Following Crime Increases, US City Governments Decide It’s Time To Sacrifice Liberty For Safety

Legal Issues

from the and-now-you-get-neither dept

Crime rates are increasing. And too many government officials are deciding it must be something other than the most obvious explanation. That’s prompting actions that will give residents of certain states and cities less liberty, while doing very little for their safety.

Virginia in July will eliminate its prohibition on local police use of facial recognition a year after approving it, and California and the city of New Orleans as soon as this month could be next to hit the undo button.

Homicide reports in New Orleans rose 67% over the last two years compared with the pair before, and police say they need every possible tool.

The wave of bans of facial recognition tech appears to have crested. It’s now receding at an alarming pace. And for what? Because crime numbers are higher in 2022 than they were in 2020 and 2021?

City leaders seem to have forgotten (and police officials seem to be deliberately forgetting) what was happening all across the country in 2020. A pandemic hit and cities were on lockdown. Travel was severely restricted. When people’s movements are limited, so are their activities, whether its travel miles, retail purchases, or, yes, even committing homicide.

A 67% increase in retail sales would be treated as the expected outcome of lifting COVID-related restrictions that were put in place in 2020. But a 67% increase in homicides is treated as though it’s a symptom of placing too many restraints on law enforcement, limiting their effectiveness in preventing or solving crimes.

In 2019, New Orleans hit a 50-year low for homicides. That it hit 218 in 2019 is cause for concern, but also marked a regression towards the mean. 218 homicides is still far lower than the city’s peak of 464, reached in 1994. And any attendant drops in crime rates in 2020 and 2021 can likely be attributed to COVID restrictions, rather than New Orleans cops getting better at preventing or solving crime.

They certainly aren’t all that great at solving murders, despite these numbers remaining at historic lows.

NOPD records show as of Dec. 27, NOPD made arrests in 70 of the 214 murders through that date in 2021 and had warrants out on another six murder cases from last year.

Ferguson said there were 20 indictments in the year 2021.

Perhaps the NOPD’s inability to close murder cases is leading to this perceived spike. When it’s clear you have nearly a 67% chance to get away with murder, you might think it’s a viable option with an extremely limited downside.

What’s not included in this agitating for the overturning of facial recognition bans is any evidence that lack of access has contributed to crime rate increases — one that can more likely be attributed to the removal of COVID restrictions in recent months. Even if COVID isn’t to blame/thank for crime rate decreases in 2020 and 2021, it’s equally unlikely the absence of facial recognition tech access is to blame for crime rate increases that, once again, have only brought crime rates up to levels that are higher than a couple of years ago but are still a vast improvement over those seen 15-20 years ago.

And what’s going to happen once these bans are lifted? If anyone actually believes this is going to result in a 67% decrease in homicides in New Orleans (for example), they’re genuinely too stupid to hold public office. Their lack of critical reasoning makes them a liability, something that’s going to continue to cause more harm to both public safety and residents’ civil liberties.

Meanwhile, a narrative pushed mostly by “if it bleeds, it leads” outlets is contributing to a rollback of California’s historical facial recognition ban.

California in 2019 banned police from using facial recognition on mobile devices such as body-worn cameras. But the prohibition expires on Jan. 1 because of a provision state senators added.

Now, news reports about rising retail theft and smash-and-grab robberies have captured lawmakers’ attention, said Jennifer Jones, a staff attorney for ACLU of Northern California.

As a result, ACLU has faced resistance from law enforcement to make the ban permanent.

“Police departments are exploiting people’s fears about that crime to amass more power,” Jones said. “This has been for decades, we see new technologies being pushed in moments of crisis.”

This is lazy lawmaking. This allows one narrative to determine what can be inflicted on all Californians. And, again, anyone expecting the lifting of the ban to result in the lowering of crime rates to levels seen before the ban is asking far too much from a tool with limited usefulness and even worse accuracy. California legislators are willing to protect their constituents, but apparently only until someone starts making noise about criminal activity that is perceived to be far more omnipresent than it actually is. And it’s another sacrifice of liberty that can’t even pretend to bring about a corresponding gain in public safety.

Filed Under: civil liberties, crime, facial recogition, law enforcement, policing

Re-Funding The Police: Taxpayers On The Hook For Billions of Dollars Of Law Enforcement Lawsuit Settlements

Legal Issues

from the chasing-bad-money-with-worse-money dept

Apparently, it’s not enough that we pay their salaries and buy their uniforms, vehicles, and weapons. We’re also expected to foot the bill when law enforcement officers fuck up so badly they can’t even avail themselves of qualified immunity, a Supreme Court-created legal doctrine that has been watered down for decades, allowing all but the most egregious violators of rights to walk away from their misconduct.

The biggest cities cause the most damage to taxpayers, as is to be expected. New York City alone managed to rack up a half-billion in lawsuit settlements over two years, thanks to officers who have rarely had to fear being punished by their employer for violating policies and rights.

Nearly every law enforcement officer in the nation is indemnified by the cities they work for, which means that losing a lawsuit means the officer in the wrong loses nothing of value. They don’t lose their own money and, in most cases, they don’t even lose their jobs or law enforcement certification.

Law enforcement agencies love the powers they’ve been granted. They have almost zero interest in the accountability that’s supposed to be bundled with these powers. When anyone threatens to make officers more accountable, government officials, law enforcement “leaders,” and police unions step up to decry proposed measures, claiming almost any attempt to pair power with responsibility will threaten public safety.

In what is surely an undercount of the true fiscal cost, the Washington Post has totalled up the financial damage to taxpayers caused by police officers who violate rights. Using public records requests and court documents, the Washington Post claims the total is at least $3 billion over the last decade.

The Post collected data on nearly 40,000 payments at 25 of the nation’s largest police and sheriff’s departments within the past decade, documenting more than $3.2 billion spent to settle claims.

Caveat 1: this only covers the nation’s 25 largest law enforcement agencies — a number that includes the NYPD, which has shown it’s capable of racking up a quarter billion annually in settlements. There are nearly 18,000 law enforcement agencies in the United States, which indicates this number is only the outsized tip of the iceberg.

Caveat 2: this excludes settlements under $1,000. This may have made the math simpler, but ignores the fact that even small settlements add up to real money if there’s enough of them.

Far more valuably, this report identifies officers costing taxpayers far more money than they should. Because law enforcement agencies rarely punish officers for wrongdoing, citizens are repeatedly asked to bail out the worst officers.

The Post found that more than 1,200 officers in the departments surveyed had been the subject of at least five payments. More than 200 had 10 or more.

If city officials are truly interested in saving residents money, they could just perform a little due diligence and pressure agencies to fire repeat offenders.

Officers whose conduct was at issue in more than one payment accounted for more than $1.5 billion, or nearly half of the money spent by the departments to resolve allegations, The Post found. In some cities, officers repeatedly named in misconduct claims accounted for an even larger share. For example, in Chicago, officers who were subject to more than one paid claim accounted for more than $380 million of the nearly $528 million in payments.

City officials may not be able to catch onto patterns of abuse, what with their election cycle turnover. But cop shops surely know which cops are the worst and which ones are causing them the most legal headaches. And they’ve done nothing. This may have something to do with extremely restrictive union contracts that make firing bad officers almost impossible. Or it may have something to do with bad cops being considered good cops, because they generate plenty of arrests and busts. And when budgets are on the line, the ends justify the means.

Settlements also contribute to this lack of accountability. When governments feel a suit is unwinnable because an officer is clearly in the wrong, settlement agreements silence the wronged citizen by placing restrictions on their discussions of the lawsuit while appending boilerplate saying the sued officer and the city overseeing them admit no wrongdoing. And if there was no wrongdoing (at least according to the settlement agreement), there’s no reason to note this lawsuit and its allegations in the officer’s permanent record, ensuring everyone remains ignorant of past misconduct.

That allows this cycle to continue indefinitely. The cost to the American public is far higher than the billions of dollars paid out to victims of police misconduct. The cycle encourages law enforcement agencies to remain insular, separating themselves from the people they serve with opacity and self-serving statements about standing up for what’s right and good, but almost never where it matters most: when policing their own.

Filed Under: civil liberties, civil rights, police, police payouts

Germany's New Government Promises To Support End-To-End Encryption And Reject Backdoors

Policy

from the finally-someone-is dept

A bit of welcome news as the war on encryption continues around the globe. Germany’s new government has said that it plans to come out more strongly in favor of end-to-end encryption and against backdoors. According to a report in Euractiv:

According to Jens Zimmermann, the German coalition negotiations had made it ?quite clear? that the incoming government of the Social Democrats (SPD), the Greens and the business-friendly liberal FDP would reject ?the weakening of encryption, which is being attempted under the guise of the fight against child abuse? by the coalition partners.

Such regulations, which are already enshrined in the interim solution of the ePrivacy Regulation, for example, ?diametrically contradict the character of the coalition agreement? because secure end-to-end encryption is guaranteed there, Zimmermann said.

Introducing backdoors would undermine this goal of the coalition agreement, he added.

?What is sometimes proposed in the ePrivacy Regulation goes far beyond what we envisage in terms of vulnerability management,? Zimmermann told EURACTIV, adding that implementation would ?mean actively creating vulnerabilities.?

This is certainly good to see, but it’s also important to have a country with as much clout as Germany standing up and saying this. Indeed, Zimmermann is also quoted as saying that the new German government plans to take a more vocal and proactive role on this issue.

Unfortunately, not all of the new coalition government’s views on the internet appear to be as good or as helpful. The same article also notes that while some parts of the new governing coalition had campaigned on getting rid of Germany’s truly awful NetzDG internet censorship law, the new government does not plan to support such a position, and may, in fact, support a similar EU-wide plan within the Digital Services Act (DSA) which is currently up for debate in the EU.

Germany?s Network Enforcement Act (NetzDG), which has a similar scope to the EU?s DSA and has served as its model, according to Zimmermann, is not without controversy in the country.

The FDP campaigned for its abolition during the Bundestag election campaign because, according to the liberal party, it encroached too much on civil liberties.

But Zimmermann does not believe the liberal party would drag its reservations on the NetzDG into discussions on the EU?s DSA.

?It is no longer a question of winning any symbolic victories, but we simply have to see that we get a good regulation in the end,? Zimmermann said.

That’s an odd statement that seems to suggest that protesting the disastrous and censorial NetzDG is “symbolic.” It’s not. It’s a terrible law that has been abused repeatedly and should be ditched entirely, not spread to the EU.

Filed Under: backdoors, censorship, civil liberties, content moderation, encryption, germany

Will COVID Become Australia's 9/11?

Overhype

from the trading-away-the-liberties-of-others-for-temporary-safety dept

Civil liberties in Australia are on the verge of extinction, thanks to the government’s response to the COVID crisis. What has been heralded as a triumph of science and quick responses has drifted towards something far more totalitarian that imposes its will on the country’s citizens, restricting them from living their lives, much less enjoying supposedly guaranteed liberties.

Change has been a constant in response to this pandemic. But in countries considered to be part of the “free world,” some balancing has been put in place to contain the spread of the virus while preventing citizens from being subjected to extreme measures usually only deployed by dictators.

Australia has proven particularly resilient. But while people here in the US have entertained thoughts of kidnapping governors in response to minimal restrictions on social interactions and shopping, the residents of Australia have endured severe restrictions that seemingly only get more severe as time goes on.

This is the exchange of liberty for safety — an exchange that’s been made involuntary by government officials. The arrival of the Delta variant has again complicated matters. And already severe restrictions are becoming draconian, thanks to the government of Australia believing there’s no involuntary sacrifice residents won’t make to keep COVID infections to a minimum

Conor Friedersdorf has compiled a compendium of Australia’s latest COVID prevention efforts — many of which haven’t been seen in countries that aren’t being run by Supreme Leaders or Presidents-for-life.

“Australia’s borders are currently closed and international travel from Australia remains strictly controlled to help prevent the spread of COVID-19,” a government website declares. “International travel from Australia is only available if you are exempt or you have been granted an individual exemption.” The rule is enforced despite assurances on another government website, dedicated to setting forth Australia’s human-rights-treaty obligations, that the freedom to leave a country “cannot be made dependent on establishing a purpose or reason for leaving.”

Australian courts have, so far, sided with the government and its increasing encroachment on civil liberties and personal freedoms. They have found that the government’s needs outweigh the complaints of the governed in these COVID times, under the assumption these extreme measures are not only justified, but temporary.

But it’s not just travel in and out of Australia that has been restricted. Travel within the country has been affected by COVID policies, turning a cohesive nation of states into separate territories whose boundaries are enforced with “papers, please” demands from people trying to do nothing more than move freely within the borders of their homeland.

Moving around one’s own city or town is being restricted as well, enforced by a government-owned-and-operated app.

[T]he government of South Australia, one of the country’s six states, developed and is now testing an app as Orwellian as any in the free world to enforce its quarantine rules. Returning travelers quarantining at home will be forced to download an app that combines facial recognition and geolocation. The state will text them at random times, and thereafter they will have 15 minutes to take a picture of their face in the location where they are supposed to be. Should they fail, the local police department will be sent to follow up in person.

While not technically a crime, the involvement of law enforcement makes existing within the confines of a single town — but not abiding by quarantine requirements — something indistinguishable from criminal activity. It’s not just law enforcement in the mix in Australia, though. It’s also the military, which has been sent to places the government feels contains too many citizens unwilling to stay under the government’s thumb.

Australia has deployed hundreds of soldiers to Sydney to help enforce a Covid lockdown.

A Delta outbreak which began in June has produced nearly 3,000 infections and led to nine deaths.

Australian Defence Force soldiers will undergo training on the weekend before beginning unarmed patrols on Monday.

In COVID-era Australia, those who refuse to respect the constantly shifting, tending-towards-totalitarianism policies will be greeted with a show of (possibly unarmed) force by local cops and the government’s military.

Soldiers will join police in virus hotspots to ensure people are following the rules, which include a 10km (6.2 miles) travel limit.

State Police Minister David Elliott said it would help because a small minority of Sydneysiders thought “the rules didn’t apply to them”.

All of this is already concerning. But beneath the policies imposed out of supposed concern for the public’s safety runs an unhealthy undercurrent. Once countries put drastic measures in place in response to unexpected threats to public wellbeing, they’re rarely eager to roll them back once the crisis has passed, or even lessened.

What remains to be seen is whether Australia can maintain that performance without permanently ending core attributes of life in a liberal democracy, including freedom of movement, peaceable assembly, and basic privacy.

If the government likes its new powers, and its ability to keep its citizens contained, it may decide the crisis has no definite end in sight. And with the virus continuing to mutate (as all viruses do), these severe, but temporary, precautions and restrictions may become permanent — allies in the government’s never-ending War on COVID.

Filed Under: australia, civil liberties, covid, quarantine, surveillance

Why Are We Letting School Administrators Use Qualified Immunity To Escape Accountablity For Violating Free Speech Rights?

Free Speech

from the when-time-isn't-a-factor,-I-guess-just-keep-fucking-up dept

Administrators of publicly-funded schools have a strange habit of misunderstanding the limits of their power and failing to respect the freedoms extended to their students by the Constitution. Naturally, this has resulted in lawsuits. Lots of them. And lots of losses for administrators, including one recent notable loss delivered by none other than the US Supreme Court.

But administrators aren’t actually feeling these losses, for the most part. As government employees, they have access to qualified immunity, which gives them a chance to avoid being sued as long as they’ve violated rights in a non-clearly-established way. (Not only that, but if this shield somehow fails, it’s taxpayers who foot the bill for courtroom losses.)

An op-ed for USA Today, written by FIRE (Foundation for Individual Rights in Education) members Greg Lukaniaoff and Adam Goldstein, asks why we’re allowing administrators to avail themselves of this protection, given they’re not asked to make speedy decisions under tremendous pressure.

Qualified immunity was invented to protect public employees from being unfairly sued for doing their job in good faith. It was intended to be applied in situations where a government employee such as a police officer has to make a split-second decision and couldn’t be expected to know they were violating the law when they acted. In a sense, qualified immunity is the name we’ve chosen for the grace we grant public officials for unintentionally wrong decisions that otherwise would merit discipline, termination or damages paid to victims of violations of constitutional rights.

But campus administrators are not generally in situations like our hypothetical officer. Most are, in fact, in positions not unlike a judge, with ample time, staff expertise and opportunity to reflect on the constitutional implications of their decisions. And yet, qualified immunity is consistently invoked to protect those decisions, no matter how transparently unconstitutional.

While it makes (limited) sense to give cops a little leeway when dealing with possibly deadly situations, it makes very little sense to pretend school administrators are in the same position. The circumstances in which they find themselves on the wrong side of the Constitution never deal with life-and-death situations. Nor are they under any pressure to make hasty decisions on matters involving students’ rights. They have ample opportunity to examine the issue before them and consider the implications (including the Constitutional ones) of their proposals and decisions.

And yet, they ask for qualified immunity, aligning themselves with government employees who don’t enjoy the same luxuries they do. The pleas for immunity work often enough that the threat of lawsuits is rarely a deterrent. The fact that the public foots the bill to defend public employees from accusations of rights violations makes deterrence an even more abstract idea, leading administrators to treat violations like victimless crimes. As long as they aren’t personally harmed, there’s been no foul.

Without effective deterrents in place, terrible, bad, dumb stuff happens.

Administrators rely on qualified immunity to avoid consequences when they engage in intentional, considered and collaborative efforts to violate civil liberties, such as when they punished a University of New Mexico medical school student for a pro-life Facebook post; investigated two University of South Carolina student groups for holding a pre-approved demonstration specifically about freedom of speech; and denied an Arkansas State University-Jonesboro student the right to table for her student group because administrators censored all speech outside a “free speech zone” covering 1% of the campus.

The op-ed doesn’t argue qualified immunity is a good thing for cops — people who have plenty of training and experience, but apparently very little know-how when it comes to respecting rights. They shouldn’t have it either. But, at least in some cases, mistakes are made during fast-moving situations that have the potential to be deadly. Administrators have all the time in the world to research applicable case law before taking action that affects students’ speech. But they so very rarely perform due diligence and, with qualified immunity in place, can be rewarded for their willful ignorance.

Strip it all away. But if we have to start somewhere, why not take qualified immunity away from people who have the time and resources to carefully consider their actions, but appear more willing to do whatever they want and roll the dice on an early escape from litigation?

Filed Under: 1st amendment, civil liberties, civil rights, free speech, qualified immunity, schools

Papers Please Has Something To Tell You About The 'No Fly' List And It's Going To Make You Sad

Legal Issues

from the more-Douglas-Adams-than-George-Orwell-tbh dept

How does someone end up on the federal government’s “no-fly” list? You’d think the shorter, less-convoluted question would be how one avoids ending up on this list. Unfortunately, the answer to either question is a convoluted mess — one complicated unnecessarily by the number of federal agencies that think they should have a say in who lives and who flies.

Papers Please has attempted to explain the no-fly list and its parameters. And it has kind of failed, albeit through no fault of its own. The interconnectedness of government things — the wheels of which were greased with countless pieces of post-9/11 legislation, memoranda of understanding, data-sharing agreements, and the insistence of numerous agencies that they, too, were important cogs in the War on Terror Machinery — has made this almost impossible to parse.

Behold your tax dollars at work preventing you from flying:

If you can’t see the embed, here’s an annotated PDF version.

There were demands — some made by the incoming President’s people — that participants in the Red Hat Insurrection should be added to the no-fly list. Bad idea. The no-fly list has been abused for years and it’s not getting any better. Courts may be coming around to the fact that arbitrary federal-level decisions with almost zero recourse isn’t what America’s all about, but if change is coming, it will be slow, expensive, and stymied constantly by invocations of the “national security” mantra.

Here are some of the facts. The FBI has used the no-fly list as leverage to turn Muslims into informants so it can more easily score empty net goals against supposed “terrorists” too poor to buy terrorist supplies and too mentally incompetent to formulate an attack plan, much less draft their own statement of ISIS allegiance.

The feds’ belated focus on domestic extremists doesn’t excuse years of projecting a presumption of guilt on Muslims just because some extremists decided to fly planes into buildings. But the presumption of guilt continues — encompassing pretty much any American who desires to board a plane.

Airlines aren’t much without passengers. So it’s in their best interest to sell as many tickets as possible and board as many people as possible. Their default assumption is everyone’s good to fly unless proven otherwise. The government has taken an opposing stance, presuming everyone guilty of latent terrorism.

[F]ly/no-fly decision-making by airlines differs from that of the U.S. government in two major ways.

First, for an airline the default is generally “Yes”, whereas for the U.S. government, as discussed above, it has been “No” since at least 2008. If you have a ticket, you look more or less alive and human, your clothing covers your “naughty bits”, and you don’t break any rules (more on that below), the airline will generally let you on the plane. You don’t (usually) have to prove that you aren’t a terrorist.

This creates friction — something exacerbated by the TSA, which operates under its own rules and has been granted considerable discretion to ground passengers and/or subject them to multiple levels of increasingly invasive screening.

If no flags fly, passengers can attempt to board a plane. But airlines are also given a lot of discretion about whom to serve — something most private companies enjoy.

Second, airline procedures generally involve a greater degree of human discretion and judgement on how to interpret and apply the fly/no-fly criteria. Airlines would say that this allows flexibility (sometimes good) but it also allows arbitrariness (bad). For better or worse, whether you are allowed to fly can depend on a gate agent’s temper and mood.

International flights further complicate matters by adding new laws and agencies to the mix. Considering what’s going on behind the scenes, it’s a miracle airlines have been able to fill planes with passengers over the last decade.

As noted earlier, placement on a no-fly list is almost impossible to challenge. The government — mainly the DHS — has argued no-fly list status isn’t something anyone’s entitled to litigate. The placement occurs without court involvement. So, the DHS apparently feels the exclusion of court review during placement demands exclusion of court review after placement. Since there’s very little court intercession, US agencies have continued to add people to no-fly lists for almost no reason at all.

Challenging no-fly status is incredibly expensive. A couple of court cases have managed to poke some holes in the government’s arbitrary groundings. But it takes deep pockets to take a lawsuit far enough that high-level courts express their concerns about the constitutionality of no-fly lists.

Only one no-fly case has gone to trial, resulting in something of a Pyrric victory: After eight years of litigation, Dr. Rahinah Ibrahim found out that she was put on the no-fly list because the FBI agent who interviewed her as part of his mosque-watching assignment misunderstood how to fill out the blacklist and watchlist “nomination” form. Dr. Ibrahim’s name was taken off that list. But her U.S. visa was revoked (despite the fact that her children were born in the U.S. and are U.S. citizens), and she hasn’t been able to return to the U.S.

Dr. Ibrahim’s pro bono lawyers incurred almost $4 million in expenses to overcome what the 9th Circuit Court of Appeals described as “scorched earth” and “bad faith” litigation tactics by the government. It took the lawyers another seven years to get paid, (finally, last month, fifteen years after they started working on the case) after the government appealed the fee award all the way to the Supreme Court.

Other cases have bubbled up to this level, but have yet to secure courtroom victories. The expenses incurred in these long-running legal battles are likely on par with this effort — one that took seven years (and more litigation) to get repaid.

All of this leads to the current situation, where irresponsible lawmakers are leveraging unprecedented actions and political animus to call for a federal level fucking of Americans who did stupid stuff and will — in many cases — end up facing federal charges.

We find it especially ironic that calls to deploy measures like extrajudicial no-fly orders are being made by politicians who profess to be those most committed to the rule of law. The current no-fly system, as should be apparent from the description above, is the antitheses of the rule of law, and epitomizes the lawlessness of the DHS in particular.

Does everyone convicted of a crime belong on the no-fly list? If so, for how long after their conviction? What about people suspected or accused of crimes? And why shouldn’t these decisions be made by judges?

Why should we focus on air travel, anyway? Surely those who came to Washington by air were less likely to have brought firearms or explosives than those who came by car.

The no-fly list should not be an all-purpose weapon to be deployed against anyone who’s acted irresponsibly and/or criminally. The no-fly list probably shouldn’t be used at all against anyone, but if it is going to remain active, it should only target known terrorists the government can definitively show would endanger the nation if they were allowed to fly. The list should be short and targeted. Instead, it’s become a catchall for everyone the government is unsure of, as well as a receptacle for Muslims the government failed to turn into informants. Adding alleged domestic terrorists to the list is unwise, as most of those raiding the Capitol committed crimes of opportunity, rather than premeditated acts of terror.

Papers Please has made an admirable attempt to explain the no-fly list and how it operates. But much of its underlying legal rationale remains obscured, buried by national security invocations and unjustified claims that explaining the system would somehow allow people to avoid it. It’s an unavoidable — and mostly unchallengeable — part of American life at this point. And it’s never going to get better if opportunistic politicians continue to believe it’s something necessary to secure the nation against all threats domestic and foreign.

Filed Under: civil liberties, civil rights, doj, fbi, no fly list

Huawei Is Crafting Facial Recognition Tech That Will Make It Easier For The Chinese Government To Target Citizens It Doesn't Like

(Mis)Uses of Technology

from the be-as-evil-as-possible dept

The Chinese government’s war against its own citizens continues. The repression and persecution of China’s Uighur population has been well-documented. The Chinese government is fighting a surveillance war on multiple fronts, beginning with its own citizens, who must maintain a positive “citizen score” to live life without too much government harassment. Its attempt to hold Hong Kong to the same oppressive standard has been met with significant resistance. But, in the end, China will consummate its takeover of Hong Kong with a removal of its independence.

Uighur Muslims have been the focus of the government’s unmitigated wrath for years. China wants these residents either locked up or living in another country entirely. And it’s pressuring tech companies to assist in their oppression. Far too many have complied. Documents seen by the Washington Post show Huawei has decided to be the Chinese government’s posse, helping the government locate and target Uighur residents.

The Chinese tech giant Huawei has tested facial recognition software that could send automated “Uighur alarms” to government authorities when its camera systems identify members of the oppressed minority group, according to an internal document that provides further details about China’s artificial-intelligence surveillance regime.

The tech Huawei is developing attempts to determine a person’s age, sex, and ethnicity using only facial shots. Given that this tech hasn’t proven itself able to reliably recognize faces, it seems unlikely it will perform these extra tasks with better accuracy. False positives are guaranteed. And a false Uighur positive in China means citizens will be detained and subjected to a lifetime of brutal punishment just because they happened to trigger a Huawei “alarm.”

According to Huawei, this proposed system has not gone live.

Both companies have acknowledged the document is real. Shortly after this story published Tuesday morning, Huawei spokesman Glenn Schloss said the report “is simply a test and it has not seen real-world application. Huawei only supplies general-purpose products for this kind of testing. We do not provide custom algorithms or applications.”

Maybe this is true. But it’s also the sort of statement a company would release when being pressured by a government to avoid revealing ongoing surveillance programs.

Even if the system isn’t live at the moment, that doesn’t change the fact that it will be live at some point in the future. And the Chinese government will have a tool it can use to target a small percentage of its population — a tool whose ability to recognize faces alone is already questionable. Adding in other factors only increases the possibility of false positives.

Then there’s the mission creep. If it “works” for China, other countries looking to target people for their sex, race, or age will have a tool that’s been field-tested and ready for deployment. China’s not the only authoritarian regime looking for exciting new ways to persecute certain citizens. Following through with development of this tech means Huawei will be the go-to source for countries looking to add to their human rights violation rap sheets.

Filed Under: china, civil liberties, civil rights, facial recongition, surveillance, uighurs
Companies: huawei

Reuters Report Shows How The Supreme Court Has Turned Qualified Immunity Lawsuits Into A Rigged Game

Legal Issues

from the making-a-malfunctioning-system-even-worse dept

Reuters has published an in-depth report on qualified immunity, the Supreme Court-created legal doctrine that allows law enforcement officers to avoid being held responsible for rights violations, so long as they’ve taken care to violate rights in a way courts haven’t previously directly addressed.

The problem originates with the Supreme Court, which established this new quasi-right in a 1967 decision stating that police officers could be granted immunity for rights violations if they acted in “good faith.” But it really didn’t start going off the rails until 15 years later. In 1982, the Supreme Court expanded this protection, adding the “clearly established law” prong that has derailed countless civil rights lawsuits in the following forty years.

It’s this prong that makes it incredibly difficult for plaintiffs to prevail. Without a case exactly on point, the rights violations are overlooked as not being “clearly established.” And since courts are under no longer under any obligation to reach that far in their rulings, very few rights violations become “clearly established,” allowing cops to violate rights with near impunity and force citizens to fund their defense in the resulting lawsuits.

It’s this Supreme Court-encouraged stasis that Fifth Circuit Appeals Court judge Don Williett called out in a stinging dissent.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

What was already problematic was made even worse by the Supreme Court a little over a decade ago. Its ruling narrowed qualified immunity discussions to this single point, allowing court after court to avoid making any findings about the underlying rights violations.

The Supreme Court in 2009 raised the bar even higher for plaintiffs to overcome qualified immunity. In Pearson v. Callahan, it gave judges the option to simply ignore the question of whether a cop used excessive force and instead focus solely on whether the conduct was clearly established as unlawful.

In the decade since then, the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

That’s the Catch-22 Judge Willett described. Since the discussion of the rights violation is limited to whether or not a court has declared that particular rights violation unlawful, courts look only for precedent on point, rather than establish any new precedent of their own. If courts do decide to establish precedent, or determine a previous case not exactly on point addresses the violations in the case in front of them, they’re likely to see their decisions overturned by the Supreme Court.

Qualified immunity is the Supreme Court’s baby. Understandably, it’s done all it can to protect it. It has admonished courts for interpreting precedent too broadly. And it has shown a clear preference for giving officers stripped of immunity a chance to win it back.

Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court’s acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs’ appeals, the acceptance rate was slightly below the court’s average.

Nearly every decision has favored law enforcement officers. Given the way the system is set up, this outcome is unsurprising.

The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal.

This has resulted in appeals courts finding in favor of officers 57% over the last two years. This contrasts with cases heard prior to the Supreme Court’s 2009 decision. Before that decision, the situation was nearly reversed, with courts finding in favor of plaintiffs 56% of the time.

Much of the point swing since 2009 can be directly attributed to the Supreme Court’s “clearly established” focus. As the percentage of wins for plaintiffs has dropped from 57% to 43%, the percentage of cases where the question of excessive force has been ignored completely has grown to consume much of that 14 point difference.

This is based on the reporters’ examination of 529 appellate cases published between 2005 and 2019. It also includes every qualified immunity case the Supreme Court chose to rule on or ignore.

If there’s any good news, it’s this: the Supreme Court may be reconsidering its continuous expansion of this self-created legal doctrine.

The high court has indicated it is aware of the mounting criticism of its treatment of qualified immunity. After letting multiple appeals backed by the doctrine’s critics pile up, the justices are scheduled to discuss privately as soon as May 15 which, if any, of 11 such cases they could hear later this year.

Justice Sonia Sotomayor, one of the court’s most liberal members, and Clarence Thomas, its most conservative, have in recent opinions sharply criticized qualified immunity and the court’s role in expanding it.

Unfortunately, no one’s really sure what the best approach to fixing qualified immunity might be. There’s zero chance the court will decide to eliminate it completely or severely limit its reach. But it could at least reestablish the examination of excessive force issues it has encouraged courts to ignore, allowing more violations to be clearly established. This would result in more plaintiffs seeing restitution and, hopefully, fewer police officers engaging in rights violations since the courts will no longer be quite as stacked in their favor. Whatever the case, the public isn’t being served by this judicial doctrine, which has done nothing to limit deployments of excessive force or encourage officers to exercise restraint in questionable situations.

Filed Under: civil liberties, police, qualified immunity, supreme court

Arrest Numbers Show The NYPD Is Handling Pandemic Enforcement With The Same Biased Enthusiasm It Put Into Stop And Frisk

Failures

from the at-least-the-selective-enforcement-is-consistent dept

You can take the stop-and-frisk out of the NYPD, but you can’t remove the biased policing, as the old saying goes. The NYPD may have been forced to stop pushing every minority up against the nearest wall/fence/cop car after a federal court determined this to be a violation of their rights, but they’re apparently continuing to enforce laws very selectively.

On Thursday night, the Brooklyn district attorney’s office became the first prosecutor in the city to release statistics on social-distancing enforcement. In the borough, the police arrested 40 people for social-distancing violations from March 17 through May 4, the district attorney’s office said.

Of those arrested, 35 people were black, four were Hispanic and one was white.

More than a third of the arrests were made in the predominantly black neighborhood of Brownsville. No arrests were made in the more white Brooklyn neighborhood of Park Slope.

So, this is more than just anecdotal evidence. It’s, you know, evidence evidence. Plenty of anecdotal evidence exists of inconsistent social distancing enforcement is available, if you’re interested in seeing that as well.

This bothers Mayor Bill De Blasio — the man who won the election by promising to be someone other than Mike Bloomberg, who loudly and proudly supported the NYPD’s “right” to harass and detain minorities. But he’s not upset enough. And he’s upset incorrectly. Critics are calling this selective enforcement of pandemic efforts a new stop-and-frisk. De Blasio is only upset about the terminology.

“What happened with stop and frisk was a systematic, oppressive, unconstitutional strategy that created a new problem much bigger than anything it purported to solve,” he said. “This is the farthest thing from that. This is addressing a pandemic. This is addressing the fact that lives are in danger all the time. By definition, our police department needs to be a part of that because safety is what they do.”

That’s just talking around the problem. Yes, the pandemic response isn’t “systematic,” but the ingrained habits that have resulted in minorities being disproportionately targeted by NYPD officers certainly are. And his siding with the NYPD aligns him more with the man he replaced than the public that elected him. Both De Blasio and Police Commissioner Dermot F. Shea claim this enforcement has been deployed “sparingly and fairly.” It’s hard to square “fairly” with the numbers released by the Brooklyn DA.

It also doesn’t square with the total arrest numbers provided by the NYPD.

Citywide, black people make up 68 percent of those arrested on charges of violating social-distancing rules, while Hispanic people make up 24 percent, a deputy police commissioner, Richard Esposito, said late on Thursday night.

Only seven percent of the social distancing arrests citywide involved Caucasians.

The police union spoke up, because of course it did. The head of the PBA made one halfway decent point about bad laws and the problems inherent in enforcing them…

Patrick J. Lynch, the president of the Police Benevolent Association, declined to comment on Officer Garcia’s actions, but noted he and his colleagues “did not create the poorly conceived social-distancing policy they were sent out to enforce.”

… but followed that up by defending an officer who has been sued seven times and cost the city more than $200,000 in settlements. Officer Francisco X. Garcia was involved in a controversial social distancing arrest in which he punched a man onto the ground and then sat on him as he was handcuffed. Garcia has been removed from duty while this arrest is being investigated, which is apparently the equivalent of hanging this sinless man on the cross.

[Lynch] said City Hall was blaming Officer Garcia for carrying out the policy it had created. “Once again, our leaders are poised to trample a police officer’s rights in order to protect themselves,” he said.

Ah yes. Let’s not “trample” those rights. But the rights of everyone else can be trampled while the NYPD fumbles its way through the pandemic, making minorities pay the price for the social distancing sins of an entire city.

Filed Under: bias, biased policing, civil liberties, nypd, pandemic, policing, social distancing

Police Department Shells Out $50,000 To Man After His Camera Catches Cops Fabricating Criminal Charges Against Him

Legal Issues

from the talking-themselves-into-a-lawsuit dept

The Connecticut State Police have agreed to pay $50,000 to a man its officers subjected to a bunch of Constitutional violations on their way to issuing tickets to him for violations he never committed.

Here’s a brief description of how this whole thing started:

On September 11, 2015, Picard was protesting near a police DUI checkpoint in West Hartford. One of the defendants, John Barone, approached him under the pretext of public complaints and confiscated Picard’s camera and lawfully carried pistol. Unbeknownst to the troopers, the camera was recording when Barone brought it to where co-defendants Patrick Torneo and John Jacobi were talking.

That’s just part of what happened before the recording the officers weren’t aware of captured them colluding to make up crimes to charge Michael Picard with.

There’s more detail in the opinion [PDF] the court handed down last fall, which gave the State Police notice its officers were unlikely to escape Picard’s lawsuit. One officer knocked Picard’s video camera to the ground. When he picked it up to continue recording the officers, one of them did something really stupid.

While defendants discussed plaintiff, plaintiff picked up his video camera off the ground and aimed it at the three defendants.

Barone then walked back to plaintiff. He grabbed plaintiff’s video camera and told him, “It’s illegal to take my picture.” Defendants have admitted that Barone “told plaintiff that it was illegal to take his picture without permission to do so;” and that Barone “secured” plaintiff’s camera.

Once they had it in their possession, the cops ignored the camera. This is important because they later argued they seized it because they thought it might be a gun. If they really thought the camera posed a threat to them, you’d think they would have examined the camera. But they didn’t.

If they had examined the camera, they might have noticed it was still recording. This is what the camera caught as it laid on top of the officers’ vehicle.

Torneo spoke by phone to Lieutenant Allan to determine whether plaintiff had any “grudges;” asked why plaintiff was challenging them at the DUI spot checks; and discussed plaintiff’s past demonstrations.

Defendants Torneo and Barone verified that plaintiff’s pistol permit was valid, that his gun was not stolen, and that there were no warrants for his arrest.

On the video camera recording, Barone can be heard stating, “punch a number on this or do what? Gotta cover our ass.” Torneo can be heard saying, “Let’s give him something,” and “then we claim in backup that we had multiple people stop and complain … but they didn’t want to stay and give a statement.”

Here’s the recording Picard’s camera made — one that captures officers colluding to create bogus criminal charges against a citizen.

Picard was charged with two criminal infractions. Both were dropped by the prosecutor. More importantly, the court refused to extend qualified immunity to these officers on Picard’s Fourth Amendment violation allegations. It also refused QI on Picard’s First Amendment retaliation claim. With three officers facing a jury trial, the State Police has decided to buy its way out of this using taxpayer money.

This incident shows why recording police officers isn’t just important, it’s necessary. While it may be difficult to record officers’ discussions once they’re back in their vehicle, having a recording device visible and present may deter cops from fabricating charges just because they don’t like the legal activity you’re engaged in. Officers are usually pretty careful to ensure their own illegal activity goes unrecorded, but it’s tough for them to control devices operated by citizens.

Filed Under: cameras, civil liberties, connecticut, free speech, police, protests, west hartford