Posted on Techdirt - 24 February 2017 @ 2:49pm
Because there's just not enough opacity shrouding police misconduct and not enough slanting of the criminal justice system against defendants, California police unions have decided to get involved in a judicial dispute over lists of law enforcement officers whose half of "our word against yours" isn't quite as bulletproof as is normally assumed.
A Los Angeles sheriff is trying to do the right thing, but he's running into opposition from his own supposed "representatives."
The Los Angeles County Sheriff’s Department has collected the names of about 300 deputies who have a history of past misconduct — such as domestic violence, theft, bribery and brutality — that could damage their credibility if they testify in court.
Sheriff Jim McDonnell wants to send the names to prosecutors, who can decide whether to add them to an internal database that tracks problem officers in case the information needs to be disclosed to defendants in criminal trials.
I don't imagine prosecutors are exactly thrilled to be the recipient of information that damages the credibility of their favorite witnesses, but it's probably better than having your witness destroyed in open court by a defense attorney. But prosecutors may never see this information, thanks to the police union's belief that officers shouldn't be held accountable for anything.
The union that represents rank-and-file deputies strongly opposes providing the names to prosecutors and has taken the department to court. The Assn. for Los Angeles Deputy Sheriffs argues that the disclosure would violate state laws protecting officer personnel files and draw unfair scrutiny on deputies whose mistakes might have happened long ago.
The union is wrong. Officers' misconduct records are a crucial part of their trustworthiness. Burying these just makes the union look like a willing enabler of bad behavior. There would be no "unfair scrutiny" of deputies. Judges and juries are perfectly capable of determining whether past misconduct is relevant to the case at hand. The union's lawsuit seeks to place the determination of officers' credibility solely in the union's hands. And in its hands, all officers are credible until proven otherwise -- something that will be almost impossible to do with exactly zero information on hand.
The union's move is a preemptive Brady violation. Brady material is exculpatory evidence and information prosecutors are statutorily required to turn over to the defense. That would include misconduct records, which might point to a testifying officer's lack of credibility, or show a pattern of relevant misconduct. These files would not be made public, which undercuts the union's "privacy violation" claims. True, some of the files' contents would be made public during court proceedings, but it's not as though the sheriff is asking the DA's office to post the contents of the list on its website.
The union wants law enforcement officers to have more rights than the people they serve. The body of a person killed by an officer hasn't even begun to cool before department press liaisons are pushing the dead person's criminal background check results into the hands of every reporter covering the incident. No one expresses any privacy concerns when a 20-year-old arrest is used to alter the public's perception of a police shooting victim. But when it comes to cops themselves -- public servants with immense power, layers of immunity, and publicly-funded opacity that separates them from the consequences of their actions -- privacy is of utmost concern.
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Posted on Techdirt - 24 February 2017 @ 11:57am
Late last year, Thomas Fox-Brewster of Forbes uncovered a strange search warrant among a pile of unsealed documents. The warrant -- approved by a magistrate judge -- allowed law enforcement officers to demand that everyone present at the searched location provide their fingerprints to unlock devices seized from the same location.
In support of its request, the government cited cases dating back to 1910, as though they had any relevance to the current situation. The most recent case cited was 30 years old -- still far from easily applicable to today's smartphones, which are basically pocket-sized personal data centers.
The judge granted it, stating that demands for fingerprints, passwords, or anything (like encryption keys) that might give law enforcement access to the devices' content did not implicate the Fourth or Fifth Amendments. While the magistrate was correct that no court has found the application of fingerprints to unlock devices to be a violation of the Fifth Amendment, the other access options (passwords, encryption keys) might pose Fifth Amendment problems down the road.
Riana Pfefferkorn has uncovered a similar warrant request, but this one has been rejected by the magistrate judge. Pretty much across the board, the order is the antithesis of the one revealed last year. The judge finds [PDF] that the broad request to force everyone present at the residence to apply their fingerprints to seized devices to unlock them implicates multiple Constitutional amendments.
The issues presented in this warrant application are at the cross section of protections provided by the Fourth and Fifth Amendments. Essentially, the government seeks an order from this Court that would allow agents executing this warrant to force "persons at the Subject Premises" to apply their thumbprints and fingerprints to any Apple electronic device recovered at the premises. (See Attach. B, tT 12.) The request is neither limited to a particular person nor a particular device. And, as noted below, the request is made without any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).
The judge notes the government is able to detain and search persons located at the premises being searched, but that does not extend to forcing every single person in a residence at the time of a search to comply with attempts to unlock seized devices. Because the warrant affidavit contained no particularity about the devices or who in the household the government suspected of engaging in criminal activity, the court can't find anything that justifies the broad, inclusive language contained in the request.
This Court agrees that the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment. In the instant case, the government is seeking the authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents. Based on the facts presented in the application, the Court does not believe such Fourth Amendment intrusions are justified based on the facts articulated.
The court has other problems with the affidavit -- beyond the government's unwarranted extension of Fourth/Fifth Amendment jurisprudence to cover any devices/fingerprints encountered at a searched location. Early in the order, it notes the government is deploying boilerplate nearly as outdated as its case citiations.
Despite the apparent seriousness of the offenses involved, the Court notes that some of the "boilerplate" background information included in the warrant is a bit dated, such as its explanation that "[t]he internet allows any computer to connect to another computer [so] [e]lectronic contact can be made to millions of computers around the world;" its explanation that a "Blackberry" is a common "Personal Digital Assistant" and its suggestion that the use of "cloud technology" is the exceptional way of transferring files and that transferring images to a computer by directly connecting a cable to a camera or other recording device is the expected means of data transfer.
The judge notes outdated boilerplate isn't enough to undo probable cause assertions, but it certainly doesn't help -- especially not when the government is requesting this sort of broad permission.
The inclusion of this somewhat dated view of technology certainly does not distract from the application's goal of establishing probable cause. However, the dated "boilerplate language" is problematic for what is not included. There is absolutely no discussion of wireless internet service and the possibilities and capabilities that wireless service presents in this context. For example, an unsophisticated intemet user, or a careless one, may fail to properly encrypt his wireless service or may share the password injudiciously. Such practices leave open the possibility that it is not an inhabitant of the subject premises that has used the internet to gather and distribute child pornography, but rather it is a person who has access to the internet service at the subject premises.
Obviously, this possibility holds true in all investigations that track the investigation outlined in the instant application. The limitations of this investigation are not fatal to establishing probable cause, but, in the Court's view, these limitations do impact the ability of the government to seek the extraordinary authority related to compelling individuals to provide their fingerprints to unlock an Apple electronic device.
Then there's the other assertions. The government's application does nothing to narrow down which resident it's seeking or what device(s) might contain evidence of criminal activity. What it does appear to be certain about -- for reasons not included in the application -- is that the devices it seeks are Apple products. A footnote in the order questions this assertion.
Why Apple devices are likely to be found at the premises is not explained. The Court is aware that Apple has a large market share in online hardware, but Microsoft's Windows operating systems continue to dominate the overall market share of operating systems used.
What makes these broad, unsupported assertions even worse, especially when combined with the outdated boilerplate, is that this is apparently the direction the government is heading with its search warrants.
In closing, upon presentation of the warrant application to this Court, the government identified for this Court that the warrant application was seeking the forced fingerprinting discussed herein. The government further noted "[t]his is the language that we are making standard in all of our search warrants." This declaration of standardization is perhaps the crux of the problem. As the Court hopes it is plain from the above, the issues presented here require a fact-intensive inquiry both for purposes of the Fourth Amendment and the Fifth Amendment.
More particularity, better probable cause, and fewer assumptions about the Fourth and Fifth Amendment's application in a post-Riley world are what's needed from the government, according to this order. Even though this application was rejected, it's safe to say this same approach has worked elsewhere. We've seen one approved warrant already and there are likely several more safely hidden from the public eye in the government's multitudinous sealed cases.
What's troubling about the government's assertions in this application is its apparent belief it's found an encryption workaround: one that blows past Fourth and Fifth Amendment concerns using little more than boilerplate that still considers cables to be an essential part of "cloud computing," and magistrate judges willing to buy its outdated legal arguments.
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Posted on Techdirt - 24 February 2017 @ 10:49am
"Every vote counts."
"Throw the bastards out."
"Election platitude #10."
Every bit as meaningless as Trump's promise to "drain the swamp." The Beltway Swamp is drain-proof. The process that populates the swamp is rigged. Not in the "millions of illegal votes from illegals" way... or even the "I can see the Russians hacking the election from my house" way. It's rigged because the only federal agency charged with making sure the election process is fair and equitable can't -- actually, won't -- do a single thing to ensure the process' integrity.
Two years ago, the Federal Election Commission Chairwoman had this to say about the FEC's powerlessness/uselessness:
“The likelihood of the laws being enforced is slim,” Ann M. Ravel, the chairwoman, said in an interview. “I never want to give up, but I’m not under any illusions. People think the F.E.C. is dysfunctional. It’s worse than dysfunctional.”
Post-election, this diagnosis has been confirmed. As government accountability research site MapLight reports, an FEC member has decided to exit the dysfunctional commission. On her way out the door, Ann Ravel released a letter and a report [PDF] plainly stating the FEC effectively serves zero purpose.
Ann Ravel, an FEC member appointed to the six-member regulatory panel in 2013 by former President Barack Obama, said the commission’s routine deadlocked votes are sending clear signals that campaign finance laws won’t be enforced.
“This incredibly significant Commission is not performing the job that Congress intended, and violators of the law are given a free pass,” Ravel wrote in “Dysfunction and Deadlock,” a 25-page report released with her resignation letter to President Donald Trump. “Because of this, candidates and committees are aware that they can ignore the laws enacted to protect the integrity of our elections.”
Partisan politics aren't limited to the halls of Congress. The FEC is composed of six members -- three from each side of the political aisle. (Third parties/independents aren't recognized as possible participants in this process.) Reported campaign finance violations received by the Commission can only be addressed if a majority of members agree on moving forward. Because of the ideological split, fewer and fewer violations are being addressed. From the report:
The bloc has used the four vote requirement to take most action as unchecked veto power to delay and dismiss flagrant violations, impose significantly lower penalties, and leave major cases without resolution. In 2006, commissioners deadlocked in just 2.9% of substantive votes in Matters Under Review (“MURs”—also known as enforcement cases) closed that year. For MURs closed in 2016, the Commissioners deadlocked on 30% of all substantive votes taken in those matters. In 2006, only 4.2% of MURs closed had at least one deadlocked vote. However, in 2016, 37.5% of all MURs closed had at least one deadlocked vote.
This partisanship undercuts the commission's singular purpose. The Supreme Court may hand down rulings on campaign finance transparency, but the court's word is meaningless when no one's willing to enforce it. As the report points out, since the court's 2010 Citizens United decision, more than $800 million has flowed to federal election campaigns without its sources being disclosed.
Over the past ten years, the FEC has just become another inhabitant of the swamp it was supposed to help drain -- long before President Trump made it a campaign platform. The FEC has devolved into separate factions glaring at each other over a stack of campaign finance violations neither is willing to address if it might adversely affect "their" party.
Suck it up, voters. The system only works as well as those who benefit from it most will allow it to. A house divided against itself
cannot stand stands to profit from years and years of two-party status quo.
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Posted on Techdirt - 24 February 2017 @ 9:40am
Building legislation on top of the political equivalent of an urban myth is never a good idea. Fold in something routinely abused by law enforcement and you've got a proposed bill whose short name should be "Shit Sandwich."
That's the (tentative) plan in Arizona, where the existential threat of "paid protesters" has resulted in a terrible bill that promises to use a handful of Constitutional amendments as a doormat. (via Raw Story)
SB1142 expands the state’s racketeering laws, now aimed at organized crime, to also include rioting. And it redefines what constitutes rioting to include actions that result in damage to the property of others.
Nothing good can come from the expansion of racketeering laws, which are already abused by government agencies and citizens alike. But it gets worse. A lot worse. It doesn't just apply to protesters who damage property. It applies to anyone possibly connected to a protest in which damage occurs, even if they don't induce or encourage the destruction. (Perhaps even if they speak out against violent acts, but still support the demonstration's premise.)
And, to top it all off, police officers would not only be authorized to arrest people engaged in First Amendment activity just because someone down the street broke a window, but also to enrich themselves in the process.
But the real heart of the legislation is what Democrats say is the guilt by association — and giving the government the right to criminally prosecute and seize the assets of everyone who planned a protest and everyone who participated. And what’s worse, said Sen. Steve Farley, D-Tucson, is that the person who may have broken a window, triggering the claim there was a riot, might actually not be a member of the group but someone from the other side.
Supporters of asset forfeiture always claim it's a great tool for defunding criminal ventures. I can only imagine the verbal gymnastics that will need to be deployed to justify taking cash, cars, whatever from protesters, especially when the state's existing laws already criminalize rioting but without the added "bonus" of depriving rioters of their cash, homes, cars, etc. Do the legislators actually believe protesters are being paid in small, unmarked bills and mid-priced sedans?
The "guilt by association" aspect allows law enforcement to apply its discretion, which is seldom a good thing. The moment anything is damaged, it's open season on protest attendees. In fact, it's open season on non-attendees as well, if cops can dredge up anything that appears to be evidence of protest planning. Acquiring a permit pre-demonstration is no longer an act of good faith. It's self-incriminating.
One supporter of this truly stupid legislation believes the state's existing riot laws don't work because… wait for it… the bail system exists.
Sen. Sylvia Allen, R-Snowflake, said the new criminal laws are necessary.
“I have been heartsick with what’s been going on in our country, what young people are being encouraged to do,’’ she said.
She agreed with Quezada that there already are laws that cover overt acts. But Allen said they don’t work.
“If they get thrown in jail, somebody pays to get them out,’’ she said. “There has to be something to deter them from that.’’
I don't often can't even, but... here we are. People have argued against the bail system because it's stacked against the poorest criminal suspects, but I've never heard the system portrayed as faulty because it works exactly the way it's intended to. And the new law wouldn't change anything this legislator is concerned about. Brand new criminal charges stemming from the stupid bill would still allow suspects to post bail. The only difference is they may not have the cash to do it or a car to drive home if they make bail. Maybe that's what Allen is referring to: extra layers of punitiveness because most current protests are targeting the senator's party -- which also happens to be the party in power at the moment.
This made it past a House vote in Arizona, suggesting the state's craziness isn't confined to Maricopa County. It won't survive a Constitutional challenge if it somehow manages to stumble out the governor's desk without being vetoed.
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Posted on Techdirt - 24 February 2017 @ 8:39am
A federal judge has just let a plaintiff know there's a big difference between providing hosting for infringing content and actually participating in copyright infringement. ALS Scan sued basically everybody for copyright infringement after discovering adult images that it owned posted all over the web. In addition to Steadfast Holdings -- the defendant just dismissed from this suit -- ALS Scan sued Cloudflare, Juicy Ads, and a number of other hosting services and Does.
One by one, these defendants have been excused from the suit. The underlying logic for the dismissals is solid. Providing web hosting is not the same thing as contributory infringement, no matter how much ALS Scan wants it to be.
In the Steadfast ruling, Wu said that merely hosting a pirate site does not make the hosting service liable for any copyright infringement actions the site may be guilty of.
In its motion to dismiss, Steadfast argued that it did not manage or operate the Imagebam site, and that it only provided computer storage.
"The court is unaware of any authority holding that merely alleging that a defendant provides some form of 'hosting' service to an infringing website is sufficient to establish contributory copyright infringement," Wu wrote.
“The court would therefore find that the [complaint] fails to allege facts establishing that Steadfast materially contributed to the infringement,” Wu wrote.
There's a lot more Steadfast (and the other hosting companies) would have to do to be considered contributory infringers, and the hosting companies are doing none of those things. ALS Scan wants hosting sites to do more than they're legally obligated to do. But it can't sue just because it doesn't agree with their practices. From the opinion [PDF]:
[T]he only allegations specific to Steadfast that are raised in the SAC are that Steadfast “hosts” pirate sites, including Imagebam, and that Plaintiff has sent numerous notifications to Steadfast of infringing content on Imagebam, but Steadfast has failed to implement or enforce a repeat infringer policy by removing Imagebam from its servers.
Beyond that, ALS's complaint contains nothing that shows evidence of its claims.
Steadfast also contends that the SAC fails to allege material contribution or inducement. The Court would agree. The SAC alleges only that Steadfast “hosts” pirate sites that feature infringing content. It is entirely unclear what services Steadfast provides to Imagebam; what type of infringing activity Imagebam conducts (or even what Imagebam is); or how Steadfast contributes to or facilitates that infringing activity. As such, the Court would find that the SAC fails to plead material contribution.
The same goes for the rest of the allegations. Steadfast did not induce or contribute to infringing activity at hosted sites, nor did it somehow violate ALS's trademarks by hosting sites where infringing images could be found.
As Judge Wu's opinion points out, it's not up to the court to determine whether sued websites are "responsive enough" to rightsholders' demands. The law rightsholders wanted -- the DMCA -- sets the rules and as long as sites and hosts follow the statutory requirements, they're insulated from most infringement claims.
It appears ALS is engaging in pray-and-spray litigating. Beyond the Does, there's been no attempt made to target those actually participating in copyright infringement. Instead, ALS sued a bunch of hosting companies (and an ad network) in hopes of landing a settlement or two before its allegations were exposed as weak and baseless by the presiding judge.
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Posted on Techdirt - 23 February 2017 @ 1:02pm
California's IMDb-targeting "ageism" law looks as though it won't be able to survive the website's Constitutional challenge -- an outcome that should have been foreseen while the bill was still in its crafting phase. The law was passed to address apparent age discrimination by movie studios. For whatever reason, the California legislature decided the best way to handle this was to force a web site to stop publishing actors' ages, rather than just, you know, enforcing the state's existing anti-discrimination laws. Sure, other similar sites would also (theoretically) be affected, but IMDb is the only one that's actually been sued by an aggrieved actress over its publication of facts.
Politico's Josh Gerstein reports the presiding federal judge doesn't see much to like in the new law and has granted a temporary restraining order to IMDb while
everything gets sorted out it rolls to its inevitable victory.
A federal judge has barred the State of California from enforcing a new law limiting online publication of actors' ages.
Acting in a case brought by online movie information website IMDb, U.S. District Court Judge Vince Chhabria ruled Wednesday that the California law likely violates the First Amendment and appears poorly tailored to proponents' stated goal of preventing age discrimination in Hollywood.
The order [PDF] is only three pages long, but it's more than enough space to detail the serious problems with California's law.
With respect to the first part of the preliminary injunction test, it's difficult to imagine how AB 1687 could not violate the First Amendment. The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. This is a restriction of non-commercial speech on the basis of content.
Going beyond the First Amendment issue, Judge Chhabria goes on to attack the premise underlying the ridiculous legislation.
To be sure, the government has identified a compelling goal – preventing age discrimination in Hollywood. But the government has not shown how AB 1687 is "necessary" to advance that goal. In fact, it's not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all. And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of anti-discrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website. Because the government has presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it's necessary to combat age discrimination), there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.
The Screen Actors Guild, which supports the new law, expressed its disappointment in the judge's ruling and stated it was "looking forward" to presenting evidence that targeting IMDb for publishing actors' ages will somehow reduce discriminatory practices by movie and TV studios. I'm looking forward to that as well, although for very different reasons than SAG is. Defending indefensible laws isn't much fun for those doing the defending, but it's an incredibly entertaining spectator sport.
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Posted on Techdirt - 23 February 2017 @ 11:49am
Perhaps no entity generates more fake news than the FBI's counterterrorism unit. Several times a year, a press release is issued announcing the bust of a so-called terrorist. Almost invariably, the "terrorist" has been handcrafted through the relentless intercession of undercover FBI agents.
Here's how the DOJ website describes its latest self-crafted anti-terrorism coup:
Robert Lorenzo Hester, Jr., 25, of Columbia, Missouri, was charged in a criminal complaint with attempting to provide material support to the Islamic State of Iraq and al-Sham (ISIS), a designated foreign terrorist organization. Hester was charged in federal court based on his role in making preparations to launch a terrorist attack with persons he believed were associated with ISIS, who were actually undercover law enforcement personnel.
And here are the far more mundane and sad details behind the official statement, as provided by Murtaza Hussain of The Intercept.
Robert Lorenzo Hester of Columbia, Missouri, didn’t have the $20 he needed to buy the 9-volt batteries, duct tape, and roofing nails his new FBI friends wanted him to get, so they gave him the money. The agents noted in a criminal complaint that Hester, who at one point brought his two small children to a meeting because he didn’t have child care, continued smoking marijuana despite professing to be a devout Muslim.
This is the supposed terrorist who would have killed hundreds of people on President's Day if the FBI hadn't stepped in to intervene. But the FBI's "intervention" looks suspiciously like "encouragement…" or "entrapment."
[T]he only contact Hester had with ISIS was with the two undercover agents who suggested to him that they had connections with the group. The agents, who were in contact with him for five months, provided him with money and rides home from work as he dealt with the personal fallout of an unrelated arrest stemming from an altercation at a local grocery store.
Undercover agents began working with/on Hester shortly after this arrest. Seizing on his anti-government social media posts [good lord], the agents told Hester they could put him in touch with someone with direct terrorist connections. This "direct connection" was just another FBI agent. It was the FBI that suggested acquiring weapons. And it was the FBI who chose to take Hester seriously, despite his nonexistent terrorist group ("the Lion Guard") sporting a name that had been pulled from a cartoon his children watched.
It was also an FBI agent who suggested that even thinking about planning a terrorist attack was an irrevocable act -- and that entertaining second thoughts about committing acts of violence would be rewarded with acts of violence.
The agent cautioned Hester that once he decided to proceed there was “no turning back.” He also told Hester that under no circumstances was he to do conduct any sort of operation on his own. The agent, referred to in the complaint as UC-2, then “threatened to come back and find HESTER if he learned that HESTER reneged on the promise. For emphasis, and for the purpose of mitigating the security threat posed by HESTER, UC-2 displayed a knife and reminded HESTER that UC-2 knew where HESTER and his family lived, among other forceful words.”
After threatening his family, FBI agents continued to push Hester forward with "his" plan to commit an act of terrorism. His plans required $20 worth of supplies… which Hester couldn't afford. But Hester did promise to be more materially-supportive in the near future:
Hester promised that he would help buy ammunition for the weapons once he had received the money from his tax refund.
A lot of the FBI's standard counterterrorism M.O. is on display here. The agency prefers to work with people in desperate or dire circumstances -- people who don't have the financial independence or mental toughness needed to create and carry out plans on their own. And when they get cold feet, agents apparently suggest their dire circumstances will be made even worse. The end result is the government congratulating itself for rounding up "terrorists" that likely never would have gone beyond anti-government Facebook posts if they'd been left alone. And for the few who appear capable of committing violent acts, the government pushes these people towards extremism rather than attempt to pull them back from this precipice.
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Posted on Techdirt - 23 February 2017 @ 9:43am
There aren't many rights extended to anyone in the "Constitution-free zones" we like to call "borders." You may have rights 100 miles inland, but the government's needs and wants outweigh citizens' and non-citizens' rights wherever immigration officers roam. According to the Supreme Court, warrants are required for cell phone searches. But neither the Constitution nor Supreme Court rulings apply within 100 miles of the border, where the government's needs and wants are considered more important than the protections they can avail themselves of everywhere else in the country.
Senator Ron Wyden is looking to change that. Rather than cede more ground to the rights-swallowing concept of "national security," Wyden is looking to change the laws governing the "Constitution-free zones."
Sen. Ron Wyden will soon introduce legislation to prevent Customs and Border Patrol agents from demanding the passwords to online accounts and mobile devices from American travelers without a warrant.
In a letter to Secretary of Homeland Security John Kelly dated Feb. 20, the Democratic senator from Oregon said border searches that take place without a warrant circumvent the right to privacy and “weaken our national and economic security.”
We'll see how that sits with John Kelly. Kelly appears to be on board with the new administration's "extreme vetting" immigration stance. He's offered to take the DHS's requests for immigrants' social media account info to the next level -- moving it from a voluntary request on visa application forms to mandatory demands for account passwords. Chances are, Kelly has about as little use for citizens' rights as he has for non-citizens in general. The security of the nation is prized above presenting the appearance of a Constitutional republic to the outside world.
Given the current climate in the White House, the legislation will be facing a steep uphill grade. But while we wait for the security vs. privacy legislative fistfights to commence, perhaps DHS head John Kelly will help us pass the time by explaining exactly what it is that he feels gives him the right to search devices without a warrant and/or demand this country's visitors hand over their social media account passwords. From Wyden's letter [pdf]:
1. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person disclose their social media or email account password traveler?
2. How is CBP use of a traveler's password to gain access to data stored in the cloud consistent with the Computer Fraud and Abuse Act?
3. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person turn over their device PIN or password to gain access to data? How are such demands consistent with the Fifth Amendment?
4. How many times in each calendar year 2012-2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a smartphone or computer password, or otherwise provide access to a locked smartphone or computer? How many times has this occurred since January 20, 2017?
5. How many times in each calendar year 2012, 2013, 2014, 2015, and 2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a social media or email account password, or otherwise provide CBP personnel access to data stored in an online account? How many times has this occurred since January 20, 2017?
Then again, perhaps not. Government officials are kind of used to ignoring questions they don't feel like answering. This will put Wyden back in a familiar position: repeatedly asking unanswered questions of agency officials at any Congressional hearing his opponents can't keep him from attending.
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Posted on Techdirt - 22 February 2017 @ 9:43pm
House Oversight Committee chairman Jason Chaffetz, along with his Senatorial counterpart Ron Wyden, is tackling something he promised to act on after he was finished excoriating the leaky Office of Personnel Management for ruining the lives of millions of Americans: Stingray devices.
A bipartisan group of House and Senate lawmakers introduced legislation Wednesday requiring police agencies to get a search warrant before they can deploy powerful cellphone surveillance technology known as "stingrays" that sweep up information about the movements of innocent Americans while tracking suspected criminals.
“Owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements," said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who introduced the bill with Reps. Jason Chaffetz, R-Utah, and John Conyers, D-Mich. "Law enforcement should be able to use GPS data, but they need to get a warrant. This bill sets out clear rules to make sure our laws keep up with the times."
What the bill would do is codify the DOJ's "Stingray Best Practices" policy, which implemented a warrant requirement for cell site simulator deployment -- albeit one that wasn't really a requirement because it wasn't statutorily-required. This would be the statutory requirement the DOJ's better-late-than-never approach to constitutionality was missing.
But the bill doesn't limit itself to cell tower spoofers. It also would add a layer of protection to data the DOJ has long argued isn't covered by the Fourth Amendment.
The legislation introduced Wednesday, called the Geolocation Privacy and Surveillance (GPS) Act, would require a warrant for all domestic law enforcement agencies to track the location and movements of individual Americans through GPS technology without their knowledge. It also aims to combat high-tech stalking by creating criminal penalties for secretly using an electronic device to track someone's movements.
This legislation is the sort of thing courts are apparently looking for when they kick crucial issues down the road. When outdated statutes present opportunities to redefine the Fourth Amendment's confines, judges are frequently willing to tell plaintiffs and defendants to take it up with Congress if they don't like the answer/non-answer they're presented with.
The Supreme Court is no exception. When it (sort of) found warrants might be a good idea when deploying GPS devices for long-term tracking, it never went quite so far as to say a warrant should be a requirement in all cases. It seemed concerned about the length of the tracking but left it at PROBABLY when all was said and done.
The DOJ has often argued that several outdated statutes should be updated to reflect the changing contours of today's connected, always-online world. But this is not the sort of thing it's ever argued for. It would much prefer to see its power and reach expanded at the expense of Americans' privacy. This bill, if passed, wouldn't necessarily fix what's wrong with past legislation and jurisprudence. But it will at least prevent multiple law enforcement agencies from deploying these invasive devices on a whim, or using them to engage in mass surveillance just because they can.
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Posted on Techdirt - 22 February 2017 @ 2:42pm
Unless the Supreme Court decides to weigh in on this long-running SLAPP lawsuit (highly unlikely -- and unlikely to be appealed to that level), it looks like it's finally the end of the line for Dr. Edward Tobinick and his quest to silence a critic of his questionable medical practices.
Quick recap: Dr. Tobinick claimed he could treat Alzheimer's, strokes, and other neurological maladies by repurposing an immunosuppressant drug. Dr. Steven Novella disagreed with Tobinick's unsubstantiated claims and wrote a few blog posts detailing his problems with Tobinick's treatments.
Tobinick is not a neurologist, and yet he feels it is appropriate for him to treat multiple neurological conditions with an experimental treatment. It is generally considered unethical for physicians to practice outside of their area of competence and expertise. He is trained in internal medicine and dermatology and is certified in those specialties. He has never completed a neurology residency nor is he board certified in neurology.
Despite his lack of formal training and certification, he feels he has ushered in a “paradigm shift” in the treatment of Alzheimer’s disease – a disease that has proved challenging for actual neurologists for decades.
Novella is not alone in his criticism of Tobinick's untested treatment methods. Early on in the case, Marc Randazza summarized the general medical community mood.
Dr. Novella’s critical opinions of the Plaintiffs are not outlier views. In fact, the prevailing view seems to be that Dr. Tobnick is, at best, irresponsible. On the first page of Google alone, there are numerous other articles written by other authors, entirely unrelated to the article at hand, that also express critical and unflattering opinions of Tobinick and Plaintiffs’ “medical” practice.
Hoping to avoid an anti-SLAPP ruling or the judicial scrutiny that normally comes with defamation complaints, Tobinick tried to frame his censorship pleas as trademark law violations, claiming Novella's blog posts were "commercial speech" designed to interfere with his ability to earn an income treating people with questionable drug repurposing.
The lower court didn't care much for Tobinick's arguments. It found no merit in his severely-stretched Lanham Act claims and, better yet, applied California's anti-SLAPP law to the lawsuit Tobinick filed in Florida.
Tobinick appealed. And all he's really succeeded in doing is generating more legal fees he'll be responsible for. The Eleventh Circuit Appeals Court has upheld [PDF] the lower court's decision, handing Dr. Novella, attorney Marc Randazza, and the First Amendment a significant win. (If you're a fan of oral, the arguments can be found here.)
Appellants Edward Lewis Tobinick, MD (“INR CA”), INR PLLC (“INR FL”), and M.D. Edward Tobinick (“Dr. Tobinick”) (collectively, the “Tobinick Appellants”) appeal the district court’s orders striking INR CA’s state law claims pursuant to California’s anti-SLAPP statute, twice denying amendment of the Tobinick Appellants’ complaint, denying relief pursuant to Federal Rules of Civil Procedure (“Rule”) 37, 56(d), and 60 due to potential discovery-related abuses, and granting summary judgment against the Tobinick Appellants on their Lanham Act claim. We affirm the district court in all respects.
As for Tobinick's attempt to keep an anti-SLAPP law from another state from killing his Florida lawsuit, the appeals court points out that if this was an issue Tobinick wanted addressed, he needed to raise it with the lower court, rather than use the appeals process to develop unexplored options.
The Tobinick Appellants waived their challenge to the district court’s application of California’s anti-SLAPP statute based on the Erie doctrine. The Tobinick Appellants did not raise the Erie claim in their response to Dr. Novella’s special motion to strike INR CA’s state law claims, nor do the Tobinick Appellants now contend that they ever raised the issue before the district court. Moreover, when asked by the district judge “what about the issue of anti-SLAPP statutes applying in diversity cases in federal court?” the Tobinick Appellants’ counsel responded “[t]here seems to be a plethora of case law that suggests that it is allowable in diversity actions in federal court.”
No exception to waiver saves the Tobinick Appellants’ claim. The Tobinick Appellants have not identified any miscarriage of justice resulting from a finding of waiver, nor do we see one, given the weakness of the Tobinick Appellants’ state law claims.
The appeals court is even less kind to Tobinick's Lanham Act violation accusations -- all of which hinge on defining Novella's blog posts as commercial speech. Not only did Tobinick repurpose trademark law in an attempt to turn a baseless libel lawsuit into something that might survive the first motion to dismiss, but his Lanham Act arguments rely on a conspiracy theory Alex Jones himself might find implausible.
As a preliminary matter, there is no factual dispute as to where the articles were displayed online, how the websites were set up, and whether the websites generated revenue through advertisements and membership subscriptions. The Tobinick Appellants describe a complex “funneling” scheme to generate profit for Dr. Novella, in which the Tobinick Appellants claim that the two articles are connected to other websites through hyperlinks in a way that readers are directed to websites that generate revenue for Dr. Novella, such as through advertising or membership subscriptions. This funneling theory, which attempts to connect the articles to revenue sources, relies on such a level of attenuation that it fails to demonstrate economic motivation in the commercial speech context.
Even if it were more easily-connected, Novella's speech would still be protected and not in violation of the Lanham Act. The court points out Novella's medical practice has no overlap with Tobinick's. Furthermore, the content of Novella's articles -- the examination of a potentially-dangerous misapplication of immunosuppressant drugs -- is very much in the public interest, which only strengthens its First Amendment protections.
As the court points out, finding critical speech that results in revenue a violation of the Lanham Act would do serious harm to the most famous beneficiaries of the First Amendment.
To be sure, neither the placement of the articles next to revenue-generating advertising nor the ability of a reader to pay for a website subscription would be sufficient in this case to show a liability-causing economic motivation for Dr. Novella’s informative articles. Both advertising and subscriptions are typical features of newspapers, whether online or in-print. But, the Supreme Court has explained that “[i]f a newspaper’s profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position—would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.”
Furthermore, as our sister circuits have recognized, magazines and newspapers often have commercial purposes, but those purposes do not convert the individual articles within these editorial sources into commercial speech subject to Lanham Act liability.
This puts Dr. Tobinick back where he was in October 2015: on the hook for legal fees because he figured the best response to speech he didn't like was a bogus Lanham Act lawsuit. And, as is of particular relevance given recent events, more courts are applying states' anti-SLAPP laws to baseless lawsuits, regardless of the jurisdiction in which they're filed.
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Posted on Techdirt - 22 February 2017 @ 10:45am
Those who thought the domestic surveillance Ed Snowden exposed was perfectly acceptable and lawful are finding it much harder to stomach with Trump in charge. The Lawfare blog, which routinely hosts articles supportive of government surveillance activities, has taken on a new tone over the past few months. The lesson being learned: if a power can only be trusted in certain people's hands, then it really can't be trusted in anyone's. This belated realization is better than none, but one wonders if the drastic change in tone would have followed an election that put Hillary Clinton in the White House.
That's not to say the first month of Trump's presidency has borne any resemblance to a "peaceful transition of power." The federal government isn't just leaking. It's hemorrhaging. Underneath the recent ouster of Mike Flynn, Trump's former National Security Advisor, is something disturbing.
What's disturbing isn't the surveillance -- although in "normal" circumstances it might be. Flynn was dumped because recorded phone calls captured him discussing sanctions with Russian officials. This domestic surveillance isn't unheard of. The fact that this information -- including the content of the calls -- was leaked to the public is more notable.
Calls to foreign officials are fair game for US surveillance efforts. The last-minute removal of restraints on sharing unminimized US persons data/communications by the Obama administration just served to ensure Flynn's calls would end up in the hands of multiple federal agencies. The timing of the loosened restrictions is worth noting though, as Marcy Wheeler does in this post about the Flynn ouster.
Finally, remember that for a great deal of SIGINT, FBI wouldn’t need a warrant. That’s because Obama changed the EO 12333 sharing rules just 4 days after the IC started getting really suspicious about Flynn’s contacts with Russia. That would make five years of intercepts available to FBI without a warrant in any counterintelligence cases, as this one is.
But what Lawfare's Adam Klein is concerned with isn't the sharing of unminimized communications between agencies. As he points out in his post, all of that's perfectly legal. What he's more concerned with is the actions of the intelligence community, which has made all of this public.
[T]his case illustrates why surveillance law treats U.S.-person information with the same healthy fear we associate with nuclear waste and biohazard material—that is, with the vigilance reserved for things that are inherently dangerous if not closely guarded. As Eli Lake wrote this week in Bloomberg View, selective leaking of U.S.-person information “gives the permanent state” (or political appointees entrusted with the information) “the power to destroy reputations from the cloak of anonymity.” Even if not leaked to the press, such information can be misused: J. Edgar Hoover and his subordinates infamously used salacious information gleaned from FBI surveillance of Martin Luther King, Jr., to pressure King to retreat from public life.
That's what's happening and that's a cause for concern. The NSA and others have always had these powers, but we were assured they wouldn't be abused. In this case, the abuse isn't in the collection or dissemination (all of it now "lawful"), but in the use of leaked information to kick out a National Security Advisor.
Trump has made few friends in the intelligence community since he became president, comparing the CIA to Nazis and making comments about unprofessional behavior. The problem for Trump is he's fighting with agencies particularly well-armed to take him down. But that's not what we want from our intelligence agencies. They're not tools of government accountability. They're tools for totalitarianism restrained only by oversight and a rigorous set of rules. (I mean, in theory...) But the IC appears to be ignoring the checks and balances put in place to guard against the destruction of the government's head by its body.
It's one thing to cheer for the public flailing of a President you don't like. It's quite another to cheer on the dangerous, easily-abusable network of domestic surveillance that makes it possible.
So, the issue here is more the leaks than the surveillance. The surveillance has its own problems, but the willingness to leak information damaging to US persons -- even if it prevented someone who possibly shouldn't be a National Security Advisor from keeping his job -- is a disturbing indicator of just how much power these agencies (at least 16 of them) now wield, thanks to information sharing.
The other problem is the hypocritical way Trump and his supporters are dealing with the leaked info. Trump wants an investigation to uncover the source of the leaks. Fair enough (albeit somewhat hypocritical, given his love of Wikileaks...). But the House Oversight Committee and Trump himself have no interest in taking a deeper look into the allegations against Mike Flynn. Nonsensically, House Oversight Committee head Devin Nunes said the recording of the phone calls was itself "disturbing." This is something someone involved in intelligence oversight should already know is a perfectly lawful interception under statutes he helps shape and define.
It's a dangerous time to be a whistleblower, as the administration appears far more interested in going after leaks it doesn't like than potentially-illegal behavior by its own staff. And it's just as dangerous to be the target of intelligence committee animosity. No more dangerous than it's always been, but in recent days, we've been given a pretty clear picture of how quickly lawful surveillance can ruin a person's life.
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Posted on Techdirt - 22 February 2017 @ 3:17am
The European Commission is still (slowly) moving forward with its plan to dump a link tax on service providers like Google, Facebook, etc. in hopes of propping up local news outfits. The plan has been in the works for a couple of years now and it's looking like the longer the planning goes on, the less likely it is to result in something that makes its advocates happy.
A long report from Politico details the current state of this doomed venture. And it is doomed. Even if implemented in a way that makes news outlets happiest, the end result will be less incoming traffic from some of the most-used sites in the world. Some news agencies aren't so sure this is the way forward.
“Other stakeholders are challenging the provision … questioning not only whether this is the best way of addressing concerns of press publishers vis-a-vis digital technologies, but also questioning whether the Commission proposal is adequately restricted to such concerns,” Therese Comodini Cachia, the Maltese rapporteur shepherding the proposal through Parliament, told POLITICO.
Translation: Opponents of the plan, including some small web publishers, worry it could choke traffic to their sites by creating a thicket of regulations that will dissuade Google and other platforms from driving users to them. These critics also argue that a publisher’s right will create a “link tax” (a phrase that supporters liken to a slur) but won’t achieve its backers’ main aim: to save the news sector’s broken business model.
That's the problem with short-sighted legislation like this: it fails to consider the options available to those hit with the link tax. And it's not as though there's no information available that indicates what the future would hold for supposed beneficiaries of the link tax. Past efforts in Spain and Belgium to institute a link tax (targeting Google) resulted in the search engine pulling out of the market by dumping any search results that might have resulted in tax liability.
Then there are the numerous ways it might affect the average computer user -- beyond finding fewer local articles on Facebook or fewer search results when Googling.
The plan’s loudest critic has been Green MEP Julia Reda. Originally elected as a member of the Pirate party, Reda’s encyclopedic knowledge of copyright has made her a respected adversary for the publishers. She’s shown a particular knack for condensing the legalese of copyright reform into alarmist soundbites. She has argued, for example, that the Commission proposal could affect how articles are shared on Twitter, something both the Commission and the publishers deny.
As is to be expected, the lack of forward progress is being blamed on Google. Proponents of the link tax are complaining about Google's lobbying efforts in Europe, as though the company should do nothing more than sit down, shut up, and start paying FOR DRIVING TRAFFIC TO THEIR WEBSITES.
Opponents of the tax say it's not up to the EC to force other companies to prop up struggling businesses. Those advocating for the tax say it's not up to the EC to question the soundness of their business decisions. It's about ownership… or so they claim.
The publishers counter that it’s not up to Parliament to analyze the merits of their commercial strategy. What’s at issue is a basic question of ownership, and the publishers say it is incumbent on legislators to protect their rights. In the pre-digital age, such protections weren’t necessary because news content didn’t fall victim to large-scale piracy. The internet, the publishers argue, has changed that because articles can be disseminated far and wide with a few clicks.
This attitude speaks directly to the concerns raised by Green MEP Julia Reda. The publishers view sharing as piracy -- a view not shared at all by millions of people who post links on social media and, again, help drive traffic to the sites. Very few people share news articles by taking entire posts and redistributing them through third parties. And Google -- the top target in the proposed legislation -- does nothing remotely approaching this bizarre definition of piracy with its links to sources and small snippets of article text.
That disconnect between what publishers feel is "right" and what the rest of the world believes is acceptable is yet another nail in this legislation's coffin. Even if it passes, it won't do what publishers hope it will. Google will stop linking to European content. People will find less and less local content being shared. And for all the complaining about Google's lobbying efforts, publishers have no problem touting their own as a reason the terrible proposed legislation might one day become law.
Despite the skepticism, the publishing lobby remains sanguine, confident that its deep political connections will ultimately see the legislation through.
“The news media sector is optimistic that policymakers agree on the need for a publishers’ right,” said Wout van Wijk, executive director of News Media Europe, a lobbyist for press publishers. “Such a right will create the legal certainty needed for further investments and innovation to guarantee a free and pluralistic media landscape in Europe.”
Granting this right won't fix publishers' problems. It might give them more ways to sue, but flagging new agencies can't be legislated back into fiscal health -- especially if it means levying taxes on US companies to prop up European entities. In the end, publishers may get what they THINK they want, but they won't be seeing any return on the lobbying investment. Anything that discourages the free (as in "open") dissemination of information tends to work out worst for those compiling the information. A link tax is just a band-aid to be applied to the internet's surface, unable to staunch the blood flow of the new publishing industry's internal wounds.
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Posted on Techdirt - 21 February 2017 @ 4:46pm
In 2009, April Yvette Smith was arrested on drug dealing charges and spent 80 days in jail. The charges were ultimately dropped by the district attorney, but by the time it happened, Smith had already lost her job. The same can't be said for the officer who obtained her arrest warrant. His job was always secure. The only thing he's lost -- seven years after the fact -- is his immunity from Smith's civil rights lawsuit.
The chain of events leading to Smith's wrongful arrest are as horrible as they are stupid. Somewhere between Barney Fife and the banal evil of law enforcement ineptitude lies Officer Jason Munday. It starts with a "wired" confidential informant and ends in an indifferent "investigation" that sounds as though Munday just got bored sitting around the office.
Here's how it began, as detailed in the Fourth Circuit Court of Appeals opinion [PDF]:
On March 10, 2009, officers Munday and McGinley conducted an undercover investigation using a confidential informant, Rufus Lynch Sr. The officers searched Lynch, wired him with audio and video recorders, and gave him sixty dollars. Lynch then went to 728 East Pine Street, where he purchased crack cocaine from two individuals. After the transaction, Lynch returned to the officers. He told the officers that he purchased drugs from April Smith, a black female. The detective’s notes identify April Smith as such: “B/F April Smith,” and “April B/F skinny $20 1 rock in plastic, Smith 40s.”
So far, so good… except for the many small details that collaborated to ensure the recording was useless.
Because the audio recorder had no batteries, it failed to record the transaction. And because the camera wired to Lynch pointed in the wrong direction, the video recording did not capture the drug sale. The video instead shows an unidentified black woman sitting on a front porch, and two other individuals standing on the porch.
Sending out someone to collect recordings and ending up with something approaching hearsay isn't the best way to begin an investigation. But that didn't stop Munday from moving slowly and fitfully towards an arrest he had no probable cause to make.
At some point during the next nine months, Munday scanned police databases for residents of Lincoln County named April Smith with criminal records. He then stumbled upon April Yvette Smith, a black woman who lived in Lincoln County and had been convicted of selling crack cocaine in 1993, 1997, and 2005. His search also revealed at least two other April Smiths with criminal records. He had no indication that the woman who sold crack cocaine to Lynch in March 2009 had a criminal record, or was even a Lincoln County resident. And the record reflects no further attempt by Munday to investigate Smith or connect her to the crime.
Having wrapped up his ultra-cursory investigation, Munday applied for an arrest warrant, snagging one of the April Smiths he had come across during his desktop browsing -- nine months later and eleven miles away from the site of the drug sale that wasn't properly recorded.
April Smith spent the next 80 days in jail, facing potential prosecution. Munday presumably went back to half-assing his way through his law enforcement career.
The lower court granted Munday immunity, stating that probable cause existed to arrest pretty much any April Smith who fit at least part of the description. The Appeals Court disagrees.
[E]ven ignoring Smith’s weight, a criminal history, common race, common gender, and unfortunately common name is not enough to establish probable cause.
When applying for an arrest warrant, Munday simply did not have enough information for any reasonable or prudent person to believe there was probable cause. He lacked any information connecting Smith’s conduct to the contours of the offense, and certainly lacked enough evidence to create any inference more than mere suspicion.
As the court points out, Munday did nothing that even approached the definition of "investigation." All he did was browse a criminal record database and decide someone named April Smith was going to get a rap and a ride. For all the policework that went into this, Munday may as well have used a dartboard to generate his "probable cause."
[T]o find the offender, Munday merely ran a broad search in the department’s database of individuals with criminal histories, looking for a woman of the same name. And when he found multiple individuals, at least two of whom were black women named April Smith weighing between 130 and 140 pounds, he chose one for no immediately apparent reason.
There is no evidence that Munday attempted to identify Smith as the black woman in the video footage. There is no evidence that the officers showed Lynch a photo of Smith to establish the identification. There is no evidence that the officers investigated Smith herself, or found any indication that Smith frequented the site of the drug sale that day, that month, or at all. Indeed, there is no explanation whatsoever for the nine-month delay between Lynch saying a black woman named April Smith sold crack cocaine to him and the issuance of an arrest warrant for April Yvette Smith.
Citing a previous case handled by this circuit, the Appeals Court calls Officer Munday out for his abject failure to perform any investigative work whatsoever before moving forward with an arrest.
“Horner was ‘not required to exhaust every potentially exculpatory lead or resolve every doubt’” to show probable cause. Id. at 190 (quoting Miller v. Prince George’s County, 475 F.3d 621, 630 (4th Cir. 2007)). But he still had to conduct some level of investigation. And he did. Munday conducted none.
And so, the court concludes Munday can't have the immunity granted to him by the lower court. The warrant he applied for was so lacking in probable cause, the court cannot possibly extend him this legal nicety.
[E]ven a glance shows that Munday was unreasonable if he believed he had probable cause. Smith did have a criminal history for possessing and selling cocaine. But as discussed above, Munday had no evidence about her conduct whatsoever, let alone any evidence connecting her to the crime in question. It would be unreasonable for any officer to view Munday’s dearth of evidence as sufficient to establish probable cause. As a result, qualified immunity does not apply.
Because Munday failed to do his job, April Smith (allegedly) lost hers. Smith has already faced the consequences of Officer Munday's actions. Now, it's Munday's turn.
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Posted on Techdirt - 21 February 2017 @ 11:52am
In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.
Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]:
Grinalds asked Turner, “How’s it going, man? Got your ID with you?” Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, “I didn’t say you committed a crime.” Grinalds elaborated, “We have the right and authority to know who’s walking around our facilities.”
Grinalds again asked for Turner’s identification, and Turner asked Grinalds, “What happens if I don’t ID myself?” Grinalds replied, “We’ll cross that bridge when we come to it.” Grinalds continued to request Turner’s identification, which Turner refused to provide. Grinalds and Dyess then “suddenly and without warning” handcuffed Turner and took his video camera from him, and Grinalds said, “This is what happens when you don’t ID yourself.”
Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion:
Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, “You’re right.”
Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does… or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest.
After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.
First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is.
At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality”: “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Thus, Turner’s reliance on decisions that “clarified that [First Amendment] protections . . . extend to gathering information” does not demonstrate whether the specific act at issue here—video recording the police or a police station—was clearly established.
The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity.
We cannot say, however, that “existing precedent . . . placed the . . .constitutional question beyond debate” when Turner recorded the police station. Neither does it seem that the law “so clearly and unambiguously prohibited [the officers’] conduct that ‘every reasonable official would understand that what he is doing violates [the law].’” In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner’s activities.
This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent.
We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.
To be sure, “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.
In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward.
The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.
Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work.
The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” The majority derives this general right to film the police from “First Amendment principles, controlling authority, and persuasive precedent.” But the Supreme Court has repeatedly reversed attempts to define “clearly established law” at such “a high level of generality.” White, 137 S. Ct. at 552.
The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that.
To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police “carrying out their duties in public.” E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.
Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions.
The majority does not determine that the officers here violated Turner’s First Amendment rights—perhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.
If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.
Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:
Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turner’s detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisor—especially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.
Except that most people "waiting for a supervisor" don't do so while:
b.) sitting in the back of a locked squad car
The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.
The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him.
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Posted on Techdirt - 21 February 2017 @ 9:40am
President Trump appears to have thrown his support behind asset forfeiture, even as the issue has begun reaching critical mass in the mainstream media. (It's been thoroughly covered by more libertarian publications like Reason for years.) In addition to not being able to "see anything wrong with it," Trump jokingly suggested he'd ruin the careers of politicians mounting reform efforts.
His recent executive orders appear to back this "gloves off" approach to criminal justice. In addition to singling out immigrants as troublemakers, the orders ask law enforcement officials to take a look around and see if they're being constrained by any state or federal laws. Presumably, any recent forfeiture reform legislation would fall under this heading as it prevents law enforcement agencies from acting in the way they've become accustomed: seize first, convict later... if at all.
With Jeff Sessions in place as attorney general, asset forfeiture appears to be headed for the wrong kind of renaissance. Sessions is a firm believer in the general rightness of taking aways citizens' property and due process simultaneously because, as he sees it, the process only affects people who've "done nothing but deal dope their whole lives."
Now, there's this: Rep. Jim Sensenbrenner is offering up another bill with a clumsily reverse-engineered acronym -- one that could further pervert the incentives of asset forfeiture. (via Watchdog.org)
Today, Congressman Jim Sensenbrenner introduced the Build Up Illegal Line Defenses With Assets Lawfully Lifted (BUILD WALL) Act of 2017 in the House of Representatives.
This legislation would require the U.S. Attorney General to provide a detailed report on the amount of annual profits brought into the United States by Mexican drug cartels, as well as a study of how the Department of Justice can increase assets seized from such cartels.
Additionally, the BUILD WALL Act would use money forfeited from drug traffickers to fund increased border security on the U.S./ Mexican border. This defense could include a wall, another type of physical barrier, and/or a technology-supported solution. The use of this funding would ease the financial burdens on taxpayers and help build stronger relations between the United States and Mexico while fighting back against drug trafficking in both countries.
While Sensenbrenner's statements mention Mexican drug cartels, the reality is that the billions the cartels make from drug sales are safely back in Mexico and (mostly) out of reach of US law enforcement. That leaves everyone on this side of the border, who can now be viewed as unwilling donors to the cause. If Trump's ever going to be able to, uh, BUILD WALL, he's going to need several billion more dollars than was stated in his original estimate. That's where Mr. and Mrs. Interstate Traveler come into play. A few hundred dollars here and there, and eventually it adds up to real wall-building money.
This means the federal government would be looking to take a larger share of any revenue generated from asset forfeiture in partnerships with local law enforcement. This may not make the local boys happy, but considering many of them use these partnerships to route around local forfeiture restrictions, they can't complain too much about the slightly-smaller cut of the proceeds, when the alternative might be nothing at all.
Lawmakers who support DJT's Folly are casting about in hopes of landing a few billion in wall funding. Mexico has only extended a middle finger in response to the Wall Plan, so it's up to us Americans to make a billionaire's dreams come true. If that means having our cash, cars, and houses seized without accompanying criminal allegations, much less convictions, so be it. The security of our nation depends on our unwilling sacrifice. This wall must be built to ensure our nation is only susceptible to the thieves already in our midst.
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Posted on Techdirt - 21 February 2017 @ 6:33am
It looks like Apple decided to drop in on flyover country in hopes of thwarting a "Right to Repair" bill pending in the Nebraska legislature. It did not go well.
[T]he prospect of a Cupertino-based megacorporation losing business to local repair shops isn't a very sympathetic argument at the Nebraska statehouse. And so Apple has tried a slew of other tactics, according to state Sen. Lydia Brasch, who was recently visited by Steve Kester, an Apple state government affairs specialist.
"Apple said we would be the only state that would pass this, and that we would become the mecca for bad actors," Brasch, who is sponsoring the bill, told me in a phone call. "They said that doing this would make it very easy for hackers to relocate to Nebraska."
Apple probably expected its heavy-handed (and stupid -- more on that in a bit) "suggestion" to be taken more seriously by podunk legislators in the middle of nowhere. Unfortunately for Apple, Brasch isn't just a legislator in a state mainly known for corn and football-as-religion.
Brasch is not only an Apple customer, but she's a farmer who has had to deal with plenty of repair-blocking BS from companies like John Deere. She also has a background in computer science and an apparent tendency to not let corporate lawyers talk down to her.
Not only did Apple pick the wrong legislator to threaten, its threat is incoherent. I've spent most of the last 15 years in the Midwest and, trust me, it would take far more than a right-to-repair bill's passage to make Nebraska a mecca of anything. (Beyond college football, he said to head off the Cornhusker faithful most likely already demanding a retraction…)
Then there's the thing about "hackers." There's more than one type of hacker, but Apple dropped it as a pejorative term in hopes of conjuring images of hoodied figures sitting in dark rooms with the local SWAT team on speed dial and deploying some sort of encryption… you know, the evil kind.
All sorts of nonsensical arguments are already being raised in response to a handful of right-to-repair bills around the nation. The corporate version of "you'll shoot your eye out" has been deployed to portray DIY repair jobs as hospitalizations waiting to happen.
The idea that it's "unsafe" to repair your own devices is one that manufacturers have been promoting for years. Last year, industry lobbyists told lawmakers in Minnesota that broken glass could cut the fingers of consumers who try to repair their screens, according to Gay Gordon-Byrne, executive director of Repair.org. Byrne said she will also testify at the Nebraska hearing and "plans to bring band aids."
Apple's take is this: the "hacker mecca" thing plus a very short parade of not-all-that-horribles.
Brasch said the representatives made two other main arguments: They said repair could cause lithium batteries to catch fire, and said that there are already enough authorized places to get iPhones repaired, such as the Apple store.
Define "enough." As Brasch points out, getting her devices repaired "conveniently" involves setting up an appointment at the nearest Apple store, which is 80 miles from where she lives. Apple certainly doesn't mind taking money from rurally-located customers when selling devices. But it's not nearly as willing to make repairing their purchased products actually convenient.
And it's not just Apple. Other phone manufacturers have spoken to Brasch in an attempt to get her to drop the legislation, or at least rewrite it in their favor.
"They said just take out the 'phone' part of the bill and we'll go away," Brasch said. "That's tempting, but we need to repair consumer technology too."
Brasch's bill sprung out of her frustration with repairing her farm's equipment, which has been made increasingly difficult by John Deere's refusal to allow anyone other than repair shops it makes to profit from touching its products. Phone manufacturers have the same attitude. They express faux concern about consumer safety while preventing consumers from having any control over how their purchased devices are repaired. The concern most of these companies have for their consumers only extends as far as their ability to purchase add-ons, new products, and inconvenient repairs at non-competitive prices. The battle is over bottom lines, not consumer safety, no matter how it's spun and no matter how many hacker-based horror stories are spun.
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Posted on Techdirt - 17 February 2017 @ 10:49am
In what looks to be the FNG currying favor with the new boss, rookie Congressman Jim Banks is introducing a bill that would turn the DHS's social media prying from something it would like to do to something it has to do.
Congressman Jim Banks (IN-03) today will introduce the Visa Investigation and Social Media Act (VISA) of 2017, legislation to strengthen the vetting process for visa applicants. The bill is the first piece of legislation that Congressman Banks will introduce.
While CBP and DHS have been asking incoming foreigners for social media info for a while now, the process has been voluntary -- or at least as voluntary as any process can be when one side holds all the power. New DHS Secretary John Kelly suggested this would expand further in the near future, moving from requests for social media handles to demands for account passwords.
Rep. Banks appears to be making a move to codify the DHS's requests for social media info. It doesn't go so far as to demand account passwords, but it would make examination of foreigners' social media accounts part of the vetting process. The bill's text hasn't been posted yet, but here's what Rep. Banks' website says the legislation will include.
The VISA Act of 2017 would require the Department of Homeland Security to include the following in the background check of any individual applying for a visa to the United States:
A review of the applicant’s publicly available social media activity (i.e. public tweets, YouTube videos, Facebook photos and posts);
An interview of each applicant who is age eleven years or older;
A fraud-prevention check of each applicant’s documentation; and
A requirement that the applicant provide an English translation of his or her documentation.
Rep. Banks says this is no different than the process companies use to vet new hires. That's a truly bogus comparison. While some companies view applicants' social media posts when considering them for employment, very few are demanding social media account information as part of the application process. Those that do tend to drop the policies as soon as they're made public. (And child labor laws pretty much rule out interviews of tweens and teens.)
What's most troubling about this new rep's bill is its complete uselessness. The only real change it makes is dropping three years from the interview requirement (from 14 to 11). Everything else is something Customs already does. Vetting of social media posts has been part of the process for months. Banks' bill just makes it a requirement for the DHS to perform social media checks on all applicants. The legal ball will get pushed downhill, which will force applicants to hand over this info. ("In compliance with [insert US Code info here], DHS/CBP require applicants to provide social media account information, etc.") This may make it easier for the DHS to start demanding passwords, but the bill limits itself to public posts.
As for the rest of it, it's completely redundant. Extensive background checks are run on all applicants against several databases and Customs has required an English translation of visa applicants' documentation for years.
Banks likes corporate analogies so he should be aware his effort looks like a new hire trying to make his mark -- not by being a valuable addition to the company -- but by enthusiastically offering up worthless suggestions that signal your "Company Man" virtues to upper management.
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Posted on Techdirt - 17 February 2017 @ 9:47am
President Trump's three new law-and-order Executive Orders are designed to combat a largely-nonexistent crime wave and increase protections for one of the most-heavily protected groups in America: law enforcement officers. The orders also mixed crime prevention and national security into a single bowl, making criminal activity inseparable from threats to the nation -- especially if foreigners are involved. In addition to his travel ban and his Two Minutes Hate reporting system, Trump also singled out illegal immigrants in these "law and order" orders, implying that they were to blame for much of the perceived crime problem.
That's in addition to some off-the-cuff remarks Trump made during a meeting with several sheriffs, where he suggested there was no need to reform asset forfeiture and joked that those pushing reform efforts should have their careers ruined by the nation's top (proxy) cop: Donald Trump.
The president may unequivocally have law enforcement's back for the next four years (at minimum), but the nation's top cops don't have his. Or, at the very least, they don't agree with Trump's hardline, anti-crime, pro-cop-always stance. In a report [PDF] filled with suggestions for the new president, a coalition of police chiefs, district attorneys (including Manhattan decrypto warrior Cyrus Vance), and other police officials agree that the ideas Trump is pushing so far are only going to make the nation's policing -- and the nation's relationship with police -- worse.
While Trump has been calling for longer sentences, increased law enforcement presence, and projected a zero tolerance approach to everything until crime rates lower (or at least his perception of crime rates -- the stats don't back up his claims), this group says throwing the book at everyone is just going to perpetuate criminal activity.
We urge the Administration and Congress to carefully consider new crime policies, and adopt and support those that fight crime effectively. Decades of experience have convinced us of a sobering reality: today’s crime policies, which too often rely only on jail and prison, are simply ineffective in preserving public safety. We need not use arrest, conviction, and prison as the default response for every broken law. For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.
Once inmates are released, they struggle to find employment, housing, and other necessities that would re-integrate them into society. Facing few legitimate opportunities, many ex-offenders return to crime. The higher the incarceration rate for such offenders, the less safe the citizenry. We must instead consider those policies that better preserve public safety. Dangerous, violent offenders should be behind bars, but incarceration is not necessarily the best tool to put non-violent offenders back on the road to productive, law-abiding lives.
The report also points out that throwing money at the problem hasn't helped either. Money is useful, but only if it's spent on useful activities.
Each year, the federal government spends billions in criminal justice grants to support overwhelmed police department and government budgets. For example, the Department of Justice offered $5.5 billion in grants to local agencies in 2016. These dollars fund law enforcement efforts to investigate and prosecute crimes. However, to a large degree, these outlays are not targeted at fighting violent and serious crime. In fact, some of these dollars are expended on antiquated law enforcement tools, such as dragnet enforcement of lower-level offenses. This misses an opportunity to prioritize resources towards more effective ways of fighting violent and serious crime in the states. Without such change, states will continue inefficient enforcement techniques.
Also discussed are sentencing reform, increased efforts to better deal with drug addicts and the mentally ill (something that doesn't involve regular deployments of force/jail time) and a heavier focus on community policing. What it doesn't contain are suggestions to roll back all of this to the mid-80s and pretend we have something like a crack epidemic to attend to. The conclusory paragraph says -- contrary to Trump's viewpoint -- that efforts in these areas will result in better law enforcement and safer communities.
But while many police officials and prosecutors disagree with Trump, police unions disagree with police officials (and prosecutors) -- albeit without going through the trouble of producing a report that explains their side of things.
“I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”
These comments are illuminating. In both cases, constitutionally-adherent policing is viewed as "soft." That's how far the pendulum has actually swung, despite Ramos' assertion to the contrary. Many police officers act as though the Constitution only applies to people they never interact with. For everyone else, their rights are whatever rights the officer feels they have at the time. As long as these rights don't prevent them from doing what they want, citizens are free to enjoy them. If not, take the complaint to court where various levels of immunity will routinely allow Constitutional violations to go unpunished.
A long list of DOJ investigations confirm law enforcement's generally negative attitude towards the people they police. First, an "us vs. them" attitude dehumanizes anyone not wearing a badge. Effective policing is unconstitutional policing, and cops aren't going to let a bunch of rights get in the way of cracking heads and asserting their authority. Undoubtedly, officials like Canterbury and Ramos view sentencing reform, community policing, curbing non-essential arrests, handling mental illness with more care, etc. as "soft" as well. And the new president appears to be onboard with this backwards thinking -- where adhering to the Constitution is a luxury a supposedly-besieged law enforcement community can no longer afford.
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Posted on Techdirt - 16 February 2017 @ 3:43pm
Another court has stepped up to inform law enforcement that just because criminals are known to use cell phones doesn't mean any cell phone possessed by a suspect is fair game -- warrant or no warrant.
This time it's the Superior Court of Delaware making the point. In its suppression of evidence found on a seized cell phone, the Superior Court makes it clear that cell phones are used by everyone -- not just criminals. Not only that, but if an officer is going to seek a warrant that effectively allows them access to the owner's entire life, the warrant needs to contain more specifics and limitations than this one did.
During a consensual search of an apartment where a homicide suspect (Qualeel Westcott) was staying, police came across heroin and three mobile phones. All three of the phones were seized. A warrant was obtained to search the content of the phones. But a warrant alone isn't good enough. While a warrant is better than nothing at all, the warrant here -- according to the court -- barely exceeded "nothing at all."
While the court does recognize [PDF] there's a good likelihood that phones possessed by suspects will often contain useful evidence of criminal activity, it takes far more than the bare bones assertions made by the officer obtaining the warrant, which did almost nothing to establish a relationship between the phone and suspected criminal activity. (via FourthAmendment.com)
[H]owever, Detective Sergeant Horsman did not expressly state any nexus between Mr. Westcott's ownership of the mobile phone and the existence of evidence of the crimes (including a confession) on that mobile phone. Although the magistrate may draw reasonable inferences from the factual allegations of the affidavit, the leap required here is a long one. The mere fact that a defendant owns a mobile phone is not, in and of itself, sufficient to warrant an inference that evidence of any crime he or she commits may be found on that mobile phone. The affidavit did not provide probable cause for a search.
The court goes on to point out that even if Sergeant Horsman had managed to do a better job establishing a nexus, the warrant would still fail because of how broadly written it was. State law, along with judicial precedent, have set the bar higher for warrants seeking information stored in citizens' cell phones. As the Supreme Court pointed out in its Riley decision, phones are not simply "containers" that can be rifled through with a minimum of particularity. They are people's "entire lives." With that in mind, the warrant sought in this case is an abject failure.
Here, the search warrant authorizes a search of all "data and cellular logs." This description does not limit the scope of the officer's search of the mobile phones to relevant material and does not place any limitation on the types of "data, media, and files" to be searched.
There is also no temporal limitation on the search. The police alleged that the shooting occurred on May 11 and the presence of heroin at the apartment provided probable cause for its recent distribution. The police should have sought a more limited search warrant permitting the search of suitably recent data from the phones.
Instead, the application sought a general search "of the three phones." The warrant thus provides broad permission to rummage through the entire digital lives of the phones' owners. Accordingly, it does not contain the level of particularity required under the Constitution of the United States, the Delaware Constitution, or Delaware statute.
Yes, it's true that criminals use cell phones. That makes them indistinguishable from a majority of the United States' population. But the wealth of information stored in the average cell phone makes them far different than a filing cabinet or a cardboard box full of personal papers. Courts are doing a (slightly) better job at demanding more from law enforcement officers when they seek to access these contents. The first part of it is to establish something more than "criminals use cell phones" when seeking a warrant. The second part is even more important: limiting the search to just what's needed to uncover evidence related to the criminal act. Particularity is a must. Without it, a cell phone search warrant is nothing more than a boilerplate-backed Law Enforcement Fishing Expedition (Short Form).
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Posted on Techdirt - 16 February 2017 @ 11:57am
We wrote about this case last April, and it appears very little has changed over the last 10 months. Francis Rawls, a former Philadelphia policeman, is still in jail because he has refused to decrypt his computer for prosecutors. At this point, Rawls has been jailed for sixteen months on contempt of court charges.
How long will Rawls stay jailed without a criminal conviction? The prosecution says that's up to him. As for the appeals court, it apparently doesn't feel a pressing need to address the unresolved issue: whether or not the Fifth Amendment protects citizens against being forced to turn over passwords.
The federal court system appears to be in no hurry to resolve an unresolved legal issue: does the Fifth Amendment protect the public from being forced to decrypt their digital belongings? Until this is answered, Rawls is likely to continue to languish behind bars. A federal appeals court heard oral arguments about Rawls' plight last September. So far, there's been no response from the US 3rd Circuit Court of Appeals, based in Philadelphia.
If Rawls' devices had been secured with a fingerprint, there's a good chance he'd already have been forced to unlock his devices. There haven't been a lot of decisions pertaining to the use of fingerprints to decrypt devices, but those we have seen indicate judges don't view the taking/application of suspects' fingerprints to be "testimonial." Unlocking a device that contains evidence to convict a person apparently doesn't undermine their right to not be forced to testify against themselves. The reasoning in a recent appeals court decision was that a fingerprint is not something stored in a suspect's mind. Therefore, it's not testimony. It's, for lack of better words, a bodily "fact," like the blood stored in a suspect or a suspect's resemblance to a person described by eyewitnesses.
Because Rawls is facing child pornography charges, there hasn't been much public support for his legal battle. The problem with ignoring this one and waiting for a "better" case to roll around is that the weakening (or rewriting) of Constitutional protections almost always starts with the worst cases. Once precedent and/or legislation is in place, the diminished protections affect everyone -- even those whose alleged actions are far less socially-abhorrent as the accused in this case.
The EFF, however, has stepped into the breach -- as it has in other cases where child porn suspects are central to battles over Constitutional rights.
The Electronic Frontier Foundation told the court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."
The other aspect of this case that bears watching is the All Writs Order the government has deployed to obtain this fingerprint. The All Writs Act of 1789 is seeing an uptick in deployment 200+ years after its passage. The government uses this any time it can't find statutory authority for its demands. It's a feature of the Act, not a bug, and its increased use suggests several other laws are badly in need of updating -- and not just in the government's favor. There are at least as many gaps in protections as there are gaps in authority in the laws governing digital data and communications, many of which were written long before the internet became the main means of public communication and storage capacity/prices allowed any person to store several lifetimes of information on devices small enough to stick in their pockets.
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