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Posted on Techdirt - 21 July 2017 @ 1:34pm

Court Rejects Cell Site RF Signal Map In Murder Trial Because It's Evidence Of Nothing

from the anything-to-avoid-asking-for-a-warrant dept

The Maryland Court of Special Appeals has handed down a ruling [PDF] on quasi-cell site location info. The evidence offered by the state isn't being so much suppressed as it is being rejected. The information wasn't obtained illegally and no rights were violated. Rather, the court finds the evidence to be questionable, as in "evidence of what, exactly?" [via EvidenceProf Blog]

The defendant in the case is charged with murder. Bashunn Phillips filed a motion to exclude the evidence, which was granted by the lower court. The state appealed. But there's nothing in it for the state.

The "evidence" -- which is going to carry around scare quotes for the remainder of this post -- doesn't tie Phillips to anything. What was submitted isn't even the equivalent of coarse cell site location info. What the state submitted is something that can easily be obtained without a warrant… because it doesn't actually target any person at all.

Phillips filed a motion in limine on August 7, 2015, seeking to exclude the RF signal propagation map and related testimony. Phillips argued that the method used to create the map was not generally accepted as reliable within the relevant scientific community under Maryland’s Frye-Reed test for admissibility of evidence based on novel scientific methodology. Phillips acknowledged that cell phone tower “ping” evidence is admissible, but drew a distinction between the method used to create the RF signal propagation map and the collection of historical cell phone “ping” evidence.

This is an interesting form of evidence -- something that amounts to cell tower hearsay. It's not like it's much trouble to obtain historical cell site data. This can be done without a warrant in Maryland, despite the recent ruling that requires warrants for Stingray deployment. Historical cell site location data is still a third-party record as far as the federal courts are concerned, so good faith, if nothing else, would have salvaged the warrantless harvesting of this data.

For whatever reason, local law enforcement chose to have the FBI perform a "drive test" of cell towers in the area of the criminal activity, ten months after it happened. Perhaps law enforcement wanted to believe this data would indicate something and allowed itself to be persuaded by pitches like this one, from a company that offers "cell site forensics" to law enforcement agencies.

Cell Site Analysis (CSA) the science of reconstructing the physical movements of a mobile telephone or telecommunication device. The evidence produced from such advanced investigations can be especially powerful in attributing contact between individuals, proximity to a scene of crime, patterns of movement of suspects, and testing the strength of alibi evidence.

These assertions are undermined further down the page when the company explains the limits of drive tests:

How accurate is Cell Site Analysis? This is a common question and there is no short answer. A number of factors come into play, including the type of signalling technology used (GSM/UMTS/CDMA), the local topology (man made or natural obstructions), the height of the antennae, type of CDRs available, physical location of other masts, angling of the transceivers, and degree of network activity (other subscribers). In some instances Cell Site Analysis can be accurate to a few metres, or sometimes a few streets (approximately a postcode).

In other words, most likely not all that accurate. Pinning down a historical cell signal based on a 10-month post facto RF analysis is extremely iffy. Being within a few streets of a committed crime proves nothing. Given the number of variables, these tests are perhaps best left to their original purpose: providing cell service providers info on possible dead zones. That doesn't stop Afentis Forensics from wrapping up this paragraph in an overconfident manner.

However, the technique remains an extremely powerful tool to test an alibi, to show that a number of people were together at a certain time, or to highlight the fact that a suspect was at a crime scene.

The defense in this case pointed out drive tests are indicative of nothing:

Phillips maintained that drive tests are routinely performed by cell phone companies to improve coverage and minimize “dropped calls,” but that they are not generally accepted in criminal investigations. Testifying for the defense, William Folson, accepted as an expert witness “in the field of cellular technology and historical cell site analysis” explained that he “consider[s] [drive tests] a waste of time” because “[t]hey add no value to the historical analysis of a cell phone.” He further testified that the manner in which Special Agent Fennern had performed the drive test was not accepted as reliable in the relevant scientific community. Mr. Folson explained that the RF signal range in December 2013 when the murder occurred would be different than the range in October 2014 when the drive test was conducted because the strength of RF signals fluctuate. Because of this, according to Mr. Folson, a drive test is not representative of the strength of the RF signals on any other date. He also pointed out that drive tests were not peer reviewed, accepted by the scientific community, or used in criminal investigations.

It's almost impossible to find a drive test submitted as evidence in a criminal investigation. Granted, a search for this terminology is bound to miss a few cases, especially those behind the US government's PACER paywall, but the lack of hits suggests this "evidence" is very rarely submitted in criminal trials. What can be found suggests the method used by the FBI agent in this case is completely wrong. Ten months after the fact gives you nothing but garbage.

[T]he coverage area of a cell tower should never be part of an analyst's mapping or court presentations unless that information comes directly from the wireless telephone company in the form of a radio propagation map or in some rare cases, in the form of drive testing that occurred contemporaneous to the date and time of the incident.

Apparently, this "evidence" is a bit more popular in Australia. A paper by a legal aid group discusses several problems with using drive tests/RF signal propagation maps as evidence.

Topography, weather, usage load, broadcast wattage, and overlap of cell coverage entail that to go to point A and make test calls now with the result that some or all of those test calls go through a specified sector of a particular base station does not ‘prove’ that at some other earlier time calls from point A went through that same specified sector. At that other time they may have gone through another sector. When a user places a call, the cell phone connects to the cell site with the strongest signal. Indoor or outdoor use of the phone and cell phone orientation to the user’s head can alter the strength of the signal. These are important considerations when attempting to recreate an alleged past event.

In general it is often easier to be more definitive about the converse proposition, namely that from the Cell ID information it is unlikely that the call was made (or received) outside a specified area. Access from the Telcos to propagation prediction modelling (ie for both ‘dominant’ and ‘possible’ coverage of relevant sectors) is helpful but insufficient to be certain about phone location.

In this context of qualified uncertainty, it is highly misleading to infer positive location with the phrase ‘the Cell ID identified with a call is consistent with the call being made in that location.’

In the Maryland case, the state offered up two witnesses to rebut the "this data doesn't prove anything" defense argument.

Providing a different opinion and testifying for the State, Special Agent Fennern was accepted as an “expert in the field of historical cell site analysis, cellular technology, and [] radio frequency drive testing for cell phone mapping.” Agent Fennern opined that factors such as weather only have a “minimal” impact on radio frequency strength. He also testified that, relying on information provided by cell phone companies, the RF signal strength only varied by five or ten percent.

The State also offered the testimony of T-Mobile employee Stephen Willingham, accepted as an expert in radio frequency engineering. He testified that cell phone companies use drive tests for “competitive analysis reasons.” He explained that when a customer complains about a missed call, a cell phone company will use a drive test to attempt to recreate that dropped call to identify a gap in service. Mr. Willingham testified that, over time, radio frequency “[f]ootprints remain consistent as long as nothing major has changed[,]” referring to the physical layout of the cell site, such as antennas and equipment. He stated that the maximum variation he had seen for a footprint was a quarter mile.

Even if all the variables stay the same, the only thing that can truthfully be said is they're possibly accurate within a quarter mile. If that's the case, it's impossible to claim someone was at the scene of a crime using nothing more than an RF propagation map. And, if the arguments made by the defendant are any indication, the state never bothered obtaining or submitting historical cell site location info (the "ping" evidence).

The appeals court agrees with the lower court's opinion: the state can't show anyone has accepted drive tests as a reliable source of evidence in criminal cases.

After determining that the digital forensic science field is the relevant scientific community, the court found that the State’s experts lacked familiarity with that field and were unable to produce studies or peer-reviewed articles in that field supporting the reliability or general acceptance of drive tests for forensic purposes. The court ultimately concluded that the State did not establish that drive tests as used by the FBI are generally accepted in the digital forensic science community. The court then mused that, even if the drive test were considered generally accepted and reliable, the State’s experts were not qualified to testify because they were not members of the digital forensic science community and failed to satisfy the requirement of Maryland Rule 5-702.

This case is exceptionally weird, considering local law enforcement had help from the FBI. Unless the defendant's provider was extremely proactive in scrapping old location data and/or was unresponsive to subpoenas for call records, the state should have had something better than a drive test to place the defendant at the scene. But this is the only evidence the defendant sought to exclude, which suggests other cell records were never introduced. If so, this is a case where law enforcement had several options, but for some reason chose to use the worst one.

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Posted on Techdirt - 21 July 2017 @ 12:02pm

Politician Uses Bad Cyberharassment Law To Shut Down Critic; Critic Hoping To Have Law Struck Down

from the thank-you-for-calling-our-attention-to-this-terrible-law dept

Lots of anti-harassment laws have been written over the years. The creation of these laws has sped up as legislators look to find some way of handling cyberbullying and online harassment. These laws have been uniformly bad. Those that make it to governors' desks are often struck down shortly thereafter by courts.

The problem is legislators try to target certain behavior with these laws, but seldom consider the amount of protected speech that will be caught in the laws' webbing. Or maybe these thoughts never enter the minds of legislators, who tend to write these bills badly and broadly.

We've seen multiple statutes come tumbling down after a Constitutional challenge. Eugene Volokh -- along with Venkat Balasubramani -- is challenging Washington state's harassment law over its stripping of free speech protections.

A Washington state statute criminalizes (among other things) “mak[ing] an electronic communication to … a third party” “with intent to harass, … torment, or embarrass any other person” if the communication is made “[a]nonymously or repeatedly.” This deliberately extends beyond unprotected speech (such as true threats or libel). It deliberately extends beyond unwanted speech said to a particular person and forbids embarrassing speech said about that person. Repeatedly criticizing a politician on your blog, for instance, could send you to jail if a prosecutor and judge or jury concludes that you were intending to “harass,” “torment” or “embarrass.”

There are several problems with the law, not the least of which is its addition of anonymity to the list of criminal stipulation. As Volokh notes, the law could be used to imprison bloggers who repeatedly criticize politicians -- an activity the term "blogging" is pretty much synonymous with.

Raising the challenge is Richard Rynearson, a retired Air Force major who has repeatedly criticized politicians for failing to condemn the 2012 National Defense Authorization Act, which authorizes the indefinite detention of US citizens thanks to our engagement in the Forever War on Terrorism.

And it's no longer a hypothetical question of whether Washington's anti-harassment law can be used to prosecute people for criticizing politicians. There are potential criminal charges awaiting Rynearson, thanks to a local politician's decision to leverage this law against a critic.

Rynearson, of Bainbridge Island, has repeatedly written posts that criticize — but don't threaten — Clarence Moriwaki, a key activist behind the formation of the Bainbridge Island Japanese American Exclusion Memorial, commemorating the World War II internment of Japanese Americans.

He insists that those who condemn the internment should also strongly speak out against the government's indefinite detention powers in the war on terror, but that Moriwaki hasn't.

After Moriwaki obtained a temporary restraining order and filed a police report last spring, saying he was being harassed by incessant text messages and Facebook posts, investigators recommended that Rynearson be charged with cyberstalking.

A deputy prosecutor in Kitsap County suggested in an email to Rynearson's lawyer in that matter the office might file charges if his behavior continued, but he has not been charged.

Volokh and Balasubramani have filed a motion [PDF] asking the court for an immediate injunction preventing the enforcement of the law while it's being challenged in court. Hopefully, this temporary injunction will be followed by a permanent ban on enforcement, because it's an unconstitutional law.

The breadth of the statute extends in several dimensions. First, the intent provision — sweeping in speech that a jury might find was intended to “harass, intimidate, torment, or embarrass any other person” — reaches broadly. The terms “harass, intimidate, torment, or embarrass” are not defined by the statute. The Washington Supreme Court, in a case examining the similarly-worded telephone-harassment statute, has defined “intimidate” to include “compel[ling] to action or inaction (as by threats),” Seattle v. Huff, 767 P.2d 572, 576 (Wash. 1989), but it did not provide a definition for the other proscribed purposes.

When statutory terms are undefined, however, Washington courts generally give them their ordinary meaning, including the dictionary definition. See id. (defining “intimidate” by reference to definition in Webster’s Third New International Dictionary). The dictionary definition of “harass” includes “to vex, trouble, or annoy continually or chronically,” Webster’s Third New International Dictionary, Unabridged (online ed. 2017), and the meaning of “torment” includes “to cause worry or vexation to,” id. Finally, “embarrass” means “to cause to experience a state of self-conscious distress.” Id. As a result, even public criticisms of public figures and public officials could be subject to criminal prosecution and punishment if they are seen as intended to persistently “vex” or “annoy” those public figures, or to embarrass or make them “self-conscious” about something.

The granting of a temporary injunction rests on the plaintiff's ability to prove he's being harmed. To date, Rynearson hasn't been arrested, but the local prosecutors have refused to say whether they're taking any action or are dropping the complaint against the blogger. So, it's not a case of hypotheticals. Others criticized by Rynearson could file similar complaints under the harassment law, hoping to nudge prosecutors towards bringing criminal charges.

The permaban, however, hinges on the First Amendment. Given the language used in the law, it certainly doesn't appear the statute can be read to steer clear of infringements on protected speech. This law was passed in 2004, but no one felt like abusing it to silence criticism until just recently. Now, the law will finally be examined by a federal court where it's unlikely to withstand Constitutional scrutiny.

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Posted on Techdirt - 21 July 2017 @ 9:27am

Judge Dumps Stupid Libel Suit Featuring A Man Suing A Third Party For Things A Journalist Said

from the no-band-aids-for-bruised-feelings dept

It only took a month for a court to dump a bogus defamation suit brought by someone who sued one person for things someone else said. Jim Myers wrote an article for The Tennessean discussing changes made to a culinary arts program. The former director of the program -- Thomas Loftis -- didn't like characterizations made in the article. For reasons known only to him and his lawyers, Loftis sued the new director of the culinary arts program, rather than the columnist or the paper that published his article.

The lawsuit is now dead, thanks to a swift, verbal ruling by the presiding judge. Following a couple of complaints and motions to dismiss, attorney Daniel Horowitz has secured a win for his client.

In his verbal ruling from the bench dismissing the lawsuit against Mr. Rayburn, Judge Jones noted that under Tennessee law, an allegedly defamatory statement must “be read as a person of ordinary intelligence would understand it in light of the surrounding circumstances.” Judge Jones also observed that whether a statement is capable of being understood as defamatory “is a question of law to be determined by the court.” Finding that Mr. Loftis’s Complaint could not satisfy these basic standards even at the motion to dismiss stage, Judge Jones dismissed Mr. Loftis’s lawsuit with prejudice and assessed him the costs of the litigation.

The only thing going for Loftis is the swift dismissal, which means he won't be out much in terms of legal fees. Whatever Loftis did end up paying for his own counsel can hardly be considered money well-spent. His lawsuit seemed to be motivated out of professional jealousy, rather than any sincere belief his reputation had been harmed. But that sort of personal issue shouldn't be allowed to make its way into court:

The legal system should not be used to litigate hurt feelings or to deter people from speaking to the media.

Despite multiple rewrites, Loftis' lawsuit never managed to tie the defendant -- the new arts director the Tennessean columnist considered to be a huge improvement over his predecessor -- to any actual defamation, much less any disparaging words that actually came out of the new culinary director's mouth.

The reply motion [PDF] by Rayburn is worth a read, simply because it hammers home just how objectively terrible this lawsuit is. Fortunately, the plaintiff wasn't given much of a chance to annoy the target of his bogus suit and certainly won't be leaving him in a worse financial situation.

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Posted on Techdirt - 20 July 2017 @ 6:30pm

Freedom Of Information Lawsuit Results In NYPD Agreeing To Follow FOI Law

from the lol-'law-enforcers' dept

If you need any more proof the NYPD hates transparency, you need look no further than Keegan Stephan's victory in a Freedom of Information Law (FOIL) lawsuit:

If you can't see the tweet, it says:

Big win! To settle my lawsuit, NYPD has agreed to comply with critical component of NY Freedom of Information law

This is what we measure success with when it comes to FOIL and the NYPD: a victory is the department AGREEING TO FOLLOW THE LAW.

Stephan has been seeking information on the department's use of a sound cannon for crowd control. The NYPD, of course, had no interest in releasing these records. Central to the settlement is the department agreeing to accept FOI requests by email, something it's supposed to have been doing for more than a decade.

The man, Keegan Stephan, said in the suit that the department failed to justify withholding the records he requested and that a “policy and practice” not to accept or respond to Freedom of Information requests by email violated a 2006 provision of New York State law. Mr. Stephan also argued that by not allowing email requests, the police had increased “the time, effort, and expense involved” in obtaining records.

The department's settlement contains no admission of wrongdoing -- something common to government lawsuit settlements. This means it will accept zero responsibility for a decade-long run of FOI statute violations.

The "new" email request system will aid more New Yorkers in having their requests ignored by the NYPD. The NYPD's future use of email for FOI responses will ensure requesters are informed of denials in a much speedier fashion. The portal the NYPD is setting up on its website will provide instructions for requesters, as well as information on how to challenge denials and non-responses. If nothing else, the NYPD will be forced to follow the letter of the law a bit more closely, but it will take far more than a steady stream of FOI lawsuits for it to approach the law's spirit.

The NYPD has made a opacity a cottage industry. It has been dubbed the least responsive government agency in the US, worse than the CIA, FBI and NSA. It has developed an in-house classification system that allows pretty much anyone to designate almost any document "top secret" for almost any reason, and reached its nadir when it refused to release a copy of its FOIL response guidelines to a FOIL requester.

But this is an ugly victory -- one that should subject the department to a steady stream of ridicule. It takes a lawsuit to make a law enforcement agency follow the law. That's just depressing.

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Posted on Techdirt - 20 July 2017 @ 3:40pm

Massachusetts Lawmaker Wants To Make It A Felony To Have Secret Compartments In Your Car

from the big-problems,-small-minds dept

A Massachusetts lawmaker is looking to give law enforcement another way to bust people and seize vehicles. Modify a vehicle you own in a certain way and you can expect to never see that vehicle again.

Blame it on the war on drugs and pressure from law enforcement lobbying. Stephan Hay, a Democrat state representative for Fitchburg, has introduced a bill that would criminalize operating a vehicle with a hidden compartment designed for the purpose of secretly transporting drugs and related contraband, equipment, currency, or weapons.

The bill, H.1266, separately criminalizes the process of altering a vehicle with the intent of creating such hidden compartments. In each case the bill calls for a two-year mandatory minimum sentence, five years for subsequent offenses. The bill also allows police to seize the modified vehicle.

Notably, the bill wouldn't limit "secret compartment" busts to those containing contraband. The presence of an aftermarket "concealed storage space" is enough to trigger an arrest and seizure. The state would have to prove there was intent to use the compartment to store contraband, but the wording in the bill [PDF] flips the burden of proof when it comes to the vehicle itself.

Proof that a conveyance contains a hidden compartment as defined in this section shall be prima facie evidence that the conveyance was used intended for use in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances.

As Reason's Scott Shackford points out, Massachusetts already has the worst forfeiture laws in the nation. This built-in presumption of guilt only makes this worse. Defendants will start out in the hole, asked to prove a negative simply to have a small shot at recovering their seized vehicle. Unknowingly purchase someone's drug-running vehicle? It's as good as gone if the police discover any secret compartments. Seeing as criminal charges would result in something more aligned with due process, it will come as zero surprise if the law is used to seize vehicles but leave prima facie "drug traffickers" otherwise unharmed.

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Posted on Techdirt - 20 July 2017 @ 9:26am

Prosecutors Say Subpoenas Will Be Used For Serious Crimes Against Children, Use Them For Everything Else

from the flexible-definitions-and-malleable-purposes dept

It's always been true: if you give a government agency increased powers for a limited purpose, the limitations and the purpose will soon be shrugged off. The ACLU of Massachusetts is trying to get some prosecutorial power reeled back in, thanks to administrative subpoena mission creep.

When prosecutors first pushed for the power to seize telephone and Internet records themselves, bypassing the need for a judge to approve a warrant, they argued the power was necessary to help them quickly track down missing children and sexual predators.

But records obtained by the American Civil Liberties Union show prosecutors have used that significant subpoena power hundreds of times a year in routine investigations related to larceny, check fraud, assault, and other common crimes.


In one case cited by the [ACLU], Suffolk District Attorney Daniel F. Conley issued a subpoena in 2011 to find the subscriber information for several Twitter handles and for anyone who used the hashtag #BostonPD after the police removed an Occupy Boston encampment in Dewey Square.

It is the same here as it is with everything else. Stingrays were supposed to be counterterrorism devices, what with them being repurposed war gear. But then it was homicides. Then drug dealers. Then pretty much anyone cops wanted to locate, even if all they'd done was steal $60 of fast food.

Likewise, National Security Letters. The clue is in the name. Maybe they're only being used for national security purposes, but if so, America is under constant threat from prolific terrorists. The FBI issues thousands of these a year. And we know very little about the underlying crimes, thanks to indefinite gag orders and loads of government court filings still under seal.

The subpoenas discussed here are also administrative. This means prosecutors write the paperwork themselves and run it past no one before serving it to internet service providers and phone companies. They also do this thousands of times a year.

Four other district attorneys disclosed a limited amount of data. But Healey and Middlesex District Attorney Marian T. Ryan turned over a large trove of information that revealed how frequently the subpoenas are used. Ryan’s office said it issued more than 2,400 over the last three years, while Healey’s office said it sent more than 1,200 during the period.


District Attorney Michael O’Keefe of the Cape and Islands, who issued 450 subpoenas over the last three years...

All for serious crimes, right?

Ryan’s office said the subpoenas were used to investigate crimes ranging from annoying calls and destruction of property to stabbing and rape of a child.

This isn't just irritating the ACLU. It's also irritating legislators who felt they were misled by prosecutors during the push for expanded power. Senator Cynthia Creem says prosecutors said it would be used to tackle crimes against children. Instead, the subpoenas are being used to handle almost any criminal activity. In response to this prosecutorial abuse of a legislated privilege, Creem is now attempting a claw-back.

Creem has filed a bill that would limit the use of administrative subpoenas to certain crimes against children and require prosecutors to report how many subpoenas they issue, the types of investigations involved, and whether they led to charges and convictions. The bill would also require prosecutors, at the close of an investigation, to inform the customers whose telephone and internet logs were seized.

Undoubtedly, this bill will face stiff resistance from prosecutors who've become accustomed to getting everything they want exactly when they want it. It's pretty difficult to convince investigators they don't need this, even though they apparently had no problem closing investigations prior to the law's passage in 2008.

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Posted on Techdirt - 20 July 2017 @ 3:16am

DOJ Boss Promises The Return Of Everything That Didn't Work During The Last 40 Years Of Drug Warring

from the throwback-Thursday-now-24/7 dept

Attorney General Jeff Sessions isn't much interested in the "justice" side of the Department of Justice. Instead, it appears he'd like to throw on his letterman's jacket and head back to his glory days as a hard-nosed, 1980s-vintage drug warrior. Things were better when Sessions was a federal prosecutor in Alabama, ringing up drug convictions at a rate four times the national average.

The word "reactionary" is thrown around a lot when describing Trump and his cabinet. But in Sessions' case, the term fits. Violent crimes rates have fallen steadily since the mid-1990s. Meanwhile, drug prices have dropped and purity has increased, despite four decades of harsh enforcement and trillions of dollars being thrown at the problem. Devil weed -- gateway drug and longtime conspirator in the violation of American women by filthy non-whites -- is now a socially and medically-accepted drug, legal in several states.

But there are violent crime increases in a few major cities. He's not sure what's to blame for this potential historical blip, but he has several theories. It might be soft-on-drugs Obama-era policies embraced by his predecessor's DOJ. It might be a lack of respect for law enforcement, which Sessions feels is a failure of the American public, rather than the failures of those who serve them. It might be rambunctious legislators scaling back asset forfeiture all over the country. Whatever it is, the current course needs to be reversed and the policies that failed for multiple decades be allowed to fail again.

Where else would Sessions espouse his "brave new old world" plan than standing over the desiccated corpse of a federally-funded program that did fuck all to curb drug use by teens and tweens: the 30th D.A.R.E. (Drug Abuse Resistance Education) Training Conference.

We were in the beginning of this fight, in 1983, when DARE was founded in Los Angeles. I believe that DARE was instrumental to our success by educating children on the dangers of drug use. I firmly believe that you have saved lives. And I want to say thank you for that. Whenever I ask adults around age 30 about prevention, they always mention the DARE program. Your efforts work. Lives and futures are saved.

Sessions can believe anything he wants about the DARE program, but the fact is it had almost zero impact on reducing drug use by children. Multiple studies of the program suggest zero impact is the best possible outcome. At worst, the program was viewed as ridiculous by students and actually introduced them to substances they weren't previously aware of. It often inspired curiosity. It rarely inspired lifelong abstinence.

But Sessions wants a bigger, better drug war -- one not constrained by logic, compassion, or mountains of evidence showing the war has been a catastrophic failure. Sessions hints we need more violence from our law enforcers because drug dealers are violent.

We know drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun. There is no doubt that violence tends to rise with increased drug dealing.

As Scott Greenfield pointed out, if drugs were legal, you could file a lawsuit to recover debts -- a process far less likely to result in dead bodies.

Stats are spun to fit the narrative:

Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016. Violent crime—which had been decreasing for two decades—suddenly went up again. Two years after this policy change, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

And yet, the violent crime rate remains at historic lows. Sessions sees a spike as a trend even though the numbers don't agree with him. In another speech, he specifies which year he's referring to:

In 2015, we as a nation suffered the largest single-year increase in the violent crime rate since 1991, and the largest jump in the murder rate since 1968.

But even the FBI can't buttress the AG's dark narrative.

According to the report, there were an estimated 1,197,704 violent crimes committed around the nation. While that was an increase from 2014 figures, the 2015 violent crime total was 0.7 percent lower than the 2011 level and 16.5 percent below the 2006 level.

The Sessions Drug War Wagon plows on, focused on preaching to the converted and riling up the most ignorant legislators and voters. At event after event, Sessions does everything but hand out laced Kool Aid and visions of a heavily-policed afterlife. Facts are out; verbal y-axis distortions are in.

The preliminary data for the first half of 2016 showed further increases, with large cities seeing an average increase in murders of nearly 22 percent compared with the same period the year before.

This spike in violent crime is not happening in every neighborhood or city. But the trend is real and should concern us all. It must not continue.

A spike is a trend in the eyes of AG Sessions, whose narrative conflicts with the FBI's findings. This is a spike -- compared year-to-year -- but one that can't even bring crime levels back to where they were a decade ago, much less the sky-high rates of the 80s and 90s when Sessions was prosecuting the hell out of Alabama.

Hence the return of asset forfeiture, presumably with enough force to overcome legislative resistance. From the same speech to the National District Attorneys Association:

In addition, we hope to issue this week a new directive on asset forfeiture—especially for drug traffickers. With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners.

Sessions mentions criminals, but criminal charges have never been an integral part of the forfeiture process. The government likes taking stuff, but has less of an interest in proving the property owner is actually a criminal.

A new era of punitive justice is upon us. One that prefers prosecutions to prevention and harsh sentences to deterrents less likely to permanently ruin someone's life.

I recently sent out my directive on charging and sentencing. It is sound law and policy. Assistant U.S. Attorneys will simply be expected to charge the most serious readily provable offense. If that would be unjust, prosecutors can seek a waiver approval from a designated supervisor without Washington.

In short, we have ended the policies that handcuffed our federal prosecutors.

There will apparently be enough handcuffs for everyone else.

This is a frustrating turn of events. The new DOJ will elevate law enforcement officers and prosecutors above the people they serve. Everything that didn't work for three decades straight will be making a comeback. And if that fails to turn things around, I'm guessing it will be blamed on the media, anti-police sentiment, or whatever convenient scapegoat happens to be on hand when the blowback begins.

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Posted on Techdirt - 19 July 2017 @ 6:39pm

Connecticut Latest State To Add A Conviction Requirement To Its Forfeiture Laws

from the turning-tide dept

Civil asset forfeiture continues to be curbed by legislatures around the country. Belatedly realizing the harm done to citizens by opportunistic law enforcement, lawmakers have been engaged in serious reform efforts over the past few years. Some have fallen apart on the way to approval, thanks to harmful concessions to powerful law enforcement lobbies. Other have made it through intact, potentially ending years of abuse.

Thirteen states have already added conviction requirements for forfeitures, all but eliminating the "civil" process that cuts property owners out almost completely. Connecticut has just become the fourteenth.

Late yesterday, Connecticut Gov. Dannel Malloy signed HB 7146, which will require a criminal conviction to permanently confiscate property. Unlike criminal forfeiture, which targets the property owner and occurs only after a conviction, civil forfeiture sues the property itself and allows the government to permanently keep property without charging anyone with a crime.

HB 7146 will split the difference by requiring a conviction in criminal court as a prerequisite to a Connecticut state’s attorney litigating the forfeiture in civil court. The bill previously passed the House and the Senate without a single vote cast against it.

Making the law even better is the government being unable to seize anything without an accompanying arrest. From there, it must obtain a conviction to guarantee its control of the property. It must present evidence the property was used in a crime or was the proceeds of a crime, regardless of the conviction. If it can't prove this, or the arrest fails to result in a criminal conviction, the state must return the property within 14 days. This saves citizens the trouble and expense of having to litigate the return of seized property.

On the downside, the law still allows law enforcement agencies to directly profit from forfeitures, giving them control of 70% of the proceeds with minimal oversight. This increases the risk of people having the book thrown at them in court to ensure prosecutors walk away with at least a plea deal, when there's money/property on the line.

But it is a major improvement over the state's original statutes, which had resulted in 2/3 of the state's proceedings against "guilty" property being completely untied from any arrests or convictions of property owners.

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Posted on Techdirt - 19 July 2017 @ 3:31pm

Oversight Board Finds NYPD Officers Still Violating Citizens' Right To Film Police

from the NYPD:-any-and-all-cameras-should-be-aimed-at-'civilians' dept

The New York Civilian Complaint Review Board has just released a report [PDF] indicating NYPD officers are slow learners when it comes to recognizing citizens' right to record police officers. It's not that these officers have never been told. They have. The NYPD's "Finest Order" was handed down in 2014, telling officers citizens had a First Amendment right to film police. It's a response to a 2012 order by the Washington DC PD and a First Amendment lawsuit filed that year. It followed this up with internal policy changes two years later. And yet, problems persist.

In the three-year period from January 1, 2014 through December 31, 2016, the CCRB closed 257 complaints in which civilians reported that officers had interfered with their ability to record police activity. This police interference included, but was not limited to, officers instructing civilians to stop recording, searching civilians‘ phones for recordings of activity, deleting such footage, and damaging recording devices.

In fact, those with the most time on the job seem to have the greatest difficulty following instructions and policy changes.

Eighty-four percent of the officers named in interference-related allegations (180 subject officers) had more than two years on the force at the time the alleged incidents occurred. Of those, 53 percent (113 subject officers) had between three and 10 years on the force when they were alleged to have interfered with civilian recordings and the remaining 31 percent (67 subject officers) had more than 10 years on the force.

The NYPD "Finest Message" on recording distinctly notes what officers aren't supposed to do when encountering a citizen photographer:

Recognizing the affirmative right to record police action, UNDER NO CIRCUMSTANCES should a Member of the Service:

Threaten, intimidate, or otherwise discourage an observer from recording the police officer’s activities, assuming the observer is at a safe distance;

Intentionally block or obstruct cameras or other recording devices when there is no legitimate law enforcement reason to do so; or

Delete any pictures or videos from the observer’s camera, or order observer to delete such pictures or recordings.

But these orders were violated repeatedly. The most common excuse for violations was the officer didn't remember doing it or denied the violation had occurred.

NYPD officers who violate citizens' First Amendment rights do this in several ways. Intimidation is one tactic used to shut down recordings:

The CCRB also received multiple complaints of police officers pointing flashlights at civilians‘ recording devices to impede their ability to record. In one such case, the CCRB substantiated an interference allegation by a civilian and his wife who were walking down the street when they observed a police officer making an arrest. The civilian began taking photos of the arrest on his iPad and was instructed by the officer to stop taking photographs and to step back. The civilian stepped back but maintained that he had a First Amendment right to photograph the arrest. The officer then shone a flashlight at the iPad. The CCRB substantiated an interference allegation against the officer based on photographic evidence and the consistent testimony of the civilian witnesses.

In a similar 2015 case, an officer stopped a group of individuals suspected of fighting and gun possession. When a third party civilian began to record the stop, an officer turned and pointed a flashlight towards the civilian‘s camera for nearly three and a half minutes. In that case, the interfering officer never issued any commands toward the recording civilian and the Board substantiated the interference allegation.


Other forms of intimidation were more severe. In a 2015 case, a civilian called 911 after he was assaulted at a bar. Officers responded and the civilian became angry when officers could not find the assailant. After a heated verbal exchange, the responding officers told the civilian that he would be arrested if he did not leave the location. The officers then went back to their marked police vehicle to prepare their complaint paperwork, at which time the civilian stood in front of the vehicle and attempted to take a photograph of the officers‘ license plate. At that point, the officer in the driver‘s seat drove the vehicle toward the civilian and stopped within inches of his body before driving away. Finding that the video evidence proved that the officer intentionally drove the police vehicle towards the civilian in a threatening manner and with the intention of preventing him from taking a photo of the license plate, the CCRB substantiated allegations against the officer for interfering with the civilian‘s recording, and for threatening him with the use of physical force.

NYPD officers also illegally seized and searched cellphones while being filmed by citizens. Multiple confirmed allegations show officers took phones with the intent of accessing, if not deleting, recorded footage. The CCRB notes it's very difficult to substantiate claims of deleted footage thanks to the inherent nature of the violation. It's tough to prove a recording existed prior to an alleged deletion when recordings that survive officers' deletion attempts usually absolves them of attempted deletion allegations.

But searches/seizures with the intent of deleting recordings is actually the more subtle of the NYPD's anti-photography tactics.

Substantiated instances of damage or destruction of recording devices can be proven by video evidence from sources other than the recording civilian. In one incident, surveillance cameras captured officers physically grabbing a civilian‘s body as he began recording their stop and questioning of a woman on a sidewalk. After officers arrested the civilian, placed him in their patrol car, and began driving away, surveillance video captured one officer throwing his cell phone out of the car window. The phone landed on the sidewalk. The civilian was charged with Obstructing Governmental Administration, Disorderly Conduct and Resisting Arrest, but these charges were all eventually dismissed.

Some cops do this repeatedly:

In a 2014 incident, the officer‘s interference and destruction of a cell phone occurred simultaneously. The complainant sat in his car with two friends when officers approached him, told him the car smelled like marijuana, and asked him if he had been smoking it. When the complainant said no, officers removed the occupants from the car, frisked and searched them all, and then allowed them to return to the car. When an officer walked to the vehicle to return the complainant‘s identification, the complainant alleged that the officer saw his phone resting on his arm, assumed he was recording, grabbed his phone from his hand, and threw the phone to the ground, stomping on it. The officer then forcefully arrested the complainant. The CCRB found that the officer lacked credibility given three prior complaints of the same officer destroying civilian cell phones, and substantiated misconduct.

But the worse thing some NYPD officers do is shut down recordings with bullshit arrests, because it's always best to follow up a First Amendment violation with a severe curtailment of literal freedom:

In a 2014 incident, for example, a civilian began audio-recording an officer‘s stop of the civilian‘s friends. The officer grabbed the audio-recorder from the civilian‘s shirt pocket, then issued him a summons for possession of a box cutter under a section of the New York City Administrative Code that prohibits minors from possessing box cutters. The complainant was over 50 years old and clearly could not be mistaken for a minor and the CCRB substantiated the improper issuance of a summons.

The CCRB recommends more training, which is really all it can do. Officers have had close to three years to adjust to the constraints of the 2014 Finest Message, but it appears several officers still make up their own rules during encounters with citizen photographers. It's unrealistic to expect the number of violations to hit zero, but some disciplinary changes need to be made if these policies are going to have much effect on officer behavior. Otherwise, the same officers will keep deploying the same tactics and hoping citizens don't complain or the CCRB doesn't have enough to work with to substantiate the allegations.

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Posted on Techdirt - 19 July 2017 @ 9:24am

DHS Confirms There Will Be More And Greater Intrusiveness During Border Searches

from the welcome-to-America,-land-of-the-heavily-surveilled dept

DHS boss John Kelly continues to push for ultimate government intrusiveness, whether at the borders where the CBP will handle the getting all up in your everything, or at airports, where the TSA will examine the hell out of travelers' electronics while overlooking explosives, guns, and other more dangerous contraband.

The DHS is no longer perched atop a slippery slope. It's enthusiastically sliding down it with both hands in the air. The Center for Democracy and Technology asked the DHS the same questions a few legislators have: what are you doing to protect the rights of US citizens at the border? The answer, in the form of a noncommittal letter, is an official shrug of indifference.

Back in March, CDT, along with more than 50 other civil society groups and trade associations, wrote a letter to Department of Homeland Security Secretary John Kelly urging that he back away from DHS proposals to use border searches as a tool to collect passwords and other social media information. Today we received a response. Unfortunately, the reply largely ducks our concerns, ignoring the main issues at play and doing little to shed light on the government’s plans or put to rest controversy about its contentious proposal. This non-answer is deeply troubling because it seems to indicate that Customs and Border Protection (CBP, which is a sub agency of DHS) is doing nothing to change course from a recent, dangerous trend: the use of the U.S. border as a tool to conduct broad surveillance.

The letter [PDF] from the DHS explains almost nothing, while assuring CDT all of this is completely above board. But, as Chris Calabrese of CDT points out, we've come a long way from physical strip searches. Searches of travelers' electronic devices are far more intrusive. And yet, the DHS still seems to feel device searches are no different than taking a look in a vehicle's trunk or opening up a suitcase. Check out the spin job being done here: intrusive device searches are just a team effort on behalf of America and Americans should just be more willing to pitch in.

All items entering the country are subject to inspection, and CBP may seek the traveler's assistance in presenting his or her effects including electronic devices in a condition that allows inspection of the item and its contents. This inspection may include searching computers, disks, drives, tapes, mobile phones, and other communication devices, cameras, music and other media players, and any other electronic or digital devices. In instances where an electronic device, or portions of the content on the device, are locked or password-protected or otherwise not readily available for inspection, CBP may take Iawful measures, as appropriate, to inspect the device and its contents consistent with longstanding authority to perform border searches. These practices are consistent with various laws authorizing searches and detention…

The DHS has reduced "exposing your entire digital life" to "presenting effects." This isn't an answer to CDT's queries. It's just propaganda.

The DHS also unhelpfully points to a 2009 Privacy Impact Assessment, which covers the search of electronic devices at the border. Again, this does little more than inform readers many of their rights are gone and won't be coming back. After spending several pages saying DHS/CBP will do all it can to minimize intrusion, protect harvested data/communications, and require badges and such to prevent unlawful access to seized digital goods, the report closes with the sheet handed to travelers when their devices have been taken by CBP officers. It states, in plain English, that CBP officers can perform suspicionless searches of electronics and hope it morphs into a justified search by the time the CBP is done searching them.

CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if there is no probable cause to seize information after review, CBP will not retain any copies.

As Calabrese points out, none of this seems likely to make the nation safer, much less minimize Constitutional violations.

As we told DHS back in March, the practical result is that border crossing will require full digital disclosure – exposing not just our personal information but also the tools we use to bank, communicate, and participate in our digital lives. This will not just infringe on free expression and privacy, but will also expose our personal information to the federal government who has a terrible track record of keeping such information safe. Ironically, it’s unlikely to have any security value, since bad actors conceal their accounts and the government drowns in information from innocent people.

The DHS has no answers. Things will get worse and are unlikely to get better. It's easy for government power to expand but almost impossible for it to retract. Since terrorism will always exist in one form or another, the government will always be able to justify mission creep and the further diminishment of civil liberties.

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Posted on Techdirt - 19 July 2017 @ 3:20am

Researchers Say Chinese Government Now Censoring Images In One-To-One Chat

from the shot-spotters dept

It looks like China is continuing to set the gold standard for internet censorship. For a long time, the Great Firewall has been actively censoring content based on keywords. Activists and dissidents have worked around this filtering by placing text in images, but that doesn't appear to be working nearly as well as it used to.

Toronto's Citizen Lab noticed some unusual things happening in days surrounding the death of China's only Nobel Peace Prize winner (and longtime political prisoner), Liu Xiaobo.

On WeChat, we collected keywords that trigger message censorship related to Liu Xiaobo before and after his death. Before his death, messages were blocked that contained his name in combination with other words, for example those related to his medical treatment or requests to receive care abroad. However, after his death, we found that simply including his name was enough to trigger blocking of messages, in English and both simplified and traditional Chinese. In other words, WeChat issued a blanket ban on his name after his death, greatly expanding the scope of censorship.

We documented censorship of images related to Liu on WeChat after his death, and for the first time found images blocked in one-to-one chat. We also found images blocked in group chat and WeChat Moments (a feature that resembles Facebook’s Timeline where users can share updates, upload images, and short videos or articles with their friends), before and after his death.

China has tackled image censorship before, but it hasn't been able to achieve this in one-to-one chat until now. And it's being done stealthily to prevent senders or receivers from knowing their images have been blocked.

Similar to keyword-based filtering, censorship of images is only enabled for users with accounts registered to mainland China phone numbers. The filtering is also not transparent. No notice is given to a user if the picture they sent is blocked. Censorship of an image is concealed from the user who posted the censored image.

The censorship is only apparent to international users without registered Chinese phone numbers. And, like most blanket censorship efforts, it's far from perfect.

The exact mechanism that WeChat uses to determine which images to filter is unclear and in our testing sample we found unexpected results. Blocked images included screenshots of official government statements on Liu Xiaobo’s death, which we did not expect to be censored. We also found images that were not blocked that could be seen as sensitive, such as an image of book covers of “Charter 08” and a Biography of Liu Xiaobo, which are both banned in mainland China.

As Citizen Lab points out, this censorship effort is especially concerning, as it indicates the Chinese government is possibly in the business of internet-enabled retroactive amnesia. If it leaves the filtering in place long enough and censors enough websites and personal chats, the history of Liu Xiaobo will be slowly rewritten with narratives approved by the Chinese government.

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Posted on Techdirt - 18 July 2017 @ 11:51am

Appeals Court Agrees Government Can Tell NSL Recipients To STFU Indefinitely

from the cram-that-in-your-gag-hole,-transparency-activists dept

The Ninth Circuit Court of Appeals has just handed down a terrible decision in a fight against National Security Letter gag orders. The EFF has been working with plaintiffs Cloudflare and Credo Mobile to have these indefinite gag orders found unconstitutional.

Unfortunately, there's still nothing hopeful on the horizon in terms of government transparency. The Appeals Court has upheld the lower court's decision, finding this form of prior restraint somehow Constitutional. From the decision [PDF]:

The panel held that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny. The panel further held that, assuming the nondisclosure requirement was the type of prior restraint for which the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965) were required, the National Security Letters law provided those safeguards. The panel concluded that the nondisclosure requirement does not run afoul of the First Amendment.

The panel notes the statutory framework for NSLs allows the government to ask for secrecy for an indefinite period of time to ensure investigations aren't interfered with or suspects prematurely notified of the government's interest in their activities. The statutes say the government "may" ask for secrecy. However, the FBI -- in the thousands of NSLs it issues every year -- reads this as "will." No one receives an NSL without a gag order attached.

Challenging gag orders is easier than it used to be, but it's still far from ideal. Rather than limited-time gag orders or stiffer requirements for the FBI to meet before deploying them, recipients have been given modestly-improved avenues of recourse. That may help going forward, but it's doing very little to address NSLs/gag orders sent out before the USA Freedom Act reforms in 2015. Old NSL gag orders are still mostly unassailable. At the center of this case are NSLs dating back to 2011 and 2012. For reasons only known to the government, these half-decade-old gag orders are still in place.

The court recognizes gag orders are content-based restrictions of speech. This means the government has to hit a higher bar to justify this control of citizens' speech. But the Appeals Court agrees with the lower court: to meet this high bar, the government just needs to deploy national security mantras.

As a threshold matter, we readily conclude that national security is a compelling government interest. Indeed, the Court has recognized that “[e]veryone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.” “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”

By the same token, keeping sensitive information confidential in order to protect national security is a compelling government interest. See Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988) (recognizing “the Government’s compelling interest in withholding national security information from unauthorized persons in the course of executive business” (internal quotation marks omitted)); Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (“The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.”).

The plaintiffs pointed out that while the USA Freedom Act gave them new tools to challenge NSL gag orders, it also lowered the standards governing the attaching of gag orders. Instead of nondisclosure demands being approved only by the FBI Director, any number of designees could perform approvals. The court responds by saying "Trust the FBI."

[T]he new 2015 provision allowing disclosures to “other persons as permitted by the [FBI] Director” or the Director’s designee, id. § 2709(c)(2)(A)(iii), merely provides the FBI with more flexibility to tailor the scope of the nondisclosure provision. We reject the recipients’ argument that this provision gives the government unfettered discretion and therefore creates a system of insufficiently cabined prior restraints. Even if the NSL law is determined to be the type of regulation for which procedural safeguards are required (see section V, infra), the law as a whole imposes narrow, objective, and definite standards on the government before it can issue a nondisclosure requirement…

The fact that the statute also gives the FBI Director or a designee discretion to make additional exceptions to the nondisclosure requirement does not lessen the adequacy of the clear standards imposed on these officials before issuing a nondisclosure requirement in the first place.

The court also says this isn't a case of prior restraint, even though each NSL arrives with some legal language preventing recipients from even acknowledging the NSL's existence. The panel declares NSL recipients have no "intent" to speak, so telling them not to talk somehow doesn't damage their First Amendment rights.

[N]SL law prohibits the disclosure of a single, specific piece of information that was generated by the government: the fact that the government has requested information to assist in an investigation addressing sensitive national security concerns, i.e., “to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b)(1). As the Second Circuit noted, “[u]nlike an exhibitor of movies,” the recipient of a nondisclosure requirement “did not intend to speak and was not subject to any administrative restraint on speaking prior to the Government’s issuance of an NSL.”

So, I guess it's not prior restraint because companies could talk vaguely and non-specifically about NSLs they might receive, but aren't allowed to talk about any NSLs they have received until the government says it's ok. Seems legit.

The next step for the EFF and a number of NSL recipients is the Supreme Court. Given the ongoing deference to anything national security-related, it would be a surprise if the nation's top court reversed two lower court decisions. It may decide it's not even worth reviewing if petitioned. As it stands now, the government can demand indefinite silence from service providers thousands of times a year… all supposedly without violating the Constitution.

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Posted on Techdirt - 18 July 2017 @ 9:24am

DOJ Tells Court There No Need To Establish A Warrant Requirement For Stingray Devices

from the not-now,-not-ever,-no-matter-what-our-internal-rules-say dept

The DOJ is in court arguing the use of Stingray devices by the FBI and local cops shouldn't require a warrant. The government's lawyers are fighting a suppression motion by Purvis Ellis, charged with racketeering and the attempted murder of a police officer.

The events of the case happened in 2013, two years before the DOJ instructed federal agents to seek warrants when deploying Stingrays. For this investigation, the Oakland PD used a pen register order, as was the style at the time. (And perhaps still is. Despite the DOJ's internal instructions, warrant requirements are all but nonexistent when it comes to local law enforcement agencies' use of cell tower spoofers.)

As Cyrus Farivar points out, the PD's Stingray couldn't locate Ellis, so it brought in the FBI. All without warrants and all without informing the defense about the additional Stingray deployment.

Ellis was located in an East Oakland apartment several hours after a January 2013 shooting with the help of two stingrays. Prosecutors initially insisted that only one stingray was used, but, as was revealed last summer, that turned out not to be the case. The Oakland Police Department's own stingray was seemingly insufficient, so officers then called in the FBI, both times without a warrant.

The defendant is arguing the multiple warrantless Stingray deployments violated the Fourth Amendment. Considering the devices coax a location signal out of phones by aping cell towers, this differentiates Stingrays from more passive collections -- like the pen register the government didn't actually use.

The government, quite obviously, is arguing otherwise. It points out in its opposition motion [PDF] that it has all the warrant exceptions on its side:

Four gang members ambushed a young man in broad daylight, shooting him through the forehead from close range. The next day, those same men jumped, pistol-whipped and shot a police officer investigating the prior day’s shooting. The suspects then fled, armed with their own arsenal, as well as with the guns they had just stolen from the officer. Police surrounded the apartment complex where the men were thought to be hiding. Finding them quickly was essential. By shooting two people in a 27-hour period, the suspects – including the defendant Purvis Ellis – had just demonstrated an ability and willingness to kill others. So, when officers used a cell site simulator (“CSS”) to find Ellis, they were entirely justified by the exigent circumstances presented, rightly believing him to be armed and dangerous.

The defendant’s motion to suppress is meritless. The courts have not definitively decided whether use of a CSS constitutes a “search” triggering Fourth Amendment protections. But it largely does not matter here, since exigent circumstances amply supported a warrantless use of the device.


Other exceptions to the warrant requirement also cut against suppressing evidence. For instance, the officers acted in good faith reliance on established law – the pen register statute, Supreme Court precedent, even the FBI policy at the time. Those laws and policies, combined with the dearth of binding case law on the CSS, all justified using the device without a warrant. In addition, the officers would have inevitably discovered everything they ultimately did, even had they never used the CSS. After all, they had the building surrounded by dozens of officers and SWAT team members hours before the CSS was even deployed.

It's a long list of counterarguments, most of which have some validity in this particular case. (That, of course, doesn't stop the government from using the same arguments in cases where its assertions of good faith, exigency, etc. are far more questionable. But that's how lawyering works… on both sides.)

It appears the government would rather the court didn't make a determination as to whether Stingray deployments are Fourth Amendment searches. The government lets the court know what it doesn't need to do to resolve this issue in the DOJ's favor:

Whether use of a cell site simulator constitutes a “search” for Fourth Amendment purposes is not necessarily a question this Court needs to answer, since even if it were a search, it was amply justified under the circumstances. That said, the law supports concluding that the device in this case did not affect a search.

The following argument, however, is particularly disingenuous. The defendant argued the warrant was invalid because officers didn't let the judge know they'd be deploying a Stingray device when it got its pen register order approved. The DOJ says this shouldn't matter, as it can find very little pre-2013 evidence suggesting these devices were mentioned in previous court documents.

Since the CSS technology was still relatively new in 2013, there were simply no binding cases to direct agents and officers to disregard Smith v. Maryland and get a warrant. According to the government’s research, only a few federal pre-2013 cases referenced “cell site simulator,” “digital analyzer,” “triggerfish,” or “stingray” in a relevant context. (The government found no such cases in California courts.)

Well, of course this search came up empty. For years, the FBI swore law enforcement agencies to secrecy if they acquired Stingrays, telling them to dismiss cases rather than have defendants, judges, or even some prosecutors discuss the tech in open court. The lack of DOJ search results means the NDAs the FBI forced everyone to sign worked.

By no means was CSS technology "relatively new" in 2013. Documentation of Stingray devices can be found dating back to 2006 and use of pre-Stingray "digital analyzers" dates back more than 20 years. There wasn't much courtroom discussion because the FBI actively prevented it from happening. And the DOJ knows this, as its "research" likely turned up things like this 2012 NDA on DOJ letterhead telling a New York sheriff's office to STFU about its new toy.

With no discussion, there are no binding cases. That's how the FBI wanted it. And it pays off years down the road by making it easier for the DOJ to prevail in a suppression argument without setting precedent it may find inhibiting another half-decade down the road.

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Posted on Techdirt - 17 July 2017 @ 1:28pm

De-Escalation Works, But US Law Enforcement Hasn't Show Much Interest In Trying It

from the shoot-first,-answer-questions-72-hours-later... dept

Deescalation isn't something most police officers want to talk about -- especially those who allow their unions to do all their talking for them. But shootings by police have achieved critical mass, forcing the issue to be confronted by law enforcement officials. There are no national guidelines for force deployment. Local law enforcement agencies don't have much in the way of best practices or standards, pretty much allowing officers to decide how much force is necessary on their own, relative to the amount of "reasonable fear" officers can later credibly swear to in court.

Cities and police departments may be forced to confront this sooner, rather than later, if for no other reason than to limit the bleeding -- both literally and metaphorically. Civil rights lawsuits are filed daily and settlement amounts continue to escalate. Officers in the US kill ~1,000 people per year, with that number being completely untethered from the "safety" of the job -- at least as compared to violent crime rates and/or officers being killed in the line of duty. Generally speaking, there's less crime in America than there has been for decades, but cops are "fearing for their safety" like it's 30 years ago.

Over the past several days, police station CCTV video of a Bangkok police officer disarming a knife-wielding man has gone viral. Instead of greeting a threat with violence, Officer Anirut Malee greeted the potential attack with words… and neutralized the threat completely with a hug.

For this act of bravery, Officer Malee was given an award by Thailand's national police chief. And he's become the unofficial poster boy for deescalation. Every situation is unique, some will argue, and what worked here won't work for every person wielding a weapon. This is true, but in the US almost every situation involving a mentally disturbed person carrying a weapon is handled the same way: with a deployment of force, most of it deadly. So, arguments about nuance are worthless in a law enforcement climate where officers are allowed to calm their nerves by firing guns.

And the situation above really isn't that unique. A recent controversial killing involved mental distress and wielded knife. Only this one happened in Seattle, and ended in the shooting death of a pregnant woman.

It's not as though the officers went into the situation unprepared. They were responding to Charleena Lyle's call to report a burglary. Audio recordings of the officers included discussions about her mental health issues and previous police interactions. And the seemingly-inevitable shooting was preceded by cops telling Lyle they weren't going to shoot her. This shooting took place under a DOJ consent decree meant to curb the use of excessive force by Seattle officers. It doesn't necessarily indicate the decree isn't working, but it definitely doesn't suggest the Seattle PD is approaching these sorts of situations with deescalation in mind.

It's almost impossible to imagine a US law enforcement officer approaching a situation like that confronting Officer Malee without a weapon drawn and a whole lot of shouting. There's very little reason for officers to change their approach -- not with courts continually deferring to assertions of fear by police officers and cops who do deescalate situations being fired for supposedly endangering other officers.

But the problem isn't just going to go away. Cities and PDs need to address this now, if for nothing other than purely mercenary reasons. It costs money to defend lawsuits and more money to pay settlements. Even if officials don't really care whether the police maintain a healthy relationship with the communities they serve, they can't keep asking taxpayers to pay for the sins of government employees -- not when there appears to be little effort made by these employees to improve the level of their service.

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Posted on Techdirt - 17 July 2017 @ 6:35am

New Zealand Airports Customs Officials Performing 'Digital Strip Searches' Of Travelers' Electronics

from the putting-the-'awful'-back-in-'lawful' dept

Despite DHS hints that foreign airports were falling down on the "security theater" job, it appears a few customs officials are more than happy to engage in local versions of "extreme vetting." New Zealand customs officials are way ahead of the DHS in this department, having turned airports into rights-free zones where nearly anything can happen... to travelers.

According to an investigative report by New Zealand's 1 news, airport customs officials routinely force up to two travelers each day to give up their electronic devices and passwords for searching. According to the customs agents, the program is designed to look for smugglers by performing a "digital strip search" on the phones and laptops of travelers. This does not require a court order, but the agents do claim to adhere to New Zealand's privacy act.

Yes, somehow the stripping of someone's electronic privacy still "adheres" to the privacy act. One would think "smuggling" would be routine criminal act, not worthy of "digital strip searches." One would also think some sort of reasonable suspicion would be needed to proceed with this, as compared to anti-terrorist activities which usually result in rights-violation blank checks being issued to customs authorities.

The data shows more than 1,300 people have been subjected to these suspicionless "strip searches" since 2015, with less than a third of those being New Zealand citizens. The majority of those searched are foreigners and it appears visitors to the country should somehow expect delays of up to five hours thanks to this supposedly random vetting process.

And there is no option to refuse this additional, highly-invasive search. As Techspot reports, travelers refusing to hand over their electronic devices can be subject to fines of $5,000. That makes it a very expensive trip, especially for foreigners. Extra delays, extra costs, zero privacy -- all in the name of keeping untaxed cigarettes out of NZ or whatever.

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Posted on Techdirt - 14 July 2017 @ 7:39pm

Trump's Pick For FBI Head Sounds A Lot Like The Guy He Fired When It Comes To Encryption

from the BACK-TO-WORK,-NERDS dept

Trump's pick to head the FBI -- former DOJ prosecutor Christopher Wray -- appeared before the Senate to answer several questions (and listen to several long-winded, self-serving statements). Wray's confirmation hearing went about as well as expected. Several senators wanted to make sure Wray's loyalty lay with the nation rather than the president and several others hoped to paint him into a Comey-bashing corner in order to belatedly justify Trump's firing of his (potential) predecessor.

Wray also spent a lot of time not talking about things he claimed he was unfamiliar with -- covering everything from presidential directives, to Donald Trump Jr.'s Russian emails, to questions about CIA human rights violations that went unnoticed/unprosecuted during his tenure in the DOJ.

Sen. Orrin Hatch -- as he did during a recent Comey hearing -- brought up the subject of encryption. Hatch claims he "agrees with Tim Cook," which places him in opposition to Sens. Feinstein and Burr. It also puts him in opposition of the possible new FBI boss, who had this to say about encryption. (h/t Politico's Eric Geller)

I think this is one of the most difficult issues facing the country. There's a balance that has to be struck between the importance of encryption, which I think we can all respect when there are so many threats to our systems, and the importance of giving law enforcement the tools that they need to keep us safe.

You can already tell where this is going. Encryption is great and all, but what's would be really great is some sort of backdoor-type thingy.

Wray continued by swiftly jumping to the other side of the argument -- at least in terms of team uniform. Certainly not in terms of how the "other side" feels about encryption and backdoors.

I don't know sitting here today as an outsider and a nominee before this committee what the solution is, but I do know that we have to find a solution. And my experience in trying to find solutions is that it's more productive for people to work together than to be pointing fingers blaming each other. And that's the approach I've tried to take to almost every problem I've tackled. And that's the approach I would want to take here in working with this committee and the private sector.

One advantage to having been in the private sector for a while is that I think I know how to talk to the private sector, and I would look for ways to try to see if I could get the private sector more on-board to understand why this issue is so important to keep us all safe.

So far, so Comey. New suit in the office, but it fits the same as the last one. Wray thinks both sides should work together but strongly hints the actual work will have to be done by the private sector. The problem, according to a guy who's worked "both sides," is the private sector needs to be more "on-board." And that indicates Wray feels the problem isn't the lack of both sides working together, but the other side not capitulating. That's a problem, and it sounds a whole lot like X more years of Comey.

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Posted on Techdirt - 14 July 2017 @ 3:27pm

Privacy International Sues US Government Over Denied Access To Five Eyes Surveillance Agreements

from the new-communications,-new-rules dept

The last thing anyone heard about Five Eyes surveillance partnerships via official channels was more than seven years ago. In the intervening years, leaked documents have shed a little light on the information sharing Five Eyes countries (US, UK, Canada, Australia, New Zealand) engage in. But the last Five Eyes agreement released is now more than 60 years old.

The Five Eyes group has existed since 1946 and the last document officially published about it comes from 1955. Since then, vast technological changes have altered how national security bodies collect and store information.

The modern era of Five Eyes surveillance has only been glimpsed through leaked Snowden documents. Coverage of these documents is noted in Privacy International's FOIA lawsuit [PDF] against a handful of US government agencies. PI has been asking for updated versions of the Five Eyes agreements since late last year. Unsurprisingly, the agencies queried haven't responded.

The agencies named as defendants (the NSA, ODNI [Office of the Director of National Intelligence], State Dept., and NARA [National Archives and Records Administration]) have all had at least 100 days to respond to PI's requests. None of them have responded positively. The NSA said all records were exempt from disclosure. The ODNI and NARA haven't responded at all, other than to note the request has been received. The State Department offered to "administratively close" PI's request if it didn't respond to the agency's letter within 20 days -- despite the State Department having done nothing to advance the request during the previous 180 days.

As the lawsuit points out, the documents PI is seeking are definitely of interest to the public. The last agreement anyone has seen in full predates the internet itself, where most Five Eyes surveillance now takes place.

Many individuals today live major portions of their lives online. They use the internet to communicate with others, impart ideas, conduct research, explore their sexuality, seek medical advice and treatment, correspond with lawyers, and express their political and personal views. They also increasingly use the internet to conduct many ordinary activities, such as keeping records, arranging travel, and carrying out financial transactions. Today, much of this activity is conducted on mobile digital devices such as cellular phones, which “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, 134 S. Ct. 2473, 2489 (2014).

The internet has also enabled the creation of greater quantities of personal data about communications, known as “metadata.” Metadata is information about a communication, which may include the sender and recipient, the date and location from where it was sent, and the type of device used to send it. Metadata can reveal web browsing activities, which might reveal medical conditions, religious viewpoints, or political affiliations. It can also reveal items purchased, news sites visited, forums joined, books read, movies watched and games played.

Communications – emails, instant messages, calls, social media posts, web searches, requests to visit a website – that utilize the internet can take any viable route to their destination; distance is not a determinative factor. They have the potential to travel around the world before reaching their destination, even if the information is being sent between two people (or a person and an entity) within a single country, or even a single city. The dispersion of communications across the internet vastly increases the opportunities for communications and data to be intercepted by foreign governments, who may then share them with other governments.

Knowing who's allowed to do what with this firehose of information is something people would like to know. Unfortunately, a vast network of surveillance programs have been enacted with little oversight, utilizing secret directives and classified interpretations of existing laws.

The ODNI may be engaged in more proactive transparency than it ever has in its history, but it still usually takes a lawsuit to force documents out of its hands. It's the ODNI that ultimately decides whether NSA-related documents get published, so targeting both with FOIA requests is a good way to increase your chances of disclosure. But those chances are still almost nonexistent, thanks to national security-related FOIA exemptions. And, if nothing else, the NARA should have some Five Eyes agreement back issues laying around, but once again, filing a FOIA lawsuit is only one of several steps in a long, arduous, and often frustrating process.

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Posted on Techdirt - 14 July 2017 @ 1:11pm

The War On Dogs Continues: Cop Shoots Two Non-Threatening Dogs During Burglar Alarm Call

from the no-matter-how-scared-you-are,-shooting-a-cop's-dog-is-a-criminal-act dept

Man's best friend remains a cop's worst enemy. At least, that's what the numbers appear to show. Cops claim the job is dangerous -- hence the ~1,000 people killed every year by law enforcement officers. Trigger-happy cops: "Hold our beer."

The exact number of dogs killed by law enforcement officers is difficult to quantify because there is no official record of these deaths across American agencies. Laurel Matthews, a program specialist with the US Department of Justice’s community-oriented policing services office, says fatal encounters are an “epidemic” and estimates that 25 to 30 pet dogs are killed daily by police.

Even while suggesting cops are killing ~9,000 dogs a year, the DOJ's specialist still couches the data in cop-friendly language: "fatal encounters." No officers have been killed by dogs, but plenty of dogs have been killed by officers. The fatalities run in one direction.

And that estimate may be on the low side. Records of people killed by cops are incomplete, thanks to the DOJ's long-running belief any reporting on police shootings should be purely voluntary. But there's no shortage of reporting on the epidemic, which has deemed law enforcement "puppycide."

In Minneapolis, Minnesota, two more dogs have been shot by a police officer for no apparent reason at all. The dogs will survive but the owner is now saddled with medical bills she wouldn't have had if responding officers had handled the situation with more common sense.

Returning early from a camping trip, one of Jennifer LeMay's daughters accidentally set off the burglar alarm while attempting to disarm it. LeMay called the company and told them what had happened but apparently officers had already been sent out to investigate.

It should have seemed obvious someone was home, but neither officer approached the front door of the house. One climbed over the privacy fence and into LeMay's backyard. When he did, he was approached by one of LeMay's dogs. In the video, posted to Facebook, the dog can be seen approaching the officer, but not in a threatening way. If anything, the dog appears cautious and curious.

But the lesson to be learned here is try not to leave your dogs in the yard if police officers might need to be in there for any reason at all ever.

The video, with no audio, shows an officer standing in the backyard. He then approaches the house and goes out of camera range. A moment later, he steps backward rapidly with his gun drawn.

Ciroc, a white and brown dog, trots toward the officer and stops about 10 feet away. The dog looks distracted but does not appear to be charging the officer. The officer fires, the dog falls and then scrambles to his feet and runs away. At the same time, a black dog runs into camera range. The officer shoots several times and the dog flees.

The officer appears to assess the scene for about 18 seconds before he exits the yard by climbing over the fence.

LeMay's 13-year-old daughter saw the whole thing from the upstairs window. That probably wouldn't have made a dent in the official narrative, but the incident was also captured by the home's security cameras. Nevertheless, there's still an official narrative:

"We are aware of the recent incident involving MPD officers responding to an audible residential burglary alarm and while at this call an MPD officer discharged their firearm, striking two dogs belonging to the homeowner. Anytime an officer discharges their firearm in the line of duty there is an investigation ... by the Minneapolis Police Department's Internal Affairs Unit. We are in the process of reviewing the video posted online, as well as the officer's body camera video. We have reached out to the owner of the dogs and will continue to do so during the investigation."

In other words, the MPD is trying to find some way to spin this. The video looks pretty damning. If the officer didn't want to be scared by someone's pets, perhaps he or another officer could have taken the last step first.

After the dogs' shooting, another officer knocked on the front door. The 18-year-old explained that she'd triggered the alarm and that it had been deactivated.

Then there's this part of it, which shows MPD officers really don't know what they're doing when it comes to dealing with pets. And they clearly don't understand… or care… how attached regular people are to their canine companions.

The family didn't instantly take the dogs to the emergency vet because police told the family that "animal control" would be there in minutes to access the dogs' medical needs. No one showed up, LeMay said.

The alarm was accidentally set off at 8:50. The alarm was deactivated by the alarm company after notification by the homeowner by 8:54. For some reason, twenty minutes later, cops show up and one of them shoots two dogs. Even if the cops weren't notified by the security company, what made them think the best approach was to invade someone else's private space and shoot two pets on sight before making any contact with the people inside the house? An overabundance of caution would seemingly indicate staying a safe distance from the premises while they determined who was actually inside the house, not entering the backyard with a gun out and shooting animals that had more right to be there than the uniformed, armed interloper.

Then there's the fact the officer left after shooting the two dogs. What happened to the burglary investigation? It could be this was the point the other officer finally knocked on the front door of the house, but once again, this step should have been taken long before a cop invited himself into the backyard and try to kill the yard's inhabitants for reacting -- in a non-threatening way -- to his intrusion. Is no one else alive -- humans or pets -- allowed to feel "fear for their safety?" Or is that solely the "right" of cops, who do things to increase the danger of situations and are allowed to shoot their way out of it.

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Posted on Techdirt - 14 July 2017 @ 9:23am

DHS, CBP Admit They Have No Legal Authority To Access Americans' Social Media Accounts

from the CBP-reminded-of-this-2-months-after-Wyden's-letter dept

Since at least 2009, the DHS has asserted a legal right to copy/search the contents of anyone's electronic devices at the border. Its privacy assessment said no one has much privacy, at least not near US borders. Building on years of judicial national security deference, the DHS has recently expanded its searches of electronic devices, eliminating most of its adherence to the Fourth Amendment in the process. If your devices wander into the country's Constitution-free zones, you can expect to suffer diminished expectations of privacy.

Noting that border searches of electronic devices were increasing exponentially (more searches in February 2017 alone than in all of 2015), Senator Ron Wyden did two things: introduced a bill creating a warrant requirement for border electronic device searches and asked the CBP (Customs and Border Protection) about its new demands for social media/email account passwords.

The DHS has responded [PDF] to Wyden's questions, and the answers are a bit surprising.

U.S. border officers aren't allowed to look at any data stored only in the "cloud" — including social media data — when they search U.S. travelers' phones, Customs and Border Protection acknowledged in a letter obtained Wednesday by NBC News.

The letter (PDF), sent in response to inquiries by Sen. Ron Wyden, D-Ore., and verified by Wyden's office, not only states that CBP doesn't search data stored only with remote cloud services, but also — apparently for the first time — declares that it doesn't have that authority in the first place.

This admission about a lack of legal authority contradicts the assertions made in its 2009 Privacy Impact Assessment, which placed CBP agent hunches above anything resembling reasonable suspicion or probable cause. But the answer aren't quite as clear-cut as it might appear from the NBC New summation.

With or without legal authority, the CBP is still performing searches of thousands of devices. Returning US citizens aren't exempted from these searches. They are often free to go, even if their devices might need to be left behind so the CBP can search/copy the device's contents. This may be done without reasonable suspicion because, as the letter puts it, any device might hold evidence of criminal activity (terrorism, smuggling, and child porn are specifically named).

What the CBP cannot do -- at least according to this letter -- is retrieve information and data not stored on the phone itself. But this would only prevent CBP officers from accessing cloud-based storage. Much of the information contained in email and social media accounts is not stored locally, but there's no practical way to separate local/cloud data when officers have access to the entire device. The letter appears to indicate officers need to restrict their searches to SMS messages, call logs, and photos/videos stored on the device.

How this operates in practice is another matter. The letter states CBP cannot demand passwords/pins from American travelers, but points out this may result in their electronics being detained indefinitely even as the citizens themselves are free to go. It says CBP officers have been instructed to stay away from social media/email accounts, but the April 2017 "reminder" appears to be the direct result of Wyden's probing questions, which were sent to the DHS at the end of February. What CBP was doing before the senator started asking questions is anyone's guess, but anecdotal evidence suggests CBP is treating US citizens as badly as it does foreign visitors.

What isn't in the letter is a direct response to Wyden's question about the number of US citizens subjected to these intrusive searches. The DHS claims not to have this information on hand but has promised to turn over some data later this year.

In the meantime, American citizens are receiving only slightly better treatment than arriving foreigners. Assertion of rights are the border will often be taken as unprompted admission of guilt. While the CBP may not have a legal basis to demand access to social media accounts, it does appear its demands for access to people's phones isn't stifled by many legal hurdles. Considering most phones/laptops contain social media account info, it's up to Americans to believe the CBP isn't accessing data it's been told to stay away from.

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Posted on Techdirt - 14 July 2017 @ 3:22am

DHS Goes Biometric, Says Travelers Can Opt Out Of Face Scans By Not Traveling

from the driving:-dangerous-and-unpatriotic dept

The DHS has decided air travel is the unsafest thing of all. In the wake of multiple fear mongering presidential directives -- including a travel ban currently being contested in federal courts -- the DHS has introduced several measures meant to make flying safer, but in reality would only make flying more of a pain in the ass.

The government has argued in court that flying is a privilege, not a right, and the DHS seems hellbent on making fliers pay for every bit of that privilege. We've seen laptop bans introduced as a stick to push foreign airports to engage in more security theater and a threat to rifle through all travelers' books and papers to ensure nobody's reading explosive devices.

Now, the DHS is going to be scanning everyone's faces as they board/disembark international flights.

The Department of Homeland Security says it’s the only way to successfully expand a program that tracks nonimmigrant foreigners. They have been required by law since 2004 to submit to biometric identity scans — but to date have only had their fingerprints and photos collected prior to entry.

Now, DHS says it’s finally ready to implement face scans on departure — aimed mainly at better tracking visa overstays but also at tightening security.

The DHS swears it won't be retaining face scans of US persons, but apparently never considered limiting the collection to foreign travelers. Instead, the DHS will "collect them all" and supposedly toss out US citizens' scans later.

John Wagner, the Customs deputy executive assistant commissioner in charge of the program, confirmed in an interview that U.S. citizens departing on international flights will submit to face scans.

Wagner says the agency has no plans to retain the biometric data of U.S. citizens and will delete all scans of them within 14 days.

This sounds good (other than the collect-them-all approach) but Wagner's not done talking. The DHS is obviously hoping to make use of US persons' scans at some point.

However, [Wagner] doesn’t rule out CBP keeping them in the future after going “through the appropriate privacy reviews and approvals.”

This makes the promise of a 14-day deletion period dubious. The DHS would seemingly prefer to keep everything it collects, so this deletion promise may morph into data segregation, with the government keeping domestic scans in their own silo for possible use later.

The program is already being deployed at a handful of major airports. During the trial run, passengers will be able to opt out of the collection. But the DHS's own Privacy Impact Assessment [PDF] makes it clear it won't be optional for long.

Privacy Risk: There is a risk to individual participation because individuals may be denied boarding if they refuse to submit to biometric identity verification under the TVS.

Mitigation: This privacy risk is partially mitigated. Although the redress and access procedures above provide for an individual’s ability to correct his or her information, the only way for an individual to ensure he or she is not subject to collection of biometric information when traveling internationally is to refrain from traveling. [emphasis added] Individuals seeking to travel internationally are subject to the laws and rules enforced by CBP and are subject to inspection.

To opt-out is to not travel. Considering this affects international flights, the DHS has a very good chance of achieving 100% compliance.

But there are other percentages to be concerned about, like accuracy. The DHS has a 96% accuracy requirement for face scanning tech (but, oddly, not for its TSA employees...), but its Privacy Impact Awareness report doesn't actually say whether vendors have been able to hit that mark. In practical terms, what's being deployed could still be well under that percentage. Considering the number of things that need to go right to obtain a useful face scan, the error rate could be far above 4% once less-than-ideal capture conditions are factored in.

Whatever privacy assurances are being given now, expect them to be whittled down in the future, especially if the government continues to engage in reactionary, fear-based lawmaking. With the exception of some post-Snowden surveillance reforms, the government's desire to collect databases full of US persons' info has only steadily increased since September 11, 2001.

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