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Posted on Free Speech - 14 August 2020 @ 1:33pm

Clearview Hires Prominent First Amendment Lawyer To Argue For Its Right To Sell Scraped Data To Cops

from the weird-but-possibly-consitutional dept

Clearview -- the facial recognition company selling law enforcement agencies (and others) access to billions of photos and personal info scraped from the web -- is facing lawsuits over its business model, which appears to violate some states' data privacy laws. It's also been hit with cease-and-desist requests from a number of companies whose data has been scraped.

What was once a toy for billionaires has become a toy for cops, who are encouraged to test out the software by running searches on friends and family members. Clearview claims it's been instrumental in fighting crime, but evidence of this remains nonexistent.

Now, the company appears to be going on the offensive. Clearview has already argued -- through its legal rep, Tor Ekelund -- that Section 230 of the CDA insulates it against lawsuits over its use of third-party content. It's a novel argument, considering Clearview isn't actually the third party. That would be the original hosts of the content. Clearview is something else and it's not clear Section 230 applies to these lawsuits, which are about what Clearview does with the content, rather than over the content itself.

The New York Times reports Clearview has hired a prominent First Amendment lawyer -- one that has defended the paper in the past -- to make the argument that selling government agencies data scraped from the web is protected speech.

Floyd Abrams, one of the most prominent First Amendment lawyers in the country, has a new client: the facial recognition company Clearview AI.


“Floyd Abrams is without peer as the nation’s pre-eminent First Amendment attorney, and it is clear that there are potentially groundbreaking First Amendment issues relating to the cases involving Clearview AI,” said Lisa Linden, a spokeswoman for the company.

Abrams is the lawyer who gave us the Citizens United decision -- the one that allows companies and other "non-persons" to express their political beliefs through unrestricted campaign donations. If the arguments fall along these lines, Abrams will be claiming that Clearview has the First Amendment right to "talk" about other people to government agencies and private customers. If people want to talk about themselves on the open web, Clearview can't be prevented from "discussing" what it's observed with anyone who asks questions about who these people are. Of course, Abrams was also a lawyer for Hollywood who insisted that copyright being used to take down websites, while possibly censoring speech, wasn't really a 1st Amendment concern, which has always raised questions about how committed he is to the 1st Amendment as opposed to just supporting the interests of his clients.

Abrams was unaware of Clearview before being asked to represent it. The Times notes the lawyer doesn't even own a smartphone. But he's willing to push a First Amendment argument that roughly aligns with those made by other law enforcement tech companies: that collecting data en masse from public places and selling access to this data to the government is protected speech.

Mr. Abrams said that in his view, while the technology involved was novel, the premise of the cases was a company’s right to create and disseminate information.

This may be protected under the First Amendment, but it's not all that useful to its Section 230 arguments. The lawsuits it's facing deal with what Clearview does with the content it scrapes, not the content itself, so the Section 230 argument seems pointless. The First Amendment question is far more interesting. And, as odious as the company is, limiting its right to gather and disseminate data by trimming back the First Amendment would likely result in a lot of unpleasant collateral damage.

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Posted on Techdirt - 14 August 2020 @ 3:22am

DHS Agencies Are Taking Millions In Cash From Travelers Every Year, Can't Be Bothered To Stop Any Crimes

from the taking-taxpayers'-dimes-on-the-taxpayers'-dime dept

In a little over 15 years, DHS agencies interacted with millions of travelers passing through our nation's airports… and relieved them of over $2 billion in cash. (And that's just agencies like the CBP and ICE. The DEA also lifts cash from airline passengers -- something it loves doing so much it hires TSA agents to look for money, rather than stuff that could threaten transportation security.)

That's just one of several disturbing findings in the Institute for Justice's (IJ) new report [PDF] on the DHS's ability to separate travelers from their money. Utilizing the Treasury Department's forfeiture database, the IJ discovered the DHS is a fan of taking cash and does so more frequently at certain airports. The most popular airport for cash seizures is, by far, Chicago's O'Hare. In 2014, the airport accounted for 34% of all cash seized despite handling only 6% of all air travelers.

More travelers means more opportunities, which explains some of the increase in seizures over the past decade. But as the IJ points out, seizures are outpacing the bump in travel stats.

Between 2000 and 2016, the number of air travelers increased 46%, while the inflation-adjusted value of currency seized at airports by DHS agencies increased 140% and the number of airport currency seizure cases grew 178%.

Any international airport will be patrolled by CBP and ICE agents looking for cash to seize. And they're not looking to catch drug dealers, human traffickers, or any other criminals that might be carrying cash around. No, the most common criminal activity to result in forfeitures is nothing more than a reporting violation.

Federal law requires travelers to declare any currency over $10,000 when traveling into or out of the country. It's pretty easy to get this done when traveling into the US, as arriving visitors will be required to go through Customs and declare anything they're bringing into the country, including cash. Outbound travelers may not realize this applies to them and since they're not required to pass through Customs on the way out, they may have no idea they're violating the law. That's an opportunity DHS agencies are more than happy to capitalize on. Half of all seizures between 2000-2016 were for violating this reporting requirement.

In fact, serious criminal activity is something no one seizing money seems very concerned about. Asset forfeiture isn't about dismantling criminal empires. It's about taking cash from people who have limited means to fight back. If the government has all your cash, it's pretty tough to hire a lawyer and fight an uphill battle against a system that dispenses with the property's former owner completely to engage in litigation against the cash itself.

Overall, 69% of DHS agency airport currency seizure cases were not accompanied by an arrest, regardless of the alleged offense. This means less than a third of the time was an offense egregious enough, or the evidence strong enough, to warrant an arrest.

This isn't just a DHS thing. It's an everybody thing.

In 2017, the DOJ’s Office of the Inspector General conducted an in-depth study of a sample of 100 Drug Enforcement Administration forfeiture cases. The study found that only 44 of those cases advanced or were even related to a criminal investigation. That same year, the Treasury Inspector General for Tax Administration reviewed a sample of 278 cases in which currency was seized under “structuring” laws, which prohibit conducting bank transactions below $10,000 to evade federal reporting requirements. The law is in place to prevent crimes like money laundering, but the study found that in 91% of cases, the seized funds were from a legal source, such as a family-owned business. The study also found that IRS agents were encouraged to conduct “quick hits,” where property was easier to seize, “rather than pursue cases with other criminal activity (such as drug trafficking or money laundering), which are more time-consuming.”

Taking money from people has always been easier than fighting crime. That much has been obvious for years. The IRS said the quiet part loud on accident. This report says everything the government isn't willing to admit to the public, much less itself: the point of forfeiture programs is to enrich those performing the forfeitures. That's it. That's the entire thing. Any reductions in criminal activity are purely coincidental.

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Posted on Free Speech - 13 August 2020 @ 12:39pm

Tweeters Were Criminally Charged For The Crime Of Trying To Identify A Police Officer... Who The Police Revealed In The Charging Docs

from the that's-DETECTIVE-'This-Bitch,'-mister dept

The Nutley, New Jersey Police Department fears for the safety of its officer. It fears so much it tried to bring criminal charges against people who retweeted a tweet asking Twitter users to identify an officer who was policing a protest. Georgana Sziszak is one of the five people charged for interacting with the tweet, as Adi Robertson reports for The Verge.

The Nutley Police Department filed its complaints in late July over a tweet posted during a June 26th protest. The now-deleted message included a photo of a masked on-duty police officer with a request that “If anyone knows who this bitch is throw his info under this tweet.” Because of the mask, the officer is not readily identifiable from the photograph, and there do not appear to be any replies revealing his identity.

The original poster and the retweeters are charged with cyber harassment, a fourth-degree felony punishable by up to 18 months in jail. Activist Georgana Sziszak, one of the retweeters, revealed the complaint in a GoFundMe campaign last week.

The original poster didn't find any takers for their request for the identity of the masked officer. The Nutley PD has, however, doxed its own officer by filing this criminal complaint. Here's the tweet -- since deleted -- asking for the officer's identity:

If you can't read/see the tweet, it says:

If anyone knows who this bitch is throw his info under this tweet

The Nutley PD knows who "this bitch" is and has provided all the info the original tweet was seeking:

The department charged Sziszak and others on behalf of Detective Peter Sandomenico, who the complaint identifies as the officer in the tweet. It alleges that the photo and accompanying caption threatened the officer “acting in the performance of his duties, causing Detective Sandomenico to fear that harm will come to himself, family, and property.”

Yes, it's decorated officer Peter Sandomenico -- an officer whose salary is 884% higher than the median salary in the town he serves. Sandomenico was once honored by the department for "going above and beyond" and was photographed receiving this really vague commendation. He was also photographed twice for NJ Cops Magazine, where he attended a ceremony honoring Nutley's "Police Officer of the Year." Sandomenico is a state delegate for his police union.

Like far too many officers around the nation, Peter "PJ" Sandomenico appears to have removed anything identifying him personally while working at the protest in Nutley. This sort of thing never plays well with the public, which often responds by crowdsourcing officer info -- not necessarily to harass officers but to let officers know their efforts to dodge accountability have been undone.

Of course, after this story started getting attention, the Essex County Prosecutor's office announced it was dropping the charges with a weak excuse:

The prosecutor’s office confirmed the five people who were charged and told the Asbury Park Press on Friday that “we concluded there was insufficient evidence to sustain our burden of proof.”

Even though the charges were dropped, this was still a blatant attack on the 1st Amendment rights of protesters -- many of whom may now be scared off from documenting law enforcement activities during these protests out of fear of facing a similar nuisance fight.

The First Amendment protects the right to photograph on-duty officers. It also protects the speech that accompanied the tweeted photo, which only asked for someone to identify the cop, not to encourage violence against the officer. The imagined parade of horrors springing from the identification of Detective Peter "PJ" Sandomenico belongs solely to the minds at the Nutley Police Department, which provided info that the five charged Twitter users failed to dig up. Great job, guys! Perhaps the PD will again be cited for going above and beyond by violating the Constitution to protect an unidentified officer the PD decided to identify on its own. Presumably when the PD does it, it results in less fear for Sandomenico's safety.

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Posted on Techdirt - 13 August 2020 @ 3:17am

CBP Privacy Impact Assessment Says It Can Pull All Sorts Of Data And Communications From Peoples' Devices At The Border

from the Privacy-Impact:-YES dept

The CBP is going to continue fishing in people's devices, despite federal courts (including the Ninth Circuit Court of Appeals) telling it that suspicionless device searches are unconstitutional. The agency will just have to come up with something approximating suspicion to do it. Its latest Privacy Impact Assessment of its border device search policy gives it plenty of options for continuing its practice of performing deep dives into devices it encounters.

Travelers heading to the US have many reasons to be cautious about their devices when it comes to privacy. A report released Thursday from the Department of Homeland Security provides even more cause for concern about how much data border patrol agents can pull from your phones and computers.

In a Privacy Impact Assessment dated July 30, the DHS detailed its US Border Patrol Digital Forensics program, specifically for its development of tools to collect data from electronic devices.

The number of device searches performed at the border has been increasing exponentially. The DHS has amped up this program in very recent years. In 2015, the CBP searched less than 5,000 devices. In 2018, it searched 33,000.

The Impact Assessment [PDF] leaves the agency with plenty of options for warrantless searches. First of all, being anywhere near a border (in which "near" means "within 100 miles" and "border" means any port of entry, including actual ports and international airports) subjects people and their devices to additional scrutiny without any need to establish reasonable suspicion. As a border control and security agency, the CBP has the power to engage in a number of searches, detainments, and interrogations without worrying too much about Constitutional rights.

Going beyond that, the CBP can also badger people into consent. This is sometimes obtained by telling people they're free to go but their devices aren't. Considering how important some of these are to everyday life, people at checkpoints may agree to a search rather than lose the only thing connecting them to friends, family, legal assistance, job opportunities, bank accounts, employers, etc. The CBP can also search any device it considers "abandoned" without suspicion or probable cause. Finally, if there's no other good reason to do so, the CBP can claim "exigent circumstances" demanded warrantless access. In far too many cases, exigent circumstances just means the government has decided to apologize to a court later rather than ask for permission first.

Here's everything the CBP can pull from a device with or without a warrant:

• Contacts
• Call Logs/Details
• IP Addresses used by the device
• Calendar Events
• GPS Locations used by the device
• Emails; • Social Media Information
• Cell Site Information
• Phone Numbers
• Videos and Pictures
• Account Information (User Names and Aliases)
• Text/chat messages
• Financial Accounts and Transactions
• Location History
• Browser bookmarks
• Notes
• Network Information
• Tasks List

Does this impact privacy? Hell yeah it does! Will the CBP be changing anything about it? Nope. Sorry about that people whose rights we've decided are less important than protecting this nation from incoming visitors and immigrants less likely to be carrying the coronavirus than the proud Americans they'll be encountering once they cross the border. The privacy risk is "mitigated" because [drum roll] the CBP has released this document declaring all the privacy-violating it will be doing:

CBP has provided notice and transparency about its digital forensic program and border search authority by publicly releasing the policy for these searches and publishing this and corresponding PIAs.


More good news: the DHS and CBP have been unable to show these additional device searches have resulted in additional border security. The program is an unsupervised mess that violates rights without delivering corresponding gains in border protection.

Finally, [CBP's] OFO [Office of Field Operations] has not yet developed performance measures to evaluate the effectiveness of a pilot program, begun in 2007, to conduct advanced searches, including copying electronic data from searched devices to law enforcement databases.

The DHS still isn't checking to see if warrantless device searches are making the nation safer and doesn't plan to in the future. The pot that is never watched troubles no one when it fails to reach a boil.

There are no changes to auditing and accountability as it relates to the new tools.


Oh well... carry on, I guess.

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Posted on Techdirt - 12 August 2020 @ 7:42pm

Las Vegas Police Are Running Lots Of Low Quality Images Through Their Facial Recognition System

from the that's-going-to-end-badly dept

Even when facial recognition software works well, it still performs pretty poorly. When algorithms aren't generating false positives, they're acting on the biases programmed into them, making it far more likely for minorities to be misidentified by the software.

The better the image quality, the better the search results. The use of a low-quality image pulled from a store security camera resulted in the arrest of the wrong person in Detroit, Michigan. The use of another image with the same software -- one that didn't show the distinctive arm tattoos of the non-perp hauled in by Detroit police -- resulted in another bogus arrest by the same department.

In both cases, the department swore the facial recognition software was only part of the equation. The software used by Michigan law enforcement warns investigators search results should not be used as sole probable cause for someone's arrest, but the additional steps taken by investigators (which were minimal) still didn't prevent the arrests from happening.

That's the same claim made by Las Vegas law enforcement: facial recognition search results are merely leads, rather than probable cause. As is the case everywhere law enforcement uses this tech, low-quality input images are common. Investigating crimes means utilizing security camera footage, which utilizes cameras far less powerful than the multi-megapixel cameras found on everyone's phones. The Las Vegas Metro Police Department relied on low-quality images for many of its facial recognition searches, documents obtained by Motherboard show.

In 2019, the LVMPD conducted 924 facial recognition searches using the system it purchased from Vigilant Solutions, according to data obtained by Motherboard through a public records request. Vigilant Solutions—which also leases its massive license plate reader database to federal agencies—was bought last year by Motorola Solutions for $445 million.

Of those searches, 471 were done using images the department deemed “suitable,” and they resulted in matches with at least one “likely positive candidate” 67% of the time. But 451 searches, nearly half, were run on “non-suitable” probe images. Those searches returned likely positive matches—which could mean anywhere from one to 20 or more mugshots, all with varying confidence scores assigned by the system—only 18% of the time.

Fortunately, low-quality images seemingly rarely return anything investigators can use. (Although that 18% is still 82 "likely positive matches...") If the system did, we'd be seeing far more bogus arrests than we've seen to this point. Of course, prosecutors and police aren't letting suspects know facial recognition software contributed to their arrests, so courtroom challenges have been pretty much nonexistent.

Although most of the information in the documents is redacted -- making it difficult to verify LVMPD claims about the software's contribution to arrests and prosecutions -- enough details remained to provide a suspect facing murder charges with information the LVMPD had never turned over to him or admitted to in court.

Clark Patrick, the Las Vegas attorney representing [Alexander] Buzz, told Motherboard that neither the LVMPD nor the Clark County District Attorney’s office ever informed him that investigators identified Buzz as a suspect using, at least in part, facial recognition technology. The Clark County District Attorney’s office did not respond to an interview request or written questions.

Had this information been given to Buzz and his attorney at the beginning of the trial, he likely would not have waived his right to a preliminary evidentiary hearing. If this had taken place -- along with knowledge of a private company's contribution to the investigation -- prosecutors may have had to produce information about the tech and the surveillance footage it pulled images from.

The documents don't appear to show a reliance on low-quality images to make arrests, but they do show investigators will run nearly any image through the software to see if it generates some hits. The precautions taken after this matter most. If investigators are only considering matches to be leads, it will head off most false arrests. But if investigators take shortcuts -- as appears to have happened in Detroit -- the outcome is disastrous for those falsely arrested. A person's rights and freedoms shouldn't be at the mercy of software that performs poorly even when given good images to work with. The use of this software is never going to go away completely, but agencies can mitigate the damage by refusing to treat matches as probable cause.

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Posted on Techdirt - 12 August 2020 @ 3:13am

Georgia Governor Passes Law Granting Cops Protected Status For 'Bias-Based' Crimes

from the saving-the-protectors-from-the-protected dept

Georgia governor Brian Kemp -- last seen here trying to turn his own election security problems into a Democrat-lead conspiracy -- has just proven he's unable to read the room. The governor can't read the room in his own state, much less the current state of the nation. Less than a month after the killing of George Floyd in Minneapolis triggered nationwide protests against police violence, officers in Atlanta were involved in a controversial killing of a Black man in a fast food restaurant parking lot.

The state of the nation is pretty much the same as it is in Georgia. Now is not the time to be offering police officers even more legal protections, considering how much they've abused the ones they already have. Idiotic bills touted by legislators saying stupid things like "blue lives matter" come and go. Mostly they go, since they're either redundant or unworkable. These laws try to turn a person's career choice into an immutable characteristic, converting some of the most powerful people in the nation into a class that deserves protection from the public these officers are sworn to serve.

It's now possible to commit a hate crime against a cop in Georgia, thanks to Kemp and his party-line voters.

Gov. Brian Kemp signed a proposal into law Wednesday that Republicans pushed to grant police new protections despite stiff opposition from critics who said it creates a messy tangle of legal problems.

In a statement, Kemp said he took action because he has attended the funerals of too many law enforcement officers killed in the line of duty, and he called the measure a “step forward as we work to protect those who are risking their lives to protect us.

“While some vilify, target and attack our men and women in uniform for personal or political gain, this legislation is a clear reminder that Georgia is a state that unapologetically backs the blue,” Kemp said.

The standalone bill was a concession to state Republicans, who refused to help pass an actual hate crime bill without being able to give more protections to already-very well-protected police officers. Not only does the law make it a crime to engage in "bias motivated intimidation" of police officers and first responders, it gives them a way to exact revenge on anyone they believe has wronged them. From the bill [PDF]:

A peace officer shall have the right to bring a civil suit against any person, group of persons, organization, or corporation, or the head of an organization or corporation, for damages, either pecuniary or otherwise, suffered during the officer's performance of official duties, for abridgment of the officer's civil rights arising out of the officer's performance of official duties, or for filing a complaint against the officer which the person knew was false when it was filed.

Critics of the bill believe this addition to state law would give officers a way to sue anti-police protesters for whatever harms officers feel they've suffered while policing demonstrations. And it would affect more than protesters. Anyone interacting with a police officer runs the risk of being sued because "damages suffered" is limited only by the officer's imagination and the court's tolerance. Even if the suit is baseless, the defendant still has to show up and defend themselves, using their own money while officers play litigation roulette with the taxpayers' bankroll.

Then there's the heart of the law, which makes certain acts hate crimes:

A person commits the offense of bias motivated intimidation when such person maliciously and with the specific intent to intimidate, harass, or terrorize another person because of that person's actual or perceived employment as a first responder:

(1) Causes death or serious bodily harm to another person; or

(2) Causes damage to or destroys any real or personal property of a person because of actual or perceived employment as a first responder without permission and the amount of the damage exceeds $500.00 or the value of the property destroyed exceeds $500.00.

Those acts are punishable by five years and/or a $5,000 fine. And the acts described are already crimes. Doubling down on crimes to make cops feel special may actually make things more ridiculous, as the ACLU has explained.

According to the bill, anyone found guilty of the death, serious bodily harm or destruction of more than $500 worth of property of a first responder, specifically because of his or her occupation, would face between one and five years in prison and/or a fine up to $5,000.

Currently, the punishment for murder includes death, life in prison without the possibility of parole or life in prison.

Since the targeted killing of a police officer could be considered “bias motivated intimidation” of a first responder, the ACLU says a legal argument called the “rule of lenity” requires courts to pursue the charge that is the most favorable to a defendant.

And the most lenient charge is the new law, which calls for only a five-year sentence (maximum) for killing a cop if the crime appears to have been motivated by anti-cop bias. Prosecutors who want to do the most damage to cop-killers won't be pursuing bias charges. They'll ignore the new law completely. Legislators were apparently made aware of this conflict prior to the bill's passage but apparently figured it would sort itself out once it became law.

Senate Judiciary Committee Chairman Jesse Stone, a Waynesboro Republican and attorney, said he was made aware of a potential problem with the legislation late Friday.

“I think if they were charged with bias motivated (intimidation), that might be a concern,” said Stone, who voted for HB 838 and is retiring this year. “I haven’t studied it, but I think it’s something that should be looked into.

Yes, the best time to look into potential problems with legislative proposals is after they've become law. Everything about this new law is terrible, including its path to the governor's desk. It passed with one vote, divided entirely along party lines. And it shows one party is far more concerned with pandering to its powerful law enforcement voter base than protecting citizens from their public servants.

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Posted on Free Speech - 11 August 2020 @ 10:43am

Hong Kong Uses New National Security Law To Arrest Prominent Pro-Democracy Media Tycoon

from the exactly-the-reason-the-law-was-writtenq dept

Hong Kong's new national security law -- foisted upon it by the Chinese government -- has nothing to do with securing the nation and everything to do with silencing pro-democracy voices. It criminalizes advocating for secession from China, as well as other forms of dissent, under the bogus theory that speaking out against the government makes Hong Kong -- and China -- less secure.

Basically, the new law equates dissent with terrorism and punishes accordingly. Life sentences possibly await arrested pro-democracy protesters and advocates. The government has put its words into action, using the new law to effect dozens of arrests. But one recent arrest shows the Chinese government doesn't care what the rest of the world thinks about its anti-democracy tactics.

In the highest-profile attack yet on free speech and press freedom in Hong Kong, police on Monday arrested Jimmy Lai, a prominent pro-democracy media tycoon, and raided the offices of his newspaper, demonstrating China’s resolve to silence dissent and bring the city to heel.

The government claims it wants to ensure the safety of residents and shut down riots. But the law, in practice, means arresting one of the most recognizable pro-democracy advocates -- one who's run a successful business for years and has met with prominent politicians around the world. This arrest is China racking the slide of its anti-freedom shotgun, letting the rest of its citizens know that no one is untouchable.

The entire arrest was recorded by employees of Lai's newspaper, the Apple Daily. As officers carted away "evidence," they took time to threaten those witnessing the raid.

The live footage showed a tense scene in the newsroom. When an editor demanded to know the exact boundaries of the area being searched, he was shoved by shouting officers. “Remember his face,” an inspector said, raising his index finger. “If he still behaves like this, give him a warning. And if he doesn’t listen to the warning, arrest him.”

Livestream footage also showed plainclothes officers at a restaurant owned by one of Mr. Lai’s sons in Hong Kong’s Central district. The officers loaded a crate filled with electronic devices they had seized into a private vehicle and did not respond when reporters asked if they were national security officers and whether they had search warrants.

While Lai faced charges earlier this year for participating in "unauthorized" protests, this arrest has everything to do with the new law. Lai is accused of "colluding with a foreign country or external elements" -- something that's vague enough to cover the everyday elements of his international business dealings. The New York Times notes Lai visited Washington, DC last year to meet with the Vice President and the Secretary of State, but the new law supposedly only applies to activities occurring after its implementation this June.

Hong Kong will not remain democratic or independent. The Chinese government will run it the way it runs China. The Chinese government agreed to limit its interference into Hong Kong's governance for fifty years when it acquired it from Great Britain. It may not have to replace the Hong Kong government with its own to achieve its goals. With laws like this -- and the acquiescence of Hong Kong political leaders -- the Chinese government can violate the spirit of the agreement for next 27 years without violating the letter of its "hands-off" assurances to the British government and the residents of Hong Kong.

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Posted on Techdirt - 11 August 2020 @ 2:57am

Congressional Reps Want To Know Why The California DMV Is Making $50 Million A Year Selling Driver Data

from the time-to-start-cutting-the-public-in-on-the-scam dept

Congressional legislators -- apparently caught off guard by one state's revenue stream -- are asking the California Department of Motor Vehicles a $50 million question: why the hell are you selling residents' personal data?

A group of nearly a dozen lawmakers led by member of Congress Anna Eshoo wrote to the California Department of Motor Vehicles (DMV) on Wednesday looking for answers on how and why the organization sells the personal data of residents. The letter comes after Motherboard revealed last year that the DMV was making $50 million annually from selling drivers' information.

As Karl Bode noted last year when covering this revelation, this sale of data is codified. The Driver's Privacy Protection Act doesn't do much to protect drivers' privacy. It may prevent abuse of this data by government employees but none of that affects private sector access where the real money is made.

The data from the California DMV is sold to a variety of data brokers. The public records request that resulted in this windfall of transparency about the DMV's windfall of actual money didn't name any of its customers. But did show a steady increase in revenue over the five years the records covered.

The letter [PDF] signed by nine members of Congress -- including California Congressional rep Ted Lieu -- asks the DMV a lot of pointed questions about its practice of profiting off data Californians are forced to hand over in exchange for licenses. It asks the questions the records obtained by Motherboard left unanswered. First off, the legislators want to know who this data is being sold to.

What types of organizations has the DMV disclosed drivers’ data to in the past three years? In particular, has the DMV sold or otherwise disclosed data to debt collection agencies, private investigators, data brokers, or law enforcement agencies?

Has the DMV ever disclosed drivers’ photos to federal, state, or local law enforcement agencies or given such agencies access to a database of drivers’ photos?

What specific fields of personal information have been sold or disclosed to third parties by the DMV in the past three years?

Have Social Security numbers or driver’s license photos ever been disclosed?

The legislators also want to know if this data is being shared with ICE and other federal agencies for the purposes of locating undocumented immigrants. It also asks if Californians can ask to opt out of the data sales/sharing and whether the agency would honor any of these requests.

The legislators note that they're concerned about this practice they probably should have already been aware of -- especially the two California assembly members who also signed the letter.

[W]e’re troubled by press reports about the California DMV’s disclosure of vast quantities of data which could enable invasive biometric policing and be a symptom of a deeper privacy malady. [...] What information is being sold, to whom it is sold, and what guardrails are associated with the sale remain unclear.

The DMV has already answered some of these questions... sort of. In a statement to Motherboard, the DMV said the $50 million/year it makes on data sales only offsets the cost of "administering its requester program." It denies selling information to marketers. It did not deny selling info to data brokers or other common customers for DMV data, like credit reporting agencies.

"The DMV takes its obligation to protect personal information very seriously. Information is only released according to California law, and the DMV continues to review its release practices to ensure information is only released to authorized persons/entities and only for authorized purposes. For example, if a car manufacturer is required to send a recall notice to thousands of owners of a particular model of car, the DMV may provide the car manufacturer with information on California owners of this particular model through this program," the statement added.

"Only released according to California law." That's the problem. The law allows the DMV to sell data to private companies. It takes a few purchases to add up to $50 million. Handing out info to car manufacturers for recalls is probably something the DMV does for a minimal cost, if it even charges anything for it. The DMV's statement sounds good but really says nothing. No one will really know what happens to the data the DMV collects until it starts handing over detailed answers to these questions from Congress.

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Posted on Techdirt - 10 August 2020 @ 7:53pm

Michigan Supreme Court: Selling A $24,000 House (And Keeping The Proceeds) Over An $8.41 Debt Is Unlawful

from the please-stop-defending-the-indefensible,-government-legal-reps dept

This seems like the sort of thing a court shouldn't need to sort out, but here we are. More specifically, here are two plaintiffs suing over Oakland County, Michigan's forfeiture policy. This isn't civil asset forfeiture -- where property is treated as guilty until proven innocent. This isn't even criminal asset forfeiture -- the seizure of property by the government following a conviction.

But this form of forfeiture can be just as abusive as regular civil asset forfeiture. There's no criminal act involved -- real or conjectured. It's the result of a civil violation: the nonpayment of property taxes. And Oakland County, the plaintiffs argue, is performing unconstitutional takings to unjustly enrich itself.

It's not that these sorts of things are uncommon. Tax liens are often put on property when tax payments are delinquent. It's that one of these seizures -- and subsequent auction -- was triggered by a delinquent amount that would have required the county to make change from a $10 bill. (via Volokh Conspiracy)

This is from the opening of the state Supreme Court's decision [PDF], which shows just how much the county government can profit from these forfeitures.

Plaintiff Rafaeli, LLC, owed $8.41 in unpaid property taxes from 2011, which grew to $285.81 after interest, penalties, and fees. Oakland County and its treasurer, Andrew Meisner (collectively, defendants), foreclosed on Rafaeli’s property for the delinquency, sold the property at public auction for $24,500, and retained all the sale proceeds in excess of the taxes, interest, penalties, and fees.

That's right. It only took $8.41 to initiate these proceedings. Even after accounting for the additional fees, the county turned less than $300 in delinquencies into a $24,200 profit.

Rafaeli, LLC isn't the only plaintiff. Another property owner, Andre Ohanessian, saw $6000 in taxes, fines, and fees turn into a $76,000 net gain for the county when it auctioned his property for $82,000 and kept everything above what it was owed.

The lower court said there was nothing wrong with the government keeping thousands of dollars property owners didn't owe it.

The circuit court granted summary disposition to defendants, finding that defendants did not “take” plaintiffs’ properties because plaintiffs forfeited all interests they held in their properties when they failed to pay the taxes due on the properties. The court determined that property properly forfeited under the GPTA [General Property Tax Act] and in accordance with due process is not a “taking” barred by either the United States or Michigan Constitution. Because the GPTA properly divested plaintiffs of all interests they had in their properties, the court concluded that plaintiffs did not have a property interest in the surplus proceeds generated from the tax-foreclosure sale of their properties.

The appeals court felt the same way about the issue, resulting in this final appeal to the state's top court. The Michigan Supreme Court says this isn't proper, going all the way back to English common law that had been adopted by the new nation more than two hundred years ago.

At the same time that it was common for any surplus proceeds to be returned to the former property owner, it was also generally understood that the government could only collect those taxes actually owed and nothing more.


This Court recognized a similar principle in 1867, stating that “[n]o law of the land authorizes the sale of property for any amount in excess of the tax it is legally called upon to bear.” Indeed, any sale of property for unpaid taxes that was in excess of the taxes owed was often rendered voidable at the option of the landowner. Rather than selling all of a person’s land and risk the sale being voided, officers charged with selling land for unpaid taxes often only sold that portion of the land that was needed to satisfy the tax debt. That is, early in Michigan’s statehood, it was commonly understood that the government could not collect more in taxes than what was owed, nor could it sell more land than necessary to collect unpaid taxes.

That all changed with the General Property Tax Act. The current version of the GPTA unilaterally declares all ownership rights "extinguished" the moment the government begins proceedings against the property, well before the foreclosure sale occurs.

This law -- as exercised in these forfeitures and auctions -- is unlawful, the Supreme Court says.

We conclude that our state’s common law recognizes a former property owner’s property right to collect the surplus proceeds that are realized from the tax-foreclosure sale of property. Having originated as far back as the Magna Carta, having ingratiated itself into English common law, and having been recognized both early in our state’s jurisprudence and as late as our decision in Dean in 1976, a property owner’s right to collect the surplus proceeds from the tax-foreclosure sale of his or her property has deep roots in Michigan common law. We also recognize this right to be “vested” such that the right is to remain free from unlawful governmental interference.

The government argued that without being able to take everything (even when less is owed), it does not have a stick of sufficient size to wield against delinquent taxpayers. Nonsense, says the state's top court. The state can still collect what is owed. What it can't do is take more than that.

We recognize that municipalities rely heavily on their citizens to timely pay real-property taxes so that local governments have a source of revenue for their operating costs. Nothing in this opinion impedes defendants’ right to hold citizens accountable for failing to pay property taxes by taking citizens’ properties in satisfaction of their tax debts. What defendants may not do under the guise of tax collection is seize property valued far in excess of the amount owed in unpaid taxes, penalties, interest, and fees and convert that surplus into a public benefit. The purpose of taxation is to assess and collect taxes owed, not appropriate property in excess of what is owed.

If the county wants its eight dollars, it can take its eight dollars. Everything above that still belongs to the original property owner. This should seem obvious, but it isn't. It took the state's top court 49 pages to arrive at this conclusion. What seems obvious to citizens is far too often deliberately unclear to government agencies. Legislation is rarely written in plain language. And it's crafted by people who have a vested interest in ensuring their employer's financial stability. The end result -- years down the road -- is the government turning a $285 foreclosure into a $24,000 surplus. The final insult is taxpayers paid for county officials to argue against the taxpayers' best interests. But, from now on, the government will have to share its takings with the people it's taking property from.

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Posted on Free Speech - 10 August 2020 @ 12:12pm

San Diego Police Officers Are Using An Old Sedition Law To Punish People For Swearing Around Cops

from the fuck-the-police-but-especially-these-guys dept

It's pretty well established that offensive hand gestures are covered by the First Amendment, even when it's a cop receiving the finger. This free speech has resulted in "contempt of cop" arrests and citations, but there hasn't been a federal court yet willing to recognize a police officer's "right" to remain unoffended. And if the First Amendment is violated by cops in retaliation for flipping the bird, there's going to be some Fourth Amendment violations as well.

Somehow the Constitution hasn't gotten around to removing a terrible law from the books in San Diego, California. In this city, it's still a criminal act to say rude things within hearing distance of a cop. (It's actually illegal if anyone can overhear it, but only police officers have the power to turn something mildly offensive into a criminal citation.)

On the morning of July 15, 2019, Jawanza Watson and a coworker were walking to the coworker’s car after finishing their shifts at Firehouse Bar in downtown San Diego. It was close to 2 a.m.

“I was drunk, you know. I was having a good time. I know that I was feeling myself,” Watson, who now lives in Minneapolis, told VOSD. “And I was rapping a song, but it had cursing in it.”

Watson remembers a police car rolling up slowly beside him and his coworker, windows down. An officer got out and stopped Watson, he said, claiming that the lyrics he’d been singing had been directed at the police.


The officer wound up giving Watson a ticket for violating section 56.30 of the city code, which reads: “(It) is declared to be unlawful for any person within the said City of San Diego to utter or use within the hearing of one or more persons any seditious language, words or epithets.”

Yes, this law -- which has been in effect since 1918 (the same year the federal government passed its Sedition Act, which led directly to the "fire in a crowded theater" trope) -- is still being used by cops in San Diego to punish people for saying things the cops don't like.

The enforcement of this law appears to be an SDPD crime of opportunity. Records obtained by the Voice of San Diego show the PD has handed out "seditious language" citations 83 times since 2013. The only records containing any information about citizens cited show that 8 of 11 recipients of seditious language tickets in 2018 were Black.

Is it seditious to sing rap lyrics out loud? Is it seditious to direct those lyrics at a cop, as was claimed by the officer citing Jawanza Watson? Of course not. It can only be criminal if it's linked to an "imminent crime" against the government. Being drunk and boisterous in public can be its own criminal violation, but rapping out loud is just free speech. Unfortunately, no one in San Diego has raised a Constitutional challenge yet, allowing the outdated law to live on.

There's been no Constitutional challenge because the cops abusing the law are somewhat smart about it. They downgrade the charge to a criminal infraction, ensuring no misdemeanor paperwork will be filed and make its way to the prosecutor's office. Anything along those lines might result in someone lawyering up and getting this tool of official harassment struck down. Local prosecutors seemed to be about as surprised by the law's existence as the recipients of these tickets.

Hilary Nemchik, a spokeswoman for the San Diego city attorney’s office, which prosecutes misdemeanors, said her office hadn’t been aware police were enforcing a section of the municipal code prohibiting seditious language. She called it “antiquated” and said deputy city attorneys would not prosecute anyone for it.

It's not just one cop's personal toy. The tickets examined by VOSD showed nine different officers had issued seditious language citations in 2018. This includes one citation that sounds like the SDPD considers itself more of a KGB.

Each of the 11 most recent seditious language tickets were written in downtown San Diego — except one, which the defendant received in his own home in southeastern San Diego.

There are a lot of things that define America and swearing in your own home without fear of retaliation from the government is one of them. But not when the SDPD is running things. The law, which was supposed to protect the government from being overthrown, is being used to inflict monetary pain on people who say things cops don't like.

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Posted on Techdirt - 10 August 2020 @ 9:37am

Baltimore's Aerial Surveillance Program Has Logged 700 Flight Hours, One (1) Arrest

from the if-you're-not-going-to-get-much-band,-might-as-well-use-someone-else's-b dept

The Baltimore PD's eye in the sky program continues. First (inadvertently) introduced to the public in 2016, the camera/Cessna system, made by a company called Persistent Surveillance Systems, flew above the city capturing up to 32-square miles of human and vehicle movements using a 192-million-megapixel camera.

The only upside to the residents of Baltimore not being informed of this development is that they weren't spending their money on it. It was completely funded by a private donor, Arnold Ventures, LLC. The system, known as "Gorgon Stare" when deployed in war zones by the military, is referred to by the city and PD by the friendlier, if clunkier, name "Aerial Investigation Research Pilot Program."

The second run of this program began earlier this year. The latest take on persistent aerial surveillance survived an early legal challenge by the ACLU. A federal court judge said the system did not violate anyone's Fourth Amendment rights, mainly because of its technical limitations. The system is far from "persistent." The planes -- three of them -- are airborne around 11 hours a day at most and they're almost completely useless at night. They're also mostly useless during bad weather and, in especially inclement weather, unable to get up off the ground at all.

So, it may be Constitutional and it may have been run past the public the second time around, but is it actually useful? That's something no one seems to know. The initial run in 2016 didn't add much to the Baltimore law enforcement knowledge base, mainly because it involved Baltimore cops and their apparently shoddy work practices.

[P]oor record-keeping by the police department apparently hindered any real study of the 2016 surveillance effort. According to reporting by the Baltimore Sun two years later, the best anyone call tell is that aerial footage may, or may not have, played a role in closing one of the roughly 100 murder cases during the 2016 flights.

There's no telling what this deployment will do for crime stats. The flights are ongoing but very little of what's captured appears to be useful to investigators.

After more than 700 hours aloft over the city, just one arrest has been made with aid from the program’s imagery data, according to BPD.

Meanwhile, the city continues to see its murder rate climb. Of course, the persistent surveillance can't actually prevent crime. It can only help investigators track suspects as they move away from crime scenes. The planes spend most of the time flying over areas the BPD's other software tells them to fly.

Overall, the police department says, flights are scheduled over areas where BPD data indicates most homicides occur, and the images it records are used after a crime has been committed and an initial investigation determines aerial footage might be helpful.

The planes are also flying over ongoing George Floyd-related protests and, in some cases, wandering outside of the city itself to fly over nearby suburbs. While police officials have stressed they're not surveilling First Amendment activity, they're still recording it, even if they never plan to use that footage. All footage collected remains in the possession of Persistent Surveillance Systems. It turns over images the BPD requests and destroys everything not needed 45 days after it's recorded. It's also forbidden to sell the footage. But it is able to do whatever it wants with these images while they remain in the company's possession during that 45-day time frame.

If this is all residents are getting from this program, it's a good thing a philanthropist from Texas is paying for it. Persistent Surveillance Systems is trying to create a market for its goods, but its test runs with the Baltimore PD haven't been a ringing endorsement of their tech. The Police Commissioner, Michael Harrison, doesn't exactly sound enthused about what he's seen so far.

Harrison… admits the program likely is not worth taxpayers funding the hefty price tag, potentially as high as $8 million annually based on the pilot, after the privately-funded pilot program runs out. “It probably would not be supported publicly, because of the dollar amount and its outcomes thus far.”

Meanwhile, the spy planes keep circling Baltimore. The experiment -- one using Baltimore residents as test subjects -- continues.

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Posted on Techdirt - 7 August 2020 @ 3:31am

Appeals Court Upholds Ruling Saying PACER Overcharged Users

from the refund-form-available-for-$0.10/page dept

A lawsuit against PACER for its long list of wrongs may finally pay off for the many, many people who've subjected themselves to its many indignities. The interface looks and runs like a personal Geocities page and those who manage to navigate it successfully are on the hook for pretty much every page it generates, including $0.10/page for search results that may not actually give users what they're looking for.

Everything else is $0.10/page too, including filings, orders, and the dockets themselves. They're capped at $3.00/each if they run past 30 pages, but for the most part, using PACER is like using a library's copier. Infinite copies can be "run off" at PACER at almost no expense, but the system charges users as though they're burning up toner and paper.

Back in 2016, the National Veterans Legal Services Program, along with the National Consumer Law Center and the Alliance for Justice, sued the court system over PACER's fees. The plaintiffs argued PACER's collection and use of fees broke the law governing PACER, which said only "reasonable" fees could be collected to offset the cost of upkeep. Instead, the US court system was using PACER as a piggy bank, spending money on flat screen TVs for jurors and other courtroom upkeep items, rather than dumping the money back into making PACER better, more accessible, and cheaper.

A year later, a federal judge said the case could move forward as a class action representing everyone who believed they'd been overcharged for access. A year later, it handed down a decision ruling that PACER was illegally using at least some of the collected fees. The case then took a trip to the Federal Circuit Court of Appeals with both adversarial parties challenging parts of the district court's ruling.

The Appeals Court has come down on the side of PACER users. Here's Josh Gerstein's summary of the decision for Politico:

The U.S. Court of Appeals for the Federal Circuit upheld a district court judge’s ruling in 2018 that court officials inflated fees for the Public Access to Court Electronic Records or PACER system by including costs for flat-screen courtroom televisions, electronic alerts to victims and police, as well as computer systems to manage jurors.

The three-judge appeals court panel unanimously ruled that Congress gave the federal courts permission to charge for systems that improve public access to court files, but did not create a technology slush fund that could be used to subsidize almost any purchase of electronics by the federal judiciary.

This potentially means millions of dollars of refunds will be headed back to users once all the details are sorted out. The suit only covers fees collected from 2010 to 2016 (the initiation of the lawsuit) and the Appeals Court -- while not thrilled a paywall continues to sit between citizens and access to court documents -- will send this back to the lower court for a closer examination of PACER's actual expenses.

The decision [PDF] says both parties are reading the law wrong, but the government is reading it wrongest. There is no obligation for PACER to charge fees. The flip side of that is there is also no obligation for the US court system to provide a free service either.

Whereas the judiciary previously was required to charge fees for electronic access to court information, after the 2002 amendment it could choose whether to do so. The language “only to the extent necessary” certainly suggests that Congress sought to encourage the judiciary to limit its imposition of such fees—since otherwise the amendment could have simply swapped “shall” for “may.” But, as we continue to stress, the text lacks a clear object or purpose of the supposed limitation (“only to the extent necessary” to what?) and we are unwilling to supply one of our own—or one of plaintiffs’—making. If Congress had intended to limit fees only to the extent necessary to reimburse expenses incurred in providing access to PACER, it would have said so more clearly. We can give full effect to the 2002 amendment by reading it as removing the electronic access fee obligation and encouraging the judiciary to rein in fees—without imparting any specific limitation on the fee-setting.

At this point, PACER can still charge users for access. Those fees may be reduced in the future, but for now nothing is changed. The money it collected in the past, however, may be headed back to PACER users. That's good news. Hopefully this decision is another step down the road to the removal of the paywall standing between citizens and the court documents their tax dollars have already paid for.

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Posted on Techdirt - 6 August 2020 @ 12:03pm

Federal Judge Calls Out Qualified Immunity's Contribution To Racist Policing

from the unfortunately-the-racist-cop-still-wins dept

If you only read one qualified immunity decision this year, make it this one. (At least until something better comes along. But this one will be hard to top.) [h/t MagentaRocks]

The decision [PDF] -- written by Judge Carlton W. Reeves for the Southern District of Mississippi -- deals with the abuse of a Black man by a white cop. Fortunately, the man lived to sue. Unfortunately, Supreme Court precedent means the officer will not be punished. But the opening of the opinion is unforgettable. It's a long recounting of the injustices perpetrated on Black people by white law enforcement officers.

Clarence Jamison wasn’t jaywalking.

He wasn’t outside playing with a toy gun.

He didn’t look like a “suspicious person.”

He wasn’t suspected of “selling loose, untaxed cigarettes.”

He wasn’t suspected of passing a counterfeit $20 bill.

He didn’t look like anyone suspected of a crime.

He wasn’t mentally ill and in need of help.

He wasn’t assisting an autistic patient who had wandered away from a group home.

He wasn’t walking home from an after-school job.

He wasn’t walking back from a restaurant.

He wasn’t hanging out on a college campus.

He wasn’t standing outside of his apartment.

He wasn’t inside his apartment eating ice cream.

He wasn’t sleeping in his bed.

He wasn’t sleeping in his car.

He didn’t make an “improper lane change.”

He didn’t have a broken tail light.

He wasn’t driving over the speed limit.

He wasn’t driving under the speed limit.

Every one of these is linked to a footnote that points to a news article or (in one case) a DOJ investigation dealing with white officers perpetrating violence and other rights violations against Black citizens. (The decision does not provide links to everything listed here. Although there are footnotes appended, only a couple contain actual URLs. I have linked to relevant stories where possible to provide context.)

The decision continues:

No, Clarence Jamison was a Black man driving a Mercedes convertible.

As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.

Nothing was found. Jamison isn’t a drug courier. He’s a welder.

Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing. So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.

The officer claimed he had a right to perform the traffic stop. According to Officer Nick McClendon of the Richland Police Department, the temporary tag on the vehicle had "folded over," making it impossible to read. Officer McClendon testified that this sort of thing happens when temp tags aren't secured properly and the vehicle is traveling at highway speeds.

That's what McClendon swore to. This is what he said when he was confronted with actual facts:

When Officer McClendon was shown the cardboard tag during his deposition, it showed no signs of being creased. The officer claimed that it either could have folded without creasing or that someone had ironed out the crease.

Yeah, I'm sure Clarence Jamison -- frightened by a two-hour shakedown by a white cop -- did exactly that: went straight home and ironed his dealer plate.

Here's what Jamison testified he did after this two-hour roadside ordeal:

When I first got home, I couldn’t sleep. So I was up for like – I didn’t even sleep when I got home. I think I got some rest the next day because I was still mad just thinking about it and then when all this killing and stuff come on TV, that’s like a flashback. I said, man, this could have went this way. It had me thinking all kind of stuff because it was not even called for. . . .

Then I seen a story about the guy in South Carolina, in Charleston, a busted taillight. They stopped him for that and shot him in the back,33 and all that just went through my mind . . . .

I don’t even watch the news no more. I stopped watching the news because every time you turn it on something’s bad.

The court surmises Jamison is referring to the shooting of Walter Scott by South Carolina police officer Walter Slager. Scott was shot in the back by Slager as he ran away from the officer. Footage captured by a passerby's cellphone appeared to show Officer Slager planting his Taser on the ground near where Scott fell. When the shots were fired, Scott was nearly 20 feet away from Slager. Nevertheless, Officer Slager radioed for help, claiming Scott had tried to grab his Taser.

Moving on from this point, Judge Reeves does something very few courts have: he runs down the history of Section 1983 lawsuits and their ties to both the 14th Amendment and the history of racism perpetrated by law enforcement.

Jamison brings his claims under 42 U.S.C. § 1983, a statute that has its origins in the Civil War and “Reconstruction,” the brief era that followed the bloodshed. If the Civil War was the only war in our nation’s history dedicated to the proposition that Black lives matter, Reconstruction was dedicated to the proposition that Black futures matter, too.

Following this came the 14th Amendment. These were all positive developments, but whites in the South didn't think so. This includes Mississippi, where this case originates. Whites resented the rights given to Blacks, even though they were the same rights enjoyed by white people. Racism ensued.

In Mississippi, it became a criminal offense for blacks to hunt or fish,” and a U.S. Army General reported that “white militias, with telltale names such as the Jeff Davis Guards, were springing up across” the state.


The terrorism in Mississippi was unparalleled. During the first three months of 1870, 63 Black Mississippians “were murdered . . . and nobody served a day for these crimes.” In 1872, the U.S. Attorney for Mississippi wrote that Klan violence was ubiquitous and that “only the presence of the army kept the Klan from overrunning north Mississippi completely."

Section 1983 -- which allows citizens to sue government employees for rights violations -- is derived from the Ku Klux Klan Act. Congress realized local law enforcement agencies were acting like unofficial wings of the KKK, frequently engaging in violence against Black people. Unfortunately, this proved to be little more than a speed bump as far as systemic racism went.

“By 1873, many white Southerners were calling for ‘Redemption’ – the return of white supremacy and the removal of rights for blacks – instead of Reconstruction.” The federal system largely abandoned the emancipationist efforts of the Reconstruction Era. And the violence returned. “In 1874, 29 African-Americans were massacred in Vicksburg, according to Congressional investigators. The next year, amidst rumors of an African-American plot to storm the town, the Mayor of Clinton, Mississippi gathered a white paramilitary unit which hunted and killed an estimated 30 to 50 African-Americans.” And in 1876, U.S. Marshal James Pierce said, “Almost the entire white population of Mississippi is one vast mob.”

It took nearly 100 years for federal courts to reverse the bigotry of the Southern emancipation backlash.

It was against this backdrop that the Supreme Court attempted to resuscitate Section 1983. In 1961, the Court decided Monroe v. Pape, a case where “13 Chicago police officers broke into [a Black family’s] home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers.” The Justices held that Section 1983 provides a remedy for people deprived of their constitutional rights by state officials. Accordingly, the Court found that the Monroe family could pursue their lawsuit against the officers.

Clarence Jamison, a Black man traveling through Mississippi -- probably noticed things hadn't improved much over the last 50 years. Here's a brief glimpse of his treatment by Officer McClendon:

According to Officer McClendon, he walked back to the passenger side of Jamison’s car before hearing from NCIC. He later admitted in his deposition that his goal when he returned to Jamison’s car was to obtain consent to search the car. Once he reached the passenger side window, Officer McClendon returned Jamison’s documents and struck up a conversation without mentioning that the EPIC background check came back clear. Thinking he was free to go after receiving his documents, Jamison says he prepared to leave.


According to Jamison, however, as he prepared to leave, Officer McClendon put his hand over the passenger door threshold of Jamison’s car and told him to, “Hold on a minute.” Officer McClendon then asked Jamison – for the first time – if he could search Jamison’s car. “For what?” Jamison replied. Officer McClendon changed the conversation, asking him what he did for a living. They discussed Jamison’s work as a welder.

Officer McClendon asked Jamison – for the second time – if he could search the car. Jamison again asked, “For what?” Officer McClendon said he had received a phone call reporting that there were 10 kilos of cocaine in Jamison’s car. That was a lie. Jamison did not consent to the search.

Officer McClendon then made a third request to search the car. Jamison responded, “there is nothing in my car.” They started talking about officers “planting stuff” in people’s cars. At this point, Officer McClendon “scrunched down,” placed his hand into the car, and patted the inside of the passenger door. As he did this, Officer McClendon made his fourth request saying, “Come on, man. Let me search your car.” Officer McClendon moved his arm further into the car at this point, while patting it with his hand.

As if four asks were not enough, Officer McClendon then made his fifth and final request. He lied again, “I need to search your car . . . because I got the phone call [about] 10 kilos of cocaine.”

Jamison -- tiring of McClendon and perhaps feeling this would speed things up -- agreed to a search. A very invasive and thorough search was conducted but nothing was found.

Officer McClendon later testified that he searched Jamison’s car “from the engine compartment to the trunk to the undercarriage to underneath the engine to the back seats to anywhere to account for all the voids inside the vehicle.”


Officer McClendon admitted in his deposition that he did not find “anything suspicious whatsoever.”

When the search fails, maybe it's time to call in the Yes Man, which is actually a dog that can give cops permission to engage in searches.

However, he asked Jamison if he could “deploy [his] canine.” Jamison says he initially refused. Officer McClendon asked again, though, and Jamison relented, saying “Yes, go ahead.” Officer McClendon “deployed [his] dog around the vehicle.” The dog gave no indication, “so it confirmed that there was nothing inside the vehicle.”

It may not have ended in death or injury. But it was an injustice all the same. The suspicionless search lasted almost two hours. That's two hours Clarence Jamison will never have back. And it's two hours he could have used at that point, as the court notes:

This explains why [Jamison] was tired. Here he was, standing on the side of a busy interstate at night for almost two hours against his will so Officer McClendon could satisfy his goal of searching Jamison’s vehicle. In that amount of time, Dorothy and Toto could have made it up and down the yellow brick road and back to Kansas. See Lee Pfeiffer, The Wizard of Oz, ENCYCLOPEDIA BRITANNICA (Mar. 19, 2010) (noting the 101-minute run time of the 1939 film). If Jamison was driving at 70 MPH before being stopped, in the 110 minutes he was held on the side of the road he would have gotten another 128 miles closer to home, through Rankin, Scott, Newton, and Lauderdale counties and more than 40 miles into Alabama.

But at the end of all of this, there's nothing for Clarence Jamison, who was subjected to what appears to be a racially motivated fishing expedition by a white cop. Why? Because the Supreme Court has made it almost impossible to hold cops accountable for their rights violations, especially when a cop is clever enough to violate rights in a way the court hasn't addressed before.

Given the lack of precedent that places the Constitutional question “beyond debate,” Jamison’s claim cannot proceed. Officer McClendon is entitled to qualified immunity as to Jamison’s prolonged detention and unlawful search claims.

This isn't acceptable, the judge points out. The Supreme Court has ordained abuse of rights by narrowing its self-crafted qualified immunity doctrine to such a sharp point it's almost impossible for plaintiffs to overcome. This is complete bullshit says Judge Reeves, even as he recognizes he cannot rule any other way. Here's a list of rights violations deemed to be acceptable by courts, due to a lack of on-point precedent.

A review of our qualified immunity precedent makes clear that the Court has dispensed with any pretense of balancing competing values. Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells “covered in feces” for days; police officers who stole over $225,000 worth of property; a deputy who bodyslammed a woman after she simply “ignored [the deputy’s] command and walked away”; an officer who seriously burned a woman after detonating a “flashbang” device in the bedroom where she was sleeping; an officer who deployed a dog against a suspect who “claim[ed] that he surrendered by raising his hands in the air”; and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.

The courts are supposed to protect citizens' rights. The Supreme Court has made it impossible for courts to do that.

If Section 1983 was created to make the courts “guardians of the people’s federal rights,’” what kind of guardians have the courts become? One only has to look at the evolution of the doctrine to answer that question.

Once, qualified immunity protected officers who acted in good faith. The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.”

Nearly 60 years later, politicians, who are unable to continue ignoring police violence against citizens, are looking to strip this protection away from officers. But they're fighting an uphill battle against entrenched unions, powerful law enforcement allies in legislatures, and the Supreme Court itself. And the nation's top court seems unwilling to correct its unforced error. Qualified immunity has given cops permission slips to engage in rights violations and severe misconduct. Crime, for the most part, continues to remain at historic lows. Despite this, police officers are still killing people at the rate of ~1,000/year with no sign of slowing down. That's on top of rights violations that never seem to decline, no matter how much criminal activity does. Qualified immunity encourages abuse and that encouragement -- the Supreme Court's implicit blessing -- is still felt most by Black citizens who have been the target of police violence and abuse for well over 200 years.

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Posted on Techdirt - 5 August 2020 @ 12:19pm

Judge Hits District Attorney Who Issued Fake Subpoenas With A $50,000 Penalty For Blowing Off Records Requests

from the I-guess-laws-are-something-only-little-people-have-to-follow dept

Orleans Parish District Attorney Leon Cannizzaro continues to get himself in legal hot water. Back in 2017, New Orleans journalistic outlet The Lens uncovered his office's use of fake subpoenas to coerce witnesses and crime victims into showing up to provide testimony and make statements.

The documents weren't real. They had never been approved by a judge. But they still had the same threat of fines or imprisonment printed on them. Just like the real ones. But these threats were also fake -- no judge had given the office permission to lock these witnesses/victims up.

Once this practice was exposed, the lawsuits began. The DA's office was sued multiple times by multiple plaintiffs. One suit -- filed by the MacArthur Justice Center -- demanded copies of every bogus subpoena issued by the DA's office. Another -- filed by the ACLU -- sought the names of every DA's office attorney who'd signed or sent one of these bogus subpoenas.

Yet another lawsuit targeted the DA's office and the DA directly for violating the law and citizens' rights by issuing fake subpoenas. That one is still pending but DA Cannizzaro and his attorneys were denied immunity by the Fifth Circuit Court of Appeals, making it far more likely someone will be held personally responsible for cranking out fake legal paperwork.

The MacArthur Center lawsuit continues. And it's more bad news for the DA, which has spent nearly a half-decade dodging the Center's public records requests.

An Orleans Parish Civil District Court judge has issued a $51,000 judgment against District Attorney Leon Cannizzaro for his office’s failure to turn over bogus subpoenas under a public-records request filed two years before the practice was exposed by the Lens.

Judge Ethel Julien said in a Monday ruling that Cannizzaro acted “arbitrarily and capriciously” when he failed to fork over documents requested by an attorney for a nonprofit law firm who was probing the practice in 2015.

Cannizzaro's defense of his stonewalling has changed over the years. His office first denied the request back in 2015, claiming it was too "burdensome" to hand over copies of witness subpoenas issued by prosecutors. Then The Lens broke the news about the fake subpoenas. The DA's office then claimed it didn't have to fully fulfill the request because the Center hadn't asked for any fake subpoenas.

In its defense, the District Attorney’s Office said the fake subpoenas weren’t covered by Washington’s request -- because they weren’t the genuine documents for which Washington specifically asked.

The DA is appealing the decision, of course. His office likely would have appealed it anyway, but this appeal might be more personal. The MacArthur Center says the $50,000 penalty issued by the judge may end up being applied against Cannizzaro himself, rather than his entire office, because the judge found the DA himself had "acted unreasonably."

The saga continues, with the DA and his office looking worse and worse with every new court ruling. True, it's sometimes difficult to secure cooperation from witnesses and crime victims. But the solution isn't to bypass the court system and threaten people with bogus legal documents. Prosecutors are supposed to help enforce laws, not break them.

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Posted on Free Speech - 5 August 2020 @ 3:04am

Turkey Passes New Internet Censorship Law, Cites Germany's Awful 'Hate Speech' Law As Its Inspiration

from the how-cosmopolitan dept

Turkey's president, Recep "Gollum" Erdogan, continues to use legislation to silence everyone that might possibly criticize or mock him. This has been an ongoing process, one that keeps getting worse with every iteration. A failed coup didn't help calm things down in Turkey, which is apparently hoping to pass China and take the top spot on the "journalists jailed" chart.

The latest law has a supposedly noble goal, but there's nothing noble about the propelling force behind it. The EFF reports another law giving the government even more censorship powers has been passed, thanks to Erdogan's inability to handle criticism.

[A] new law, passed by the Turkish Parliament on the 29th of July, introduces sweeping new powers and takes the country another giant step towards further censoring speech online. The law was ushered through parliament quickly and without allowing for opposition or stakeholder inputs and aims for complete control over social media platforms and the speech they host. The bill was introduced after a series of allegedly insulting tweets aimed at President Erdogan’s daughter and son-in-law and ostensibly aims to eradicate hate speech and harassment online.

So, it obviously isn't there to eradicate all hate speech and harassment. It's there to eradicate hate speech and harassment targeting Erdogan and other members of the government. A law like this being implemented by this government -- one with a long history of silencing/arresting/jailing critics -- will only be used to target citizens who aren't thrilled with their authoritarian "representatives."

Of course, the Turkish government won't bear the expense of keeping the country's internet free of Erdogan-bashing. That will rest on social media platforms. Once served with an order to remove content that "violates personal rights" and/or the "privacy of personal life," platforms will have 48 hours to take it down. If they don't, they'll face fines and -- in an unprecedented move -- the throttling of their bandwidth by up to 90% via local internet service providers.

To better facilitate censorship of Erdogan-related criticism, social media platforms will be forced to establish a local presence to expedite takedowns.

Once ratified by President Erdogan, the law would mandate social media platforms with more than two million daily users to appoint a local representative in Turkey…

The EFF's report highlights another disturbing aspect of the new law: it was inspired by legislation in countries that respect personal freedom and expression far more than Turkey has under Erdogan.

When introducing the new law, Turkish lawmakers explicitly referred to the controversial German NetzDG law and a similar initiative in France as a positive example.

Germany's "hate speech" law has been a solid generator of collateral damage since its inception. German lawmakers may believe they've ushered a new era of online enlightenment with the law, but it's inspired a number of censorial governments to create their own versions and point to Germany when anyone asks why they're silencing dissent and criticism. EFF says thirteen countries, including Venezuela, Malaysia, Russia, and the Philippines have all cloned NetzDG to better serve the continued restriction of their citizens' free speech rights.

And while Germany's law has effectively killed satire and chilled speech, at least it contains some limited restraints on the government via the court system. In Turkey (and other countries run by authoritarians), these checks and balances don't exist. Turkey's adoption of German legal principles takes the bad parts of the law and makes them even worse.

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Posted on Techdirt - 4 August 2020 @ 12:19pm

Bill Barr Applauds FOSTA Sponsor's Clone Of Senate's Encryption-Breaking 'Lawful Access' Bill


I guess those "rule of law" folks don't care if a law is any good or will do what it intends to do without causing significant collateral damage. All they care about is that it's a law and, as a law, everyone should just subject themselves to it with a minimum of complaining.

The Attorney General is one of those "rule of law" people. Sure, he works for an administration that doesn't seem to care much about laws, propriety, or basic competence, but he's the nation's top cop, so laws and rules it is.

Bill Barr wants holes in encryption. He wants them so badly he's making up new words. "Warrant-proof encryption" isn't any different than regular encryption. It only becomes "warrant-proof" when the DOJ and FBI are talking about it, as though it was some new algorithm that only scrambles communications and data when the presence of a warrant is detected.

Far too many people in Washington think encryption is only valuable to criminals. Bills are in the works to compel encryption-breaking/backdooring. Some even handcuff these demands to Section 230 immunity -- a 2-for-1 special on shoveled shit straight from the federal government to Americans' favorite platforms and services.

Given how much the AG loves broad, abusive laws, it's no surprise he's going on the record to congratulate the author of another terrible law on her newest terrible piece of legislation.

Today, Attorney General William P. Barr issued the following statement on the introduction of a bill in the U.S. House of Representatives that would give law enforcement access to encrypted data with court approval in order to protect user privacy. The legislation was introduced by Representative Ann Wagner.

“I applaud Representative Wagner for introducing this critical lawful access legislation. Although strong encryption is vital, we cannot allow the tech industry to use encryption that blinds law enforcement and prevents it from thwarting or investigating serious crimes and national security threats, including terrorist plots, cyberattacks, and sexual exploitation."

Yes, let's applaud Rep. Ann Wagner. (Let's not.) Wagner was the sponsor behind FOSTA, the anti-sex worker law (d/b/a anti-sex trafficking legislation) that has been instrumental in roughly zero prosecutions -- the same prosecutions bill sponsors like Wagner claimed would be impossible without this new law.

That wasn't Wagner's only bogus claim. She also claimed the passage of FOSTA resulted in the immediate disappearance of 90% of "sex trafficking ads." This claim was proven false by fact checkers. The vast majority of the ads that vanished did so when Backpage shut down its adult ads prior to FOSTA's passage and prior to the DOJ's prosecution of the site's owners.

So, when Barr applauds Wagner, he's applauding someone who'll say almost anything to justify harmful legislation. This is the kind of person Barr admires because Bill Barr does the same thing, even though he's not writing new bills personally.

Here's some more of the "anything" Barr will say to applaud bad bill-making. Wagner's new thing is a clone of the Senate's "Lawful Access to Encrypted Data" bill. As you can guess by reading the bill's clunky title, it's another attempt to sacrifice encryption on the altar of law enforcement convenience, ensuring cops don't have to work too hard to collect evidence.

As we all are painfully aware, law enforcement agencies -- despite being around for more than 150 years -- have yet to solve a single crime. So it's imperative we give them access to gigabytes of communications and data so they can finally get around to putting a few criminals behind bars. That being said, here's what's being said by Barr in support of this bill. I have no idea what most of this has to do with anything, but it's full of things that sound bad.

The danger is particularly great for children, especially during this time of coronavirus restrictions when children are spending more time online. Survivors of child sexual abuse and their families have pleaded with technology companies to do more to prevent predators from exploiting their platforms to harm children. Unfortunately, these companies have not done enough, which is why this legislation is needed.

Well then. And I thought this administration was going to save kids from child predators by sending them to COVID-infested schools ASAP. But somehow this is the tech companies' fault, since they offer security to all users, even though a small percentage of users engage in criminal acts.

Barr finishes up his applause for Wagner and her LAED knockoff with what can only be a deliberate misreading of the issues at stake.

Privacy and public safety are not mutually exclusive. I am confident that the tech industry can design strong encryption that allows for lawful access by law enforcement. Encryption should keep us safe, not provide a safe haven for predators and terrorists.

The issue isn't privacy. The Constitution may help ensure privacy by limiting the government's intrusion into our lives and homes, but what's really at stake here is security. And security -- of devices and files and communications -- is directly related to public safety. You can't claim to be a champion of public safety when you're willing to make it easier for malicious hackers to gain access to email accounts, personal messages, smartphones, hard drives, computers, social media accounts, and everything else encryption shields from outsiders.

An encryption hole handcrafted for cops is a hole anyone else can use once it's discovered. A backdoor built into hardware or software isn't only going to be exploited by law enforcement. If the assistance is compelled, companies won't be able to patch security issues -- not if the flaw exists to serve the government. Tech companies in Australia -- where compelled technical assistance is already law -- are seeing their customer bases shrink as people look for options that aren't deliberately broken. The same thing will happen here in the US if bills like this become law.

Bill Barr is willing to sacrifice your security. And he won't be giving you anything in return. We won't be safer. We'll be more vulnerable than we've ever been. And Rep. Wagner wants to help him screw you over, just like she did to countless Americans with FOSTA.

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Posted on Free Speech - 4 August 2020 @ 3:13am

Tennessee Court Strikes Down Law Criminalizing Calling Political Candidates 'Literally Hitler'

from the literally-the-worst-law dept

Free speech keeps getting freer in Tennessee. The state was once home to a host of vexatious defamation lawsuits -- including one where someone subjected to mild criticism sued a journalist over things someone else said. Thanks to the state's new anti-SLAPP law, litigation is slightly less vexatious these days.

But there are still state laws posing threats to free speech by criminalizing stuff the First Amendment says is perfectly acceptable. Tennesseans for Sensible Election Laws (represented by Daniel Horwitz, whose work has made multiple headlines here at Techdirt) sued the state over a campaign law that made it a misdemeanor to publish false information about candidates.

The statute says this:

It is a Class C misdemeanor for any person to publish or distribute or cause to be published or distributed any campaign literature in opposition to any candidate in any election if such person knows that any such statement, charge, allegation, or other matter contained therein with respect to such candidate is false.

The plaintiffs argued the law effectively criminalized satire and hyperbole. It pointed out it risked prosecution if it distributed its campaign material, which used a word that literally no longer can be taken literally in every context: "literally." From the decision [PDF]:

[T]he Complaint explains that the Plaintiff has described in its literature one State Representative as “Hitler”, who supported eugenics, i.e. state-sponsored chemical castration of convicted sex offenders. The Plaintiff’s analysis in its Complaint is that, “Because Representative Griffey is not, in fact, ‘literally Hitler,’ and because Tennesseans for Sensible Election Laws knows that Representative Griffey is not literally Hitler, Tennesseans for Sensible Election Laws’ campaign literature would violate § 2-19-142, thus subjecting members of Tennesseans for Sensible Election Laws to criminal prosecution carrying a sentence of up to thirty days in jail and/or a fine not to exceed $50.00.

Here's the mailer the group says could get its members criminally charged:

The activist group says this is unconstitutional. It certainly seems to be, but the state's Attorney General apparently believes prosecuting people for engaging in political speech isn't a Constitutional issue. Here's the opinion the state AG offered in support of the law:

A prosecution against a newspaper or other news medium under Tenn. Code Ann. 2-19-142 would not raise any constitutional objections…

This statement, made in 2009, has not aged well. The Constitutional challenge has arrived. And it's victorious. The campaign focused criminal defamation law violates both the US Constitution and the state Constitution. And for several reasons (all emphasis in the original):

First, Tennessee Code Annotated § 2-19-142 punishes only false political speech in opposition to candidates for elected office, while permitting false speech in support of such candidates. Such viewpoint discrimination is incompatible with the First Amendment, and no compelling interest supports it.

Second, Tennessee Code Annotated § 2-19-142 exclusively penalizes false campaign literature opposing candidates seeking elected office, while permitting all other false campaign literature and all speech regarding noncandidates. Such content-based restrictions on speech similarly contravene the First Amendment.

Third, Tennessee Code Annotated § 2-19-142’s criminalization of “false” speech cannot be reconciled with the U.S. Supreme Court’s decision in United States v. Alvarez, 567 U.S. 709 (2012), which held that a statement’s falsity alone is insufficient to remove it from the ambit of protection guaranteed by the First Amendment.

Fourth, Tennessee Code Annotated § 2-19-142 is unconstitutionally overbroad because it prohibits a substantial amount of constitutionally protected speech, both in an absolute sense and relative to the statute’s legitimate sweep, and because a substantial number of instances exist in which § 2-19-142 cannot be applied constitutionally.

Fifth, by restricting speech based on its content, by proscribing protected speech, and by criminalizing political speech based on viewpoint, Tennessee Code Annotated § 2-19-142 contravenes the more expansive protections of article I, section 19 of the Tennessee Constitution.

The court declares the law a violation of both the First and Fourteenth Amendments. The plaintiffs are free to call candidates they feel align with Hitler's beliefs "literally Hitler," even when said candidates are, obviously, not the long-dead German chancellor known affectionately as the "worst person in the world."

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Posted on Techdirt - 3 August 2020 @ 1:30pm

DHS Obtained Protesters' Encrypted Messages, Used Them To Craft 'Intelligence' Reports

from the and-lied-to-oversight-about-them dept

The more the DHS inserts itself into the ongoing civil unrest, the more unrestful it gets. President Trump sent his federal forces to Portland, Oregon -- the first of many "democrat" cities the president feels are too violent/unrestful -- to protect federal buildings from violent graffiti outbursts or whatever. When the DHS arrived -- represented by the CBP, ICE, US Marshals, and other federal law enforcement -- it announced its arrival with secret police tactics straight out of the Gestapo playbook.

Since that wasn't martial state enough, the federal officers turned things up, opening fire on journalists and legal observers. Literally. Local journalists were tear gassed, hit with pepper spray/pepper balls, and shot with "non-lethal" projectiles. The journalists and observers sued the federal government, securing a restraining order forbidding federal officers from continuing to violate the Constitution. Federal officers refused to stop (their) rioting and now may face sanctions for their actions. They will definitely be facing additional lawsuits since the restraining order made it clear willful violators would not be granted qualified immunity.

As if all of this wasn't enough, news leaked out that DHS was compiling "intelligence reports" on local journalists, as well as journalists located elsewhere in the nation who had published leaked DHS documents. One day after breaking the news about the journalist-targeting "intelligence reports," the Washington Post broke more news -- again with the aid of a leaked DHS document. This one shows the DHS is (still) on the wrong side of the First Amendment. It also appears to show the agency lying to its oversight.

A senior Department of Homeland Security official told a Senate committee earlier this month that the department had not collected, exploited or analyzed information from the electronic devices or accounts of protesters in Portland, Ore.

But an internal DHS document obtained by The Washington Post shows the department did have access to protesters’ electronic messages and that their conversations were written up in an “intelligence report” that was disseminated to federal law enforcement agencies, including the FBI, as well as state and local governments.

This news broke on July 31. On July 23, acting DHS undersecretary Brian Murphy told the Senate Intelligence Committee the agency's Intelligence and Analysis division had "neither collected nor exploited or analyzed information" obtained from "accounts" belonging to protesters or detainees.

Murphy had to have known his statements to the Intelligence Committee were false.

A DHS Open Source Intelligence Report dated six days before Murphy’s briefing to the committee shows that the I & A office analyzed messages that protesters exchanged on the Telegram messaging app. They discussed which routes to take during marches and how to avoid the police.

The messages quoted in the so-called "Open Source" report don't detail any planned wrongdoing. (Also: Telegram's encrypted messaging system cannot honestly be called "open source." It's not like viewing public accounts on social media, which is what "open source" usually means in this context.) Instead, the "analyzed" messages show protesters pointing out the obvious to each other. Walking towards or through residential neighborhoods draws less federal law enforcement attention. This makes sense because the feds are only there to defend the federal buildings located in downtown Portland. They're not in Portland to conduct normal law enforcement work Here's a representative quote:

“Seems they’re less inclined to go into residential neighborhoods which makes sense.”

And here's how those communications -- possibly obtained from an informant or undercover officer with access to the Telegram group -- were portrayed by DHS I&A.

[d]iscussing [...] TTPs [tactics, techniques and procedures] to evade law enforcement when being pursued…

The DHS has no business infiltrating groups participating in protected speech, just like it has no business compiling dossiers on journalists. Whatever pressure it may be feeling from an administration seemingly hellbent on portraying organic anti-police protests as organized antifa riots doesn't excuse these actions. The DHS may want to please its boss by bringing him some evidence of paid protesting, but it can't just ignore the Constitution until agents find what they're looking for.

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Posted on Techdirt - 3 August 2020 @ 9:38am

FBI Used Information From An Online Forum Hacking To Track Down One Of The Hackers Behind The Massive Twitter Attack

from the not-even-a-third-party-record dept

As Mike reported last week, the DOJ rounded up three alleged participants in the massive Twitter hack that saw dozens of verified accounts start tweeting out promises to double the bitcoin holdings of anyone who sent bitcoin to a certain account.

Three people were arrested. The ringleader appears to be a 17-year-old Tampa, Florida resident. The other two suspects are a 22-year-old Florida man and a 19-year-old from the UK. The hack was achieved through social engineering, giving the suspects access to an internal dashboard used by Twitter employees. This gave them access to multiple accounts, as well as all any direct messages sent to and from those accounts. That it was all just a bitcoin scam is somewhat of a relief, although not so much for victims who were duped out of nearly $100,000 via 400 transactions.

A rather interesting aspect of the investigation was pointed out by CNET reporter Alfred Ng. There are plenty of places investigators can go to obtain evidence stored on websites. But they don't always need a subpoena or warrant. Sometimes the information is already out in the open, having been harvested by malicious hackers and shared online. No paperwork needed.

If you can't read/see the tweet, it says:

wow, the FBI used a stolen database of OGUsers from April to identify one of the people allegedly involved in the Twitter hack

The information is contained in the criminal complaint [PDF] against 19-year-old UK resident Mason John Sheppard, a.k.a. "Chaewon." Ironically, a forum used by social media account hackers was itself hacked, resulting in a stash of info investigators were able to access without having to approach the site directly. From the complaint:

On April 2, 2020, the administrator of the OGUsers forum publicly announced that OGUsers website was successfully hacked. Shortly after the announcement, a rival criminal hacking forum publicly released a link to download the OGUsers forum database, claiming it contained all of the forum’s user information. The publicly released database has been available on various websites since approximately April 2020. On or about April 9, 2020, the FBI obtained a copy of this database. The FBI found that the database included all public forum postings, private messages between users, IP addresses, email addresses, and additional user information. Also included for each user was a list of the IP addresses that user used to log into the service along with a corresponding date and timestamp.

I reviewed records and communications that are part of this publicly-released database. I also found that on February 4, 2020, Chaewon exchanged private messages on OGUsers with another user of the forum during which Chaewon made a purchase of a video game username and was instructed to send bitcoin to address 188ZsdVPv9Rkdiqn4V4V1w6FDQVk7pDf4 (hereinafter, “the Chaewon purchase address”).

From there, the FBI was able to track bitcoin transactions, locate Sheppard's email address, and use that additional information to obtain information from virtual currency exchanges, Binance and Coinbase. With all of this information, the FBI was able to connect "Chaewon" and other usernames to Mason Sheppard to locate him and charge him with assisting in the hacking and bitcoin scam.

No warrants were needed. The info from the forum hack was already in the public domain. Bitcoin transactions are considered financial records, standing outside of the Fourth Amendment's protections. Even if it would possibly be more prudent to directly approach websites with subpoenas or warrants to obtain records, it appears to be far easier to just access data obtained from malicious hacking. And there are companies out there compiling information from data breaches and malicious hackings and selling access to law enforcement agencies who feel judges and additional paperwork will just slow them down.

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Posted on Techdirt - 3 August 2020 @ 6:23am

The Latest Targets Of DHS Surveillance Are Journalists Who Published Leaked Documents

from the can't-secure-a-homeland-without-breaking-a-few-amendments dept

Is there anything the DHS can't turn into a debacle while pretending to secure the homeland? It would appear it's impossible for America's least essential security agency to move forward without stepping in something.

As protests in Portland neared the 60-day mark, the DHS was tasked with protecting federal property like courthouses and… um… statues. ICE, CBP, Federal Protective Services, and US Marshals all arrived in Portland ready to go to war with people exercising their First Amendment rights. You only have one chance to make a first impression, and the unidentified officers from unknown agencies throwing protesters into unmarked vehicles was one hell of a first impression.

The federal agencies went to war, firing tear gas and projectiles at protesters, rioters, journalists, and legal observers. It made no difference to the DHS which was which. But it did make a difference to a federal judge, who issued a temporary restraining order forbidding federal officers from attacking, gassing, assaulting, or arresting journalists and observers who were just trying to do their jobs.

The federal officers immediately violated the restraining order. Or, more accurately, they never stopped doing the stuff that earned them the restraining order in the first place. Apparently, the DHS feels it hasn't violated First Amendment rights hard enough. The latest black eye for the DHS is more targeting of journalists, this time with surveillance.

The Department of Homeland Security has compiled “intelligence reports” about the work of American journalists covering protests in Portland, Ore., in what current and former officials called an alarming use of a government system meant to share information about suspected terrorists and violent actors.

Over the past week, the department’s Office of Intelligence and Analysis has disseminated three Open Source Intelligence Reports to federal law enforcement agencies and others, summarizing tweets written by two journalists — a reporter for the New York Times and the editor in chief of the blog Lawfare — and noting they had published leaked, unclassified documents about DHS operations in Portland. The intelligence reports, obtained by The Washington Post, include written descriptions and images of the tweets and the number of times they had been liked or retweeted by others.

Ironically, one of the leaks involved discussions of other leaks. An internal memo leaked to Benjamin Wittes, who runs the Lawfare blog, complains about earlier leaks.

Here's an excerpt from the leaked memo about leaked memos.

[T]he ongoing leaks related to our work in Portland remain of great to concern as it distracts from our mission and creates opportunities for others to exploit this information for their own benefit. This is wrong and we must make every effort to protect our information and prevent our work from being manipulated in any way.

Not sure what this official thinks journalists are "exploiting" and "manipulating." One of the leaked documents published by Lawfare gave DHS components permission to engage in domestic surveillance on behalf of statues and monuments. There doesn't appear to be any spin here.

It appears the DHS will stop doing this thing it supposedly only just started doing just this one time, allegedly without the knowledge of the guy acting like he's running the place. An angry statement was issued after the [acting] boss was just right now informed about these things.

“Upon learning about the practice, Acting Secretary Wolf directed the DHS Intelligence & Analysis Directorate to immediately discontinue collecting information involving members of the press,” a department spokesman said in a statement. “In no way does the Acting Secretary condone this practice and he has immediately ordered an inquiry into the matter. The Acting Secretary is committed to ensuring that all DHS personnel uphold the principles of professionalism, impartiality and respect for civil rights and civil liberties, particularly as it relates to the exercise of First Amendment rights.”

But see the ongoing violations of the restraining order that was supposed to force federal officers to "uphold the principles of professionalism" and "respect civil rights and liberties." See also the DHS's arguments in court, where it claimed protecting the government's stuff was more important than protecting citizens' rights.

The Federal Defendants intend to keep dispersing journalists and legal observers. See ECF 67 at 20 (arguing that allowing journalists and legal observers to remain "is not a practicable option"). The actions by the federal agents described by Plaintiffs are part of a pattern of officially sanctioned conduct. The Federal Defendants argue that such conduct is necessary to protect federal property.

This is why I'm not falling for Acting Director Chad Wolf's "I'm shocked, SHOCKED to discover there is disrespect for civil liberties in my agency" shtick. That and all the other times the federal government -- including agencies under the DHS's roof -- have engaged in domestic surveillance targeting journalists. And it wasn't just open source intel gathered from publicly available sites. It was also journalists' communications.

A senior Department of Homeland Security official told a Senate committee earlier this month that the department had not collected, exploited or analyzed information from the electronic devices or accounts of protesters in Portland, Ore.

But an internal DHS document obtained by The Washington Post shows the department did have access to protesters’ electronic messages and that their conversations were written up in an “intelligence report” that was disseminated to federal law enforcement agencies, including the FBI, as well as state and local governments.

This all looks very bad. But under this administration, harming journalists and/or curtailing their rights is probably fine. The President thinks most of them are "fake news" purveyors. Trump also believes most protesters are anarchists and "antifa." The DHS is under considerable pressure to make the Commander-in-Chief's conspiratorial dreams come true.

Officials who are familiar with the reports, and who spoke on the condition of anonymity to candidly discuss them, said they are consistent with the department’s aggressive tactics in Portland, and in particular the work of the Intelligence and Analysis Office, which they worried is exceeding the boundaries of its authority in an effort to crack down on “antifa” protesters to please President Trump.

All of this is troubling. If it's leak investigations, the DHS needs to keep that in-house and stop violating the Constitution. If the agency is fishing for (nonexistent) evidence of anarchists embedded in local newspapers, it's even more problematic.

The DHS was asked to rein in protests in Portland -- something the President blames on the city and state's "liberal" leadership. The DHS has failed to do anything but make itself -- and everyone involved with its response -- look worse. And every new move it makes only causes more reputational damage. The DHS needs to leave Portland before it hurts itself again.

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