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Posted on Techdirt - 22 June 2018 @ 2:17pm

Supreme Court Says Warrants Are Needed For Cell Site Location Info

from the 4th-Amendment-Bonus-Content! dept

The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.

The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.

[W]hile the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.

The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.

[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.


Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.

That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.

More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:

1. The records were obtained from a third party so no warrant should ever be needed.

2. This will law enforcement's work more difficult.

Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.

Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.

Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.

I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.

This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.

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Posted on Techdirt - 21 June 2018 @ 3:44pm

Lawsuit Argues Honking Your Car Horn Is Protected By The First Amendment

from the #LEGALIZEIT dept

The First Amendment covers a whole lot of area. Since it covers "expression," it doesn't necessarily have to be anything commonly thought of as "speech." It doesn't have to be printed. It doesn't have to be said. Lighting a flag on fire requires no statement of intent. The act itself is expressive enough. Passively gathering information (like recordings or public records) is protected by the First Amendment. Taking photos is a protected act, even if the photos are never used to express anything more than a memory of an event or place.

It has been argued nudity or partially-exposed bodies are expressions deserving of protection by the First Amendment. Exotic dancers and "bikini barristas" have engaged in multiple free speech lawsuits targeting allegedly unconstitutional restrictions on their expressive conduct.

A plaintiff currently suing a sheriff and the head of the California Highway Patrol is arguing that honking a car horn is protected speech and that the citation she received after engaging in this expression is unconstitutional. (via Courthouse News)

Susan Porter was driving by a protest held outside of Rep. Darrell Issa's office. These frequent demonstrations gathered both protesters and counter-protesters, all of who made plenty of noise. Passing traffic would express their support/displeasure for Issa by honking their horns. (Which would make not honking your horn similarly protected expression, although it's unlikely anyone would be cited for not honking their horn while driving by a protest.)

The demonstation briefly attended by Porter drew the attention of local law enforcement, who showed up to hand out citations to protesters. Porter was parked in a nearby parking lot. When the cops showed up, Porter decided to clear out. As she drove away past the protesters and newly-arrived law enforcement officers, she sent off one last car horn blast of support. Cue unneeded officer involvement. From the lawsuit [PDF]:

After Ms. Porter sounded her horn in support of the protest, Sheriff's Deputy K. Klein ("Deputy Klein"), ID. Number 7275, directed Ms. Porter to pull over.

Deputy Klein told Ms. Porter she was pulled over for sounding her vehicle horn, and issued her a citation for alleged violation of Vehicle Code 27001, which states that "[t]he driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn," but "[t]he horn shall not otherwise be used, except as a theft alarm system" (emphasis added). Cal. Veh. Code 27001.

Section 27001 does not require that the use of a horn meet any specified noise level, disturb the peace, distract drivers or pedestrians, or endanger safety.


Ms. Porter's citation… states that the citation was for violation of "27001(A) cvc [sic] -- unreasonable use of horn" and contains no allegations as to noise level, disturbing the peace, distracting drivers or pedestrians, or endangering safety.

It looks like Deputy Klein didn't like being honked at (though he wasn't) by some protester slipping away from the scene of the crime in her vehicle and tagged her with a "don't fuck [with] the police" ticket. I'm sure he never expected his department would be named in a civil rights lawsuit, but that's the sort of thing that happens when the law is used in ways it shouldn't be. If these law enforcement officers were that concerned about horn noise, all they had to do was camp out outside Issa's office and hand out horn tickets all day long. But law enforcement is never about consistent enforcement. It's highly selective and sometimes the law that ends up being enforced isn't the one officers had in mind when they initiated the stop. (But that's a completely different amendment.)

In this case, her honked horn wasn't a violation of the law, but rather her way of "convey[ing] a message of support for the protest." But it was also a violation of the law, if officers wanted to get technical. And Deputy Klein certainly did.

Selective enforcement of seldom-enforced laws around demonstrations and protests is a great way to rack up civil liberties violations and their attendant lawsuits. Porter claims the deputy's decision to enforce the states horn ordinance out of the blue creates a chilling effect for politically-inclined drivers like herself.

Ms. Porter regularly drives her vehicle in areas of San Diego County and the State of California where the Sheriff's Department or California Highway Patrol is responsible for traffic enforcement.

In driving her vehicle in those areas, Ms. Porter observes rallies, protests, demonstrations, or other events for which she would like to express her support through use of her vehicle horn.

Given the citation issued to her and her knowledge of the statute, Ms. Porter reasonably fears that the Sheriff's Department or California Highway Patrol will enforce section 27001 against her if she uses her vehicle horn for such expressive purposes.

As a result, Ms. Porter is censoring herself by refraining from using her vehicle horn for expressive purposes, including but not limited to expressing support for political protests, rallies, or demonstrations.

It seems like a ridiculous legal hill to die on, but it does raise a valid point: if officers are going to use a horn ordinance to selectively punish supporters of certain causes, the state is basically placing itself between residents and their ability (however limited its usefulness in this particular application) to petition their government.

This will make for an interesting case. Porter isn't alleging anything but an ongoing First Amendment controversy due to the state's restriction on horn use. The state will likely claim the public is served by a law that discourages people from blowing their horns whenever they damn well please, but those arguments are going to sound kind of ridiculous when actually verbalized. Is a law really necessary to keep horns from blaring constantly? Or has it long been accepted horns do double-duty as expressive speech, delivering pithy messages like "You suck at driving," "You suck in general," "Your ride is here," and "I heartily approve/disapprove of this issue being debated freely in the marketplace of ideas, which is apparently located at Rep. Issa's office at the moment."

Whatever the basis for the law, it was pretty clearly used here to express a law enforcement officer's distaste for the message conveyed by Porter, even if the message the deputy received was "I support the people you're currently citing for other legal violations," rather than the one Porter intended to send. Since it would be almost impossible to carve out a protest-only waiver on horn restrictions, the court either has to find the law unconstitutional in whole or decide it can be selectively used to punish ostensibly political speech. However it decides to handle this, it should be a fun case to watch.

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Posted on Techdirt - 21 June 2018 @ 9:33am

Alleged Vault 7 Leaker Charged With Stealing Gov't Secrets, Child Porn Possession, And Copyright Infringement?

from the kitchen-sink-prosecution dept

The US government has taken down another alleged leaker. Joshua Schulte, a former NSA and CIA operative, had his apartment raided by the feds last March. The raid targeted documents showing Schulte had leaked CIA hacking tools to Wikileaks (the "Vault 7" collection). But it uncovered a whole lot of child porn -- 10,000 images on Schulte's personal computer and his file-sharing server that held another 5 terabytes of data.

The first criminal complaint [PDF] by the DOJ contained nothing but child porn charges. It suggests the former government spook didn't practice much opsec when not on the clock. One IRC chat shows Schulte's aware encryption is sometimes only a temporary deterrent if the government really wants to find out what's been sent or shared. But then he apparently went on to provide the government with some easily-accessible evidence.

Based on my review of those Google Searches, I have learned, among other things, that on a number of occasions in or about 2011 and in or about 2012, SCHULTE appeared to search the Internet for child pornography. For example: (i) on or about April 9, 2011, SCHULTE conducted a Google Search for "child pornography" on at least three occasions; (ii) on or about October 15, 2011, SCHULTE conducted Google Searches for "movie where father videos daughter and friend sex" and "movie where father videos child porn"; and (iii) on or about May 15, 2012, SCHULTE conducted a Google Search for "female teenage body by year."

The recently-released superseding indictment [PDF] really starts stacking the charges. In addition to the child porn charges carried over from the original complaint, the government adds charges related to the leaked hacking tools, including unauthorized access with the intent of gathering classified info and theft of government property.

Then the charges get interesting. Schulte is charged with "causing transmission of a harmful computer program" for allegedly altering an intelligence agency "computer system" to give himself access to restricted areas of the system and cover up any evidence he had accessed these files. Apparently, this alteration resulted in other users being denied access.

There's the expected "lying to the feds" charges (making false statements, obstruction of justice) which show Schulte was very cooperative when being questioned about the child porn but apparently not so much when asked about purloined CIA data.

Rolling past the copy-pasted child porn charges, one reaches the most unexpected charge in the indictment: criminal copyright infringement.

From at least in or about September 2015, up to and including at least in or about August 2017, in the Southern District of New York and elsewhere, JOSHUA ADAM SCHULTE, the defendant, unlawfully, willfully, and knowingly did infringe copyrights by the reproduction and distribution, including by electronic means and by making it available on a computer network accessible to members of the public, during a 180-day period, of ten and more copies and phonorecords, of one and more copyrighted works, which had a total retail value of more than $2,500, to wit, without authorization, SCHULTE maintained a computer server that housed thousands of copyrighted movies, television shows, and audio recordings, which SCHULTE shared with others by electronic means and using the Internet.

This appears to refer to the server Schulte set up for IRC chat buddies. It's mentioned in a couple of chat transcripts and was, until 2017, accessible at There's plenty archived at the Wayback Machine [click at your own risk, I suppose] but this server seems to be the source of the copyright infringement charge. Whether or not any of these files were actually downloaded isn't clear, but they were uploaded and accessible to site visitors. This short list of a small portion of the files hosted by Schulte on his server was put together by Jason Koebler and Lorenzo Franceschi-Bicchierai of Motherboard.

An archived version of his page there shows that he had files related to chess, an episode of South Park, a copy of The 40 Year Old Virgin, textbooks, C Programming textbooks, and a folder called “Facebook Convos.”

Speaking of Facebook, Schulte was apparently maintaining a diary of his criminal justice system experience. (Spoiler alert: it's unpleasant and broken.) The documents are worth reading for a firsthand look at the federal arraignment process and the unpleasant realities of being sentenced to house arrest (with no internet access privileges) while still supposedly an "innocent" person in the eyes of the Constitution. It does get a little weird when he claims he's only been charged with "victimless" crimes given what he's been charged with (leaking CIA hacking tools, child porn). But nothing's been proven beyond a reasonable doubt at this point, so maybe only the copyright infringement charge that will make the final cut.

As Parker Higgins points out on Twitter, this supremely weird addition should be viewed with apprehension. Copyright infringement happens all the time. Much of it has zero profit motive, but the government is apparently more than willing to selectively enforce this law if it seems it might push someone towards a plea deal and save it the trouble of having to prove its case.

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Posted on Techdirt - 21 June 2018 @ 3:23am

Court Says Probation Violations By Teen Don't Justify On-Demand Warrantless Searches Of His Electronics

from the little-bit-of-4th-and-1st-implications-all-tied-up-together dept

It's assumed (wrongly) that minors have few, if any, Constitutional rights. The error is easy to make because they're just kids. They can't drink, smoke, vote, or even serve their country/secure these own valuable freedoms by [checks sources] aiding in the increase of opium production in foreign countries. "Hundreds of government officials can't be wrong!" someone is sure to exclaim, being just as wrong as the hundreds half-assedly cited in their stinging rebuttal.

Minors do have rights. They're subject to more limitations but they're far from nonexistent. But that doesn't stop prosecutors, cops, and school officials from pretending "limited" equals "zero." A case highlighted by shows a court pushing back against this assumption, which took the form of an overly-invasive probation condition slapped on a minor following a search of the student which uncovered a small knife, rolling papers, and a lighter.

The incident leading to the search began when the student fell asleep during class, which is possibly one of the most ordinary things a student can do. The student admitted he had smoked marijuana the night before (also possibly one of the most normal things a high school student can do), but hadn't smoked any that day or on school property. He was asked to consent to a search and he volunteered he had a knife in his possession. The search uncovered the rest of the "contraband." The 15-year-old was then arrested, detained, and placed on home detention.

Had that been the end of it, there would have been nothing to write about. But the dispositional order dealing with probation conditions added a whole bunch of unnecessary stipulations given the violation. This occurred when the minor violated his probation conditions by using marijuana and Xanax. Subsequent violations occurred -- all of them drug-related. A few months later, the minor appeared to be back on the road to the state's good graces. He was doing well in school and had landed a job. For whatever reason, the state decided to punish the minor for getting his life back together. This hearing added stipulations that appear to be far more vindictive than curative, and they're certainly anything but Constitutional. From the decision [PDF]:

In the report submitted for the September 7, 2016 dispositional hearing, without explanation, the probation officer recommended adding an electronics search condition.


Later the same day, the juvenile court judge issued a signed written disposition order, describing the electronic search condition in greater detail, using the following text, which probation had recommended: “[Minor must] submit all electronic devices under [his] control to search and seizure by the probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion, including all logs, text and voicemail messages, photographs, emails, and social media account contents contained on any device or cloud or internet connected storage owned, operated, or controlled by [Minor], including but not limited to cell phones, computers, computer hard drives, laptops, gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, external hard drives, or any other electronic storage devices. [Minor] shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any of the aforementioned devices or social media accounts as requested by any probation officer . . . .”

The minor challenged this order on constitutional grounds, citing its needless violation of his privacy. Given the state's unwillingness to specify which of the offenses these conditions addressed, the court finds the minor has a solid point.

We agree with Minor that the electronics search condition imposed here is unconstitutionally overbroad because it is not narrowly tailored to achieve its ostensible purpose or to meet Minor’s needs. [...] Any connection between Minor’s offenses and his usage of electronic devices is speculative and, absent such evidence, the electronics search condition is not tailored to meet Minor’s specific needs.

As the court points out, there are less intrusive ways of achieving the same ends and it's highly unlikely blanket search permission for every single electronic device owned by the minor is the least intrusive option. It's also unlikely blanket search permission would somehow prevent the minor from obtaining drugs or alcohol.

Not only that, but the state's arguments for this supposed necessity ignored evidence showing more probation stipulations weren't needed to keep the minor from engaging in criminal activity.

In an interview with probation before the September 2016 dispositional hearing, Minor acknowledged having made poor decisions in the past, but stated he had new motivation to complete treatment and probation going forward, and that he had a new job, which was making a positive impact on his life.

Minor’s statements about his mindset were supported by his school’s report that it had no concerns with Minor’s behavior, that Minor arrived on time, completed all of his work, was “doing great,” and was “exhibiting a positive attitude.” Minor’s mother and his treatment program provided similar accounts. This information does not support the conclusion that only by subjecting Minor to a new, exhaustive, and invasive search condition—allowing probation to review every electronic device under his control, including any “gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, [and] external hard drives” and to access all of his “passwords, passcodes, password patterns, fingerprints, or other [similar] information”—could Minor be deterred from future use of controlled substances.

That strikes these conditions from the minor's probationary terms, restoring the privacy the state tried to take from him. The state insisted on defending this Constitutional violation despite having zero precedential support to cite. The closest it could come to a prior case in its favor involved a gang member who promoted his gang and its activity on social media when not using those platforms to issue threats to police officers and their families. That's not even close to the same level of severity in observed behavior. As the minor notes in his case, the state AG didn't even provide evidence the minor owned any of the devices the state decided it needed access to. But when you're playing Constitutional poker with someone else's money, why not take a flier on bullshit probation orders?

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Posted on Techdirt - 20 June 2018 @ 3:34pm

Minnesota's Vague Ban On 'Political' Wear At Polling Places Shut Down By The Supreme Court

from the open-interpretations-and-random-enforcement-are-not-constitutional-bedfellows dept

Eight years after Minnesota's vague ban on "political" apparel at polling places was first challenged, the Supreme Court has finally struck the ordinance down as unconstitutional. The law allowed election judges to decide whether or not someone's t-shirt or button or whatever sent a "political" message that might somehow sway the vote.

The law covered far more than overt messages about political parties or specific candidates. According to the state's arguments, it could be read as covering anything possibly pertaining to referendum issues and/or issues any political candidate had expressed an opinion on. This lead to a spectacular bit of oral argument [PDF] when the state's lawyer tried to explain what may or may not be covered by the apparel ban.

MR. ROGAN: Well, Your Honor, the political has a -- has a plain meaning in our statute based on that it -- it's influencing elections. What I -- all that I'm describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that's going to be reasonably understood by voters in the polling place.

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

MR. ROGAN: A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights.

JUSTICE ALITO: How about a shirt that says "Parkland Strong"?

MR. ROGAN: No, that would -- that would be -- that would be allowed. I think -­ I think, Your Honor -­

JUSTICE ALITO: Even though gun control would very likely be an issue?

MR. ROGAN: To the extent -­

JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

MR. ROGAN: Your Honor, the -- the -­ the line that we're drawing is one that is -­ is related to electoral choices in a -­

JUSTICE ALITO: Well, what's the answer to this question? You're a polling official. You're the reasonable person. Would that be allowed or would it not be allowed? [...]

MR. ROGAN: I -- I think -- I think today that I -- that would be -- if -- if that was in Minnesota, and it was "Parkland Strong," I -- I would say that that would be allowed in, that there's not -­

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication -- and I think what you're getting at, Your Honor -­

JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

MR. ROGAN: Your Honor, I -- I -- I think that that could be viewed as political, that that -- that would be -- that would be -­

JUSTICE ALITO: How about the First Amendment? (Laughter.)

MR. ROGAN: No, Your Honor, I don't -­ I don't think the First Amendment. And, Your Honor, I -­

CHIEF JUSTICE ROBERTS: No -- no what, that it would be covered or wouldn't be allowed?

MR. ROGAN: It would be allowed.

The point Alito makes is simple: a ban on policitized apparel, especially one written this broadly, is subject to the interpretation of the person making the judgment call, each of which will have their own definition of "political." The state can only argue that some things might always be permissible, but for everything else, it's likely cover up or get cut out of the democratic process.

This exchange is paraphrased in the Supreme Court's decision [PDF], which finds the law too vague and internally inconsistent to be considered constitutional.

The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.

The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable.

On top of the that, the law could be read to encompass apparel not even considered remotely "political" until it's being worn by a person trying to vote in Minnesota.

Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue[] confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern. If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? [...]

Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation. Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform?

The state claimed it made clear delineations, all of which somehow were subject to the "reasonable" interpretation of magically-unbiased election judges. As the court points out, the law is capable of defeating the rationale of its own defenders, thanks to its lousy construction.

The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve.

It's not impossible to keep a polling place free of overt political messages, but the state legislature's attempt is particularly terrible, expanding the definition of "political" until it can be read to cover almost anything other than a blank t-shirt. The law -- standing since the late 19th century -- is now effectively dead, determined to be too unconstitutional to serve the public as it attends to its democratic duties.

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Posted on Techdirt - 19 June 2018 @ 9:35am

Judge Cock(y)blocks Author Faleena Hopkins' Demand Other Authors Stop Using The Word 'Cocky' In Their Titles

from the 40-percent-decrease-in-cocksureness dept

Romance novelist Faleena Hopkins recently turned the rest of the genre against her by deciding -- with the USPTO's blessing -- she was the only person who could use the word "cocky" in a book title. Given the nature of romance novels, the striking of the word "cocky" left precious few terms capable of describing a certain blend of bravado and sexual prowess.

The backlash was not only immediate, but thorough. Authors hit with cease-and-desist notices posted these to social media. One writer filed a petition with the USPTO to have the recently-acquired trademark invalidated. To top everything off, the Authors Guild of America joined forces with two of the authors Hopkins sued. What Hopkins likely felt would be an easy win in a trademark infringement case is turning into another cautionary tale about questionable IP and heavy-handed enforcement.

As The Guardian reports, Hopkins has already been handed a loss in her lawsuit against author Tara Crescent and publicist Jennifer Watson.

In the case, heard in a New York court on Friday, judge Alvin Hellerstein described romance readers as “sophisticated purchasers” unlikely to be confused between different authors’ books, found that cocky was a “weak trademark”, and denied Hopkins’s motion for a preliminary injunction and temporary restraining order to stop the publication of books with the word “cocky” in the title.

The lawsuit isn't dead, but authors are still free to use the word "cocky" in book titles until everything's settled. The oral arguments [PDF] suggest the judge doesn't find Hopkins trademark arguments persuasive. Instead, the judge points out any restraining order would cause damage to the people Hopkins is suing, far outweighing anything Hopkins might suffer if other "cocky" products remain on the market.

[I]t seems to me that defendant, who is on the market with her romance novels, if restrained, would also suffer damage and it would be irreparable. If a book is taken off the market, it can't be sold. Books of this nature have to do with timeliness as well. So I can't say that there is any balance here. If there is, it is likely to tip in defendants' favor because a good portion of injury by the plaintiff would be compensable in damages and captured profits. So that factor is in favor of defendant.

Whether an injunction is in the public interest, given the way these trademarks are used, I don't think there is much of a public interest in them.

Here plaintiff can't demonstrate that its trademark merits protection, nor in my opinion that defendant's use of a similar mark is likely to cause consumer confusion. Those are the eight factors that we just talked about. Accordingly, the motion for a TRO and for a preliminary injunction is denied.

And there's this, which has nothing to say about the merits of the case, but does provide a brief glimpse of the intersection of the court of public opinion and the US federal court system.

THE COURT: You present in your papers about a dozen instances of prior use of "Cocky" in a title: Bite Me Cocky; A Little Bit Cocky; The Cocky Cowboy; Cocky Balls Boa, described as an erotic parody; Cocky Cowboys; Cocky SWATS; Cocky: A Stepbrother Romance; Cocky: A Cowboy Stepbrother Romance; and so on.

MR. REUBER: Your Honor, if I may?

THE COURT: No. You are out of the case.

MR. REUBER: I understand, your Honor. But I penned the brief, and there is an error that my client alerted me to this morning in the brief. Specifically, it is first one you just read, Bite Me Cocky, published in 2012. He has learned that that title may have changed as a result of the Cockygate sort of disputes. It might have been originally published as Bite Me and not Bite Me Cocky. I just wanted to point that out.

THE COURT: Originally Bite Me, then it became Bite Me Cocky?

MR. REUBER: Yes, your Honor. That was our understanding.

THE COURT: What is the explanation for the change?

MR. REUBER: As a protest, effectively. That is our best guess.

THE COURT: In response to the protest, he added the word "Cocky"?

MR. REUBER: In response to Cockygate registrations, yes, we believe the author added the word "Cocky" as a protest. That is pure supposition on our part, your Honor. We have only been doing this for about 48 hours.

The challenge of the trademark continues, as is noted at the USPTO website. If everything continues down this road, Faleena Hopkins won't have any trademarks to bully people with, much less a lawsuit victory to justify her bullying behavior.

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Posted on Techdirt - 18 June 2018 @ 1:39pm

Section 230 Can't Save Snapchat From Lawsuit Involving Its 'Speed Filter'

from the lawsuit-will-just-have-be-dismissed-for-other-reasons-then dept

Section 230 of the CDA gave us the internet we know today. It has allowed hundreds of tech companies and dozens of social media networks to flourish. To some people, however, Section 230 immunity is the internet's villain, not its hero. Recent legislation has created some damaging holes in this essential protection, but it's still insular enough to fend off most legal action in which plaintiffs choose to sue service providers rather than the end user who did/said whatever the plaintiff finds tortiously offensive.

Similar to what has been argued in multiple piracy-related lawsuits, the plaintiff in this lawsuit filed against Snapchat alleged one of the company's photo filters encouraged users to break the law. This lawbreaking had particularly tragic consequences.

Christal McGee allegedly drove recklessly (over 100 mph) to capture her accomplishment in Snapchat’s speed filter. McGee’s car hit Maynard’s car and caused permanent brain damage to someone in the car.

This is where Snapchat comes in. It wasn't that the driver was just using the service when the accident occurred. It's that the driver was using a certain filter when she hit the other vehicle.

The Maynards sued Snapchat, alleging “Snapchat knew that its users could ‘use its service in a manner that might distract them from obeying traffic or safety laws.’ Further, the Maynards allege that Snapchat’s Speed Filter ‘encourages’ dangerous speeding and that the Speed Filter ‘facilitated McGee’s excessive speeding[,]’ which resulted in the crash.”

As Eric Goldman points out, the lawsuit doesn't allege McGee posted a photo using the Speed Filter. It's simply enough the filter existed, according to their arguments. The lower court rejected this argument, granting Snapchat's Section 230 motion to dismiss.

The state appeals court, however, has more sympathy for the Maynards' argument. The plaintiffs aren't trying to hold Snapchat liable for any photo McGee was trying to create at the time of the crash. (Testimony from McGee's passenger says McGee was "trying to get the car to 100 m.p.h." and had the app open on her phone, which was aimed at her speedometer.) Instead, the Maynards want Snapchat to be legally liable simply for creating a filter that might encourage users to take photos of themselves speeding.

The appeals court decides [PDF] that this isn't actually a Section 230 case since the Maynards aren't attempting to hold Snapchat accountable for user-generated content. Instead, it points out Section 230 does not immunize service providers from being held liable for software features they themselves create. Snapchat argued that if it's not a Section 230 case, it should still be dismissed because the Maynards' complaint fails for other reasons. The appeals court disagrees:

Although Snapchat contends that this Court should affirm the trial court’s grant of its motion to dismiss under the right for any reason rationale, because the Maynards allegedly did not properly state negligence claims against Snapchat and that the court lacked personal jurisdiction over Snapchat, these issues were not decided by the trial court below.

Back to the trial court it goes to hear arguments about the points Snapchat raised, but did not fully address in its Section 230-based motion to dismiss. Eric Goldman disagrees with the appeals court's assessment of the Section 230 issue.

First, even if she hadn’t completed the publication, McGee allegedly was preparing the speed filter-motivated content for publication. If she had been generating the speed filter only for her personal bemusement, without any plan or ability to share the content with her audience, then I can see why the claim wouldn’t treat Snapchat as the publisher/speaker of her content. But here, McGee’s creation of the speed filter video only makes sense as a preparatory step towards sharing the video with third parties, and I would extend Section 230’s coverage to preparatory steps in addition to the actual publication of content.

Second, as a practical matter, the complaint will probably fail on prima facie grounds–similar to how the promissory estoppel and failure-to-warn workarounds to Section 230 are not very significant because the plaintiffs usually can’t win those claims on the merits. Though the accident was a terrible tragedy, the odds are good that Snapchat’s role in the accident isn’t covered by the applicable torts. So now the case will consume more litigation cycles only to end up in the same place. One of Section 230’s strengths is moving such cases out of the court system early when they relate to publishing third party content.

The second part may seem cold-hearted but there's not much to like about racking up legal fees just to lose on other issues rather than Section 230 immunity. While the plaintiffs may have a point that Snapchat's Speed Filter (which has since been removed) possibly encouraged lawless and dangerous actions, the app had no power to actually force users to drive recklessly while using the app. It's a bit disingenuous to place all the blame on the end users. It was a very stupid addition by Snapchat. But the driver who caused the accident is at fault, not the filter Snapchat created.

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Posted on Techdirt - 18 June 2018 @ 9:34am

Fired FBI Official Now Discovering The 'Civilian' Delight Of Being Jerked Around By Govt' Agencies

from the welcome-to-the-private-sector,-Andy dept

FBI Deputy Director Andrew McCabe's career came to a sudden end earlier this year. Following in his predecessor James Comey's footsteps, McCabe swiftly found himself on the front sidewalk with a Sessions footprint on his ass. An Inspector General's report followed soon after, detailing many reasons McCabe might have been fired -- lying to investigators, leaking stuff to the press, evading concerns about his investigative neutrality in light of his wife's acceptance of donations from a Clinton-linked PAC... We don't know if any of these are why Trump fired McCabe, but pretty much any one of these things makes a firing justifiable.

Lying to the FBI is serious business, even when it's just its oversight. Ask anyone who's been charged with nothing but lying when the FBI fails to build a better case. For McCabe, though, it was just a little "administrative misconduct." Something that could be addressed with a writeup or, in this case, a firing. That the trigger was pulled hours away from McCabe's retirement sucks for McCabe, but I find it very difficult to sympathize with career government employees who feel they're still owed a lifetime of retirement benefits after they've been fired for cause.

McCabe is still trying to get what he thinks taxpayers owe him. He claims the firing was "politically motivated." Given the general nature of Trump's personnel decisions, he's probably not wrong. But the IG report shows him engaged in behavior that could result in termination. McCabe doesn't believe that's the case and he's demanding the DOJ hand over documents and manuals related to internal policies and firing practices. And he's doing this like an actual civilian: by filing FOIA requests.

Unsurprisingly, that's not working. McCabe's lawyers are asking the DC court to force the DOJ to hand over all policies and manuals. As is argued in this quasi-FOIA lawsuit [PDF], the DOJ has been shirking its obligations to the public for decades.

Defendants have been required for over 50 years to proactively disclose the kinds of documents at issue here, and there is no just reason for either their failure to do so now or for any further delay. Defendants’ breach of their disclosure obligations have prejudiced Mr. McCabe and Plaintiff in fundamental ways, all of which flow from one of FOIA’s core concerns: No citizen should “los[e] a controversy with an agency because of some obscure and hidden [administrative material] which the agency knows about but which has been unavailable to the citizen simply because he had no way in which to discover it.”

His FOIA request was only a few days old at the time of the filing, so this lawsuit isn't really about non-responsiveness. It's about the DOJ deliberately playing keep-away with documents McCabe needs to determine whether or not his firing was done in accordance with DOJ policy.

This cannot possibly come as a surprise to McCabe. A career fed would know federal agencies don't turn over documents without a fight, even when their legal obligations are clear. The FBI is barely responsive to its own oversight, so there's no reason to believe the DOJ is going to proactively post documents for public consumption. And when it's facing a potential lawsuit over a firing, it's definitely going to amp up the stonewalling and denials. McCabe probably wouldn't have minded Joe Citizen being dicked around this way, but it irritates him when he's on the receiving end of treatment like this:

FOIA mandates that Defendants proactively disclose the applicable policies and procedures in an electronic format without waiting for an affirmative request. Defendants have failed to do so. When Plaintiff requested the pertinent documents, Defendants variously refused to comply and failed to properly, timely, or sufficiently respond. They even barred Plaintiff from accessing Defendants’ physical library, which contains some (or perhaps all) of the documents at issue here.

When you're forced out of government service, you suddenly become keenly aware of the injustices -- large and small -- perpetrated daily by federal agencies. For someone who used to be near the top of the fed food chain, this pettiness and opacity must be almost unbearable. When you're on the inside, it just looks like a measured response to stupid members of the public who won't mind their own business. But once you're on the outside looking in, you realize how much effort you must make just to force government agencies to comply with federal law and their own internal policies.

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Posted on Techdirt - 15 June 2018 @ 3:46pm

Faulty Field Tests And Overblown Drug Raid Claims: The War On Drugs In Clay County, Florida

from the serving-and-press-conferencing dept

Yet another Florida sheriff with a penchant for publicity is using his office (and manpower) to start some garbage viral War on Drugs. Hence, every bust made by his department -- utilizing armored vehicles and deputies that look like they shop at military surplus stores -- is splashed across the department's Facebook page. Fine, if that's what gets your blood flowing, but these scenes of busts, featuring the Sheriff front and center, contain claims that just aren't backed up by the actual paperwork. George Joseph of The Appeal has the details.

The video finds Sheriff [Darryl] Daniels, who announces to the viewer that criminals must leave his county or face the consequences. The camera follows him to the house, briefly focusing on a broken window before Daniels opens the door. Standing in the raided home, Daniels takes a large swig of his morning cup of coffee and declares, “Fifteen going to jail, three big gulps.”

Despite the sheriff’s announcement, the “raid” resulted in only five adult arrests and one juvenile arrest, according to Elaine Brown, a lead records specialist at the sheriff’s office.

At best, maybe five will be going to jail. The sheriff depicts this as a raid on a "narcotics house" targeting opioids. The records obtained by The Appeal show no opioids were found during the raid. Four of the five adults were arrested for marijuana possession. The fifth was charged with MDMA and cocaine possession. But chances are those drugs might vanish along with the nonexistent opioids Sheriff Daniels proudly proclaims were taken out of circulation.

Note the line about the field drug tests performed. These have already been proven bogus. A sheriff's office spokesman informed The Appeal that the 1.2 grams of heroin and fentanyl seized during the raid turned out not be opioids after being lab-tested. But the field tests told Sheriff Daniels everything he wanted to hear.

The reliance on cheap, terrible drug field tests is part of Sheriff Daniels' drug-raiding tradition. Arrests and seizures sound great when you're dragging a camera through someone's house for a Facebook video, but when nothing holds up in court, you're left with an empty charade using citizens as clickbait.

A former deputy contacted by The Appeal points out that cheap drug tests are just another tool for abusive police work.

“The really good ones cost money, but those take away your probable cause,” he said, referring to arrests and police searches for which error-prone drug test field kits can provide legal pretext. “It’s probably the cheapest ones they could get to do the minimum standards for an investigation.”

This same former deputy also pointed out the marijuana charges were trumped up. According to reports, 35 grams of marijuana were seized during the raid, but somehow two people are being charged with possession of more than 20 grams.

Cheap tests, cheap vicarious thrills, and a whole lot of hype over drug charges that will likely dissipate into minimal punishment (if anything) once the lab tests arrive. That's how America's drug warriors roll. Sheriff Daniels rolls a little harder than most, but that's because tough-on-crime sheriffs are newscaster favorites. As The Appeal points out, Daniels has leveraged these videos to appear on national news networks and say ridiculous things like he's planning to treat all drug overdoses as homicides.

This report points out some very unpleasant things about our war on drugs. Law enforcement officials may claim to recognize drug addiction as a sickness, but they're still far more interested in rounding up users than dealers. Faulty field drug tests allow officials to exaggerate their successes (and misrepresent the amount of dangerous drugs in the community), when not allowing them to perform searches they otherwise wouldn't have probable cause to perform. They're part permission slip, part unpaid PR rep. And this constant failure of field drug tests to accurately identify drugs gets ignored but local media, for the most part, isn't willing to follow up on high-profile drug raids to correct the record. And it keeps working because many Americans love the image of "tough on drugs" officers kicking in doors and waving guns around. But, far too often, "tough" just means dumb, brutish, and unconstitutional.

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Posted on Techdirt - 15 June 2018 @ 1:41pm

NY Senate Passes Bill That Would Make It A Crime To Publish Photos Of The Elderly Without Their Consent

from the still-trying-to-bypass-that-whole-First-Amendment-thing dept

The New York State Senate just keeps pitching unconstitutional law-balls over the plate, apparently assuming legislators' good intentions will overwhelm judges asked to determine just how much the new laws violate the First Amendment.

The senate recently passed an anti-cyberbullying bill -- its fifth attempt to push this across the governor's desk. The law couldn't be bothered to cite which definition of "cyberbullying" it was using, but once the definition was uncovered, it became apparent the bill has zero chance of surviving a Constitutional challenge should it become law.

Eugene Volokh's post on the bill passed along several examples of criminalized speech the bill would result in, including one with its finger directly on social media's pulse.

An under-18-year-old high school student becomes a nationally known activist, for instance for gun control or transgender rights or some such. People repeatedly mock his arguments online, and condemn his as an idiot, which a prosecutor thinks is "verbal abuse" and "would reasonably be expected to cause ... emotional harm" to him. The people can be prosecuted, and will be convicted if the jury agrees with the prosecutor.

The law makes this a Class A misdemeanor, which can be redeemed for a full year in jail if the prosecutor can get a judge to agree on handing out the maximum sentence. That law protects only minors from a variety of protected speech because everyone knows cyberbullying ends once victims turn 18.

The new law that's looking to steamroll protected speech addresses the other side of this generational gap. Eric Turkewitz was again the first person to spot the bad bill, pointing out it would criminalize the posting of photos of grandparents to social media if the photo's subjects suffer from any form of incapacitation and have not given explicit permission for their photos to be posted publicly. His post takes on the First Amendment ramifications of the NY Senate's latest oblique assault on free speech.

Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent.


First off, while the First Amendment says that Congress “shall make no law…abridging the freedom of speech,” and the amendment applies to the states, there are still some very limited exceptions to it. But this just isn’t one of them.

The First Amendment is no defense to conspiracy discussions about committing a crime, or defamation, or inciting imminent lawless action, or obscenity or copyright.

I don’t see posting pictures of elderly Ma or Pa on that list. For this bill, if signed, to pass constitutional muster, the Supreme Court would have to create a wholly new category of restricted speech. Do you think they will do that? Or more importantly, did you even analyze that?

My guess is no since this bill passed 61-0, and there are more than a few lawyers in the Senate.

Here's what's being criminalized by this law:


So, like the law says, if you act as a caretaker for an elderly person -- someone who might be your parent, grandparent, or close friend -- you can be charged with a misdemeanor for posting photos of them without their consent. "Vulnerable" in this bill simply means about the age of sixty and "suffering from a disease or infirmity" which prevents them from providing for their own health or personal care. That's a whole lot of gray area to cover with a vaguely-worded bill. As Turkewitz points out in his post, this would criminalize a wide swath of social media sharing simply because someone in the photo did not explicitly consent to publication. He also notes it does not simply criminalize sharing photos of elderly people in incapacitated states. It criminalizes the publication of any photos taken at any point in time.

[L]et’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service as part of the Greatest Generation. Guilty of a misdemeanor.

The bill's supporters will almost certainly claim they never intended the law to be read that way. But the best way to prevent laws from being read this way is to craft them carefully, rather than just toss word salad on the senate floor and hope for the best.

But it's all cool with the senators who voted (again!) for an unconstitutional bill that criminalizes protected speech, because one time this bad thing happened.

Recent media reports have highlighted occurrences of a caretaker taking unauthorized photographs or video recordings of a vulnerable elderly person, sometimes in compromised positions. The photographs are then posted on social media networks, or sent through multimedia messages.

There's no better way to craft a bad law than typing something up quick to criminalize a thing you saw on Facebook. Jesus Christ. This is almost too stupid to be true. [Sobs into tattered copy of US Constitution.] You cannot use the First Amendment as a doormat just because some people are assholes.

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Posted on Techdirt - 15 June 2018 @ 10:48am

DOJ Lets Cops Know SESTA/FOSTA Is For Shutting Down Websites, Not Busting Sex Traffickers

from the work-dumber,-not-harder dept

SESTA/FOSTA was pushed through with the fiction it would be used to target sex traffickers. This obviously was never its intent. It faced pushback from the DOJ and law enforcement agencies because pushing traffickers off mainstream sites would make it much more difficult to track them down. The law was really written for one reason: to take down Backpage and its owners, who had survived numerous similar attempts in the past. The DOJ managed to do this without SESTA, which was still waiting for presidential approval when the feds hits the site's principal executives with a 93-count indictment.

The law is in force and all it's doing is hurting efforts to track down sex traffickers and harming sex workers whose protections were already minimal. Sex traffickers, however, don't appear to be bothered by the new law. But that's because the law wasn't written to target sex traffickers, as a top DOJ official made clear at a law enforcement conference on child exploitation. Acting Assistant Attorney General John P. Cronan's comments make it clear SESTA/FOSTA won't be used to dismantle criminal organizations and rescue victims of sex traffickers. It's there to give the government easy wins over websites while sex traffickers continue unmolested.

In April, – the internet’s leading forum to advertise child prostitution – was seized and shut down, thanks to the collective action by CEOS and our federal and state partners. The Backpage website was a criminal haven where sex traffickers marketed their young victims. The Backpage takedown – and the contemporaneous arrests of individuals allegedly responsible for administering the site – struck a monumental blow against child sex traffickers.

But other sites inevitably will seek to fill the void left by Backpage, and we must be vigilant in bringing those criminals to justice as well. With the recent passage of the SESTA-FOSTA legislation, state and local prosecutors are now positioned to more effectively prosecute criminals that host online sex trafficking markets that victimize our children.

"Criminals" that "host sex trafficking markets." That's the target. That's any website that might be used by actual sex traffickers to engage in actual sex trafficking. There's no dedicated web service for sex trafficking -- at least not out in the open where Section 230 immunity used to matter. This is all about taking down websites for hosting any content perceived as sex trafficking-related. It wasn't enough to hang Backpage and its execs. The government will be scanning sites for this content and then targeting the website for content posted by third parties it seems mostly uninterested in pursuing.

Hosts of third-party content are usually easy to find. The actual third parties are far more difficult to track down. Intermediary liability is back. Section 230 is no longer an effective defense. The edges have been trimmed back and the government knows it can rack up easy wins over web hosts and slowly start destroying the web under the facade of saving sex trafficking victims. The DOJ knew this law would make it harder to track down traffickers. But it also knows the law allows it to target websites instead. And here it is touting the law it fought against to a conference full of law enforcement officials, letting them know targeting websites will give them wins and accolades and far fewer headaches than tracking down the individuals actually engaged in illegal activity.

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Posted on Techdirt - 15 June 2018 @ 6:43am

Inspector General Not Too Happy With James Comey's Handling Of The Clinton Email Investigation

from the FBI-still-sucks-but-in-exciting-new-ways! dept

The damning report the President has been waiting for has arrived. The Inspector General's report covering everything from James Comey's handling of the Clinton email investigation (terribly with bonus insubordination) to a couple of FBI agents forming a two-person #Resistance (stupid and made the FBI look bad, but not illegal) runs almost 600 pages and won't make anyone looking to pin blame solely on one side of the partisan divide very happy.

It's been claimed the report would finally show the FBI to be an agency filled with partisan hacks, further solidifying "Deep State" conspiracy theories that the government Trump runs is out to destroy Trump. It was somehow going to accomplish this despite many people feeling the FBI's late October dive back into the Clinton email investigation handed the election to Trump.

Whatever the case -- and whatever side of the political divide you cheer for -- the only entity that comes out of this looking terrible is the FBI. That the FBI would engage in questionable behavior shouldn't come as a surprise to anyone, but the anti-Trump "resistance" has taken Trump's attacks on the FBI as a reason to convert Comey, the FBI, and the DOJ into folk heroes of democracy.

The summary of the report [PDF] runs 15 pages by itself and hands out enough damning bullet points to keep readers occupied for hours. Then there's the rest of the report, which provides the details and may take several days to fully parse.

Here are some of the low lights from Inspector General Michael Horowitz, possibly the only person who should be touting "Deep State" theories since he's spent his IG career being dicked around by the DEA, DOJ, FBI, and DEA.

The report says everything about the Clinton email investigation was unusual. Termed the "Midyear Exam" by the FBI, the investigation was mostly a voluntary affair. Most of the evidence and testimony obtained was obtained from consenting witnesses and participants. The FBI rarely felt the need to compel testimony or evidence with subpoenas. It also did not access the contents of multiple devices used by Clinton's senior aides, devices that may have contained classified info that had been circulated through a private email server. As the report notes, this is at odds with Comey's sudden interest in Anthony Weiner's laptop, where his estranged wife (and former Clinton personal assistant) Huma Abedin apparently had stored copies of Clinton emails.

The IG says the tactics used were unusual but does not pass official judgment on them. However, the actions of five FBI employees involved in the investigation did further damage to the FBI and its reputation by taking an investigation already viewed as politically-questionable and aggravating the perception.

In undertaking our analysis, our task was made significantly more difficult because of text and instant messages exchanged on FBI devices and systems by five FBI employees involved in the Midyear investigation. These messages reflected political opinions in support of former Secretary Clinton and against her then political opponent, Donald Trump. Some of these text messages and instant messages mixed political commentary with discussions about the Midyear investigation, and raised concerns that political bias may have impacted investigative decisions.

However, the IG did not uncover evidence suggesting any of these FBI employees had the power to steer the investigation. Some of those engaged in anti-Trump texts actually pushed for additional subpoenas and search warrants in an investigation that seemingly had little use for any testimony not obtained voluntarily. But that doesn't mean these actions were harmless.

Nonetheless, these messages cast a cloud over the FBI’s handling of the Midyear investigation and the investigation’s credibility.

From there, it moves on to James Comey's surprising decision to go public with the email investigation's conclusions in July of 2016. This followed the softening of language in the FBI's investigative report. Clinton's handling of classified info went from "grossly negligent" to "extremely careless." The possibility of hostile actors accessing Clinton's email server went from "reasonably likely" to "possible." Then Comey decided to go public, cutting plenty of people out of the loop so they wouldn't prevent him from doing so.

Comey acknowledged that he made a conscious decision not to tell Department leadership about his plans to make a separate statement because he was concerned that they would instruct him not to do it. He also acknowledged that he made this decision when he first conceived of the idea to do the statement, even as he continued to engage the Department in discussions about the “endgame” for the investigation.

Comey admitted that he concealed his intentions from the Department until the morning of his press conference on July 5, and instructed his staff to do the same, to make it impracticable for Department leadership to prevent him from delivering his statement. We found that it was extraordinary and insubordinate for Comey to do so, and we found none of his reasons to be a persuasive basis for deviating from well-established Department policies in a way intentionally designed to avoid supervision by Department leadership over his actions.


We concluded that Comey’s unilateral announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct. We also found that Comey usurped the authority of the Attorney General, and inadequately and incompletely described the legal position of Department prosecutors.

The late October letter to Congress about the reopening of the investigation isn't viewed as any better by the OIG. Comey claimed he needed to do this because withholding the discovery of emails on Anthony Weiner's laptop might have been viewed as swinging the election in Clinton's favor. The IG disagrees.

Much like with his July 5 announcement, we found that in making this decision, Comey engaged in ad hoc decisionmaking based on his personal views even if it meant rejecting longstanding Department policy or practice. We found unpersuasive Comey’s explanation as to why transparency was more important than Department policy and practice with regard to the reactivated Midyear investigation while, by contrast, Department policy and practice were more important to follow with regard to the Clinton Foundation and Russia investigations.

Comey’s description of his choice as being between “two doors,” one labeled “speak” and one labeled “conceal,” was a false dichotomy. The two doors were actually labeled “follow policy/practice” and “depart from policy/practice.” Although we acknowledge that Comey faced a difficult situation with unattractive choices, in proceeding as he did, we concluded that Comey made a serious error of judgment.

Then comes the irony. As Comey became the front-mouth for an investigation he shouldn't have been talking about, he routinely engaged in the same behavior he was currently investigating.

We identified numerous instances in which Comey used a personal email account to conduct unclassified FBI business. We found that, given the absence of exigent circumstances and the frequency with which the use of personal email occurred, Comey’s use of a personal email account for unclassified FBI business to be inconsistent with Department policy.

In addition to being a violation of FBI policy, James Comey -- currently idolized by some as a speaker of truth to power for being fired by the president -- also violated FOIA law by using a private email account for government communications. Comey wasn't the only one -- other agents involved in the investigation routinely used private email accounts -- but he was the FBI's personification of the Clinton email investigation. On top of this, he told other FBI agents the use of personal email accounts would subject them to harsh punishment.

In an October 2016 speech at an FBI conference in San Diego, Comey said, "I have gotten emails from some employees about this, who said if I did what Hillary Clinton did I'd be in huge trouble. My response is you bet your ass you'd be in huge trouble. If you used a personal email, Gmail or if you [had] the capabilities to set up your own email domain, if you used an unclassified personal email system to do our business... you would be in huge trouble in the FBI."

Some may quibble about the lack of classified info being circulated by these agents and their Gmail accounts, but the fact remains the use of private email accounts increases the risk of circulation exponentially. Sticking to government accounts reduces this possibility to zero.

There's much more in the report, including some discussion about the propriety of the Russian influence investigation that Trump claims is a witch hunt. Nothing in the report suggests the investigation isn't valid, even if the actions of agents (the anti-Trump texting) and Andrew McCabe's non-recusal (his wife took money from a Clinton-connected PAC) managed to cover everything with a slimy gloss of impropriety.

The upshot of the report is this: James Comey deserved to be fired, although probably not for the reasons Trump had in mind when he did it. The people employed by the FBI are not always able to set aside their personal biases when engaged in investigations. But the FBI is no one party's political tool. It's a blend of both sides, which makes it unlikely anything was done intentionally to harm Trump or Clinton's political prospects. For all the complaining done by Trump, he's the one in office. If the election was "thrown" by Comey's fourth quarter audible in the email investigation, Trump was the beneficiary of the FBI's actions. This makes complaints about a Russian investigation "witch hunt" incoherent, as it tries to retcon the FBI's actions to portray them as being #NeverTrump even when they were (not officially) helping him. The simultaneous investigations of Clinton and Trump make it difficult to craft a coherent conspiracy theory, but it certainly isn't stopping anyone from trying. The FBI is untrustworthy, but it's not a kingmaker.

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Posted on Techdirt - 14 June 2018 @ 3:29pm

CBP Agrees To Hand Back Almost All Of The $58,000 It Stole From A 64-Year-Old Man At A Cleveland Airport

from the to-the-feds,-any-amount-of-cash-is-a-suspicious-amount-of-cash dept

A 64-year-old man, an Albanian with legal US citizenship, was stripped of more than $58,000 in cash by Customs and Border Protection at Cleveland's Hopkins Airport last year. Rustem Kazazi was headed to Albania with the cash to fix up his family's old home and possibly buy property there. The CBP claims... well, it really claims nothing, other than its right to Kazazi's life savings.

CBP agents thought it was suspicious Kazazi would have so much cash on hand, despite Kazazi also carrying with him documentation of the cash's origin. That didn't slow the CBP's cash-hauling efforts at all. Asset forfeiture allowed the CBP to take Kazazi's money, say something ominous about violating federal law by not reporting the funds, and never bother charging Kazazi for all the violations the CBP claimed it spotted.

It is illegal to take more than $10,000 in funds out of the country without reporting it. The problem is there's nothing in airports suggesting this is the case. Literature at airports, as well as information posted at the TSA's own website, do little to clarify what must be done if you plan to take money out of the country. Even if you do know what needs to be done, it's almost impossible to do before boarding a flight. The funds must be reported at the time of the departure. But they must be reported to a customs office, which is rarely conveniently located on airport property and very definitely never in the terminal.

What's more, Kazazi was apparently planning to follow the law. According to his lawyer, he was going to fill out the forms at the "point of departure," which he assumed would be the Newark, NJ airport where his flight leaving the country would depart from.

Kazazi's money was spotted by a TSA agent, who immediately reported it to CBP officers. This is something the CBP and DEA strongly encourage, skewing the focus from airline security (which is part of TSA's name) to scanning for dollars. The CBP agents made sure the whole experience was as awful as possible for Kazazi (whose command of the English language is limited) even before they walked off with his money.

"They asked me some questions, which I could not understand as they spoke too quickly," according to Kazazi's declaration. "I asked them for an interpreter and asked to call my family, but they denied my request."

The CBP agents led Kazazi to a small windowless room and conducted multiple searches of him and his belongings, he said. According to Kazazi's declaration, the agents asked him to remove all of his clothing and gave him a blanket to cover the lower portion of his body. Kazazi said that a man wearing rubber gloves then "started searching different areas of my body."

After failing to find more cash hidden in the crevices of Kazazi's body, the CBP agents gave him a receipt for the money they were taking -- one with no dollar amount written in -- and handed out this fluff to the press when it came asking questions.

In a statement, a CBP spokesman said that "pursuant to an administrative search of Mr. Kazazi and his bags, TSA agents discovered artfully concealed U.S. currency. Mr. Kazazi provided inconsistent statements regarding the currency, had no verifiable source of income and possessed evidence of structuring activity," that is, making cash withdrawals of less than $10,000 to avoid reporting requirements.

The "artful concealment" was paper and the "inconsistent statements" can probably be chalked up to CBP's refusal to locate a translator. Cash spends better in foreign countries, especially those -- like Albania -- where banks aren't trusted and foreign currency preferable to the local version.

Following this seizure, the CBP then did nothing, apparently hoping the Kazazi family would never ask for the money back. It had 90 days to begin to process the forfeiture but it chose instead to give conflicting information to Kazazi (detailed in his son's declaration [PDF]) and push the family towards "settling" for only a portion of the funds seized.

The Kazazis chose to sue because, obviously, they don't trust the CBP to handle this honestly. First off, the CBP claims it took $57,330. Kazazi disputes this amount, stating he had $58,100 with him. The $770 difference may seem minimal, but it appears to another indicator of the CBP's untrustworthiness. According to Kazazi, he only took $100 bills. Therefore, a total of $57,330 is impossible. It almost looks as though the CBP took an unofficial service fee off the top before notifying the Kazazis of their right to dispute the forfeiture.

The Institute of Justice has stepped in to fight for Kazazis, like it has in many other asset forfeiture cases. As it points out in its lawsuit [PDF], CBP had until April 17 of this year to begin processing the forfeiture. It hasn't and federal law says unprocessed forfeitures that pass the 90-day expiration date must be returned in full to their owners.

Fortunately for Kazazi, this legal battle may be over already. Kazazi sued on May 31st. Following a conference with a district judge, the CBP has decided to return all of the money it took. Well, almost all of it.

The minutes of the proceeding says that customs officials told the judge that "they were beginning the process of tendering a check to Petitioner Kazazi in the amount of $57,330 plus interest."

There will be a little more legal wrangling because Kazazi wants back every cent the government took: $58,100. A bench trial has been scheduled, but it will be December of this year before his case is heard.

This whole debacle shows two things: asset forfeiture ain't dead yet, despite its high-profile reputation for being thinly-disguised theft. And it shows the government can be forced to do the right thing without having to undertake a long and expensive legal battle. The turning point here appears to be plenty of negative coverage from the press, rather than the legal filing. But the lawsuit helps, as it makes it crystal clear the CBP is violating federal law by holding onto it past the 90-day deadline for processing.

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Posted on Techdirt - 14 June 2018 @ 10:40am

Apple Pulls Plug On Phone-Cracking Tech Vendors, Will Prevent Data Transfer From Locked Phones

from the law-enforcement's-access-hole-is-everyone-else's-security-problem dept

The FBI lost control of the "going dark" narrative. Part of it unraveled thanks to outside vendors. Two vendors -- Cellebrite and Grayshift -- announced they could crack any iPhone made. This shot holes in the FBI's theory that locked phones stayed locked forever and thereafter were only useful for hammering legislators over the head with until they cranked out an anti-encryption law.

The second unraveling was the FBI's own unforced error. Supposedly it couldn't count phones without software and the software it had couldn't count phones. What the FBI and others claimed was 8,000 uncrackable threats to the safety of the American public was actually a little over 1,000 phones. As for the latent threat posed by these locked devices, that's still pure speculation until the FBI starts handing over some info on what criminal acts these phones are tied to.

The FBI will probably be looking to restart its "going dark" campaign, thanks to Apple's latest effort, which will render Cellebrite and Grayshift's phone cracking boxes obsolete.

Apple is closing the technological loophole that let authorities hack into iPhones, angering police and other officials and reigniting a debate over whether the government has a right to get into the personal devices that are at the center of modern life.

Apple said it was planning an iPhone software update that would effectively disable the phone’s charging and data port — the opening where users plug in headphones, power cables and adapters — an hour after the phone is locked. While a phone can still be charged, a person would first need to enter the phone’s password to transfer data to or from the device using the port.

Law enforcement may be angered by this but private companies are not obligated to make law enforcement's job easier. Apple's official statement on the software update is probably meant to be placating, but is unlikely to change the mind of any law enforcement official who sees this reaction to phone cracking devices as another extended middle finger from tech companies. According to Apple spokesman Fred Sainz, this fix is being issued to fix a security hole, not "frustrate" law enforcement efforts.

But law enforcement efforts will be frustrated. The same goes for criminal efforts. Any device that can crack any iPhone exploits a flaw in the software or hardware. There's no such thing as a security hole that can only be exploited for good. Grayshift's GrayBox could end up in the hands of criminals and it may well be that both vendors have already sold tech to law enforcement agencies in countries where civil liberties aren't as valued as they are in the United States.

The article quotes several law enforcement officials complaining about being locked out of iPhones again. And while the frustration is understandable, the fact is plenty of data and communications are stored in the cloud, untouched by device encryption. Generally speaking, companies like Apple and Google have been cooperative when approached directly by law enforcement, as long as the request doesn't involve breaking device encryption.

This isn't the end of the discussion. Nor should it touch off another skirmish in the Encryption War 2.0. This setback should be viewed as temporary. Holes with be found and exploits deployed and these will be met with patches and firmware upgrades by the tech companies affected. This all can be traced back to the earlier days when it was only criminals looking for ways to defeat personal security measures. Law enforcement was late to the game, but its arrival shouldn't mean companies forgo protecting their customers to avoid inconveniencing the government.

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Posted on Techdirt - 14 June 2018 @ 9:29am

Canadian Music Industry Pitches 'You Must Be A Pirate' Tax On Smartphones

from the physical-tax-for-a-non-physical-age dept

Every electronic device capable of storing data is just another tool in the pirate's chest. If you think your phone or mp3 player or hard drive is just something for storing data and perhaps even purchased software, movies, and music, think again. The simple fact you've decided to purchase any of these devices pretty much ensures content creators everywhere will go bankrupt.

The "you must be a pirate" tax is being pitched again. The senseless fee tacked on to blank plastic discs for so many years continues to migrate to electronic devices, including the tiny chips stashed away inside smartphones. Apparently, the Canadian music industry needs something to replace the revenue stream that dried up when people stopped buying blank CDs. Michael Geist, working with documents secured through a public records request, reports the Canadian music industry is looking for a hefty payout from the government.

According to documents released under the Access to Information Act, the collective arrived with a startling demand, asking the federal government to pay $160 million over the next four years to compensate for music copying.

The demand, which now forms part of the platform of demands from the Canadian music industry, is based on a $40 million annual handout. While the industry has not provided details on how it arrived at its figure, notes (likely from Graham Flack) reveal the basis of the demand.

This apparently breaks down to $3.50 a device, according to the cocktail napkin math handed in by the industry.

But the industry isn't willing to wait around for devices to be sold. The CPCC (Canadian Private Copying Collective) wants the government to just hand it $40 million a year and assume it all adds up in the end. So, it's a much broader "you must be a pirate tax" that calls all Canadians pirates, whether or not they've actually purchased a new piratephone during the fiscal year.

What's more, the document [PDF] makes it clear the CPCC wants a new revenue stream just because an old one has vanished. It points out revenues from "pirate" taxes have dropped from a high of $38 million back in the heyday of blank media to an expected $2 million in 2017. It also notes that streaming services are replacing music sales, accelerating this decline in "pirate" taxes.

However, the report carefully does not point out revenues from streaming services have increased from $3.4 million in 2013 to $49.3 million in 2017. It also ignores the fact that much less copying -- authorized or unauthorized -- is taking place.

The business model this "pirate" tax depended on -- copying of music to media or devices -- is slowly being eliminated. That doesn't mean taxpayers owe CPCC a living. It just means sales are being replaced with "rentals." If the CPCC failed to capitalize on the shift to streaming, it shouldn't be allowed to make up its "lost" revenue by taxing smartphones just because that's where most music streaming takes place. It makes as much sense as envelope manufacturers demanding a per-device tax because email and instant messaging has replaced snail mail as a means of communication.

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Posted on Techdirt - 13 June 2018 @ 7:36pm

South Carolina Drug Warriors Routinely Serving Regular Warrants Like No-Knock Warrants

from the not-constitutional-and-a-whole-lot-more-dangerous-for-everyone-involved dept

Radley Balko is uncovering more rights violations and more law enforcement falsehoods with his coverage of South Carolina resident Julian Betton's lawsuit against the Myrtle Beach-area drug task force. Betton's house was raided by the drug unit after a confidential informant made two pot purchases for a total of $100. The police didn't have a no-knock warrant, but they acted like they did, going from zero to hail-of-gunfire in mere seconds. (via

On April 16, 2015, the task force battered Betton’s door open with a ram, then almost immediately opened fire, releasing at least 29 bullets, nine of which hit Betton. One bullet pierced a back wall in the building, sped across a nearby basketball court and landed in the wall of another house. (This was a multi-family building.)

Betton was hit several times. He didn't die, but he doesn't have much left in working order. He lost part of his gallbladder, colon, and rectum. His liver, pancreas and small intestine all suffered damage. His left leg was broken along with one of his vertebrae.

The cops immediately set about justifying their extreme tactics. First, they claimed Betton fired at them, but ballistics tests showed Betton's gun hadn't been fired. Then they claimed he pointed a gun at them, but did not fire it. This could have easily been proven if any of the task force had bothered to activate their body cameras before breaking Betton's door down. But the footage shows no cameras were activated until after the task force stopped firing.

The task force used a regular search warrant, meaning the officers were supposed to knock and announce their presence. Nearly all of them said they followed these stipulations. Video from Betton's home security camera (which can be seen at the Washington Post) caught all these officers in a lie.

These 11 seconds of footage from that camera show that no member of the task force knocked on Betton’s door.

The video lacks audio, but both the Myrtle Beach police chief and a federal magistrate have since concluded that the video also strongly suggests there was no announcement. None of the officers’ lips appear to be moving, and it all happens very quickly. At best, they announced themselves simultaneously or nearly simultaneously, with the battering ram hitting the door.

A neighbor who was on Betton's sidewalk (and was told to lie on the ground by the task force on their way to Betton's door) backs up the camera footage. No announcement was made before the door was breached.

This is apparently standard operating procedure in Myrtle Beach. Only in rare cases does the task force seek no-knock warrants. (Task force officials say no-knocks are only "1-2%" of warrants obtained.) But they apparently serve plenty of normal warrants without knocking or announcing their presence.

It seems clear from the testimony in depositions that the 15th Circuit Drug Enforcement Unit doesn’t know any of this. Officer Christopher Dennis, for example, said that the “reasonable” waiting period for someone to answer the door begins the moment police arrive on the scene, not after they knock and announce themselves. This is false. Officer Chad Guess — who, remember, planned the Betton raid — said in a deposition that it’s “not the law to knock and announce. You know, it’s just not. It’s the officer’s discretion, each dictate determines itself.” This, again, is wrong. Officer Belue said under oath that he had no idea how long officers are supposed to wait before forcing entry, and that no one had trained him on the matter.

It's a convenient misunderstanding of the law. It's made even more convenient by the task force's lack of clearly-written policies on serving warrants. Since everyone of the task force remains as ignorant as possible, they're more likely to be granted immunity when victims of unconstitutional drug raids take them to court.

But these officers may not get off so lightly. Their reports and testimony have been disproven by the 11 seconds of video captured by Betton's security camera. Officers who swore they knocked and announced their presence now have to explain how those both occurred with zero officers knocking on Betton's door or even moving their lips.

More lies can be found elsewhere in the report. Officers stated in police reports they heard the sound of Betton's gun firing. Ballistics testing has shown Betton never fired his handgun, so everyone making that same claim about gunfire is either mistaken about what they heard or, more likely, aligning themselves with the narrative they created in the aftermath of the shooting.

Maybe these officers are hoping their professional ignorance will outweigh their bogus reports. The task force has made it incredibly easy for members to write their own rules when executing warrants. As Balko points, the single most invasive and dangerous thing the task force participates in (~150 times a year) -- warrant service -- has zero official policies dictating how task force members serve warrants. Apparently, all that time and effort went into creating a cool skull-and-crossbones logo for members to stitch on their not-very-coplike raid gear.

In any event, the court system is the last stop for justice. If any of these officers are ever going to be held accountable for their actions in the Betton raid, it will be here. Every level of oversight task force members answer to has already offered their official blessings for the knock-and-announce warrant that was carried out without knocks or announcements.

What happened to Julian Betton is an entirely predictable product of the failures, culture and mindset of the 15th Circuit Drug Enforcement Unit. And yet to date, state officials won’t even concede that this was a bad outcome, much less do anything to prevent it from happening again. Citing the SLED investigation, South Carolina solicitor Kevin Bracket cleared the officers of any wrongdoing within just a few months. In the three years since the raid, no officer involved has been disciplined, even internally. Nor has any officer has been asked to undergo additional training. No policies have been changed. The DEU never bothered with its own investigation, or even an after-action examination to determine what went wrong.

The police clear themselves of wrongdoing and a pending civil lawsuit has zero motivation effect on the drug unit. The task force is operating outside Constitutional boundaries with no internal guidance or effective oversight. Myrtle Beach-area drug warriors have no desire to clean up their act, and a large settlement paid by taxpayers is unlikely to result in a change of heart.

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Posted on Techdirt - 13 June 2018 @ 1:35pm

State Appeals Court Finds Government's Actions In Craigslist Sex Sting 'Outrageous' And 'Repugnant'

from the ruinous-behavior dept

Our courts will let the government get away with almost anything. Although judges have expressed immense amounts of displeasure at the ATF's sting operations involving fictitious drug stash houses, it has seldom resulted in reversed convictions. To "shock the conscience," the government must cross lines courts are very reluctant to draw. Running a child porn website for a few weeks doesn't do it. Neither does taking a trucking company's truck and employee and returning both full of bullet holes after a sting goes south.

Very occasionally, the government will find its way across this line. Eric Goldman has uncovered one of these rare cases. It involves a child sex sting operation perpetrated by a law enforcement agency, during which the undercover officer refused to leave a "target" alone after he repeatedly made it clear he wasn't looking to buy sex from an underage female.

This case’s setup resembles dozens or hundreds of similar cases I’ve read. In 2014, a law enforcement officer (in this case, Skagit County Sheriff’s detective Theresa Luvera) posted a sex solicitation on Craigslist’s casual encounters. As we’ve discussed before, Craigslist’s rules required all participants to be 18+. something that has undermined sex stings in the past (if you read that post, the parallels to this post will be obvious).

The defendant responded to the solicitation. After some online exchanges between the detective and the defendant, the detective claimed she is underage (“almost 15 but waaay advanced”). Even further into the exchanges, the detective brought up money-for-sex. At every step along the way but the end, the defendant seemingly made it clear he was seeking free sex with a female adult. Eventually the defendant shows up at the designated rendezvous point with the requested items. He “was charged with one count of communication with a minor for immoral purposes, one count of commercial sex abuse of a minor, and one count of attempted rape of a child in the third degree.”

The trial court dismissed the charges, pointing to the detective's "outrageous misconduct." More specifically, it pointed to the state's violation of the defendant's due process right to "fundamental fairness." The appellate court upholds the decision in its opinion [PDF], which recaps, verbatim, some of the nearly 100 sexually explicit messages sent by the detective to push someone who had disengaged from the conversation multiple times into breaking the law.

In this matter, a law enforcement officer anonymously published an advertisement on an online classifieds platform reserved for those over the age of 18 and indicated that she was "a young female" seeking an individual interested in a casual sexual encounter. Joshua Solomon responded to the advertisement. Thereafter, the police officer assumed the guise of a fictional 14-year-old girl and sent Solomon nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited him to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the course of four days.

At one point, Solomon rejected the "teen's" advances, stating specifically he thought this was "a setup by cops or a website." This only resulted in Detective Luvera increasing her pleas for illegal sex and amping up the sexual content of the messages. The appellate court's analysis tracks the trial court's distaste for the state's actions. But, as it notes, the government is cut so much slack in so many edge cases, precedential decisions on the topic are few and far between.

A decade later, for the first time, a claim of outrageous governmental misconduct was presented to the Supreme Court in a case in which a full trial court record was extant. In State v. Athan,law enforcement officers, "posing as a fictitious law firm, induced Athan to mail a letter to the firm." 160 Wn.2d 354, 362, 158 P.3d 27 (2007). They did so in order to obtain a sample of his DNA.

That's what the Washington state court has to work with after 100+ years of jurisprudence: one case roughly on point involving something which seems less violative of due process rights. (More of a 4th Amendment violation than a 14th Amendment violation.) The trial court certainly didn't need a bunch of precedent on hand to find the government's behavior disgusting. The appellate decision quotes it at length on the way to upholding the lower court's findings. In this case, the only thing propelling the sting forward was the government. Seven times the defendant tried to disengage and seven times the detective assailed him with increasingly-graphic text messages. And all of this stems from an action the government took: the placement of an ad in an area of Craigslist where all ad posters were supposed to be over the age of 18.

Here's just a small part of the trail court's oral comments on the sheriff department's actions (NSFW in parts):

I can't believe the detective would want to go to trial on this and subject this language to citizens. I'm just going to give you a little tidbit. At 3:17 on Wednesday, September 17th, the detective says, "OMG U R so fing hung baby!!! VVTF . . . I'm so amped up after seeing this. I have wait for my sister to leave and I am gonna video tape me finger banging me to ur plc! Can't u cum and see me now!!!" Yeah, that's repugnant. I don't care how you cut that pie. You can be a seasoned old sailor or whatever, but that is repugnant. That's a detective letting line out very fast on a free spool trying to get Mr. Solomon back in the game. And there is no other way to -- there is no other way to describe it. It's outrageous. That is repugnant. It's egregious.

The appeals court sums this all up with a couple of concise paragraphs.

In ruling to dismiss the charges, the trial court did not adopt a view that no reasonable judge would take. Given the court's finding that law enforcement had initiated and controlled the criminal activity, persistently solicited Solomon to commit the crimes so initiated, and acted in a manner (through the use of language and otherwise) repugnant to the trial judge's view of the community's sense of justice, the trial court's determination was tenable.

Accordingly, the trial court did not abuse its discretion by ordering that the charges against Solomon be dismissed. There was no error.

This isn't how you catch criminals. This is how you manufacture criminals. Much like the ATF's stash house stings and a great many of the FBI's terrorist investigations, the government does 99% of the work and jails the unlucky person who has been coerced and cajoled into doing something they likely would have never done if the government hadn't instigated it. A good call here by both courts working without almost zero precedent. Unfortunately, the lack of precedent doesn't suggest a well-behaved government. Instead, it points to a whole lot of judicial slack being cut over the years.

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Posted on Free Speech - 13 June 2018 @ 9:33am

French President Pushing 'Fake News' Bill That Would Demand Decisions From Judges In 48 Hours

from the 48-hours-or-your-violated-rights-are-free dept

France's government will likely be following Germany's into the halls of speech regulation infamy. Germany's new "hate speech" law backed 24-hour removal demands with hefty fines to ensure social media platform compliance. This has prompted proactive enforcement by Twitter and Facebook, resulting the removal of content that doesn't violate the law, along with the removal of satire's life support.

The French government is already eyeballing a carbon copy of this hate speech law. But it's willing to do Germany one better: it wants to regulate "fake news." This push comes from new president Emmanuel Macron, who's decided to make his personal beef with fake news a public concern. A false story about offshore accounts owned by Macron made its way around the internet during his presidential campaign, prompting him to declare war on "fake news" if he was elected.

He's been elected, and now appears to be abandoning the base that thought he would be less radical and more reasonable than many of his opponents.

Taking aim at so-called fake news, France’s Parliament on Thursday is set to begin debating a tough bill aimed at repressing phony news items, one pushed by President Emmanuel Macron amid criticism that it poses a potential threat to press freedom.

The measure would allow judges to block content deemed false during a three-month period preceding an election.

During elections, it appears normal speech protections will be disabled. And it will be France's court system doing the heavy lifting under duress. The law would force judges to make a call on suspected "fake news" within 48 hours of the government submitting its case. Forty-eight hours is a ridiculous turn time for judicial matters, which makes it extremely likely literal judgment calls will be blown and/or overblocking will occur.

This also allows the French government to make the initial declaration of a news item's veracity. Forty-eight hours is barely enough time to read the government's case and pass a judgment, much less provide any due process to those accused of faking their news. Anyone who can't find something wrong with the general idea of a government declaring certain speech bogus and placing it before a judge with ticking time is either a budding authoritarian or Emmanuel Macron.

Unfortunately for Macron, the not-so-very-enlightened president is going to have a hard time shoving this terrible idea down parliament's throat. He's getting shot from both sides during his push to harm free speech protections and journalists.

[I]n heated exchanges in parliament on Thursday, members of the rightwing Les Républicains party accused Macron of trying to create a “thought police” that threatened freedom of expression. The leftwing France Insoumise party warned of a new kind of censorship and cautioned against a hasty, unnecessary and ineffective law against an ill-defined concept of fake news.

France's culture secretary said these fears were overblown as was any perceived attack on journalists. But the law Macron is pushing would do exactly what the culture secretary denies it will do. Supposedly "professional media" won't be targeted. But how can that statement possibly be true?

Social networks would also have to clearly state who was sponsoring content. The law would also give the French media regulator new powers to remove broadcasters’ rights to air content in France if it is deemed to be deliberately fake or implausible. Foreign broadcasters could be taken off air if they were deemed to be attempting to destabilise France, a measure taken to be aimed at Russian state-backed outlets.

Even if the culture secretary is to be believed, this just means the government will decide who is or isn't a journalist after the law is passed -- most likely on a case-by-case basis that allows it to target those perceived of being less able to challenge a judicial determination. Journalism isn't something only big name news agencies do. Plenty of amateurs engage in journalism and it will be those without privilege or access who can most easily be silenced by the government's "fake news" accusations.

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Posted on Techdirt - 13 June 2018 @ 3:10am

UK Security Minister Says Only A Drivers Licence For The Internet Can Bring Back Online Civility

from the has-other-terrible-ideas-as-well dept

A bad idea that continues to persist is a favorite of many government officials. The problem with the internet is anonymity, according to them. Wouldn't we all be better off if we were forced to identify ourselves before using social media platforms? The theory is people won't say mean, stupid, or regrettable things if their posts and comments are linked to their real names. Several years of Facebook-only commenting systems has proven this wrong.

And yet the idea continues to be pushed by European politicians and DHS officials. The latest to call for an internet drivers license is UK security minister Ben Wallace. His theory is the use of real names and verifiable info will inflict mass civility on the internet, which is currently home to roving bands of ruffians and Wild West content. [Paywall ahead.] [Alternate link to article provided by Alec Muffet, who has helpfully taken a screenshot of the print edition.]

Ben Wallace, a former soldier, said bullying and grooming occurred on social media because offenders believed they cannot be identified. “It is mob rule on the internet. You shouldn’t be able to hide behind anonymity as much as you can now,” he added.

Of course, it will all be so easy to implement in Wallace's limited view. After all, banks authenticate users' identities, so it stands to reason people will be happy to turn over names, addresses, phone numbers, and whatever else might be demanded in exchange for the heightened possibility of being doxed, sued, or exposed to overbroad prosecutorial efforts.

Wallace says there's a damn good reason to demand ID from everyone on the internet: the children.

The former soldier described being part of an uncover investigation into child sex exploitation where they found a children’s chatroom with a 45-year-old man pretending to be a 12-year-old.

He said: “It was like blood in the water with a shark – he was trying to chat up a girl to get her to come and meet him.

Whoa, if true. In the US, cops do this all the time. I'm sure UK cops do it as well, so this may have been nothing more than a couple of cops chatting to each other for all anyone knows. Even if this went down exactly the way Wallace portrays it, the institution of an internet ID card isn't going to magically make it impossible for 45-year-olds to pretend they're 12. It won't even make a dent.

What it will do is harm the internet and its users. The only services that will be able to comply will be the largest. Forums and discussion groups, hosted on free platforms and maintained by members, won't be able to cover the cost or provide the manpower. If anyone's concerned about the dominance of the major social media platforms, regulation like this isn't the answer. It will only further cement their dominance.

And there are plenty of legitimate reasons to maintain online anonymity. In the eyes of officials like Wallace, anonymity is an admission of guilt. "Nothing to hide, nothing to fear," except for people like undercover journalists, journalists' sources, dissidents, opponents of authoritarian governments, people who don't like being pre-doxed by their service provider, security researchers, government employees, people who don't like being blackmailed, critics of powerful people or corporations, kids who want to keep sexual predators from knowing they're kids… the list goes on and on.

To add injurious action to an insulting idea, Wallace has another boneheaded idea: intermediary liability for national security threats.

Mr Wallace called on social media giants to take responsibility for their own technology, as he said the UK was spending hundreds of millions of pounds on coping with the challenges of end-to-end encryption, which makes it harder for the security services to foil terror plots.

He said: “There should be an element of the ‘polluter pays’. You contribute to the cost your technology is engendering.”

What even the fuck. This is more than stupid. It's dangerous. It does very little to combat terrorism and gives the government (and lawsuit plaintiffs) a chance to grab some money from the biggest, easiest-to-locate target, rather than the actual criminals engaging in terrorist acts. This is lazy legislating and it's a cheap comparison. Terrorists may use encrypted communication services, but it hardly follows that terrorism is the result of companies offering encrypted messaging. Pollution, on the other hand, can be traced back to its source and the manufacture of products. There's a direct link from manufacturing to the production of pollutants. Offering an encrypted messaging service does not create terrorists or terrorist activity.

Fortunately for Wallace, he's floating these terrible ideas in the UK's legislative cesspool, unhampered by the First Amendment or rational national security legislation. This means UK residents, and the companies that serve them, may be eventually forced to fork over their personal info to access Facebook, much like they're expected to do if they want to access porn.

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Posted on Techdirt - 12 June 2018 @ 7:31pm

Legislators Reintroduce Pro-Encryption Bills After FBI Destroys Its Own 'Going Dark' Narrative

from the [mugato-voice]-irons-so-hot-right-now dept

The FBI may have overplayed its hand in the encryption game, but that doesn't mean someone further down the legislative food chain won't suffer from a sudden burst of enthusiasm for destroying encryption in the wake of a local tragedy. The same DC legislators looking to prevent federal legislation mandating encryption backdoors is taking the fight to the state level. Or, rather, looking to disqualify legislative contestants before they even enter the ring.

A bipartisan group of lawmakers is renewing a push for legislation to block states from mandating that technology companies build “backdoors” into devices they produce in order to allow law enforcement access to them.

The measure is designed to preempt state and local governments from moving forward with their own laws governing encryption before the federal government acts on the issue.

The bill would prevent backdoor mandates, as well as encryption-subverting technical assistance demands or encryption bans.

A State or political subdivision of a State may not—

(1) mandate or request that a manufacturer, developer, seller, or provider of covered products or services—

(A) design or alter the security functions in its product or service to allow the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency or instrumentality of a State, a political subdivision of a State, or the United States; or

(B) have the ability to decrypt or otherwise render intelligible information that is encrypted or otherwise rendered unintelligible using its product or service; or

(2) prohibit the manufacture, sale or lease, offering for sale or lease, or provision to the general public of a covered product or service because such product or service uses encryption or a similar security function.

This bill was originally introduced in 2016, back when the FBI was just getting its anti-encryption electioneering underway, but this time around appears to have a larger list of bipartisan sponsors.

Since then, things have changed considerably. The FBI's claimed number of locked devices swelled dramatically, from a little under 800 to nearly 8,000 in less than two years. Its "going dark" rhetoric increased pace along with the increase in number of inaccessible phones.

But the biggest change in the last couple of years -- a time period during which this legislation hasn't moved forward -- is the FBI's self-own. Forced to account for its growing number of locked devices given the multiple options available to crack the phones or obtain evidence located in the cloud, the agency finally decided to take a look at all the phones it had amassed. And it found it didn't have nearly as many as it had claimed. The 8,000 phones turned out to be somewhere between 1,000-2,000 (likely around 1,200 devices). The FBI blamed it on faulty software and has begun issuing corrections to the many, many public statements it published about the "going dark" problem.

Given the FBI's disastrous discovery, the time would seem to be perfect to push forward with pro-encryption legislation. A new bill is on the way -- likely a carbon copy the 2016 proposal. It should pair nicely with another bill introduced in May, which would prevent federal agencies or courts from demanding companies create backdoors or otherwise weaken their encryption. The only exception would be for mandates or court orders stemming from CALEA, which would limit assistance demands to the interception of communications (with wiretap warrants), not the contents of locked devices.

If both move forward, phone users will be protected on both ends from both levels of government. No backdoors, and no demands phone manufacturers kick down the front door so law enforcement can carry out their search warrants.

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