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Posted on Free Speech - 21 August 2018 @ 3:23am

EU Commission Moving Forward With Legislation Demanding One Hour Removal Of 'Terrorist Content'

from the ask-and-ye-shall-receive-as-many-fines-as-ye-can-collect dept

Governments -- which will process requests from citizens in statutorily-required time almost zero percent of the time -- never think the private sector moves fast enough. The government says "Jump" and then immediately asks why the jumping wasn't already in progress when it ordered the jumping to commence.

Content that isn't even of the "I know it when I see it" variety isn't being taken down quickly enough for the EU. Various members have implemented their own 24-hour policies for the removal of everything from "hate speech" to "extremist content" -- both particularly difficult to classify immediately when context and newsworthiness must be considered.

The EU Commission is reeling in the leash it has attached to US social media companies. It pitched the idea back in March but now appears to following through with its threats. The latest move towards impossibility is detailed by The Financial Times.

Brussels plans to force companies including Facebook, YouTube and Twitter to identify and delete online terrorist propaganda and extremist violence or face the threat of fines.

The European Commission has decided to abandon a voluntary approach to get big internet platforms to remove terror-related videos, posts and audio clips from their websites, in favour of tougher draft regulation due to be published next month.

Here's the stipulation that will turn popular social media sites into EU-owned ATMs.

Although details of the regulation are still being drawn up inside the commission, a senior EU official said the draft legislation was likely to impose a limit of one hour for platforms to delete material flagged as terrorist content by police and law enforcement bodies.

Imagine imposing this sort of time limit on anything a government agency does. Imagine the outcry about the impossibility of serving citizens in a timely fashion. But nothing's too short for the private sector, which can set about nuking content indiscriminately just in case, rather than write checks to the EU on an hourly basis.

The impetus is recent terrorist attacks, of course. Any amount of ridiculousness can be excused in the name of public safety and national security, even if the resulting mess has almost zero impact on either of those two concerns.

The incumbent social media sites already have algorithms and live moderation teams addressing questionable content. And it's still not enough for insatiable government officials. Entrants into the market may as well not even bother. They cannot hope to stay alive, much less compete, if governments are going to hold them directly responsible for content posted by their users.

Then there's the fact that burying stuff as soon as it shows up does little to aid investigations or the pursuit of terrorists. Ask anyone who's witnessed the damage done to law enforcement efforts by SESTA/FOSTA -- a law touted as a crushing blow to human trafficking. All it's done is make traffickers harder to find by forcing them to utilize less visible platforms and communication methods. The same thing is happening here and every time "terrorist content" is nuked, it makes martyrs of villains and proves to acolytes and new recruits the West is out to get them.

The EU would be better off letting the voluntary measures already in place go to work. The press for one-hour turn time reeks of rent collection, not honest concerns about public safety.

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Posted on Free Speech - 20 August 2018 @ 3:03pm

As Press Freedom Dies In Turkey, Twitter Is There To Help Dig Its Grave

from the enablers dept

Turkish president Recep Erdogan figures the best critic is a silenced critic. Determined to "earn" the respect of people worldwide, Erdogan and his government have engaged in unprecedented censorship. This goes far beyond the punishment of its own citizens. Erdogan has tried to secure charges and prosecutions from other governments against their own citizens for having the temerity to not take him as seriously as he takes himself.

Erdogan takes down newspapers and platforms with equal aplomb. He does this to stop things like the following from circulating:

It doesn't work, of course. Nothing gets censored worldwide and whatever censorship hits home can be circumvented. But of all the internet targets, Twitter is Erdogan's absolute favorite. The Committee to Protect Journalists has done the math. Its excellent article on Erdogan's censorship activities makes it clear that all other countries are merely pretenders to the throne when it comes to talking Twitter into doing their dirty work.

Over 1.5 million tweets have been withheld in Turkey by Twitter, thanks to Turkish government demands. Frequently targeted by removal requests are citizens who would normally be afforded extra speech protections in countries not run by a thin-skinned thug. And an American company playing ball with an authoritarian doesn't leave much room for recourse.

When CPJ reviewed a Buzzfeed News database of over 1,700 accounts withheld in one or more countries, along with court orders uploaded by tech companies to Harvard University's Lumen database, tweets, Twitter lists, and news reports, it was able to identify at least 59 Twitter accounts that belong to journalists and media outlets censored using the CWC tool in Turkey. As of late July, those 59 accounts had a combined following of over six million, in a country of about 11 million Twitter users.

Journalists whose accounts have been censored by CWC [country withheld content]requests told CPJ that Twitter is inconsistent with its compliance with such requests and complained about the lack of remediation options.

Journalists tweeting about the decline of press freedoms in Turkey are seeing their tweets removed by a compliant Twitter. And this is all Twitter has to say about its compliance in the decline of press freedoms in Turkey:

Colin Crowell, Twitter's head of global public policy, told CPJ, "If [we] don't use CWC, then the alternative is to remove [the content] globally [then] nobody can see it."

But that simply isn't true. Twitter has to know there's a third option: no removal at all. Even if the request is lawful in Turkey, Turkey's speech laws are terrible. Twitter doesn't have to make things worse by letting the Turkish government steamroll critics via removal requests. Sure, that means it might lose access to an entire country, but it shouldn't be so willing to be an extension of an abusive government.

It's not just a Twitter problem. Google's decision to help build the Chinese government a censored search engine is unacceptable, no matter how many more millions of users Google might reach.

Turkey's government may drive the content removal business on Twitter, but there's censorship everywhere from authoritarian regimes being aided by US companies that should act as a bulwark against tyranny. At the very least, there should be constant pushback against demands like these, rather than acquiescence under the disingenuous theory that blocking content worldwide is the only alternative.

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Posted on Techdirt - 20 August 2018 @ 12:13pm

Head Of Department Of Justice Bashes Justice System Because It Blocks Too Many Of Trump's Orders

from the small-words-from-a-small-mind dept

Recently, Attorney General Jeff Sessions attended the Eighth Circuit Judicial Conference. Considering he was speaking to members of the judiciary, it seems odd he would have used this occasion to deliver a rant against the judicial system.

As a prosecutor, Sessions greatly benefited from the system he now maligns. The justice system barely enters the lives of those being prosecuted. An adversarial system designed to provide the accused with due process is rarely engaged. The outcome is predetermined, except for arguments over minor details. As the Supreme Court wrote in a 2012 decision, the criminal justice system is a downhill slope for prosecutors who rarely need more than a light shove to put someone behind bars.

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. [...]

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.

Having been a beneficiary of a barely-engaged court system for so many years (and now overseeing more beneficiaries as the head of the DOJ), you'd think Sessions would be grateful for all the years the courts rendered themselves pretty much invisible.

Instead, Sessions wants to complain about a supposedly unfair system that keeps acting as a check against the Executive Branch… you know, exactly what it's supposed to be doing.

I am the top lawyer for the Executive Branch. It is a co-equal branch. It too is entitled to proper respect from the courts. Our Assistant U.S. Attorneys, advocating for legal positions—even if the judge may not agree—are due proper respect.

Judges are not sent from Olympus. They are not always correct. Indeed, our appeals in a number of cases have borne fruit in whole or in part.

Some of the erroneous rulings have been quite costly to the taxpayers, have delayed executive action, and have engendered criticism of the President, and the Department of Justice, in the media and various groups.

In Sessions' mind, "co-equal" does not mean counterbalanced or of equal power. Sessions' adheres to an Animal Farm version of equality, where the Executive Branch is more equal than the court system he feels isn't handing out enough respect. This is a truly bizarre -- and somewhat frightening -- take on the legal challenges filed against Trump's executive orders.

Some challenges have been denied. Others have been granted. Injunctions have been issued, with a few of those rolled back after an appeal. This is the way the judicial system is supposed to work, but Sessions wants to hate on it for functioning exactly how it's designed to.

We have a government to run. It is not the duty of the courts to manage this government or to pass judgment on every policy action the Executive Branch takes.

Ah, but it is the duty of the courts to "manage the government" or "pass judgment on policy actions." If policies are challenged in court -- by citizens -- the court has to take the case. Just because Sessions doesn't like some of the outcomes doesn't mean the system isn't working. But it is plainly disingenuous to claim judges have no business passing judgment. JFC, it's right in the name.

For all the talk about "co-equal," it's clear Sessions -- as the head of the goddamn Department of Justice -- feels the justice system has too much power.

We are also defending the constitutional structure of the federal government against nationwide injunctions—orders by a single district judge that block the entire Executive Branch from enforcing or implementing a statute, regulation, executive order, or policy.

You could also call them “non-party injunctions” or “global injunctions”—because they apply across America or even the world, and grant relief, whether they want it or not, to those who are not parties to the case.

Scholars have not found a single example of this type of remedy in the first 175 years of the Republic. But the Executive Branch has been hit with 22 in less than two years’ time in office.

Wow. That sures sounds like the judiciary has it in for the President. Let's see if this unprecedented thing has any precedent…

This goes beyond politics. This has been a problem for administrations of both parties. Until President Trump, the President with the most limitless injunctions was President Obama. Before him, it was President Clinton.

That's Sessions undercutting his own narrative. What this looks like isn't some grotesque misuse of judicial power. No, administrations regularly setting new injunction records indicates to me the Executive Branch has routinely overstepped its Constitutional boundaries before being reined in by courts -- courts designed from the ground up to act as check against overreach by other branches of the government.

The very thing he complains about -- being "held back" by the judicial branch -- he claims to celebrate towards the end of his prepared remarks.

Our Constitution has governed us from the horse and buggy age to the digital age. Ours is the oldest and most resilient constitution in the world. We don’t need conservative judges or liberal judges. As Chief Justice Roberts testified, we just need judges to adjudicate disputes, calling the balls and strikes as they are without taking sides in the game.

But we must be vigilant to our Constitution's design and to its most central feature: the separation of powers.

That is what the American people rightly expect from those who enforce the laws of the United States.

Let's be vigilant to protect the separation of powers, says Sessions, as he suggests the judicial branch might need some trimming if it won't stop standing in the way of questionable executive orders and policies. Good lord. You'd expect this sort of nonsensical drivel from internet randos, not the head of the DOJ.

Sessions is like anyone else: the courts are working when they deliver decisions he likes and a complete failure when they don't. That's fine. And that's expected, especially when partisan agitation seems to be at an all-time high. But that's not the sort of thing you tell a judiciary conference. That's the crap you save for preaching to the converted.

The real ugliness, though, is this: Sessions obviously feels the courts should serve the Executive Branch, no matter how many times he says he values the system of checks and balances that prevents the judiciary from being a subsidiary of the presidential administration. Fortunately, Sessions only has the power to bitch about it. If he could do any real damage to the court system itself, he'd be dangerous. This mini-rant shows Sessions is a small man with a small mind and a willing participant in spreading the Trump Administration's narrative of victimization -- something painfully embarrassing to observe when its being issued by the people leading one of the most powerful nations in the world.

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Posted on Techdirt - 20 August 2018 @ 9:38am

DOJ Asking Court To Force Facebook To Break Encryption On Messenger Voice Calls

from the with-an-eye-on-undermining-all-encrypted-messaging-services dept

The DOJ's war on encryption continues, this time in a secret court battle involving Facebook. The case is under seal so no documents are available, but Reuters has obtained details suggesting the government is trying to compel the production of encryption-breaking software.

The U.S. government is trying to force Facebook Inc to break the encryption in its popular Messenger app so law enforcement may listen to a suspect’s voice conversations in a criminal probe, three people briefed on the case said, resurrecting the issue of whether companies can be compelled to alter their products to enable surveillance.

The request seeks Facebook's assistance in tapping calls placed through its Messenger service. Facebook has refused, stating it simply cannot do this without stripping the protection it offers to all of its Messenger users. The government disagrees and has asked the court for contempt charges.

Underneath it all, this is a wiretap order -- one obtained in an MS-13 investigation. This might mean the government hasn't used an All Writs Acts request, but is rather seeking to have the court declare Messenger calls to be similar to VoIP calls. If so, it can try to compel the production of software under older laws and rulings governing assistance of law enforcement by telcos.

A federal appeals court in Washington D.C. ruled in 2006 that the law forcing telephone companies to enable police eavesdropping also applies to some large providers of Voice over Internet Protocol, including cable and other broadband carriers servicing homes. VoIP enables voice calls online rather than by traditional circuit transmission.

However, in cases of chat, gaming, or other internet services that are not tightly integrated with existing phone infrastructure, such as Google Hangouts, Signal and Facebook Messenger, federal regulators have not attempted to extend the eavesdropping law to cover them, said Al Gidari, a director of privacy at Stanford University Law School’s Center for Internet and Society.

Calls via Messenger are still in a gray area. Facebook claims calls are end-to-end encrypted so it cannot -- without completely altering the underlying software -- assist with an interception. Regular messages via Facebook's services can still be decrypted by the company but voice calls appear to be out of its reach.

Obviously, the government would very much like a favorable ruling from a federal judge. An order to alter this service to allow interception or collection could then be used against a number of other services offering end-to-end encryption.

It's unknown what legal options Facebook has pursued, but it does have a First Amendment argument to deploy, if nothing else. If code is speech -- an idea that does have legal precedent -- the burden falls on the government to explain why it so badly needs to violate a Constitutional right with its interception request.

This is a case worth watching. However, unlike the DOJ's very public battle with Apple in the San Bernardino case, there's nothing to see. I'm sure Facebook has filed motions to have court documents unsealed -- if only to draw more attention to this case -- but the Reuters article says there are currently no visible documents on the docket. (The docket may be sealed as well.) There is clearly public interest in this case, so the presumption of openness should apply. So far, that hasn't worked out too well for the public. And if the DOJ gets what it wants, that's not going to work out too well for the public either.

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Posted on Free Speech - 20 August 2018 @ 6:32am

Judge In Broward County Documents Case Decides The First Amendment Doesn't Cover These Public Records

from the 'freedom-of-the-press-is-nice-and-all,-but-shut-the-hell-up' dept

So much for my powers of prediction. After a Florida newspaper was hit with a request for contempt charges for publishing parts of a document a local school board tried (but failed) to redact, I suggested the court would side with the paper and say a few strong words about proper redaction techniques and the First Amendment. I could not be more wrong.

Broward Circuit Judge Elizabeth Scherer said the newspaper flouted her order that portions of a school district report about Cruz should remain shielded from the public. In the future, she declared, she will consider listing exactly what the newspaper can and cannot print.

So much for the vaunted First Amendment. While judges are welcome to deliver instructions about what can or cannot be printed (provided they don't mind violating the First Amendment 90% of the time), there's no reason to hand out these instructions to document recipients in public records lawsuits like this one. That's why redaction exists: so public entities can fulfill their public records obligations while withholding information that qualifies for exemptions or to comply with privacy laws. If the respondent screws up the redaction, there's no legal obligation for new agencies or any other records requester to pretend what wasn't supposed to be accessible isn't accessible. The burden is on the government to perform its job correctly.

No laws were violated by the Sun Sentinel's discussion of parts of the document that were supposed to be withheld. It acquired the document lawfully -- in fact, as a result of this court's order -- and discovered the redaction technique used didn't actually redact anything. Parts of what was withheld by the school shows the Broward County School Board mishandled some of its interactions with the Parkland shooter. This obviously was of great interest to the public, so there's no question that part weighs heavily in the favor of the paper's First Amendment rights.

What's worse is the judge stated in court the Sun Sentinel did something devious to expose the supposedly-redacted information, when it was actually the Broward County School Board that failed to do its job properly.

“You all manipulated that document so that it could be unredacted,” Scherer said. “That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It’s no different.”

Um… OK. What the hell does this even mean? Would she be coming down on a public records recipient who was handed the wrong documents or entire pages that were supposed to be withheld? Would she have harsh words for a recipient who received someone else's requested documents thanks to a bureaucratic screw-up and published those? Here's how Judge Scherer thinks the First Amendment should be applied to public records:

“From now on if I have to specifically write word for word exactly what you are and are not permitted to print – and I have to take the papers myself and redact them with a Sharpie … then I’ll do that,” she said.

Whew. Sounds like prior restraint. The only entity that should be restrained is the government in public records lawsuits, and only what's absolutely necessary to be withheld should be withheld. It's not up to the judge to hand out a line-by-line order on publication to recipients. The restraint should target the government and no one else. If the government screws up, that's on it, not those who've lawfully acquired the documents.

Given this terrible take on the First Amendment, I can offer a much better prediction this time around: the Sun Sentinel's anti-SLAPP motion against the Broward County School most likely will not be entertained by this court. Whatever was said here is the judiciary standard in Judge Scherer's court. And it sets an extremely low bar for government agencies who think others should be yelled at for the government's failures.

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Posted on Techdirt - 17 August 2018 @ 3:23am

New Bill Aims To Pierce The Darkness Surrounding California Police Officers' Disciplinary Records

from the long-awaited-correction-to-the-[permanent]-record dept

Cops in California have literally unbelievable protections. To ensure the "privacy" of government employees sworn to serve the public, the Cali legislature has kowtowed to state police unions to make disciplinary records all but impossible to obtain… by anyone.

This has led to the expected results. Professional liars in cop uniforms offer unimpeached testimony filled with more lies as defense lawyers stand helplessly by, screwed out of offering effective counsel by state law. The law is so restrictive prosecutors are often unable to obtain these files. In the unlikely event a cop is being prosecuted, past misdeeds are hidden under a heavy layer of legislated opacity, hindering effectiveness on the other side.

Sure, if you're the victim of police violence, your past is an open book. The cops will dump everything they have on you, from the shoplifting citation two decades ago to every charge ever brought (but ultimately dropped or dismissed) against you in your lifetime to smear your reputation and burnish their own. But if the court would be better served knowing the witness on the stand is an inveterate liar with a history of misconduct, justice will not only go blind but underserved under state law.

This bill aims to change that.

There is currently a bill before the California Legislature that would ease the burden for the prosecutors and the public to know whether the officers in their communities are trustworthy. SB1421 would require police departments to release information about, inter alia, sustained findings of dishonesty in the course of criminal cases and other instances of police misconduct. This bill would also require police departments to release information about serious uses of force, including officer-involved shootings, to increase transparency.

As the article notes, cops -- especially the good ones -- should welcome this move towards transparency.

[C]urrent California law protects the worst officers by hiding their identities from the public and makes them indistinguishable from the bulk of the officers who do their jobs faithfully in accordance with the Constitution.

But they won't. Or, at the very least, their support will be overridden by all the other cops: the mediocre, the bad, the repugnant, and the morally and criminally corrupt. These are officers and former officers currently holding prominent positions in the state's unions, and police unions are universally opposed to transparency, accountability, or minor policy changes that might make policing better.

This bill could change things but it faces the same opposition that managed to talk the legislature into turning police officers into an extremely protected class. It's a welcome effort, but has little chance of survival. Maybe the tide has turned. Maybe this time police unions will be told to stop standing in the way of rebuilding California communities' trust in the officers and agencies policing their neighborhoods.

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Posted on Techdirt - 16 August 2018 @ 10:44am

Elected Official Files Business, Trademark Registrations Using Name Of Website That Frequently Criticized Her

from the way-to-represent-your-constituents,-jerkface dept

Lots of government employees and officials would love to shut their critics up. The problem is that most methods they come up with don't work (at best) or are unconstitutional (at worst). That doesn't stop them from trying. The amount of hours expended trying to find ways to silence critics sits well above zero, making these efforts fraudulent as well as potentially unconstitutional.

Never underestimate the creativity of the criticized class, as Tony Webster reports.

Carol Becker, an elected official on the Minneapolis Board of Estimate and Taxation, confirmed Friday night that she was behind an effort to file business and trademark registrations for Wedge LIVE!, the name of a blog that has been critical of her.

Wedge LIVE! is run by John Edwards, who has covered urban planning and related political issues in depth for the last four years. He has gone after Becker a number of times in his reporting and blog posts. He's even attempted to take her job.

In the peak months of former Minneapolis Mayor Betsy Hodges’ 2017 re-election campaign, Becker filed a civil lawsuit against the Mayor, claiming she had violated the City’s charter in the budgetary process. After Becker had claimed victory before any final disposition of the lawsuit, a judge found there was no violation and dismissed the case.

“When she sued the mayor, it felt like a stunt,” Edwards said, “I just felt like she was using her office to take political shots at people. She’s a perfect representation of a certain kind of politics in Minneapolis that I’m not a fan of.”

Edwards decided to run a last-minute write-in campaign against Becker, which he described as being a “half-joke” and doomed from the start. Becker won, but a surprising 1,539 voters wrote Edwards’ name on their ballot.

Becker has gone after Edwards and Wedge LIVE! as well, claiming the site is funded by "realtors" using "dark money." The contentious relationship has escalated in recent months, with the formation of an activist group by Edwards that opposes the policies and zoning changes Becker would like to institute. Edwards also asked readers to comment on proposed plans during the public comment period, leading to Becker receiving negative responses by readers of his site.

All of this has now culminated in an intellectual property war without the knowledge of one of the participants. A public notice of a business registration was spotted by a Wedge LIVE! Fan while reading the analogue version of the local paper. This was passed on to Edwards, who had no idea his site's name was being turned into a business by a subject of his criticism.

In the days after the public comment period ended, Becker went to the Office of the Minnesota Secretary of State and filed business documents—name reservations and certificates of assumed name—for both “Wedge Live” and “WedgeLive,” the name of Edwards’ blog. Becker also filed an application with the U.S. Patent and Trademark Office to obtain a trademark on the name “Wedge Live,” stating under penalty of law that she believed she was entitled to use the mark in commerce, that nobody else has the right to use the mark, and that she had a bona fide intention to use it herself.

Becker wants to pretend this is all a coincidence.

Reached by phone, Becker admitted—proudly so—that she filed the business and trademark documents, paying at least $355 to do so.

“There were no legal entities using that name, and I think it would be an awesome name for a podcast. And so since no one else is actually legally using that name, it seemed like a good thing to do,” Becker said, stating that she intended the podcast to discuss ‘wedge issues’ and to do so ‘live’ instead of attacking others on social media, something she felt Wedge LIVE! Does.


Becker continued to insist her “Wedge Live” business and trademark registrations were a separate, independent matter from her concerns regarding Wedge LIVE!, the blog. “Two great minds coming up with the same name isn’t a bad thing,” Becker said.

There is a non-zero chance this is true. But it's so small, it's a rounding error. Becker admits it could be viewed as "retaliatory," but says no one would really care if she retaliates against an "illegal business" and "tax fraud." [!!!!]

As for the whole "podcast" claim, Tony Webster notes the trademark registration appears to describe the Wedge LIVE! website and its offerings, rather than refer to anything of a podcasting nature. It also appears Carol Becker may have been instrumental in getting items removed from Wedge LIVE's Teespring store.

This statement, though, is probably the best/worst response Becker gave to Webster.

Becker said she would not have been able to register the names had Edwards registered them first. “If it wasn’t me, it could have been someone who is an asshole,” Becker said, going on to say that she wasn’t out to hurt anyone.

Instead of letting someone else be the asshole, Becker stepped up to be the asshole. Congrats.

Of course, this is also not how trademark law actually works. You don't have to register to hold a common law trademark. You only have to use the name in commerce, meaning it's likely that Edwards could be considered the common law trademark holder over "Wedge Live" and Becker's attempt at registering the same name would almost certainly flop.

The good news is it appears Becker greatly overestimated the public's tolerance for assholery from their elected officials.

As of Monday morning, an outpouring of support for Wedge LIVE! resulted in a 27% increase in Patreon donors for the site, and records at the Office of the Minnesota Secretary of State and the U.S. Patent and Trademark Office showed cancellation of the assumed name and trademark filings, but no cancelation of the name reservation was recorded.

This means Wedge LIVE! retains the name… for now. Becker has promised to try again in another six months if Edwards doesn't make a move. But she might have gotten away with it if it hadn't been for a local resident still reading the news in printed form.

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Posted on Techdirt - 16 August 2018 @ 3:23am

Automated 'Content Protection' System Sends Wave Of Bogus DMCA Notice Targeting Legitimate URLs

from the don't-worry,-humans.-the-bots-won't-ever-do-this-job-well. dept

Yet another content protection service decides it's better off letting the machines do the work, with predictably catastrophic results. The EFF first noticed the DMCA abuse being committed by "Topple Track," a content protection service offered by Symphonic Distribution. Symphonic talks big about its protection service, pointing out its position as one of the "leading members" of Google's "Trusted Copyright Program."

The thing about trust is that it's hard to gain but easy to lose.

Topple Track’s recent DMCA takedown notices target so much speech it is difficult to do justice to the scope of expression it has sought to delist. A sample of recent improper notices can be found here, here, here, and here. Each notice asks Google to delist a collection of URLs. Among others, these notices improperly target:

Other targets include an article about the DMCA in the NYU Law Review, an NBC News articleabout anti-virus scams, a Variety article about the Drake-Pusha T feud, and the lyrics to ‘Happier’ at Ed Sheeran’s official website. It goes on and on. If you search for Topple Track’s DMCA notices at Lumen, you’ll find many more examples.

Topple Track's failures came to the EFF's attention because it targeted one of its URLs, supposedly for infringing on artist Luc Sky's copyright for his song "My New Boy." The page targeted by Topple Track discusses the EMI lawsuit against MP3Tunes -- one that has been on the EFF's site for eight years. If Luc Sky even exists (the EFF could find no info on the artist/track), the discussion of a long-running legal battle certainly didn't contain an unauthorized copy of this track.

Presumably Topple Track has customers. (The "Luc Sky" dead end isn't promising.) If so, they're being ripped off by DMCA notices sent in their names that target tons of legit sites containing zero infringing content. The URLs targeted have no relation to the name/title listed as protected content and it's impossible to see how an algorithm could do the job this badly. There's obviously no human interaction with the DMCA process Topple Track employs, otherwise none of the DMCA notices listed would even have been sent to Google.

What did we say about trust?

Google has confirmed that it has removed Topple Track from its Trusted Copyright Removal Program membership due to a pattern of problematic notices.

Symphonic has commented on the debacle, claiming "bugs in the system" resulted in the wave of bogus takedown notices. Possibly true, but all it would have taken was a little human interaction to prevent this abuse of the process and this PR black eye.

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Posted on Techdirt - 15 August 2018 @ 3:41pm

Court Says CBP Likely Violating First Amendment By Forbidding Photography Of Publicly-Viewable Border Crossings

from the muh-national-security dept

Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)

The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn't like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP's open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.

This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:

On the afternoon of April 19, [Ray] Askins stood at the intersection of First Street and Paulin Avenue on the U.S. side of the border, near the shoulder of the streets and immediately in front of the park. He was approximately 50–100 feet from the exit of the secondary inspection area, and he had not crossed the border or otherwise passed through border security to reach his location. Standing in the street, Askins took three or four photographs of the exit of the secondary inspection area. Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.


[Christian] Ramirez observed male CBP officers at a security checkpoint below inspecting and patting down only female travelers. Concerned that the officers might be acting inappropriately, Ramirez observed the checkpoint from the bridge for ten to fifteen minutes and took approximately ten photographs with his cellphone camera. Ramirez and his wife were approached by men who appeared to be private security officers. The men ordered them to stop taking photographs. The officers also demanded their identification documents, which Ramirez refused to provide as they had already passed through border inspection. The officers radioed for backup as Ramirez and his wife walked away, and at the bottom of the bridge, Ramirez was met by five to seven CBP officers. The CBP officers questioned Ramirez, and, without Ramirez’s consent, a CBP officer confiscated Ramirez’s cellphone and deleted all of the photographs Ramirez had taken from the bridge. A U.S. Immigration and Customs Enforcement officer confiscated the Ramirezes’ passports and walked away, leaving Ramirez surrounded by the CBP officers. After ten to fifteen minutes, their documents were returned to them and the Ramirezes were allowed to leave.

Both plaintiffs allege the CBP's practices violate the First Amendment. They are not seeking to photograph the inside of buildings or other sensitive areas not visible to the public eye, but rather border checkpoints where inspections and questioning are performed in public, completely visible to passersby. The CBP somehow believes what happens in public can't be documented by the public.

The district court decided to take the CBP up on its irrational argument, tossing aside logic to embrace the agency's claims about the super-secret nature of national security activities performed out in the open, visible to the unadorned eye. The appeals court says this isn't the way things are done. The lower court should not have lifted the government's burden of proof onto its own shoulders and carried it home for it.

The district court found that the CBP policies survived strict scrutiny because of “the extremely compelling interest of border security” and the government’s general interest in “protecting United States territorial sovereignty.” To this, the government adds that the CBP policies serve compelling government interests in protecting CBP’s law enforcement techniques and the integrity of on-going investigations; protecting the privacy of travelers, suspects, and sensitive digital information; ensuring the safe and efficient operation of the ports of entry; and protecting against terrorist attacks. In conclusory fashion, the district court held that the policies were the least restrictive means of serving these interests.

These conclusions are too thin to justify judgment for the government on a motion to dismiss. [...] It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.

The decision does not hand the plaintiffs a complete victory. It does shift the burden of proof back on the government and instructs the lower court to allow the case to proceed to see if the government can actually offer up anything supporting its random time/place restrictions that border on total violation of established First Amendment principles. The appeals court seems inclined to believe the CBP cannot simply forbid photography of publicly-viewable enforcement activities by members of the public. We'll have to see what the lower court does on remand, considering it already granted the government a free pass once, because National Security > Established Constitutional Rights, apparently.

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Posted on Techdirt - 15 August 2018 @ 9:31am

Prisons Switch Device Providers; Render $11.3 Million Of Inmate-Purchased Music Worthless

from the fucked-up dept

Yet again, when it comes to digital goods, you don't own what you buy. Inmates in Florida's prison system are learning this fact of life, thanks to a change in jail "entertainment" providers.

In April last year, the Florida Department of Corrections struck a deal with JPay. The private company, spearheading a push to sell profit-driven multimedia tablets to incarcerated people across the country, would be allowed to bring the technology to every facility in the nation’s third-largest prison system.

But there was a catch.

Inmates had already been purchasing electronic entertainment for the last seven years — an MP3 player program run by a different company: Access Corrections. For around $100, Access sold various models of MP3 players that inmates could then use to download songs for $1.70 each. Inmates could keep them in their dorms.

The demand was clear. More than 30,299 players were sold, and 6.7 million songs were downloaded over the life of the Access contract, according to the Department of Corrections. That’s about $11.3 million worth of music.

Because of the tablets, inmates will have to return the players, and they can't transfer the music they already purchased onto their new devices.

The corrections system is switching to JPay. Unfortunately, nothing else is switching. Money isn't easy to obtain in prison, meaning most of this suddenly useless music was purchased with funds from friends and family at inflated prices. The prison system comes out of it OK. It has collected $11.3 million on the sale of worthless infinite goods to a literally captive audience.

Now, with a lucrative JPay contract in effect, inmates are out millions of dollars in digital goods. The only options to keep what they purchased means shelling out more cash for the opportunity to put their purchased music completely out of reach.

The Department of Corrections negotiated an extension with Access Corrections to allow inmates to keep their MP3 players until January 23, 2019 if they choose not to participate in the tablet program.

Manderfield, the department spokesman, said that a department code prohibits inmates from owning more than one MP3 player at a time, but even without that, inmates would be able to keep the players because the contract is ending and there would be no way to service them.

Once returned, the inmates can pay a $25 fee to have their device unlocked or their music downloaded onto a CD before being shipped out to a non-prison address.

All of this stupidity is made possible by greed, greed, and more greed. First, the move to JPay gives Florida prisons even more money: $2.75 every time someone adds money to a JPay account, as well as a cut of any new content sold to inmates for the new devices. This has already resulted in $3.9 million in commissions over a twelve-month period covering April 2017 to March 2018.

The music end involves greed as well. Licensing is a nightmare, thanks to the endless meddling of music labels and performance rights organizations. An MP3 should be able to travel to any other device that supports that format, but it never does (especially not if the devices are controlled by an outside contractor). Licensing fees paid by Access Corrections apparently don't cover transfers of infinite goods to devices produced and sold by someone else. JPay handles its own licensing and even if it covers much of the purchased music, that's just not acceptable to everyone up the line waiting with their hands out.

People who don't have much money or any way to earn much of it are out $11.3 million. The prison gets paid. The service contractors get paid. The labels and PROs get paid. Everyone comes out of this fine except for the people who paid for the goods. If they want to "own" more music, they'll be paying everyone else twice for something they bought.

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Posted on Techdirt - 15 August 2018 @ 3:15am

Australian Gov't Floats New Batch Of Compelled Access Legislation With An Eye On Encryption

from the hello-darkness-my-old-friend dept

The Australian government is looking to revamp its compelled access laws to fight encryption and other assorted technological advances apparently only capable of being used for evil. It's getting pretty damn dark Down Under, according to the Department of Home Affairs' announcement of the pending legislation.

Encryption conceals the content of communications and data held on devices, as well as the identity of users. Secure, encrypted communications are increasingly being used by terrorist groups and organised criminals to avoid detection and disruption. The problem is widespread, for example:

  • Encryption impacts at least nine out of every ten of ASIO’s priority cases.

  • Over 90 per cent of data being lawfully intercepted by the AFP now use some form of encryption.

  • Effectively all communications among terrorists and organised crime groups are expected to be encrypted by 2020.

An example of harmful encryption is provided for readers at home, so they can weigh their own security and privacy against an anecdote about a registered sex offender who may or may not have escaped prosecution (the outcome of the case isn't provided) by using encrypted messaging apps. And it includes an inadvertently helpful lesson about the stupidity of targeting encryption with legislation, even if the DHA likely doesn't realize it.

The suspect was arrested and his mobile phone was seized but despite legislative requirements he refused to provide his passcode.

There's the limitation of lawmaking. Lawbreakers break laws and they're not going to stop just because you've told them not to with a government mandate. Legislation [PDF] like this does little more than make life more difficult for service providers and device makers while undermining the privacy and security of millions of law-abiding citizens.

The explanation sheet [PDF] notes the government is not seeking to mandate encryption backdoors. That being said, it would like providers of encrypted services/devices to leave the door cracked open so the government can step inside whenever it feels the need to look around.

The type of assistance that may be requested or required under the above powers include (amongst other things):

  • Removing a form of electronic protection applied by the provider, if the provider has an existing capability to remove this protection.

  • Providing technical information like the design specifications of a device or the characteristics of a service.

  • Installing, maintaining, testing or using software or equipment given to a provider by an agency.

  • Formatting information obtained under a warrant.

  • Facilitating access to devices or services.

  • Helping agencies test or develop their own systems and capabilities.

  • Notifying agencies of major changes to their systems, productions or services that are relevant to the effective execution of a warrant or authorisation.

  • Modifying or substituting a target service.

  • Concealing the fact that agencies have undertaken a covert operation.

The law can't retroactively force companies to produce crackable devices and messaging systems. But the first bullet point could see the Australian government demanding they do so in the future if they want to provide goods and services to the Australian public. Fortunately, the bill includes a clause making future demands along these lines impossible for the time being.

The Bill expressly prohibits technical assistance notices or technical capability notices from requiring a provider to build or implement a systemic weakness or systemic vulnerability into a form of electronic protection. This includes systemic weaknesses that would render methods of authentication or encryption less effective. The Australian Government has no interest in undermining systems that protect the fundamental security of communications. The new powers will have no effect to the extent that requirements would reasonably make electronic services, devices or software vulnerable to interference by malicious actors. Importantly, a technical capability notice cannot require a provider to build a capability to remove electronic protection and puts beyond doubt that these notices cannot require the construction of decryption capabilities.

Without further discussion by the legislature, it's tough to tell whether creating an escrow system would be considered a "system weakness" or make "encryption less effective." I mean, it obviously is and does, but does the DHA see it that way? And will this clause survive the final markup? Compelling decryption using "existing" methods seems especially useless if most services and devices cannot currently be decrypted by providers. The government is better off seeking outside help from contractors who do nothing else but find ways to crack or bypass encryption, rather than dropping language into the law that suggests backdoors the government won't call "backdoors" will be mandated in the future.

It also gives the government a considerable expansion of power, allowing it to peruse private companies' design specs and a heads up if any redesigns are in the works. It also forces companies to be compliant partners in government surveillance by mandating their assistance in man-in-the-middle attacks ("modifying or substituting a target service") and ordering them to withhold information from affected customers.

There is a public comment period, which is a nice touch. There also appears to be some respect for the good encryption does, rather than simply viewing it as an escape route for criminals and terrorists. But there's also a good deal of power expansion tied to rickety wording that suggests backdoors might be mandated if the government can talk itself into viewing proposals as something other than backdoors. And there's no guarantee this vague promise will make the final cut.

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Posted on Techdirt - 14 August 2018 @ 3:37pm

Iowa Supreme Court Thinks Things Are Too Tough For Bad Cops, Adopts Qualified Immunity Defense

from the can't-have-cops-worrying-about-violating-rights-when-they're-engaging-in dept

The Iowa Supreme Court has decided to lower standards for law enforcement officers in its state. The ruling [PDF] issued earlier this summer gives state officers the opportunity to dismiss lawsuits against them by asserting qualified immunity. Prior to this decision, there was no qualified immunity defense state actors could raise in court. They were actually forced to actually defend themselves in court, making it easier for plaintiffs' claims to survive an early motion to dismiss and bringing them closer to justice. (via Bleeding Heartland)

The case -- Baldwin v. City of Estherville -- involves an arrest for a crime that didn't exist. It involves driving an ATV through a city-owned ditch, something that's illegal under state law but not under the City of Estherville's laws. An arrest for something that wasn't actually illegal was followed by this lawsuit. It's a weird origin for a Fourth Amendment lawsuit, but the outcome makes holding officers accountable for their misdeeds much more difficult with the court's addition of qualified immunity to local government's litigation toolbox.

A lot of discussion of other states and their local immunity defenses -- as well as whether or not Constitutional cases are torts rather than strict liability issues -- leads the court to the following conclusion:

Accordingly, with respect to a damage claim under article I, sections 1 and 8, a government official whose conduct is being challenged will not be subject to damages liability if she or he pleads and proves as an affirmative defense that she or he exercised all due care to conform to the requirements of the law.

This brings the state in line with the federal standard. In other words, it lowers the state standards. Officers now only need to assert they were engaged in official police business (I'm very heavily paraphrasing here) when violating rights to sidestep being held personally liable for the rights violation.

This is unfortunate. Qualified immunity has created a system where officers routinely engage in rights violations secure in the knowledge that only the most egregious violations will be punished by courts. This standard varies from district to district and even obvious Constitutional violations can be overlooked if there's not a precedential case almost exactly on point for the court to look to when making its decision. Every so often a bright line will be drawn by courts, but that only applies to future cases where officers violated rights while engaged in [police activity X] during [exact time of day] involving exactly the same sort of police activity/rights violation as the "bright line" case. It's almost an insurmountable bar for plaintiffs to hurdle, which has resulted in a steady stream of unpunished rights violations.

The dissenting opinion [starting on p. 40] runs almost as long as the prevailing opinion. From the outset, Justice Brent R. Appel makes it clear qualified immunity is nothing more than a reward system for bad cops. The "standard" courts claim to hold government officials too is so low as to be tragically hilarious.

I begin by emphasizing that the policy-oriented federal doctrine of statutory qualified immunity does not provide a model for determining whether individuals are entitled to qualified immunity for Iowa constitutional torts. The federal doctrine of statutory qualified immunity progressively dilutes legal norms, embraces numerous false assumptions, fails to recognize the important role of juries in restraining government, and is inconsistent with important tenets of Iowa law.

Appel goes on to state that adopting this federal standard will make Iowa -- and its court system -- much worse, and much less likely to provide an avenue of recourse when rights have been violated.

We should not voluntarily drape our constitutional law with the heavy chains of indefensible doctrine. We should aim to eliminate fictions in our law and be honest and forthright on the important question of what happens when officers of the law commit constitutional wrongs that inflict serious reputational, emotional, and financial harms on our citizens.

And of all the places to give the government more ways to dodge accountability, Appel argues the Fourth Amendment (and its Iowa Constitution equivalent) is the worst place to do it. He goes Godwin to make his point.

The importance of effective enforcement of search and seizure restrictions on government was not lost on the generation of lawyers and judges who witnessed the collapse of the rule of law in central Europe in the 1930s. As Chief Nuremburg Prosecutor Justice Robert Jackson so eloquently opined after his return from his assignment in immediate postwar Germany,

"search and seizure rights are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government."

Qualified immunity is nothing more than an escape hatch for bad government behavior.

In short, when citizens suffer potentially grievous harms from unconstitutional conduct in violation of article I, section 1 or article I, section 8, we should require the officials who engaged in the unconstitutional conduct to bear the burden of the loss. We should not allow the officials who engage in unconstitutional conduct to respond to the prayer of the harmed citizen with, “Aw, tough luck. Tut tut. Bye bye.”

Here are the facts about qualified immunity. It's not needed and its absence won't result in thousands of law enforcement officers suddenly having to pay out of their own pockets for Constitutional violations.

A recent study by Professor Joanna Schwartz confirms what one might suspect, namely, that at least with respect to police officers, local governments almost always indemnify for settlements and judgments arising out of misconduct lawsuits. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 912 (2014). Specifically, the Schwartz study found that in the forty-four largest jurisdictions studied, police officers paid .02% of the over $730 million paid for misconduct suits between 2006 and 2011. In the thirty-seven smaller police departments included in the study, Schwartz found there were no officer contributions towards settlements and judgments during that time. In short, according to Schwartz, in many jurisdictions “officers are more likely to be struck by lightning than they are to contribute to a settlement or judgment in a police misconduct suit.” Id. at 914. The fact that officers are almost always indemnified undercuts one of the primary arguments in favor of the immunity doctrine—that without it, officers will be deterred from engaging in appropriate activities for fear of the financial consequences of a wrong decision.

Here's how Appel sums up his dissent:

Rather than follow the state’s motto, “Our Liberties We Prize and Our Rights We Will Maintain,” the majority follows an approach that suggests “Our Liberties Are Transient and Our Rights Are Expendable.”


The majority’s finding that the speculative overdeterrence of actions of officials is weighty while the risk of underdeterrence of unconstitutional conduct infringing on individual rights is not mentioned at all, suggests a results-oriented jurisprudence that favors government officials who inflict unconstitutional harms over citizens who endure them.

That's exactly how it works at the federal level and in states that have adopted this defense against liability. QI is a "Get Out of Litigation FREE!" card for government employees, and it has encouraged Constitutional violations far more than it has deterred routine police work.

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Posted on Free Speech - 14 August 2018 @ 3:23am

Broward County School Board Gets Hit With Anti-SLAPP Suit After Trying To Punish Paper For Exposing Its Redaction Failure

from the could-be-a-costly-unforced-error dept

Last week, the Broward County School Board went after a Florida newspaper, claiming it should be held in contempt of court for publishing information the school district didn't properly redact. The Sun Sentinel obtained a copy of the Parkland school shooter's educational records as the result of a public records suit. Certain information was redacted -- or at least was supposed to be -- to comply with state and federal privacy laws.

What was delivered to the Sun Sentinel by the district had black redaction bars covering two-thirds of the document. Unfortunately, the redactions were merely cosmetic. Anyone with a copy of the PDF could select the "redacted" text in the PDF and paste it into a text editor to see what was supposed to have been withheld. The school board screwed up, making it possibly liable for privacy law violations, but it went to court claiming it was all the Sun Sentinel's fault anyone's privacy got violated.

The Sun Sentinel has now responded -- both with an editorial middle finger and a filing in court. (h/t Brittany Wallman) If everything goes the Sun Sentinel's way, not only will it not face contempt charges (there's been no ruling on the motion, so it appears the judge doesn't believe closing barn doors post-livestock exodus qualifies as an emergency), but might collect some cash from the school district for trying to silence the paper.

From the motion [PDF]:

In a rush to deflect from its own negligence in publicly disclosing the CEN (Collaborative Educational Network) report at issue in a wholly unsecured format, the School Board now seeks to have this Court find the Sun Sentinel in contempt for exercising their First Amendment rights to truthfully report on a matter of the highest public concern: the exact nature of the special educational services the School District provided (or notably failed to provide) to Marjory Stoneman Douglas High School (“MSD”) shooter Nikolas Cruz—who now stands charged with multiple counts of capital murder. On their face, neither the civil court’s operative July 26, 2018 order (the “Civil Order”)—requiring the School District to disclose a redacted version of the CEN report—nor the criminal court’s August 3, 2018 order (the “Criminal Order”) in any way limited the Sun Sentinel’s ability to publish the report’s contents. Indeed, to have done so would have constituted an unconstitutional prior restraint.

By posting an improperly redacted version of the CEN report to its website for public download, the School District itself may have failed to comply with the court’s orders. In any event, there is no dispute that the Sun Sentinel lawfully obtained the report from the School District’s website and the information sought to be shielded by the redactions. Under such circumstances the law is clear: a First Amendment right to publish firmly attaches and no contempt proceeding may lie.

The motion points out the court never restricted what the paper could publish. Any court-ordered redactions were the responsibility of the school district, which was being sued for refusing to release the report at all. The in camera review conducted determined what could and couldn't be redacted by the school board. It had nothing to do with the Sun Sentinel, which was only the recipient of a document ordered to be produced. The paper acquired the document lawfully -- as did anyone else who downloaded the version with the faulty redaction. It was under no legal obligation to withhold information the school board meant to withhold, but didn't.

Even though the school district claims it handled everything correctly in regards to the Parkland school shooter, the Sun Sentinel points out in its editorial there are a handful of details that show school administrators mishandled situations involving a volatile student.

School officials didn’t properly advise Cruz of his legal options when he was faced with removal from Marjory Stoneman Douglas High School his junior year, leading him to give up special education services.

When Cruz failed to file the required written rejection of special education services, school officials nudged him, writing it up for him to sign.

The district “did not follow through” on Cruz’s subsequent request to return to the therapeutic environment of Cross Creek School for special education students.

The contempt motion looks like nothing more than a punitive move by the school board to punish a news outlet for exposing its mistakes to the world. If this anti-SLAPP motion secures a ruling in favor of the paper, the board's attempt to punish the news outlet for publishing lawfully-obtained documents will put taxpayers on the hook for the paper's legal fees.

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Posted on Techdirt - 13 August 2018 @ 2:36pm

Court Tells Government It Can't Search A House Just Because A Suspected Drug Dealer Once Parked In Its Driveway

from the an-affidavit-needs-to-be-more-than-a-sketchy-conspiracy-theory dept

The "good faith" exception can be difficult to overcome. Courts seem willing to grant the government this Fourth Amendment workaround even when it seems apparent the government operated in bad faith.

Take, for instance, the FBI's Playpen investigation. On the strength of a single warrant issued in Virginia, the FBI, in essence, searched computers all over the nation (and all over the world) to extract identifying info about the devices' users. Even when courts found the warrant to be invalid because of its blatant disregard for jurisdictional limitations (warrants can only be executed in the district they're issued), they still granted the government "good faith" because the FBI agent had relied on the judge's approval of the warrant to execute the search.

But this was happening while the FBI was petitioning the rest of the government to remove jurisdictional limitations with amendments to Rule 41. So, this warrant was obtained while limits the FBI wanted lifted were in place, but its execution took place before the limits were lifted. Somehow, this was still considered "good faith," even if those overseeing the warrant and investigation knew the FBI planned to violate jurisdictional limitations with the deployment of its PII-scraping malware.

This is only a small part of the federal court system's deference to law enforcement. "Good faith" is supposed to be the exception, not the rule, but hundreds of court rulings on evidence suppression bend over backwards to view law enforcement actions in the best possible light, even as evidence mounts outside the court system American policing is frequently unconstitutional, if not outright corrupt.

When you see a court actually reject the government's "good faith" advances, you can be certain law enforcement has screwed up severely. This case, brought to our attention by the Sixth Circuit Blog, is one of those exceptional strippings of a Fourth Amendment exception.

In this decision [PDF], the Sixth Circuit Appeals Court upholds the lower court's suppression of evidence. The Akron PD engaged in a lengthy drug investigation, but decided to take a few shortcuts to search a residence it vaguely speculated might be related to the drug dealer they were pursuing. The connective tissue of the warrant tore immediately upon judicial inspection. The supposed probable cause for an extensive, broad search of a residence? One time the guy they were surveilling parked his car in the driveway.

The target of the investigation was Camiolo Rocha-Ayon Jr. The rest of this is related to Carl Tucker -- the person challenging the evidence's legal origins -- in ways only clear to the officer requesting the warrant.

Akron Police Department Detective M.V. Gilbride sought a records-and-documents search warrant for the Saxon Avenue house. Citing his training and experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride hypothesized that Rocha-Ayon had traveled to the residence “to collect drug proceeds from TUCKER to pay for [an] upcoming delivery of cocaine.” He further speculated that “a portion of the cocaine seized” from Rocha-Ayon was intended for Tucker, that “at least a portion of the currency recovered” from Rocha-Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County, Ohio Auditor’s Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was the account holder for the residence’s electric utilities; that the Akron Police Department had received a service call in October 2016, which suggested that drug dealing was occurring at the house; that, inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack cocaine ; and that the affidavit had been presented to and approved by “the Akron Police Legal Advisor.”

Having perused Detective Gilbride's speculative affidavit, a local judge granted the Akron PD the permission to seize:

[b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic equipment to store information relating to the possession, transportation, ordering, purchase and distribution of controlled substances, . . . bank statements and records and other items evidencing the obtaining, secreting, transfer and/or concealment and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency, photographs, indicia of occupancy; and other fruits, instrumentalities and evidence related to drug trafficking.

So, based on the observation a drug suspect once parked in the driveway of a house owned by someone else, the PD was given free rein to seize everything in the house (if not the house itself, because, you know, "transfer/concealment/expenditure of money").

Then the government obtained a second warrant after finding a utility bill with Tucker's name on it listing an address on Penguin Ave. [Keep in mind, the supposed target of this investigation is still Rocha-Ayon, who once parked in the driveway of the Saxon Ave. residence.] This affidavit copy-pasted the Saxon Ave. speculation and dragged in a completely unrelated service call from the Akron PD to this Penguin Ave. for a domestic dispute involving Tucker. This warrant was approved as well.

The lower court said the Saxon Ave. warrant (the first one obtained) was so bare bones it could not possibly justify a search. And if that warrant was bad, it invalidated the second warrant because that one was largely based on evidence recovered during the first invalid search.

The appeals court agrees. And in doing so, it provides a crystal clear description of a "bare bones" warrant -- the kind that can't be salvaged by "good faith" pleas from the government. It also points out officers utilizing warrants like these terrible ones cannot expect a judge's signature to save them from their own better judgment.

Broadly speaking, an officer’s reliance on a search warrant is not objectively reasonable where “a reasonably well[-]trained officer would have known that the search was illegal despite the magistrate’s authorization.” One such situation is where the affidavit is “bare bones,” i.e., is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

Everything about the Saxon Ave. warrant was garbage. And everything arising from that one -- the Penguin Ave. warrant -- is just more garbage. Here's the PD's bare bones warrant, stripped of its boilerplate and CopSpeak, bleeding to death in the harsh light of judicial examination.

The Saxon Avenue affidavit is a prototypical example of a bare-bones affidavit. Stripped down to its basics, the affidavit asserts that evidence of drug trafficking would be found at the Saxon Avenue residence because (1) a suspected drug dealer once parked in the driveway for a brief period of time, (2) the house’s owner had a 17-year-old conviction for possession with intent to distribute, and (3) a four-month-old, seemingly unverified, apparently anonymous tip suggested that drug dealing may have occurred there.

The court then drags the government's arguments on behalf of its terrible warrant into the same light and lets them soak in their own shame.

The government attempts to resist this conclusion by pointing to additional, allegedly “critical” facts contained in the Saxon Avenue affidavit. Specifically, the government notes that when Rocha-Ayon visited the residence, he was driving a car that he sometimes—but not always— used in connection with drug trafficking; that prior to his arrival on February 17, Rocha-Ayon stopped to purchase household items that are sometimes—but not always—used by drug traffickers; and that two days later, Rocha-Ayon was arrested 135 miles away while transporting cocaine. Based on these additional facts, the government claims that a reasonable law enforcement officer could “easily infer” that “ROCHA-AYON JR. [had] traveled to 791 Saxon Avenue on February 17, 2017 to collect drug proceeds from TUCKER to pay for the upcoming delivery of cocaine…"

If that's the argument the government wants to make, the court will let it. But all it does is show the officer involved in obtaining this warrant is either incredibly poorly trained or an idiot.

Contrary to the government’s assertion, no reasonably well-trained officer could draw such conclusions based upon the particularized facts in the affidavit…

Building another warrant on the skeletal framing of the first bad warrant can't save the second warrant. The court discusses the issue, but points out it doesn't even need to reach a "good faith" decision on the second warrant. It clearly sprung from the first invalid warrant/search and is similarly nothing but unconstitutional garbage. Evidence obtained from both searches is suppressed, leaving the government with its original investigation target -- the one they arrested 135 miles away from the residences searched and in which the suspect parked his car once at only one of the residences.

It's an exception to the rule that's actually supposed to be an exception. Only the worst law enforcement actions are refused the GFE pass for the halls of justice. This isn't a win for the Fourth Amendment. It just one of the few times the government's disregard for civil liberties actually results in suppressed evidence.

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Posted on Techdirt - 13 August 2018 @ 10:46am

Appeals Court: No Immunity For Border Patrol Agent's Murder Of 16-Year-Old Mexican Citizen

from the actually-called-it-'murder.'-that's-refreshing. dept

Earlier this year, US Border Patrol agent Lonnie Swartz was acquitted of second degree murder for killing a 16-year-old Mexican resident by firing sixteen bullets across the border into a Nogales, Mexico street. Ten of those hit Jose Antonio Elena Rodriguez, killing him in Mexico, but with bullets fired from the United States.

The excuse for emptying a clip into another country (and another country's citizen) was that Rodriguez and others were "throwing rocks" at Border Patrol agents. Considering there's a fence separating the US and Mexico side of Nogales -- and a decently sized one at that -- and the BP officers were free to move out of range of the rocks, it would appear there was no physical threat to Swartz's safety. Nonetheless, he felt compelled to shoot across the border 16 times. He may have escaped jail time, but he's not going to escape a lawsuit. (h/t Kevin Gosztola of ShadowProof)

The Ninth Circuit Court of Appeals has upheld the lower court's stripping of Swartz's qualified immunity. The decision [PDF] points out several things about how far the Constitution expands into Mexico when it involves an American on American soil firing deadly projectiles into another country.

First off, the court notes J.A. (as he's referred to in the ruling) posed no threat to officers even if he was throwing rocks. (J.A.'s survivors claim he wasn't.) The Border Patrol had the high ground plus a fence to protect them from thrown rocks.

The ground on the American side is around 25 feet higher than the road, and a border fence rises another 20 or 25 feet above that… The fence is made of steel beams, each about 6½ inches in diameter, set about 3½ inches apart.

Here's a picture of the area from the Mexico side for reference. (Taken from the ruling.)

This would seem to be a pretty effective barricade against thrown rocks. However, it does nothing to stop bullets fired from above through the fence. The Fourth Amendment question is completely settled on matters like these:

These principles are clearly established. As we held in Harris, every reasonable law enforcement officer should know that “officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons.”

The court holds the killing of J.A. was an impermissible "seizure" under the Fourth Amendment. Swartz argued no right was violated because J.A. was a Mexican resident and therefore had no Fourth Amendment protections. The court says this distinction doesn't matter. What really matters is how the shooting took place. Mexico's laws and rights apply on the Mexican side of the border, but US laws and rights are dragged into it when a government agent starts firing a gun from the US side of the border.

[U]nlike the American agents in Verdugo-Urquidez, who acted on Mexican soil, Swartz acted on American soil. Just as Mexican law controls what people do there, American law controls what people do here. Verdugo-Urquidez simply did not address the conduct of American agents on American soil.

Furthermore, despite Swartz's filed protestations, he could not have possibly known the nationality of the citizen he was firing at. Nogales is split at the border and residents of both sides cross the border frequently. Swartz could very easily have killed a US citizen. His assumption that J.A. was Mexican because he was on that side of the fence did not give him a better excuse to open fire. The only thing that assumption did was make him believe this violation of J.A.'s rights would somehow be more minimal because of his physical location. That assumption is just wrong.

J.A.’s citizenship and ties to the United States are similarly irrelevant here. When he shot J.A., Swartz could not have known whether the boy was an American citizen. Thus, Swartz is not entitled to qualified immunity on the bizarre ground that J.A. was not an American. For all Swartz knew, J.A. was an American citizen with family and activities on both sides of the border. Therefore, the question is not whether it was clearly established that aliens abroad have Fourth Amendment rights. Rather, it is whether it was clearly established that it was unconstitutional for an officer on American soil to use deadly force without justification against a person of unknown nationality on the other side of the border.

Swartz argued that extending this right to citizens on the other side of our border walls will somehow wreak havoc on the legal system and hamper the ability of border officers to do their jobs. The court says this concern is misplaced. If officers engage on this side of the border, the Constitution (and court precedent) is crystal clear.

The concerns in Verdugo-Urquidez were also specific to warrants and overseas operations. But this case is not about searches and seizures broadly speaking. Neither is it about warrants or overseas operations. It is about the unreasonable use of deadly force by a federal agent on American soil. Under those limited circumstances, there are no practical obstacles to extending the Fourth Amendment. Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason. Enforcing that rule would not unduly restrict what the United States could do either here or abroad.

J.A.'s Fourth Amendment claim can continue to be brought against Agent Swartz. The court briefly notes that J.A.'s Fifth Amendment claim may have been dismissed when the Fourth A claim was upheld, but there's no reason it wouldn't have applied as well if it had been sustained. And it's this small note that really lays bare the court's feelings about this particular defendant and his actions.

The district court dismissed Rodriguez’s Fifth Amendment claim because the Fourth Amendment applied, and we do not analyze the Fifth Amendment claim here. But if the Fourth Amendment does not apply because J.A. was in Mexico, then the Fifth Amendment “shocks the conscience” test may still apply. Swartz’s conduct would fail that test. We cannot imagine anyone whose conscience would not be shocked by the cold-blooded murder of an innocent person walking down the street in Mexico or Canada by a U.S. Border Patrol agent on the American side of the border.

Swartz may have been acquitted of murder charges in court, but another court stills views his actions as murderous. When a court calls a government agent's actions "murder," there can be no doubt qualified immunity has been denied. Swartz will have to face the financial consequences of his actions, even if he has managed to dodge being jailed for killing the citizen of another country.

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Posted on Techdirt - 13 August 2018 @ 3:23am

Exposure Of Secret TSA Surveillance Program Nets The Government More Terrorist Watchlist Litigation

from the clearly-audible-responses-to-the-'Quite-Skies'-program dept

The recent exposure of the TSA's "Quiet Skies" program by the Boston Globe is leading to more terrorist watchlist litigation. The "Quiet Skies" program sends air marshals all over the US to watch travelers swallow, shop, use the restroom, and stare at things. It's suspicionless surveillance even the air marshals disagree with, with some quoted by the Globe calling the program a worthless waste of tax dollars, if not just a vehicle for repeated Constitutional violations.

The Council of American-Islamic Relations (CAIR) is using this information in two of its lawsuits against the government. Its lawsuit against the Terrorist Screening Center -- which originated in 2016 -- will hopefully be aided by the Globe's reporting. A motion to compel discovery [PDF] seeks details on the program for use in this litigation. The filing notes the government continues to hide information about its many watchlists from the plaintiffs it represents, forcing it to rely on leaked documents to obtain information it has already requested from the government.

Throughout discovery, Plaintiffs have sought to determine, at the very least, the broad outlines of the watchlisting system. And yet, throughout discovery, Defendants have kept TSA’s Quiet Skies program hidden. Even though all indicators show that Quiet Skies is responsible for engulfing thousands of innocent Americans within the watchlisting system, the program appears in no document produced to Plaintiffs nor in any answers to Plaintiffs’ discovery questions. It was conveniently left out and not referenced; deposition questions which would have unmasked it were blocked. With this latest news, the Court should conclude that Defendants continue to improperly withhold basic watchlist information.

The motion points out this exposed secret watchlist likely explains the actions observed by one of its clients -- a possible "Quiet Skies" target -- when traveling. (It should be noted that fliers noticing they're being tailed by someone is also considered suspicious activity, especially if the flier does anything to ditch the tail or otherwise expose the surveillance.)

Plaintiff El-Shwehdi reports that once at JFK he was “shadowed” by what appeared to be a plainclothes security officer. The man followed him “with a clipboard with some paper” from “near the ticket counter,” through security, continuing while El-Shwehdi put back on his belt and shoes, and kept up the monitoring for the next “two hours” in the boarding area. The plainclothes man even tailed El-Shwehdi when he went to the bathroom, and when he went to get soup. These detailed descriptions of constant monitoring by an undercover officer map precisely onto Quiet Skies.

CAIR's new lawsuit over terrorist watchlists targets a few dozen government officials and agencies, including the FBI, DHS, TSA, TSC (Terrorist Screening Center), DOJ, and CBP. The complaint [PDF] alleges the government engages in routine suspicionless surveillance of US citizens and lawful residents, resulting in a number of harmful outcomes, including a lifetime of government snooping and severe curtailment of personal freedoms.

Through their watchlisting system, the federal government makes it known— to every law enforcement agency in the country, every part of the federal government, more than 60 foreign countries, an unknown number of private companies, international bodies, and other third parties—that the Plaintiffs should be treated as dangerous threats. The Plaintiffs’ friends, family, and others with whom the Plaintiffs associate are punished for their relationship with a watchlisting system’s target.

The Defendants know that their watchlisting system has never prevented an act of terrorism inside the United States and is completely ineffective, but they continue to expand it anyways.

Plaintiffs and almost all others targeted by the watchlisting system have never been arrested, charged, or convicted of any type of terrorism-related offense. Nonetheless, the federal government has designated them as “known or suspected terrorists,” wreaking havoc on Plaintiffs’ personal, religious and professional lives.

Stuff that's legal for Americans to do -- traveling to the Mideast, speaking Arabic, worshiping at mosques -- are all considered suspicious activities by those running the watchlists. This must be discriminatory behavior since it certainly isn't justified by any paperwork or research the government's been able to produce.

Leaked government documents as well as public governmental reports, reveal that the federal government’s terrorist watchlisting system is discriminatory, standardless, and devoid of adequate procedures. These documents include the March 2013 Watchlisting Guidance (Exhibit 1), the Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013 (Exhibit 2), the Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist (Exhibit 3), and a 2018 informational bulletin on the “Quiet Skies” program (Exhibit 4).

The fact that watchlisting radiates outward from targets means children, relatives, friends, business associates, and fellow worshipers may all be added to the government's lists simply because they have frequent contact with a target. This creates exponential expansions of watchlists with each new "connection" added, all without individual, particularized suspicion.

Recourse for targeted travelers is limited and restricted to border crossings. For those targeted and traveling from place to place in the US, there's no way to challenge the TSA's "Quiet Skies" watchlist placement. And, as the lawsuit notes, the government hasn't been forthcoming about its many watchlists, so those suing may be on others they can't even begin to challenge because no one has acknowledged their existence.

This is an extremely unfortunate state of affairs for a country that used to welcome immigrants from around the world and held itself up as the standard bearer for personal freedoms. Capitalizing on a horrific tragedy, the government as a whole has used the specter of terrorism to amass and consolidate power. The multiple secret watchlists compiled without articulable suspicion is only one symptom of the country's failure to handle a terrorist attack in a manner befitting the leader of the free world.

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Posted on Techdirt - 10 August 2018 @ 7:39pm

Brief To FISA Court Says The Presumption Of Openness Should Apply There, Too

from the it's-a-court,-not-a-wing-of-the-NSA dept

The court system belongs to the people. That's what a "presumption of openness" means. It's a public system, accessed by the public or by representatives of the public. With rare exception, documents filed with the court system should be made available for viewing by the public.

The FISA court, which oversees a multitude of surveillance programs and national security investigations is a closed book. Until very recently, it operated in total darkness, much like the agencies seeking its approval for surveillance. The Snowden leaks changed that, moving it very slightly closer to a presumption of openness.

The Director of National Intelligence -- nodding towards transparency in a mostly self-serving way -- has begun to declassify orders and rulings from the FISC. But a majority of FISC documents released by the ODNI haven't come from this hesitant step towards transparency. They've been forced out the government's hands by numerous FOIA lawsuits.

Access to court documents shouldn't have to be litigated, even in the FISA court. That's the argument being made by Georgetown professor Laura K. Donohue in her FISA court brief [PDF]. The long, very interesting brief covers a number of issues and government arguments, but it all boils down to public access as a presumption, rather than a grudging concession after a courtroom loss in a FOIA case.

Her brief note the FISA court controls the documents submitted to it and the orders/opinions it issues. When it decides its subservient to surveillance agencies and their national security assertions, the system of checks and balances is thrown out of whack. That's what's happened over the 40 years the court has been in operation. Government agencies and a number of administrations have decided it does not have the discretion to handle the release of court documents.

This is obviously wrong. Donohue's brief sets the stage with a dismantling of the government's opacity arguments -- all designed to override the court's inherent authority to control the release of court documents. [Paragraph breaks added for readability.]

FISC has inherent supervisory authority over its own records and therefore exercises non-statutory jurisdiction over all common law and First Amendment public rights of access. Each of the... arguments offered by the response brief to the contrary fails.

First, the jurisprudence establishes that no statutory cause of action is required for the court to exercise its inherent powers. The court with original jurisdiction over the case oversees all contemporaneous and future motions for access to records. None of the myriad inherent powers cases at issue rely on a separate, statutory cause of action. The FISC would have to rule against the Supreme Court, every circuit, and four prior decisions of the FISC, to find for the government…

There's plenty of precedent to be had but the government wants to ignore it. Instead, it would rather funnel access through the FOIA process so it can retain complete control over documents filed in court, claiming the court's power for itself. But the government also wants it both ways and will "allow" the FISC to control court documents if it seems like a better route for an FOIA denial.

FOIA cannot serve as a substitute for judicial action as it does not (because it cannot) create a cause of action for records held by the judiciary. That statute focuses exclusively on agency records. Regardless of whether the executive branch happens to have judicial records in its files, as the Supreme Court has held, courts retain jurisdiction over their own documents.

The government response brief is further in tension with two arguments that the government has elsewhere raised. In both district court and at the FISC, it has argued that even under FOIA, FISC opinions are still subject to the FISC's control, suggesting that the court does, in fact still retain jurisdiction. Perhaps more concerning, the government has gone into district court and argued that because the FISC is a specialized court, the district court should not exercise jurisdiction over FISC records-an argument at odds with the argument it advances in its representations to this court, where it suggests that (non-specialized) district courts have jurisdiction over FISC documents.

The presumption of openness and disclosure should include the FISA court. The American public has a right to know what the government's doing with its money and its tacit approval. If there are national security concerns, they must be explicitly detailed rather than broad-brushed across a stack of documents. The FISC should ensure the government doesn't cut corners on its redaction paperwork.

And that's the very reason redacting exists. The government could allow the release of documents as soon as they're redacted (after making their case in court) to protect national security interests. Opening up the FISA court doesn't mean exposing a long list of surveillance means and methods. It simply means treating the FISA court like any other federal court where documents and dockets can be viewed by the public to better educate themselves on legal processes, issues, and government activities. Considering the NSA's long history of abuses, the more eyes on the process the better, especially when its oversight has devolved into a partisan point-scoring exercise.

The never-before-seen release of FISA warrant affidavits should be the tip of the iceberg. There's a lot the court oversees and it's doing it with almost no assistance from the outside. This leaves it at the mercy of the agencies seeking its approval. That's not the way the system should work.

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Posted on Techdirt - 10 August 2018 @ 2:38pm

9th Circuit Denies Cops Who Shot Innocent People 15 Times Qualified Immunity For The Second Time

from the quit-while-you're-behind dept

Two Los Angeles Sheriff's Department deputies are hearing -- for the fourth time -- they'll be personally responsible for a string of Constitutional violations resulting in them filling two innocent people with bullets. At this point, the officers have lost at the district level, the Appeals Court, got a partial remand (but no grant of immunity) from the Supreme Court, and are back in front of the Ninth Circuit Court of Appeals losing again.

Deputies Christopher Conley and Jennifer Pederson were searching for a parolee named Ronnie O'Dell. A department briefing claimed O'Dell lived in a one-room shack behind a home owned by Paula Hughes. O'Dell did not live there. Instead, the deputies found -- after entering the shack without announcing their presence or obtaining a warrant -- Angel Mendez and Jennifer Garcia. Mendez, who had been sleeping on a futon, started to move a BB gun off the bed (the BB gun was used to shoot pests) and set it on the floor so he could stand up. Deputy Conley shouted "Gun!" and the rest -- all fifteen bullets of it -- is tragic history.

From the Ninth Circuit Appeals Court's second pass [PDF] at this case:

Angel Mendez was shot approximately ten times and suffered severe injuries. He lost much of his leg below the knee, and he faces substantial ongoing medical expenses. Jennifer Lynn Garcia (now Jennifer Mendez) was shot in the upper back and left hand.

The district court found the deputies had violated clearly established rights -- both with the warrantless entry and the use of force. The appeals court upheld this ruling, siding with the lower court's interpretation of "provocation:" the legal theory that the deputies' failure to "knock and announce" directly created the "dangerous" situation (Mendez awakening and trying to move his gun) that resulted in officers shooting Mendez and Garcia.

This was appealed and the Supreme Court trimmed back a bit of the Ninth Circuit's Fourth Amendment jurisprudence. It ruled against the "provocation rule" instituted in the Ninth Circuit, finding no Constitutional precedent for this theory.

The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally. Neither limitation, however, solves the fundamental problem: namely, that the provocation rule is an unwarranted and illogical expansion of Graham.

In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure. There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation.

This doesn't create more protections for officers. All it does is constrain the Ninth Circuit to existing QI precedent. The court can no longer rule the shooting was excessive because officers created the situation that resulted in shooting. But that's not the same as saying the force was justified either. There's more to this, and that's in the Ninth Circuit's second opinion.

On remand, the Ninth Circuit court reconsiders its take on the excessive force claim. Unfortunately for the deputies, this doesn't mean they'll escape liability. If anything, the direction from SCOTUS pushed the appeals court to add state law violations to the mix. The opinion is still as acidic the second time around.

The panel held, as it did in its earlier opinion Mendez v. County of Los Angeles, 815 F.3d 1178, 1191 (9th Cir. 2016), that the officers violated the Fourth Amendment by entering plaintiffs’ home without a warrant, consent or exigent circumstances. The panel held that the officers’ unlawful entry, as distinct from the unlawful mode of entry, that is, the failure to knock and announce, for which the officers had qualified immunity, was the proximate cause of plaintiffs’ injuries. Moreover, the panel held that even if it were to treat the failure to get a warrant rather than the entry as the basis for the breach of duty, as the defendants suggested, the panel would still reach the same conclusion regarding proximate cause. The panel rejected defendants’ assertion that Mendez’s action of moving the gun so that it was pointed in their direction was a superseding cause of plaintiffs’ injuries. The panel held that if an officer has a duty not to enter in part because he or she might misperceive a victim’s innocent acts as a threat and respond with deadly force, then the victim’s innocent acts cannot be a superseding cause.

As is pointed out later in the opinion, there's a goddamn good reason the Fourth Amendment should be respected by law enforcement officers. Refusing to do so makes things more dangerous for everyone -- officers and citizens -- even though it's citizens paying with their health and lives for these violations far more frequently.

Important social interests are served by minimizing interactions between armed police officers on high alert and innocent persons in their homes, precisely because such interactions can foreseeably lead to tragic incidents where innocent people are injured or killed due to a split-second misunderstanding. One way the Constitution serves these interests is by adopting a rule that restricts officer entry into a residence except in certain limited circumstances. And it is obviously foreseeable that fewer tragic incidents like this one would occur under an enforced regime where officers will not enter homes without sufficient justification, as compared to one where officers enter without adequate justification. Especially where officers are armed and on alert, violent confrontations are foreseeable consequences of unlawful entries.

The other safety barrier between innocent people being gunned down by officers on high alert is the warrant requirement. These deputies didn't get a warrant. Nor was it even possible for them to obtain one, unless they did so fraudulently. The court lays down some nasty verbal licks describing the lack of mere suspicion, much less probable cause, surrounding this unlawful search and deployment of force.

Here, the officers most likely lacked probable cause to believe that O’Dell was in a shed that was known, or reasonably should have been known, to belong to the Mendezes. As we noted in our prior decision in this case, “O’Dell was supposedly spotted riding a bicycle in front of Hughes’ house. Unless he was riding in circles, he would have passed the house long before the officers arrived. The original group of officers recognized this, as some of them went to another house to look for O’Dell.” Mendez, 815 F.3d at 1188 n.5. Under the circumstances the officers had no more reason to believe that O’Dell was on Hughes’ property than that he was on any other property reachable by bike within the time between the informant’s report and the arrival of the police. And although the officers came across a bike parked in front Hughes’ home, there was nothing to suggest that the bike was or resembled the bike O’Dell was riding. Seeing a bike after a suspect was seen riding a bike provides no more probable cause than seeing a car after a suspect was seen driving a car.

There's nothing better waiting for the deputies' "but he had a gun" argument:

[A]mong the reasons why the Fourth Amendment erects a barrier to entry is that an officer might, due to a mistaken assessment of a threat, harm a person inside the residence. Persons residing in a home may innocently hold kitchen knives, cell phones, toy guns, or even real ones that could be mistakenly believed by police to pose a threat. The possibility of misperceiving a threat is among the reasons why entry into a home by armed police officers with weapons drawn is dangerous. In such cases, the innocent acts of a homeowner in moving an ordinary item in an ordinary way cannot properly be viewed as a superseding cause.

A California Supreme Court decision paves the way for another chance to hold these deputies' responsible for their irresponsible actions. The one issue the Ninth Circuit found in favor of the officers -- the "knock and announce" violation -- is now removed, thanks to this local ruling.

Under California law, unlike under 42 U.S.C. § 1983, the failure to knock and announce can be a basis of liability. The officers knew or should have known about the Mendezes’ presence. Yet they decided to proceed without taking even simple and available precautions, including announcing their presence, which could have protected the Mendezes from the severe harm that befell them.

The deputies are now on the hook for even more damages, something they could have avoided by not appealing the district court ruling. But QI cases tend to resolve in favor of law enforcement, so why not roll these dice? But you'd think it would all be pretty clear where this was going after the Ninth Circuit's first pass at the case. What little the officers thought they'd gained from the Supreme Court's reversal on a single claim has now turned into additional damages for state law violations.

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Posted on Techdirt - 10 August 2018 @ 12:02pm

Federal Judge Calls City's Asset Forfeiture Program Unconstitutional

from the which-pretty-much-means-all-civil-asset-forfeiture-programs-are-unconstitutional dept

In 2015, the state of New Mexico overhauled its asset forfeiture program. The reform bill all but eliminated civil asset forfeiture by creating a conviction requirement. This eliminated roadside shopping trips by New Mexico law enforcement in which "perps" were free to go, so long as they left everything else (cash, vehicles) behind.

Despite the passage of this law, the Albuquerque PD continued to engage in asset forfeiture on pre-reform terms. The especially aggressive program saw citizens losing their vehicles to law enforcement because of acts committed by other drivers and the PD seized cars by the dozens during DWI arrests. The PD was sued by state legislators for its continued violations of the new law while the law enforcement agency repeatedly claimed the legislation just didn't apply to it.

The plaintiff in this case -- who has just received a ruling that may cause serious problems for asset forfeiture programs elsewhere in the nation -- had her vehicle forfeited by the Albuquerque PD after her son drove it drunk. A ruling in this case allowed Arlene Harjo's lawsuit against the city to proceed, and also resulted in the PD dropping its unlawful -- if not unconstitutional -- program.

Albuquerque announced this week that it will end the program following a federal judge's recent decision to allow Harjo's lawsuit against the city to proceed. "Given changes in state law and recent court rulings, it's time to update the city's policy on vehicle seizures," Albuquerque Mayor Tim Keller said in a statement to the Albuquerque Journal. "As part of constitutional policing, [the Albuquereque Police Department] can continue to seize assets in cases where there has been a conviction. I directed APD to implement this change and have requested City Council to update the ordinance."

The city tried to end Harjo's lawsuit by returning her car to her in 2016. Fortunately, Harjo had the help of the Institute for Justice, which wasn't amused by this attempt to circumvent litigation targeting the whole of PD's asset forfeiture programs.

The earlier ruling cited above allowed Harjo's lawsuit to proceed. This ruling [PDF] -- delivered August 1st -- drives judicial nails into the program itself. [h/t Volokh Conspiracy]

The lawsuit questioned the constitutionality of the incentives created by the program used by the PD. The PD directly profits from these seizures, so the question is whether the incentive is perverse enough to invite abuse of civil liberties. The court says, "Yes. Yes it is."

The Court concludes that the City of Albuquerque has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years. Thus, there is a “realistic possibility” that forfeiture officials’ judgment “will be distorted by the prospect of institutional gain” -- the more revenues they raise, the more revenues they can spend.

This would be the case in most asset forfeiture programs. Few are subject to independent oversight and almost all of them allow for discretionary spending. The distorting effects of these programs can be seen… well, pretty much everywhere.

The court goes on to note that it's unlikely those overseeing forfeiture proceedings (mainly city attorneys and forfeiture administrators) are likely not as affected by this distortion since their salaries aren't tied to successful conversions. But it goes on to note the program itself, irrespective of questionable financial interests, is unconstitutional because it incorrectly shifts the burden of proof to the person whose property has been seized.

The City of Albuquerque has determined that innocent owners -- owners who could not have reasonably foreseen that their vehicle would be used in a way that would subject the vehicle to forfeiture -- have a right to keep their vehicles. Thus, the City of Albuquerque has a constitutional obligation, under Mathews v. Eldridge, to implement accurate procedures for determining an owner’s innocence. The City of Albuquerque’s hearing procedures do not discharge that obligation, because proving that the City of Albuquerque has probable cause to seize a vehicle does not reveal anything about what the vehicle’s owner could or could not have reasonably foreseen. Thus, the City of Albuquerque’s hearing procedures are constitutionally inadequate…

As things stood before the city dropped the program, all the city had to prove was the operator of the vehicle committed a crime (usually DWI, but also driving with suspended/revoked licenses). It left the burden of proving the owner's innocence (not the actual driver) to the owner, which is the wrong way to handle things in terms of due process.

This is the way all civil asset forfeiture hearings are handled. The government has to only offer suspicions. It's up to victims to come up with all the proof of innocence or the property's legal provenance. These two declarations by a federal court strike at the heart of civil asset forfeiture everywhere. What's unconstitutional here is unconstitutional elsewhere. If any appeals are involved (and Harjo continues to prevail), the influence of this opinion will spread to the entire district. So, it's potentially a huge ruling, even if it's current impact is limited to Albuquerque's (now abandoned) forfeiture program.

As a bonus, here's some "fun" facts about the PD's forfeiture program (all taken from the ruling, with additional commentary in brackets):

“The City’s Chief Hearing Officer has stated that ‘about half of the vehicles that APD seizes are not owned by the offender that we confiscate it from’”; rather, “‘it’s the mothers, the fathers, the wives, the girlfriends, the brothers, [and] the uncles’” who own the vehicles…

No one from the City of Albuquerque Police Department contacts the owner to “conduct an interview prior to proceeding with the forfeiture” and no one from that department “investigates to determine whether the owner might have a valid innocent owner defense.”

Should the owner prevail in state court, the state court can still “impose storage fees as a condition of the vehicle’s release.”

One of the most significant expenses paid out of program revenues is employee compensation.” During fiscal years 2009 to 2016, “the City used $3.7 million in program revenues to pay employee compensation,” which amounts to twenty-seven percent “of all expenses paid with program revenues.” Every fiscal year, “the City makes a lump-sum transfer” out of the forfeiture program’s account to pay the entire “salaries and benefits of employees associated with the program.” [This seems to be at odds with the finding that the program does not distort incentives for city forfeiture employees.]

“As a practical matter, the program’s spending is limited by its revenue, not by the City Council.” If the forfeiture program has more funds “available than [the] City Council has appropriated, it can spend even more and [the] City Council will pass a clean up bill retroactively authorizing the spending.”

Annual performance evaluations for employees in the DWI Seizure Unit -- which serve to assess individual job performance -- list as an ‘Output Measure[]’ to ‘increase the amount of revenue generated from Seized vehicles.’”

“The head of the DWI Seizure Unit agreed that these Output Measures serve as a ‘measure of the unit’s success or failure at meeting its objectives.’”

In recent years,” the forfeiture program’s revenues have “declined, as fewer people are being caught driving under the influence.” “The City ascribes this decline to a variety of factors, including the rise of companies like Uber and Lyft that make it easier to drink outside the home without driving.”

Revenue decline in recent years “has adversely affected morale in the DWI Seizure Unit.” [loooooooool]

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Posted on Techdirt - 10 August 2018 @ 9:33am

Appeals Court Says Law Criminalizing Threats To Sue Or Complain About Police Officers Is Unconstitutional

from the real-concern-is-these-gov't-employees-thought-it-was-ok-to-do-this dept

A few months ago, we wrote about (YET ANOTHER) terrible law Louisiana has on the books. Like its other terrible laws, this one is abused by law enforcement. The law itself -- which forbids the "intimidation" of public officials -- has already been ruled unconstitutional by a federal judge.

This law is wielded by officers and prosecutors to ring people up for "intimidating" cops by doing things like threatening to sue or file complaints. The wording lends itself to this. It criminalizes anything that might "influence" a public official's "conduct." No doubt threats of lawsuits or complaints have some effect on officers and how they behave and react. The most noticeable effect isn't on the public officials. It's the addition of a charge specifically related to what a citizen says to a law enforcement officer if they're unhappy with the way they're being treated.

Travis Seals was the recipient of one of these bogus charges as the result of him informing an officer he was going to file "lawful complaints" during his arrest for unknown charges. (The opinion only says "conduct not specifically reflected in the record.") He verbally objected to the arrest, which apparently led to the application of pepper spray and Seals' announcement of the pending filing of complaints.

The lower court said the law was unconstitutional. Even though Seals was never officially charged by the DA, the DA still chose to fight for the bad law in court. And again, it's the state appealing the lower court's ruling. The state tried to get the case tossed for lack of standing, saying it had promised not to use that law against Seals in the future. The court disagrees, using a couple of footnotes (p. 5) to explain why this promise isn't really worth the PDF it's printed on before ruling on the law itself. It also points out the state has brought this charge in circumstances like these against 150 people, so it's not as though it's restraining itself for abusing a bad, broadly-written law.

And it is incredibly broad, as the Fifth Circuit Appeals Court points out in its opinion [PDF]. (h/t Volokh Conspiracy)

The statute criminalizes “public intimidation,” defined as “the use of violence force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty.” (Emphasis added.) On its face, the statute is extremely broad. The definition of “threat” generally encompasses any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” That definition easily covers threats to call your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly.

The appeals court notes that, even if it accepts the conclusion of state court rulings, which create a requirement that such "threats" or "intimidation" produce a "corrupting effect" (bribery is one example), that still doesn't make the law Constitutional. (Also: state law rulings aren't considered precedent by federal appeals courts.)

Accordingly, we assume, but only for purposes of this appeal, that Section 14:122 requires a corrupt intent, defined as the intent to obtain something that the speaker is not entitled to as a matter of right.

Yet we can narrow Section 14:122 no further. According to the state, we should construe the statute to apply only to true threats, i.e. “a serious expression of an intent to commit an act of unlawful violence” toward specific persons. There are several reasons why we cannot do so. First, the definition of “threat” is broader than true threats: any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” Second, the reporter’s comments to Section 14:122 provide that the statute “should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence.” Thus, the section is not “readily susceptible” to such a limiting construction.

The third reason is the biggest -- and it's supplied by Louisiana's government itself.

As plaintiffs note, the Louisiana Court of Appeals has upheld the conviction of a defendant who violated Section 14:122 by threatening “to sue” an officer and “get [his] job” if the officer arrested him. See State v. Mouton, 129 So. 3d 49, 54, 59 (La. App. 3d Cir. 2013). Plainly, such a threat suggests no violence—indeed, the threat appears to be a plan to take perfectly lawful actions. Accordingly, we cannot construe Section 14:122 to apply only to true threats of violence.

The law is so broadly written it criminalizes protected speech.

[T]he statute reaches both true threats—such as “don’t arrest me or I’ll hit you”—and threats to take wholly lawful actions—such as “don’t arrest me or I’ll sue you.” In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties.

The court points out it's not impossible to craft a law targeting speech against public officials. Content-based restrictions can be Constitutional, but they have to be extremely narrowly-crafted. This law isn't, and its attendant abuse shows just how broadly written it is. When even stating you're going to run for office against a government official if they pass legislation you don't like (an example used in the ruling) can be construed as criminal under the law, there's zero chance it can survive a Constitutional challenge.

Section 14:122 could encompass an innocuous threat to complain to a DMV manager for slow service or a serious threat to organize lawsuits and demonstrations unless the police lower their weapons. And each kind of threat is constitutionally protected…. Section 14:122 undermines that freedom and thus is unconstitutional.

The Appeals Court hammers this point home twice in the same ruling.

A fortiori, Section 14:122 is not a time, place, and manner restriction. And not only does it encompass unprotected content, it reaches far beyond those constitutional limitations to target threats to complain to a school principal if one gets a bad grade, threats to run against an incumbent unless he votes your way on a bill, or threats to call the media if the police point a gun at you. Those kinds of threats are part of the core First Amendment rights “by which we distinguish [our] free nation from a police state.” Thus, insofar as it criminalizes “threats,” Section 14:122 is unconstitutionally overbroad.

The law may have to be rewritten. But for right now it at least can't be used the way it was in this case or several others involving Louisiana law enforcement.

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