Posted on Techdirt - 17 February 2017 @ 10:49am
In what looks to be the FNG currying favor with the new boss, rookie Congressman Jim Banks is introducing a bill that would turn the DHS's social media prying from something it would like to do to something it has to do.
Congressman Jim Banks (IN-03) today will introduce the Visa Investigation and Social Media Act (VISA) of 2017, legislation to strengthen the vetting process for visa applicants. The bill is the first piece of legislation that Congressman Banks will introduce.
While CBP and DHS have been asking incoming foreigners for social media info for a while now, the process has been voluntary -- or at least as voluntary as any process can be when one side holds all the power. New DHS Secretary John Kelly suggested this would expand further in the near future, moving from requests for social media handles to demands for account passwords.
Rep. Banks appears to be making a move to codify the DHS's requests for social media info. It doesn't go so far as to demand account passwords, but it would make examination of foreigners' social media accounts part of the vetting process. The bill's text hasn't been posted yet, but here's what Rep. Banks' website says the legislation will include.
The VISA Act of 2017 would require the Department of Homeland Security to include the following in the background check of any individual applying for a visa to the United States:
A review of the applicant’s publicly available social media activity (i.e. public tweets, YouTube videos, Facebook photos and posts);
An interview of each applicant who is age eleven years or older;
A fraud-prevention check of each applicant’s documentation; and
A requirement that the applicant provide an English translation of his or her documentation.
Rep. Banks says this is no different than the process companies use to vet new hires. That's a truly bogus comparison. While some companies view applicants' social media posts when considering them for employment, very few are demanding social media account information as part of the application process. Those that do tend to drop the policies as soon as they're made public. (And child labor laws pretty much rule out interviews of tweens and teens.)
What's most troubling about this new rep's bill is its complete uselessness. The only real change it makes is dropping three years from the interview requirement (from 14 to 11). Everything else is something Customs already does. Vetting of social media posts has been part of the process for months. Banks' bill just makes it a requirement for the DHS to perform social media checks on all applicants. The legal ball will get pushed downhill, which will force applicants to hand over this info. ("In compliance with [insert US Code info here], DHS/CBP require applicants to provide social media account information, etc.") This may make it easier for the DHS to start demanding passwords, but the bill limits itself to public posts.
As for the rest of it, it's completely redundant. Extensive background checks are run on all applicants against several databases and Customs has required an English translation of visa applicants' documentation for years.
Banks likes corporate analogies so he should be aware his effort looks like a new hire trying to make his mark -- not by being a valuable addition to the company -- but by enthusiastically offering up worthless suggestions that signal your "Company Man" virtues to upper management.
25 Comments | Leave a Comment..
Posted on Techdirt - 17 February 2017 @ 9:47am
President Trump's three new law-and-order Executive Orders are designed to combat a largely-nonexistent crime wave and increase protections for one of the most-heavily protected groups in America: law enforcement officers. The orders also mixed crime prevention and national security into a single bowl, making criminal activity inseparable from threats to the nation -- especially if foreigners are involved. In addition to his travel ban and his Two Minutes Hate reporting system, Trump also singled out illegal immigrants in these "law and order" orders, implying that they were to blame for much of the perceived crime problem.
That's in addition to some off-the-cuff remarks Trump made during a meeting with several sheriffs, where he suggested there was no need to reform asset forfeiture and joked that those pushing reform efforts should have their careers ruined by the nation's top (proxy) cop: Donald Trump.
The president may unequivocally have law enforcement's back for the next four years (at minimum), but the nation's top cops don't have his. Or, at the very least, they don't agree with Trump's hardline, anti-crime, pro-cop-always stance. In a report [PDF] filled with suggestions for the new president, a coalition of police chiefs, district attorneys (including Manhattan decrypto warrior Cyrus Vance), and other police officials agree that the ideas Trump is pushing so far are only going to make the nation's policing -- and the nation's relationship with police -- worse.
While Trump has been calling for longer sentences, increased law enforcement presence, and projected a zero tolerance approach to everything until crime rates lower (or at least his perception of crime rates -- the stats don't back up his claims), this group says throwing the book at everyone is just going to perpetuate criminal activity.
We urge the Administration and Congress to carefully consider new crime policies, and adopt and support those that fight crime effectively. Decades of experience have convinced us of a sobering reality: today’s crime policies, which too often rely only on jail and prison, are simply ineffective in preserving public safety. We need not use arrest, conviction, and prison as the default response for every broken law. For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.
Once inmates are released, they struggle to find employment, housing, and other necessities that would re-integrate them into society. Facing few legitimate opportunities, many ex-offenders return to crime. The higher the incarceration rate for such offenders, the less safe the citizenry. We must instead consider those policies that better preserve public safety. Dangerous, violent offenders should be behind bars, but incarceration is not necessarily the best tool to put non-violent offenders back on the road to productive, law-abiding lives.
The report also points out that throwing money at the problem hasn't helped either. Money is useful, but only if it's spent on useful activities.
Each year, the federal government spends billions in criminal justice grants to support overwhelmed police department and government budgets. For example, the Department of Justice offered $5.5 billion in grants to local agencies in 2016. These dollars fund law enforcement efforts to investigate and prosecute crimes. However, to a large degree, these outlays are not targeted at fighting violent and serious crime. In fact, some of these dollars are expended on antiquated law enforcement tools, such as dragnet enforcement of lower-level offenses. This misses an opportunity to prioritize resources towards more effective ways of fighting violent and serious crime in the states. Without such change, states will continue inefficient enforcement techniques.
Also discussed are sentencing reform, increased efforts to better deal with drug addicts and the mentally ill (something that doesn't involve regular deployments of force/jail time) and a heavier focus on community policing. What it doesn't contain are suggestions to roll back all of this to the mid-80s and pretend we have something like a crack epidemic to attend to. The conclusory paragraph says -- contrary to Trump's viewpoint -- that efforts in these areas will result in better law enforcement and safer communities.
But while many police officials and prosecutors disagree with Trump, police unions disagree with police officials (and prosecutors) -- albeit without going through the trouble of producing a report that explains their side of things.
“I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”
These comments are illuminating. In both cases, constitutionally-adherent policing is viewed as "soft." That's how far the pendulum has actually swung, despite Ramos' assertion to the contrary. Many police officers act as though the Constitution only applies to people they never interact with. For everyone else, their rights are whatever rights the officer feels they have at the time. As long as these rights don't prevent them from doing what they want, citizens are free to enjoy them. If not, take the complaint to court where various levels of immunity will routinely allow Constitutional violations to go unpunished.
A long list of DOJ investigations confirm law enforcement's generally negative attitude towards the people they police. First, an "us vs. them" attitude dehumanizes anyone not wearing a badge. Effective policing is unconstitutional policing, and cops aren't going to let a bunch of rights get in the way of cracking heads and asserting their authority. Undoubtedly, officials like Canterbury and Ramos view sentencing reform, community policing, curbing non-essential arrests, handling mental illness with more care, etc. as "soft" as well. And the new president appears to be onboard with this backwards thinking -- where adhering to the Constitution is a luxury a supposedly-besieged law enforcement community can no longer afford.
Read More | 31 Comments | Leave a Comment..
Posted on Techdirt - 16 February 2017 @ 3:43pm
Another court has stepped up to inform law enforcement that just because criminals are known to use cell phones doesn't mean any cell phone possessed by a suspect is fair game -- warrant or no warrant.
This time it's the Superior Court of Delaware making the point. In its suppression of evidence found on a seized cell phone, the Superior Court makes it clear that cell phones are used by everyone -- not just criminals. Not only that, but if an officer is going to seek a warrant that effectively allows them access to the owner's entire life, the warrant needs to contain more specifics and limitations than this one did.
During a consensual search of an apartment where a homicide suspect (Qualeel Westcott) was staying, police came across heroin and three mobile phones. All three of the phones were seized. A warrant was obtained to search the content of the phones. But a warrant alone isn't good enough. While a warrant is better than nothing at all, the warrant here -- according to the court -- barely exceeded "nothing at all."
While the court does recognize [PDF] there's a good likelihood that phones possessed by suspects will often contain useful evidence of criminal activity, it takes far more than the bare bones assertions made by the officer obtaining the warrant, which did almost nothing to establish a relationship between the phone and suspected criminal activity. (via FourthAmendment.com)
[H]owever, Detective Sergeant Horsman did not expressly state any nexus between Mr. Westcott's ownership of the mobile phone and the existence of evidence of the crimes (including a confession) on that mobile phone. Although the magistrate may draw reasonable inferences from the factual allegations of the affidavit, the leap required here is a long one. The mere fact that a defendant owns a mobile phone is not, in and of itself, sufficient to warrant an inference that evidence of any crime he or she commits may be found on that mobile phone. The affidavit did not provide probable cause for a search.
The court goes on to point out that even if Sergeant Horsman had managed to do a better job establishing a nexus, the warrant would still fail because of how broadly written it was. State law, along with judicial precedent, have set the bar higher for warrants seeking information stored in citizens' cell phones. As the Supreme Court pointed out in its Riley decision, phones are not simply "containers" that can be rifled through with a minimum of particularity. They are people's "entire lives." With that in mind, the warrant sought in this case is an abject failure.
Here, the search warrant authorizes a search of all "data and cellular logs." This description does not limit the scope of the officer's search of the mobile phones to relevant material and does not place any limitation on the types of "data, media, and files" to be searched.
There is also no temporal limitation on the search. The police alleged that the shooting occurred on May 11 and the presence of heroin at the apartment provided probable cause for its recent distribution. The police should have sought a more limited search warrant permitting the search of suitably recent data from the phones.
Instead, the application sought a general search "of the three phones." The warrant thus provides broad permission to rummage through the entire digital lives of the phones' owners. Accordingly, it does not contain the level of particularity required under the Constitution of the United States, the Delaware Constitution, or Delaware statute.
Yes, it's true that criminals use cell phones. That makes them indistinguishable from a majority of the United States' population. But the wealth of information stored in the average cell phone makes them far different than a filing cabinet or a cardboard box full of personal papers. Courts are doing a (slightly) better job at demanding more from law enforcement officers when they seek to access these contents. The first part of it is to establish something more than "criminals use cell phones" when seeking a warrant. The second part is even more important: limiting the search to just what's needed to uncover evidence related to the criminal act. Particularity is a must. Without it, a cell phone search warrant is nothing more than a boilerplate-backed Law Enforcement Fishing Expedition (Short Form).
Read More | 10 Comments | Leave a Comment..
Posted on Techdirt - 16 February 2017 @ 11:57am
We wrote about this case last April, and it appears very little has changed over the last 10 months. Francis Rawls, a former Philadelphia policeman, is still in jail because he has refused to decrypt his computer for prosecutors. At this point, Rawls has been jailed for sixteen months on contempt of court charges.
How long will Rawls stay jailed without a criminal conviction? The prosecution says that's up to him. As for the appeals court, it apparently doesn't feel a pressing need to address the unresolved issue: whether or not the Fifth Amendment protects citizens against being forced to turn over passwords.
The federal court system appears to be in no hurry to resolve an unresolved legal issue: does the Fifth Amendment protect the public from being forced to decrypt their digital belongings? Until this is answered, Rawls is likely to continue to languish behind bars. A federal appeals court heard oral arguments about Rawls' plight last September. So far, there's been no response from the US 3rd Circuit Court of Appeals, based in Philadelphia.
If Rawls' devices had been secured with a fingerprint, there's a good chance he'd already have been forced to unlock his devices. There haven't been a lot of decisions pertaining to the use of fingerprints to decrypt devices, but those we have seen indicate judges don't view the taking/application of suspects' fingerprints to be "testimonial." Unlocking a device that contains evidence to convict a person apparently doesn't undermine their right to not be forced to testify against themselves. The reasoning in a recent appeals court decision was that a fingerprint is not something stored in a suspect's mind. Therefore, it's not testimony. It's, for lack of better words, a bodily "fact," like the blood stored in a suspect or a suspect's resemblance to a person described by eyewitnesses.
Because Rawls is facing child pornography charges, there hasn't been much public support for his legal battle. The problem with ignoring this one and waiting for a "better" case to roll around is that the weakening (or rewriting) of Constitutional protections almost always starts with the worst cases. Once precedent and/or legislation is in place, the diminished protections affect everyone -- even those whose alleged actions are far less socially-abhorrent as the accused in this case.
The EFF, however, has stepped into the breach -- as it has in other cases where child porn suspects are central to battles over Constitutional rights.
The Electronic Frontier Foundation told the court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."
The other aspect of this case that bears watching is the All Writs Order the government has deployed to obtain this fingerprint. The All Writs Act of 1789 is seeing an uptick in deployment 200+ years after its passage. The government uses this any time it can't find statutory authority for its demands. It's a feature of the Act, not a bug, and its increased use suggests several other laws are badly in need of updating -- and not just in the government's favor. There are at least as many gaps in protections as there are gaps in authority in the laws governing digital data and communications, many of which were written long before the internet became the main means of public communication and storage capacity/prices allowed any person to store several lifetimes of information on devices small enough to stick in their pockets.
61 Comments | Leave a Comment..
Posted on Techdirt - 16 February 2017 @ 9:47am
Credit where credit is due: Trump has done more to preserve the full CIA Torture Report than Obama ever did. On his way out the door, the DOJ fought on his behalf in federal court, arguing against an order to deposit the full report with the court clerk for preservation in the ongoing trial of Abd al-Rahim Al-Nashiri, who has alleged he was waterboarded while detained by the CIA.
Barack Obama did stuff one copy of the full report in his presidential archives before Trump took over, perhaps in response to fears that the incoming president might make the whole thing vanish. Trump did mention his support for the use of torture on more than one occasion, and it would have been somewhat inconvenient to have an official document laying around saying torture is bad and the US shouldn't do it.
Maybe it's oneupmanship or maybe the Trump's legal counsel feels it has too much on its plate already, but as the New York Times' Charlie Savage reports, Team Trump is handing over a full copy of the Torture Report to the court as requested.
[A]s the Obama era came to an end, two Federal District Court judges for the District of Columbia ordered the executive branch to provide a copy of the report to the court’s security officer, and today, on the deadline set by one of them, the Trump administration complied rather than appeal.
A one-page notice of compliance [PDF] was issued by the White House on February 10th.
Respondents are filing this notice to advise the Court that, in accordance with the orders entered in the above captioned cases on December 28, 2016, and January 23, 2017,2 on February 6, 2017, the Government deposited for the Court Information Security Officers (CISOs) for secure storage a complete and unredacted electronic copy of the Senate Select Committee on Intelligence Committee Study of the CIA’s Detention and Interrogation Program (2014). Specifically, the Government deposited the electronic copy that had been previously delivered to the Department of Justice Office of Legislative Affairs.
The last sentence of the notice kills me. The government apparently carried the electronic copy from the DOJ's Office of Legislative Affairs to the court clerk. The clunky wording suggests this copy no longer resides at the DOJ and that the court has this particular copy of an electronic document in its hands -- one that could be copied infinitely with no discernible loss in quality or content.
Considering the full report is still classified, there are definitely plenty of dissemination control procedures in place. But without any further information to go on, the notice gives the appearance that the DOJ Office of Legislative Affairs no longer has a copy of the full report. So, that can be put on the scorecard of places the document no longer can be found, even though it could be distributed anywhere with minimal effort, cost, or replication of anything more than 1s and 0s.
Read More | 60 Comments | Leave a Comment..
Posted on Techdirt - 16 February 2017 @ 3:40am
Last summer, a Florida federal court reached some unusual conclusions in a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.
As to Section 230, the court found that Google's delisting efforts weren't in "good faith." The reason cited was e-ventures' claim that the delisting was in "bad faith." So much for this seldom-used aspect of Section 230: the "Good Samaritan" clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for "viewed in the light most favorable to the non-moving party." Apparently, Google's long history of spam-fighting efforts is nothing compared to an SEO wrangler's pained assertions.
The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Google's search rankings were protected speech, its statements about how it handled search engines weren't. And, for some reason, the court felt that Google's ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its "editorial judgment."
It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.
Fortunately, this wasn't the final decision. As Eric Goldman points out, last year's denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But there's not much to celebrate in this decision as the court has (again) decided to route around Google's Section 230 "Good Samaritan" defense.
Regarding 230(c)(2), the court says “spam” can qualify as “harassing” or “objectionable” content (cite to e360insight with a but-see to the Song Fi case). Still, the court says e-ventures “brought forward enough circumstantial evidence” about Google’s motivations to send the case to a trial. By making it so Google can’t even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.
Had it ended there, Google would be still be facing e-ventures' claims. But it didn't. The court takes another look at Google's First Amendment claims and finds that the search engine provider does actually have the right to remove "spammy" links. Beyond that, it finds Google even has the First Amendment right to remove competitors' content. From the order [PDF]:
“[T]he First Amendment protects as speech the results produced by an Internet search engine.” Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (“The choice of material to go into a newspaper . . .—whether fair or unfair—constitute[s] the exercise of editorial control and judgment” that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.
And the court walks back its earlier conclusion -- the one that seemed to find profit-motivated "editorial judgment" to be unworthy of First Amendment protections.
Google’s actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Google’s guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.
The case is now dismissed with prejudice which bars e-ventures from complaining about Google's delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldn't. It's unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:
Of course Google can de-index sites it thinks are spam. It’s hard to believe we’re still litigating that issue in 2017; these issues were explored in suits like SearchKing and KinderStart from over a decade ago.
The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldn't prevail.
Read More | 11 Comments | Leave a Comment..
Posted on Techdirt - 15 February 2017 @ 3:43pm
CSIS (Center for Strategic and International Studies) has just released its report on encryption and it comes to the same conclusions many other reports have: encryption is good for everyone and law enforcement fears are overstated and mostly-unrealized. (h/t Kevin Bankston)
The report [PDF] opens up with this statement:
It is in the national interest to encourage the use of strong encryption. No one we interviewed in law enforcement or the intelligence community disagreed with this.
The disagreement comes when law enforcement is prevented from pursuing investigative leads because of encryption. According to FBI Director James Comey and Manhattan DA Cyrus Vance, encryption is already a huge problem for law enforcement and will only get exponentially worse in the next few years. The CSIS report rebuts both of these statements.
While encryption use is growing rapidly, the share of traffic that is both of interest to law enforcement and unrecoverable is still relatively small. Most companies use encryption that allows law enforcement agencies to recover plaintext data. Most e-mail, if it uses encryption, also allows for recovery. Currently, an estimated 18 percent of global communications traffic is end-to-end encrypted. It is estimated that 22 percent of communications traffic will be end-to-end encrypted by 2019.
This is far from the encryption apocalypse promised by Comey and Vance. There's an incremental increase taking place, not an exponential one. What could pose serious problems, though, is encryption-by-default on smartphones. As the report points out, if Android devices go the way of iPhones, 99% of the world's phones would keep law enforcement locked out.
But that's only if law enforcement isn't able to access data and communications through device manufacturer/service provider cooperation, third-party app developers, email providers, and other, more old-fashioned techniques. One sure way to beat device encryption is to obtain the passcode from the user. This won't help much when the phone's owner is dead or can't be located, but compelling the production of a password is still far from settled, constitutionally-speaking. For phones secured with a fingerprint, owners are likely out of luck. A couple of courts have already reached the conclusion that providing a fingerprint isn't testimonial and has no Fifth Amendment implications.
CSIS could have put together a better estimate on how many investigations are thwarted by encryption, but law enforcement agencies -- even those fronted by encryption opponents -- aren't interested in sharing this data with the public. The report points out that the problem remains mostly theoretical. Without data, all we have are assertions from law enforcement officials that something must be done. Failure to legislate backdoors or bans will apparently lead to a sharp uptick in criminal activity… except that's not happening either. The report points out that there's no data linking increased default encryption to increases in criminal activity.
As for the world's terrorism, encryption is seldom a barrier to investigations or surveillance. There's no shortage of access points to intercept communications while they're still decrypted (or post-encryption stripping). According to the CSIS report, 90% of the world's instant messages are still accessible by law enforcement, even without interception. With surveillance data-sharing being the new normal in the US, law enforcement agencies will be able to dip into NSA collections to obtain communications that might otherwise be inaccessible through a suspect's device.
The report notes that there's likely no consensus to be reached on the encryption issue. Because it protects both criminals and the innocent, it's difficult to see a nation's government -- at least those in the Western half of the world -- deciding to eliminate innocents' protections in hopes of nabbing a few more criminals. In the United States -- where certain rights have been long enshrined (if far too frequently ignored) -- the chance of anti-encryption legislation remains lowest. And, as the report's authors note, if the US doesn't make a move to curb encryption, it's unlikely the rest of the free world will do so on their own.
The law enforcement agencies making the most noise about encryption are doing the least to help their own cause. Most of what's offered is anecdotal, rather than data-based. According to the FBI's own testimony, it only has about 120 inaccessible phones in its possession. As for other law enforcement agencies, the numbers are mostly unknown. Those that have chosen to make their numbers public have failed to show anything more than the expected rise in inaccessible phones due to default encryption. While the locked devices may number in the hundreds (Cy Vance's office says 423 locked phones were seized in a two-year span, which -- according to the office's numbers -- is still only a third of the devices in law enforcement custody), they're still in the minority of those obtained.
These numbers will increase as the use of encryption increases, but if law enforcement and intelligence agencies don't like the way the future looks, they really only have themselves to blame. The report notes that the Snowden leaks -- which detailed massive surveillance programs operating under almost-nonexistent oversight -- prompted an encryption revival, both in terms of individuals doing more to ensure their privacy as well as well as device manufacturer encryption implementation.
Read More | 1 Comments | Leave a Comment..
Posted on Techdirt - 14 February 2017 @ 10:44am
Kamala Harris -- former California Attorney General and current US Senator -- may have failed in her attempt to take Backpage down, but her dubious legacy lives on. The same day the US Supreme Court denied certification to an appeal of a decision in favor of Backpage and its Section 230 protections, Backpage shut down its adult ads rather than face additional prosecution/persecution from misguided politicians like Harris.
While all those who went after Backpage pat themselves on the back for making NO DIFFERENCE WHATSOEVER in the battle against sex traffickers, those involved in the day-to-day work of tracking down sex traffickers down aren't nearly as thrilled.
As has been noted here on multiple occasions, shutting down a service used by some for illegal activity just buries the illegal activity even deeper underground. Backpage's adult ad closure means traffickers will be moving to other venues -- ones not being actively watched by law enforcement, no doubt including sites they're not even aware of. As for sex workers who used Backpage to advertise adult services, they've simply moved their ads to other sections of the site. So, all the grandstanding has done nothing to harm sex traffickers. It has done a bit of damage to sex workers. But it's caused the most harm to law enforcement.
David Meyer Lindenberg of Fault Lines points out that those actually involved with the fight against sex trafficking are angered by the vindictive prosecution of Backpage. It may have helped net Kamala Harris a new job where she can screw things up at the federal level, but it's done nothing to combat trafficking.
He highlights a handful of quotes from a Miami Herald article on the Backpage adult ad shutdown.
“It would be a mistake for investigators or prosecutors to assume that trafficking will decrease because of the shutdown of Backpage’s escort ads,” said Jane Anderson, a former Miami-Dade assistant state attorney who now works for AEquitas, an anti-human trafficking resource organization for prosecutors.
“In fact, investigators and prosecutors must now be even more proactive and resourceful to uncover trafficking that is occurring on lesser known websites, including other areas of Backpage.”
“It’s a symbolic crusade,” said Kimberly Mehlman-Orozco, an author and criminology professor at George Mason University who serves an expert witness in human-trafficking cases. “They’re trying to get some accolades and look like the heroes. It’s having a negative effect on the ability for law enforcement to rescue victims and prosecute offenders. The best we can do is facilitate the capabilities of police to investigate.”
That's the damage done whether or not you believe Backpage was used by sex traffickers. Realistic stats on sex trafficking are almost nonexistent and almost any law enforcement sweep designed to haul in traffickers just nets a bunch of consenting adults. What's never found is anything approaching the horror stories used to turn hysteria into perpetual funding -- the theory that thousands of teens are being forced to perform sexual acts by traffickers and (most ridiculously) shuttled around the country to serve attendees of major events ranging from the Super Bowl to local stock shows.
As Lindenberg notes, the only people celebrating this amazingly-hollow victory are those who abused their power to target a site over third-party content.
It’s notable how few people have come forward to defend what happened. The most vocal messages of support came from the participants themselves, who made a point of congratulating each other for their role in bringing it about. And when Florida prosecutors and the staff of Reason magazine agree that an act of government was ill-advised, you can be pretty sure it wasn’t the greatest idea ever.
That's how government power works. It's rarely effective, and it almost always results in unintended losses.
21 Comments | Leave a Comment..
Posted on Techdirt - 13 February 2017 @ 11:53am
PayPal is ubiquitous. And that's unfortunate. Over the years, the payment platform has earned a reputation for acting in a way that can charitably be described as "hellishly inconsistent." For little to no reason, users have found their accounts shut down or suspended. And, thanks to US laws meant to prevent the PayPal-ing of material support to foreign terrorists, PayPal has been suspending accounts for innocuous payments containing certain trigger words in the descriptions.
The latest victim of PayPal's inscrutable policies and unapproachable customer service is a small Canadian newspaper. As the CBC reports, the small paper's attempt to enter a few of its stories for consideration for national newspaper awards resulted in the bricking of both the sender's and the receiver's accounts.
A community newspaper's payment to enter a feel-good story about a family of Syrian refugees in an awards competition prompted PayPal to freeze the account of a national media organization after flagging the suspicious transaction, The Canadian Press has learned.
The weekly Flin Flon Reminder entered the article — titled "Syrian family adapts to new life" — last month as part of its submissions to the annual Canadian Community Newspaper Awards. The feature story from July 2016 outlines the challenges and triumphs as the family settled in the Manitoban town of 5,100 and the community's willingness to make them feel welcome.
The word "Syrian" set off PayPal's auto-monitor, which blocked the Flin Flon Reminder's $240 in entry fees. (To be considered for the awards, submitters must pay $60 per article submitted -- and it would appear Flin Flon submitted four of them.)
It would be one thing if the payment was flagged and then reviewed. But nothing in the story suggests PayPal took a second look at this until a larger media outfit -- the CBC -- started asking questions.
PayPal didn't limit itself to killing the sender's account. It suspended the receiver's account as well.
This week, Durnin called News Media Canada — formerly Newspaper Canada — to find out what had happened. They realized PayPal had frozen the News Media Canada account, said Nicole Bunt, who processes the awards entries.
PayPal supposedly reviews flagged payments within 72 hours. No one involved heard anything from PayPal until after the CBC's inquiries. The belated response from PayPal: "Um... US law mumble mumble mumble."
"You may be buying or selling goods or services that are regulated or prohibited by the U.S. government," PayPal said in an email to News Media Canada.
Oh, really? This is some spectacular review work by PayPal, considering both the sender and the receiver are located entirely in Canada. While US law may govern US transactions processed by the company, they should have little to no effect on completely extraterritorial transactions.
And the sole reason for PayPal's dual account nuking? The word "Syrian" being in the submission to the newspaper awards.
The note also requested a "complete and detailed explanation of the transaction" and the purpose of the payment, which identified with the story's headline.
That's the problem with keyword flagging. All it's ever going to do is produce false positives and inconvenience hundreds of non-terrorists. The algorithms deployed by PayPal are looking for terms no terrorist is going to use when transferring funds to allies. It works on the stupidest of assumptions: that memo lines are going to filled with suspicious keywords when actual nefarious transactions are taking place.
If you're going to build a US law-compliant service that relies on tragically flawed logic, the least you can do is actually review flagged transactions in a timely manner and provide actual people customers can talk to, to sort out these issues.
Instead, PayPal appears to have left this payment-vetting process to the machines and made it all but impossible to speak to someone who might be able to derive something from context. And it makes it worse by subjecting other countries to US law, whether or not the flagged transaction violates laws in the country where the funds are changing hands.
Then there's this kicker at the end of the CBC article.
PayPal did not immediately explain its process.
33 Comments | Leave a Comment..
Posted on Techdirt - 13 February 2017 @ 9:22am
Part of the reason asset forfeiture is such a problem is the lack of transparency. The funds obtained through this process are frequently hidden from the public and used to purchase everything from margarita makers to Stingray devices. The procedure through which the government takes control of citizens' assets is also shrouded in secrecy. Cases are filed against property, not the persons formerly in possession of them. The process for retrieval is purposely impenetrable, designed to make it almost impossible for petitioners to reclaim their assets.
Law enforcement officials claim that all parts of this opaque process are there to prevent drug dealing and/or terrorism, hence their reluctance to divulge the inner details of this particular mean/method. Legislators in New Jersey were hoping to end this unofficial tradition with a bill that would have demanded far more transparency from agencies involved in asset forfeiture.
S2267 passed with unanimous support in both houses of the State legislature and would have instituted the following information be submitted to the state Attorney General's office every year.
[I]nformation on the seizure of the property, including a description of the seized property; the date of seizure ; the market value of the seized property; the alleged criminal offense associated with the seizure; a description of the location at which the property was seized, including whether the property was seized from a private residence or business or during a traffic stop; if the property was seized during a traffic stop, the name of the highway, street, or road on which the property was seized and whether the vehicle was traveling northbound, southbound, eastbound or westbound;
(2) the disposition of any criminal action related to the seizure;
(3) information on forfeiture of the seized property, including:
(a) whether the forfeiture involved prima facie contraband or was enforced by civil action pursuant to N.J.S.2C:64-1 et seq., the forfeiture was a result of racketeering activity pursuant to N.J.S.2C:41-1 et seq., or the forfeited funds or property were obtained from an action involving financial facilitation of a crime pursuant to P.L.1994, c.121 (C.2C:21-23 et seq.); and
(b) whether a person with a property interest in the seized property was represented by counsel at the forfeiture proceeding, if applicable;
(4) information on the final disposition of the seized property, including whether the property was returned to the owner, destroyed, sold after forfeiture, or retained after forfeiture; and the date of disposition;
(5) information on the value of 1the1 forfeited property, including the gross amount received from 1the1 forfeiture, the total expenses deducted as part of the forfeiture action, and the net amount received from the forfeiture;
(6) whether the forfeiture resulted from an adoptive seizure; and
(7) any other information the Attorney General requires.
This information would have provided the public with valuable insight into state law enforcement's use of asset forfeiture. And there are several reasons law enforcement wouldn't want to have to turn over these details. The dirty secret of asset forfeiture is that it's not being used to take down the biggest and baddest criminals. It's far more frequently used to nickle-and-dime average citizens, with a majority of an agency's take being made up of seizures valued at well below $10,000. Vehicles are seized from grandmothers because their grandchildren drove drunk. Any cash on anyone who smells like marijuana to a police officer usually ends up being forfeited even if the person is free to go.
These details would have made the state's asset forfeiture programs looks exactly as bad as they are. New Jersey holds a D rating from the Institute for Justice, which performs annual reviews of states' forfeiture programs, rating them for damage done to citizens' rights and property. One of the aspects of forfeiture that aided in the state's D rating is the lack of transparency and almost-nonexistent reporting requirements.
County prosecutors across the state collected $72 million in forfeiture proceeds from 2009 to 2013, including more than $57 million in cash and vehicles worth $9 million, according to the report.
In addition, the report found county agencies received an average of $7 million a year from federal "equitable sharing" programs that give state and local agencies a cut when they serve on federal task forces.
But the millions tallied by the institute "are a vast undercount for what's going on in New Jersey," according to Dick Carpenter, the group's director of strategic research and one of the authors of the report.
Carpenter said it's difficult to get the whole picture in New Jersey because while the state does collect some data, it was not able to provide the group with comprehensive figures for local and state law enforcement agencies.
"The transparency in New Jersey is pretty poor," he said. "The ability for average folks -- or even elected officials -- to know what's going on in their state or municipality just isn't there."
None of this matters now, at least not for the foreseeable future. Governor Chris Christie has decided the public isn't on the "need to know" list as far as asset forfeiture is concerned.
Gov. Chris Christie on Monday vetoed a bill that would have required county and state prosecutors to publish information about how they use civil courts to seize property from criminal investigations.
In order to fend off any attempts at a veto override, Christie has proposed his own law enforcement-friendly "fixes" to the rejected legislation.
Christie instead recommended a quarterly report in which prosecutors identify seized assets and detail the legal proceedings by which they were seized.
Under Christie's proposal, prosecutors also would not have to disclose why they seized an asset or for what purpose it would be used.
Christie's "compromise" does nothing. Quarterly reports are already filed with the attorney general, but they're withheld from the public. The details included are minimal and provide no useful insight into law enforcement's forfeiture activities. And it's not as though the AG's office goes after agencies for incomplete or nonexistent reporting. There appears to be no consequences for agencies that fail to comply with these minimal reporting requirements.
Of course, Christie's "compromise" is predicated on a ridiculous pretense.
The governor said his proposed changes would "strike a balance between government transparency and protecting law enforcement operations and personnel."
Protect law enforcement from what exactly? Transparency? Accountability? Criticism? There's nothing in the information the bill demanded that would make it anything more dangerous for law enforcement. It might inform the public where law enforcement likes to go diving for dollars, but the only negative thing likely to happen to law enforcement is an increase in informed criticism.
In Christie's mouth, the words "government transparency" are meaningless -- as meaningless in his buzzword jumbling, bootlicking excuse for kicking the legislature's unanimously-supported bill to the curb.
30 Comments | Leave a Comment..
Posted on Techdirt - 13 February 2017 @ 6:24am
The state of Ohio has had its problems with speed cameras. Back in 2010, the city of New Garfield refunded $100,000 in fines collected in violation of its speed camera policy. The city told the public that drivers would only be ticketed for driving more than eleven mph over the speed limit [... which makes one question the purpose of its speed limits]. Plenty of drivers got dinged for exceeding the speed limit by less than the arbitrary cutoff, resulting in the mass refund.
Not that this will necessarily keep anyone from being ticketed, speeding or not. In the same year, an Ohio court ruled that an officer's guesstimate of someone's speed is just as reliable as radar or speed cameras when it comes to testimony. Given how many speed cameras have ticketed parked cars and brick walls, this is somewhat of a "close case" when it comes to testimonial accuracy.
The Newspaper -- which stays on top of every speed/traffic cam-related development [note: they really HATE traffic cams in France…] -- reports that New Miami, Ohio, is being forced to hand back every cent of its speed camera take as the result of a court decision.
New Miami, Ohio broke the law, it was caught, and now it will have to repay $3,066,523 worth of tickets. That was the judgment rendered Wednesday by Butler County Court of Common Pleas Judge Michael A. Oster Jr.
"If the government has created an unconstitutional law/ordinance that has taken people's money without affording them the necessary due process protections, should not justice demand, and the law require, restitution of that money to the people?" Oster asked at the opening of his ruling. "Once the complexities of the law are analyzed, the answer is simple: Yes."
As the court sees it, the system set up by the town eliminates a crucial Constitutional right. It's very likely the town knew its actions were unconstitutional, but it probably never assumed it would have to refund $3 million in ill-gotten revenue.
New Miami, Ohio, is more speed trap than town, as the court order [PDF] explains:
The Village of New Miami is in St. Clair Township located just north of the city of Hamilton. New Miami is less than one square mile in size (.95 square miles) and has a population of 2,249 people based on the 2010 United States Census Bureau. US. 127, a major north-south highway, runs through the Village and is the primary location where the speed cameras were located.
Despite its blink-and-you'll-miss-it size, the village still issued an incredible amount of tickets, thanks in part to its freebie contract with camera provider Blue Line Solutions (BLS). The contract it signed required the cameras (of which there were at least two) to be in operation for a minimum of 100 hours a month. This isn't unmanned time, as the camera system requires an officer to pull a trigger and capture an image of the speeding driver to send to the processing company that issues the tickets.
BLS gave the town the cameras for free, under the assumption the investment would pay off with operating times of 100 hours per month minimum per camera.
After review by a Village of New Miami police supervisor, the ticket is mailed to the registered owner and a fine of $95 is included.
The village and Blue Line Solutions, LLC split each $95 fine with one another. The village keeps 65 percent of the $95 fine while the private camera company keeps 35 percent.
The speed cameras as free for the village, provided to the village by the private contractor under the five year deal.
To ensure the revenue flow wasn't disrupted by angry drivers and/or insurance companies, the town rewrote its statutes to cut both the criminal justice system and insurance companies out of the equation.
Village of New Miami records show the small Butler County village created its own speeding law in 1991, allowing the village to charge speeding violations under a civil ordinance instead of under the state’s uniform traffic statute.
Under the village ordinance, drivers caught speeding in New Miami would not be subjected to the state’s point system, which would suspend a driver who accrued 12 point violations in a two year period. As a result, insurance companies would not know the conduct of the drivers they cover.
None of that matters now that the court has found the village's system unconstitutional and the town responsible for paying back members of this class action lawsuit. And this $3 million will all be coming from New Miami. The camera manufacturer has no liability if the cameras are deployed unlawfully. That's all on the municipality, which will probably have to screw its own residents to issue refunds on the hundreds of bogus tickets as the money it's unlawfully collected over the years hasn't just been sitting around collecting interest.
Read More | 51 Comments | Leave a Comment..
Posted on Techdirt - 13 February 2017 @ 3:23am
The Christian Science Monitor has posted an interesting article detailing some (but certainly not all) of the ways the US Secret Service can obtain data from locked phones. In all the cases discussed in the article, the data itself wasn't encrypted, but was otherwise inaccessible without the password.
In addition to using third-party forensic software and hardware (like that of recently-hacked Cellebrite), the Secret Service also engages in a lot of manual labor to recover phone data. In one instance, the Secret Service was able to pull out the phone's flash memory and grab data from it -- although this process took it nearly a week.
A Huawei phone obtained by the agency called for a very unique brute force approach.
In another case, involving a password-locked Huawei H883G phone, agents bought multiple copies of the same model and practiced carefully polishing off material from the back of the device with an automated sander.
Often, agents can apply heat to phones to open them up. But Huawei built this particular model in a way that applying too much heat could damage its memory. So, agents sanded off material from the back of the Huawei H883G device to excise sexually explicit images for a case involving a different New Hampshire man.
What's not contained in the article are complaints about encryption. Either the Secret Service doesn't encounter that much of it, or it just doesn't find it to be that much of an obstacle when it does. Dave Aitel, a former NSA research scientist, is the only person quoted in the article who says anything about encryption -- and even he believes the Secret Service's combination of hardware and software is a better approach than giving government agencies encryption backdoors.
Watering down encryption on phones is "not a good path," says Dave Aitel, a former National Security Agency research scientist who currently runs the cybersecurity firm Immunity. "The path of hacking is much nicer – from a policy perspective."
"If a device is using encryption at rest ... that could be problematic, especially if the implementation of the encryption is good,” he said.
It could be problematic, but encryption keeps bad guys out the same way it keeps the good guys out. And there's nothing covered here that suggests the Secret Service is as opposed to encryption as FBI Director James Comey is. Granted, the Secret Service probably runs into fewer encrypted phones than the FBI does, but even in its more-limited selection, it seems to be making the progress it needs without suggesting the government force companies to give them all-access backdoor keys.
One other somewhat surprising revelation contained in the piece is the fact that small phone manufacturers might (inadvertently) be making more secure phones than the Apples and Samsungs of the world. Why? Because the limited market draws less interest from government contractors who develop cell phone-cracking tools. If there are fewer government buyers interested in cracking Brand X, no company is going to expend research resources trying to find a way around the phone's built-in protections.
"A cheaper phone that might be less popular, it seems like it'd be easier for the vendors to get into it," says [James] Darnell of the Secret Service phone lab. "But it's actually quite the opposite."
What's covered here indicates James Comey's "sky is
falling darkening" proclamations are pretty much his alone. Law enforcement at large isn't demanding encryption backdoors. It's just the same handful of holdouts, albeit ones with inordinately-large soapboxes.
10 Comments | Leave a Comment..
Posted on Techdirt - 10 February 2017 @ 7:39pm
The UK's top spy agencies have been known to place journalists under surveillance. Leaked Snowden documents showed GCHQ collected emails from news organizations such as the New York Times, BBC, and Washington Post. More accusations of spying were raised by UK journalists, detailing what appeared to be a clear abuse of the country's anti-terror laws -- laws particularly prone to exploitation thanks to generous loopholes and a minimum of oversight.
It wasn't just spy agencies doing the spying. In the case of the UK journalists, it was also local law enforcement digging through their emails and phone calls in hopes of identifying sources and leakers. More evidence of police surveillance of journalists has come to light, as reported by the Associated Press. Once again, it's law enforcement looking to uncover sources and whistleblowers, rather than terrorists or criminals.
British journalist Julia Breen's scoop about racism at her local police force didn't just get her on the front page, it got her put under surveillance.
In the months that followed Breen's exclusive, investigators logged her calls, those of her colleague Graeme Hetherington and even their modest-sized newspaper's busy switchboard in an effort to unmask their sources. The two were stunned when they eventually discovered the scale of the spying.
"It just never even crossed our minds," Breen said in a recent interview in the newsroom of The Northern Echo, in the English market town of Darlington. "I don't know if I was quite naive, but on a regional newspaper you don't expect your local police force to do this."
Mark Dias, a Cleveland Police officer, came forward and admitted he was the source for Breen's story, but that didn't stop the department from obtaining three days worth of calls to the paper's switchboard, along with logs of calls to and from three of the journalists who worked for the paper.
Once the police were tapped in, they just kept collecting call records.
Although none of the seized records included the content of the individuals' conversations, collectively the length, timing and nature of hundreds of phone calls can be extraordinarily revealing. It was later calculated that the surveillance covered over 1 million minutes of calling time.
And for what? The whistleblower the police were interested in had already outed himself. (And placed under investigation by his department.) Anything beyond that point was purely a fishing expedition for new sources/whistleblowers -- presumably in hopes of heading off more negative press. In addition to the journalists and Dias, Cleveland Police gathered information on communications with a police union official, and a lawyer that Dias and the union official were working with.
Since this came to light, the department has apologized to all of its snooping targets. It has also promised to perform an internal review of its last six years of policework to see if other surveillance abuses have taken place. This was more likely prompted by a court decision calling the surveillance unlawful than the department's innate desire to do the right thing. It will be doing it now, but only after being caught doing things it shouldn't have been doing.
18 Comments | Leave a Comment..
Posted on Techdirt - 10 February 2017 @ 11:15am
More Executive Orders have been issued by Donald Trump. The latest skew heavily in favor of Trump's recent conversational partners: members of law enforcement.
Earlier this week in a meeting with several sheriffs, Trump voiced his support for asset forfeiture and made an off-hand comment about ruining the careers of legislators engaged in reform efforts. Great fun was had by all… mostly Trump and perhaps a sheriff or two.
One order does nothing more than what large bureaucracies do best: institute task forces. Trump's task force is charged with "crime reduction and public safety." The DOJ will head this up and ask for cooperation from local law enforcement agencies. The public safety priorities are definitely Trump's, though.
A focus on law and order and the safety and security of the American people requires a commitment to enforcing the law and developing policies that comprehensively address illegal immigration, drug trafficking, and violent crime.
Illegal immigration is apparently the most dangerous of the three listed, presumably because it's the only one that justifies the erection of a Mexico-funded wall and the existence of a previous, possibly-unconstitutional executive order banning visitors from certain Muslim countries.
The scary part is a few paragraphs deep:
identify deficiencies in existing laws that have made them less effective in reducing crime and propose new legislation that could be enacted to improve public safety and reduce crime
If there's anything this country has too much of, it's laws. The president wants more laws, or existing ones patched up, to better reduce criminal activity. Given the state of mind of many in law enforcement, any perceived "deficiencies" in existing laws are likely concessions made to Constitutionality. You know, the sort of things cops and prosecutors call "technicalities" -- like the Fourth through Sixth Amendments.
Arriving alongside the Task Force order is one directing law enforcement agencies to get a better grip on "transnational criminal organizations." In short, Trump wants to reboot the Drug War and do all the things that have failed for the past 40 years harder, faster, and with more of a focus on foreigners.
To kickstart this new War, Trump has declared public safety and national security to be the same thing.
It shall be the policy of the executive branch to:
(a) strengthen enforcement of Federal law in order to thwart transnational criminal organizations and subsidiary organizations, including criminal gangs, cartels, racketeering organizations, and other groups engaged in illicit activities that present a threat to public safety and national security and that are related to, for example:
(i) the illegal smuggling and trafficking of humans, drugs or other substances, wildlife, and weapons;
(ii) corruption, cybercrime, fraud, financial crimes, and intellectual-property theft; or
(iii) the illegal concealment or transfer of proceeds derived from such illicit activities.
Just like that, RICO violations, drug dealing, IP "theft," and depositing money in a bank in a certain way are all now considered threats to national security. The lessons not learned in the aftermath of 9/11 attacks continue to pay dividends for those seeking increased government power.
And once again, Trump makes sure non-US citizens are singled out for their inherent criminal nature/national security threatening.
...pursue and support additional efforts to prevent the operational success of transnational criminal organizations and subsidiary organizations within and beyond the United States, to include prosecution of ancillary criminal offenses, such as immigration fraud and visa fraud, and the seizure of the implements of such organizations and forfeiture of the proceeds of their criminal activity.
US persons' data and communications already being shared by the NSA with at least 16 federal agencies will also be shared with foreign law enforcement.
work to increase intelligence and law enforcement information sharing with foreign partners battling transnational criminal organizations and subsidiary organizations, and to enhance international operational capabilities and cooperation
And Trump's promise to ease restrictions on asset forfeiture appears to get a nod here:
identify Federal agencies' practices, any absence of practices, and funding needs that might hinder Federal efforts to effectively combat transnational criminal organizations and subsidiary organizations
Because forfeiture has always been defended with claims that it's used to dismantle criminal cartels, even when it's just being used to take cars away from drunk drivers and tuition money from college students.
The last order appears to call for a federal "Blue Lives Matters" law:
pursue appropriate legislation, consistent with the Constitution's regime of limited and enumerated Federal powers, that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.
More specifically, the order says that the federal government will explore new definitions of criminal activity if it appears to be directed at law enforcement officers and implement harsher sentences for these crimes.
...make recommendations to the President for legislation to address the protection and safety of Federal, State, tribal, and local law enforcement officers, including, if warranted, legislation defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence against Federal, State, tribal, and local law enforcement officers, as well as for related crimes
The "for related crimes" shows this won't just be used to punish direct attacks on law enforcement officers. It could be expanded to turn any number of "contempt of cop" charges (obstruction, resisting arrest, failure to identify, etc.) into criminal acts punished by extra-long jail sentences and hefty fines.
Also in this order: a nod to the 1033 program, which -- until (briefly) curtailed by the Obama administration -- distributed used (and new) military gear to local PDs for little to no cost.
(f) thoroughly evaluate all grant funding programs currently administered by the Department to determine the extent to which its grant funding supports and protects Federal, State, tribal, and local law enforcement officers; and
(g) recommend to the President any changes to grant funding, based on the evaluation required by subsection (f) of this section, including recommendations for legislation, as appropriate, to adequately support and protect Federal, State, tribal, and local law enforcement officers.
If this goes ahead as planned, small town cops will once again be riding high in armored vehicles, toting grenade launchers, and picking up Stingray devices without having to break the budget.
It was clear during his campaign that Trump was going to offer unconditional backing to the law enforcement community. And here it is, in three executive orders. They're all predicated on something Trump keeps repeating but that simply isn't true: law enforcement officers are not in more danger than they've been in years. The opposite is true. While there was an increase in officer deaths last year, it followed several years of steep declines. [Image via Reason]
And our cities aren't the crime-filled nightmares Trump insists they are. The national crime rate is still at historic lows. There are a few outliers on the scale, but that's the case every year, no matter where the national average sits.
On the other hand, there has been zero appreciable decline in the number of citizens killed by police officers. While crime rates remain low, this brand of killing hasn't. Through February 9th, 137 people have been killed by law enforcement, which puts this at 1,250 for the year if this pace continues. Last year, officers killed somewhere between 1,092 and 1,153 people (depending on whose count you go with). So, while crime rates remain low and officer safety remains high, people are being killed by officers at a faster pace than last year.
But these orders have no place for facts. And they indicate a willingness to for this president to institute policies reflecting his own misconceptions, rather than the nation's reality.
60 Comments | Leave a Comment..
Posted on Techdirt - 10 February 2017 @ 9:38am
Thanks to FOIA requests (and lawsuits), the ACLU has gathered enough documents to provide a comprehensive report [PDF] on the worthlessness of the TSA's "Behavioral Detection" program. Meant to give the agency a better way of proactively thwarting acts of terrorism, the program instead opts for lazy profiling, dubious readings of behavioral cues, and junk science.
The documents show the evolution of the behavior detection program and make clear the extent to which it is a program of surveillance of unsuspecting travelers based on unreliable indicators. “Behavior detection officers,” some of them dressed in plain clothes, scrutinize travelers at airports for over 90 behaviors that the TSA associates with stress, fear, or deception, looking for what the TSA calls signs of “mal-intent.” The reliability of these so-called indicators is not supported by the scientific studies in the TSA files. The behavior detection officers may then engage travelers in “casual conversation” that is actually an effort to probe the basis for any purported signs of deception. When the officers think they perceive those behaviors, they follow the travelers, subject them to additional screening, and at times bring in law enforcement officers who can investigate them further.
The TSA has repeatedly claimed that the behavior detection program is grounded in valid science, but the records that the ACLU obtained show that the TSA has in its possession a significant body of research that contradicts those claims. The records include numerous academic studies and articles that directly undermine the premise of the program: the notion that TSA officers can identify threats to aviation security with some reliability based on specific behaviors in an airport setting. In fact, the scientific literature in the TSA’s own files reinforces that deception detection is inherently unreliable, and that many of the behaviors the TSA is apparently relying on are actually useless in detecting deception. The documents further show that the TSA either overstated the scientific validity of behavior detection techniques in communications with members of Congress and government auditors, or did not disclose information that discredited the program’s scientific validity.
There's nothing good in the ACLU's findings. In addition to the contradictory lists of "behavioral indicators" that would make pretty much every traveler suspicious, the documents also include a "Behavioral Detection" presentation [PDF] that shows the compiler's inherent bias. For no appropriate reason, the presentation includes the following images:
Right above these questionable images is something just as questionable: a profile of "female suicide bombers" that pretty much encompasses the entirety of the female gender.
If you can't read/see the picture, the female suicide bomber profiles reads as follows:
Single, married, mothers or grandmothers
High school and college students
Working professionals such as lawyers, journalists, or medical practitioners
Devout or non-devout in religious beliefs
Intelligent, charming, and attractive
Very active in their cause
The cost of this program -- which simultaneously caters to biases while providing little in the way of useful targeting -- runs in the billions. In exchange, US taxpayers have received almost nothing that makes air travel safer. What they have obtained is the "opportunity" to be questioned without being detained, as TSA agents attempt to apply contradictory non-science to "casual" conversations most travelers feel compelled to engage in.
Engaging in mock-casual conversation with TSA agents is guaranteed to result in some level of suspicion, as it would be almost impossible not to.
The TSA’s list of behavioral indicators—long held secret but leaked to the press in March 2015—deepens our concerns about the program and calls into question whether it could ever be implemented neutrally and objectively. The list includes conduct as commonplace as being late for a flight, yawning, whistling, or rubbing one’s hands together. Other “indicators” are unavoidably subjective: appearing confused, “wearing improper attire,” “appearing not to understand questions,” or displaying “exaggerated emotions.”
In some cases, the TSA indicators place travelers in the difficult position of seeming deceptive to the TSA no matter what they do—whether they “give non-answers” to questions or they are “overly specific with answers”; whether they are “gazing down” or “constantly looking at other travelers or associates”; whether they have “no or little direct eye contact” or they have “widely open staring eyes.”
Putting agents in the position of sussing out potential terrorists with a long list of contradictory indicators does travelers and their safety no favors. When nothing can be reconciled against the TSA's disproven "science," agents are more likely to fall back on their own biases when vetting travelers. Hence the large number of non-white fliers "randomly" selected for additional screening.
The program hasn't made the TSA smarter or more nimble. All it's done is made flying even more unpleasant, especially for those that fit the "profile" the TSA provides… which is damn near everyone attempting to board a plane.
Read More | 22 Comments | Leave a Comment..
Posted on Techdirt - 10 February 2017 @ 8:32am
One of several service providers to sue the government over its gag orders, Microsoft received some good news from a federal judge in its lawsuit against the DOJ. Microsoft is challenging gag orders attached to demands for data and communications, which the DOJ orders is statutorily-supported by the Electronic Communications Privacy Act (ECPA) and, if not, by supposed national security concerns.
As Microsoft pointed out in its lawsuit, the government rarely justifies its secrecy demands and frequently issues gag orders with no endpoint. Microsoft received nearly 2,800 of these gag-ordered requests over an 18-month period, with over two-thirds of them demanding silence indefinitely.
The good news is a federal judge has (partially) waved away the DOJ's motion to dismiss and will allow Microsoft to proceed with its lawsuit, as Politico's Josh Gerstein reports.
U.S, District Court Judge James Robart issued a 47-page opinion [PDF] Thursday allowing Microsoft to proceed with a lawsuit claiming a First Amendment violation when the government restricts internet providers from notifying subscribers about requests for their data.
"The orders at issue here are more analogous to permanent injunctions preventing speech from taking place before it occurs," Robart wrote. "The court concludes that Microsoft has alleged sufficient facts that when taken as true state a claim that certain provisions of Section 2705(b) fail strict scrutiny review and violate the First Amendment."
Section 2705(b) refers to the Stored Communications Act, which allows the government demand notice be withheld under certain circumstances, unless otherwise forbidden to by another section of the same law (Section 2703). Microsoft is looking to have both sections declared unconstitutional, especially given the severe upheaval the communications landscape has undergone in the thirty years since the law was passed.
Microsoft contends that Section 2705(b) is unconstitutional facially and as applied because it violates the First Amendment right of a business to “talk to [the business’s] customers and to discuss how the government conducts its investigations.” Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes impermissible prior restraints on speech, imposes impermissible content-based restrictions on speech, and improperly inhibits the public’s right to access search warrants. Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially and as applied because they violate the Fourth Amendment right of “people and businesses . . . to know if the government searches or seizes their property.”
Microsoft contends that the statutes are facially invalid because they allow the government to (1) forgo notifying individuals of searches and seizures, and (2) obtain secrecy orders that “prohibit providers from telling customers when the government has accessed their private information” without constitutionally sufficient proof and without sufficient tailoring.
The DOJ argued Microsoft didn't have standing to bring this complaint, as its Fourth Amendment rights aren't implicated. Only its customers' are. But the court points out that, if nothing else, the company does have standing to pursue its claims of First Amendment violations.
The court finds that Microsoft has sufficiently alleged an injury-in-fact and a likelihood of future injury. Microsoft alleges “an invasion of” its “legally protected interest” in speaking about government investigations due to indefinite nondisclosure orders issued pursuant to Section 2705(b)... The court concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking about government investigations implicate Microsoft’s First Amendment rights.
The court goes on to point out that frequent use of indefinite gag orders certainly appears to be unconstitutional, given that they act as a "forever" application of prior restraint.
The court also concludes that Microsoft's assertions of further civil injuries aren't speculative, as the DOJ claimed. Judge Robart points to the government's own actions as evidence of continued harm to Microsoft's civil liberties.
Microsoft bolsters its prediction by alleging that over a 20-month period preceding this lawsuit, the Government sought and obtained 3,250 orders–at least 4504 of which accompanied search warrants—that contained indefinite nondisclosure provisions. In addition, Microsoft alleges that in this District alone, it has received at least 63 such orders since September 2014. Because these orders have been frequent and issued recently, the Government will likely continue to seek and obtain them. Accordingly, Microsoft’s “fears” of similar injuries in the future are not “merely speculative.”
Unfortunately, the court won't grant Microsoft the standing to represent its users for Fourth Amendment purposes. Judge Robart points to a whole bunch of precedential decisions declaring otherwise, but at least takes a bit of time to discuss how denying Microsoft this opportunity likely means denying several of its users any sort of redress.
The court acknowledges the difficult situation this doctrine creates for customers subject to government searches and seizures under Sections 2703 and 2705(b). As Microsoft alleges, the indefinite nondisclosure orders allowed under Section 2705(b) mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy... For this reason, some of Microsoft’s customers will be practically unable to vindicate their own Fourth Amendment rights.
Expect the government to make heavy use of its "national security" mantra as it defends itself in this case. Those magic words have allowed all sorts of civil liberties violations in the past and still tend to move courts to the government's side when deployed in DOJ motions. If the court does side with Microsoft when this is all said and done, it's likely the remedy won't be a restriction on gag orders, but more likely something analogous to the rules that now govern National Security Letters -- periodic review of gag orders by the government and better avenues for raising challenges for companies affected. Then again, the court could simply punt it back to legislators and push them to fix the 30-year-old law whose dubious constitutionality is the source of numerous lawsuits against the federal government.
Read More | 13 Comments | Leave a Comment..
Posted on Techdirt - 10 February 2017 @ 6:32am
The Texas legislature's proposed cyberbullying bill is gathering more opposition. As we covered here last month, the "for the children" bill was meeting resistance from groups actually concerned about the welfare of the state's children.
According to the Texas branch of the National Association of Social Workers, the bill would put more students in harm's way by trimming back counseling and other resources in favor of dumping the problem in the lap of law enforcement. Not only that, but the bill would expand the jurisdiction of school disciplinary procedures to cover actions taken by students off-campus.
The bill has additional problems that need to be addressed before it's passed, as the EFF points out. One of the more dangerous aspects of the proposed legislation is its presumptive stripping of anonymity. Rather than let a court decide whether the party bringing charges has earned the right to uncover the identity of an online commenter, the law hands that power to the aggrieved person before any legal proceedings have commenced.
The bill authorizes subpoenas to investigate potential legal claims arising from any undefined “injury” to a minor before a lawsuit is ever filed. This new process would threaten the First Amendment right to communicate anonymously on the Internet. This right is especially important for people who belong to unpopular groups or who express unpopular messages, who might otherwise stay silent rather than risk retaliation.
In the hypothetical above, suppose the second student anonymously blogged about the classroom comments of the first student, and concluded, “only a jerk would say this in class.” The first student might try to use the bill’s pre-suit subpoena process to unmask the anonymous blogger, based on the pretext of a highly dubious defamation claim. The risk of unmasking would silence many anonymous speakers.
Courts have allowed these efforts to proceed, but this has usually happened after the injured party has made its case for unmasking. This is the "for the children" aspect of the proposal getting in its own way. By presuming the normal legalities of pursuing the identity of anonymous speakers don't apply when the victim is a minor, the law's unintended consequences would harm a greater number of minors who would either be unmasked prematurely or discouraged from participating in online speech.
The EFF has sent a letter [PDF] to the state's legislature opposing the bill as written. It points out other flaws in the bill's language that would either chill speech or severely damage the future of minors caught up in its broad language. If the bill passes unaltered, it's highly unlikely it would survive a constitutional challenge. Too much is left to the discretion of administrators and law enforcement officers employed by schools. The bill says vague things about "rights," but gives these entities the power to decide whose rights are more equal than others.
The Texas bill would expand the power of school officials to discipline youths for “cyberbullying.” The bill’s vague and overbroad definition of that term would include a single email from one student to another that “infringes on the rights of the victim at school.” Those “rights” are not defined.
School officials might use this new power to silence unpopular speech by the very students that some legislators may wish to protect. Suppose that in a current events class, one student said they oppose gay marriage or Black Lives Matter protesters. Suppose further that in response, the leader of that school’s Gay-Straight Alliance or NAACP chapter sent the first student a critical email that concluded, “I wish you would keep your opinion to yourself.” School officials might determine that the second student’s email infringed on the first student’s right to speak in class, and thus impose discipline for sending the email.
Those who support this sort of legislation like to believe no one involved in enforcing the law would interpret the language in such a ridiculous fashion. But as we've seen time and time again, far too many school administrators are capable of interpreting policies and laws in the most unreasonable way possible.
Read More | 15 Comments | Leave a Comment..
Posted on Techdirt - 9 February 2017 @ 10:51am
It's still very early in the Trump presidency, but so far, things aren't looking good. Overt and implicit threats to freedom of speech continue to linger in the air. Recent comments suggest Trump will look to roll back the few measures taken over the last few years to curb asset forfeiture abuse. Wording in one of President Trump's first presidential statements suggests the administration is going to value "law and order" over citizens' rights. Then there's the travel ban, which is being contested in federal courts.
We're now seeing a rollback of the few transparency and accountability objectives the supposed-Most Transparent President Ever managed to accomplish over eight years of generally making things worse on both fronts.
This follows Trump's secrecy during his presidential campaign, where he shrugged off over four decades of precedent by refusing to release his tax returns. He's made it clear on multiple occasions -- while standing in front of a memorial to dead CIA operatives and during his Black History Month speech -- that he does not trust the media. But the actions taken during the first few weeks of his presidency suggest he also does not trust the general public.
The White House comment line is shut down. New signatures aren’t being counted on petitions posted on the White House’s website. Federal agencies are not allowed to respond to requests.
Transcripts, executive orders and news releases aren’t being posted online. Social media accounts, including Flickr, Pinterest and Tumblr, are no longer in use. Sending information to the Federal Register, the daily journal of the U.S. government, is delayed.
Steve Bannon, Trump's top advisor, has a permanent seat at the National Security Council and seems to be eliminating any paper trail that may result from those meetings. Several agencies have been muzzled by the administration, which has informed them that everything -- including press releases, blog posts, and social media interactions -- will be "centrally-managed" and run through the White House's "digital strategist." The "We the People" petition page lives on, but no one in the administration has given any indication whether the White House will actually be responding to these petitions.
These actions appear to be a concerted effort to run a top-down White House -- one that will determine the stance of every federal agency to ensure they stay on message. While some coherence is preferable to multiple opposing viewpoints on issues of public concern, the removal of the public from the equation is distressing.
As the McClatchy article points out, it's not just social media accounts and federal register postings that have been affected. It's also the few "direct" lines of communication the public has with the administration.
Cottmeyer, a self-described moderate Republican who has called the comment line for more than a decade, wants to speak to someone at the White House about Trump’s decision to pull out of the massive Trans-Pacific Partnership trade agreement, which she thinks will hurt her state’s economy.
But when she calls 202-456-1111 she gets a recording: “Thank you for calling the White House comments line. The comment line is currently closed. But your comment is important to the president.” It then refers her to www.whitehouse.gov/contact – or Facebook, where the White House is accepting comments on its posts, but not messages.
While some of this may smooth out as the administration becomes more comfortable with the inner workings of the White House, these early steps don't do much to indicate better, more transparent/accountable days are ahead. If anything, they give the impression that the White House isn't going to act as the public's servant, but rather a podium from which orders and directives are issued. Questions and comments are not only discouraged, but they appear to be considered completely irrelevant to the political process.
73 Comments | Leave a Comment..
Posted on Techdirt - 9 February 2017 @ 9:43am
Here comes some more law and order, courtesy of our new law and order President. President Trump met with a group of sheriffs on Tuesday and offered to start rolling back civil asset forfeiture reforms. Apparently, it's time to reset the clock on forfeiture, bringing us back to a time when the process wasn't so heavily-criticized. But Trump's not offering to curb abuse. He just fails to see why so many people think it's a bad idea.
President Donald Trump said on Tuesday there was "no reason" to curb law enforcement agencies that seize cash, vehicles and other assets of people suspected of crimes, a practice that some lawmakers and activists have criticized for denying legal rights.
The issue of civil asset forfeiture, created to disrupt the activities of organized crime groups, arose when sheriffs from around the United States told Trump at a White House meeting that they were under pressure to ease the practice.
"I'd like to look into that," Trump said. "There's no reason for that."
Oh, there's plenty of reason for that. But Trump is unequivocally on the side of law enforcement, no matter how much of an abusive farce asset forfeiture has become. Trump should have limited his comments to promising to look into it -- something he clearly hasn't done. A little bit of information would go a long way. But, as Scott Greenfield points out, information-gathering isn't something Trump's much interested in.
[T]he President of the United States doesn’t know the first thing about asset forfeiture. He has no clue how it started, what problems have since developed, the in-depth discussions of why it’s wrong, how it’s wrong, how it destroys the lives of the poor schmuck who made the mistake of driving down the wrong stretch of road with out-of-state plates.
The problem isn’t that “there’s no reason,” but that Trump doesn’t know the reason, and doesn’t find it worth his very valuable time to learn the reason before spouting off.
It would have been damaging enough if Trump had left it there. But he didn't. As the sheriff continued to complain about not being able to take property from people without a conviction, Trump continued to insert his foot deeper into his mouth.
At a meeting Tuesday with sheriffs from around the country, Sheriff Harold Eavenson complained about a state senator who wanted to make it harder for law enforcement to get control of assets forfeited by drug traffickers.
"Do you want to give his name? We'll destroy his career," Trump offered.
LOL. A threat from the most powerful politician in the world. Hilarious. Sure, it's a joke. Trump's not going to destroy the unnamed senator's career. I mean, I don't think he is. The sheriff didn't offer a name or any other information that might get the destruction process started and, most likely, Trump immediately forgot about his stupid joke the minute the meeting ended.
But still, it's a horrible thing to hear coming from a president's mouth, even if it was just a very poor joke. The two Texas senators who have been pushing the hardest for asset forfeiture reforms weren't very amused by Trump's comment.
Senators Konni Burton and Juan Hinojosa both offered statements in response. Here's Burton's (h/t CJ Ciaramella):
I have never met with Sheriff Eavenson, nor even heard of him before yesterday. However, I take exception to his comments on asset forfeiture reform.
While I certainly want law enforcement to have the tools necessary to combat large criminal enterprises, we must be vigilant to safeguard the rights of everyday citizens from potential abuse. Do not be mistaken or misled: this is not strictly a law enforcement issue; this is a property rights issue.
Property rights are one of the foundational rights in any free society and the taking of property by government is no small matter. Requiring the government to secure a criminal conviction before permanently taking property from citizens is simply commonsense. We would not stand for anything less when it comes to our personal liberty or freedom; why should we allow our property to be taken so easily?
I do not know and have not met with Sheriff Harold Eavenson of Rockwall County. And quite frankly, I don't pay much attention to what President Trump says anymore. However, the asset forfeiture bills I have authored and co-authored will not interfere with our law enforcement agencies' ability to do their jobs. Instead, these bills are an important protection for Texans' property rights and civil liberties. I have taken an oath to protect and defend the Constitution of the United States and Texas and intend to do just that by protecting the rights of people and property.
All in all, Trump's meeting with law enforcement officials sends discouraging signals. The rights of the many will be subject to the needs of the few. The administration has already threatened to strip funding from the DOJ's Civil Rights Division -- the one part of the agency that actually does anything to head off future misconduct and abusive behavior by the nation's law enforcement agencies. The comments made in this meeting suggest civil liberties are very low on this administration's list of priorities.
41 Comments | Leave a Comment..
Posted on Techdirt - 9 February 2017 @ 8:41am
Last summer, the DHS started asking visitors to the US to supply their social media handles. It was all on a strictly voluntary basis, of course. But that doesn't mean some immigrants and visa seekers didn't do exactly as they were asked, either due to a language barrier or figuring that turning down this request might harm their chances of entering the country.
Six months later, the DHS made it more official, unofficially. An "optional" section in the DHS's online visa application process asked for account info for multiple social media platforms, including (strangely) Github and JustPasteIt. Again, officials assured everyone this was optional and the information was to be used to assess the threat levels of incoming foreigners. Again, the DHS probably harvested a fair amount of information despite the optional nature of the request. Like any cop asking if you'd "mind if they look around the car a little bit," the request carried unspoken threats that things might be a bit more difficult if the request was denied.
Now, news comes that the DHS is planning on going even further. Say goodbye to optional social media account disclosure. The DHS wants to be inside travelers' [social media accounts], according to this report from Federal Computer Week.
John Kelly, the new secretary of the Department of Homeland Security, testified that foreign travelers coming to the United States could be required to give up social media passwords to border officials as a condition of entry.
"We want to say, for instance, which websites do you visit, and give us your passwords, so we can see what they do on the internet," he said at a Feb. 7 House Homeland Security hearing, his first congressional hearing since his Senate confirmation. "If they don't want to give us that information, they don't come in."
Thanks, Trump. Kelly noted that the recent, not-even-fully-legal-yet travel ban has given the DHS the perfect excuse to start behaving in a more totalitarian fashion.
[H]e added that President Donald Trump's freeze on entry to the U.S. by citizens of seven countries, "is giving us an opportunity… to get more serious than we have been about how we look at people coming into the United States."
Perhaps this will be deployed the way the DHS's other attempts to peer into travelers' social media accounts has: to make it "optional," with the implicit threat that rejecting the agency's advances will result in zero forward progress beyond the nation's borders.
DHS Secretary Kelly isn't much for implicit threats. He prefers his threats (at least those he makes) to be explicit.
[I]f they truly want to come into America, then they'll cooperate. If not, you know, next in line.
Kelly also shouldered some of the blame for the disastrous travel ban roll out. In a too little, far too late mea culpa, Kelly suggested it might have been better to consult with Congress first. Kelly did not offer further details as to whether this would have just been a token gesture or whether the administration could have been talked out of the unpopular, possibly-illegal travel ban by legislators.
Fifteen years ago, a terrorist attack was exploited to expand government power -- especially in the intelligence and law enforcement arenas. Fifteen years later, fear-mongering politicians and officials are still dining out on that attack, selling fear and buying government power real estate while using War on Terror eminent domain "orders" to carve holes in civil liberties. The Trump Administration has already made it clear it won't extend any of our rights to citizens of other nations. The president's new DHS head is right on top of ensuring visitors and immigrants are welcomed with maximum intrusiveness.
56 Comments | Leave a Comment..
More posts from Capitalist Lion Tamer >>