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Posted on Techdirt - 28 April 2017 @ 7:39pm

The Email Collection The NSA Shut Down Has Been Abused For Years

from the and-it's-only-part-of-a-larger-collection dept

As was noted here earlier, the NSA surprised many people by shutting down its email collection. This collection was authorized by the FISA Amendments Act, which is due for renewal at the end of this year. Since the point the collection began, it was clear the NSA was also harvesting (inadvertently, it said) US persons' communications.

Ron Wyden, along with a few other lawmakers, has been asking the NSA for years to turn over information on this program -- specifically, how many US persons had been swept up "incidentally" in the bulk collection. For years, the NSA has refused to do so, claiming it would be impossible to compile this information and, somewhat hilariously, claiming it would violate the privacy of those swept up in the collection to query the database for incidental collections.

This decision to shut down the program may result in that answer never being given to Wyden. The ODNI (Office of the Director of National Intelligence) may decide the shutdown renders this particular query moot. It shouldn't. Now that the email program has been shut down EXPLICITLY because it sweeps up too many US persons' in the dragnet, the answer is more important than ever. And the ODNI has recently (and very belatedly) promised to deliver this number and should keep that promise even though the program has been shut down. Not only that, but this shutdown only affects the collection of email. It doesn't prevent the NSA from collecting other internet-based communications. With fewer people using email as their primary communication method, the NSA will still have plenty of communications to harvest.

There's another good reason for turning over that number: the Section 702 collection has been plagued with problems pretty much since its inception. The FISA court determined in 2011 that the program -- as operated by the NSA -- was unconstitutional. Apparently some fixes were made as the program was allowed to continue. But as Marcy Wheeler pointed out a year ago, the program has never not been violating the Foreign Intelligence Surveillance Act.

In his November 6, 2015 opinion reauthorizing Section 702, presiding judge Thomas Hogan described two more definite violations of 50 U.S.C. §1809(a)(2), and one potential one, bringing the list of times the FISC caught NSA illegally surveilling Americans to four, and potentially five, times.

Fall 2009 confession/July 2010 opinion: Collection of categories of data under the bulk PRTT program not permitted by the FISC (Bates’ opinion describes a category violation reported to FISC in the very first PRTT docket, along with NSA’s assurances it would never happen again)

June 2010 confession/December 10 2010, May 13, 2011 opinions: Retention of overcollected data from a traditional FISA warrant in mission management systems ultimately not deemed necessary for collection avoidance

May 2011 confession/October 3, 2011 opinion: Collection of entirely domestic communications on upstream surveillance MCTs

July 13, 2015 confession/November 6, 2015 opinion: Retention of 702 communications that had been otherwise purged in mission management systems, even though FISC had ruled against such retention in 2011

[Potential] July 13, 2015 confession/November 6, 2015 opinion: Retention of data that should have been purged or aged off in compliance databases

This is the authority the NSA wants approved at the end of the year. This shutdown might be an attempt to finally make the program legal -- or at least legal enough to survive a closer examination as the issue heads towards a vote.

This shutdown -- along with the NSA's long history of abuse -- also explains why there were no Section 702 approvals from the FISA court. As Wheeler suggested when the information was first released, the lack of approvals in 2016 indicated the program had "serious issues." Her post from last year shows the program has always had "serious issues." The number of requests the government made in 2016 was redacted from the report, but the footnote attached to it suggests it was more than one.

Perhaps the court no longer found the program Constitutional, at least not the way the NSA routinely operated it. While incidental collection is always a problem with bulk surveillance, the internal controls, which NSA talking points claim prevent abuse, apparently aren't controlling much or preventing much. It appears the NSA can't find a way to operate this part of the Section 702 program without collecting (and querying) US persons' communications, so it has decided to shut it down, rather than spend any more time and effort trying to talk the FISA court into approving its ritualistic abuse.

Despite having years to improve its practices and improve its segregation of collected data, the agency apparently did very little to rein this program in. A 2014 DOJ/ODNI report quoted by Wheeler shows misuse of collected data continued to increase even as the NSA sought orders to collect even more.

The joint oversight team, however, is concerned about the increase in incidents involving improper queries using United States person identifiers, including incidents involving NSA’s querying of Section 702-acquired data in upstream data using United States Person identifiers. Specifically, although section 3(b)(5) of NSA’s Section 702 minimization procedures permits the scanning of media using United States person identifiers, this same section prohibits using United States person identifiers to query Internet communications acquired through NSA’s upstream collection techniques. NSA [redacted] incidents of non-compliance with this subsection of its minimization procedures, many of which involved analysts inadvertently searching upstream collection. For example, [redacted], the NSA analyst conducted approved querying with United States persons identifiers ([long redaction]), but inadvertently forgot to exclude Section 702-acquired upstream data from his query.

This continued abuse and misuse is highly problematic, although the ODNI has been the last entity to officially recognize this. The "upstream" collection not only results in vast amounts of intercepted communications, but is one the FBI's favorite sources for intel. The ODNI denies to this day the FBI's searches of the NSA's collections are "backdoor searches," but it's information and communications the FBI certainly can't collect itself under its legal authorities. The supposedly foreign-facing collection is routinely used by a domestic law enforcement agency to obtain US persons' communications without a warrant. That's a "backdoor" search, no matter how the ODNI portrays it.

No matter what else comes of it, this shutdown is huge. Even though it's a smaller part of a larger internet communications collection program, it's still a significant closure. And once again, this is a result of Snowden's leaks. Wyden's persistent pestering about incidental collection likely played a small part as well. But without documents clearly showing how much the program collected and how it was being used, the NSA would most likely still be trying to find a way to push these requests past the FISA court. And without this additional scrutiny, the court itself might have found itself more easily persuaded.

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Posted on Techdirt - 27 April 2017 @ 10:45am

NSA Makes Pitch For Section 702 Approval While Its 702 Requests Aren't Being Approved By The Court

from the all-perfectly-lawful,-all-running-into-issues-during-approval dept

Section 702 -- the statute that allows the NSA to collect internet communications and data in bulk -- is up for renewal at the end of this year. The NSA, thanks to Ed Snowden, faced more of an uphill battle than usual when renewing Section 215 (bulk metadata collections). For the first time in its existence, the NSA ended up with a compromise (the USA Freedom Act), rather than a straight renewal.

The Intelligence Community appears to be trying to get out ahead of straight renewal opponents. The Office of the Director of National Intelligence has released a Section 702 Q&A at millennial watering hole Tumblr. By returning its own soft serve questions with canned talking points, the ODNI is hoping to show just how lawful its upstream collection is.

It also hopes to obscure something that's been around since the 2008 FISA Amendments Act: backdoor searches. Other government agencies have had the ability to peruse the NSA's collections, which were ostensibly gathered solely for national security use. The FBI is the most frequent backdoor searcher, seeing as it has rebranded as a counterterrorism unit over the past several years, which has allowed it to expand its surveillance capabilities and increase exploitation of the NSA's data stores.

The ODNI's Q&A document sort of admits this, but tries to downplay the implications of allowing a domestic law enforcement agency free access to national security-focused surveillance intake.

The government’s minimization procedures restrict the ability of analysts to query the databases that hold “raw” Section 702 information (i.e., where information identifying a U.S. person has not yet been minimized for permanent retention) using an identifier, such as a name or telephone number, that is associated with a U.S. person. Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information, although the FBI also may conduct such queries to identify evidence of a crime. As part of Section 702’s extensive oversight, DOJ and ODNI review the agencies’ U.S. person queries of content to ensure the query satisfies the legal standard. Any compliance incidents are reported to Congress and the FISC.

It still sort of sounds like a backdoor search, even with supposed strict oversight, but the ODNI adds a footnote claiming it isn't:

Queries of Section 702 data using U.S. person identifiers are sometimes mischaracterized in the public discourse as “backdoor searches.”

Oh, that crazy "public discourse." Won't it get anything right? Here's Emptywheel's Marcy Wheeler to explain what the ODNI won't.

While it’s true that NSA and CIA minimization procedures impose limits on when an analyst can query raw data for content (but not for metadata at CIA), that’s simply not true at FBI, where the primary rule is that if someone is not cleared for FISA themselves, they ask a buddy to access the information. As a result — and because FBI queries FISA data for any national security assessment and “with some frequency” in the course of criminal investigations. In other words, partly because FBI is a domestic agency and partly because it has broader querying authorities, it conduct a “substantial” number of queries as opposed to the thousands done by CIA.

Wheeler goes on to point to the Privacy and Civil Liberty Oversight Board's (RIP) report on Section 702 as evidence of this common FBI practice. While the PCLOB mostly punted on Section 702, finding it to be less blatantly-unconstitutional than the Section 215 program, it still found the FBI perused raw NSA collections quite frequently, both for foreign intelligence information and evidence of criminal activity. The PCLOB was unable to assess how frequently these "none dare call it a backdoor" searches occurred because the FBI has no way of tracking how often it dips into the NSA's collections. With no data and no reporting, it's pretty disingenuous to claim there's effective oversight over the Section 702 program.

Marcy Wheeler also noticed something unusual in the brand new FISC Section 702 report -- newly-required by the USA Freedom Act. According to the numbers released by the FISA Court, zero 702 applications were approved in 2016.

Wheeler points out the process for Section 702 approval runs much like that of Section 215, with applications either being approved by the FISA court or sent back for fixes. Once approved, extensions can be requested, but only for up to 60 days at a time. As she notes, the last 702 submission wouldn't have been able to coast through 2016 without a renewal.

The prior approval before last year was November 6, 2015, so it would only have had to have been extended 2 months to get into this year. So that seems to suggest there was at least a three month (application time plus extension) delay in approving the certifications for this year.

Note, too, that the report shows the only amicus appointed last year was Marc Zwillinger for a known PRTT application, so this hold up wasn’t even related to an amicus complaint.

In any case, this may reflect significant issues with 702.

The Snowden documents -- along with some from other unidentified leakers -- generated far more scrutiny of Section 702 than the NSA has ever experienced. It's not tough to imagine at least a couple of FISA judges being surprised with the scope of what they were approving. The number of submissions is redacted, but the footnote attached makes it clear the government submitted more than one application. This span with zero approvals dates back to the middle of last year, so it's been a bit of a dry run for the NSA.

The NSA has run into issues before with Section 702, the last time being in 2011, when the FISA court found the "upstream collection" of internet data to be "deficient on constitutional and statutory grounds." The NSA obtained extensions and apparently modified the order until it reached the FISA court's standards. This long delay between approvals could suggest the NSA is back in constitutionally-deficient waters, which definitely isn't where it wants to be as the program heads for renewal.

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Posted on Techdirt - 27 April 2017 @ 3:25am

European Court Asked To Overturn Ruling Saying Linking To Defamatory Content Is Defamatory

from the neither-publishing-nor-republishing dept

It seems like common sense. The person legally responsible for defamatory statements is the person making the defamatory statements. But since pursuing that person often seems too difficult, legislators, courts, and disingenuous plaintiffs have engaged in mental/litigious gymnastics in hopes of finding third parties responsible for the statements of others.

We've seen a long list of lawsuits filed against service providers in response to defamatory content hosted on their platforms. We've seen courts -- mostly outside of the US -- convert third-party platforms into "publishers" for the sake of delisting/content removal court orders. We've seen numerous attempts to avoid Section 230 defenses by recrafting defamation lawsuits as trademark infringement litigation.

We've even seen some bad lawmaking, attempting to strip away protections for service providers to make it easier to hold them responsible for the actions of others.

The European Court of Human Rights is in the middle of another attempt to hold third parties responsible for the allegedly-defamatory statements of others.

The applicant in the case before the Court, Aleksey Navalnyy, is a prominent Russian political activist and opposition leader who sought to highlight the corruption that Mr Magnitsky had exposed. With this in mind, he posted a link on his LiveJournal blog to a YouTube video reporting on the 5.4 billion RUB tax refund. A Russian court held that the video was defamatory of an individual referred to in the report. The court found Navalnyy liable for statements that were made in the video as if they were his own, and ordered him to pay 100,000 RUB (approximately 1,400 GBP) in damages to the individual.

European courts and politicians have made efforts before to find those posting links to certain content just as liable as those who uploaded it. Previous attempts have mostly been related to copyright infringement, but this case isn't an anomaly in terms of holding one person responsible for someone else's statements.

The briefing [PDF], composed by a number of internet free speech activists, including the EFF, Access Now, and the Media Law Resource Centre, points to a number of precedential decisions from all over the world that make it clear the original defamer is the only one who should be found culpable for defamatory statements. To do otherwise is to threaten the basic operating principles of the internet, and the public discourse it facilitates.

Given the ubiquitous operation of hyperlinking on the Internet, it is an impermissible interference with Article 10 for the use of hyperlinks to be capable of giving rise to liability in defamation;

Given the dynamic nature of the content on the Internet to which hyperlinks may provide access (but over which the poster of the hyperlink is unlikely to have control), attaching liability in defamation to the provision of hyperlinks risks a particularly pronounced chilling effect on freedom of expression in violation of Article 10

It also points out the court shouldn't hold bloggers to a higher standard than journalists by robbing them of the protections afforded to traditional press agencies.

Defences that are available in law to the traditional media should also be made available to bloggers and online news sites – the formal designation of persons should be immaterial for the purposes of Article 10 rights in this context.

If the ruling is upheld, linking to other sources will dry up, both in traditional media and blogging. To link to statements of others would be to assume culpability for those persons' statements. Information would cease to flow as journalists and bloggers erect protective silos of info, generated from single sources. This end result would make those journalists and bloggers appear less trustworthy, as they would be unlikely to link to supporting statements and evidence if there's even a small possibility those sources might become a subject of litigation in the future.

Then there's the very real issue of content control: those linking to others can't prevent alteration of the content they're linking to, which may change drastically in tone and substance without the linker ever being made aware of the alterations. Just ask anyone who's hotlinked an image, only to find it replaced with something embarrassing/hideous/both in response to the inconsiderate usage of someone else's bandwidth.

Linking to other sources allows readers to gather more information and come to their own conclusions. Eliminating this makes information dissemination worse and further solidifies existing echo chambers. It's a bad thing for the internet and would result in less informed users.

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Posted on Techdirt - 26 April 2017 @ 11:54am

Search Warrant Gag Order Successfully Challenged In Court

from the UPDATE-GAG-ORDER-NOW? dept

Update: Adobe has clarified that this was not a National Security Letter (NSL), but rather a search warrant along with a "Delayed Notice Order" (DNO) that had no expiration. The principles are the same, but the vehicle was different. We have updated the article below and apologize for the error.

Another government request for info with a never-ending gag order is on its way to being published. There's no way of telling when it will arrive, but it will be sooner than the government's clear preference: never.

Adobe is the unlikely recipient of a search warrant and accompanying gag order. The decision in a recently unsealed case says indefinite gag orders aren't Constitutional, which is good news for the recipients of the thousands of NSLs the FBI issues every year.

Thankfully, the court in Adobe’s case recognized the serious harm to free speech these gags represent. It held that orders barring companies from notifying their users about government data requests are both prior restraints and content-based restrictions on speech subject to strict scrutiny. That’s a very high bar. The court found that the indefinite gag order imposed on Adobe fails strict scrutiny because the government could make “no showing[] that Adobe’s speech will threaten the investigation in perpetuity.”

The decision [PDF] raises the government's hopes before dashing them quite expertly. It opens by agreeing with one of the government's assertions:

Adobe first contends that 18 U.S. § 2750(b) (“Section 2705(b)”) requires that the Court provide a date certain for the NPO’s [Notice Preclusion Order] expiration. The government contends that Section 2705(b) allows for NPOs of indefinite duration. The Court agrees with the government.

But it's this assertion -- the one the court agrees with -- that allows Adobe's free speech arguments to prevail.

Adobe next contends that the NPO is a content-based prior restraint that is not narrowly-tailored to achieve a compelling government interest. As such, Adobe argues, the NPO violates the First Amendment. (Appl. at 4-5.) The government argues that (1) Adobe does not have a right under the First Amendment to notify the Subscriber of the Warrant’s existence; and (2) even if Adobe did have such a right, the government’s compelling interests justify the NPO as currently tailored. The Court finds that a narrower tailoring of the NPO is warranted.


As written, the NPO at issue herein effectively bars Adobe’s speech in perpetuity. The government does not contend, and has made no showing, that Adobe’s speech will threaten the investigation in perpetuity. Therefore, as written, the NPO manifestly goes further than necessary to protect the government’s interest.

The court also isn't interested in helping the government shift the burden to Adobe as to why this NPO shouldn't be in place indefinitely. In fact, it finds the government's attempt to do so undermines its "this doesn't implicate the First Amendment" arguments.

The government further argues that the NPO is already limited by the Court’s discretion to set an end at some later date. As this “judicial[] limit[]” allows “both Adobe and the government to apply for the order to be lifted after its raison d’etre fades, the NPO is as narrowly-tailored as required.” (Oppo. at 17.) This argument ignores the fact that Adobe is not privy to the government’s investigation. Thus Adobe will not know when the NPO’s “raison d’etre fades.” Moreover, virtually every statute, regulation, order, or other government-imposed restriction on speech can be attacked in a judicial proceeding. Therefore, the government’s argument – in essence, “The order is narrowly-tailored because Adobe has the option of challenging it in court” – demonstrates nothing of relevance.

In any event, putting the onus on the speaker to lift a no-longer-justified content-based restriction is hardly narrow tailoring. Adding the fact that the speaker cannot know when the restriction’s “raison d’etre fades” effectively equates to no tailoring at all. An RCS provider might decide to forego speaking rather than incur the trouble and expense of potentially futile court trips. That the government could in theory, apply to have the NPO lifted is no answer. As the NPO does not apply to the government, the government would have little incentive to do so. Accordingly, on the record before the Court, the government’s argument does little more than illustrate the NPO’s potential for burdening or chilling Adobe’s speech.

Other similar litigation is still ongoing and this decision bears little precedential value, especially in other circuits. But every judicial citation attacking indefinite gag orders helps, especially as these challenges are becoming more common as a result of the USA Freedom Act's creation of new redress options for gag order recipients.

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Posted on Techdirt - 26 April 2017 @ 10:40am

Guy Fined $500 For Criticizing Government Without A Permit Sues Oregon Licensing Board

from the with-a-special-appearance-by-[STATE-REVENUE-GENERATOR-A] dept

Government entities tend to dislike people who criticize red light cameras. There's little evidence supporting the theory they make driving safer, but there's plenty of data out there showing just how profitable they can be, especially with a little fine tuning.

When someone takes it upon themselves to dig into traffic cameras, they make few friends at city hall. Oregon resident Mats Jarlstrom's interest in red light cameras was piqued like so many others: by receiving a ticket. Unlike some others, Jarlstrom has a background in electronic engineering and the inherent inquisitiveness to follow through on a thorough examination of yellow light timing. He did some math and came to the conclusion the timing was off.

In his view, the leading mathematical formula for calculating the proper length of yellow lights (dating back to 1959) is incomplete, because it fails to account for how drivers decelerate before making a right-hand turn. Mats’s revised theory addresses that issue; his formula is based on the 1959 model but also factors in the time needed for turning drivers to clear the intersection.

Jarlstrom's apparent mistake was not keeping these findings to himself. He spoke to local news stations about his research and presented his conclusions to a national conference of transportation engineers. The only entity that didn't want to hear anything about his yellow light research was his local government. He tried to present his findings to the state traffic engineering body but found it less than receptive to new ideas.

In response to Jarlstrom's exercise of his First Amendment rights, the Oregon state engineering licensing board opened an investigation. Unsurprisingly, it arrived at the conclusion that it hadn't handed out an engineering license to Jarlstrom. Surprisingly, this effort wasted nearly two years of taxpayer time and money.

According to the Board, Mats illegally practiced engineering without a license every time he “critique[d]” the existing traffic-light system and shared his ideas with “members of the public.” Even his e-mail to the creator of the original formula was ruled illegal. So was his correspondence with local media.

Weird. Stupid. But at least the licensing law is narrowly-tailored, right?

The practice of engineering is defined to cover “any . . . creative work requiring engineering education, training and experience.” And the law is just as sweeping as it sounds. Even the Oregon Attorney General’s Office has admitted that it’s “a broad definition which may have a particular meaning to those persons trained and knowledgeable in engineering but may be unclear to anyone else.

Having found something to use against a critic of outdated traffic light measuring systems, the Oregon licensing board went all out. It told Jarlstrom he could no longer refer to himself as an "engineer" (despite his BS in electronic engineering). It compiled a list of nine violations and fined him $500.

It also nailed down something else: the starring role of defendant in an upcoming civil rights lawsuit, as the Institute for Justice reports:

Today he filed a lawsuit [PDF] against the board in federal court challenging the constitutionality of the state’s requirement that citizens must obtain an engineering license in order to publicly debate anything involving “engineering.”

IJ points out the board's regulation of speech is not just unconstitutional, it's ridiculous.

Criticizing the government’s engineering isn’t a crime; it’s a constitutional right,” said Sam Gedge, an attorney at the Institute for Justice, which represents Mats in the lawsuit. “Under the First Amendment, you don’t need to be a licensed lawyer to write an article critical of a Supreme Court decision, you don’t need to be a licensed landscape architect to create a gardening blog, and you don’t need to be a licensed engineer to talk about traffic lights. Whether or not you use math, criticizing the government is a core constitutional right that cannot be hampered by onerous licensing requirements.”

In essence, the Oregon board fined Mats Jarlstrom for doing math and then talking about it. Apparently, no one's allowed to do their own math and speak publicly about it without the express, licensed permission of the state's regulators. While the board is there to prevent non-engineers from harming the public by building faulty bridges and buildings (or, more to the point, fiddling with traffic light timing to drivers' detriment), it shouldn't be able to keep anyone from discussing their own research or referring to their engineering background and expertise.

Jarlstrom simply wanted his findings to be considered. He had no power to alter traffic light timing or otherwise pose some sort of safety risk to Oregon drivers. And yet, the licensing board subjected him to a lengthy investigation and told him what he could and couldn't discuss publicly. Apparently certain topics of discussion are off limits to the general public unless the government ok's it through a very long and expensive process.

Like many government things, the underlying concept is good, but the execution is horrible. And, in this case, the government was less concerned with the safety of the public than with shutting up a critic poking holes in long-held government theories.

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Posted on Techdirt - 26 April 2017 @ 3:27am

Prosecutors Overturn More Than 21,000 Drug Convictions In Wake Of Massive Drug Lab Misconduct

from the you're-free-to-go-x-21k dept

Back in 2012, it was discovered that a Massachusetts state drug lab technician had falsified thousands of tests submitted as evidence in criminal cases. Technician Annie Dookhan was able to "produce" three times as many test results as her coworkers, mostly by never actually testing the submitted substance -- something that went unquestioned for far too long. Dookhan went to jail for three years, but many of those convicted on faulty evidence spent far more time locked up.

Dookhan's prolific fakery resulted in a list of 40,000 cases possibly tainted by her work. This list was turned over to prosecutors, who managed over the next few years to trim it down to 23,000 possibly-tainted convictions. Faced with the daunting task of sorting this all out and notifying former defendants, the district attorney's office decided the best approach was to do as little as possible.

First, with an unbelievable amount of hubris, it argued that those who had already served time for bogus convictions likely didn't care whether or not they'd been exonerated post facto. It can't be that the prosecutor's office doesn't know drug convictions keep people unemployed/underemployed and/or car-less/homeless. It appears the office simply has no empathy for those it's helped convict.

Then it did as little as it could to inform those who had been possibly wrongfully convicted. It sent out poorly-targeted mass mailings that looked like government junk mail, rather than the life-changing exonerations they possibly were. No research was performed to ensure current addresses were used and the letter itself didn't inform recipients of their legal rights and remedies.

A court finally stepped in and ordered the DA's office to come up with a plan of adequately addressing this backlog of 21,000 possibly-wrongful convictions. These plans would have to be approved by the court, which obviously felt the DA's office would mount another half-hearted effort without direct supervision.

Faced with having to lift a few fingers to locate and inform citizens of their rights, remedies, and their chance to un-fuck their lives, the DA's office has opted again to do as little as possible. However, in this case, the minimum of effort is probably the course of action it should have taken in the first place.

On April 18, nearly five years after Dookhan’s confession, prosecutors submitted lists of about 21,587 tainted cases with flawed convictions that they have agreed to overturn. The state’s highest court must still formally dismiss the convictions.

Once that happens, many of the cleared defendants will be freed from the collateral consequences that can result from drug convictions, including loss of access to government benefits, public housing, driver’s licenses and federal financial aid for college. Convicted green card holders can also become eligible for deportation, and employers might deny someone a job due to a drug conviction on their record.

The very small number of cases the state isn't dismissing -- 320 of them, according to prosecutors -- shows how heavily the state relies on drug lab evidence to secure convictions. These cases are ones prosecutors feel would still hold up in court even without drug lab evidence. Possibly there are other cases with similarly strong evidence once Dookhan's fakery has been excised, but the DA's office has had zero desire to reexamine most of the 23,000 cases Dookhan's work affected.

Odds are, there are a great many people who wrongfully served more jail time than Dookhan rightfully did. The fallout from this is going to cost Massachusetts taxpayers a whole lot of money. Not only did they pay Dookhan to not perform her duties for several years, but they'll be on the hook for the inevitable lawsuits this mass exoneration will produce.

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Posted on Techdirt - 25 April 2017 @ 11:50am

Paul Hansmeier Argues Convicting Him Of Fraud Would Seriously Damage The Judicial System

from the he's-not-(completely)-wrong dept

It looks like Prenda's Paul Hansmeier isn't nearly as interested John Steele in striking a deal with the feds. Of course, Steele folded immediately, offering up Hansmeier as bus undercoating, which likely means Hansmeier isn't being feted by feds with plea deals.

The 17-count indictment relayed a story familiar to Techdirt readers, since we have covered nearly every part of the scam: a get-rich-quick scheme that paid off at first for Prenda, but quickly unraveled as courts (and many copyright troll fighters) uncovered fake defendants, shell companies, forged documents, and honeypot-as-business-model tactics.

Faced with numerous charges and seemingly no option to shift the culpability back to Steele, Hansmeier is arguing the entire justice system will collapse if he's convicted. I wish I could tell you I'm exaggerating the dismissal request's prose for the sake of levity, but I'm afraid that's exactly what the dense's 64-page filing [PDF] says (h/t Sophisticated Jane Doe):

The government has issued a lengthy, winding, and jumbled charging document, all grounded upon an unorthodox and unviable legal theory. Because it has opted to proceed in this way, this Memorandum is by necessity heftier than it might otherwise be. Augmented size demands greater organization, so this paper begins with a Table of Contents to give the Court an overview of where the exploration will go, which then leads into the full discussion. All of this requires a fair number of words, but in the end the resolution boils down to a relatively simple concept: Prosecutors ought not be allowed to ground criminal fraud or analogous charges upon someone’s exercise of constitutionally protected civil litigation activities. As will be seen, this core rule is immensely important. Not just in the case at hand, but to this nation’s system of civil justice as a whole. This prosecution is legally unviable, and thus must be dismissed.

The gist of Hansmeier's federal court longform piece is this: the federal government should not be prosecuting people for bad- or zero-faith litigation. There are several sub-gists. As gists go, however, this isn't a bad one. The judicial system has many tools to deploy against bad-faith litigation, including sanctions and outright dismissal. Defendants have some tools at their disposal as well, but no matter how much Hansmeier attempts to pretty this up, it still costs real money to defend against bogus litigation.

The toolset is limited and, sometimes, completely useless. Prenda faced these tools on multiple occasions before finally deciding to get out of the copyright trolling business. Unpaid sanctions remain unpaid. Hansmeier moved on to trolling of the ADA variety and presented the Minnesota court system with perhaps the best argument to date for the reestablishment of debtors prison during his bankruptcy proceedings.

But the overall point remains a good one: it shouldn't be illegal to engage in litigation, no matter how misguided or disingenuous. Allowing the government to literally make a federal case of it could chill legitimate litigation. This point should not be understated. However, the filing ignores that Hansmeier wasn't just engaged in bad faith litigation, but rather he was piling all sorts of illegal behavior on top of it: forgeries, perjuries, fake plaintiffs, defendants who had made a deal to be a defendant solely for revealing IP addresses, fake claims of "hacking" to make questionable CFAA claims and much much more.

By its legal theory propounded here, the federal government now proposes to: (a) arrogate authority unto itself; (b) to patrol the civil dockets of this and any other tribunal of its choosing; (c) searching for instances of what it views to be baseless or otherwise unethical or inappropriate civil litigation activities; (d) all with the aim of prosecuting, penalizing, and imprisoning those litigants or lawyers who it deems to have stepped out of line. Or more accurately, anyone who the government chooses to target at any given moment. Prosecutors could, as in the present case, charge someone who has instituted a civil action against a fellow citizen to redress a legally recognized grievance. But the government could just as easily train its sights on, say, a citizen who has brought a Bivens action against a federal law enforcement official. Or it could bring similar charges against a detainee pursuing a civil habeas corpus action. Or against a lawyer seeking a declaration that some statute enacted by the Legislative Branch violates the United States Constitution. Or against a litigant seeking to enjoin some unlawful action of the Executive Branch.

But Hansmeier is also arguing that engaging in copyright trolling should only be punishable by judicial sanctions and the like, no matter how ineffective those deterrents are, and, apparently, no matter how much fraudulent behavior the litigants engage in. In fact, Hansmeier tries to claim the fraudulent litigiation Prenda engaged in produced no victims. (From the Bill of Particulars [PDF] submitted with the dismissal motion, via SophisticatedJaneDoe)

We ask that the prosecution be directed to identify the victim(s) of the offenses alleged in the indictment, to explain how they were victimized, and to specify the loss amount(s). Is the alleged victim the computer users described above and below? Or civil courts? Or both? Or someone else? Is the government relying upon “fraud on the court” judicial opinions imposing civil sanctions? If so, by what reasoning?

The 64-page wall of text is worth reading, if only to admire the sheer number of words expended to tie Hansmeier's "honest" copyright trolling into the government's conspiracy charge. This may seem counterproductive, but Hansmeier's representation's angle has its own genius: if the conspiracy charges cannot be extricated from Prenda's "protected" litigation, the government's whole case falls apart.

The Court may thus wonder whether the present motion to dismiss is confined to the standalone Mail/Wire Fraud counts, (Counts 2-16), or if it encompasses the above conspiracy counts as well, (Counts 1, 17).

Because the government’s deficient prosecution theory pervades and fatally infects both the standalone and above conspiracy counts, all must fall. The reason stems from the law of conspiracy, which is an inchoate offense involving a mere agreement rather than actual accomplishment of the underlying alleged criminal objective.

The theory goes on for several pages, but the underlying theory is this: the 15 counts of wire fraud are actually just the fed's (apparently severely-misguided) interpretation of Prenda's non-criminal "copyright protection" litigation efforts.

Thus, since the standalone Mail/Wire Fraud counts (Counts 2-16) are grounded upon a legally and/or constitutionally invalid prosecution theory, each such deficient count must be dismissed. The government alleges this identical Mail/Wire Fraud theory as the sole objective of the Mail/Wire Fraud Conspiracy (Count 1), (ECF 1, ¶¶ 15-17), and the Money Laundering Conspiracy claim (Count 17), (ECF 1, ¶ 40). Under Griffin/Yates and the other opinions cited, these legally-deficient charged conspiracy objectives mean that that each of these conspiracy counts must fall away as well.

If Hansmeier can convince a judge the government intends to treat copyright litigation as wire fraud -- and thus cause damage to the judicial system as a whole -- he may get a dismissal of those charges. That takes care of most of them. Of course, that requires effectively ignoring all of the other activity that wasn't just bad-faith litigation. Alternatively, he can convince a judge the conspiracy charge is unfounded, which would wipe away the fraud charges as well. That's why we have a 64-page pretrial motion to dismiss on our hands, rather than a few more weeks of pre-trial plea bargaining.

The motion takes issue with the federal indictment -- both in its depiction of copyright trolling as a criminal enterprise as well as its use of "charged language" like "extortionate tactics" and "sham clients." Hansmeier says the government's wire fraud charges basically boil down to a recap of normal copyright trolling efforts.

According to the government, the accused lawyer Mr. Hansmeier is criminally liable for the federal offenses of Mail/Wire Fraud and money laundering due to his institution of “fraudulent copyright lawsuits,” which (it is claimed) qualify as such because—

(a). The defendant lawyers and others “uploaded the [protected works] to file sharing websites hoping to lure people into downloading” those same protected works;

(b). The defendant lawyers owned and/or controlled the statutory exclusive rights in protected works rather than the named plaintiff business organizations, thus giving the defendant lawyers a personal stake in the outcome of the litigation;

(c). The defendant lawyers were derelict in their professional ethics obligations, including a duty of candor to federal civil courts when invoking court-overseen discovery procedures to identify computer users who had downloaded the protected works at issue; and

(d). The defendant lawyers employed “extortionate tactics to garner quick settlements” from such identified computer users, who were “unaware of the defendants’ role in uploading the [protected works at issue], and often were either too embarrassed or could not afford to defend themselves.”

Hansmeier argues this is all perfectly legal litigation and that the government has made no showing that these lawsuits were so baseless they should be indicted for them. But that's an extremely generous interpretation of Prenda's practices, which included forged documents, honeypot uploads, shell corporations, faux defendants, and other instances of fraud upon the court. Prenda was on the receiving end of multiple sanctions by the time it fell apart (and showed no signs of wanting to stop or recognizing that it had done anything wrong) and all of this sprung out of its speculative invoicing process, which used federal courts and statutory damages as leverage in multiple baseless infringement lawsuits.

The motion claims the government's interpretation of wire fraud statutes would endanger a great deal of legitimate litigation (although citations of Malibu Media cases probably isn't the best argument for trolling's legal legitimacy). The conclusion reached is that this prosecution is some twisted fed vendetta, with the government going after a longtime internet punching bag:

[T]the government broadly disapproves of the lawyer-entrepreneurial activities described earlier, i.e., forming organizations to pursue civil enforcement of the Copyright Act, monitoring computer file-sharing platforms for that purpose, using civil court discovery mechanisms to identify violators, and so on. And its ire is directed with singular force toward Mr. Hansmeier—something of a cause célèbre and object of scorn in the news media and blogosphere and elsewhere—whose litigation tactics have already been penalized by civil courts and state licensing officials. By this prosecution, the government aims to heap yet more punishment on top of all that.

This is a rather amazing (and ambitious) filing. Hansmeier has scored a very good pair of public defenders, ones who are willing to hand the court something few judges are clamoring for: a 64-page, densely-worded pretrial motion to dismiss. It's certainly far more than Hansmeier should expect, given he's done about as much damage to the reputation of lawyering as one man can possibly do. Other copyright trolls* have to be applauding this motion, as it legitimizes their efforts and provides a template for their own defense against criminal charges, should it ever come to that.

*This term (troll) bothers Hansmeier and his defense. This memorable footnote appears in the filing during the motion's discussion of the government's use of trolling opponents' "charged language" in its indictment.

On the debate’s flip side, there are those who use pejorative terms like “pirates” to describe those accused of Copyright Act violations. In truth, none of these or other puerile terms are helpful to sober legal analysis. Quite the opposite. The terms are mentioned here only because they are sprinkled prolifically throughout the literature, and even some court opinions, on this topic. In all, the defense would discourage use of such invectives, as they are analytically unhelpful and unnecessarily inflammatory.

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Posted on Techdirt - 25 April 2017 @ 3:12am

Former Spies' Dubious Claim: Release Of NSA's Windows Exploits Has Seriously Harmed National Security

from the protesting-a-bit-much dept

The Shadow Brokers' attempted firesale of NSA exploits didn't go well. After early leaks failed to pique buyers' interest, SB decided to start handing over the agency's hacking tools to the general public.

The most recent dump was the most interesting. It contained a variety of remote access exploits -- several of them zero days -- that gave NSA operatives "God mode" control over compromised computers with fairly-recent versions of the Windows operating system.

But they were of limited use. The most recent exploitable version was Windows 8, and every version still supported by Microsoft was patched before the SB dump, most likely as the result of a belated tip from the NSA. However, older operating systems without Microsoft support are still exploitable, and will remain exploitable until those systems are updated.

Now that most of the stash is out in the open, the Intelligence Community is able to do two things:

1. Determine who is responsible for the leaked toolset.

2. Complain about it.

The latter appears to be what's happening now. A few (anonymous) former members of the Intelligence Community are talking up what a horrible blow this is to the NSA.

Although digital exploits are used for spying rather than destruction, they allow operators to break down invisible doors, pilfering information. Seeing these latest tools published online was “devastating,” the former cyber intelligence employee said.

Three recently retired intelligence employees who worked on hacking tools for the government requested anonymity in order to speak freely about sensitive matters and to protect ongoing work and employability.

“By my estimation, there’s not much left to burn,” another former intelligence official who worked for several three-letter agencies told Foreign Policy. “The tools that were released were pretty critical.

Supposedly, this set of tools was worth millions of dollars to the NSA. If market prices in Bitcoin are anything to go by, criminals and foreign espionage agencies didn't appear to feel they were worth much more than a few thousand dollars. Of course, potential buyers didn't know exactly what they were getting. Others probably figured the exploits would be patched into irrelevance by the time they got their hands on them.

The "sky is falling" narrative tends to follow every leak of national security documents, starting with Snowden's, which damaged the NSA so much it's in better shape than ever. There may have been some valuable tools in the SB stash, but the moment they ended up in someone other than the NSA's hands, they became relatively worthless to the agency.

But what was released, however powerful, was outdated. The stash appeared to be a 2013 vintage -- valuable in its prime, but no longer quite as useful after Microsoft's forced migration of Windows users to version 10. The NSA is undoubtedly sitting on a stash of current exploits far more valuable than what it lost when someone left a bunch of hacking tools behind in a compromised server.

The public gnashing of natsec teeth also serves another purpose: it hopefully encourages surveillance targets to let their guard down a bit. By projecting the image of an intelligence agency fumbling around in the dark, the agency can very likely obtain a few new intercepts from careless foes it catches relaxing.

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Posted on Techdirt - 24 April 2017 @ 3:08pm

Legislators, School Administrators Back Off Cellphone Search Bill After Running Into ACLU Opposition

from the shocked-SHOCKED dept

Legislators working with the Association of California School Administrators are backing away slowly from a bill aiming to separate schoolchildren from their phones and their privacy. The bill would have created an exception in California's privacy law, allowing teachers and school administrators to search the contents of students' phones. Courthouse News' Nick Cahill has more details:

While short in length, the bill has stature. Its 130 words would exempt students from the California Electronic Communications Privacy Act, CalECPA, which was passed in 2015 with overwhelming bipartisan support in the Legislature.

“That law also specifies the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device,” the new bill states.

This attempt to further limit students' Constitutional rights and legal protections ran into the ACLU's opposition, which noted the exception would "sledgehammer" the Fourth Amendment. Apparently, the backers of the bill thought it would sail through with a minimum of public resistance. Having failed to foresee the expected, supporters are rebranding their civil liberties sledgehammer.

“We’re making it a two-year bill, which means it’s not going to be heard next week. But the conversations are going to continue,” said Laura Preston, lobbyist for the school administrators.

Ah, the classic "wait until the noise dies down and try again" approach. It's just crazy enough it might work. I doubt the legislation itself will be rethought. More likely, the sales pitch will be altered to make the bill appear less sledgehammer-y.

Considering California is pretty much Protest Central, it's a bit stunning to read a legislator was "stunned" by collective opposition to a privacy-threatening bill. But that's exactly how the bill's author, Jim Cooper, described his reaction. The lobbyist for the schools, Laura Preston, went even further, utilizing the post-Godwin Nuclear Option rhetorical device:

“We introduced the bill to try and pull schools out of CalECPA, and you might as well have thought that we started World War III,” Preston said of the reaction.

Supporters of the bill claim the lack of an exception to the privacy law leaves administrators powerless. True, a school administrator can't seek a warrant to access the contents of a student's phone, but there are options schools can use rather than exempt every California student from the state's privacy law.

Most schools have electronic device policies that tie search consent to school attendance, which usually includes personal electronic devices along with vehicles parked on school grounds and lockers. A consensual search -- even if performed under an "implied consent" standard rather than a more affirmative version -- is still a "clean" search, though possibly one less likely to survive a courtroom challenge. Many schools also have police officers on staff. Whether or not these officers can seek warrants to access phone contents is unclear, but in cases of suspected criminal conduct, this would be turned over to law enforcement anyway.

Supporters undercut their Homeroom Apocalypse arguments with their own statements, though.

Since CalECPA was enacted, students have been refusing to hand over their cellphones to teachers and administrators, Preston said. She said teachers usually want access to cellphones to prevent cyberbullying and cheating on tests, not to delve into social media or text messages for criminal content.

I'd really like to hear how paging through some kid's phone "prevents cyberbullying." It may be used to find evidence of ongoing cyberbullying, but it's not going to head it off. If it's really bullying, there are a variety of school policies and law enforcement options available to school administrators that don't involve digging through a student's phone -- a device that will contain far, far more personal info than should be sought by administrators with zero law enforcement training or acumen.

Cheating on tests can be resolved simply by requiring phones to be secured somewhere away from the testing area, like in students' lockers or in instructors' possession until testing is complete. Digging through someone's phone might expose a cheater, but it really seems like overkill considering the privacy issues at stake. It's also not something that should involve any on-site law enforcement officers, even if their powers are slightly limited.

What is clear is "stunned" politicians and school administrators haven't given up on their dream of crushing students' Fourth Amendment protections. No doubt the ACLU -- and others -- will be keeping an eye out for Sledgehammer 2.0 later this year.

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Posted on Techdirt - 24 April 2017 @ 10:43am

Texas Lawmaker Wants To Decide Who's A Real Journalist, Make It Easier To Sue Them

from the double-trouble dept

Because a buddy of his lost a defamation lawsuit, a Texas legislator has introduced a pair of bills targeting protected speech. Kelsey Jukam of Courthouse News has more details:

State Rep. Ken King, a gas and oil man from the small town of Canadian in the Panhandle, last week introduced House Bill 3387, which would make it easier for public officials to sue reporters for libel, and House Bill 3388, which undermines Texas’s shield law, which allows reporters to keep their records and sources confidential.

Both bills stem from an unsuccessful libel suit brought by a millionaire hedge fund trader, who also lives in Canadian.

The hedge fund trader is local hero/local litigant Salem Abraham, who filed two lawsuits against bloggers who both (erroneously) reported he had been thrown out of a campaign event by Governor Rick Perry. Both were losing efforts, with Abraham ultimately being held responsible for legal fees under Texas' declaratory judgments statute. It appears King is trying to hook his fellow Canadian (TX) resident up with additional lawsuit options as well as have the state government decide who is or isn't a journalist. According to King's proposed bill, real journalists shouldn't have any political affiliations.

HB 3388 would prohibit the shield law from applying to any reporter who has worked for or donated to political campaigns within five years, and to any reporter whose employer has worked for or donated to political campaigns in that time.

Proponents testified that it would prevent “political hacks” from gaming the system by claiming journalistic privilege in defamation litigation. They said the bills are not meant to harm “bona fide” reporters.

When legislators start questioning the bona fide-ness of journalists, it's usually because they've got political axes of their own to grind. The real/fake journalist line will be determined by prevailing political winds, as generated by the party in power. This gives the government the power to censor based on something the Supreme Court has determined to be an integral part of free speech: political contributions. How this bill will survive a constitutional challenge is left to King's (and Abraham's) imagination.

The other bill narrows the definition of "public figure" to make it easier for public figures to dodge the "malice" prong in defamation lawsuits. This was ultimately the undoing of Abraham's lawsuits. Abraham caught the bloggers in a lie, but was unable to prove the publication of the false statement was willfully malicious.

What the law would do is sneakily pernicious. The argument Abraham advanced was that he was well-known locally but not all over the world. Since the blog posts were ostensibly accessible to the entire world, Abraham felt his stature as a public figure should be negated since he wasn't actually world-famous. That argument ultimately failed, but that's what King's bill would institute in the state of Texas: a separate libel standard solely for internet posts, comments, etc.

A person is considered a public official for purposes of a defense to a libel claim only if the person is known as a public official in the community in which the damage to the person was proximately caused.

If the damage is "proximately caused" on the internet, the community is technically worldwide and local public officials won't have to meet the malice stipulation when litigating alleged defamation because they're not well-known everywhere the internet reaches.

Both bills are bad for the press and bad for Texans. First, it puts the government in charge of deciding who's a journalist. Second, it invites public figures to sue critics by lowering the standards they have to meet when litigating. If these pass, there will be a palpable chill in the air.

[D]onnis Baggett, executive vice president of the Texas Press Association, disagreed. He told the committee the bill would effectively crush political reporting in Texas, because most news outlets are owned by people or corporations who have been involved in politics in some way.


Stacy Allen, an attorney representing the Texas Association of Broadcasters, testified that the bill would be “seriously detrimental” to the state’s shield law, enacted in 2009, which he said is highly regarded and has been used as a model by other states.

Allen said the bill punishes journalists for exercising their First Amendment right to political speech and by narrowly defining who qualifies as a journalist.

Finally, the millionaire for whom the bills are being written was on hand to express his support. There's nothing quite like a plaintiff in two failed libel lawsuits defending two bad laws by citing nonexistent Constitutional rights.

“I was sanctioned for trying to defend my reputation, when everyone agrees I was lied about,” Abraham said. “It seems that everyone here knows about the First Amendment. There are other amendments to the Constitution and other rights in the bill of rights, one of which is defending your reputation.”

Yeah. That's called the First Amendment. Anyone can defend their reputation with more speech. Shutting down the speech of others because you don't like having to meet certain legal standards when suing isn't "defending your reputation." There is no right to successful lawsuits contained in the Bill of Rights. Hopefully, these bills will die the swift death they deserve.

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Posted on Techdirt - 21 April 2017 @ 9:39am

Feds Say Jewelry Company CEO Scrubbed Google Results With Fake Court Orders And Forged Judge's Signatures

from the sign-here-to-self-destruct dept

Juicing your SEO? Don't like what turns up during vanity Googling? There are a few right ways to solve this problem and apparently about a million wrong ones.

Doing the wrong thing could easily make things worse. Bogus DMCA notices tend to result in Streisandings, which leads to even more negative comments and contents clogging up your search results. Bogus legal threats issued by stupid lawyers or using stupid, compliant lawyers' letterhead tend to have the same result.

You could get more imaginative and start filing bogus defamation lawsuits to fraudulently obtain court orders for delisting. Again, once you've been rousted, the best case scenario is some more Streisanding and negative ROI. At worst, you're looking at paying legal fees and/or possibly facing sanctions for defrauding the court.

If you want the worst results and the worst punishment, you could do what this jewelry company CEO did:

In 2011, sapphire jewelry company CEO Michael Arnstein was desperate to salvage the Google results for his company. According to a lawsuit for defamation he filed in 2011, a former contractor for the Natural Sapphire Company who was fired for selling them buggy software launched a personal crusade to destroy the Natural Sapphire Company's Google search results. The defendant never showed up in court, so in 2012, a federal judge in New York granted Arnstein a default judgment along with an injunction to de-index 54 Google results.

But more fake reviews kept popping up. So Arnstein did something extremely ill-advised. According to the feds, Arnstein rounded up the bad Google results and forged new court orders to send to Google.

Some sympathy for Arnstein is warranted. Negative reviews -- even the fake ones -- are hard to remove from the web. This isn't necessarily the fault of sites hosting them, but the actions of a few hundred aggrieved companies and individuals who have tried nearly everything (legal or illegal) to have negative content and comments removed, even if they're guilty of what's being alleged in them.

But nuking yourself from orbit is never the answer. It wasn't enough for Arnstein to have successfully (if fraudulently) cleaned up his search results. Nope. He just had to tell others. The feds collected multiple instances of Arnstein informing others how to fix their SEO problems USING THIS ONE ILLEGAL TRICK. From the complaint [PDF]:

No bullshit: if I could do it all over again I would have found another court order injunction for removal of links (probably something that can be found online pretty easily) made changes in photoshop to show the links that I wanted removed and then sent to ‘’ as a pdf — showing the court order docket number, the judges [sic] signature — but with the new links put in,” Arnstein wrote in a July 2014 email, according to his criminal complaint. “Google isn’t checking this stuff; that’s the bottom line b/c I spent $30,000 fuckin thousand dollars and nearly 2 fuckin years to do what legit could have been done for about 6 hours of searching and photoshop by a guy for $200., all in ONE DAY.

Here's another ill-advised Arnstein statement from Courthouse News, which first reported the indictment. It opens with an unforgettable disclaimer… and ends with a statement that might make it tough for Arnstein to find representation:

“I think you should take legal advice with a grain of salt,” he allegedly wrote on Sept. 4, 2014. “I spent 100k on lawyers to get a court order injunction to have things removed from Google and Youtube, only to photoshop the documents for future use when new things ‘popped up’ and google legal never double checked my docs for validity… I could have saved 100k and 2 years of waiting/damage if I just used photoshop and a few hours of creative editing… Lawyers are often worse than the criminals.”

Arnstein wanted to clean up bogus complaints and comments from a pissed off contractor. I guess that goal has been achieved. But those results will be replaced with his criminal indictment, fraudulent behavior, and his failure to get away with it.

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Posted on Techdirt - 21 April 2017 @ 6:34am

NY Judge Says Prior Restraint Is America's Best Defense Against Internet 'Chaos'

from the as-American-as-baseball,-apple-pie,-and-microfiche dept

A Long Island judge is swiftly making a (terrible) name for himself with a (terrible) ruling in a defamation lawsuit. The ruling making Acting Supreme Court Justice John Galasso look like an unconstitutional idiot has nearly nothing to do with the defamation claims, but rather his granting of the plaintiff's unconstitutional wish to have unflattering "memories" of himself pre-erased before the underlying lawsuit even gets going.

Here's a bit of background: Jessica Pelletier, an employee at a medical marijuana company, Tikun Olam, sued her co-worker Eric Lerner, as well as her supervisor, for sexual harassment and retaliation.

Pelletier, 23, of Rocky Hill, Conn., charged she was demoted and then fired after complaining to her bosses about alleged raunchy treatment from her colleagues.

Her suit charged she was sexually harassed, taunted about her fight with breast cancer — and ridiculed for her Catholic faith.

She was let go after 20 months with the company. According to her lawsuit, Tikun Olam management charged that she had “an attitude” by reacting badly to the inappropriate comments of her bosses.

The New York Daily News ran an article about the lawsuit, naming everyone involved, including Eric Lerner. This is something newspapers do, especially when the lawsuit covers public interest subjects like workplace harassment. This is something newspapers have every right to do, as filed lawsuits are public records and any coverage of filed suits is very definitely covered by the First Amendment.

Eric Lerner filed a countersuit against Pelletier roughly six months after she filed her harassment suit. Lerner's suit alleges Pelletier has defamed him with false claims, both in and out of court. (How some of those claims will manage to survive a motion to dismiss is unknown, considering statements made in courtroom filings are generally impervious to libel litigation. Statements made in court documents are almost aways given absolute immunity from civil actions.)

Before the defamation suit even got going, Lerner asked the court to grant him a restraining order against Pelletier to prevent her from distributing the Daily News article Eric Lerner is so concerned about. This is already an unconstitutional request, but it gets worse. He also requested his name and picture be removed from the New York Daily News' article about the harassment lawsuit.

Unbelievably, both of these have been granted by Judge Galasso. The Daily News wasn't a party to the defamation lawsuit, nor was it asked to make an appearance to defend its interests. It was informed the day before the injunction hearing, however, and its representative argued (to no avail) that the requested order was prior restraint -- something that's blatantly unconstitutional. Here's the pertinent part of the order, which instructs the Daily News to alter an article based on obtained court documents -- in other words, completely factual:

pending the hearing and determination of this motion [which is to be decided May 16] … the Daily News shall remove plaintiff Lerner’s name and photograph from the Article and its associated keywords and Facebook posts.

The Daily News argued several things, all of which were heard, but ignored, by Judge Galasso. First off, its legal rep points out the article in question is six months old, which makes Lerner's demand for an immediate injunction illogical. From the hearing transcript [PDF] (which also contains the granted injuction):

Another important detail to note is that this article was published on October 7, 2016, nearly six months or more than six months ago. The Daily News is therefore perplexed as to why this extraordinary relief and Order to Show Cause has been brought because it's not apparent how there could be the kind of immediate and irreparable harm that would warrant preliminary injunctive relief for defendant -- for plaintiff. Plaintiff in this case has been aware of the article for six months.


We find it difficult to believe that Mr. Learner [sic] will be able to make a cognizable showing of irreparable harm given that he's waited six months to bring these proceedings [rather than] when the article was first published if the harm was really so immediate and irreparable…

Judge Galasso's answers to all the Daily News' legitimate First Amendment assertions is "because the internet."

The issue here too is that the internet has changed dissemination of information. It's always there. If people want to check somebody, it comes up all the time. Prior, a newspaper article is printed, that was the end of it. You had to go to a library or try to research it to try and get that out.

And this unbelievable word salad where Galasso gets going about the internet, harassment, the First Amendment, and what he believes America is --- and it apparently isn't searchable online newspaper articles:

Even on other aspects, Facebook, something gets published on Facebook or Twitter and something like that, even if it's false, people are harassed out of their houses, they are chanted in stores. This is not what America is about, and it has to be decided by a higher authority, all of this set aside. Nobody wants to limit the First Amendment rights from freedom of speech, but you don't want chaos either.

This incomprehensible statement allows Galasso to grant the order to silence part of the "chaotic" internet while simultaneously allowing him to wash his hands of it. It's up to the appeals court now -- no longer his problem. But the order remains in place. Not that it matters to the Daily News, which released this editorial in response:

A judge on Long Island has ordered the Daily News to remove the name of a defendant in a civil lawsuit from our website.

Supreme Court Justice John Galasso, who wants us to scrub the man’s name from an October 2016 story, must have missed the day the Constitution was taught in law school.

The defendant’s name is Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Furthermore, Eric Lerner.

Maybe Galasso would have been better staying in his lane, as Scott Greenfield points out:

Lack of familiarity with the First Amendment is one thing. But jurisdiction? The Daily News wasn’t subject to his jurisdiction. While some judges seem to have a general impression that their powers extend wherever they want them to extend, they have certain fairly obvious limits. Foremost among them is they can’t issue orders requiring non-parties to do anything. Not good things. Not bad things. Nothing. They are not within the ambit of their jurisdiction just because the judge says so.

Not only did Galasso order a non-party to do something unconstitutional, but he did so before any of the facts were in. Lerner's defamation accusations have not been proven. In fact, nothing has been discussed thus far but how to censor a newspaper's article about Lerner being named as a defendant in public court documents.

Galasso overstepped here, not just in terms of the Constitution, but in terms of jurisdiction. Unfortunately, the overreach that resulted in the stupid granting of an unconstitutional request may also limit the Daily News' options when it comes to appealing the order.

The flip side of a judge issuing an order to a non-party to do something is that they’re a non-party when they want to challenge the judge’s order. The News would first need standing to intervene, which means they would have to obtain the court’s approval for sticking their nose into somebody else’s litigation.

But the judge ordered them to do something, so how could that be possible? Darn good question, and that’s the sort of questions that arise when a judge does something beyond his authority, outside the law and for which there are no procedures.

The only thing guaranteed is that when all's said and done -- no matter how Lerner's defamation case turns out -- this is all that will be remembered about it: a defendant with a countersuit and the unconstitutional dream of living an untroubled internet existence until vindicated (possibly twice!) in court.

For Judge Galasso, it's much, much worse:

Eric Lerner doesn’t like his name associated with this sordid story of a 23-year-old woman claiming sexual harassment? Who would? Win the case and the problem is solved, but the one thing you can’t accomplish is forcing a newspaper to remove your name because, hey, it’s unpleasant.

The Daily News isn’t going to do it. If anything, this will Streisand Lerner’s name across the internet. And Justice John Galasso’s too, which is going to make it really hard when he has to get a new job after everyone knows how badly he sucked at his current one.

Galasso's order -- and his "this is all up to other people except for the part where I granted the injunction" flailing -- is the judicial equivalent of leaving a flaming bag of feces on the Appeals Court's front door step. All it can hope to do is extinguish it without having to scrape too much off of its shoes.

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Posted on Techdirt - 21 April 2017 @ 3:28am

The US Charging Assange For Publishing Documents Would Be An Unprecedented Attempt To Chill A Free Press

from the I-guess-we're-'opening-up'-the-First-Amendment-now dept

Obama waged a war on whistleblowers during his eight-year run. Sure, it was done under a sunny facade of "transparency," but the former president set the gold standard for whistleblower prosecutions, performing more than every other president until then… combined.

Punishing whistleblowers is for amateurs. The Trump Administration will show everyone how it's done.

US authorities have prepared charges to seek the arrest of WikiLeaks founder Julian Assange, US officials familiar with the matter tell CNN.

For what, you may ask? Publication of leaked documents? Well, there's a little more to it than that.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

Hmm. But the Washington Post, Intercept, Guardian, and New York Times also did this. There's been some online speculation this actually refers to Assange's Russian-host-maneuvering and flight plan assistance -- that brief moment where journalists and g-men packed a plane to Cuba only to find themselves Snowden-less. But Ellen Nakashima's article for the Washington Post digs a little deeper into the proposed charges, citing evidence in Chelsea Manning's trial, where Assange assisted Manning with password cracking to sweep up digital breadcrumbs. (A 2012 DOJ warrant gives a bit more insight into the possible charges, which include espionage, CFAA violations, and "conversion" of stolen documents.)

But, again, this is nothing out of the ordinary for journalists who publish leaked documents. As Nakashima points out, helping sources erase their digital footprints is just something good journalists do. Prosecuting Assange for these efforts would set a terrible precedent.

[J]ournalists routinely employ methods — or tell sources to employ methods — that will help them avoid being identified. Justice Department officials in the previous administration believed that prosecuting Assange or other members of WikiLeaks could open the door to prosecuting news organizations and journalists who published classified information, and so they opted instead to target people, such as Manning, who had clearances to access such information and gave it to reporters.

Obama may have gone after a bunch of whistleblowers, but he was unwilling to cross the First Amendment line by punishing those who published leaked documents. Apparently, Trump and his DOJ have no such qualms.

Prosecutors have struggled with whether the First Amendment precluded the prosecution of Assange, but now believe they have found a way to move forward.

And they may have, without amending the First Amendment. But it will take a whole lot of cooperation to bring Assange in. The Ecuadorian embassy has managed to hold off Sweden for years and the country's government isn't exactly best friends with the US nor is it exactly respectful of US law.

Assange isn't a US citizen, so he's not automatically guaranteed First Amendment protections, even if the distribution of leaked documents is very much a journalistic enterprise. The US government doesn't automatically refuse to extend constitutional protections to foreign citizens, but it might be able to pick and choose which of those it wants to extend to Assange (though if he's charged in the US, he does get the benefit of all Constitutional protections). Even if the current DOJ can find a lawful way to prosecute Assange for still-unnamed charges related to leaked documents, this is an extremely dangerous direction for the federal government to be moving in.

This unofficial announcement by the DOJ is an implicit threat to journalists everywhere. You may hate Assange and/or Wikileaks, but it may be your favorite leak-friendly news sources facing charges next. Distinguishing your favorite source from Wikileaks is not nearly as easy as you might think.

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Posted on Techdirt - 20 April 2017 @ 10:42am

More Shady Libel Lawsuits Resulting In Dubious Delisting Court Orders Uncovered

from the self-serve-RTBF dept

Now that Eugene Volokh of the Volokh Conspiracy has dipped into bogus lawsuits and DMCA notices targeting supposedly-libelous reviews and comments, he's apparently stepped up his detective work. Volokh and Paul Alan Levy of Public Citizen managed to expose the person behind a series of bogus lawsuits aimed at cleaning up clients' search engine reputations. (Pissed Consumer has also uncovered some of the same tactics.)

Volokh has uncovered more questionable lawsuits, which have led to more questionable court orders being sent to Google to delist content. As Volokh points out, these lawsuits may be slightly more legitimate, but they still bypass a great deal of the adversarial process.

Here’s another twist, which some people have used to try to deindex mainstream news articles (though without any success, to my knowledge, because Google seems skeptical of these particular requests) — they (a) sue the people quoted in the articles, (b) get stipulations from the people recanting their allegations, (c) get court orders based on those recantations and then (d) try to use those court orders to deindex an entire article.

Even if it's granted that the stipulations are genuine (a possibility, but not a probability), there's still the problem of who's being cut out of the loop. While it's true the correct target for a libel lawsuit is the person making the defamatory statements, filing lawsuits in such a way that the publications themselves remain unaware of the legal proceedings can harm these new entities indirectly. When content starts vanishing from Google, news sources are left with unlisted stories based on questionable assertions. Their integrity suffers damage when they're not made aware a story's source may have lied to them.

When a plaintiff sues the source, though, gets a stipulation and submits the order to Google with a deindexing request, the plaintiff is trying to short-circuit the news organization’s review of the matter. Instead, the plaintiff wants to just get the original story hidden, with no independent evaluation of whether the story was and continues to be correct.

There's no review option and the continued publication of the story could possibly see the new organization facing a defamation lawsuit of its own. (Probably not a successful one, but one it would still be compelled to defend itself against.) Not only that, but individuals may be more susceptible to legal bullying than new agencies. This is perhaps what these plaintiffs are counting on.

Volokh covers two different cases following the same M.O. in his post. Both plaintiffs managed to obtain a stipulation from the alleged defamers and obtained court orders to delist content, despite there never being an examination as to whether the statements were truly actionable. To its credit, Google has refused to delist content based on court orders obtained this way, most likely due to the recent increase in bogus libel lawsuit activity.

As I mentioned, fortunately today Google (and other search engines to which these orders are submitted) can decline to implement such deindexing requests, taking the view that a stipulated judgment based on a source’s recanting (under legal pressure) is no reason to vanish a news story that relied on the source.

Unfortunately, Google's "opt out" may not last for long. As Volokh points out, the California Supreme Court is currently reviewing a case that could, if the lower court's decision is upheld, force Google to comply with these orders, whether or not they were obtained legitimately.

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Posted on Techdirt - 20 April 2017 @ 9:40am

DHS Boss Calls For More Fear, Less Encryption

from the Frightened-States-of-America dept

The Trump administration is rebranding the country: Make America Fear Again. In response to a national crime wave that doesn't exist, the head of the DOJ is rolling back police reform and replacing it with extra "toughness." Under the new regime, law enforcement officers will have the full (and, apparently, unconditional) backing of the White House.

The DHS is joining the DOJ in flexing its new muscle. DHS Secretary John Kelly has already stated he's looking to turn requests for visitors' social media/email account information into demands, which would include the mandatory relinquishment of account passwords.

Both agency heads have expressed a desire to do battle with US citizens by revitalizing the fed's war on marijuana, despite legalization referendums being passed by popular vote in several states.

Kelly... course-corrected on a previous statement he made regarding the dangers of marijuana.

Calling it “a potentially dangerous gateway drug that frequently leads to the use of harder drugs,” Kelly vowed that DHS personnel would continue to investigate and arrest those involved in illegal trade of the drug.

That comes after Kelly on Sunday told “Meet The Press” host Chuck Todd that marijuana was “not a factor” in the war on drugs, arguing that solving the nation’s drug problem does not involve “arresting a lot of users.”

These comments came during Kelly's first major public speech since taking office. His "course-corrected" statement echoes DOJ head Jeff Sessions' take on marijuana, a drug only found dangerous by agencies whose budgets rely on marijuana being viewed as a threatening "gateway drug."

Both are also looking to toss more immigrants out of the country, theorizing that stricter immigration control will somehow curb drug cartel violence -- almost all of which is contained completely in other countries. Kelly mentioned Salvadoran drug cartel MS13 in passing, claiming it was responsible for acts of violence and stateside human trafficking.

Attorney General Jeff Sessions was even less kind in his appraisal, delivering comments that made it sound as though the only thing standing between the US and societal collapse was American law enforcement:

When we talk about MS-13 and the cartels, what do we mean? We mean criminal organizations that turn cities and suburbs into warzones, that rape and kill innocent citizens and who profit by smuggling poison and other human beings across our borders. Depravity and violence are their calling cards, including brutal machete attacks and beheadings.

It is here, on this sliver of land, where we first take our stand against this filth.

The DHS head is also capitalizing on Trump's dark -- and deeply-inaccurate -- view of national security. His speech portrayed the country as being under ceaseless attack from innumerable evil forces.

“We are under attack from people who hate us, hate our freedoms, hate our laws, hate our values, hate the way we simply live our lives. And we are under attack every single day,” he warned. “The threats are relentless.”

Kelly covered a wide swath of issues — from transnational criminal organizations to cyberattacks to homegrown violent extremism, often using graphic descriptions of human suffering to illustrate the dangers.

The speech harkened back to President Trump’s inaugural address to Congress, in which he described “American carnage” outside of the Beltway.

No agency benefits more from the perception of an insecure homeland than the Department of Homeland Security. But the trickle-down effect of fear-based policy-making helps other agencies as well.

In his speech, Kelly tacitly aligned himself with the only Obama holdover Trump seems to like: FBI director James Comey.

He warned that proliferating encrypted communications technology would soon make it “impossible” to track terrorist threats.

Kelly had more to say on that subject in relation to Trump's still-unseen cybersecurity executive order. Supposedly, an updated version of the draft released in February is due any day now, and no matter what's in it, Kelly fully supports it.

“I’m standing by with bated breath,” Kelly said when Frank Cilluffo, director of the university’s Center for Cyber and Homeland Security, asked if there was any news on the order. “I can’t wait.”

Presumably not referencing the FBI's counterterrorism sting operations with the phrase "homegrown terrorism," Kelly again pointed to encryption as being part of the problem.

“What’s feeding homegrown terrorism is the Internet. They publish revolting how-to manuals,” Kelly said. “Thanks to proliferating encryption devices, these individuals are becoming harder and harder to detect. Our nation’s youth are prey to these predators.”

Between John Kelly, AG Jeff Sessions, and CIA head Mike Pompeo, the administration seems interested in sacrificing citizens' freedoms and protections on the altar of national security. All three are hoping loaded, hyperbolic language will convince more Americans to give up these protections willingly. Those who don't will probably be viewed as enemies of the nation -- and that includes any legislators who appear reluctant to give these agencies everything they want. Kelly again:

“If lawmakers do not like the laws they’ve passed and we are charged to enforce — then they should have the courage and skill to change the laws. Otherwise they should shut up and support the men and women on the front lines,” Kelly said, to a burst of applause in the auditorium.

This is wonderful stuff if you're a fan of authoritarianism. Shut up and show your support. It's a message that's been sent several times by the new president. Now, it's being echoed by his top officials.

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Posted on Techdirt - 20 April 2017 @ 3:29am

Cop Arrested, Fired After Wife Captures His Abusive Actions On His Own Body Camera

from the accidental-sting-operation dept

This is one of the strangest "but for video" cases ever. We know many cops are hesitant to clip body-worn cameras on themselves for a variety of reasons. The official statements always express concern about privacy, as though people interacting with public servants somehow believe these interactions are private. Others show concern for police officers' privacy, as though the public is really hoping to FOIA footage of officers sitting in the break room or using the restroom.

Deep down, everyone knows the cameras are a tool of accountability, albeit one that's far from perfect. Body camera footage frequently goes "missing" when force is deployed questionably. And it's completely possible to make the footage subjective with strategic body positioning and constant yelling of exonerative phrases like "Stop resisting!"

So, it's accountability in its infancy, run through a layer of law enforcement-friendly filters (footage is controlled by police officers and often sheltered from FOIA requests). But it's much better than what we had before, where all action had to take place in front of stationary dashboard cameras.

Still, there are plenty of bugs -- both those inherent to the system and those created by law enforcement resistance -- to be worked out. We've seen cops damned by their captured footage and we've seen officers exonerated by footage that contradicts arrestees' complaints.

What we haven't seen before is a camera being activated by someone other than the cop in possession of it. And we definitely haven't seen any situations where the footage captures off-duty violence. This is a new one, and it's likely to lead to another "privacy" discussion by the time it's all sorted out. (via

A North Charleston Police officer was arrested for assaulting his wife Sunday after police say the incident was captured on his body camera. Hanahan Police say the officer, Nicholas Palumbo was arrested early Sunday morning.

According to an incident report, Palumbo's wife told him she wanted a divorce. The report states Palumbo became very irate and pushed his wife to the ground in their kitchen. Police say after the altercation started Palumbo's wife went into the bedroom and turned on his body camera.

According to the report, Palumbo came into the room, pinned his wife to the bed and threatened to strike her in the head with his fist while shaking her. His wife told investigators she was in great fear for her safety and the safety of her children. The report states she did not know where her husband had gone and was afraid he would return home and cause physical harm to her.

I'm not sure which part is more amazing: the forethought of the abused spouse to activate the camera or the fact that the footage was actually viewed by someone at the police department.

We know officers protect officers first. Perhaps being the wife of an officer grants you more attention and respect than a random civilian with a list of allegations. Whatever the case is, the department viewed the footage and arrested the officer. Even more surprising, the officer was immediately fired. I guess this decision was made easier by his bail requirements, which forbade him from possessing guns or ammo -- something every on-duty cop generally has on them or easy access to.

It's a petard-hoisting of sorts and definitely an anomaly in the pantheon of body-worn cameras. No doubt other cops with the same domestic issues will be keeping a closer eye on their issued gear during their off-duty hours. And there will definitely be challenges to the evidence, should this go to trial.

Arguments will be made about surreptitious recordings being used to fire a police officer, but those shouldn't get too far. South Carolina is a one party consent state when it comes to recordings. The fact that it was recorded in a private home (rather than in a public area) makes it a bit more complicated, but the recording should be treated no differently than the spouse's oral testimony. The recording just makes it a lot tougher to challenge the spouse's domestic abuse allegations.

Whatever happens, it's one for the "but for video" record books: body worn camera as the prosecution's star witness in a domestic assault case.

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Posted on Techdirt - 19 April 2017 @ 3:21pm

NYPD Finally Comes Up With A Body Camera Policy, And It's Terrible

from the more-tech,-less-transparency dept

Nearly four years after the NYPD was ordered by a federal judge to implement body cameras, the department is finally getting around to finalizing its rule set for deployment. Part of the delay is due to the NYPD seeking input from the public -- input it has apparently decided to ignore.

As Scott Greenfield notes, the NYPD gets everything wrong about its policies, applying guidelines that directly contradict the responses received from everyone in New York City not wearing a blue uniform.

The first “big” question is when will cops be required to turn their body cams on, since having them doesn’t actually serve much of a purpose if they’re turned off.

Notice anything peculiar? Like the public wants them on a lot, and the cops, not so much? But this belies the problem: if body cams must be on for “use of force,” will cops call a “time out” when a situation develops where they decide to tune up a guy who isn’t sufficiently compliant so he can flip the switch? Sure. Who doesn’t honor the sacred “time out”?

But then, the “it depends” on witness interviews is somewhat disconcerting. After all, why record witness interviews, since they might say something inconsistent with the cop’s recollection or their testimony in court? That could be unpleasant.

The public also wants expansive footage release policies. Unsurprisingly, NYPD officers do not. From the NYPD's body-worn camera report [PDF]:

Officers and the public were asked whether they agreed or disagreed with this statement: “If a person has an interaction with an officer wearing a  body-worn camera, the NYPD should be required to show that person the footage upon request.” Here is how they responded:

Here are the responses for a similar question, but involving third parties like journalists and advocacy groups making requests for footage:

The split is obvious. The public wants access. The NYPD wants sole control. The "compromise" is this:

[T]he NYPD is refusing to take this step. Instead, it will require footage requesters go through the slow and ill-suited Freedom of Information Law public records process — the same one you’d have to use to get, say, the mayor’s travel records.

To date, when people have used the FOIL process to request footage from the tiny number of body cameras already deployed in an experiment, the NYPD has stood in the way, charging the public exorbitant fees and claiming broad exemptions.

When it comes to New York's open records law, approaching the NYPD for documents is an exercise in futility. The department has been called "worse than the FBI, CIA, and NSA" when it comes to responding to records requests. FOIL lawsuits are minimally effective, as the NYPD is as comfortable with slowly bleeding plaintiffs dry as it is ignoring their requests entirely.

The other twist is this: if you're facing criminal charges and want access to footage of your arrest, etc., you're not going to get any preferential treatment. You also will be forbidden from joining the FOIL line and hearing your request will be ignored in the order it's received. Scott Greenfield breaks this down:

But certainly the defendant is entitled to the video, right?

"There is an important exception with respect to release of body-worn camera footage: if a person is arrested and has a pending criminal case, and seeks body camera footage related to his or her arrest, he or she may not come to the NYPD to circumvent the standard discovery process between the prosecution and the defense. Discovery is governed by New York State Criminal Procedure Law. Criminal defendants are entitled to these recordings under the law, but such requests are handled by prosecutors in accordance with existing criminal discovery practices and procedures."

Discovery? That same criminal procedure process that has been the target of reform for decades because it’s nearly useless?

Unbelievably, the NYPD camera policy gets even worse, and even further away from the public's preferences. Here are the responses given to the question of when officers should be given access to body camera footage. Note that the largest split involves the viewing of camera footage before writing reports.

The NYPD policy sides with the 91% of officers who stated they should be given access before writing reports or issuing statements. The explanation of its decision to run contrary to public opinion cites two things:

1. Plenty of other law enforcement agencies have similarly bad camera policies.

The NYPD body-worn-camera working group has reviewed the body-worn camera policies of nearly 30 police departments. All of them allow officers, without restriction, to review body-worn camera video prior to filling reports when there has not been a significant use of force.

2. NYPD internal investigations are probably the most thorough, serious investigations in the history of internal investigations.

The propriety of this approach requires some understanding of how serious use-of-force investigations proceed in New York City… [two pages of Complicated Hypothetical Situation…]

So, the NYPD will join the 21st century, already in progress, with 1,000 cameras and policies that benefit no one but the officers wearing them. The presumption for footage will be nondisclosure and the only people guaranteed to see the footage will be those who can tailor their narratives to recordings after the fact. The NYPD believes it's the best police force in the nation, if not the world. But it's still far behind several smaller agencies, both in terms of tech adoption, as well as transparency and accountability.

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Posted on Techdirt - 19 April 2017 @ 3:22am

Court: No Immunity For Federal Agent Who Made Elderly Woman Stand In Urine-Soaked Pants For Two Hours While He Questioned Her

from the tough-on-(moon-related)-crime dept

The Ninth Circuit Appeals Court has affirmed a lower court's stripping of a federal officer's qualified immunity in a… moon rock sting case. This is a thing. Relatives and friends of NASA personnel have received what they believe are gifts from them -- items containing moon rock pieces, or heat shield fragments, or whatever. The problem here is the government believes it owns anything related to its exploration missions.

It's not always illegal to be in possession of these items, but as Lowering the Bar's Kevin Underhill explains, it's almost always going to be treated as illegal by the federal government.

[I]f you have or even claim to have any lunar material, or some other piece of Apollo memorabilia, the government is quite likely to treat you as a criminal if it finds out—even if, as in this case, it had no proof at all that the suspect got it illegally (or even that it was what she claimed).

The "she" here is Joann Davis, whose late husband worked on the Apollo program. He was given two Apollo souvenirs by Neil Armstrong -- paperweights containing pieces of a moon rock and a heat shield, respectively. Davis was looking to sell the items to a collector to defray her son's medical expenses. She asked NASA for assistance, which turned out to be a mistake. NASA sent the feds after her.

Davis may have told the government what she was up to, but the government didn't return the favor. Instead, it decided to engage in sting operation, because that's obviously the best way to deal with a 74-year-old woman trying to pay medical expenses -- and who had made the government fully aware of her NASA-related items and her planned sale of them.

"Jeff," the government's undercover man posing as an interested buyer, met with Davis at a Denny's. Outside were six armed federal agents. The only person with Davis was her 70-year-old friend, Paul Cilley. From the opinion [PDF]:

Once Davis, Cilley, and “Jeff” were seated in a booth inside the restaurant and exchanged pleasantries, Davis placed the paperweights on the table. “Jeff” said he thought the heat shield was worth about $2,000. Shortly thereafter, Conley announced himself as a “special agent,” and another officer’s hand reached over Davis, grabbed her hand, and took the moon rock paperweight. Simultaneously, a different officer grabbed Cilley by the back of the neck and restrained him by holding his arm behind his back in a bent-over position. Then, an officer grabbed Davis by the arm, pulling her from the booth. At this time, Davis claims that she felt like she was beginning to lose control of her bladder. One of the officers took her purse. Both Cilley and Davis were compliant. Four officers escorted them to the restaurant parking lot for questioning after patting them down to ensure that neither was armed.

If this itself seems excessive, well… hold the government's beer.

Davis claims that she told officers twice during the escort that she needed to use the restroom, but that they did not answer and continued walking her toward an SUV where Conley was waiting. Davis subsequently urinated in her clothing. Although their accounts differ in some respects, Conley and Davis agree that he knew she was wearing urine-soaked pants as he interrogated her in the restaurant parking lot. Davis claims that she was not allowed an opportunity to clean herself or change her clothing, despite communicating to Conley several times that she was “very uncomfortable.”

Conley is Norman Conley, the federal agent whose immunity remains stripped. For whatever reason, Conley appeared to believe it wasn't enough to have both the disputed property in hand and a fully-compliant suspect who had already informed NASA about her plans to sell them.

Conley then proceeded to question Davis for one-and-a-half to two hours, during which time Davis remained standing in the same place.

In urine-soaked pants, lest we forget.

Conley apparently felt he just wasn't threatening enough. He brought more muscle for the urine-soaked, Denny's parking lot interrogation of a 74-year-old woman.

[W]hile Conley questioned her, another officer wearing a flack jacket stood behind her and pushed her each time she shifted her weight or stepped backwards. During the questioning, Conley kept Davis’s purse and car keys and told her repeatedly that “they still really want to take you in,” and that she needed to give him more information before he could release her. She was kept from going to her car. At least ninety minutes had passed when Conley told Davis she was free to leave.

Here's the depressing coda:

After the sting operation was complete and NASA lunar experts were able to confirm the moon rock’s authenticity, Conley opened a full investigation. The investigation was closed when the U.S. Attorney in Orlando, Florida, formally declined to prosecute Davis. Davis’s son died seven months after the incident.

As the appeals court points out, Conley's own admissions cancel out his qualified immunity defense.

At the time of the detention, Conley was aware of several facts that color the reasonableness of his actions. First, Conley knew that Davis was a slight, elderly woman, who was then nearly seventy-five years old and less than five feet tall. Second, he knew that Davis lost control of her bladder during the search and was wearing visibly wet pants. Third, he knew that Davis and Cilley were unarmed and that the search warrant had been fully executed by the time Davis was escorted to the parking lot. Fourth, Conley knew that Davis had not concealed possession of the paperweights, but rather had reached out to NASA for help in selling the paperweights. Finally, because all but the first of the phone calls between Davis and “Jeff” were recorded, Conley knew the exact content of most of those conversations, including that Davis was experiencing financial distress as a result of having to raise grandchildren after her daughter died, her son was severely ill and required expensive medical care, and Davis needed a transplant. Those conversations also revealed Davis’s desire to sell the paperweights in a legal manner and her belief that she possessed them legally because they were a gift to her late husband.

If Conley didn't want to be held accountable for civil liberties violations, the court says he probably shouldn't have violated them so thoroughly.

Because the moon rock paperweight had been seized and both Davis and Cilley had already been searched for other weapons and contraband, Conley had no law enforcement interest in detaining Davis for two hours while she stood wearing urine-soaked pants in a restaurant’s parking lot during the lunch rush. This is precisely the type of “unusual case” involving “special circumstances” that leads us to conclude that a detention is unreasonable. Conley’s detention of Davis, an elderly woman, was unreasonably prolonged and unnecessarily degrading.

There are multiple ways this could have been handled and Conley chose the path most likely to result in a civil rights lawsuit. Maybe he thought Davis would never go so far as to sue him. Maybe this is just how Agent Conley handles everything: with as much force and intimidation as possible, even if nothing about the situation warrants it. Whatever the case, Conley will now have to face Davis' allegations in court, with no shield in front of him. Hopefully, he'll find the experience to be nearly as uncomfortable as what he put Joann Davis through.

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Posted on Techdirt - 18 April 2017 @ 6:14pm

Arizona Governor Signs Asset Forfeiture Reform Bill Into Law, Raising Evidentiary Burden For Law Enforcement

from the LEO-tears-at-11 dept

Some more forward progress has been made against civil asset forfeiture, this time in Arizona. Governor Doug Ducey put his signature on a reform bill late last week, raising the evidentiary bar for seizures in the state.

House Bill 2477 restricts police and prosecutors from abusing the civil forfeiture process by requiring them to show “clear and convincing evidence” that certain property was linked to a crime before the seizure or forfeiture of any assets. Under current law, prosecutors are only required to show a “preponderance” of the evidence.

The move drew bipartisan support from nearly all members of the Legislature, with only one vote lodged against the measure.

While it doesn't go so far as to establish a conviction requirement, it does make it a little more difficult for law enforcement agencies to walk off with citizens' possessions. Unfortunately, not much has been done to address the terrible recourse process, which dumps the burden of proof back on the citizen whose possessions have been taken.

Navigating this particular legal thicket often requires a lawyer and there's a good chance the best possible outcome will be a partial release of the property seized. Fortunately, going the lawsuit route will be a little less risky in the future: the new law also ensures legal fees will be awarded to winning parties who manage to litigate the return of seized property.

Even if Governor Ducey had been opposed to the reform bill, he wouldn't have been able to defend a veto in the same way Idaho Governor Butch Otter did when shooting down a popular reform effort there. There's plenty of evidence the state's asset forfeiture laws have been abused.

After analyzing more than 1,300 quarterly financial reports filed by agencies detailing seizures and expenditures from fiscal years 2011 through 2015, AZCIR found that the state commission tasked with compiling statewide civil asset forfeiture figures omitted roughly $20 million, or 16 percent of overall spending, from its reports.


And when it comes to tracking what law enforcement agencies are seizing and from whom, virtually no data is available other than aggregate totals of the amounts seized.

Along with zero transparency and questionable accounting, there are a few small law enforcement agencies where seizing stuff is basically all they do.

[S]anta Cruz County [...] agencies seized more than $5 million during the past five years. All but $90 came from auctioning forfeited property, such as cars and houses. Considering the total, along with the small population, the county also had the highest seizure rate – more than three times the state average.

Agencies in La Paz County, with a population of 20,500, seized $1.6 million during the past five years, the second highest rate in the state – $955,000 of that in 2015 alone.

In Arizona, law enforcement agencies are allowed to spend seized funds directly on employee salaries, which has led to this sort of thing being common:

The Attorney General’s Office spent more on personnel than any other agency at $6.4 million, which funded 50 positions, according to an August 2016 budget proposal document provided to AZCIR.

When your paycheck depends directly on successful seizures, there's no way you won't be performing as many seizures as possible.

This new law doesn't make dramatic changes to existing forfeiture statutes, but any chance, no matter how small, always appears to be unacceptable to the agencies affected. Here's Chief Deputy (Mohave County Attorney's Office) James Schoppman's reaction:

In a letter to the governor pleading the county’s case, Schoppmann wrote, “If HB 2477 is enacted, Mohave County will suffer because of an overreaction to the misdeeds of a very small percentage of others and the result will be a net loss to our community and a net gain for drug traffickers.”

Apparently, it's a net win for the community when criminals go free but their money goes to pay DA's office salaries. The statement is complete crap. Arizona law enforcement agencies are handfuls of cash from hundreds of victims and doing almost nothing to make a dent in drug cartel operations. This systemic abuse won't be stopped by the new law, but it will be slowed. Arizona law enforcement will just have to exercise a bit more discretion when separating citizens from their property.

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Posted on Techdirt - 18 April 2017 @ 9:25am

Hypocritical CIA Director Goes On Rant About Wikileaks, Free Speech

from the doesn't-seem-to-care-much-for-either dept

The current administration is back to threatening free speech. On his way to being elected, Trump's passion for bogus defamation suits led him to declare he would "open up" libel laws to make it easier for him to sue people for saying things he didn't like.

This continued after the election. Trump tweeted his opposition to "fake news," calling out pretty much any major network that wasn't Fox News and calling them "enemies of the people." His new CIA director, Mike Pompeo, is similarly threatening the First Amendment. In his remarks at the Center for Strategic and International Studies, Pompeo went on a rant about Wikileaks -- one no doubt motivated by the site's recent data dumps on CIA computer exploits.

WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service. It has encouraged its followers to find jobs at CIA in order to obtain intelligence. It directed Chelsea Manning in her theft of specific secret information. And it overwhelmingly focuses on the United States, while seeking support from anti-democratic countries and organizations.

It is time to call out WikiLeaks for what it really is – a non-state hostile intelligence service often abetted by state actors like Russia. In January of this year, our Intelligence Community determined that Russian military intelligence—the GRU—had used WikiLeaks to release data of US victims that the GRU had obtained through cyber operations against the Democratic National Committee. And the report also found that Russia’s primary propaganda outlet, RT, has actively collaborated with WikiLeaks.

This is an interesting change of heart for Pompeo. Last year, when he was running for re-election in Kansas, he seemed pleased with Wikileaks and its ability to obtain damning documents.

If you can't read/see the embedded, since-deleted tweet by Pompeo, it reads:

Need further proof the fix was in from Pres. Obama on down? BUSTED: 19,252 Emails from DNC leaked by Wikileaks.

So, Wikileaks is a non-hostile intelligence service when it serves Pompeo's ends, but not so much when it puts CIA hacking tools on public display. This was only part of Pompeo's rant, though. Once he was through being hypocritical, he went after the First Amendment. Here's Glenn Greenwald's take on Pompeo's comments:

Trump’s CIA Director stood up in public and explicitly threatened to target free speech rights and press freedoms, and it was almost impossible to find even a single U.S. mainstream journalist expressing objections or alarm, because the targets Pompeo chose in this instance are ones they dislike – much the way that many are willing to overlook or even sanction free speech repression if the targeted ideas or speakers are sufficiently unpopular.

Decreeing (with no evidence) that WikiLeaks is “a non-state hostile intelligence service often abetted by state actors like Russia” a belief that has become gospel in establishment Democratic Party circles – Pompeo proclaimed that “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” He also argued that while WikiLeaks “pretended that America’s First Amendment freedoms shield them from justice,” but: “they may have believed that, but they are wrong.”

He then issued this remarkable threat: “To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.” At no point did Pompeo specify what steps the CIA intended to take to ensure that the “space” to publish secrets “ends now.”

Pompeo is now willing to go after publishers of secrets. No doubt he intends to go after whistleblowers and leakers as well, but he has publicly stated a desire to attack the messengers. Making this worse is Pompeo's hypocrisy, which means any targeting of publishers he attempts to engage in will be based on the content of the publications. Stuff he doesn't like will be targeted. Everything else will remain unaffected.

Of course, Pompeo's in the wrong branch of government to be engaging in First Amendment issues. The CIA is a foreign-facing intelligence agency. It should have nearly nothing to do with domestic whistleblower/leaker incidents, unless it happens to be CIA documents that are released. Even then, his agency won't be able to do anything more than an internal investigation. It's not a law enforcement agency, nor is it supposed to be engaged in domestic surveillance.

But Pompeo is the president's pick. He may think he's only speaking for himself and his agency, but his words echo the president's antipathy towards speech he doesn't like. And he has his president's hypocrisy: someone who loves Wikileaks when it's publishing documents that hurt the other team, but not so much when the leaks implicate people, parties, and agencies they hold dear.

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