone else’s privacy convinced the lower court that Watts’ actions were legally in the clear, even if they were clearly morally wrong. It dismissed his Stored Communications Act claims against Watts, stating that the SCA did not protect opened email. According to the lower court, the only email protected by the SCA is email still in transit. Once it’s been downloaded and opened, it’s apparently cool for other people to access and read, even if it’s not their email account.

With this bizarre take, the lower court basically stated spam email routed directly to the trash has more privacy protections than direct communications between living, breathing persons. The appeals court points out this interpretation is off base by a long distance. A lengthy discussion of the SCA and Congressional intent — along with a revival of Hately’s state law claims — takes up a great deal of the opinion’s 55 pages.

Dr. Watts — the email interloper — argued the SCA did not protect these communications because the Blue Ridge College email server was not an “electronic communication service,” but rather a “remote computing device.” This argument hinged on the email system’s construction, which used Google’s services for transmitting and storing email. But the university also stored a copy of all Blue Ridge email on its own servers as a backup for users. This crucial fact restores the expectation of privacy, according to the appeals court, which points out Blue Ridge’s backup server actually makes it both.

The district court’s reasoning rests on the premise that, for purposes of the emails in question, Blue Ridge College’s email service could not simultaneously function as both an electronic communication service and a remote computing service. But nothing in the plain language of the definitions of electronic communication service and remote computing service precludes an entity from simultaneously functioning as both.

There is no logical or technological obstacle to an entity “provid[ing] to users thereof the ability to send or receive wire or electronic communications”—i.e., functioning as an electronic communication service—while, and as part of the same service, “provi[ding] the public [with] computer storage or processing services by means of an electronic communications system”—i.e., functioning as a remote computing service. And the relevant legislative history expressly contemplates as much, stating that “remote computing services may also provide electronic communication services.” S. Rep. No. 99-541, at 14; see also H.R. Rep. No. 99-647, at 64 (“[T]o the extent that a remote computing service is provided through an Electronic Communication Service, then such service is also protected [under Section 2701(a)].”).

As the appeals court notes, it makes no sense to suggest email users consider opened email worthy of less protection than others they’ve sent directly to the trash without reading. Servers like the one used by Blue Ridge to back up the Google-based email system are the end result of users’ desires. Users want to store emails for later reading or use. And Congress — even with its horribly-outdated Stored Communications Act — recognized the privacy inherent to these personal communications. This covers delivered and opened email, no matter where the original or its backup resides.

To read the law otherwise is to upend the personal nature of email communications, allowing almost anyone to access anyone else’s email without permission and face zero consequences (at least under federal law) for doing so.

The district court’s construction of Subsection (B)—that previously delivered and opened emails stored by a web-based email service are not in “electronic storage” and therefore not actionable under Section 2701(a)(1)—would materially undermine these objectives. Potential users of web-based-email services—like Blue Ridge College’s email service—would be deterred from using such services, knowing that unauthorized individuals and entities could access many, if not most, of the users’ most sensitive emails without running afoul of federal law. Likewise, without the prospect of liability under federal law, unauthorized entities will face minimal adverse consequences for accessing, and using for their own benefit, communications to which they are not a party. The legislative history establishes that Congress did not intend such a result.

The district court’s interpretation of Subsection (B)—which would protect only unread emails stored in by web-based email service—also leads to an arbitrary and untenable “gap” in the legal protection of electronic communications.

Back the case goes to the lower court, reversed and remanded with instructions to reach a less illogical conclusion. And in doing so, the appeals court sets an important precedent that clarifies what the SCA actually covers.

Filed Under: 4th circuit, ecpa, emails, privacy, stored communications act

CBP Still Arresting Immigrants Trying To Stay In The Country By Furthering Their Education

Computers

from the bad-hombre,-ph.d. dept

Looks like ICE isn’t finished protecting the nation from dangerous immigrants seeking to… attend local universities. A massive sting operation involving a fake college, fake accreditation, and hundreds of immigrants who paid for classes but received nothing more than an arrest in exchange for their cash is apparently still ongoing.

Federal immigration officials have arrested more students who were enrolled at a fake university in metro Detroit.

And many of the students who enrolled at the university created by the Department of Homeland Security (DHS) are now in the process of being removed from the U.S. as Indian-American advocates grapple with what they say is an unprecedented number of arrests of Indian students.

The U.S. Immigration and Customs Enforcement (ICE) has arrested 161 foreign students from the University of Farmington on civil immigration violations, ICE spokesman Khaalid Walls said this week.

To be clear, most of the students detained or arrested were doing exactly what the law allows them to do: stay in US while continuing their education. A (manufactured) shortage of H1-B visas made this the only legal option for many of these students. According to the lawyers representing the students, a majority of those arrested were enrolled in master’s degree programs at the fake school. They had paid tuition and were fully expecting to be able to attend school while waiting for H1-B slots to open up.

It was ICE that arbitrarily decided attempting to follow the law was the equivalent of illegally overstaying their visas. The students thought they were dealing with a legit operation, which is exactly what ICE wanted them to think. It even secured accreditation for its fake school to better sell the false promise of students being able to do exactly what immigration law allowed them to do.

And for that, they’re being arrested and deported. While ICE may have rounded up a few scammers selling students access to something they already rightfully had access to, the biggest scam was run by the government. The government created a fake school, took students’ real money, and arrested them for trying to extend their stays legally.

Hopefully, this will see ICE hit with a number of lawsuits. It’s difficult to imagine a court being OK with the details of this sting operation — one that targeted immigrants and visitors trying to extend their stays lawfully. This is the kind of thing that “shocks the conscience,” a legal term of art that leaves participating personnel and agencies with almost no legal defense for their actions and courts ready to step in and right the wrongs.

Filed Under: cbp, dhs, fake university, ice, immigration
Companies: university of farmington

Arkansas Senate Unanimously Approves A Conviction Requirement For Asset Forfeiture

Legal Issues

from the limited-good-news,-everyone! dept

Some more good news about asset forfeiture comes our way, courtesy of Lauren Krisai. It appears the Arkansas senate overwhelmingly agrees the abusive state of forfeiture it oversees cannot continue. The state senate unanimously passed an asset forfeiture reform bill that would institute a conviction requirement for seized assets, preventing law enforcement from policing for profit.

The bill would basically outlaw civil asset forfeiture in its current form, replacing it with criminal asset forfeiture. And it would prevent cops from using rinky-dink criminal charges to take property away from state residents.

There shall be no civil judgment under this subchapter and no property shall be forfeited unless the person from whom the property is seized is convicted of a felony offense that related to the property being seized and that permits the forfeiture of the property.

Unfortunately, it does contain a couple of loopholes. First, law enforcement can convert this back to civil asset forfeiture if it can show the person never responded to the civil complaint against their property. Tying this to a conviction requirement should make this tougher to exploit, seeing as a person dealing with a criminal complaint will probably be apprised of the state’s desire to take their property.

Second, it still allows local law enforcement to take advantage of the federal government’s equitable sharing program to bypass the new restrictions. The Tenth Amendment Center points out the state took a shot at closing this loophole with an earlier law. This is what the state’s partially-closed loophole looks like:

(1) No state or local law enforcement agency may transfer any property seized by the state or local agency to any federal entity for forfeiture under federal law unless the circuit court having jurisdiction over the property enters an order, upon petition by the prosecuting attorney, authorizing the property to be transferred to the federal entity.

(2) The transfer shall not be approved unless it reasonably appears that the activity giving rise to the investigation or seizure involves more than one (1) state or the nature of the investigation or seizure would be better pursued under federal law.

Given that most seizures are performed by “drug interdiction units” or whatever, exploiting the federal loophole is as easy as claiming the property seized is part of a larger drug cartel’s operations. Almost every state drug charge has a federal equivalent, so if local cops don’t want to pursue a conviction, they can give the feds a cut of the seizure to bypass any state-level conviction requirements.

As the Institute for Justice notes, Arkansas has some of the country’s worst forfeiture laws. And this legislative attempt to close the federal loophole has had zero negative effects on local law enforcement’s ability to turn vague claims about drugs into cop shop petty cash.

Arkansas law enforcement received $27 million in DOJ equitable sharing proceeds between 2000 and 2013, which equates to roughly $1.9 million each calendar year. And these proceeds have been increasing steadily over the years, from a few hundred thousand dollars a year in the early 2000s to over $3 million in 2013.

If Arkansas legislators really want to end forfeiture abuse, they’ll also need to address equitable sharing. Until that loophole undergoes further restrictions, it will be business as usual in the state. Cops would rather have 80% of something than 100% of the nothing they’ll get if they feel they can’t obtain a felony conviction.

Filed Under: arkansas, asset forfeiture, convictions, due process

Thai Government Uses Fake News Law To Lock Up Opposing Party Leaders

Legal Issues

from the securing-a-nation-from-the-threat-of-free-and-open-elections dept

Thailand’s government continues to make life miserable for its citizens. Pretending mass censorship and broken encryption are just the price citizens have to pay for a “secure” nation, the government has turned the internet into a minefield for critics and political opponents. This is all on top of a lese majeste law that criminalizes badmouthing the king, which would be horrible enough on its own.

Thanks to the leader of the free world, the term “fake news” is now being deployed to put people in real jails for sharing content of dubious origin or not in alignment with the official narrative. Shutting down criticism by deploying anti-fake news laws is a horrendous abuse of government power. But even legitimate uses of these laws are still troubling. Should the sharing of actually fake news be a criminal offense? The Thai government says yes.

A spokeswoman for the Future Forward party said on Tuesday that a representative of the ruling military junta had filed a police complaint accusing Pongsakorn Rodchompoo of violating the Computer Crime Act, which carries a penalty of up to five years in jail.

Pongsakorn has admitted sharing an article that accused a top junta official of buying cups of coffee for 12,000 baht ($377) each, but says he deleted the post within minutes after learning it originated from a website promoting fake news, Future Forward spokeswoman Pannika Wanich said.

Five other people were also arrested for sharing the fake story, but it’s definitely a boon for the government in power when the law takes out a political opponent. Literally unbelievable, the government says the fake story — which detailed government overspending that didn’t actually happen — posed a “threat to national security.” Conveniently, the charges target the leaders of a political party current challenging recent election results.

If fake news is the new speech-damaging dodge, “national security” is the trusty standby — one that’s been used to increase censorship and surveillance all over the world, not just in nations run by hypersensitive authoritarians. The Thai government may be saying stuff about fake news and national security, but the real motivation is keeping its opponents quiet. Charges have also been filed against Future Forward party leader Thanathorn Juangroongruangkit for “putting false information online.” The Guardian notes that Thanathorn is a “particularly articulate” critic of the Thai government and military.

And, because all of these new laws just aren’t enough to keep every critic silent, the nation’s criminal defamation law is still being used in particularly petty ways.

Thailand’s army chief, General Apirat Kongsompong, has ordered officials to file defamation charges against a former police chief who is running for prime minister after he made remarks regarding the many decorations on the general’s uniform…

Presumably, keeping the general’s chest free from criticism will result in a more secure nation — one run by some of the most insecure people in the country.

Filed Under: fake news, free speech, oppression, politics, thailand

New Florida Bill Seeks To Bury Recordings Of Mass Shootings

Legal Issues

from the screwing-the-public-to-save-the-government dept

Florida legislators are thinking about handing some opacity back to Florida law enforcement agencies in the wake of the Parkland school shooting. The tragedy of the event was compounded by on-site law enforcement’s response: that is, there wasn’t any. Faced with increased scrutiny over a handful of mass shootings in the state, at least one legislator’s response has been to bury the bad news under a new public records exemption. [h/t War on Privacy]

In less than three years, Florida has seen the second-deadliest mass shooting – Pulse nightclub – and the second-deadliest school shooting – Marjory Stoneman Douglas High School. One gunman killed five at the Fort Lauderdale-Hollywood International Airport. Another killed five at a Sebring bank.

Yet Senate Bill 186 would create an exemption to the state’s public records law for all photographs and audio and video recordings that relate to the “killing of a victim of mass violence.” The bill defines mass violence as the killing of at least three people, not including the perpetrator. Violation would be a third-degree felony, punishable by up to five years in prison.

Senator Tom Lee’s bill is a gift to the government at large, even if law enforcement agencies and schools will be the most direct recipients of this largesse. If this “privacy protection” had been in place a few years ago, the public would have had no idea how badly the Broward County Sheriff’s Department botched its response to the school shooting. Not only would that have kept the BCSD relatively free of criticism, it would have shielded its oversight — state legislators — from being asked what they were doing to prevent school shootings and/or ensure better response from those expected to serve and protect the public.

Supporters of bills like these claim it’s all about protecting the privacy of crime victims and their families. But as the excellent Sun Sentinel op-ed points out, most requests to block release of recordings originates with governments and businesses rather than the victims and their loved ones. These requests have prevented the public from accessing key details in everything from Dale Earnhardt’s Daytona crash to an inmate’s death at the hands of jailers.

The law already blocks the release of recordings containing the death of a law enforcement officer. This addition could be read to cover any deadly incident in which more than one person is killed. Any whistleblower releasing recordings to show the public what really happened — rather than the official narrative — will now face felony criminal charges for doing the right thing. This isn’t going to restore confidence in government agencies and their response to deadly incidents. All it will do is drive a wedge between them and the people they serve.

Filed Under: florida, mass shootings, recordings