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List of blogs started with enthusiasm, which now mostly lie dormant:

[reserved for future use]
http://5k500k.wordpress.com

[recently retired]
http://capitalistliontamer.wordpress.com

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Posted on Techdirt - 22 November 2017 @ 1:32pm

DHS Deploying Stingrays Hundreds Of Times A Year

from the not-so-much-natsec-as-it-is-basic-warrant-service dept

It's no secret most law enforcement agencies own or have access to Stingray devices. But some deployment totals can still raise eyebrows. The Baltimore PD, for example, deployed Stingrays 4,300 times over an 8-year period -- more than once per day. And it hid these behind pen register orders, so that judges, defendants, and defense lawyers had no idea exactly how the PD located suspects.

Thanks to Buzzfeed's FOIA request, we now know another government agency has been firing up its Stingrays at least once a day. And it's one of the nation's largest.

A document obtained by BuzzFeed News shows the US Department of Homeland Security used secretive cell phone–tracking devices nationwide more than 1,800 times from 2013 to 2017.

The information, obtained through a Freedom of Information Act request, shows that Homeland Security Investigations, a major investigative arm of DHS, used what's known as cell-site simulator over-the-air technology 1,885 times from Jan. 1, 2013, to Oct. 11, 2017 throughout the US.

There's not a lot to be gleaned from the document [PDF], other than the total number of deployments and cities where they may have been deployed. Given the DHS's purview, one would assume these are deployed only in serious criminal investigations. That assumption would be wrong, as DHS component ICE has already shown.

Sen. Ron Wyden recently asked US Immigration and Customs Enforcement for information on the agency’s use of the devices after it was determined ICE used a cell-site simulator to arrest an undocumented immigrant. Among the questIons Wyden sought answers to was what steps the agency had taken to limit interference to the phones of people not being investigated.

ICE may be making the most use of DHS Stingray devices. In its answers to Wyden's questions, the agency made it clear it uses Stingrays for all sorts of banal things, like tracking down pretty much anyone its looking for or simply sniffing out phone details for future subpoenas.

Of course, while it's doing this hundreds of times a year, the phone service of everyone DHS agencies aren't looking for is interrupted. But that's OK with ICE, because the only phone service anyone really needs is emergency service, according to director Thomas Homan.

“In all circumstances, devices are always able to dial 911 without any disruption of service,” Homan said.

So, not really a problem, according to ICE -- even if ICE is doing nothing more than readying a subpoena.

This is why the Supreme Court's take on Carpenter will be important. A ruling following the current view on third party data might encourage the federal government to ditch its voluntary Stingray warrant requirement. It will also encourage other law enforcement agencies to continue hiding evidence of Stingray use behind pen register requests, leading defendants and presiding judges to believe the phone they tracked in real time was actually just historical cell site location data.

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Posted on Techdirt - 22 November 2017 @ 10:42am

DHS Trying To Bury Report Showing Violations Of Travel Ban Court Orders By CBP Officers

from the neutralizing-oversight dept

An Inspector General's report showing Customs and Border Protection violated court orders during its implementation of Trump's travel ban appears to be headed for a burial by the DHS. A letter from the Inspector General to high-ranking senators says the department has indicated it will invoke an unchallengeable privilege to withhold large portions of the report, if not its entire contents.

The unusual missive to Congress on Monday from Inspector General John Roth said his 87-page report was sent to DHS leadership Oct. 6, but officials have declined to authorize its release over the past six weeks.

Roth said officials informed his office that the report is under review for information that may be subject to attorney-client privilege or to a privilege protecting the agency's "deliberative process."

The IG's letter [PDF] makes it clear the invocation of "deliberative process" privilege is highly unusual in this context. It's usually invoked in FOIA cases to withhold certain information. The problem with its invocation in the context of an IG report release is that it prevents anyone from challenging the DHS's decision.

The deliberative process privilege is a common law privilege, largely invoked in Freedom of Information Act (FOIA) and civil litigation, which permits (but does not require) the government from disclosing predecisional and deliberative communications because of the potential chilling effect such disclosure would have on the candid deliberations and back-and-forth discussion that effective policy-making requires. However, invoking the privilege can mask discovery of decisions made based on illegitimate considerations, or evidence of outright misconduct.

For that reason, in civil litigation the privilege is not absolute but requires a court to balance the competing interests of the parties. This has been interpreted to mean that a party requesting the information may overcome the privilege by showing a "sufficient need for the material in the context of the facts or the nature of the case . . . or by making a prima facie showing of misconduct." Unlike civil litigants, however, we are not able to have a federal court or other disinterested party decide these issues, but must rely on the good faith of the Department.

This leaves the decision entirely in the DHS's hands and no one in the Inspector General's office can do anything about it. Evidence of wrongdoing, it could be swept under the carpet by the DHS. It's unclear what Congressional leaders can do it about this (or even how many of them would actually be interested in fighting the DHS's privilege invocation), but at least the public is now aware evidence of court order violations is in the process of being memory-holed by the administration.

The report -- at least what can be gleaned from the Inspector General's letter -- isn't completely damning. It notes the implementation of the travel ban took place during several courtroom challenges and involved conflicting directives from White House and the DHS. Perhaps most CBP officers did the best they could during the disorganized chaos, but that still didn't prevent key violations from occurring.

Roth said CBP defied court orders by providing guidance to airlines not to allow travelers from certain countries to board flights bound for the U.S.

"While CBP complied with court orders at U.S. ports of entry with travelers who had already arrived, CBP was very aggressive in preventing affected travelers from boarding aircraft bound for the United States, and took actions that, in our view, violated, two separate court orders," he wrote.

As Politico notes, FOIAed communications show DHS officials were troubled by the continual lack of clear internal guidance, as well as contradictory statements made by White House officials. The court orders, however, were much more direct and clear and yet CBP officials violated them repeatedly.

That's where the IG's sympathies end. The DHS watchdog doesn't hedge when it comes to addressing the report's planned burial.

I am particularly troubled by the Department's threat to invoke the deliberative process privilege, as this is the first time in my tenure as Inspector General that the Department has indicated that they may assert this privilege in connection with one of our reports or considered preventing the release of a report on that basis. In fact, we regularly have published dozens of reports that delve into the Department's rationale for specific policies and decisions, and comment on the basis and process on which those decisions were made. Indeed, that is at the heart of what Inspectors General do.

[...]

Invoking the deliberative process privilege, in this report and in future reports, would significantly hamper my office's ability to keep "Congress fully and currently informed about problems and deficiencies" of the Department, as required by the Inspector General Act. I am also unaware of other Inspectors General who have been prevented from issuing reports on such a basis. With regard to this specific report, it would deprive Congress and the public of significant insights into the operation of the Department. Moreover, because we have concluded that CBP appears to have violated at least two separate court orders, we will be unable to describe the factual basis behind our conclusion.

Burial by the DHS without the input of neutral parties would do little to rebuild the trust broken by the CBP's violation of court orders.

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Posted on Techdirt - 21 November 2017 @ 7:43pm

New York Court Says NYPD Must Get Warrants To Deploy Stingrays

from the take-that-Big-Blue dept

Another court has decided warrants must accompany Stingray use. (via the New York Times) The ruling handed down earlier this month clarifies the distinction between the records obtained and the records requested. In this case, police used a pen register request to deploy their Stingray device. As the court points out, Stingray devices grab a lot more than just phone numbers.

A pen register or trap and trace warrant is authorized under New York's CPL Art. 705.00. According to that Article, a pen register is a device that attaches to a landline phone to identify and record "the numbers dialed or otherwise transmitted" in outgoing and incoming calls." CPL 705.00 (1). In addition, CPL 705.00 (2) defines a trap and trace as a similar device to that of the pen register that identifies the "originating number" for a call. It should be noted, however, that Article 705 does not authorize the gathering of location information using a cell phone's Global Positioning system (GPS), nor does it authorize the gathering of additional information, that might include the content of a phone's calls or text messages by the use of a pen register and/or trap and trace order.

[...]

Thus, it is improper under New York Law to authorize the obtaining of any information from a suspect's phone other that the phone numbers dialed or otherwise transmitted in outgoing and incoming calls and/or an originating phone number.

As the court notes, the addition of GPS location info changes the matrix for law enforcement paperwork. It's not enough to settle for the lower requirements of a pen register order. Tracking and tracing people involves a higher statutory burden. And that's exactly what this is: to deploy a Stingray, a team of officers must fire one up and roam all over the place until they home in on their target. This is completely distinct from showing up at a telco office asking for dialed digits.

Additionally, the court points out that while the information obtained (the phone's location) might ultimately be a third party record accessible with a subpoena, the government can't be the third party collecting the records.

[U]nlike pen register device information or that provided by the CSLI, a cell site simulator device does not involve a third party. "The question of who is recording an individual's information initially is key." See US v Lambis, supra, citing In re US for Historical Cell Site Data, 724 F.3d 600 [5th Circ. 2013] [distinguishing between "whether it is the Government collecting the information or requiring a third party to collect or store it, or whether it is a third party, of its own accord and for its own purposes, recording the information"]. The Lambis court continued: "For both pen register information and CSLI, the Government ultimately obtains the information from the service provider who is keeping a record of the information. With the cell-site simulator, the Government cuts out the middleman and obtains the information directly." US v Lambis, Id.

By its very nature, then, the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case by the NYPD.

Presumably, the NYPD was less than forthcoming about its Stingray use. In the opening of the opinion, the court points out the location the suspect was tracked to was completely unrelated to any information the NYPD already had in hand when it took its Stingray out for a spin.

Based upon the information gathered from this order for the defendant's cell phone, Detective Brown located and arrested the defendant three days later on April 15, 2016, inside of 1540 Sterling Place, Apartment 3E in Brooklyn, an address not previously identified as of any interest to this investigation.

The decision also notes Stingray use was "conceded" by the prosecution, suggesting it fought this disclosure for as long as it could.

This is good news for residents of New York and another small step towards a unified judicial view on Stingray deployments. Better yet, it has probably resulted in audible wailing and gnashing of teeth in the upper levels of the NYPD bureaucracy.

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Posted on Techdirt - 21 November 2017 @ 12:05pm

Investigation Finds Google Collected Location Data Even With Location Services Turned Off

from the questionable-practice-raises-Fourth-Amendment-questions dept

What if you take every precaution you can possibly take to avoid leaving a digital trail of your movements… and it still doesn't matter?

Many people realize that smartphones track their locations. But what if you actively turn off location services, haven't used any apps, and haven't even inserted a carrier SIM card?

Even if you take all of those precautions, phones running Android software gather data about your location and send it back to Google when they're connected to the internet, a Quartz investigation has revealed.

Since the beginning of 2017, Android phones have been collecting the addresses of nearby cellular towers—even when location services are disabled—and sending that data back to Google.

So much for going off the grid. There are some caveats to Google's permissionless collection of cell site location data, with the most significant being the fact Google didn't store the auto-collected cell tower info. That doesn't excuse the practice, but it at least keeps it from becoming tracking data the government can access without a warrant.

Google's collection of cell tower data occurred when notifications were pushed or phone users utilized the phone's built-in messaging service. In both cases, it's reasonable to assume users weren't expecting Google to be collecting this data. (It wouldn't be necessarily reasonable to assume cell providers weren't, as that's what's needed to deliver messages and notifications if the user isn't using a WiFi connection.) But no one would reasonably assume the operating system would still send cell tower info to Google with the SIM card pulled.

This is a troubling practice to be engaged in, no matter how temporary the storage of cell site data. It flies directly in the face of what phone users expect when they shut off location services or undertake other affirmative actions to minimize their digital footprint.

SIDEBAR:

This does raise some interesting Fourth Amendment questions, even if the circumstances under which the collection occurred make it unlikely these factors will ever be the centerpiece of a motion to suppress evidence. US courts have made it clear on multiple occasions there's no expectation of privacy in cell site location records. Judges have stated cell phone users should know cell companies collect tower location data to provide service to their phones. According to this line of thinking, the third party location records have no expectation of privacy because phone users are aware of the realities of cell phone usage: phones connect to towers and create records of the tower's location.

The question in this case would be whether the expectation of privacy is still nonexistent when phone users undertake deliberate efforts to disable the collection of location records. It would seem these efforts would restore an expectation of privacy -- at least if judges are going to be consistent and intellectually honest. As some judges have pointed out, defendants who don't like being tracked by their cell phones can just not use them. (This is still a somewhat ridiculous assertion -- roughly comparable to the TSA suggesting people who don't like invasive searches/biometric data gathering can just choose to not fly. Both ignore the realities of the modern world.)

If a person makes efforts to prevent collection of location info and a company does it anyway, should law enforcement still have warrantless access to these records? This remains a hypothetical question, but given the amount of surreptitious tracking performed by a number of tech companies (providers, ad networks, etc.), it won't remain hypothetical forever.

Phones generate a wealth of third party records just a subpoena away from being in the government's possession. Users cannot possibly be aware of all the information gathered by multiple companies each time they use their smartphone, but they do "reasonably expect" shutting off location services means no one (outside of their service provider) will be gathering location data. Would someone, in performing these actions, be granted a higher expectation of privacy as a result of their actions? Or would a court treat savvier digital natives the way it treats the unwashed masses who make zero effort to limit collection of location info?

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Posted on Techdirt - 21 November 2017 @ 10:43am

NSA Section 702 Q&A Glosses Over Incidental Collection Problems, Domestic Surveillance

from the mostly-true-and-mostly-misleading dept

As the clock winds down to the end of the year, the NSA (along with the FBI, CIA, and other government components with access to NSA collections) is hoping it won't have its internet surveillance programs limited in any way. So far, it's receiving plenty of help from the Senate Intelligence Committee, which has offered up a zero-reform package. (The House has its own version, which actually includes a few reforms, but it still leaves plenty of loopholes for domestic surveillance.)

To that end, the NSA has released a highly-misleading Q&A on Section 702 surveillance -- one that conveniently ignores its historic problems with incidental collection and the other authorities being renewed that actually do allow it to target US persons.

The NSA chooses to focus solely on Section 702 and the issue of targeting. But these focal points are misleading. The NSA has plenty of ways of obtaining US persons' communications without targeting them. On top of that, the NSA has a few options for targeting US persons that go completely unmentioned. And the FBI is allowed to target US persons for a number of reasons using NSA surveillance programs -- again, something the Q&A ignores completely.

Section 702 surveillance is done under Title VII, which also includes US person-targeting authorities like Section 704 and 705(b). Not much discussion has centered on these two authorities because they aren't used that often. But they do absolutely allow the NSA to target US persons, unlike Section 702.

But there are problems with Section 702's foreign-facing work as well. In addition to targeting adversaries, Section 702 also allows the NSA to target friendly foreigners, like high-ranking government officials. Even while remaining foreign-focused, the program has still swept up US persons' communications. Some of this "incidental" collection was eliminated when the NSA dropped its "about" email collection. But even with its voluntary move, the NSA is still sweeping up US communications inadvertently.

This is a boon for the FBI, which is allowed to perform backdoor searches on Americans for evidence of criminal activity. This isn't limited to terrorist activity or foreign crimes. The bill offered up by the Senate would actually expand the FBI's use of NSA collections by adding a number of new crimes to the list of search justifications.

The assurances offered by the NSA are false. Marcy Wheeler's impeccable takedown of the self-serving Q&A points out the disingenuousness of the NSA fielding its own softball questions.

Curiously, while the NSA doesn't address the disproportionate impact of 702 on Muslims, it does pretend to address the disproportionate impact on Asians or their family members — people like like Xiaoxiang Xi and Keith Gartenlaub.

Q: Could the government target my colleague, who is a citizen of an Asian country, as a pretext to collect my communications under Section 702?

A: No. That would be considered "reverse targeting" and is prohibited.

Thanks to Ron Wyden, we know how cynically misleading this answer is. He explained in the SSCI 702 reauthorization bill report that the government may,

conduct unlimited warrantless searches on Americans, disseminate the results of those searches, and use that information against those Americans, so long as it has any justification at all for targeting the foreigner.

Effectively, the government has morphed the "significant purpose" logic from the PATRIOT Act onto 702, meaning collecting foreign intelligence doesn't have to be the sole purpose of targeting a foreigner; learning about what an American is doing, such as a scientist engaging in scientific discussion, can be one purpose of the targeting.

The NSA tops off its Q&A by (accurately) claiming it can't search 702 collections for US person information. But it does not point out other government agencies can -- and can do it with very little oversight. That's what the FBI does routinely but not once in the Q&A will you find any reference to outside agency data store access.

The NSA's pro-702 pitch may be factual, but only because it carefully excises all of the inconvenient facts -- ones that might cause more people to question the collection and data search procedures being renewed.

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Posted on Techdirt - 20 November 2017 @ 1:22pm

Sheriff's Office To Pay $3 Million For Invasive Searches Of 850 High School Students

from the a-few-thousand-dollars-per-grope dept

It's been barely a month since news came to us of the Worth County (GA) Sheriff's Department's search of an entire school's worth of high school students. Over 800 students were searched without a warrant, subjected to invasive pat downs that included breasts and genitals by Sheriff Jeff Hobby and his deputies.

Sheriff Hobby thought there might be drugs in the school, but despite the search of hundreds of students and the use of drug dogs, no drugs were found. A class action lawsuit [PDF] alleging multiple rights violations brought by some of the students was filed in June. In October, Sheriff Hobby and two of his deputies were indicted for sexual battery and false imprisonment.

In a surprisingly quick turnaround, there's already talk of a settlement, as Susan Hogan reports for the Washington Post.

On Tuesday, a legal advocacy group, the Southern Center for Human Rights, said a proposed $3 million settlement had been reached in the lawsuit, pending a judge’s approval.

That number has nothing to do with the severity of the violations, but rather is the limit of the sheriff department's insurance policy. But it will be spread to cover a majority of the student body harmed by the actions of these law enforcement officers.

Each class member will receive a monetary award of between $1,000 and $6,000, with those students subjected to more invasive searches receiving higher amounts. Once any outstanding claims are resolved and attorney fees of 15% of the fund are paid, half of any remaining funds will be paid into a fund for the benefit of Worth County High School students.

This quick settlement can likely be chalked up to a handful of variables. One, Hobby and his deputies have been indicted, which gives more credence to the students' claims their rights were violated. Two, the entire 4-hour lockdown was captured on the school's surveillance cameras, all but eliminating narrative options for the law enforcement defendants. Three, Sheriff Hobby's own statements in defense of his and his deputies' actions make it very clear the sheriff supports the mass violation of rights through policies and actions.

The only reason Hobby didn't pursue another warrantless search of the entire school's student body wasn't because of concerns about students and their rights, but because people were angry.

When asked about that previous search that came up dry, Hobby said he didn't think that search was thorough, so he decided to do his own.

He said he believes there are drugs at the high school and the middle school, but also said that he will not do another search, due to response from community.

So, straight up, the sheriff believes he did nothing wrong. His deputies did nothing wrong. If anything's wrong here, it's the response from the community -- people who apparently don't understand civil rights are nothing more than obstacles that must be skirted or surmounted if we're ever going to win this war on drugs.

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Posted on Free Speech - 20 November 2017 @ 6:18am

Trial Set To Start For Journalist Facing Decades In Prison For Covering Inauguration Day Protests

from the shut-up,-they-jailed dept

There's little more chilling to First Amendment freedoms than the possibility of spending decades in jail for documenting a protest that turned into a riot. But that's exactly what independent journalist Alexi Wood is facing. Traveling from Texas to Washington DC to document anti-Trump protests on Inauguration Day, Wood was "kettled" and arrested along with the protestors he was covering. He wasn't the only journalist to be detained for hours and hit with charges, but most of the others have seen their charges dismissed.

Wood is facing charges that could see him jailed for several years, thanks to DC prosecutors who have decided to punish the journalist for being in the vicinity of destructive criminal activity.

Alexei Wood faces up to 60 years in prison for moving alongside and videotaping rioters as they protested President Donald Trump's inauguration in Washington, D.C., on Jan. 20. According to Wood, he was livestreaming the protest - videotaping events and putting them on the internet as they happened.

He said the livestream is still online, and shows he did nothing wrong.

"It documents everything I said or didn't say, do or didn't do - clear evidence,” Wood said. “Even the judge said there was 'zero evidence' I did property destruction."

Wood is one of seven journalists who, with a group of more than 200 protesters, were penned in and arrested that day. Charges against five of the journalists have been dropped.

Indeed, his livestream of the events leading to his arrest can be seen below, and nothing in it shows him participating in destructive acts.

But that matters little to DC prosecutors, who have decided to threaten the act of journalism by creatively stacking charges.

[O]n April 27, the Superior Court of the District of Columbia returned a superseding indictment which added additional charges for some 212 defendants, three of whom had not previously been charged.

With new felony charges including urging to riot, conspiracy to riot and destruction of property, many of the defendants are facing up to 80 years in prison. Many other defendants, among them journalists, are facing more than 70 years.

When a "conspiracy to riot" describes the act of documenting a riot, things have gone horribly south in the legal system. It's not like the government is facing a lack of chargeable suspects. There are more than 200 to choose from, with a majority of those being participants in the demonstration. A smaller number participated in the destruction of property. Then there's Alexi Wood, who was in the right place at the right time journalistically-speaking, but the wrong place/wrong time for everything else.

The only explanation for this charge stacking is prosecutors' desire for easy wins. Piling up felony charges pushes people towards accepting plea deals, even if they haven't done anything wrong. A couple of misdemeanors and being free to go usually sounds better than a criminal trial and the possibility of a jury handing down a guilty verdict with 15-20 years of jail time attached

If this goes forward, the evidence should clear him of charges. But even if it does go quickly and smoothly, Wood's life has been permanently changed, and not for the better. He hasn't been able to concentrate on journalistic efforts since he was arrested, thanks to the severity of the charges. If the government finds a way to hang one on Wood, independent journalists and those working for smaller agencies will start steering clear of protest coverage just to be on the safe side. And that may be the government's unstated goal -- fewer eyes witnessing anti-government sentiment and/or the tactics used by law enforcement against people utilizing their First Amendment rights.

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Posted on Techdirt - 17 November 2017 @ 1:38pm

Surveillance Fans Angry Journalist Used Metadata, Contact Chaining To Out Comey's Secret Twitter Account

from the not-only-months-after-the-fact,-but-with-zero-self-awareness dept

Earlier this year, journalist Ashley Feinberg outed then-FBI Director James Comey's secret Twitter account, using nothing more than the "harmless" metadata people like James Comey have said no one needs to worry about. The secret account was sniffed out through something the Intelligence Community likes to call "contact chaining." The path ran through Comey's children's Instagram accounts and one conspicuous follower of Comey's previously-secret account: Lawfare writer, surveillance apologist, and personal friend of Comey's, Benjamin Wittes.

For some reason, months after the fact, Wittes has decided the route to unmasking Comey's Twitter account was more like stalking than journalism. Wittes objected to the "use" of Comey's children -- the seemingly-unrelated contacts who Feinberg chained together to reach her conclusion. This was weird because, as Marcy Wheeler points out, Comey seemed to be impressed by the journalist's work. Even weirder is the fact Wittes (and former IC attorney/Lawfare editor Susan Hennessey) didn't see the obvious parallels between Feinberg's detective work and the FBI's own use of metadata, contact chaining, and working its way towards targets through vast amounts of unrelated data.

Not only did he say he wasn't mad and compliment her work, but he posted the link to FBI jobs.

I'd say Jim Comey sees a similarity in what Feinberg did.

I'm all in favor of protecting the accounts of children from such contact chaining — and am really not a big fan of contact chaining, generally. But those who, like Comey and Wittes and Hennessey and Tait, have championed a system that endorses at least two hop chaining irrespective of who gets hopped, not to mention those who've tolerated the collection on family members in even more targeted surveillance, I'm not all that interested in complaints about the privacy of a 22-year old son.

Or rather, I point to it as yet another example of surveillance boosters not understanding what the policies they embrace actually look like in practice.

Which is precisely why this “doxing” was so newsworthy.

Wheeler goes into more detail on the FBI's use of contact chaining and metadata and discusses Comey's own approval of these practices during his tenure. This may explain why Comey was more impressed than angry when he was outed. As for the complaints about "outing" Comey's adult children, Wheeler points out Comey himself has thrust them into the public eye on more than one occasion, starting back when they were still young teenagers.

But beyond this there's the hypocritical nature of Wittes' attack on the journalist. Surveillance state supporters love surveillance -- except when the apparatus is controlled by people they don't like or aimed at people they do. These are ridiculous arguments to be making, especially when you actively support state-sponsored "stalking."

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Posted on Free Speech - 17 November 2017 @ 12:03pm

Sheriff Thinks He Can Use Bogus Disorderly Conduct Charges To Shut Down Speech He Doesn't Like

from the christ,-what-an-asshole dept

A Texas sheriff did some pandering to his base this week, ultimately making a fool of himself. On Monday, Sheriff Troy Nehls posted the following to Facebook:

If you can't see it, it's a photo of a truck with a decal attached to the rear window. The decal reads:

Fuck Trump and fuck you for voting for him

Here's what Sheriff Nehls wrote:

I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 369. If you know who owns this truck or it is yours, we would like to discuss it with you. Our Prosecutor informs us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification of it.

This is stupid on every single level. First off, as former police officer and current attorney Greg Prickett points out in his post at Simple Justice, there's no way those charges would stick.

Sheriff, that's political speech, and it's protected speech. You don't get to silence it because you don't like it, or even because it offends you, the District Attorney, or anyone else. The Disorderly Conduct statute in Texas is very clear on this.

You can charge someone with Disorderly Conduct if "the language by its very utterance tends to incite an immediate breach of the peace," or if the "display tends to incite an immediate breach of the peace…" That hasn't happened here. If Fonseca and her family have been driving around for almost a year and there have been no fights, no disturbances, no riots or so forth, you are not going to be able to prove that there was a danger of an "immediate breach of the peace."

Instead, Nehls may have rained down fire on his own idiotic head by pursuing it.

What you may have, instead, is another crime, a much more serious crime, being threatened by Sheriff Nehls. If Nehls goes through with his threat, it could very well meet the elements of the offense of Official Oppression, which states:

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful…

Now, let's get to the rest of the moronic post.

It is highly doubtful the Sheriff has "received numerous calls" about a window decal. Even given the sorry state of Americans' understanding of the First Amendment, most people would realize a sweary decal is not a law enforcement issue. More likely, the Sheriff or one of his deputies spotted it and took a photo or, at best, a concerned citizen sent it to the apparently pro-Trump Sheriff in hopes that he would abuse the law to shut down protected speech. (If so, well played, citizen. Everyone loves an American who believes in less rights for people they don't agree with.)

Next, the "discussion" proposed by the Sheriff is a bait-and-switch. Unlike most bait-and-switch purveyors, Sheriff Nehls is too excited about prosecution to allow the bait to do its work. By pitching it as a voluntary interaction, Nehls covers his ass on official oppression. But he immediately uncovers it by referring to a prosecutor just dying to punish protected expression with a bogus disorderly conduct charge.

That brings us to perhaps the stupidest part of Nehls' post. Nehls states a prosecutor is willing to move forward with charges. That appears to be a lie.

KHOU 11 News also reached out to the Fort Bend County District Attorney.

He says the Sheriff never consulted him before posting the suggestion the driver may be charged with disorderly conduct.

He made it clear his office would not accept charges against that driver simply because of the profanity and message on the truck.

It's unclear who Nehls is referring to. This prosecutor is a he (Nehl's post refers to a "she"), and he apparently would be in charge of prosecuting cases brought to him by the Sheriff. I suppose he could be referring to one of the other prosecutors in the DA's office, but all cases would presumably be signed off by the DA himself before moving forward. If one of them offered to help the Sheriff fight his battle against the First Amendment, they would be aiding and abetting official oppression.

Having outed himself as a law enforcement official willing to oppress speech under the color of law, Nehls gracelessly deleted his Facebook post. He then went on to issue a statement to the effect of "I just wanted to talk to this person about their bumper sticker… but with the dangling threat of prosecution as a backdrop."

Nehls addressed the post in a press conference Wednesday afternoon.

"People have called and are offended by the language," said Nehls. "I simply want to talk to the owner and say 'Look the last thing we need to do is have anyone have any confrontation over the language on your truck.'"

But this can't possibly be true. If all Nehls wanted to do is talk, he had plenty of time to do so. And he could have done it without dragging the vehicle owners into his social media debacle. But it appears he'd rather grandstand on Facebook than do actual police work and, you know, track down the owners of the vehicle. Even with the head start of license plate database access and its favored route of travel, the local news team managed to be the first people to actually talk to the truck owners.

KHOU 11 News tracked down the owners of the truck, Karen and Mike Fonseca. They are stunned and angry that Nehls would start this debate on Facebook instead of calling them personally.

They say they're entitled to their free speech.

"There's no law against freedom of speech, nothing in the law book here in Texas, I've been stopped numerous times, but they can't write me a ticket," said Karen Fonseca.

The truck owners are more right in two sentences than Nehls was in a Facebook post and ensuing press conference. They are definitely right to be angry about Nehls' casual abuse of office that turned them into targets for hate from like-minded fans of free speech curtailment.

Above all else, Sheriff Nehls is a disingenous asshole.

The sheriff said he wants to avoid a situation where somebody could take offense to the sign on the truck, possibly leading to a confrontation.

"I don't want to see anything happen to anyone," Nehls said. "With people's ... mindset today, that's the last thing we need, a breach of the peace."

Then why the fuck would you post a photo of the truck and decal to Facebook? You're just begging for a "breach of the peace." You've turned the owners into a target for pro-Trump partisans and people who like to yell at other people for public swearing. You pulled some petty bullshit under the color of law and have the audacity to claim your foremost concern is the truck owners' safety. If this is what the public gets to see of your mindset and retaliatory nature, one can only imagine what goes on behind the scenes.

Nehls says he wants to "come to an agreement regarding a modification" to the anti-Trump decal. I can suggest one, but I doubt the Sheriff will like it.

And, of course, as I put the finishing touches on this post comes the news that Fonseca has been arrested -- though for an outstanding warrant.

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Posted on Techdirt - 17 November 2017 @ 9:34am

Court Denies Government's Demasking Demands In Inauguration Protest Case

from the settle-down,-boys dept

Nine months after the DOJ's Facebook search warrants targeting Trump inauguration protesters were approved, the DC District court has finally issued a ruling restricting how much the government can actually obtain.

The original warrants were broad, seeking communications from every Facebook user who had interacted with DisruptJ20's Facebook page. If these hadn't been challenged, the government would have had access to the entire contents of more than 6,000 Facebook users' accounts. The warrant also came with an indefinite gag order, something the DOJ dropped on the eve of oral arguments, perhaps sensing it wouldn't be allowed to keep it.

The government claimed evidence of criminal activity -- specifically violation of DC's rioting laws -- would be found in these accounts. Once the gag order was lifted, the warrants were challenged directly by some of the targets and Facebook itself. This has led to a few concessions by the DOJ, but it's still seeking a whole lot of communications presumably unrelated to the underlying charges.

The district court has modified the warrants via a court order, paring back the government's demands even further. Paul Levy has an excellent, thorough post discussing the pros and cons of the modifications at the Public Citizen blog (Public Citizen moved to intervene, but apparently its motion has been ignored) -- one that is definitely worth reading to understand how much the government is still going to be able to obtain, despite months of warrant trimming.

On the plus side, the ruling [PDF] protects the identities of users who interacted with the DisruptJ20 Facebook page.

Perhaps impelled by the ACLU’s excellent briefing of the issue, his opinion contains an extended discussion of the two-step process, and of the importance of adapting that process to constrain searches that might otherwise intrude too deeply in protected political expression and create a chilling effect on future online political expression. Even more clearly than he did in his DreamHost rulings, Judge Morin states squarely that the government has never shown probable cause to believe that communications of anonymous third parties with the accounts themselves contain evidence of criminal activity charged in the indictment. Consequently, the third parties’ identifying information was entitled to be protected from disclosure pursuant to the order enforcing the search warrant.

If this is more than a DOJ fishing expedition, the government will need to move fast to get users stripped of their anonymity. Prosecutors are expecting to go to trial sometime in November, and Judge Morin won't approve the release of identifying information unless the government can hand over compelling reasons to de-anonymize particular Facebook users. As for Facebook, it claims manual redactions of the requested communications will take at least three weeks, so the government may have to talk a judge into delaying the trial or possibly face having to dismiss some charges.

According to Levy, that's the best part of the opinion, one that will probably be cited by others challenging overbroad search warrants. The rest of it is less spectacular, with some of it downright concerning.

While the order protects the identities of users who interacted with the page, it will not protect their communications. The government may not have full access to private messages, but it will apparently get a copy of anything matching certain keywords. The users targeted directly by warrants (as opposed to a targeted Facebook page) will see even more of their private communications exposed. This is troubling because much of what was discussed will likely be the sort of speech the government is supposed to protect. After all, DisruptJ20 was a protest group. Some protests may turn into riots, but it's unlikely the genesis of those riots are contained in Facebook private messages.

Worse, as Levy points out, there's still a whiff of fishing expedition in the air. Without clearer justifications for the search demands, the government appears to be engaged in the chilling of political speech.

Even assuming that there is sound reason to believe that some material on any of these pages relates to the riot, the DisruptJ20 page as well as the individual pages will have a great deal of political expression unrelated to the riot. A colloquy between Judge Morin and the Assistant U.S. Attorney during the hearing suggested that photographs of riot activity may have appeared on the pages at one time, and that the government hopes its search warrant can provide access to photos that would help identify participants, and lead to information about the photographers who can be subpoenaed to authenticate them. Given the continued secrecy of the probable cause affidavits, we cannot be sure what other bases the government may have given for the search of these three accounts.

So, the government may still be allowed to fish, but it will have to use a shorter line. But overall, it appears the government needs to expect to have a lot more of its warrants challenged if it appears to be targeting a whole bunch of people and their protected speech.

Update: Public Citizen has filed a motion for reconsideration [PDF], asking the court to take another look at one of its questionable search constraints. The filing points out the court appears to contradict itself in its ruling, possibly giving the government full access to communications of innocent parties, constrained only by redaction of indentifying information.

Doe l, Doe 2, and Doe 3 move the Court to clarify and, if need be, to modify in one narrow respect, its final order regarding the manner in which the search warrants to Facebook seeking data from the accounts of Lacy MacAuley and Legba Carrefour will be executed. There is an ambiguity in the language on page 15 of the Court's order with respect to the redactions that Facebook is to make from the data in MacAuley and Carrefour accounts before the information is turned over to the government for "front to back" review. One reading of the language is that any content posted by innocent third parties is to be redacted; another is that only identifying information is to be redacted from such content, after which that content, like the content posted by MacAuley and Carrefour, is to be subject to "front to back" review. If the latter is the proper interpretation, then the Does ask for reconsideration, based on the contention that a factual distinction drawn in the Court's opinion about how Facebook accounts work is incorrect, and not supported by the record.

The filing also asks the court to reconsider its denial of Public Citizen's motion to intervene. As is explained in Levy's blog post, Judge Morin's order in the Dreamhost case (related to the DisruptJ20 website and a warrant that targeted more than a million site visitors) greatly benefited from expert analysis and other contributions from intervenors. The same sort of expertise would further refine the restraints imposed on the government's search efforts as well as give the three parties challenging the warrant more legal knowledge to work with.

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Posted on Techdirt - 17 November 2017 @ 3:17am

Most Senate Intelligence Committee Members Are Fine With Domestic Surveillance By The NSA

from the 13-of-15-Senators-agree-to-ignore-the-Fourth-Amendment dept

The Senate Intelligence Committee has released its report [PDF] on its Section 702 reauthorization plan. Rather than adopt any serious reforms -- like those proposed by Sen. Ron Wyden -- the SIC plans to move ahead with its non-reform bill, one that's actually weaker than the watered-down offering from the House.

The bill remains pretty much as bad as it was when it was first introduced. It still allows the NSA to start up its "about" collection again, although it does require approval from the FISA court first and contains a safety valve for introduction of legislation forbidding this collection. (I guess Wyden's reform bill doesn't count.)

Other than that, it's still just bad news, especially on the Fourth Amendment front, as it allows both the collection of wholly domestic communications and backdoor searches of NSA data stores. The upshot of the report is this: eleven senators are perfectly fine with domestic surveillance.

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

There are two more you can add to this list: Sens. Feinstein and Harris. Although they voted against allowing the NSA to collect wholly domestic communications, they did vote against Wyden's amendment, which would have limited the use of domestic communications by US government agencies to only a few national security-related crimes.

Their vote against this means Feinstein and Harris are no better than the other eleven when it comes to domestic use of supposedly foreign-facing dragnets if there's any evidence of domestic criminal activity caught in the net. That includes a longer list of crimes which really aren't the sort of thing we should be using dragnets to investigate: "serious bodily injury," CFAA violations and human trafficking -- the latter of which could be nothing more than US citizens helping stranded foreigners.

On top of that, there's no judicial review involved when the government makes a determination that something "affects, involves or is related to" national security. As Marcy Wheeler has pointed out, this allows the DOJ to decide what it can or can't collect on US persons using NSA surveillance programs.

Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

So, the Senate version is way worse than the House version, which wasn't all that great to begin with. The fact that it's now mid-November and these bills are now just taking the next step towards a floor vote pretty much guarantees these non-reform efforts will be stapled to the backend of a must pass appropriations bill, where they're less likely to rejected on their own merits.

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Posted on Techdirt - 16 November 2017 @ 7:52pm

FBI Acts Like It's Still 1960 With Its Report On 'Black Identity Extremists'

from the agency-eats-its-own-speculative-dog-food dept

We already knew Jeff Sessions was a throwback. The new head of the DOJ rolled back civil rights investigations by the agency while calling for harsher penalties and longer jail terms for drug-related crimes, while re-opening the door for asset forfeiture abuse with his rollback of Obama-era policy changes.

But it's more than just the new old-school DOJ. The FBI is just as regressive. Under its new DOJ leadership, the FBI (inadvertently) published some speculative Blue Lives Matter fanfic [PDF] -- an "Intelligence Assessment" entitled "Black Identity Extremists Likely Motivated to Target Police Officers."

There's no hedging in the title, despite what the word "likely" usually insinuates. According to the FBI, this means there's an 80-95% chance it believes its own spin.

Here's the opening sentence:

The FBI assesses it is very likely Black Identity Extremist (BIE) perceptions of police brutality against African Americans spurred an increase in premeditated, retaliatory lethal violence against law enforcement and will very likely serve as justification for such violence.

And here's what the term "very likely" means when the FBI uses it:

Beyond that, the FBI says this:

The FBI has high confidence in these assessments…

And here's how the FBI defines "high confidence."

High confidence generally indicates the FBI’s judgments are based on high quality information from multiple sources. High confidence in a judgment does not imply the assessment is a fact or a certainty; such judgments might be wrong. While additional reporting and information sources may change analytical judgments, such changes are most likely to be refinements and not substantial in nature.

What's in this open-and-shut report? What key elements lead the FBI to believe "BIEs" will be killing cops in the future? Well, it appears to be nothing more than a recounting of recent cop killings, coupled with anecdotal evidence, like the expression of anti-white sentiment in social media posts. Beyond that, there's little connecting those who have killed cops with the ethereal FBI BIE ideal. There's certainly no organization behind the killings -- only a few common factors. And those factors -- if the FBI is allowed to continue to treat "BIE" as a threat to police officers -- will do little to discourage violence against police officers.

What it will do is allow law enforcement to engage in racial profiling and to overreact to social media rants by angry black men. And it will allow the FBI to turn into the same FBI that targeted Martin Luther King Jr. and other civil rights activists during the 1960s. In fact, it almost acknowledges as much in the report.

BIEs have historically justified and perpetrated violence against law enforcement, which they perceived as representative of the institutionalized oppression of African Americans, but had not targeted law enforcement with premeditated violence for the nearly two decades leading up to the lethal incidents observed beginning in 2014. BIE violence peaked in the 1960s and 1970s in response to changing socioeconomic attitudes and treatment of blacks during the Civil Rights Movement.

The composers of this report may have a lot of confidence in their assumptions, but no one else seems to.

Daryl Johnson, a former Department of Homeland Security intelligence agent, when asked by Foreign Policy in October why the F.B.I. would create the term “B.I.E.,” said, “I have no idea” and “I’m at a loss.” Michael German, a former F.B.I. agent and fellow with the Brennan Center for Justice’s liberty and national security program, said the “Black Identity Extremists” label simply represents an F.B.I. effort to define a movement where none exists. “Basically, it’s black people who scare them,” he said.

“Could you name an African-American organization that has committed violence against police officers?” Representative Karen Bass asked Attorney General Jeff Sessions at Tuesday’s hearing. “Can you name one today that has targeted police officers in a violent manner?” It’s no surprise that he could not. Mr. Sessions, who confessed that he had not read the report, said he would need to “confirm” and would reply in writing at a later time. The F.B.I. itself admits in the report, that, even by its own definition, “B.I.E. violence has been rare over the past 20 years.”

If the report is acted on, it will be the 1960s all over again.

Although it’s unclear what actions the F.B.I. will take as a result of the report, the conclusions pave the way for it to gather data on, monitor and deploy informants to keep tabs on individuals and groups it believes to be B.I.E.s. This could chill and criminalize a wide array of nonviolent activism in ways that have terrifying echoes its infamous Cointelpro program, which investigated and intimidated black civil rights groups and leaders, including Marcus Garvey and the Rev. Dr. Martin Luther King Jr. Under this program, F.B.I. agents concocted a false internal narrative connecting Dr. King to foreign enemies, allowing agents to justify threatening to publicize his private life and encouraging him to commit suicide. This is a reminder that while the “Black Identity Extremist” designation is new, the strategy of using a vague definition to justify broad law enforcement action is not.

This is what the report looks like from the outside. It's unclear if those inside the agency feel the same way. The leaked report confirms many people's suspicions about law enforcement agencies: they view minorities as threats and will concoct narratives to support these views. There's no evidence any sort of BIE organization exists, much less the existence of a concerted effort to inflict violence on police officers. But this report is a gift to every police officer and FBI agent who really wants to believe African Americans are out to get them. Given the administration's unqualified support for law enforcement, coupled with the Commander in Chief's off-the-cuff encouragement of violence, this report is basically an invitation to start policing like it's 1960, rather than 2017.

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Posted on Techdirt - 15 November 2017 @ 9:33am

'Tis The Season To Fail To Catch Contraband And Explosive Devices At TSA Checkpoints

from the ho-ho-ho-now-I-have-an-explosive-precursor dept

Just in time for the travel season to kick in, the TSA is operating at peak efficiency. Streamlining travelers' pre-boarding procedures this year -- just like every year preceding it -- will be the agency's inability to keep dangerous items from making their way onboard.

Two years ago, the TSA's Inspector General discovered it could sneak contraband -- including explosive devices -- past the agency's pizza box recruits 95% of the time. A follow-up audit two years later was just as unimpressive. The IG's "Red Team" audit team called it quits after sneaking 17 of 18 forbidden items past TSA screeners. At 94.4%, it's hard to tell whether this is the TSA's idea of improvement or just the result of a smaller sample size. (The first audit team made 70 smuggling attempts, succeeding 67 times.) Theoretically, given enough attempts, the TSA may have been able to push this number much closer to 100%.

Good news of a sort then: the latest screening sting operation shows exponential improvement by TSA screeners. The problem is multiples of super-low numbers still result in large amounts of failure.

In recent undercover tests of multiple airport security checkpoints by the Department of Homeland Security, inspectors said screeners, their equipment or their procedures failed more than half of the time, according to a source familiar with the classified report.

When ABC News asked the source familiar with the report if the failure rate was 80 percent, the response was, “You are in the ballpark.”

And that ballpark is the Mendoza Line. The TSA can now tell travelers it's capable of batting .200 against would-be terrorists, just as airports begin to see increased amounts of air travel. And that's only at the airport tested. Your travel safety mileage may vary, depending on point of departure.

The report itself remains classified for the time being, presumably at the request of the terminally-embarrassing agency. Hopefully, the Inspector General won't allow this to remain buried for much longer or redacted to uselessness by America's perennial underachiever.

As for the TSA, it says it's definitely going to be buckling down and taking travel safety seriously.

“We take the OIG’s findings very seriously and are implementing measures that will improve screening effectiveness at checkpoints,” said TSA administrator David Pekoske. “We are focused on staying ahead of a dynamic threat to aviation with continued investment in the workforce, enhanced procedures and new technologies,” he added.

It is to LOL. This is a carbon copy of statements made after every egregious security failure by the TSA. The last few years of screening failures show little in the way of improvement. As for "staying ahead of dynamic threats," the TSA certainly can't do that when un-dynamic threats can walk past checkpoints carrying explosive devices. And the TSA isn't actually known for "staying ahead" of anything. Every new dehumanizing procedure and item added to the no-fly list is the result of threats screeners didn't catch before they boarded planes and wreaked havoc.

These are all just words meant to make the agency sound like it truly wishes to serve some higher purpose. But the facts flatly contradict the assertions made by the TSA in the wake of multiple successive failures.

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Posted on Techdirt - 14 November 2017 @ 7:42pm

Texas National Guard Latest Agency To Be Discovered Operating Flying Cell Tower Spoofers

from the sky-spies dept

More evidence of high-flying surveillance has been uncovered by public records requests. The Texas Observer reports it has obtained documents showing local National Guard units are in possession of airborne IMSI catchers.

The Texas National Guard last year spent more than $373,000 to install controversial cellphone eavesdropping devices in secretive surveillance aircraft.

Maryland-based Digital Receiver Technology Inc., or DRT, installed two of its DRT 1301C “portable receiver systems” in National Guard aircraft in partnership with the Drug Enforcement Administration, according to a contract between the Texas National Guard and the company. The contract states that the dirt boxes, as they’re often called after the company’s acronym, are for “investigative case analytical support” in counternarcotics operations and were purchased using state drug-asset forfeiture money.

These aren't the first DRT boxes to be exposed via public records requests. Law enforcement agencies in Chicago and Los Angeles are also deploying these surveillance devices -- with minimal oversight and no public discussion prior to deployment. The same goes for the US Marshals Service, which has been flying its DRT boxes for a few years now with zero transparency or public oversight.

The same goes for the National Guard in Texas. There doesn't seem to be any supporting documentation suggesting any public consultation in any form before acquisition and deployment. Not only that, but there's nothing in the documents obtained that clarifies what legal authority permits National Guard use of flying cell tower spoofers.

[T]he Texas National Guard is a military force under the governor’s command, not law enforcement. It’s unclear under what legal authorities the State Guard would be operating to conduct electronic eavesdropping. In 2015, the Justice Department issued guidelines for federal law enforcement agencies requiring that a probable cause warrant be obtained from a judge before using such technology. The Texas National Guard refused to explain to the Observer what steps, if any, it takes to secure a warrant prior to deploying the devices, or where the dirt boxes are being used.

No one knows what guidance the National Guard is operating under, much less what it does with all the cell phone data it hoovers up. It's a black hole and the National Guard refuses to discuss it. While it's undoubtedly true some law enforcement methods need to be kept under wraps, this doesn't mean agencies -- especially those like the National Guard which only play a supporting role in some law enforcement activities -- should deploy mass surveillance tools without some public discussion. Concerns definitely need to be addressed when a military agency gets into the domestic law enforcement business.

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Posted on Techdirt - 14 November 2017 @ 3:36pm

Shady Anti-Spyware Developer Loses Lawsuit Against Competitor Who Flagged Its Software As Malicious

from the respect-us,-they-sued dept

Enigma Software makes Spyhunter, a malware-fighting program with a very questionable reputation. But the company isn't known so much for containing threats as it's known for issuing threats. It sued a review site for having the audacity to suggest its pay-to-clean anti-spyware software wasn't a good fit for most users… or really any users at all.

Bleeping Computer found itself served with a defamation lawsuit for making fact-based claims (with links to supporting evidence) about Enigma's dubious product, dubious customer service tactics (like the always-popular "auto-renew"), and dubious lawsuits. Somehow, this dubious lawsuit managed to survive a motion to dismiss. Fortunately, Bleeping Computer was propped up by Malwarebytes' developers, who tossed $5,000 into Bleeping Computer's legal defense fund.

The developers of this more highly-regarded anti-malware program soon found themselves facing the litigious wrath of Enigma, which apparently makes enough from its pay-to-clean, auto-renewing, subscription-based Spyhunter program to keeps lawyers busy all the damn time.

Enigma decided to sue Malwarebytes for felony interference with a business model, a.k.a., "tortious interference." According to Enigma, it was unfair and retaliatory for Malwarebytes to treat its software as a threat to users and remove it from computers when performing scans.

The judge, fortunately, did not agree. Malwarebytes has emerged victorious [PDF] in a lawsuit that began with unfair business practices allegations before somehow morphing into an argument about the limits of Section 230 immunity.

Malwarebytes cited a Ninth Circuit Appeals Court decision which dealt with the actions of another anti-malware provider, Kaspersky. In that case, Kaspersky availed itself of Section 230 immunity to dismiss claims made by Zango, an adware pusher. As Malwarebytes points out, the Appeals Court found Kaspersky's blocking of Zango's adware to be immune from Zango's claims of interference, reasoning that the removal of objectionable software is pretty much equivalent to removing objectionable content. Efforts made to police software/content do not strip providers and publishers of immunity.

Enigma argued the decision clearly stated the removed material must be "content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." It claimed its software fell under none of those headings. The district court disagrees:

Enigma overlooks Zango’s clear holding that § 230(c)(2)(B) immunity applies to “a provider of computer services that makes available software that filters or screens material that the user or the provider deems objectionable.”

[...]

This interpretation of Zango aligns with the plain language of the statute, which likewise states that immunity applies to “material that the provider or user considers to be . . . objectionable.” 47 U.S.C. § 230(c)(2)(A) (emphasis added). In Zango, the provider of the anti-malware software, Kaspersky, exercised its discretion to select the criteria it would use to identify objectionable computer programs. The Ninth Circuit held that malware, as Kaspersky defined it, was properly within the scope of “objectionable” material. In that respect, the Court agrees with Malwarebytes that Zango is factually indistinguishable from the scenario here.

In its final attempt to skirt Section 230 immunity, Enigma attempted to resculpt its arguments into a half-assed Lanham Act complaint. But the court has zero sympathy for Enigma's attempt to drag trademark into this.

Enigma’s argument fails because its complaint does not allege an intellectual property claim. The Lanham Act contains two parts: one governing trademark infringement (15 U.S.C. § 1114) and one governing unfair competition (15 U.S.C. § 1125(a)). The unfair competition provision, in turn, “creates two distinct bases of liability”: one governing false association (15 U.S.C. § 1125(a)(1)(A)) and one governing false advertising (15 U.S.C. § 1125(a)(1)(B)). Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014). Enigma’s complaint asserts a false advertising claim under § 1125(a)(1)(B). FAC ¶ 135.

Enigma does not assert claims under the trademark provisions of the Lanham Act. The complaint does not allege that Enigma owns trademarks or any other form of intellectual property, nor does it allege that Malwarebytes has committed any form of intellectual property infringement, including misuse of its trademarks. Accordingly, the Court finds that Enigma’s false advertising claim under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), does not arise under a “law pertaining to intellectual property” under 47 U.S.C. § 230(e)(2).

Enigma loses, Malwarebytes wins, and status remains quo until the inevitable appeal. Enigma seems to believe it can sue its way into respectability -- somehow failing to realize every lawsuit against competitors and critics moves it several steps in the opposite direction.

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Posted on Techdirt - 14 November 2017 @ 10:44am

Latest DOJ WTFness: Encryption Is Like A Locked House That Won't Let Its Owners Back Inside

from the spare-the-Rod,-spoil-the-horse-carcass dept

Deputy Attorney General Rod Rosenstein continues his push for law enforcement-friendly broken encryption. The ultimate goal is the same but the arguments just keep getting worse. Trying to pitch worthless encryption (i.e., encryption easily compromised in response to government demands) as "responsible" encryption is only the beginning of Rosenstein's logical fallacies.

After a month-plus of bad analogies and false equivalents, Rosenstein has managed to top himself. The path to Rosenstein's slaughtering of a metaphor runs through such highlights as the DAG claiming device encryption is solely motivated by profits and that this is the first time in history law enforcement hasn't had access to all forms of evidence. It's an intellectually dishonest campaign against encryption, propelled by the incredibly incorrect belief that the Fourth Amendment was written to provide the government with access, rather than to protect citizens from their government.

In a long article by Cyrus Farivar discussing a recent interview given by Rosenstein, the Deputy Attorney General drops this abomination of an analogy:

"I favor strong encryption, because the stronger the encryption, the more secure data is against criminals who are trying to commit fraud," he explained. "And I'm in favor of that, because that means less business for us prosecuting cases of people who have stolen data and hacked into computer networks and done all sorts of damage. So I'm in favor of strong encryption."

"This is, obviously, a related issue, but it's distinct, which is, what about cases where people are using electronic media to commit crimes? Having access to those devices is going to be critical to have evidence that we can present in court to prove the crime. I understand why some people merge the issues. I understand that they're related. But I think logically, we have to look at these differently. People want to secure their houses, but they still need to get in and out. Same issue here."

It is nowhere near the "same issue." I sincerely hope DAG Rosenstein regrets every word of this statement.

Let's streamline the analogy: People want to protect the data on their phones. People still want to be able to access this data on their phones. In no case ever has encryption prevented people from accessing the data on their phones. Forgotten passcodes might, but that's like losing house keys. You might need outside assistance to get back in.

Rosenstein's analogy skips a step. It has to. There's no way this analogy can ever work couched in Rosenstein's anti-encryption statements. People lock their houses when they leave and unlock them with their keys when they get back. Rosenstein's analogy is completely baffling, given the context of his remarks. How does strong security prevent people from "entering" their devices? It doesn't and Rosenstein knows this. It only prevents people other than the device owner from doing so.

What he's actually talking about is government access, but he can't find a credible argument for weakening the strong encryption he just claimed he believed in. And he doesn't have the intellectual honesty to say what he really means. The "they" in "but they still need to get in and out" is meant to encompass law enforcement agencies. In the context of Rosenstein's anti-encryption argument, that's the only interpretation that makes any sort of sense. Otherwise, it's a non sequitur -- one that claims strong security is somehow capable of preventing home owners from coming and going as they please.

A boneheaded analogy like this is the only rhetorical option left. That's because what Rosenstein wants -- easily-compromised "strong" encryption (i.e., "responsible encryption") -- simply cannot exist. Impossible demands can only be justified by implausible arguments. Given the swift and steady deterioration of Rosenstein's rhetoric, it's probably time to put his "Dead Horses and the Men Who Beat Them" show on ice.

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Posted on Techdirt - 14 November 2017 @ 3:28am

UK Gov't Destroys Key Emails From Julian Assange Case, Shrugs About It

from the because-retaining-them-meant-someone-might-access-them dept

More irresponsible handling of documents has been uncovered by public records requests. Information you'd think the government would actually want to hang onto has apparently been deleted by those charged with retaining it.

The Crown Prosecution Service is facing embarrassment after admitting it destroyed key emails relating to the WikiLeaks founder Julian Assange, who is holed up in Ecuador’s London embassy fighting extradition.

Email exchanges between the CPS and its Swedish counterparts over the high-profile case were deleted after the lawyer at the UK end retired in 2014.

The destruction of potentially sensitive and revealing information comes ahead of a tribunal hearing in London next week.

This auspicious disappearance was sniffed out by Italian journalist Stefania Maurizi, who has been covering Wikileaks for the better part of a decade. And, because it's now unavoidable, it has admitted the destruction in court as part of its filings in a FOI lawsuit brought by Maurizi.

CPS officials are now offering defensive statements about the document destruction, assuring the public, angry FOI requesters, and other government branches that they are willing to dissonantly cogitate their way out of this embarrassment.

Statement 1:

Asked if the CPS had any idea what was destroyed, a spokesperson said: “We have no way of knowing the content of email accounts once they have been deleted.”

Statement 2:

A legal manager at the CPS, Mohammed Cheema, who has been dealing with the FOI requests, said, in a lengthy witness statement in August this year, that the Assange case file comprises mainly 55 lever-arch files, one A4 file and a selection of other paper files.

He added it was very unlikely the CPS held further significant email correspondence.

I guess it all depends on when you ask the question. The second statement could be true pre- or post-email deletion, but probably more likely to be true after the scrubbing. But it's a bit rich to ask everyone to believe these are simultaneously true -- that the contents are unknown but also unlikely to be significant.

The chance something "significant" may have been deleted remains high. And it will always remain so because the absence of emails means the absence of contradictory evidence. The UK is still interested in Assange and Wikileaks, even though it hasn't pressed the issue of extradition in quite some time. This is CPS's excuse for the mass deletion: the communications were related to extradition proceedings that ended in 2012 and contain nothing relevant to ongoing Assange-related government activity. According to CPS, this deletion was per policy.

“Most casework papers and related material are stored for three years following the conclusion of proceedings, or for the duration of the convicted defendant’s sentence plus three months. In some cases material may be held for longer.”

The problem appears to be the policy then. If documents of interest to the public and of possible use in future prosecutions vanish just because the clock runs out, the policy would appear to run counter to the point of document retention laws. No one expects everything to be retained indefinitely, but archiving electronic documents like emails isn't exactly a Sisyphean endeavor.

The ending of an investigation or prosecution shouldn't trigger a countdown clock that expires this quickly, especially when governments are almost always able to withhold documents while investigations and prosecutions are still ongoing. Generally speaking, government agencies are the only ones that can say definitively when investigations end, leaving document requesters to figure this out through trial and error.

In this case, Maurizi will be continuing her FOI lawsuit against the CPS, but with some of the targeted documents already deleted, there's little to be gained.

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Posted on Techdirt - 13 November 2017 @ 7:59pm

Investigation Shows Chicago PD Has Zero Interest In Holding Its Officers Accountable

from the half-decade-wait-for-a-five-day-suspension dept

Why Chicago's Police Force Is A Godawful Train Wreck, Part 192: A Staggering Lack of Accountability.

Even after a Chicago Tribune investigation in March revealed faults with the disciplinary system that had caused officials to lose cases — and after they pledged to track down and finalize those cases — some punishments remain pending.

ProPublica Illinois and the Tribune, collaborating on this story, discovered Levigne's case as reporters tried to determine whether police officials had followed through on their promise.

The previous story detailed how pending punishments for at least 14 officers had been forgotten, and pointed out there likely were more. Police officials have required many of those officers, as well as about a dozen others, to serve punishments — years late — during the past few months, the Tribune and ProPublica Illinois confirmed.

But officials continued to let other old cases stall as they failed to make sense of their own disjointed — and sometimes incorrect — records.

That's just the latest in a long line of travesties committed by the Chicago PD. This follows other such lowlights as the PD operating its own Constitution-free "black site" inside the city, where criminal suspects were taken, detained, and interrogated with zero regard for their civil liberties. When Chicago police officers aren't shooting people and lying about it, they're participating in god knows what other sorts of misconduct after tampering with their recording devices.

The reason it's taken so long for anything to be done about this is a lack of accountability. Those up top feel no compunction to punish officers for misdeeds, often only following through when forced to by public outcry. When it does finally occur, it's years after the fact and often reduced to wrist slap.

The case cited above in the Chicago Tribune report involves Chicago PD officer Brandon Levigne. Levigne pulled a gun on a motorist for supposedly cutting him off in traffic. Levigne was not in uniform. The driver, Brandon Whitehead, called 911, thinking he was being carjacked. Whitehead reported this incident to the Chicago PD. This report was filed in 2006.

Police officials concluded that Levigne had mistreated the Whiteheads, used profanity and lied about it, and they recommended that he be suspended for 60 days. But they didn't follow through, and the officer didn't serve a reduced suspension until just this month, after reporters repeatedly questioned the delay.

It took eleven years for the officer to be punished. And it was a lighter punishment than police officials originally recommended. In the intervening years, Levigne -- who the department had ruled had engaged in misconduct years ago -- was promoted to detective.

The system used to track officer misconduct is archaic and needlessly convoluted -- so much so the system's inability to provide anything resembling accountability appears to be deliberate.

Emanuel fired police Superintendent Garry McCarthy, appointed a task force to propose reforms and revamped the former police oversight agency, the Independent Police Review Authority, or IPRA.

A replacement agency, the Civilian Office of Police Accountability, began work Sept. 15.

But COPA must work within the same labyrinthine disciplinary system that has contributed to a lack of accountability. Records are kept on paper and shuffled between the oversight agency and the Police Department.

There is no management system in place to track cases, and they fall through the cracks.

And again, the only reason the CPD is moving forward with long-delayed punishments is due to outside pressure. External investigations by ProPublica and the Chicago Times have resulted in more cases being completed than years of internal management by the department. The new independent oversight board faces the same challenges: a culture deeply uninterested in punishing misconduct and a tracking system so broken it makes a mockery of the phrase "paper trail." One serious complaint finally resulted in a (laughable) punishment more than a half-decade after the fact.

A police spokesman said Stacker served his one-day suspension in April, six years after the warrantless entry. Stacker is currently stripped of police powers and on desk duty in connection with another case, a police spokesman said.

In this case, Officer Stacker announced he would file a grievance after an internal investigation found he had violated citizens' Fourth Amendment rights. But that's all Stacker did. The grievance was never filed and the case slipped into the undertow of the CPD's complaint tracking system, only resurfacing years later with the assistance of outside scrutiny.

The IRPA's help is appreciated but it too has problems following through with investigations and recommendations. Accused officers deliberately screw with the system by promising to challenge rulings or appeal decisions. These moves are never made and the complaints sit in limbo awaiting officers' next moves. When punishments are finally handed down years after the fact, they're often far less than was recommended or agreed to. The appeals that officers never got around to filing are somehow treated as being filed in absentia. And even the reduced punishments are never served.

Officer Jorge Martinez Jr. was accused of drunkenly challenging and taunting a security guard and officers from a Texas police department while attending a wedding reception in Dallas in 2007. He was charged with misdemeanor assault in Texas, but the case was dismissed.

IPRA recommended a 60-day suspension in 2011, but Martinez settled with the city for five days in 2015.

IPRA had no record of getting the settlement agreement that reduced the punishment, so years passed and Martinez never served the suspension. In May, however, a CPD sergeant in the Bureau of Internal Affairs alerted IPRA and Police Department officials that Martinez's disciplinary case was listed as active when it should have been closed long ago, emails show.

Still, nothing happened.

The Chicago PD is an accountability black hole. Plenty of paperwork goes in, but it's never seen again. The CPD won't make any sort of effort, despite handling many of these investigations in house. The independent review board suffers from its outsider status and its relative powerlessness to ensure closed investigations result in the meting out of discipline. There's no reason for the CPD to change. It's gotten along for years with a minimum of scrutiny and its officers have tons of experience in the art of thwarting oversight. If the heads up top aren't rolling, abusive officers further down the organizational chart have nothing to fear.

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Posted on Techdirt - 13 November 2017 @ 1:23pm

First Ever En Banc FISA Court Review Gives Plaintiffs Standing To Challenge Surveillance Program Secrecy

from the How-I-Learned-To-Stop-Worrying-And-Love-The-Adversarial-Process dept

One more thing we can give Ed Snowden credit for: the possibility we may be seeing even more public access to FISA court opinions and other FISA docs in the future. [h/t Mike Scarcella]

There's still a long way to go procedurally, but this latest ruling from the FISA court will allow a First Amendment lawsuit by the ACLU and the Yale Law School Media Freedom and Information Access Clinic to move forward. Being granted the standing to actually challenge government surveillance is a rarity. The cover of national security darkness has prevented many plaintiffs from being able to allege harm, but the Snowden leaks have provided many public entities the information they need to shore up these allegations.

The FISA court review process behind this opinion is itself a unicorn: it's an en banc review of the plaintiffs' challenge -- the first time this has ever happened in the history of the court. The opinion [PDF] notes the rarity of the occasion as well as acknowledges the significant "standing" hurdle the plaintiffs were facing.

Figuring out whether a plaintiff has standing to bring a novel legal claim can feel a bit like trying to distinguish a black cat in a coal cellar. "Although the two concepts unfortunately are blurred at times, standing and entitlement to relief are not the same thing. Standing is a prerequisite to filing suit, while the underlying merits of a claim ... determine whether the plaintiff is entitled to relief." Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir. 2008). The Initial Opinion in this action decided that Movants -- the American Civil Liberties Union and Yale Law School's Media Freedom and Information Access Clinic -- had suffered no injury-in-fact and thus lacked standing to bring their First Amendment claim for access to redacted portions of certain of this Court's opinions. Sitting en banc for the first time in our history, we now vacate that decision. Whatever the merits of Movants' suit, we conclude that they have asserted a sufficient injury-in-fact to pursue it.

Shortly thereafter, the judges tip their hats to Snowden.

By necessity, this Court conducts much of its work in secrecy. But it does so within a judicial system wedded to transparency and deeply rooted in the ideal that "justice must satisfy the appearance of justice." Levine v. United States, 362 U.S. 610, 616 (1960). It comes as no surprise, then, that members of the public may at times seek to challenge whether certain controversies merit our continued secrecy or, instead, require some degree of transparency. The matter before us was born from two such challenges. On June 6, 2013, two newspapers released certain classified information about a surveillance program run by the Government since 2006. Within a day, the Director of National Intelligence declassified further details about this bulk-data-collection program, acknowledging for the first time that this Court had approved much of it under Section 215 -- the "business records" provision -- of the Patriot Act, 50 U.S.C. § 1861.

From there sprung the First Amendment challenge: the plaintiffs argued the Snowden leaks stripped away the justification for continued secrecy by the government. They argued the ongoing refusal to hand over the government's legal justification of the program -- as approved by the FISA court -- violated the First Amendment "right of access" to courtroom proceedings and documents.

As more documents were leaked, the right to access argument grew stronger -- especially when the leaks were followed by official government acknowledgement of each program's existence and, in some cases, the official release of other documents by the government itself.

The court now agrees -- after en banc review -- that the alleged harm is sufficient enough to move forward with its lawsuit against the government. It also notes that the granting of standing doesn't pass any judgment on the merits of the arguments, other than to acknowledge the plaintiffs have the right to pursue them. (In other words, courts will entertain arguments destined for doom, but denying doomed arguments upfront would violate other rights.)

A plaintiff, for instance, might lack standing "to complain about his inability to commit crimes because no one has a right to a commit a crime," and no Court could recognize such an interest. Citizen Ctr. v. Gessler, 770 F.3d 900, 910 (10th Cir. 2014). On the other hand, he would have standing to bring colorable First Amendment claims, even if he would ultimately lose on the merits.

[...]

Indeed, were we to define rights with any greater level of specificity, no plaintiff would have standing to challenge established First Amendment precedent. This is certainly not the case.

[...]

At bottom, the legally-protected-interest test is not concerned with determining the proper scope of the First Amendment right or whether a plaintiff is correct that such right has in fact been invaded; that is a merits inquiry. Waukesha, 320 F.3d at 235. The test instead seeks only to assess whether the interest asserted by the plaintiff is of the type that "deserve[s] protection against injury."

[...]

Against this backdrop, the sufficiency of Movants' allegation of such a legally protected interest appears clear. They identify the invasion of an interest - the First Amendment right to access judicial proceedings - that courts have repeatedly held is capable of "being known or recognized."

[...]

No more than this is necessary for standing purposes, even if Movants ultimately fail to prove that the precise scope of the First Amendment right extends to redacted portions of our judicial opinions under the Richmond Newspapers test.

So, it's a win of sorts, even though it's very limited. As Mike Scarcella noted, it's a "foot in the door," rather than a victory. But it stems from a historic first -- an en banc review by the FISA court -- and indicates the nation's most secretive court is willing to address issues in a more adversarial setting than it's used to.

There's a lengthy dissent attached that appears to believe there's no right to access to classified documents and this decision will set up the government for endless redaction challenges, but that's kind of the point. Even the nation's most secret court shouldn't be completely beyond the reach of the citizens it ultimately serves.

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Posted on Techdirt - 13 November 2017 @ 10:41am

DOJ: Civil Asset Forfeiture Is A Good Thing That Only Harms All Those Criminals We Never Arrest

from the nothing-good-to-say-but-all-the-space-in-the-world-to-say-it dept

Deputy Attorney General Rod Rosenstein has taken a brief vacation from his "Responsible Encryption World Tour" to defend the merits of something equally questionable: civil asset forfeiture. [h/t Meaghan Ybos]

As is the case with any article defending the practice of taking "guilty" stuff from people without even bothering to determine whether the people were actually guilty of anything, Rosenstein's WSJ editorial glosses over the thousands of abuses to home in on a high profile case: the prosecution of Bernie Madoff.

Thanks to civil asset forfeiture, the Department of Justice is announcing today the record-setting distribution of restitution to victims of Bernard Madoff’s notorious investment fraud scheme. We have recovered $3.9 billion from third parties—not Mr. Madoff—and are now returning that money to more than 35,000 victims. This is the largest restoration of forfeited property in history. Civil forfeiture has allowed the government to seize those illicit proceeds and return them to Mr. Madoff’s victims.

To be clear, assets taken from Madoff were seized via criminal asset forfeiture, which requires a conviction. Rosenstein's decision to open with this glosses over this difference, allowing the reader to think civil/criminal asset forfeiture are barely distinct entities. His op-ed doesn't actually say how much of that $3.9 billion came from civil asset forfeiture -- a process that has nothing to do with a criminal prosecution like Madoff's.

From there, Rosenstein says the expected stuff: civil asset forfeiture is just a way of crippling criminal enterprises, despite it being predicated on one-sided accusations about the allegedly illegitimate origin of seized property and tied to a judicial process that discourages citizens from attempting to reclaim their possessions.

The opening paragraph also makes it appear as though civil asset forfeiture is often used to return unlawfully obtained assets to victims of crime. Nothing could be further from the truth. While this occasionally happens in criminal forfeiture cases, the lack of criminal charges in civil forfeiture cases makes it extremely unlikely there will be any "victims" to "return" seized assets to.

In most cases, the agency performing the seizure is allowed to directly benefit from it. Whether it's used to pay for new equipment or offset investigatory expenses, seized property rarely ends up back in the hands of victims.

But you won't be hearing any of that in Rosenstein's pro-forfeiture pep talk. Instead, he presents civil forfeiture as a skillfully-wielded scalpel, rather than the property-grabbing cudgel it actually is.

Some critics claim that civil asset forfeiture fails to protect property rights or provide due process. The truth is that there are multiple levels of judicial protection, as well as administrative safeguards.

First, money or property cannot be seized without a lawful reason. The evidence must be sufficient to establish probable cause to believe a crime was committed. That is the same standard needed to justify an arrest.

Second, if anyone claims ownership of the property, it may be forfeited only if the government presents enough evidence in court to establish by a preponderance of the evidence it was the proceeds of crime, or was used to commit a crime.

Courts apply the “beyond a reasonable doubt” standard only in criminal cases. That high threshold of proof is appropriate when the stakes involve a person’s criminal record and potential imprisonment. But all other lawsuits, no matter how much money is at issue, use the normal civil standard. There is no logical reason to demand the elevated criminal standard in a lawsuit about illicit proceeds.

First, the money can be seized for any reason, with justification supplied after the fact. Stating law enforcement needs "probable cause" to seize property is simply untrue. Rosenstein knows this because he points out the standard of evidence needed to secure the forfeiture is actually lower than the standard needed to secure a warrant: "preponderance of evidence." If probable cause were actually needed, drivers and travelers wouldn't have to worry nearly as much about having their cash seized by highway patrol officers during traffic stops or by DEA agents while passing through airport security. Pretextual stops and scanning passenger manifests for one-way ticket purchases are no one's idea of "probable cause."

Furthermore, if the standard of evidence needed prior to seizure was actually the same as the requirement to secure an arrest warrant, more seizure victims would be arrested. But they're not. They're usually free to go, minus whatever law enforcement officers have taken from them.

As for the last part, Rosenstein is right: we shouldn't need to change the standard of evidence in civil cases. But that's not where the change is needed. If property is being taken from criminals -- as Rosenstein and other forfeiture supporters claim -- then all seizures should be of the criminal variety: a conviction should be required. This leaves civil lawsuit evidence requirements unchanged… just the way Rosenstein prefers it.

Then there's this, which Rosenstein offers up as some sort of proof that the government is in the right at least 80% of the time when it takes property from citizens without charging them with crimes:

About 80% of the time, nobody even tries to claim the seized assets.

Well, let's look at this. Rosenstein talks billions in his Madoff anecdote, but the reality of civil asset forfeiture is a majority of seizures fall well under the $1,000 mark. Considering the long, uphill battle facing forfeiture victims, anything short of several thousands dollars usually isn't worth the effort. In those cases, the expenses of challenging the forfeiture would outweigh the the value of the property recovered. This is a stupid stat that proves nothing.

The years of documentation of widespread forfeiture abuse by law enforcement agencies? It's reduced to this by the Deputy Attorney General:

To be sure, law-enforcement officers sometimes make mistakes.

Come on, Rod. This is just embarrassing. You want the private sector to trust you and get on board with DOJ encryption key escrow, etc.? Maybe stop lying to the public. Maybe discontinue this gross minimization of repeated, abusive law enforcement behavior. Maybe do something more to curb forfeiture abuse. Hell, try doing anything at all. The only thing the DOJ has done in recent months is open back up the federal forfeiture adoption program -- something that has been abused for years by law enforcement agencies looking to route around restrictive state laws.

It's unsurprising the DOJ would argue publicly that civil asset forfeiture is A-OK and good for America. It's just unsettling that the arguments are this bad.

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