Judge Recommends Vacating The Sentence Of One Of The FBI's Handcrafted Terrorists

Legal Issues

from the well...-half-the-sentence-has-already-been-served-so... dept

Nearly 13 years after the FBI managed to turn a California cherry picker into a international terrorist, one of its self-created terrorists is about to be turned back into regular California resident, albeit one missing more than a decade from his life.

Hayat went to Pakistan in 2003 to visit his mother and get married. The FBI and prosecutors insisted he went there to train to be a terrorist. When he returned to the US, he was arrested and indicted. Prosecutors tacked on some lying to federal agents charges because of course they did, pushing Hayat’s sentence to 24 years.

This conviction was upheld by the Ninth Circuit Court of Appeals but Hayat’s motion to vacate his sentence has found some sympathy from a federal magistrate judge.

A federal magistrate on Friday recommended overturning the controversial 2006 conviction of a California man accused of attending a terrorist training camp in Pakistan and plotting an attack in the United States.

Hamid Hayat, now 36, who was then a young cherry-picker from Lodi, has served about half his 24-year sentence.

But U.S. Magistrate Judge Deborah Barnes said he likely never would have been convicted were it not for the inexperience of his defense attorney, who failed to call alibi witnesses.

Hayat’s lawyer was clearly inexperienced, having never defended a client during a criminal trial before. The results speak for themselves. Judge Barnes’ examination of the case shows Hayat was possibly coerced into a false confession and had a decent alibi for his visit to Pakistan that — if explored more fully — would likely have shown the FBI’s speculations about his reason for returning to Pakistan were wrong.

His attorneys argue that much of the evidence used against him was faulty, including prosecution claims that Hayat attended a terror training camp in Balakot, Pakistan, in 2003 and 2004 – a facility they say had been shut down before Hayat even got to Pakistan.

Hayat’s confession was obtained during a “marathon” questioning session by FBI agents. This apparently included a special agent lying about the evidence the FBI had on Hayat’s supposed terrorist training.

According to court testimony, the Hayats were interviewed twice by the FBI. The first time, they both denied they knew anything about terrorism. But during a second interview at Sacramento FBI headquarters, after many hours of grilling without a lawyer, Hamid Hayat changed his story and confessed he attended a terrorist training camp for about three months. The jury asked for a read-back of FBI Special Agent Harry Sweeney’s trial testimony.

Sweeney testified that Hamid Hayat admitted to going to the camp after Sweeney asked him, “Would there be any reason why we would have a satellite image of you at a camp in 2003?”

Under cross-examination, Sweeney acknowledged there was no such photo.

Unfortunately, there’s nothing illegal about federal agents lying to suspects during questioning. But there’s certainly a law against lying to federal agents. The background of the case suggests the FBI may have been looking for something — anything — to justify its infiltration of a local mosque by one its surprisingly-expensive informants.

Naseem Khan claimed to have seen four of the world’s most-wanted terrorists in Lodi, California. Over the course of three years, the FBI paid Khan $230,000 to infiltrate a local mosque, despite discovering his claims of seeing top world terrorists were completely false. It was Khan who suggested Hayat visit a terrorist training camp while visiting Pakistan. The government apparently had no evidence Hayat ever visited a training camp, relying almost solely on a confession that appears to have been coerced.

The court says there’s not much here that makes the FBI look like a competent anti-terrorism force. There’s a questionable confession, an even more questionable informant telling people to engage in terrorist activities, and a bunch of speculation about Hayat’s activities while not under direct surveillance. As the judge points out, citizens shouldn’t be locked up for things the FBI THINKS they may have done. More evidence is needed and a more competent attorney might have been able to stop this farce before it took more than a decade away from Hamid Hayat.

Filed Under: 9th circuit, doj, fake terrorists, false confession, fbi, hamid hayat, harry sweeney, own plot, terrorism

Court To Revenge Porn Bro Suing Twitter: You Agreed To Twitter Picking The Courtroom Every Time You Created A New Alt Account

Legal Issues

from the pro-se-at-life dept

Craig Brittain’s $1 billion lawsuit against Twitter is still rolling slowly towards its inevitable dismissal. Bringing with him his usual legal expertise — which includes badly misreading the Knight Institute v. Trump decision and asking for some weird hybrid judgment/injunction/perma-unbanning — Brittain has so far forced Twitter to… move his case to another venue. (via Eric Goldman)

Twitter invoked the forum selection clause of its terms of service — terms Brittain agreed to time and time again as he created new accounts only to have them permanently suspended later. The terms say Twitter can move your lawsuit to its preferred venue (California federal court) and if you don’t like it, well… you can just not use Twitter and/or sue Twitter.

Brittain’s attempt to avoid having his Arizona lawsuit moved to California contains some rather novel legal arguments. First, he claimed Twitter’s terms of service were invalid because [checks filing] it doesn’t contain the mandatory “option” of arbitration. Here’s the court’s take [PDF]:

Brittain asserts that the Terms are unconscionable because they contain no arbitration clause and “have changed over time without arbitration.” Doc. 27 at 4. But Brittain cites no legal authority suggesting that Twitter is required to include an arbitration clause in its Terms. Nor has he otherwise shown that the Terms are unconscionable or illusory.

Second, he claimed it would be impossible for him to continue his doomed lawsuit in another state because he has no way of getting to California. It may be true — and forum selection does tend to create unnecessary expenses for plaintiffs/defendants — but in this case it isn’t because the federal courts are accessible by those with limited travel options.

Brittain asserts that his status makes it “gravely difficult” for him to participate in the litigation. Doc. 27 at 2, 5. He notes that he “is traveling primarily by bicycle and/or public transportation to file, upwards of 40 miles per trip[.]” Id. at 2. But the Northern District of California permits filing by mail, eliminating the need for Brittain to bicycle or use public transportation to file court documents.3 The fact that Brittain is a self-represented, indigent litigant is no basis for not enforcing the forum selection clauses. As noted, the private interests of the parties must be weighed in favor of the preselected forum. See Yei, 901 F.3d at 1087. Brittain has not shown that litigating in California “will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” M/S Bremen, 407 U.S. at 18.

Brittain also claims millions of social media users would cry out at once and be silenced if Twitter was allowed to take Craig’s unwinnable lawsuit to California. Brittain asserts… reasons.

Brittain further asserts that enforcement of the forum selection clauses would “contravene a strong public policy of the venue in which the suit was brought,” and “the public policy of . . . the District of Arizona is superior to that of the requested forum.” Doc. 27 at 5. He cites the purported “public interest of over one billion total users,” including “tens of millions who have been censored, deverified, or suspended by Twitter,” but draws no connection between the interests of those alleged users and Arizona public policy.

The court is not swayed.

Twitter notes, correctly, that Arizona public policy favors enforcing forum selection clauses. Doc. 30 at 8. “Enforcement of a forum selection clause such as the one[s] at issue does not contravene any strong Arizona public policy as Arizona courts routinely hold that forum selection clauses are presumptively valid and that the party claiming the oppressiveness or unreasonableness needed to invalidate such a clause must meet a heavy burden of proof.”

Brittain’s lawsuit is still alive for the time being. He’ll just have to lose it in California, rather than in front of the home crowd.

Filed Under: content moderation, craig brittain, jurisdiction, pro se, revenge porn
Companies: twitter

Federal Judge Says Compelling People To Unlock Phones With Their Fingerprints/Faces Violates The 5th Amendment

Legal Issues

from the surprising-turn-of-events dept

The advent of biometric “passcodes” — fingerprints and facial recognition — appear to be leaving those who choose these methods with fewer Fifth Amendment protections. A handful of courts have ruled fingerprints and faces aren’t “testimony.” Much as officers can collect fingerprints and mugshots without a warrant following an arrest, they can also apply fingers and faces to locked phones to get to the data inside.

But it’s not as simple as some court decisions make it appear. Even passwords can be considered testimonial, as they may indicate ownership of a locked device or compel production of evidence to be used against the device’s owner. The passcode argument has gone both ways in court, which usually comes down to the individual judge’s definition of “foregone conclusion.” Does the foregone conclusion refer to the device’s ownership or the evidence contained in it? The latter is harder to prove, and raising the burden of proof to this level tends to result in courts finding the compelled production of passwords to be a Fifth Amendment violation.

Via Thomas Brewster at Forbes, there’s finally some good news on the biometric security front. A federal judge in California has ruled forcing people to unlock phones using biometric measures is a Fifth Amendment violation.

[I]n a more significant part of the ruling, Judge Westmore declared that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking their devices with their biological features.

As the court points out [PDF], when the fingerprint IS the password, the Fifth Amendment is implicated despite these features normally being considered non-testimonial.

The Court finds that utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. First, the Government concedes that a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. In this context, biometric features serve the same purpose of a passcode, which is to secure the owner’s content, pragmatically rendering them functionally equivalent.

The court notes law enforcement is well aware of jurisprudence surrounding device security. In this case, the more time that passed between the seizure of the devices and their compelled unlocking, the less likely law enforcement would be able to evade the Fifth Amendment. Judge Westmore doesn’t find this reasoning acceptable.

[A] passcode is generally required “when a device has been restarted, inactive, or has not been unlocked for a certain period of time.” This is, no doubt, a security feature to ensure that someone without the passcode cannot readily access the contents of the phone. Indeed, the Government expresses some urgency with the need to compel the use of the biometric features to bypass the need to enter a passcode. This urgency appears to be rooted in the Government’s inability to compel the production of the passcode under the current jurisprudence. It follows, however, that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.

The court goes on to say the government had other options to access messages — like approaching Facebook with a warrant — rather than intrude on the Fifth Amendment (and the Fourth Amendment — more on that in a moment), but it chose to do it this way. Just because it’s easier and faster to do it via compelled production doesn’t make it right. In fact, in the court’s eyes, all this effort did was violate the Constitution in multiple ways.

An attempted assault on the Fourth Amendment also occurred in this case. Investigators looking for evidence of extortion via Facebook sought to have every device and person at a residence seized and searched, with every resident compelled to unlock devices found during the search. As the judge points out in the rejection of the search warrant application, the Fourth Amendment requires far more specificity.

This request is overbroad. There are two suspects identified in the affidavit, but the request is neither limited to a particular person nor a particular device.

Thus, the Court finds that the Application does not establish sufficient probable cause to compel any person who happens to be at the Subject Premises at the time of the search to provide a finger, thumb or other biometric feature to potentially unlock any unspecified digital device that may be seized during the otherwise lawful search.

This is a far better answer to this sort of request than others we’ve seen. Searching someone’s home and digging through their electronics is one of the scariest powers the government has. The Fourth Amendment is in place to limit these exercises of immense government power to those that are justifiable and necessary. When judges grant overbroad orders, they’re doing more than failing to act as a check against government abuse. They’re normalizing abuse of citizens’ rights via judicial precedent.

Filed Under: 5th amendment, compelled speech, facial recognition, fingerprints, locked phones, passwords, testimony, unlocking phones

Sixth Circuit Appeals Court Latest To Say It's Cool If The FBI Broke The Law During Its Playpen Investigation

Legal Issues

from the deterrents-never-used-will-rarely-exhibit-a-deterrent-effect dept

The seventh Appeals Court to weigh in [PDF] on the FBI’s Network Investigative Technique deployed in the Playpen child porn investigation has weighed in. Unfortunately, it makes the Sixth Circuit the seventh appeals court to find the FBI’s warrant problematic, but willing to apply the “good faith” band-aid.

The problem with the application of the “good faith exception” is it assumes good faith on behalf of the FBI. There’s no reason to believe the FBI acted in good faith, though. While it was in the process of obtaining a single warrant allowing it to search computers all over the world, it was well aware Rule 41 limited searches to the jurisdiction where the warrant was obtained. It knew this because the DOJ was in the process of asking the Supreme Court and Congress to change Rule 41 to remove the jurisdiction limits while it was pursuing this investigation.

The Appeals Court grants good faith anyway, despite this background. It does do us (and the appellant) the favor of discussing good faith in light of the DOJ’s simultaneous attempt to codify searches it was already performing, but just because the discussion is expanded a bit doesn’t mean it makes much sense. Here’s the opening of the Sixth Circuit’s federal forgiveness pitch:

The good-faith exception is not concerned with whether a valid warrant exists, but instead asks whether a reasonably well-trained officer would have known that a search was illegal.

A “well-trained officer” should never have sought the search warrant in the first place, because a “well-trained officer” would have known search warrants were limited to the jurisdiction they were issued in. But the agent sought the warrant anyway and a magistrate judge actually approved it. The judge’s approval means more to the Sixth Circuit than the FBI’s bad faith proposition.

For the same reasons articulated in Master, we conclude that the good-faith exception is not categorically inapplicable to warrants found to be void ab initio. The difference between a state court judge acting without authority and a federal magistrate judge acting without authority is of little significance—in both instances, the individual who signed the warrant (arguably) had no power to do so. Master’s holding that the good-faith exception applies to one applies with equal force to the other. Accordingly, the good-faith exception to the exclusionary rule is not categorically inapplicable to warrants that are void ab initio because of a magistrate judge’s jurisdictional error.

But the case cited (Master) isn’t applicable to this situation. In that case, an officer presented a warrant request to the wrong county judge, accidentally obtaining permission to search outside of the judge’s jurisdiction. A similar mistake could not have possibly been made with this warrant request. A federal magistrate — whose jurisdiction covers an entire state — could not have been mistakenly approached to grant permission to search an entire nation. The FBI’s warrant affidavit clearly states it sought to search computers without knowing where any of the targets were located. The judge saw this and signed it anyway. Even if the judge blew the call, there’s no way anyone can argue with a straight face the FBI did not know the warrant request violated the law as it stood when it requested permission to deploy its NIT.

It may have been “reasonable” for the FBI agent to rely on the issued warrant, but only if you ignore what was happening at the DOJ during the time this investigation was occurring. In fact, it can be argued this investigation and a similar one in 2014 expedited the DOJ’s efforts on this front as it surely recognized some judges were going to find its NIT warrant invalid.

This explanation by the Sixth Circuit of its decision to extend good faith to the FBI agent doesn’t help. In fact, it doesn’t make sense.

But reasonable jurists have come to different conclusions about whether the NIT Warrant was valid. Compare United States v. Austin, 230 F. Supp. 3d 828, 833 (M.D. Tenn. 2017) (finding the NIT Warrant does not violate Rule 41(b) because it is the equivalent of a “tracking device” and therefore falls under the ambit of Rule 41(b)(4)), with United States v. Croghan, 209 F. Supp. 3d 1080, 1089 (S.D. Iowa 2016) (concluding that the magistrate judge lacked authority to issue the NIT Warrant), overruled on other grounds by Horton, 863 F.3d at 1052. We cannot, therefore, expect officers to have known that this type of warrant was invalid at the time it was sought. See Workman, 863 F.3d at 1321 (“[I]f a violation took place, it has escaped the notice of eight federal judges who have held that the same warrant complied with federal law and the federal rules even though data was being extracted from computers outside the Eastern District of Virginia. . . . [E]xecuting agents could reasonably have made the same mistake and reasonably relied on the magistrate judge’s decision to issue the warrant.”).

The court is saying an FBI agent — requesting a warrant in 2015 — can be excused for his Rule 41 ignorance because court decisions made 1-2 years after the warrant was sought suggest the NIT warrant area might have been a bit more gray than previously imagined. Furthering the retroactive forgiveness, the court goes on to point out — as others have — that Rule 41 changes, which went into effect more than two years after the warrant was obtained, now makes this sort of search legal. Since suppressing evidence is supposed to deter bad behavior by law enforcement, a past abuse that has been codified into law does not present further opportunities for exactly this same abuse of authority.

Certainly it would be impossible to violate rights in the same exact way again, what with the rules having been changed following the abuses contained in this investigation. But the deterrent effect of suppression would discourage law enforcement from seeking permission to perform illegal searches, even if there’s a chance those searches may become Constitutional in the future due to changes in the law. This is the court telling law enforcement to roll the dice in edge cases because you just never know what the future might bring. This encourages misconduct because it demonstrates the extent of the federal courts’ capacity to forgive.

Filed Under: 4th amendment, 6th circuit, doj, fbi, good faith, jurisdiction, playpen

CBP Will Search You And Your Property If You're Paying Too Much Attention To An Agent. Or Too Little.

Privacy

from the all-that-can-be-said-for-sure-is-the-CBP-is-going-to-be-performing-searches dept

There’s a lot of talk about border security recently. Rather strangely, it involves CBP officers going without paychecks for an indefinite amount of time as government funding is held hostage in exchange for border wall/fence money.

Not that the CBP needs to remain near the wall/fence. It’s able to hassle people within 100 miles of the border, which also includes international airports and has the capability to sweep up most of America’s population. And that’s just CBP officers. The CBP’s drones are being lent out to anyone who wants to use one as far inland as they want to use it.

The CBP performs a whole lot of searches. Over the past couple of years, the CBP has vastly increased the number of electronic searches it performs, needing little more than “because it’s there” to perform at least a surface scan of a device’s contents. Deeper digging requires extra paperwork, but a staggering amount of exceptions to the Fourth Amendment apply at the borders which, as we noted earlier, covers far more than points of entry.

The ACLU’s FOIA lawsuit has resulted in the production of a couple of lengthy documents from the CBP. These documents detail search procedures and the CBP’s long list of justifications for performing these searches. There are 1,200 pages in the newly-released stash. 1,100 of them are the CBP’s “Enforcement Law Course” [PDF]. The other 100 are a Powerpoint [PDF] containing “legal update training.”

The CBP has studied every Fourth Amendment-related legal decision to compile a long list of things officers can use to predicate a warrantless search. This multi-jurisdictional paper chase results in the expected internal contradictions, resulting in the CBP being able to argue both sides of a flipped coin can give them permission to perform a search. Here’s a quick summation of some of the documents’ contents by Max Rivlin-Nadler of The Intercept.

[The CBP] can determine “whether the vehicle or its load looks unusual in some way,” or “whether the passengers appeared dirty.” If those descriptions don’t apply, they can assess “whether the persons inside the vehicle avoid looking at the agent,” or conversely, “whether the persons inside the vehicle are paying undue attention to the agent’s presence.” And if those don’t apply, they can simply determine that the car is in an area nearby the border and pull it over on that basis alone.

Being near a border is inherently suspicious, even if someone has only made the mistake of residing legally within 100 miles of a border or airport. That sucks for them since it means any trip out of town and onto a major highway could result in a fully “justified” search.

When Border Patrol officers aren’t claiming their dogs can detect smuggled humans in moving vehicles dozens of feet away, they’re saying whatever comes to mind to justify a search they’ve already performed. A much longer list of search predicates — culled from hundreds of legal decisions all over the nation — is contained in the documents.

(1) whether the vehicle is close to the border;
(2) whether the vehicle is on a known smuggling route;
(3) whether the vehicle’s presence is inconsistent with the local traffic patterns;
(4) whether the vehicle could have been trying to avoid a checkpoint;
(5) whether the vehicle appears to be heavily laden;
(6) whether the vehicle is from out of the area;
(7) whether the vehicle or its load looks unusual in some way;
(8) whether the vehicle is of a sort often favored by smugglers;
(9) whether the vehicle appears to have been altered or modified;
(10) whether the cargo area in the vehicle is covered;
(11) the time of day or night at which the vehicle is spotted, and whether it corresponds to a shift change;
(12) whether the vehicle is being driven in an erratic or unsafe manner;
(13) whether the vehicle appears to be traveling in tandem with another vehicle;
(14) whether the vehicle looks as if it has recently been driven off road;
(15) whether the persons inside the vehicle avoid looking at the agent;
(16) whether the persons inside the vehicle are paying undue attention to the agent’s presence;
(17) whether the persons in the vehicle tried to avoid being seen or exhibited other unusual behavior;
(18) whether the driver slowed down after seeing the agent;
(19) whether the passengers appeared dirty;
(20) whether there is intelligence available that suggests that smuggling will occur in the area or by a specific vehicle; and
(21) whether the vehicle is coming from an area of a sensor alert.

Heads, the CBP wins. Tails, citizens and visitors lose.

As this chart shows, a whole lot of searching can be performed under the “Border Exception.” Things and people that have crossed a border tend not to require probable cause or warrants to be searched.

The CBP is going to perform a search. That’s pretty much all there is to it. The only thing limiting it is hours in the day. The courts aren’t helping either. They’ve been lulled to sleep with statements about “border integrity” and “national security,” becoming complicit in a unilateral removal of rights for anyone in the areas the CBP is allowed to roam.

There’s no upside here. The steady deterioration of rights near the border will continue. There hasn’t been a presidential administration yet willing to put an end to the DHS’s mission creep. And it really doesn’t matter how well the CBP knows its Fourth Amendment caselaw. It will still be granted good faith exceptions for searches that somehow manage to implicate what’s left of the Fourth Amendment because protecting the nation is somehow more important than protecting the rights of its citizens.

Filed Under: 4th amendment, border patrol, cbp, search