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Posted on Techdirt - 22 June 2021 @ 6:05am

Former Trump Lawyer Facing Sanctions In Michigan Now Saying The Things She Said Were Opinions Are Actually Facts

from the chronic-self-inflicted-foot-injuries-now-traveling-to-mouth-area dept

The Kraken is on the move!

Former Trump lawyer Sidney Powell -- last seen being sued by a voting machine maker after making (and filing) a bunch of baseless claims about a "stolen" election -- is headed to Detroit, Michigan. There will be some more Michigan-focused courtroom action, but it won't be Powell playing offense.

Sidney Powell and other attorneys who defended former President Trump’s false claims about the 2020 presidential election have been summoned for a sanctions hearing in a Michigan federal court.

On Thursday, U.S. District Judge Linda Parker ordered the attorneys to appear at a hearing on July 6, according to court documents.

This case for sanctions has been building for months, beginning late last year after Powell (and several others) filed a bunch of BS lawsuits in Michigan courts seeking to overturn election results. The state's sanctions complaints were compiled with the inadvertent assistance of Powell herself, whose response to Dominion's defamation lawsuit was to assert that no reasonable person would believe the outlandish claims she made about the voting machine maker.

Unfortunately for Powell, that group of "reasonable" people apparently included the judges presiding over lawsuits she filed late last year. Claiming you're really in the business of dispensing hyperbole and rhetoric may play well when faced with defamation allegations, but it plays much worse in courts where you're the plaintiff trying to convince a judge these same statements are potentially verifiable facts.

Even with all of this going on, Powell just won't quit making things worse for herself. As Jacob Sullum reports for Reason, Powell recently attended a conference in Dallas, Texas where she claimed all the stuff she just finished telling Dominion was nothing more than heated rhetoric mostly free of facts is actually a bunch of facts she stands behind.

"I don't think they realized that some of us litigators were going to catch on and hold their feet to the fire and expose what really happened," Powell said during the "For God & Country: Patriot Roundup" gathering on Memorial Day weekend, which also featured prominent election conspiracy theorists such as former national security adviser Michael Flynn, former Florida congressman Allen West, and Rep. Louie Gohmert (R–Texas). She predicted that Dominion's lawsuit will be dismissed because "we meant what we said, and we have the evidence to back it up." If the lawsuit proceeds, she added, "then we will get discovery against Dominion, and we will be on offense."

That's not what she told the court. Playing defense against Dominion, Powell said:

[I]t was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern…

But in front of this crowd of conspiracy theorists and Trump torch-carriers, Powell claims to have the "evidence" to back up her "opinions and legal theories." Well, we'll see how that plays out when she returns to court to continue facing Dominion's lawsuit. We'll also see what effect being sanctioned for filing bullshit lawsuits in Michigan will have on the lawsuit she didn't file. Chances are, none of this will work out well for Powell. Trying to have it both ways just isn't going to work.

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Posted on Techdirt - 21 June 2021 @ 7:46pm

Study Shows Blood Pattern Analysis Is Just More Guesswork Posing As Scientific Evidence

from the blood-suckers dept

Another form of evidence used in criminal cases is being called into question. The latest (via CJ Ciaramella) to receive the dubious honor of being designated "dubious" is blood spatter analysis. This brings it in line with a long list of other things long-considered (and, in too many cases, still considered) to be evidence worthy of introducing into a court of law, joining bite mark analysis, hair analysis, um… pair of blue jeans analysis... and even the old standby, DNA analysis.

The problem with all of these sciences is that they're mostly subjective. Sure, they look pretty science-y. A lot of math and charts and lab coats and computers are scattered all over the place. Inscrutable printouts are carried by expert witnesses with years of experience under their belts. They show up in court and make claims about certainty of matches or probability of X contributing to Y, much of which can't be easily contested because, as mentioned earlier, the results are open to interpretation.

Despite this, a lot of what's called forensic science still ends up being used as evidence in criminal cases, even though it's more accurate to refer to it as forensic guesswork. Blood spatter analysis is no exception. This study [PDF] for Forensic Science International says the lack of solid standards in the blood pattern analysis field have resulted in experts looking at the same blood patterns but all seeing something different.

We investigated conclusions made by 75 practicing bloodstain pattern analysts on 192 bloodstain patterns selected to be broadly representative of operational casework, resulting in 33,005 responses to prompts and 1760 short text responses. Our results show that conclusions were often erroneous and often contradicted other analysts. On samples with known causes, 11.2% of responses were erroneous. The results show limited reproducibility of conclusions: 7.8% of responses contradicted other analysts.

That's a problem. How big of a problem is unknown. Actually, a lot about this is unknown. Differing opinions on blood spatter evidence can turn a suicide into a homicide or turn a killing from an act of self-defense to a murder. There's actual freedom riding on these interpretations, so it's crucial they be correct. And yet no one in the field (or in the court system) seems too concerned about ensuring this evidence is correctly analyzed.

Although BPA has been admissible as expert testimony for more than 150 years, the accuracy and reproducibility of conclusions by BPA analysts have never been rigorously assessed in a large-scale study.

In 2009, the National Research Council condemned blood pattern analysis as "more subjective than scientific." Nothing changed. In 2016, it called for testing of error rates in criminal forensic science. Again, nothing changed. Small studies were performed but nothing on the scale of this one, which involved 75 practicing blood pattern analysts and 192 samples. The results are far from encouraging. In fact, they point to enough of a margin of error that this sort of analysis should be prohibited from being introduced as evidence until standards are developed and put into practice that eliminates the subjectivity on display here.

But, given the 150 years of use and the minimum of interest in developing standards, this will also likely lead to nothing changing. What this research does do, at least, is give defendants something to use to challenge questionable evidence and questionable statements by prosecutors' expert witnesses.

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Posted on Techdirt - 21 June 2021 @ 3:36pm

Shake Shack Manager Sues NYPD Officers, Union Reps For Falsely Claiming His Business Sold Cops Poisoned Shakes

from the shake-(dead)weight dept

Last June, as anti-police brutality protests were sweeping across the nation following the killing of George Floyd by Minneapolis police officer Derek Chauvin, some NYPD officers claimed it was the public that was actually violent and abusive.

This supposed anti-police sentiment manifested itself -- at least in this case -- as "poisoned" milkshakes served to NYPD officers by a local Shake Shack.

The officers complained of "not feeling well" before being hospitalized and later released, the NYPD said in a statement to USA TODAY, and Shake Shack said via Twitter that it was "horrified" and working with police.

Now, were the roles reversed and officers accused of poisoning Shake Shack employees, law enforcement officials and their union reps would have been telling the public to wait until all the facts were in before passing judgment on the alleged poisoners.

But when it's cops allegedly being poisoned, these officials couldn't wait to start passing judgment. The Detectives Endowment Association sent out this tweet (since deleted):

Tonight, three of our fellow officers were intentionally poisoned by one or more workers at the Shake Shack at 200 Broadway in Manhattan.

Pat Lynch, the head of the Patrolmen's Benevolent Association, sent out both a statement and this tweet (also since deleted):

#BREAKING When NYC police officers cannot even take meal without coming under attack, it is clear that environment in which we work has deteriorated to a critical level. We cannot afford to let our guard down for even a moment.

Less than six hours later, the facts were in.

New York City police determined there was nothing criminal afoot when three officers got Shake Shack milkshakes that might have been accidentally tainted with a cleanser.

Police came to the determination after “a thorough investigation,” NYPD Chief of Detectives Rodney Harrison said in a tweet early Tuesday.

The officers complained of feeling ill upon sipping the shakes and ended up going to a hospital. Harrison said they were fine.

I assume they're all feeling well enough to handle a lawsuit. Because that's what they're getting. The manager of the falsely-accused Shake Shack, Marcus Gillum, is suing [PDF] a whole bunch of officers and union figureheads for defamation. The list of defendants is quite the read, with a few names bearing titles of ignobility:

PATRICK LYNCH, THE POLICE BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., DETECTIVES’ ENDOWMENT ASSOCIATION, INC., “Jane Doe NYPD Officer who ordered a Strawberry Shake”, “John Doe NYPD Officer who ordered a vanilla shake”, “Richard Roe NYPD OFFICER” who ordered a Cherry Shake”, “NYPD Sergeant who stated When Did You Add The Bleach”, “NYPD Sergeant Who called in ESU”, NYPD Officers JOHN DOE 1-20 (Names and Number of whom are unknown at this time), and CITY OF NEW YORK

Ah, yes, NYPD Sergeant Who Stated When Did You Add The Bleach, First of his Name, Lord of Lower Manhattan, Guardian of the Blue Line. Look at him now. He's no more than a common defendant. And there will be no qualified immunity to protect him or the others sued. There's no good faith exception that permits slander.

Of course, this still has to pass judicial scrutiny and motions to dismiss. And it could be argued the kneejerk responses issued by the police unions were based on the facts as they were understood at the time, even if said facts later turned out to be misunderstandings, if not actual falsehoods.

But there's some interesting stuff in the lawsuit -- some details that should have given the cops who thought they were poisoned some reasons to believe this had nothing to do with Shake Shack or its employees deliberately seeking to harm them.

Since the orders were placed using a mobile application, and not in person, Mr. GILLIAM and the other Shake Shack employees could not have known that police officers had placed the order.

Since the order was already packaged and waiting for pickup when Officers Strawberry Shake, Vanilla Shake and Cherry Shake arrived at the Shake Shack, Mr. GILLIAM and the other Shake Shack employees could not have “dosed” the milkshakes after they arrived.

But that was the accusation soon after the cops took possession of their order. These were serious allegations but the cops only treated it half-seriously. You'd think well-trained officers with all their expertise would know to preserve the crime scene. But, no. The alleged criminal evidence -- the "poisoned" shakes -- were tossed into an outside garbage can.

Following their disposal of the evidence, the cops decided to turn the Shake Shack into a crime scene (albeit one missing some very crucial evidence), seemingly for the sole purpose of keeping customers out and making the site appear dangerous.

The Sergeant then called in the Emergency Service Unit to set up a crime scene at Shake Shack.

LOL. This paragraph:

At approximately 9:20 p.m.—nearly two hours after Officers Strawberry Shake, Vanilla Shake and Cherry Shake first got the “sour” shakes— NYPD’s Emergency Service Unit arrived and set up a crime scene at the Shake Shack.

Which leads directly to this equally-hilarious image:

The discarded evidence was tested and cleared by the ESU. But by that point, the social media damage had already been done.

No qualified immunity defense for defamation. But qualified immunity will still be raised because there are also some Constitutional claims in the lawsuit. The manager of the Shake Shack was arrested by NYPD officers and questioned for more than an hour at the precinct station. He was finally released nearly three hours after officers detained him. There's your Fourth and Fourteenth Amendment violations. And false arrest is also a state law claim, which might cause problems for these officers even if they're given immunity for the Constitutional violations. There's a First Amendment claim thrown in for good measure but it's not really fleshed out in the lawsuit.

Whether or not this Shake Shack manager wins, this should hopefully remind cops it's foolish to draw conclusions before all the facts are in. And while nearly anyone with an internet connection can drag a business and its operators through the mud based on bad information, only a special few -- New York's finest -- can effect an arrest on top of it.

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Posted on Techdirt - 21 June 2021 @ 12:02pm

DOJ Asks DC Court To Compel Decryption Of Device Seized In A Capitol Raid Case

from the be-careful-what-you-ask-for dept

The DOJ is testing some waters it may not want to be troubling, not with hundreds of prosecutions stemming from the January 6 Capitol raid on the docket. It has asked the DC court to compel a defendant to decrypt his laptop so the FBI can search it for evidence. (h/t Marcy Wheeler)

The government is seeking an All Writs Act order [PDF] forcing the alleged device owner to unlock the device using either his face or his passcode.

The government respectfully moves for an order compelling the defendant to produce a critical piece of evidence – his Microsoft Surface Pro laptop computer – in an unencrypted state. The government proposes a two-step process: First, the defendant should be ordered to place his face in front of the computer’s camera, so that the computer can be biometrically unlocked. Second, if the biometric attempt does not unlock the computer, the defendant should be ordered to type his passcode or PIN into the computer.

Having failed to obtain consent, the government is now hoping to achieve this by force. This isn't a particularly wise idea considering how many cases it's currently juggling in this circuit. If the court decides this violates the Fifth Amendment, it may negatively affect other prosecutions involving secured devices.

The government argues there's no Fifth Amendment issue here.

The requested relief would not violate the defendant’s Fourth or Fifth Amendment rights. With respect to the Fourth Amendment, there is only minimal intrusion on the defendant’s privacy, and there is probable cause that the defendant’s face can unlock the Subject Device (and lead to the recovery of relevant evidence). With respect to the Fifth Amendment, Reffitt’s entering his password into the Subject Device does not violate his privilege against self-incrimination, because his act of production would not be testimonial, since the only potentially testimonial component implicit in his act of producing the unlocked/unencrypted device is a foregone conclusion.

This will come down to what the court feels the phrase "foregone conclusion" actually means. While the act itself (either presenting biometrics or providing a passcode) isn't necessarily testimonial, it does give the government access to evidence that might be used against the person being compelled to grant access to this information. At least one court has found that entering passwords and providing evidence are basically the same thing, since the first naturally leads to the latter. The government has no interest in the password, even though that's what it is seeking to compel. It's interested in what having that password entered will provide.

If the only foregone conclusion the government needs to have in its possession is who owns the computer, obviously compelled decryption will help establish ownership. The government appears to know whose computer it is. The Surface Pro targeted by the proposed order displays the name of the defendant (Guy Reffitt) on the screen when opened. And, despite Reffitt (initially) telling investigators otherwise, one of Reffitt's family members confirmed it belonged to the defendant.

Having that much information on hand might be enough to compel decryption if the court decides the only foregone conclusion the government needs to reach is the most likely owner of the device it's seeking to unlock. But if the foregone conclusion bar is set higher -- a likely source of criminal evidence -- things will get much more difficult for the government.

The government is basing this request on the theory that recordings captured at the Capitol by the suspect's helmet-mounted camera were moved to the laptop for storage prior to their deletion from the camera. However, the government seized multiple devices from the defendant's home, including three phones, two other laptops, and one desktop computer. Most of those have been searched already and determined they don't hold any relevant data.

The government is assuming -- based on statements by family members who viewed recordings on that device -- that's where the recordings it is seeking are now located. But it won't know this until after it performs a search. And it can't perform a search until the device is unlocked. This assumption is credible, but the files could have been uploaded to the cloud and viewed on the device, which means the files the government concludes (in a foregone way) must reside on the laptop possibly aren't actually there.

If the court decides the government doesn't have more than a hunch at this point, it may deny this order. And it may decide to lay down some Fifth Amendment ground rules that eliminate compelled production as an option. This is a roll of the Constitutional dice the government may later regret -- a rerun of its failure to compel decryption assistance in the San Bernardino case. But if it goes the other way, it will become that much easier for the government to pursue prosecutions in a district that handles an outsized portion of the DOJ's cases.

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Posted on Techdirt - 21 June 2021 @ 6:03am

Researchers: 2G Connection Encryption Deliberately Weakened To Comply With Cryptowar Export Restrictions

from the endangering-phone-users-in-the-name-of-public-safety dept

Researchers have discovered a backdoor in 2G encryption, one that was deliberately created. As this report by Lorenzo Franchesi-Bicchierai for Motherboard points out, the researchers didn't necessarily know it was deliberate when they discovered it.

Researchers from several universities in Europe found that the encryption algorithm GEA-1, which was used in cellphones when the industry adopted GPRS standards in 2G networks, was intentionally designed to include a weakness that at least one cryptography expert sees as a backdoor. The researchers said they obtained two encryption algorithms, GEA-1 and GEA-2, which are proprietary and thus not public, "from a source." They then analyzed them and realized they were vulnerable to attacks that allowed for decryption of all traffic.

The researchers said in their research paper the backdoor appeared to be deliberate. They reverse-engineered the algorithm, trying to randomly replicate the weakness in the random number generator they'd discovered. They were unable to do so. After observing this, they came to a pretty dead-on conclusion:

This implies that the weakness in GEA-1 is unlikely to occur by chance, indicating that the security level of 40 bits is due to export regulations.

This was confirmed shortly after the paper [PDF] was published.

A spokesperson for the organization that designed the GEA-1 algorithm, the European Telecommunications Standards Institute (ETSI), admitted that the algorithm contained a weakness, but said it was introduced because the export regulations at the time did not allow for stronger encryption.

This algorithm hasn't been in common use for years. The 2G standard has been abandoned in favor of 3G and 4G, eliminating this deliberately induced weakness. Export regulations no longer require deliberate weakening of encryption, so current standards are far more secure.

But even though 2G networks haven't been in common use since the early 2000's, this weakness (which still exists) still has relevance. One of the features of Stingray devices and other cell site simulators is the ability to force all connecting phones to utilize a 2G connection.

Handsets operating on 2G will readily accept communication from another device purporting to be a valid cell tower, like a stingray. So the stingray takes advantage of this feature by jamming the 3G and 4G signals, forcing the phone to use a 2G signal.

This means anyone using a cell site simulator can break the weakened encryption and intercept communications or force connecting devices to cough up precise location data. While law enforcement agencies (including the FBI) claim not to use any features that allow interception, the US is not the only customer for these devices. And there's been no confirmation that any US agency isn't using these to intercept communications they feel aren't protected by the Fourth Amendment, like conversations occurring in other countries (remember: the military had Stingrays first) or close to our nation's borders.

This revelation adds more info to the body of work dealing with the first cryptowar that began all the way back in the 1990s. Back then, the US government considered the export of strong encryption to be a criminal act. The NSA was one of the beneficiaries of this determination. This determination -- and the NSA's input -- resulted in the standardization of weakened encryption by the RSA. Even after the US government abandoned its criminalization of strong encryption, state-sponsored hackers (including our own NSA) were often able to force to force sites and content delivery services to utilize "export grade" encryption rather than stronger options in order to intercept communications and content.

Fortunately, most of that is behind us now. Our communications are now protected by encryption that hasn't been deliberately weakened. But it's still out there. And it can still be exploited by attackers with the right tools.

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Posted on Techdirt - 18 June 2021 @ 3:35pm

Cop Who Led Strike Team Into Wrong House During Drug Raid Granted Immunity By Eleventh Circuit

from the no-precedent-set-so-cops-are-free-to-do-this-same-thing-again dept

In February 2018, 24 armed officers from the Flint Circuit Drug Task Force engaged in the raid of a McDonough, Georgia house. Led by Captain David Cody, the officers deployed flash-bang grenades and forced their way through the door of the house at 303 English Road. Inside, they found only Onree Davis, the 78-year-old owner of the house.

Unfortunately for Davis, who was sitting innocently and non-drug-dealerly in his own home watching the news when it was raided, the task force was supposed to be raiding 305 English Road. But officers on the scene felt the house at the correct address (the same one they'd been investigating and surveilling on-and-off for two years) was "uninhabitable" and decided to try their luck at the house up the street.

Even more unfortunately for Davis, the courts have decided every officer involved in the wrong house raid is protected by qualified immunity. The latest blow to common sense and professional decency comes courtesy of the Eleventh Circuit Court of Appeals, which says the last officer whose immunity was still in question (Captain David Cody) is no longer in question. (via Reason)

The lower court granted Cody immunity for leading the raid to the wrong address, despite the houses having different paint colors, different items in their yards, and different numbers of their houses. The Eleventh Circuit affirms [PDF] all of this, even though Capt. Cody admitted he failed to apprise himself of all the pertinent facts before leading a task force on a violent raid.

Capt. Cody testified that he reviewed the search warrant to make sure it was signed, confirmed it authorized no-knock entry, and confirmed the address matched the address used in the PowerPoint presentation, but admitted that he did not read it “all the way through.”

Not that Capt. Cody was especially careless. The footnote attached to this paragraph makes it clear SWAT team participants are generally more concerned about topping off on bullets and grenades than eyeballing the paperwork that grants them permission to temporarily bypass Fourth Amendment protections.

For the first time in Norris’s reply brief, he argues that whether Capt. Cody read the search warrant is a disputed fact based on Agent Hicks’s testimony that he did not recall any other officers asking to look at the search warrant during the briefing.

I guess this lack of preparedness makes it easier for officers to claim they had to "react" to "rapidly-changing situations" after they've violated some rights. After all, if you can't be bothered to appraise yourself of the specifics of the situation you'll soon be facing, you're bound to be surprised or confused and almost certainly "fear for your safety" when you're right in the thick of it.

A N Y W A Y...

Back to the case.

So, the unprepared Capt. Cody led an unprepared task force into the house of the especially unprepared 78-year-old Onree Davis. But the court says this is fine and worthy of immunity because Cody's task force moved fast and broke stuff, making it more difficult to prevent themselves from acting in error.

Capt. Cody and the other officers involved carefully planned a high-risk raid at what was thought to be a dangerous target house but made a mistake when faced with an unexpected circumstance—the residence not matching the description given. The team was especially limited in their ability to respond to this unexpected circumstance because they had “announced” their presence with flash grenades, it was unsafe to communicate via radio, and they were forced to make a split second decision.

The most charitable reading is that the Eleventh Circuit thinks it's unfair to ask cops to think on their feet when conducting raids that could result in injuries or death. Once a raid is underway, the only way out of it is through it, even if "through" means breaking down the door of the wrong house and pointing guns at a person suspected of nothing.

My uncharitable reading is that this encourages officers to immediately make as much noise as they can when conducting raids because once the "presence" is "announced," they're clear to do whatever they want until they feel the scene is "secure." Cause enough chaos and it will be tough to prove an officer knew better than to do whatever unconstitutional thing they did because what reasonable person could think clearly with all of this [gestures at flashes/bangs] going on.

Capt. Cody armed himself with ignorance and explosives and that's enough for the court to give him permission to duck out of this lawsuit.

While the mistaken raid of Norris’s home was no doubt traumatic, given the significant factual differences between Capt. Cody’s actions in the raid and our prior precedent, we agree with the district court that Norris failed to meet his burden to show that Capt. Cody violated clearly established law.

That's how it ends for the man who suffered this violation of his Fourth Amendment right to be free from unreasonable searches and seizures. All twenty-four officers who participated have been granted immunity and are free to go. And with no declaration that this sort of thing violates rights, officers in this circuit are free to make these same mistakes again without worrying about being held accountable.

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Posted on Techdirt - 17 June 2021 @ 3:29pm

New Jersey Supreme Court Says Attorney General Can Publish The Names Of Cops Who Committ Serious Misconduct

from the flow-my-tears,-said-the-now-disgraced-policeman dept

Last year -- following the murder of George Floyd by Minneapolis police officer Derek Chauvin (and following the protests that followed this unconscionable killing) -- New Jersey's top cop said there would be more transparency and accountability in his state.

Attorney General Gurbir S. Grewal today ordered all law enforcement agencies in New Jersey to begin publicly identifying officers who commit serious disciplinary violations. Under the order, going forward every state, county, and local law enforcement agency in New Jersey will be required to annually publish a list of officers who were fired, demoted, or suspended for more than five days due to a disciplinary violation, with the first list to be published no later than December 31, 2020.

This move -- one that finally aligned New Jersey with several other states' transparency rules -- resulted in immediate legal action from the state's police unions. According to them, this was unfair -- an unlawful clawback of promises made to cops disciplined in the past, who were assured their names would not be published.

Well, part of that still sort of holds, but only on a case-by-case basis. The state's Supreme Court has sided with the Attorney General and his power to create new rules that apply to law enforcement officers. The ruling [PDF] says the new mandate is good and lawful and definitely affects all officers who commit serious misconduct after the announcement of the rule.

Directive 2020-5 applies to all law enforcement agencies in the State, including local police departments; Directive 2020-6 applies to the State Police and other agencies within the Department of Law and Public Safety (Department). Both Directives encompass all findings of major discipline after January 1, 2020. In addition, for the State Police and other agencies within the Department, officers subjected to major discipline dating back twenty years would be identified publicly.

As the court notes, this completely upends the state's standard operating procedure.

The Directives mark a sharp change in practice. Previously, the Attorney General fought to shield the identities of law enforcement officers disciplined for serious misconduct.

But even though it's a big change, it's still the sort of thing a state Attorney General can do. And law enforcement agencies must comply.

The Attorney General had the authority to issue the Directives, which satisfy the deferential standard of review for final agency decisions. The Directives are designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another. In short, the Directives are consistent with legislative policies and rest on a reasonable basis.

So, suck it, bad cops who don't want to have their names made public going forward. However, cops who received assurances their names would not be made public no matter how egregious their misconduct still might be able to keep their names buried. But this is not a blanket order. The officers will need to make their case to the court to determine whether or not the AG's office can still be (sort of) sworn to secrecy.

Officers subjected to major discipline for the past twenty years say they were promised that their names would not be released, and that they relied on that promise in resolving disciplinary accusations. In essence, they ask the State to stand by promises they claim were made throughout the prior twenty years. To resolve that serious issue, a judge will need to hear and evaluate testimony and decide if the elements of the doctrine of promissory estoppel have been met for disciplinary matters settled before the Directives were announced.

The court also reminds law enforcement officers that this sort of thing is considered acceptable by many professionals in many fields.

The Directives implement a practice that is common in other professions. When doctors, lawyers, judges, and other professionals are disciplined for misconduct, their names are made public. The New Jersey Division of Consumer Affairs lists the results of disciplinary actions against accountants, architects, dentists, electrical contractors, engineers, nurses, pharmacists, plumbers, real estate appraisers, and others on its website.

And it's also the sort of thing that's expected by the people who pay these public servants' salaries, i.e. the state's residents.

That practice is routine in other professions and shines light on both the overall disciplinary process and individual wrongdoing.

So, cops who don't want their names made public when they've committed serious misconduct have a few options. Well, really just one: don't commit serious misconduct. That will keep the officer's name out of the Attorney General's proverbial mouth.

Of course, the officers affected by this have concerns…

They contend the Directives will embarrass officers and make them and their families targets for retribution; undermine the integrity of the investigatory process; chill cooperation from officers; discourage officers from seeking treatment for alcohol or drug dependencies; undermine the command structure in law enforcement agencies; have a negative effect on public safety; and reveal the identities of victims and witnesses in domestic violence and other matters.

But those concerns aren't enough to nullify the new mandate, says the court. Plenty of other professions deploy the same sort of accountability measures and, while they may result in the same sort of side effects, have never been declared unlawful or a violation of due process rights.

The top court affirms the lower court's ruling and with this ruling, the Attorney General's rule stands going forward. And it likely will apply to most officers who've committed serious misconduct during the last 20 years. Of course, the police unions still have complaints. And that leads to this gobsmacking lie that would be hilarious if it weren't coming from the source of the multitude of problems plaguing US police departments.

Patrick Colligan, the president of the state Policemen’s Benevolent Association, New Jersey’s largest police union, called the ruling “both frustrating and disappointing.”

The NJSPBA does not and will not protect bad officers who violate the public trust and, yet, the 99.9% of good men and women serving in law enforcement continue to find themselves under attack,” he said in a statement.

The Attorney General's transparency directive stands. If officers don't want to subject themselves to all the negative effects of having their names published, well… maybe they should avoid committing serious misconduct.

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Posted on Techdirt - 17 June 2021 @ 1:32pm

House Transportation Committee Looking To Restart Federal Funding Of Red Light Cameras

from the back-to-buying-stuff-everyone-alreadys-knows-doesn't-work dept

Federal funds -- banned since 2015 from being used by states to purchase red light/speed cameras -- are possibly headed back to buying tech that hasn't done anything to make driving safer.

In 2012, language was added to the federal transportation bill that denied states federal funding for traffic cameras.

"A state may not expend funds apportioned to that state under this section to carry out a program to purchase, operate, or maintain an automated traffic enforcement system…"

But it didn't become law until 2015, and was expanded to exclude automatic license plate readers.

"None of the funds made available by this act may be used to acquire a camera for the purpose of collecting or storing vehicle license plate numbers," the House-passed language states.

Some of that may be rolled back with this year's budget proposal, The Newspaper (which did all the previously-cited reporting) reports:

The US House Committee on Transportation and Infrastructure on Wednesday will review sweeping legislation that would, among other things, encourage local governments to set up speed cameras using federal taxpayer dollars. The move would reverse a ban on federal funding for both red light cameras and speed cameras that has been in place since 2015.

[...]

"Notwithstanding subparagraph (A), a state may expend funds apportioned to that state under this section to carry out a program to purchase, operate, or maintain an automated traffic system in a work zone or school zone," the proposal states.

The bill [PDF] also adds this language, which doesn't do much to clarify what these guidelines might entail.

Any automated traffic enforcement system installed pursuant to subparagraph (B) shall comply with speed enforcement camera systems and red light camera systems guidelines established by the Secretary.

If this passes, it will reverse a half-decade ban on federally funding this mostly-useless tech. As The Newspaper notes, the federal government was an early adopter of traffic enforcement camera systems, providing funds for several pilot programs around the country more than 20 years ago.

But as report after report showed these cameras did little to increase safety, legislators began to reconsider the federal government's involvement in programs that appeared to do nothing more than generate revenue.

And it's not as though the tech has improved over the years. Accuracy isn't necessarily the goal. The more tickets issued, the more every party involved (local governments, traffic cam manufacturers) benefits. Well, not every party. Drivers are part of the equation but they're viewed as little more than mobile ATMs. Automated systems cut down on payroll expenses and replace it with cheap mailed tickets that, in many cases, can't even be challenged in court. Win-win for governments. Lose-lose for the people paying their salaries.

In other words, there are several good reasons for the federal government to stay out of the automated traffic enforcement business. Those reasons apply to local governments as well. But the federal government shouldn't be making it easier for local governments to indulge their desires to turn residents into revenue streams.

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Posted on Techdirt - 17 June 2021 @ 9:28am

Canadian Privacy Commissioner Says RCMP Broke The Law By Doing Business With Clearview

from the nice-work,-law-enforcers dept

Since its unceremonious exposure by the New York Times, internet-scraping facial recognition tech company Clearview has been the subject of nothing but negative press, lawsuits, and law enforcement denials of its self-proclaimed crime fighting abilities. Apparently to the surprise of Clearview, few people were receptive to the idea of having their personal info scraped from the web by the company and served up to law enforcement officers, private companies security personnel, and any billionaire wondering about what to throw their money at.

The dubious legality of its efforts has seen Clearview exit certain markets in the United States. It has also exited an entire nation, pulling the plug in Canada while under investigation by the country's Privacy Commissioner.

Earlier this year, the Privacy Commissioner released part of its report, finding that Clearview's offering was mass surveillance that was illegal under federal and provincial laws. The second half of its investigation deals with the Royal Canadian Mounted Police and its use of Clearview during investigations. The Commissioner's conclusion? The RCMP also broke the law.

[O]ur most recent investigation has concluded that the RCMP contravened the federal public sector law, the Privacy Act, when it collected information from Clearview. In our view, a government institution simply cannot collect personal information from a third party agent if that third party’s collection was unlawful in the first place.

According to the Privacy Commissioner, RCMP violated the Privacy Act by using Clearview to search for information about citizens. It doesn't matter that the database used to perform these searches was owned and maintained by a private company. If Clearview violated Canadian laws collecting and providing access to this data, the RCMP similarly broke the law when it accessed it.

The Commissioner notes the RCMP still does not believe it did anything wrong.

The RCMP is no longer using Clearview AI as the company ceased to offer its services in Canada in July 2020 in the wake of our then ongoing investigation. However, we remain concerned that the RCMP did not agree with our conclusion that it contravened the Privacy Act. The RCMP argued section 4 of the Privacy Act does not expressly impose a duty to confirm the legal basis for the collection of personal information by its private sector partners. Requiring the RCMP to ensure a third party’s legal compliance with PIPEDA would create an unreasonable obligation on the RCMP, the RCMP maintained.

That's a pretty interesting counterpoint by the RCMP. It basically argues it should be able to do business with outside vendors that break the law. Despite its spicy take on the legalities of paying third parties to break the law for it, the RCMP has agreed to revamp its policies and procedures to provide more control and direct oversight of tech use by its investigators and officers.

But if the RCMP was so sure it was in the right, one has to wonder why it attempted to downplay its use of Clearview to mislead the Commission's investigators.

We were also concerned that the RCMP at first erroneously told our office it was not using Clearview AI. When it later acknowledged its use, it said publicly it had only used the company’s technology in a limited way, primarily for identifying, locating and rescuing children who have been, or are, victims of online sexual abuse.

However, our investigation found the RCMP did not satisfactorily account for the vast majority of the searches it made.

These don't appear to be the actions of an agency that firmly believes it's in the clear, legally speaking. The most generous take is that the RCMP wasn't tracking use of Clearview by its employees, which is its own problem and one hopefully addressed by the recommendations of the Commission. But more realistically it suggests the RCMP knew it probably shouldn't be using the highly questionable facial recognition product and tried to cover up how often it had actually been used.

Most damning of all is the undeniable fact that the RCMP continued to use Clearview while it was under investigation by the government. It only stopped because Clearview decided to exit the Canadian market rather than risk any additional scrutiny of its software and site scraping efforts.  

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Posted on Techdirt - 16 June 2021 @ 8:48pm

After Eight Years And Three Reviews Of The Case, Indiana Supreme Court Rules Police Must Return Seized Car To Its Owner

from the thousands-of-dollars-spent-fighting-against-the-public's-interests dept

It's now been eight years since Indiana law enforcement seized Tyson Timbs' Land Rover following his arrest for distributing drugs. In eight years, this case has made multiple visits to the state trial court, the state court of appeals, the state's Supreme Court, and the nation's Supreme Court.

This isn't just due to Timbs' tenacity and his desire to have his car returned. His only car -- worth $35,000 when it was seized -- has been sitting in an impound lot for most of decade, all because of criminal charges that netted Timbs $1,200 in fines and one year of home detention.

No, these multiple trips are due to the state of Indiana attempting to prevent precedent from being set that would prevent it from seizing whatever it wants whenever it wants. Previous rulings found excessive fines -- in this case taking the form of a $35,000 vehicle seizure over $400 of heroin sold to undercover officers -- violate the Eighth Amendment. And these rulings also reminded the state that it had incorporated that part of the US Constitution years ago and couldn't try to ignore it now just because it still wants to avail itself of Benjamins when ringing up people on nickel-and-dime charges.

So, for the third time, the Indiana state Supreme Court is forced to handle the Timbs case because the state has refused to accept every previous ruling that has gone against it, including the one handed down by the US Supreme Court. The opening of the ruling [PDF] expresses some of the court's exasperation with the state's stubbornness.

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover. And, again, the same overarching question looms: would the forfeiture be constitutional?

Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again. During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines. Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.

All of these questions have been capably handled at each step of this long, laborious process. The problem is the state doesn't like the answers it's been getting. And the state Supreme Court doesn't appear to like the state's refusal to listen. There are some facts to consider, but as far as the state's top court is concerned, they were answered amply by the lower court.

[U]ntil now, the proportionality inquiry remained unresolved—that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse? The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019). Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.

The key is the excessive fines part of the Eighth Amendment. The courts must decide whether the seizure was proportionate. The lower court -- after hearing from witnesses on Timbs' behalf (the state decided not to call any of its own) -- made the right call by weighing the cost against the crime. The seizure of Timbs' only vehicle didn't serve any greater public interest. All it did was enrich the state at Timbs' expense.

[C]ontrary to the State’s position, we conclude that the $35,000 market value of the vehicle and the other sanctions imposed on Timbs point to the punitive, rather than remedial, nature of the forfeiture. As Timbs II explained, it’s appropriate to evaluate the market value of the forfeiture relative to the owner’s economic means—because “taking away the same piece of property from a billionaire and from someone who owns nothing” do not reflect equal punishments. 134 N.E.3d at 36. And, here, taking away a $35,000 asset from someone who owned nothing else was significantly punitive. Likewise, imposing the forfeiture on top of other sanctions—sanctions that included six years of restricted liberty as well as $1,200 in fees and costs -- shows that the vehicle's seizure was not for remedial purposes.

Finally this comes to an end, years after it should have been obvious seizing Timbs' car violated the Eighth Amendment right to be free from excessive fines.

Accordingly, we affirm the trial court; and the seven-plus-year pursuit for the white Land Rover comes to an end.

The state and its law enforcement agencies are now subject to a proportionality test that weighs the severity of the crime against the value of the items seized. If this test stands during criminal asset forfeiture -- the seizures accompanying actual criminal charges -- it needs to be applied to cases where law enforcement can't even be bothered to affect an arrest, much less pursue criminal charges when seizing property. This is good news for Indiana residents. And it has the potential to disrupt forfeiture efforts nationwide.

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Posted on Techdirt - 16 June 2021 @ 10:45am

FBI Ignored Its Own Warrant And Search Policies To Seize Millions From People's Safety Deposit Boxes

from the [hangs-GONE-FISHIN'-sign-in-FBI-office-window] dept

This brief clip from an FBI training film helps explain the actions undertaken by agents during a raid on a secure storage facility earlier this year:

In March of this year, the US Attorney in Los Angeles, California secured an indictment against a secure vault company, alleging the company was engaged in money laundering, drug trafficking, and hiding taxable assets. None of the company's employees or owners were indicted.

FBI agents spent five days turning US Private Vaults upside down. Agents apparently emptied every safety deposit box housed by the business. They did this in complete contradiction of the limits imposed on them by the FBI's own warrant affidavit. Here's Eric Boehm of Reason with some background:

[T]he unsealed warrant authorizing the raid of U.S. Private Vaults granted the FBI permission to seize only the business's computers, money counters, security cameras, and large steel frames that effectively act as bookshelves for the boxes themselves. Per FBI rules, however, the boxes could not be left unsecured in the vault after the raid had been completed, so agents had to take them into custody too.

The FBI could have taken custody of the boxes without opening them and sought warrants for those implicated by the investigation. Instead, the FBI agents emptied the boxes while still on the premises, engaging in dozens of searches not authorized by any warrant.

Here's what the FBI said it would do in its warrant request:

If you can't see the picture, the relevant part of the sworn statement says:

This warrant does not authorize a criminal search or seizure of the safety deposit boxes. In seizing the nests of safety deposit boxes, agents shall follow their written inventory policies to protect their agencies and the contents of the boxes. Also in accordance with their written policies, agents shall inspect the contents of the boxes in an effort to identify their owners in order to notify them so that they can claim their property.

And the agents weren't supposed to empty the boxes and catalog the contents. This is spelled out explicitly in the FBI written policies.

The inspection should extend no further than necessary to determine ownership.

So, permission was given to look in the boxes for anything that might identify the owners so they could come get their stuff from the FBI. But instead of doing that, agents took everything from the boxes and started forfeiture proceedings -- all without determining who owned what or providing any evidence at all that the items found in the nearly 1,000 boxes were obtained illicitly. Indeed, no customers of US Private Vaults have been accused of any criminal activity.

Here's what's happening now, in apparent direct contradiction of the search warrant's limits and the FBI's own policies.

[T]he FBI is now trying to confiscate $86 million in cash and millions of dollars more in jewelry and other valuables that agents found in 369 of the boxes.

Prosecutors claim the forfeiture is justified because the unnamed box holders were engaged in criminal activity. They have disclosed no evidence to support the allegation.

[...]

Beyond the $86 million in cash, the FBI is seeking to confiscate thousands of gold and silver bars, Patek Philippe and Rolex watches, and gem-studded earrings, bracelets and necklaces, many of them in felt or velvet pouches. The FBI also wants to take a box holder’s $1.3 million in poker chips from the Aria casino in Las Vegas.

The items the government claims -- without facts in evidence -- are the result of criminal activity includes unemployed food service worker's life savings: $57,000 he obtained from lawsuit settlements stemming from a car accident in which he suffered a spinal injury and a successful claim against a landlord for chronic housing code violations.

Another US Private Vault's customer (being represented, like the man above, by the Institute for Justice) lost her life savings to the FBI's actions, a total of $80,000 that is obviously important to the 80-year-old woman who presumably wasn't participating in drug dealing and money laundering. Contrary to the warrant and FBI guidelines, agents took everything in her safety deposit box even though they found identifying information as soon as they opened the box. Recordings of the raid show an agent holding her ID up to the camera before proceeding to go through the box, opening sealed envelopes and emptying their contents into another container.

It wasn't just cash, coins, and other valuables being seized by agents. The take also included personal items belonging to Paul and Jennifer Snitko. This is what the FBI -- until goaded into being a little less assholish by negative press and a handful of lawsuits -- considered to be evidence of criminal activity.

In the Snitkos' box, along with the baptismal certificate: a pilot's log, heirloom jewelry, collectible coins, a marriage certificate, a birth certificate.

The FBI recently returned these items to the Snitkos, making them one of the lucky few to have their property returned. But those with larger quantities of valuable items or cash are probably going to have to sue to get their items returned. The FBI says it's only willing to return items from about a quarter of the boxes its agents searched and seized without a warrant.

The FBI has returned the contents of about 75 boxes and plans to give back the items found in at least 175 more, because there was no evidence of criminality, Mrozek said. Federal agents have not determined who owns what was stored in many other boxes.

That's the latest from Thomas Mrozek, the spokesperson for the Los Angeles US Attorney's office. The FBI and federal prosecutors are hoping to take ownership of as much as possible from the remaining boxes, all of which is detailed in the very long inventory list compiled by the agents who performed the raid.

This is extremely ugly. Unfortunately, the use of civil forfeiture shifts some of the burden to those whose assets were seized. The government doesn't really have to do anything. If claimants don't come forward before June 24, those unclaimed assets will become government property, whether or not they had anything to do with criminal activity.

Those that do file a claim will have to deal with a convoluted and expensive process that helps ensure the government will still get to keep most of what it seized under the guise of performing an inventory. The burden of proof for the government is extremely low. And it's apparently telling judges a dog gave agents permission to engage in a bunch of warrantless seizures.

Drug-sniffing dogs at the store during the raid alerted to traces of drugs on most of the money found in boxes, FBI agent Justin Palmerton claimed in a court statement. The boxes containing that cash are subject to criminal investigation, he said.

This claim is stupid as fuck and hopefully won't be given any respect from judges that are subjected to it. Most currency contains trace amounts of drugs. That's common knowledge. But the FBI isn't raiding banks just because a dog alerted near the ATM. This is a completely disingenuous claim and, by itself, isn't evidence of anything more than the FBI's willingness to use literally anything to justify its warrantless acquisition of other people's property.

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Posted on Techdirt - 16 June 2021 @ 6:33am

FBI Director Ignores More Than 500 Ongoing Capitol Raid Prosecutions To Complain That Encryption Is Keeping Criminals From Being Caught

from the why-are-all-these-trees-blocking-my-view-of-the-forest? dept

FBI Director Chris Wray needs to shut the fuck up about encryption.

It has been 1,112 days since the FBI promised to perform a recount of encrypted devices in its possession, after overstating it by thousands for months in service of former director Jim Comey's "going dark" haymaking.

As of November 2016, the number in the FBI's possession was only around 880 devices. It suddenly jumped to 3,000 six months later. Then it doubled to 6,000 in less than five months. By the end of that fiscal year, four months later, the FBI had added another 1,775 uncrackable devices to its total.

That brought the alleged total to nearly 8,000 devices. The actual number -- should the FBI ever get around to releasing it -- is expected to be under 2,000.

Add to this the fact that the FBI doesn't seem to be having much trouble hunting down criminals and terrorists. The FBI ran its own backdoored encrypted chat software for months, leading to dozens of arrests around the world. It ran seized child porn servers in order to deliver malware that coughed up identifying info about visitors to illicit dark web sites. Its crack team of undercover agents and informants have put a large number of terrorists behind bars, even though these successes are tainted by the agency's willingness to radicalize people just so it can bust them. And it has obtained all sorts of evidence to use against more than 500 defendants in the January 6th Capitol raid cases.

Despite all of this, Chris Wray is still complaining about encryption's supposed ability to render the FBI (and other law enforcement agencies) blind and useless. His recent testimony before the House Judiciary Committee takes time to highlight all the FBI's successes. But it also allows Wray to show off the latest in dead horse-beating rhetorical devices.

The proliferation of end-to-end and user-only-access encryption is a serious issue that increasingly limits law enforcement’s ability, even after obtaining a lawful warrant or court order, to access critical evidence and information needed to disrupt threats, protect the public, and bring perpetrators to justice.

If this were true, the FBI wouldn't have nearly as many success stories to entertain its Congressional oversight with. The FBI appears to be doing just fine, despite Wray's protestations otherwise.

And he's preaching to a choir that remains unconverted. The FBI has been complaining for the better part of a half-decade and it's no closer to obtaining favorable legal precedent or encryption-breaking legislation than it was back then. The FBI's directors have only one record. And it's broken. Enjoy this supremely shitty tune you've all heard too many times before.

The FBI remains a strong advocate for the wide and consistent use of responsibly-managed encryption—encryption that providers can decrypt and provide to law enforcement when served with a legal order.

Ah, yes. "Responsibly-managed encryption." Apparently allowing the government on-demand access through built-in flaws or storage of encryption keys where anyone -- even criminals -- can access them is more "responsible" than what's being offered to the public now. The only acceptable encryption is broken encryption, according to the FBI. Backdoors, keys under the doormat, keys behind the counter at the front desk that can be obtained by request… all of these euphemisms fit the FBI's encryption ideal, which is obviously far from ideal and anything but a net gain for public safety.

Chris Wray refuses to move past the "denial" stage of his self-inflicted grief.

What we mean when we talk about lawful access is putting providers who manage encrypted data in a position to decrypt it and provide it to us in response to the legal process. We are not asking for, and do not want, any “backdoor,” that is, for encryption to be weakened or compromised so that it can be defeated from the outside by law enforcement or anyone else.

It's a backdoor. Providers holding keys presents an opening for others… you know, "law enforcement or anyone else." It may present itself as a front door with a doorman willing to oblige visiting cops, but it's still an entrance that isn't there presently, when providers allow users to hold their own encryption keys. To meet Wray halfway, it's a door. But it's a door whose presence exists solely because law enforcement desires it and which will present an enticing target for enterprising cybercriminals and state-sponsored hackers.

As I was saying, Chris Wray can fuck right off.

Unfortunately, too much of the debate over lawful access has revolved around discussions of this “backdoor” straw man instead of what we really want and need.

Hey, it's your straw man, dude. While other people present the facts -- that encryption cannot be "safely" broken -- Wray and his DOJ/FBI ilk continue to insist this common sense response is nothing more than a straw man offered up by people arguing in bad faith.

But it's the FBI that's been arguing in bad faith for years. It also insists encryption is zero sum: either law enforcement has access or the criminals win. This willfully ignores the FBI's numerous options for obtaining communications and data that do not require forcing its way through the front of someone's seized phone. And since the FBI won't be honest about the extent of the problem it claims it faces -- i.e., not updating the number of locked devices in its possession for more than THREE YEARS -- no one should feel obliged to meet it halfway, much less engage in an "adult conversation" with a bunch of children who have misrepresented the facts for years.

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Posted on Techdirt - 15 June 2021 @ 3:44pm

Police Union, Lax Oversight Allow Florida Cop To Survive Three Arrests And Seven Firings

from the when-you-think-'The-Shield'-is-something-to-aspire-to dept

How do you respond if you've just been notified you lead the state in discipline cases? Well, if you're Sergeant German Bosque of the Opa-Locka (FL) police department, you take perverse pride in your inability to be a good cop.

“I can’t believe that,” he said. “I’m not trying to smile. I just ... damn!”

That was in 2011, when Sgt. Bosque wasn't seen as quite as terrible as he is now. At that point, the officer who seemed to see himself as the second coming of Vic Mackey only had five firings (and three arrests) to his name.

Accusations of misconduct have piled up against this officer. The Herald-Tribune found 40 internal affairs cases involving Bosque, including multiple excessive force claims. Those reports found that Bosque head butted a man, splitting his lip open. Or that he cracked open another man's head with a leg sweep. Or the time he smacked a juvenile detainee. On top of that they note that he's been caught defying orders, lying to supervisors, and falsifying paperwork. His off-duty life seems just as horrifying, with Bosque facing multiple accusations from women alleging domestic violence and stalking.

He was apparently bounced out of the police academy twice and still somehow managed to become an officer. One of his early exits was prompted by his arrest on charges of stealing a car and impersonating an officer. I guess the Opa-Locka PD figured it was better to have him become an actual police officer, rather than allow him to roam the city pretending to be one.

Since his hiring in 1998, Bosque has been accused of engaging in pursuits in violations of direct orders, something he apparently tried to cover up by making an "anonymous" 911 call from his personal phone after the suspect crashed into a tree. He also was accused of falsifying his report to cover up his continued pursuit of the suspect.

Following a string of incidents that finally led to his suspension in 2008, Bosque's vehicle was inspected by officers who found an empty vodka bottle, cocaine, and crack pipes. They also found a bunch of IDs Bosque had apparently unlawfully seized.

That led to one of Bosque's firing. But the police union got him his job back, and the state's law enforcement commission took no action to strip him of his certification despite -- as the 2011 investigation by the Herald-Tribune notes -- Bosque's police record more closely resembled a rap sheet.

By all appearances, Bosque hasn't improved over the last ten years. First reported by the Miami Herald (and amplified by the Daily Beast), Sgt. Bosque has again been fired.

German Bosque, the Opa-locka police sergeant who became notorious for repeatedly getting fired and getting his job back, has been canned yet again.

“I’ve lost count. I don’t know if it was the seventh or eighth time,” Bosque said when reached on Wednesday evening. “It’s a wrongful termination. Again, I’ll be getting my job back again.”

It's Bosque's seventh firing. His latest involves more claims of lies and shady behavior. It also involves what appears to be some incredible incompetence by officers handling criminal evidence.

It stems from a shooting that happened back in October, when a gun believed used in the incident was discovered under a boat in someone’s back yard in Opa-locka. Officer Luis Serrano was assigned to watch the gun until Miami-Dade detectives got there to process the scene. But Serrano left to go to his police car briefly — and someone on the street took the gun and replaced it with a toy pellet gun.

Sgt. Bosque arrived on the scene and began mentoring Officer Serrano as only Bosque could. The body cam recording caught Bosque telling Serrano to make up a story about why he left the gun unattended.

“What do we tell them you get to get in the car?” he asks, according to body-camera footage. When Serrano repeated that he’d gone to the car to look [for] some paperwork, Bosque said “No. No. Something else, anything else ... you thought it was going to rain and you came to get a tarp.”

For all the cops who complain the "system" allows criminals to get off on "technicalities" (the nickname cops give Constitutional rights), they seem to lack the self-awareness to recognize they have their own set of technicalities that frequently allow them to escape punishment for their actions. And here it is, via Andrew Axelrad, Bosque's police union attorney.

“The idea that the department is going to terminate him for this is truly unbelievable ... I have very little doubt that he will be reinstated,” Axelrad said. “”This is more a function of his reputation.”

That seems about right. Bosque's reputation is garbage and has been for a couple of decades. The only thing slightly surprising about this is that he actually was fired. If history is any indication, Bosque will be back on the streets before too long.

And Bosque's own lack of self-awareness is pretty notable.

“It’s sad because I love policing,” he said. “I don’t like corrupt cops. I hate when I’m portrayed as a dirty cop who slipped through the cracks.”

But that's exactly what Bosque appears to be: a dirty cop who slips through the wide crevasses his union and his supposed oversight create for him. No matter how much the PD and the city want him gone, they can't seem to get rid of him.

Then there's the question of how much the PD actually wants him gone. Sure, it's been forced to reinstate him thanks to the union's continuous intervention, but if it really wanted Bosque gone, it could have made it happen. Years of indifference by the Florida Department of Law Enforcement -- which has continually refused to strip Bosque of his certification -- has turned a bad hire into permanent Opa-Locka urban blight.

Then there's the officers he works with. Some, if not most, must be ok with Bosque's behavior. No officer has stepped forward to offer their commentary on his actions. And it appears some officers take pride in being bad. Law enforcement has cultivated an us vs. them attitude that takes all the wrong messages from pop culture icons like Dirty Harry and The Punisher and applies them to their daily work. Everyone who isn't a cop is an enemy in a war zone. Busting heads and breaking rules is perceived to be the most efficient way to enforce the law. Violence is encouraged in training and rewarded with wrist slaps, reinstatements, and shit tons of exonerative reports and public statements.

Bosque is a symptom of the disease. And he didn't make it in the law enforcement business for 28 years without the help of those around him. Most of us can go 28 years without being arrested or fired once. A public servant entrusted with this much power shouldn't be tolerated for this long ever.

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Posted on Techdirt - 15 June 2021 @ 10:59am

Biden, DOJ Say No More Targeting Journalists, But Aren't Doing Anything To Keep It From Happening Again

from the first-step-toward-doing-better-is-actually-doing-something dept

The tail end of the Bill Barr/Donald Trump DOJ has been marred (I mean… more so…) by a quick succession of reports detailing its targeting of journalists' communications in order to sniff out the source of leaks.

The Trump Administration was plagued by leaks and Trump suggested it would be cool if the FBI would go after some journalists. The FBI apparently also thought this was cool. And so the DOJ sent out subpoenas demanding information about phone calls and emails and pinned gag orders to them, keeping targeted journalists from being notified the government was trying to obtain these records.

The targets were journalists employed at the papers on the top of Trump's shit list: the New York Times and the Washington Post. (The DOJ also targeted a CNN journalist.) And, in a weird twist loaded with the same First Amendment concerns, the FBI tried to obtain records pertaining to readers of a USA Today article about the killing of two FBI agents during a child porn raid.

After the first couple of revelations, President Joe Biden said the DOJ would no longer target journalists.

When asked if Biden would prevent his Justice Department from seeking reporters’ phone records, Biden responded: “I won’t let that happen.”

Unfortunately for Biden, the DOJ's rules absolutely permit it to target journalists. It has done so for years and made quite the negative impression during the Obama years, assisting an administration nearly as interested in hunting down leakers and whistleblowers as Donald Trump's.

Biden's statement suggested his DOJ would do things differently, but the DOJ hadn't actually said anything at that point, and was, in fact, carrying on with some of the Trump DOJ's secretive targeting of journalists. As late as March of this year, the DOJ was still seeking New York Times' journalists' records while swearing the NYT's legal counsel to secrecy.

The DOJ finally stated it wouldn't target journalists a few days after Biden said he wouldn't allow it. The DOJ's spokesperson said the DOJ respected the First Amendment and the free press. But it's apparently a newfound respect, rather than a respect the DOJ has always held.

All well and good except that neither the DOJ nor President Joe Biden have done anything other than say the things that have happened for years will no longer be happening. There hasn't been much action. Margaret Sullivan of the Washington Post points out that all anyone's been given are assurances that will remain empty until someone in the administration is willing to do something about it.

In an opinion piece published over the weekend, Washington Post Publisher Fred Ryan argued that the revelations of recent weeks demonstrate that the Biden administration actually intensified the assault on First Amendment rights before backing down.

He described how, after The Post learned of subpoenas to obtain email information and home, cell and office telephone records of three Post reporters from 2017, the paper’s leadership demanded answers and a meeting with the attorney general — and have so far received none.

Getting some face time with the DOJ would be a good start. But the DOJ isn't going to ditch something it finds useful -- or, at least, convenient -- when engaging in leak investigations. It will continue to target journalists unless it makes it impossible to do so.

Sullivan says the DOJ's Inspector General needs to look into this and publish the findings. More essential, though, is establishing solid deterrents. The DOJ may say it will no longer target journalists, but without meaningful consequences in place for those who violate this promise, it will continue to happen. Suspensions, firings, demotions: these should all be options when prosecutors and investigators cross the line.

Biden and his DOJ need to be better at this than their predecessors. But not just a little better. The DOJ should make this standard operating procedure going forward. And it needs to lock these rules in, preventing future administrations from deciding Constitutional rights are just privileges that can be waived whenever investigators are trying to figure out where the federal government has sprung a leak.

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Posted on Techdirt - 15 June 2021 @ 5:29am

Add Microsoft And Another Congressional Staffer To The List Of Entities Targeted In Trump DOJ Leak Investigations

from the just-waiting-on-the-yahoo!-revelations-now dept

The hits just keep on coming. Gag orders are being lifted or expiring and we're finding out even more about DOJ leak investigations under Trump. Under AGs Jeff Sessions and Bill Barr, the DOJ targeted journalists, Congressional reps... even readers of USA Today.

The DOJ went after journalists working for the New York Times, Washington Post, and CNN while trying to hunt down the source of leaks, sending subpoenas to third party service providers hoping to acquire phone records and email metadata.

The most recent revelation exposed the DOJ's targeting of Rep. Adam Schiff -- one of Trump's many, many punching bags -- in a leak investigation. The DOJ sent a grand jury subpoena to Apple, seeking metadata for 109 identifiers, specifically 73 phone numbers and 36 email addresses. The information sought covered not only Schiff but his staffers and family members. Another Congressional Rep, Eric Swalwell, was targeted by the same subpoena.

It appears no third party was left out of the DOJ's attempt to hunt down leakers. The latest news on the DOJ's leak hunting pulls in Microsoft.

Microsoft in 2017 received a subpoena for a congressional staff member's personal email account, a company spokesperson said via email. The staffer hasn't been identified.

This subpoena came with a gag order attached.

The spokesperson added: "In this case, we were prevented from notifying the customer for more than two years because of a gag order. As soon as the gag order expired, we notified the customer who told us they were a congressional staffer."

And another two years before it was actually made public. I assume this didn't seem newsworthy to the staffer in 2019 when they were informed of the subpoena by Microsoft. But in 2021, with news about the DOJ's questionable investigative techniques breaking almost daily, it apparently seemed relevant enough to bring this to the media's attention.

Both President Biden and the DOJ have promised to stop seeking information about journalists and their sources during future leak investigations. Presumably government employees like the Congressional reps and staffers are still considered valid investigational targets when the DOJ looks for leakers. Whether this will continue to include family members of government employees remains to be seen.

The Inspector General of the DOJ has opened an investigation into these investigations. This will possibly result in even more information about its targeting of journalists coming to light. Unfortunately, it may also result in an exoneration of the DOJ, as its guidelines for seeking information about journalists were, until recently, pretty expansive. This means the DOJ could cause considerable constitutional trouble without breaking the rules it wrote for itself. If nothing else, we can hope the DOJ's promise to exclude journalists from leak investigations outlasts the current administration.

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Posted on Techdirt - 14 June 2021 @ 1:34pm

High School Responds To Student's Prank By Asking Local Law Enforcement To Step In And Investigate

from the now-who's-acting-like-a-child? dept

I see we're still handling things stupidly when it comes to school disciplinary problems. For years now, many schools have been steadily abdicating their responsibilities, allowing in-school law enforcement (commonly called "School Resource Officers") to hand out discipline that school administrators used to handle themselves.

This hasn't worked out well for students. It has turned standard discipline problems into police matters and given students a head start on having their futures ruined for juvenile (in all senses of the word) mistakes.

Recently, a high school in Glastonbury, Connecticut was horrified to find it had been pranked. The Hartford Courant's first pass at the breaking news opened with this:

An inappropriate quote has halted distribution of Glastonbury High School’s 2021 yearbooks and police have been called to investigate, the principal confirmed Monday.

How does an "inappropriate quote" become the subject of a police investigation? The rest of the reporting didn't explain. Neither did school administrators. But they did hint it had something to do with bullying.

A student using a false name submitted the quote printed in the yearbook, which was being distributed, Principal Nancy Bean wrote to students and parents on Friday.

Bean would not describe the quote, but she wrote, “We are saddened and distressed by what happened. Acts of bias, bullying and cruelty are not acceptable at our school. We are committed to ensuring all Glastonbury High School students feel safe and supported.”

While it may have been possible some sort of stalking or harassment was taking place that might have merited a law enforcement response, the principal's explanation that the quote had been "submitted" by a student using a fake name suggested nothing more than a bored student taking the high school for a ride.

Later reporting filled in more details. But it still didn't explain why the school felt compelled to involve the police. Nor did it explain why the police felt compelled to remain involved.

A quote by Adolf Hitler inserted into Glastonbury High School’s 2021 yearbooks has halted distribution of the yearbook and police have been called to investigate.

A student using a false name submitted the quote printed in the yearbook, which was being distributed, Principal Nancy Bean wrote to students and parents on Friday. The quote under a student’s photo was attributed to George Floyd, the Black man killed by police one year ago in Minnesota, a photo of the yearbook entry sent to The Courant Monday afternoon showed.

That it involved George Floyd's name and Adolph Hitler's words still doesn't make it a crime. And, again, the principal said a student "submitted" the quote. Those vetting the yearbook before publication failed to catch it. A prank isn't a crime, no matter how terrible it made administrators feel once they realized they'd been tricked into publishing (and distributing) a Hitler quote.

Since the original reporting, a few more details have come to light. And there's still nothing that suggests a criminal act has occurred. It only suggests the school needs better editors and/or a more tightly-controlled submission system.

In an email to the school community, Glastonbury High School’s principal and the district’s superintendent said the quote — which appeared under a student’s photo — was submitted by a different student using a false name. They said they also uncovered an offensive quote glorifying war and an entry, which referenced the “Boston Bomber.” The district’s priority is supporting the students, who were victimized by this act.

Fast forward to a couple of days past the point of the original reporting and a new narrative is being developed, possibly to justify the involvement of law enforcement.

A letter released by the Glastonbury school superintendent said the student gained access to a computer system and submitted a quote from Adolf Hitler, but falsely attributed the message to George Floyd.

"Gained access." That's incredibly vague. If a student had hacked a secure system or accessed administrative systems they had no authority to access, it might be a crime. But only "might." And only if prosecutors are willing to abuse badly-written laws to convert a prank into criminal charges.

The Glastonbury Police were a little more direct in the statement given to Newsweek:

"Although we find the quote to be disturbing, our criminal investigation is not focused on the content of the quote itself, but instead we are focused on investigating the unauthorized access of a computer system through which students submitted their quotes to be published in the yearbook."

This still doesn't explain anything. The official statement from the school superintendent makes no mention of unauthorized access. It also notes the student has already been punished by the school for this prank. All the letter says is the student used a fake name to submit fake quotes. That's not illegal, no matter how embarrassed school officials feel. And this never would have been the end result if schools hadn't become increasingly comfortable outsourcing their disciplinary problems.

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Posted on Techdirt - 14 June 2021 @ 12:13pm

Chinese Government Now Using National Security Law To Censor Art Being Displayed In Hong Kong

from the less-freedom-for-all;-tiny-Chinese-flags-for-others dept

Hong Kong's new "national security" law -- thrust on it by the Chinese government that's supposed to stay out of Hong Kong's governmental business until 2047 -- continues to increase the amount of censorship in the supposedly still-independent region.

Once the Chinese government began interfering, Hong Kong residents revolted. This only encouraged the Chinese government to apply a heavier hand. The new law allows prosecutors to seek life sentences for anti-government protesting. It also hands police the power to censor the internet and compel assistance to decrypt communications.

To further ensure its desires go unchallenged, the Chinese government adopted a resolution that forced four pro-democracy legislators out of office in Hong Kong. This led to another dozen sympathetic lawmakers resigning from their positions in protest. Unfortunately, this means there are even fewer Hong Kong politicians willing to stand up to the Chinese government's impositions.

The national security law has already enabled the punishment of dissent, censored the internet, silenced pro-democracy press, and ousted pro-democracy legislators. Now it's coming for culture, seeking to limit Hong Kong residents to government-approved creative works.

The updated rules announced Friday require Hong Kong censors considering a film for distribution to look out not only for violent, sexual and vulgar content, but also for how the film portrays acts “which may amount to an offense endangering national security.”

Anything that is “objectively and reasonably capable of being perceived as endorsing, supporting, promoting, glorifying, encouraging or inciting” such acts is potential grounds for deeming a film unfit for exhibition, the rules now say.

This gives China-approved censors the freedom to forbid anything they perceive as being anti-China. And it's not just limited to content. The rules also allow films to be censored if the perceived "effect" of viewers of the work might cross the multiple lines the Chinese government says now threaten the security of the nation.

The new rules have already had their intended impact on theaters and filmmakers, including those participating in an annual Hong Kong film festival.

A local cinema was pressured into scrapping the screening of a documentary on the fierce clashes between police and radical protesters occupying the Hong Kong Polytechnic University at the height of the social unrest, while the M+ Museum in the city’s cultural hub came under similar pressure not to show exhibits deemed to be anti-China art.

In a separate development on Friday, organisers of the Fresh Wave International Short Film Festival, which nurtures local young film talent, cancelled its screenings for Far From Home, saying the Office for Film, Newspaper and Article Administration had failed to issue either a certificate of approval or notice of refusal to approve in time.

And so it continues. China isn't going to wait until 2047 to take control of Hong Kong. It wants subservience now. The pro-democracy protests that have rocked Hong Kong for the past few years will continue. But it looks as though China's national security mandates will ultimately turn Hong Kong into a directly controlled subsidiary of the Chinese government a couple of decades ahead of schedule.

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Posted on Techdirt - 14 June 2021 @ 5:26am

Two States Pass Laws Limiting Law Enforcement Access To Private DNA Services

from the catching-up-with-the-cops-who-have-already-caught-up-with-the-tech dept

One of the more recent opportunities for law enforcement in the Third Party Doctrine space has been DNA databases. A number of companies offer on-demand DNA testing, allowing users to check themselves for potential markers that could indicate susceptibility to diseases or just to figure out where they fit in in the world by linking them to distant relatives they may not be aware of.

Since users are sharing this potentially-sensitive info with DNA companies and other users, law enforcement illogically thought they wouldn't mind sharing it with cops. At least one company believed this as well, informally deputizing its user base as involuntary providers of DNA evidence.

A whole lot of Wild Westing ensued. Some investigators used subpoenas, believing it was third party data that carried no expectation of privacy. Others used warrants, but used them to access the entire contents of third party DNA databases. Cops even created fake accounts to upload DNA samples to find matches in cases that had gone cold.

This mostly-voluntary patchwork of legal paperwork/legal theories is now being codified into something coherent and subject to at least some judicial oversight. As the New York Times reports, two states have recently passed laws governing the use of private companies' DNA databases by law enforcement.

Beginning on Oct. 1, investigators working on Maryland cases will need a judge’s signoff before using the method, in which a “profile” of thousands of DNA markers from a crime scene is uploaded to genealogy websites to find relatives of the culprit. The new law, sponsored by Democratic lawmakers, also dictates that the technique be used only for serious crimes, such as murder and sexual assault. And it states that investigators may only use websites with strict policies around user consent.

Montana’s new law, sponsored by a Republican, is narrower, requiring that government investigators obtain a search warrant before using a consumer DNA database, unless the consumer has waived the right to privacy.

The Maryland law is obviously the stronger of the two. It would steer investigators away from more law enforcement-receptive sites like FamilyTreeDNA, which opts users into sharing information with law enforcement by default. It would also prevent investigators from creating fake accounts to perform DNA searches, unless specifically approved by a judge.

It also mandates destruction of information obtained from DNA databases at the conclusion of investigations. And, perhaps most importantly, it forces investigators to utilize the government-owned DNA database (Codis) before approaching private third parties.

The Montana law is better than nothing, but it still needs more work. While it does erect a warrant provision, it allows that to be waived if the "consumer" consents to the search. Given that most databases attempt to link people by DNA, consent given by one person has the potential to subject lots of other people to searches they never agreed to.

But these are both positive steps. Just another 48 states to go. The relentless advance of technology often has cops claiming they're being left behind, outpaced by criminal early adopters. But the opposite is more often true. Law enforcement moves quickly to take advantage of new tech, rushing out ahead of court precedent and legislation to exploit tech advances legislators could never have anticipated. And when the loopholes begin closing, law enforcement will switch back to complaining about the "loss" of its lawless spaces. For now, two states are better protected than the rest of the nation. Hopefully, more legislatures will recognize this is an issue they can no longer ignore.

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Posted on Techdirt - 11 June 2021 @ 1:33pm

DOJ Says It's Time To Add Ransomware Attacks To The Ever Expanding 'War On Terror'

from the not-everything-needs-to-be-terrorism dept

High-profile ransomware attacks -- some the FBI have tentatively attributed to Russian hackers -- have provoked the kind of response none of us should be in any hurry to welcome. But it's been coming to this point for years.

Malicious hacking efforts -- some of them targeting government agencies -- have been normal for as long as we've had computers and networks. And it's something our own surveillance agencies engage in, whether to search for terrorists or to simply cripple foreign governments. Throughout it all, there's been a steady call by some legislators and officials to turn cyber wars into actual wars. Or, at the very least, allow US government agencies to engage in more offensive hacking efforts, rather than simply play defense.

War -- or anything a government can call a "war" -- is the one simple trick governments use to obtain more power for themselves at the expense of the rights of those they serve. That's why the War on Drugs and the War on Terror are more known for mass imprisonment and mass surveillance than any solid victories over the concepts and products the US has declared war against.

Ransomware is the next thing in line for the "war on" treatment. A DOJ internal memo first referenced by Reuters and shared (by the DOJ!) with Gizmodo is equating ransomware attacks with terrorism.

The U.S. Department of Justice plans to take a much harsher approach when pursuing cybercriminals involved in ransomware attacks—and will investigate them using strategies similar to those currently employed against foreign and domestic terrorists.

The new internal guidelines, previously reported by Reuters, were passed down to U.S. attorney’s offices throughout the country on Thursday, outlining a more coordinated approach to investigating attacks. The new guidance includes a stipulation that such investigations be “centrally coordinated” with the newly created task force on ransomware run by the Justice Department in Washington, DC.

This equation of ransomware with terrorism was made explicit by the acting deputy attorney general, who told Reuters this "model" has been used to handle terrorism investigations but not for malicious cyberattacks.

What this means is information will be shared with other agencies as well as oversight and legislators whenever investigators, analysts, and private sector requests for assistance involve ransomware or other online threats, like botnets and forums selling hacking tools and stolen credentials.

What this will mean in practice remains to be seen. The War on Terror hasn't exactly boosted anyone's confidence in the federal government's ability to respond effectively or appropriately to this omnipresent threat. It has saddled us with the TSA and dozens of useless "Fusion Centers." It has created an FBI cottage industry that allows informants to radicalize random citizens into 20-year prison sentences using tactics that often appear to cross the line into entrapment. It has expanded the buying power of the military and allowed local law enforcement to wield its hand-me-downs against American citizens. It has expanded the reach and grasp of multiple intelligence agencies -- some of which have had their own hacking tools leaked/purloined and wielded by the same state-sponsored hackers and cybercriminals these agencies were supposed to be taking down.

Without a doubt, ransomware is a threat to Americans. It has crippled major industry players, resulting in panic buying and price spikes following production dips and logistics nightmares. And it's only a matter of time before critical systems and agencies are held hostage at virtual gunpoint until ransoms are paid. But considering the underlying infrastructure that allows ransomware attacks to take place is also something millions of non-criminals around the world use regularly, allowing the government to treat the greatest communication tool ever invented as Terrorist HQ isn't likely to make it better or safer for anyone using it.

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Posted on Techdirt - 11 June 2021 @ 9:37am

DOJ Leak Investigation Targeted Rep. Adam Schiff And His Family Members

from the how-do-you-like-those-expanded-powers-now,-Adam? dept

Former president Trump made plenty of noise about the Deep State being out to get him. But he apparently didn't see anything wrong with sending the Deep State after his enemies.

One of his main enemies was the press -- something he pointed out frequently when he still had viable social media accounts. Everyone who published anything that didn't glorify him and his actions deserved nothing more than disdain. They also, apparently, deserved DOJ investigations. The Trump White House was notoriously leaky and Trump allowed successive AGs to attempt to obtain journalists' communication records in hopes of discovering the source of multiple leaks.

One of his other nemeses was the (so-called) "Democrat" Party. Members of the opposition were also apparently targets of DOJ leak investigations. Somewhat ironically, one target was a strong supporter of unchecked surveillance and FBI abuse of NSA collections. Adam Schiff -- who inserted a loophole to allow the FBI to continue its backdoor searches of NSA collections while renewing Patriot Act powers -- was apparently singled out for the Deep State experience, according to this article by the New York Times.

As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry.

This investigation centered on leaks surrounding the investigation of Trump's ties to Russia and that country's interference in the 2016 election. It began under Jeff Sessions but apparently hit a dead end. Investigators discussed shutting this investigation down, but it was revived by Trump's new DOJ lap dog, Bill Barr, when he succeeded Sessions.

Apple was hit with a gag order that prevented it from notifying Schiff and other targets about the DOJ's interest in their records. That order finally expired in 2021, nearly four years after it was issued.

Adam Schiff isn't too happy about this particular use of the DOJ's power.

Mr. Schiff called the subpoenas for data on committee members and staff another example of Mr. Trump using the Justice Department as a “cudgel against his political opponents and members of the media.”

We'll see if Schiff being on the receiving end of these powers will force him to rethink his position supporting the DOJ's use of this "cudgel" against everyday Americans who aren't on his team or work for media outlets that routinely criticize him.

And he's yet another person asking for the Inspector General to investigate the DOJ's willingness to violate trust and Constitutional amendments when conducting leak investigations. It will likely be months, if not years, before we see the end result of any investigations, but the growing chorus of voices demanding a closer look by the DOJ's oversight should make it more difficult to ignore.

The DOJ needs to answer for the abuses it has perpetrated in service to presidential administrations more interested in sealing leaks than respecting rights. And it needs to take solid, substantial steps to prevent this unfortunate history from repeating in the future, no matter who's running the country.

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