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Posted on Techdirt - 17 October 2018 @ 1:29pm

'See Something Say Something' Sends Philly Counter-Terrorism Unit After A Local Journalist Over A Harmless Facebook Post

from the citizens-need-to-learn-the-power/responsibility-adage dept

It's troubling how little is needed to trigger a police investigation and some ancillary damage to the First Amendment. Thanks to flagging tools provided by social media platforms, almost anything can be sent to local law enforcement for additional inspection, which results in the following sort of thing, in equal parts absurd and horrifying.

It all started Dec. 14, when local DJ and gay activist Matt Beierschmitt took to Facebook to chastise gays for patronizing a nightclub named ICandy at 254 S. 12th St. Its owner had made headlines in 2016 when he was recorded making disparaging remarks about black people. [Philadelphia journalist Ernest] Owens responded, echoing his sentiments and blasting both ICandy and the Mummers.

"I say, 'F– em,' they will be shown better than told," Owens wrote. "I will just leave it at that. A great reckoning is coming."

Four days later, Owens said, he got a phone call from Detective Lawrence Richardson Jr. of the Police Department's Dignitary Protection and Counter Terrorism Operations unit, informing him that he was being investigated because of his Facebook comment.

"I said, 'What?'" he recalled. "I'm thinking: 'They're calling me about something on Facebook?' Police shouldn't be engaging me over a Facebook post."

But they were. Philly police insisted on speaking personally to Owens about his post. He met them at the unit's headquarters the next day. Once there, the officers said stuff about "see something, say something" and proceeded to question Owens about gun ownership, bomb-making ability, and any plans he might have to harm anyone else. After answering these questions, the police told Owen he was "cleared" and free to go. The officers also told him this was standard procedure police follow when criminal activity is reported.

Except there was no criminal activity. There was only a single Facebook post helpfully forwarded to the police by another Facebook user.

During the interrogation, Owens said, he noticed paperwork listing the name of the man who had complained about his Facebook comment.

That man, James DePre, a saxophone player and leader of the Quaker City String Band, said Wednesday that he emailed Owens' comment to the police after someone sent it to him and after he'd attended a parade-safety planning meeting of officers from the Third and Fourth Districts and community members, including Mummers.

"At that meeting, the police said, 'If you see something, say something.' I don't even know who he is," DePre said of Owens. "'A day of reckoning is coming,'" that was the thing I reacted to. That's what prompted me to send it to the police. If you have a public event and you get a message like that, that stood out to me. So I said, 'Here it is, you can do whatever you want with it.'"

Well, they did what they wanted to with it. This should be a cautionary lesson to social media users. If you send something to law enforcement, they may decide to take away someone's freedom. If something goes wrong during this process, they may also take away someone's life. "Better safe than sorry" is a shitty platitude to deploy after some "see something, say something" do-gooding ends a fellow citizen's life. I don't expect social media users to be experts in sussing out true threats, but they should definitely be more careful about dragging men with guns into the mix over ambiguous words posted during heated discussions.

This doesn't necessarily mean the police are out of line. This is what we pay law enforcement to do: follow up on reported criminal activity. But everything about law enforcement is discretionary, which can result in rights violations or biased response rates. "See something, say something" very rarely results in actionable info, but police are just as invested in the "better safe than sorry" platitude and do what they can to encourage this unfortunate cycle of events.

There's no good fix for this. All that can be offered is an abundance of caution. People making complaints need to recognize the potential severity of a law enforcement response. And law enforcement needs to realize it doesn't need to disrupt a citizen's life just because some internet rando sent them a Facebook screenshot. All in all, this could have gone worse. But even when it goes well, it still has an adverse effect on people who committed no crime but still find themselves surrounded by cops demanding to know about the weapons they own (gun ownership: still legal) and their level of antipathy towards their fellow humans. Non-custodial interviews are bullshit because they often require proving negatives to law enforcement satisfaction while requiring almost nothing from the law enforcement officers asking the questions.

Ernest Owens has made more of this than is strictly necessary, but he's not completely wrong. He may be overstating the effect of this interaction with law enforcement, but he certainly will feel less free to post his thoughts in public forums, especially if those thoughts are critical of others.

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Posted on Techdirt - 17 October 2018 @ 10:45am

Another Massive Credit Reporting Database Breached By Criminals

from the 'opting-in'-by-existing dept

Lots of companies like gathering lots of data. Many do this without explicit permission from the people they're collecting from. They sell this info to others. They collect and collect and collect and it's not until there's a problem that many people seem to feel the collection itself is a problem.

The Equifax breach is a perfectly illustrative case. Lenders wanted a service that could rate borrowers quickly to determine their trustworthiness. This required a massive amount of data to be collected from numerous creditors, along with personally-identifiable information to authenticate the gathered data. The database built by Equifax was a prime target for exploitation. That this information would ultimately end up in the hands of criminals was pretty much inevitable.

But Equifax isn't the only credit reporting service collecting massive amounts of data but failing to properly secure it. TransUnion not only collects a lot of the same information, but it sells access to cops, lenders, private investigators, landlords… whoever might want to do one-stop shopping for personal and financial data. This includes criminals, because of course it does.

From January to June 2018, seven members of [Tony] Da Boss’ gang pleaded guilty to various identity theft charges. In total they had caused about $1.2 million in damage, using stolen identities to buy luxury cars and iPhones and to lease apartments in Charlotte. Both they and their crimes would have been quickly forgotten as garden variety larceny were it not for the way they stole those identities.

Cops alleged Da Boss and his co-conspirators had access to the Holy Grail for any Internet-age scam artist: a surveillance technology that police and debt collectors use to track most of the United States’ 325 million inhabitants via their Social Security numbers, license plates, address histories, names and dates of birth. The mass-monitoring tech, called TLO, is a product of the Chicago-based credit reporting giant TransUnion, which last year had revenues of nearly $1.9 billion. One brochure for the service promises access to a startling amount of personal data drawn from myriad sources: more than 350 million Social Security numbers of dead and living Americans, 225 million employment histories and four billion address records. Add to that billions of vehicle registrations and call records and you have one of the largest commercial surveillance databases in existence.

The only thing surprising about this is that it only resulted in $1.2 million in damage. The database -- originally designed to help hunt down child predators -- promises users a "360-degree profile of virtually any person, business or location in the US." In addition to the wealth of personal and financial data, the database also includes surveillance cam photos and license plate numbers, which makes it even more attractive to government agencies and the occasional criminal.

One of the charged suspects worked for a debt collection firm, selling off personal info to criminals for $100/victim. The rest of the gang's access relied on swiped credentials. TransUnion is making millions authenticating US residents who can't even opt out of its collection. But it's not doing much to ensure only authorized users are accessing its system.

Live by the tech, die by the tech.

In June last year, Postal Service investigator Berkland obtained a warrant ordering Google to hand over all the data related to [the gang's Nest] cameras. The company complied, shipping surveillance footage back, along with personal details of its owners. It’s the first known case in the United States in which a federal law enforcement agency has demanded information from a Nest provider, and it has obvious implications for anyone who has purchased a smart home appliance that contains a camera or a microphone.

Unhappily, TransUnion told Forbes this wasn't the first time criminals have gained access to its TLO database. And it certainly won't be the last, either. The privacy and security of Americans is in the hands of companies who collect this information without their permission and which can seldom be bothered to treat this massive stash of personal info with the respect it deserves.

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Posted on Techdirt - 17 October 2018 @ 3:24am

Massachusetts Supreme Court Looking To Define Where The Fifth Amendment Ends And Compelled Decryption Begins

from the let-a-new-wave-of-'wall-safe'-analogies-wash-over-this-land dept

Another case attempting to define the contours of the Fifth Amendment as it pertains to cellphones and passwords has arrived in the Massachusetts Supreme Judicial Court. The case involves sex trafficking allegations and a phone seized from the defendant at the time of his arrest. Testimony from a person who said she was trafficked suggested the phone seized belonged to the defendant Dennis Lee Jones. The state sought to compel Jones to unlock the seized phone, but this motion was denied by the trial court, resulting in the state's appeal.

While the lower court did express some concern that unlocking devices can result in the production of evidence to be used against the person unlocking it, the standard for compelled password production has nothing to do with the eventual recovery of evidence. All the state* needs to reach is a reasonable certainty the defendant knows the password to the seized device. This is called a "foregone conclusion" -- the defendant "telling" the state what it already "knows:" that the phone belongs to him and he can unlock it. The potential evidence held inside the phone may eventually be used against the defendant, but the Fifth Amendment question isn't about this evidence, but rather the simple act of producing a password, which isn't considered testimonial if the government can tie the phone to the accused.

*Yes, I realize Massachusetts is technically a commonwealth. There's no need to point this out in the comments.

In this case, it appears the state failed to meet that standard. The opinion being appealed says the government hasn't been able to conclusively show the phone belongs to Jones or that he knows the password. It may have shown evidence relevant to the case resides on the device, but that's not enough to move forward with compelled decryption.

In this case, the Commonwealth has established with reasonable particularity that information relevant to the charges against Mr. Jones exists on the LG Phone, and that it is authentic, satisfying two of the three elements of the “foregone conclusion” analysis. For example, the 7119 Number is linked to the LG Phone; online listings for alleged prostitution reference the 7119 Number; and police have possession of text messages from the 7119 Number related to commercial sex acts. In short, the Commonwealth has established independently that information connected to the charged sex trafficking activity is on the LG Phone.

The Commonwealth, however, has not demonstrated with reasonable particularity that Mr. Jones possesses the PIN number for the LG Phone or has access to what that phone contains.


The phone is not registered to Mr. Jones or to his address. A female voice (McNeill’s) answers voice calls to the 7119 Number. The Commonwealth has provided no evidence of Mr. Jones accessing or entering the PIN number into the LG Phone. The Commonwealth does not suggest that any law enforcement officer called the LG Phone and heard Mr. Jones answer the phone. In addition, Mr. Jones has not admitted to owning or controlling the phone. In short, the Commonwealth has offered no evidence akin to the strong evidence offered in Gelfgatt, where the defendant admitted to encrypting (and being able to decrypt) the computers at his home office.

The Commonwealth relies mainly on statements from Ms. Fortin, who lists the 7119 Number in her phone’s contact list as “Dennis,” and claims the 7119 Number belongs to Mr. Jones. I have not seen a statement from Ms. Fortin that shows she witnessed Mr. Jones using the LG Phone, nor did she describe the physical characteristics of the phone (such as model, color, or general appearance) in a way to suggest she has seen Mr. Jones physically use or enter a PIN into the phone. Defendant challenges Ms. Fortin’s credibility. The Commonwealth seems tacitly to acknowledge Ms. Fortin’s credibility issues, indicating in its search warrant affidavit that it seeks access to the contents of the LG Phone to “corroborate or fail to corroborate” the “key aspects of Ms. Fortin’s statement.”

Because it hasn't reached the "foregone conclusion" standard, the state's demand for a password makes this act testimonial.

In seeking to compel Mr. Jones to provide the PIN for the LG Phone, the Commonwealth is asking Mr. Jones to admit that he owns and/or controls the LG Phone, a fact the Commonwealth believes to be true, but does not know, and has been unable to establish independently.

Law prof Orin Kerr, who has written volumes on Fourth and Fifth Amendment issues, has filed an amicus brief [PDF] in this case. Citing his own draft paper [PDF] on the Fifth Amendment and compelled decryption, Kerr's argument mainly focuses on setting the confines of the "foregone conclusion" standard. His brief rejects both the stricter standard suggested by the defendant and lower standard asked for by the government. (h/t ReleasetheKraken)

The defendant argued for "proof beyond a reasonable doubt" he knew the password to the phone. But Kerr points out that's a standard for convictions, not accessing potential evidence.

Due process requires that the government must prove every element of a crime beyond a reasonable doubt because an individual’s freedom is at stake. Assigning such a high burden acts as “a prime instrument for reducing the risk of convictions resting on factual error.”

In contrast, “the basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system[.]” The individual must plead the Fifth and have a court assess the privilege before (often long before) any trial might occur. Although the individual must show that an answer would be incriminating, the individual may not even be a criminal suspect at that time. The Commonwealth could reasonably know only a small part of the evidence that it would later learn before deciding to bring a criminal case against the individual. For these reasons, the trial standard of proof beyond a reasonable doubt standard is not well-suited for the foregone conclusion doctrine.

According to Kerr, obtaining a password only ties the accused to the unlocked device. Whatever is on the phone may help the government prove its case, but it would not be able to use the suspect's compelled cooperation against him in court. It's not much of a protection, but it's something. It would prevent the government from making inferences about the phone's ownership and instead have to rely solely on the evidence found on the phone. The evidence must make the connection on its own without the government's help.

The government argued for a lower standard, one that would allow it to get its motion to compel granted. It wants a "preponderance of evidence" standard applied to "subsidiary facts." With this, the government could use the evidence provided by the victim to meet the standard needed to compel password production without having to prove on its own that Jones owned the phone it's seeking to unlock. Kerr rejects this as well, saying it introduces an evidentiary standard not needed when evidence is still being sought.

Identifying a standard for “subsidiary facts” arises when a trial court must determine what facts to consider to assess whether evidence is admissible at trial. But as explained above, Gelfgatt motions do not involve trial evidence. The only question is whether the Commonwealth can show by clear and convincing evidence that the subject of the order knows the passcode needed to unlock the device. There are no subsidiary facts to consider.


Adopting the Commonwealth’s preponderance standard for “subsidiary facts” would only water down the clear and convincing evidence standard. To see why, imagine a reliable informant previously told an officer that a criminal suspect regularly used one of two phones found in an abandoned car. But there’s a catch: The officer’s memory is hazy about which phone the informant identified. Based on the officer’s uncertain testimony, the trial court concludes that there is a 51% chance that the informant identified a particular phone as the one the suspect regularly used.

Now imagine the Commonwealth obtains a Gelfgatt order, the suspect pleads the Fifth, and the reviewing judge must determine if the Commonwealth has proven the suspect’s knowledge of that phone’s password by clear and convincing evidence. How should the court treat the officer’s uncertain testimony? Under the Commonwealth’s approach, the judge must treat as 100% certain that the informant identified that particular phone as the one regularly used by the suspect. Because the Commonwealth established the identification of that phone by a preponderance of the evidence, the judge would have to assume it as a true “subsidiary fact” and consider whether the identification showed by clear and convincing evidence that the suspect knew the phone’s password. That would make little sense.

Doubt about the existence of subsidiary facts should not be ignored simply because the existence of those facts is more likely than not.

Here's what Kerr believes the standard should be for compelled decryption:

A clear and convincing evidence standard strikes me as a fair approximation of a burden needed to eliminate that advantage. When the government can show by clear and convincing evidence that it already knows the facts implicit in the suspect’s testimonial acts, it is highly unlikely that the government will obtain any trial advantage from the testimony implicit in that act. The clear and convincing standard is sufficient to be confident that the government need not and will not rely on the testimonial act at trial to prove its case.

If that's the standard, it's unlikely the government has met it. It is lacking several establishing facts tying Jones to the phone seized from him during his arrest. If so, it cannot compel decryption.

The standard for compelled decryption is continually shifting. There's no on-point precedent from the US Supreme Court standardizing this across federal courts and every state has its own Constitution to consider as well during state-level prosecutions.

This will have to be taken up by the Supreme Court at some point, because producing passwords may not be technically testimonial if the government can meet the "foregone conclusion" standard, but it does lead to the production of evidence the government would have had access to otherwise. Analogies about wall safes and combinations only go so far when phones contain far more potential evidence than could possibly fit into a physical hole in the wall.

Then again, the Fifth Amendment only guards against self-incrimination. What's on locked devices may be incriminating, but unlocking a device only proves you can unlock it. If this element can't be used against a person in court, the government must still link evidence found to the criminal charges sought without drawing inferences from the compelled decryption itself. In many cases, this act won't prove essential to the government's case, even if the wealth of information unveiled ultimately helps secure a conviction.

Since the lines are still muddy, it may be in law enforcement's best interest to seek outside help cracking cellphones, rather than relying on something some courts may find testimonial, or otherwise determine the government hasn't met its burden to compel decryption. The future is going to filled with cases like these, and there's a good chance courts will need to spend more time discussing the implications of other security measures -- like fingerprints and facial recognition -- in terms of Fifth Amendment protections. For now, though, there's a poorly-defined standard making life more difficult for everyone involved in the judicial process to determine what can or can't be done without violating rights.

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Posted on Techdirt - 16 October 2018 @ 3:41pm

FBI Releases Guidelines On Impersonating Journalists, Seems Unworried About Its Impact On Actual Journalists

from the whatever.-at-least-it's-not-harming-investigations.-yet. dept

The FBI's impersonation of journalists raised questions about its investigative activities, none of which the FBI felt like addressing. An Inspector General's investigation of FBI investigations using this tactic found that it was generally a bad idea, but not an illegal or unconstitutional one. Prior to the investigation, the FBI apparently had no clear policies governing this form of impersonation, which it used to snare a school-bombing suspect.

Following the report, a policy was put in place that added some additional layers of oversight but didn't indicate the obvious downside of impersonating journalists: that the people the FBI wants to investigate are going to do a lot less talking to anyone they don't know, which includes journalists attempting to document newsworthy events that might contain criminal activity.

The FBI blew it with one of its other impersonation efforts. As Camille Fassett reports for the Freedom of the Press Foundation, a more recent effort may have put a serious damper on its fake news(person) efforts.

In an even more disturbing incident in 2015, FBI posed as a documentary filmmaker crew in order to gain the trust of a group of ranchers engaged in an armed standoff with the government. The fake crew recorded hundreds of hours of video and audio and spent months with the ranchers pretending to make a documentary.

The FBI tacitly acknowledged these efforts are great for the short-term, but ultimately harmful to the FBI in the long-term. Notably, it's not because they have a chilling effect on press freedoms, but rather because they undermine trust in the entities the FBI wants to impersonate.

The FBI’s own arguments in the case acknowledge the chilling effect on journalism presented by this tactic. In a motion of summary judgment obtained by Freedom of the Press Foundation, the agency argued that it should not be required to disclose details about other instances of media impersonation, on the grounds that “it would allow criminals to judge whether they should completely avoid any contacts with documentary film crews, rendering the investigative technique ineffective.”

The Reporters Committee for Freedom of the Press has obtained the FBI's guidelines [PDF] for undercover efforts that involve impersonating journalists. They indicate there are several levels of approval needed, but don't contain details about what's considered by those making these determinations.

The relevant FBI field office must submit an application to the Undercover Review Committee at FBI headquarters and it must be approved by the FBI Deputy Director after consultation with the Deputy Attorney General. The guidelines do not provide any criteria the FBI Deputy Director and/or the Deputy Attorney General must consider when approving these undercover activities.

All well and good, but one wonders how high the potential impact on civil liberties rates on the scale of 0-Impersonation, or whether it's more important the agency doesn't undermine future investigations by setting fire to the reputation of the impersonated entities by opening the Adventurous Reporter dress-up kit once too often.

I don't believe the FBI doesn't care at all about the collateral damage. I'm just reasonably certain it's far more concerned about how often -- and how successfully -- it will be sued. Adding more layers of oversight won't necessarily steer agents away from questionable tactics, but it will make it more difficult for plaintiffs to show the FBI carelessly caused damage to their livelihoods by pretending to be the press.

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Posted on Techdirt - 16 October 2018 @ 10:45am

Facebook's Latest Fake News 'Purge' Terminates Several Accounts Known For Their Criticism Of Law Enforcement

from the something-else-that-works-in-theory,-but-is-a-complete-abortion-in-practice dept

Moderating at scale is a nightmare. Anything you do will be wrong. This doesn't mean you shouldn't try. This doesn't mean you shouldn't listen to criticism. Just be aware every move you make will cause unintended collateral damage. Making everyone happy is impossible. Making everyone angry is inevitable.

Mike Masnick's long, thoughtful post -- springing from multiple platforms' booting of Alex Jones -- pointed out two things that seem to get forgotten when discussing social media moderation:

1. Platforms can remove users with impunity without raising legal or ethical issues.

2. This shouldn't prevent us from expressing our concern about how these moderation issues are handled.

This is raising its head again because Facebook's efforts to eradicate fake news and untrustworthy news sources has removed several pages belonging to controversial news sources. For whatever reason, most of these sites are strongly associated with police accountability efforts. Radley Balko listed these sites on Twitter:

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

As part of its purge, Facebook has removed the pages of several police accountability/watchdog/critic groups, including Cop Block, the Free Thought Project, and Police the Police. They've also apparently severely restricted activity for the Photography Is Not a Crime page.

To critics of cop critics, this tweet seemed like hypocrisy. Several quoted an earlier tweet by Balko about platform moderation. That one said:

Private companies like FB and Google have every right to remove content they find objectionable. No one owes Alex Jones a platform.

This is where critics of Balko and others stopped reading. This was the supposed hypocrisy of the anti-Jones, anti-Trump, anti-cop, anti-whatever on full display. But that wasn't the end of the tweet. Here's the rest:

But when politicians demand removal with implied threats, I start to worry. Senators shouldn't be deciding what's offensive.

That's the real issue. When the government starts guiding moderation efforts of private companies, the First Amendment comes under fire. But it seems politicians on both sides would rather see speech they don't like disappear than uphold the Constitution. Case in point, Senator Mark Warner, who took to Twitter to applaud Facebook's purge.

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

Good step by Facebook. Now that Russia's playbook is out in the open, more bad actors are going to take advantage. Social media companies are going to have to continue being proactive in identifying and responding to bad actors using their platforms.

Maybe so, but the vanishing of a handful of cop accountability-focused pages isn't exactly what comes to mind when someone's talking about Russian interference. Encouraging platforms to engage in further moderation may seem innocuous, but the reality of the situation is there is constant pressure -- applied by people like Senator Warner -- for platforms to do more, more, more because some speech they don't care for can still be found on the internet.

The more politicians push for action, the more collateral damage they will cause. They may feel there's no Constitutional problem since they're not directly mandating moderation efforts. But they are harming free speech, if only indirectly at this point.

Certainly Facebook is free to nuke accounts it finds questionable, but each moderation move expands the definition of untrustworthy to encompass entities who present newsworthy items with biased reporting. Anyone using the platform is free to find more balanced reporting. Senators standing back and applauding bad moderation moves helps no one.

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Posted on Techdirt - 16 October 2018 @ 3:34am

DOJ, Trump Decide The Federal Government Needs To Give Chicago The Police Department It Doesn't Want

from the Judge-Dredd-appointed-to-advisory-role dept

In a move that's tone deaf if nothing else, the DOJ is going to court to block a consent decree put in place to overhaul Chicago's unconstitutional policing. This announcement comes days after a jury convicted Chicago police officer Jason Van Dyke of second-degree murder for killing 17-year-old Laquan McDonald. He was also convicted of 16 counts of aggravated battery -- one count for each bullet he fired at the teen as the teen walked away from him.

This also follows more tone-deafness from the "law and order" presidency. Trump's speech to a law enforcement convention contained several comments about Chicago and its perceived police problem. But the problem Trump sees is police not policing hard enough. Trump wants stop-and-frisk brought back -- one of the key modifications contained in the consent decree.

Stop-and-frisk programs encourage unconstitutional stops. Just ask the NYPD, which saw its program changed drastically following a lawsuit brought against the city. Police officials and then-mayor Mike Bloomberg promised a dramatic spike in crime if officers weren't allowed to engage in suspicionless stops/frisks. This never materialized. Crime went down across the board.

Trump thinks a return to unconstitutional practices will solve Chicago's violent crime problem, but there's no evidence out there that provides a basis for this belief. Violent crime is already declining in Chicago, even without unconstitutional stops. What Trump wants is something people in Chicago don't want. And that includes the people who matter -- like Mayor Rahm Emanuel.

Mayor Rahm Emanuel said he welcomes federal reinforcements — in the form of more ATF, DEA and FBI agents — to “take down gang leadership” and stop the “drug trade.”

But that’s not the kind of help Donald Trump is offering. Returning to the more intensive “stop-and-frisk” procedures would run contrary to Chicago’s ongoing effort to repair shattered public trust between citizens and police, the mayor said.

“The failed policies he’s talking about have no place for a city that’s working together with communities about how to build — not only trust, but a collaborative and cooperative relationship,” the mayor said Monday.

“So, while resources are always welcome, the idea of what President Trump is talking about is not only not welcome — it’s antithetical to what we’re working on, and that is about a strong, pro-active, professional police department.”

Nonetheless, the DOJ will try to block the consent decree that might rebuild some of the trust the Chicago PD has thoroughly destroyed over the past several years. Why? Because the president said so.

Following an order from President Trump, Attorney General Jeff Sessions today announced that he is providing more resources for law enforcement in Chicago and filing a brief opposing a proposed consent decree on Chicago police.

The rationale is even worse. According to AG Jeff Sessions, the spike in violent crime in Chicago (which, again, has declined 20% over the last year) is due to police being hampered by the Constitution and not enough respect being shown by the general public.

There is one government institution, and one alone, that has the ability to make Chicago safer—that is the Chicago Police Department. Our goal should be to empower it to fulfill its duties, not to restrict its proper functioning or excessively demean the entire Department for the errors of a few. Make no mistake: unjustified restrictions on proper policing and disrespect for our officers directly led to this tragic murder surge in Chicago.

At a fundamental level, there is a misperception that police are the problem and that their failures, their lack of training, and their abuses create crime. But the truth is the police are the solution to crime, and criminals are the problem. The results of the ACLU settlement in November 2015, as revealed by Judge Cassel’s study, established this fact dramatically, conclusively, and most painfully for the City of Chicago. When police are restrained from using lawfully established policies of community engagement, when arrests went down, and when their work and character were disrespected, crime surged. There must never be another consent decree that continues the folly of the ACLU settlement.

"Unjustified restrictions on proper policing" apparently includes the Fourth Amendment. That's just the beginning of this garbage. From there, Sessions moves on to cite the only study on policing he agrees with -- one that decides correlation equals causation and ties increases in violent crime to a civil rights lawsuit settlement. The study has nothing to say about similar cities undergoing similar modifications to police programs that have not experienced violent crime increases. It's almost as if its authors started from their conclusion and worked backwards.

Sessions loves this faulty study and thinks it provides some sort of scientific basis for encroaching on civil liberties under the guise of making the city safer. But he's wrong about this, just like he's wrong about everything else in his statement.

Zachary Fardon, a former US attorney working in Chicago, says the DOJ's plan to block the consent decree will make things worse for the city and the Chicago PD. The problem isn't Constitutional restraints on policing. The problem is the relationship the PD has with the people it's supposed to protect.

What’s at stake here is not just constitutional policing. Lives are at stake. People are dying. Children are dying. Our city suffers, year after year.

Law enforcement is not the entire solution, but it’s a big part. A consent decree will give our cops support, training and the credibility they need to engage in effective and constitutional policing. A consent decree will give our South and West side citizens greater trust in our officers and institutions, and greater safety in their neighborhoods.

If Sessions spent more time in violence-afflicted neighborhoods, he would know that we still have kids who are growing up more afraid of police than of gangs. When that changes, we mark the beginning of a new Chicago.

The Chicago Tribune's editorial board is even more scathing in its assessment of Jeff Sessions' bumptious interloping:

Thank you for your interest in Chicago’s police consent decree, now in its final stages of development. We are confident your “statement of interest” will be given due consideration by U.S. District Judge Robert M. Dow Jr., who will hold public hearings on the draft agreement later this month.

We have just one question: Where were you in early 2017, when Chicago Mayor Rahm Emanuel pledged to follow through on the consent decree prescribed by the U.S. Department of Justice you took over when the White House changed hands?

Oh, now we remember: You wanted no part of it. You believed then, as you do now, that worrying about the civil rights of suspects gets in the way of fighting crime. Instead of doubling down on the hard work that had been done in Chicago, you tried (unsuccessfully) to torpedo Baltimore’s consent decree, which was then at this same public hearing stage.

If citizens don't trust the police, they won't report crimes, provide testimony, or supply evidence. All of this exacerbates the city's violent crime problem. When they see officers unwilling to do their jobs at all, let alone Constitutionally, they see there's no point in asking them for help. And when they see officers routinely escape punishment for misconduct and excessive force deployment, they begin to believe the cure might be at least as bad as the disease.

As the editorial points out, if Sessions really wanted to solve Chicago's problems, he wouldn't be trying to block a consent decree crafted with an eye on rebuilding destroyed trust. It ends with this extended middle finger.

Chicago doesn’t need or appreciate your drive-by assessment.

Trump and Sessions both believe the problem with American policing is that officers aren't being given the respect that is their God-given right. That's the beginning and end of it. The Constitution is just standing in the way of enforcing the law. Both are telling law enforcement agencies what they want to hear: that they're persecuted and misunderstood. Not a single member of this administration is willing to tell them what they need to hear: that destroyed trust takes time to rebuild and it can never be restored by engaging in the same behavior that destroyed it.

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Posted on Techdirt - 15 October 2018 @ 1:40pm

A Decade's Worth Of Meth Convictions Overturned Due To Drug Lab Employee's Misconduct

from the putting-'crime'-back-into-'crime-lab!' dept

Massachusetts prosecutors are seeing a bunch more Drug War wins turned into losses by drug lab misconduct. Annie Dookhan, a drug lab technician, falsified countless tests, ultimately resulting in the overturning of more than 20,000 convictions. Dookhan was valued for her productivity, but no one above her bothered to wonder why she was able to process samples so quickly. Turns out tests go much faster when you don't actually perform the tests.

If that were it, it would have been more than enough indication the nation's crime labs need more oversight and auditing. But it isn't. Another tech at another Massachusetts drug lab is erasing thousands of convictions. Chemist Sonja Farak, an 11-year veteran of the Amherst drug lab, apparently spent much of that time using the substances she was supposed to be testing, turning in falsified test results that landed people behind bars.

The Farak investigation uncovered the drug lab's lack of standards, which included more than allowing an employee to use drugs while on the clock for at least eight of the eleven years she was employed. There's no way of telling how many drug tests might be tainted, not just by employee malfeasance, but by a lack of best practices, like running blanks through testing equipment to ensure new tests weren't tainted by residue left behind by previous tests.

The total number of convictions expected to be thrown out due to Farak's abuse is currently sitting at 7,690 cases. But this won't be the final total. Zach Huffman of Courthouse News Service reports an entire decade's-worth of convictions is being examined.

Expanding relief for a class of drug defendants whose cases crossed paths with a now-disgraced chemist, the highest court in Massachusetts agreed Thursday to throw out nearly a decade’s worth of meth convictions plus all cases from the chemist’s last four years on the job.

The state wants the bleeding to stop at 8,000 cases -- covering only those where Farak signed the drug certificate. But as the court points out in its order [PDF], this isn't just about Farak. It's about the drug lab that protected Farak and the prosecutors that protected the drug lab -- the latter of which included hiding evidence of misconduct from accused drug offenders.

The respondent Attorney General contests the petitioners' proposed remedy, as well as the result suggested by the district attorneys. The Attorney General proposes a different remedy. Based on Farak's admission that she began to tamper with other chemists' samples in the summer of 2012, the Attorney General contends that those defendants whose drug samples were tested between June, 2012, and Farak's arrest in January, 2013, should be offered the opportunity to obtain relief under the protocol established by this court in Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 316-317 (2017) (Bridgeman II).

We conclude that Farak's widespread evidence tampering has compromised the integrity of thousands of drug convictions apart from those that the Commonwealth has agreed should be vacated and dismissed. Her misconduct, compounded by prosecutorial misconduct, requires that this court exercise its superintendence authority and vacate and dismiss all criminal convictions tainted by governmental wrongdoing.

The AG's suggested fix is completely inadequate. The court's final decision covers far more than the limited one-year window of adjacent convictions the AG was willing to toss.

The class of "Farak defendants" includes all defendants who pleaded guilty to a drug charge, admitted to sufficient facts on a drug charge, or were found guilty of a drug charge, where (i) Farak signed the certificate of analysis; (ii) the conviction was based on methamphetamine and the drugs were tested during Farak's tenure at the Amherst lab; or (iii) the drugs were tested at the Amherst lab on or after January 1, 2009, and through January 18, 2013, regardless of who signed the certificate of analysis.

It is impossible this is the only state where this sort of misconduct has occurred. Testing drug samples is like any other job -- people will cut corners. But it also offers something for those with drug problems and those seeking to personally profit from their employment. Something other jobs don't offer: unfettered access to controlled substances. People will be people and drugs will disappear and results will be faked. The problem is this employee misconduct costs people their freedom. And from what's been observed in two major cases in Massachusetts, the entities overseeing these labs don't care about the collateral damage until a court forces them to.

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Posted on Techdirt - 15 October 2018 @ 9:34am

Epson 'Security Update' Bricks Third-Party Ink Refills, Opens Up Possibility Of A Competitive Trades Investigation

from the nice-work,-jackasses dept

It's no secret the printer business relies on hefty ink refill markups. The printers are disposable, often cheaper than the ink they come packaged with. But customers aren't usually willing to toss out a printer when it runs out of ink, even if refilling it costs more than replacing it.

And good for them! I mean, at least in an environmental sense. Let's not toss a bunch more non-decomposables into the nearest landfill the moment they refuse do anything until their inkwells are filled. But this does nothing for consumers, forcing them to become unwilling adherents to the sunk cost fallacy, especially after they've paid for a couple of ink refills.

Printer companies know their system is ripoff. They know their customers know it's a ripoff. That's why they engage in shady tactics to ensure this steady stream of revenue doesn't dry up. For years, third parties have offered compatible ink refills. And for years, printer companies have been lying to customers to lock these competitors out of the market.

A couple of years back, HP pushed out a firmware update that made it impossible to use third-party refills. It didn't tell customers the update would do this. It just sent out the DRMbomb and triggered it remotely, saying things about "security" and "protecting customers," even as it eliminated their refill options.

Now, Epson has been caught doing the same thing. Cory Doctorow, writing for the EFF, says an EFF fan spotted the firmware update's refill-bricking capabilities.

[I]n late 2016 or early 2017, Epson started sending deceptive updates to many of its printers. Just like HP, Epson disguised these updates as routine software improvements, when really they were poison pills, designed to downgrade printers so they could only work with Epson's expensive ink systems.

EFF found out about this thanks to an eagle-eyed supporter in Texas, and we've taken the step of alerting the Texas Attorney General's office about the many Texas statutes Epson's behavior may violate. If you're in another state and had a similar experience with your Epson printer, please get in touch.

The last touch is nice. This isn't just a warning about printer company tactics. It's an actual complaint, made to a government authority, about deceptive tactics being deployed by printer companies.

The problem is deeper than simply screwing customers out of cheaper ink options. Sending out feature-crippling firmware under the guise of "security updates" just teaches customers to distrust updates. And this is something consumers can't afford. The NSA-powered ransomware deployed by malicious hackers targeted unpatched hardware and software. When a company tells you it's making its product more secure, but is really doing nothing more than making your purchased product more worthless, it encourages customers to steer clear of recommended updates, even if those might patch vulnerabilities that could be exploited by criminals and state-sponsored hackers.

Then there's the part the Texas AG might be more concerned with: the artificial restriction of competition through deceptively-portrayed firmware updates. There may be violations of actual laws at play here, both in the deception and the anti-competitive practices. Violating the customers' trust may result in reputational damage. An investigation into Epson's business practices -- as is encouraged by the EFF's letter [PDF] -- may result in the loss of something companies find far more valuable than the trust of their customers: actual money.

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Posted on Techdirt - 15 October 2018 @ 3:23am

NYC Prosecutors Accidentally Admit They Use Bail To Deprive Presumably-Innocent People Of Their Freedom

from the gov't-getting-sick-of-whatever-justice-actually-remains-in-the-justice-syste dept

New York City's prosecutors just admitted they use the bail system to punish people for being accused of criminal acts. It's not there to serve its intended purpose: to ensure the return of charged individuals to court, where they're presumed innocent until proven guilty.

The bail system isn't supposed to keep people locked up. But that's the way it's been used for years. Prosecutors often ask for excessive bail amounts. Judges often grant them. The argument made for high bail amounts -- which ensure only the most well-to-do can remain free while awaiting trial -- is that arrested people are flight risks and/or more inherently dangerous than all the people the police haven't gotten around to arresting yet.

The stats don't back up the parade of horribles offered by prosecutors at bail hearings. People have done the math. And this excellent article by the Boston Review compiles the damning numbers.

Statistical studies have continually shown that these concerns are exaggerated; the vast majority of people who are arrested and then make bail do not commit violent crimes while their cases are pending. In fact, according to a study by New York City's Criminal Justice Agency, only 3 percent of “at risk” defendants who make bail are even arrested (let alone convicted) for a violent crime while their initial cases are pending. Similarly, a recent study by the Vera Institute of Justice tracked more than fifty people who were released from court in New York City without having to pay their entire bail—only two were rearrested on a new violent felony charge over the following year.

There goes the "public safety" argument. High bails are supposedly needed because presumptively innocent people are inveterate criminals prone to committing crime after crime until their return to court.

And here comes the "public safety" argument, inadvertently highlighting prosecutors' bail-based bullshit. Grassroot groups, led by RFK Human Rights, are posting bail for hundreds of incarcerated suspects. Money has been raised to post bail for "every woman, sixteen- and seventeen- year-old" currently housed in a NYC jail. The parade of horribles is back and it shows the government isn't interested in allowing the bail system to, you know, work.

[W]hat the reaction to the Mass Bailout shows, in stark contrast, is that the DAs use bail money for very different purposes than it was designed for. They request these bails ostensibly to ensure the accused show up to court; yet now that they are actually being posted, the DAs are crying foul and warning that freeing the accused will endanger “public safety.” They are therefore admitting what so many in affected communities already know to be true: that money bail routinely—and illegally—is set too high for poor defendants to afford, solely for the improper purpose of keeping them in jail before trial.

This isn't just bad optics by the DAs. This is also illegal. The sole purpose of bail, according to New York law, is to ensure the return of the accused to court. It cannot be used to lock accused suspects up for "public safety" reasons. But this reaction by city prosecutors makes it clear they believe they can use the system the way the law says they can't. And this reaction -- as bad and as unlawful as it is -- will probably be replicated anywhere bail relief efforts/bail reforms are deployed.

This just drives the point home that one-half of the justice system gives zero fucks about justice, due process, or any other safeguards erected against government power over the years. All they want is to lock people up and keep them locked up, even if they've never received their day in court.

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Posted on Techdirt - 12 October 2018 @ 3:34pm

Report Shows LA Sheriff's Deputies Engaging In Biased Policing, Performing Tons Of Questionable Traffic Stops

from the so,-you-know,-just-like-lots-of-other-law-enforcement-agencies dept

The LA Times has put together a blockbuster piece showing local law enforcement engaging in some arguably biased policing. Analyzing over 9,000 traffic stops recorded by the LA Sheriff's Department over the last five years, the LA Times noticed some alarming statistics. Latino drivers comprised 69% of the stops and had their vehicles searched two-thirds of the time. Other drivers -- the remaining 31% -- were subjected to searches less than half the time.

Also alarming: most searches were consented to by drivers, suggesting drivers are either unaware of their rights or simply felt pressured into allowing deputies to do what they wanted. It also suggests most stops are fishing expeditions, rather than truly traffic-related, which may put more recent stops on the wrong side of legality, thanks to the Supreme Court's Rodriguez decision. This decision said traffic stops are over when the objective of the stop has been fulfilled -- i.e., the delivery of a citation or warning. Killing time to wait for drug dogs or backup units is no longer permissible if reasonable suspicion has failed to materialize.

The LA County Sheriff's Department likes to brag about the hundreds of kilos of drugs it has seized over the years. But it doesn't have much to say about its apparent targeting of Latino drivers or the fact that these drivers were no more likely to be carrying contraband than races/ethnicities stopped/searched far less frequently.

The whole thing is worth reading, but a couple of details pop out. First, the author of the paper was riding shotgun during what appears to be an illegal traffic stop. Deputies stopped a Mexican man for driving too slow and searched his entire vehicle, including removing part of the dashboard to look for hidden drugs. Nothing appears to have risen to the level of probable cause and the paper's documentation of the stop doesn't include the driver giving his consent to be searched.

The deputies may have had reasonable suspicion to extend the stop, but that's only if you believe a person reacting normally to the presence of several law enforcement officers is inherently suspicious.

The man seemed fidgety and nervous to [Deputy John] Leitelt. With traffic zooming by, the deputy instructed him to get out and walked him to the back of the Volkswagen. Leitelt asked in Spanish whether he was carrying methamphetamine. Heroin? Cocaine? Marijuana? A large amount of cash?

The man repeatedly said no, and his voice and expression remained unchanged — usually a sign, the deputy said later, that someone is being truthful. But Leitelt also thought the man was avoiding eye contact, which he interpreted as an indication of possible deception.

Truthful, but lying. From there, Leitelt discovered a suitcase and searched it, finding normal stuff: clothes and some greeting cards. If you think this may have dissipated the cloud of suspicion, you obviously don't work for the LASD.

Thinking the suitcase could be “a prop,” Leitelt kept going. Using an assortment of prying tools, he and the other deputy popped off a section of the dashboard in search of a hidden compartment traffickers sometimes build.

Luggage is a "prop." Remember that when a government employee says your lack of luggage is suspicious. Stuff you bring with you is suspicious. Stuff you didn't bring with you is suspicious. Your mere existence on a road drug traffickers use is suspicious.

No drugs were found and the driver was free to go. Everyone's time was wasted, along with some tax dollars, because a deputy thought a bunch of normal stuff was "suspicious." The finely-tuned collective instincts of LASD's deputies has resulted in a ton of stops but contraband is found less than 20% of time, according to the LA Times' analysis.

But let's go back to what's claimed to be reasonably suspicious enough to extend a traffic stop past its original intent. Courts are starting to call out cops for claiming anything a driver does during a stop is suspicious, even when one alleged indicator of suspicion is the polar opposite of another indicator stated in another case. Mainly surfacing in drug cases where deputies have managed to find contraband, judges are seemingly a bit less willing to give law enforcement a pass on bad faith assertions.

A suppression motion resulted in some conflicting testimony from Deputy Michael Vann, who received a solid hammering from the suspect's defense attorney.

When the driver, Mario Manjarrez, told Vann he had been visiting family in Los Angeles and pointed toward the city, the deputy saw the gesture as “an anchor point movement,” which he said criminals use to distract officers. In this case, Vann concluded, Manjarrez had been struggling to recall a made-up story about visiting family and pointed toward the city in an attempt to seem more confident.

When the motorist took a step away from the car, the deputy wrote, it was an unconscious attempt at “distancing himself” from what was inside. And the fact that he switched from saying ‘no’ to silently shaking his head when asked if he had methamphetamine or cocaine was reason for Vann to suspect he was carrying the two drugs.

Manjarrez’s lawyer questioned how handing a license over too quickly could be a telltale sign of deception. She noted that Vann claimed in other stops that it was suspicious when drivers were slow and clumsy in handing over their licenses.

And she pointed out that although Vann maintained that Manjarrez’s finger pointing was a sign of a forgotten cover story, the deputy also had said that in other stops he based his suspicions on people who recited their stories too smoothly.

Deputy Vann tried to argue every stop was unique, which was why things that were suspicious in other cases weren't suspicious in this one… or vice versa. The court was not impressed.

U.S. District Judge Philip S. Gutierrez concluded that Vann’s justifications could make any word or movement grounds for suspicion.

“I have doubts about the magical psychological powers of Deputy Vann,” Gutierrez said at a hearing in November. “To me, it’s psychological babble.”

Here's the full version from the linked hearing transcript [PDF], which is even harsher in its assessment of Deputy Vann and his magical law enforcement powers.

The issue becomes -- so he says it -- and I believe the parties mention this. At least six times he says "based on my training and experience." And the other incidents -- for example, if he says, based on my training and experience, the defendant looking up means nervousness or whatever. I'm just giving examples. Then in some other prior instances, based on my training and experience, looking down means nervousness. And then in other cases he says based on my experience looking straight at me is nervousness.

That bears on whether or not the Court should give credibility to his, quote, "training and experience" that it's -- in this particular case. The same applies to "He gave me the license quickly. That means he wants to shorten the stop."

In the other case, "He fumbled and gave it to me, and that gives me some other fact that gives me reasonable suspicion to suspect criminal activity." Or he points in a certain direction in this case which means something and pointing in another case means something else.

And I don't think it's any surprise because I've never seen any testimony like Deputy Vann's before. I mean, to me, as I said before, it's psychological babble. And from my perspective, even without these other instances, I think the government is going to be hard-pressed for me to give credibility to Deputy Vann not only for the psychological babble, because you can turn any stop -- Deputy Vann is adept, I guess. He could turn any stop into a reasonable suspicion that criminal activity is afoot.

But the other clincher for me was his attitude. He has a bad attitude. He had a bad attitude in this court. He was disrespectful. He was short. The public defender was just asking him questions. He didn't need to be disrespectful. The public defender was just doing his job. But he decided he was going to take charge of the cross-examination which he did but it reflected on his credibility as being straightforward.

Perhaps hoping to avoid an adverse precedential ruling covering pretextual stops, prosecutors dismissed charges before a ruling on the suppression motion was handed down.

What's detailed in this excellent report is troubling. The LASD says it doesn't engage in biased enforcement but the stats say otherwise. Deputies may honestly believe they're not singling out Latinos, but somehow that's still who's getting pulled over the most. On top of that, they're far more likely to have their vehicles searched. And from what was observed by the LA Times, deputies don't seem all that concerned about the Constitutionality of the searches they perform. Further, their testimony in court indicates they believe everything is "suspicious." And when everything is suspicious, it's pretty easy to extend stops past their purpose.

Targeting drivers who might not be familiar with their rights or speak English well just greases the wheels for invasive searches. And even with all of this going for them, deputies only find contraband 20% of the time. This doesn't mean 80% of vehicle searches performed by deputies are unconstitutional, but it does mean a not-insignificant percentage of them very likely are.

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Posted on Free Speech - 12 October 2018 @ 9:46am

Another Critic Of Egypt's Government Gets Hit With 'Fake News' Charges

from the thanks-trump dept

Fake news is a handy term deployed by authoritarians to criticize speech they don't like. Since it's such a malleable term, it's been co-opted by a handful of foreign governments as the basis for new laws. We don't have a fake news law here, fortunately, but it's Trump's frequent use of the term that has given it worldwide traction.

Egypt's "fake news" laws comes bundled with lots of other speech-censoring add-ons. Earlier this year, an Egyptian journalist was charged with "spreading false news" and "misuse of a social media account"[!] for exposing state police brutality. The government's evidence against the journalist included account suspensions by US social media companies quite possibly triggered by takedown requests the government had issued.

Egyptian human rights activist Amal Fathy is the latest victim of the "fake news" law, which was tacked onto a sweeping "cybercrime" bill that gives the Egyptian government more direct control of citizens' access to internet services.

Here's how Fathy fell victim to the new cyberlaws:

Last May, Amal Fathy posted a 12-minute video on Facebook in which she described how she had been sexually harassed while visiting her bank.

She also criticised the government for not doing enough to protect women.

She was arrested two days later, and charged with attempting to harm the Egyptian state and possessing indecent material.

Fathy received a two-year suspended sentence and a $560 fine for criticizing her government. Her actions were described by the government as "spreading fake news." The word "news" apparently also covers opinions, which aligns it with the US President's deployment of the term.

Fathy won't be the last person punished for criticizing the Egyptian government. The law is working just the way it was always supposed to, even if it was pitched to residents as something necessary to counter national security threats.

Egypt's government now has even more power to block internet services and directly oversee any social media accounts with large numbers of followers. Critics of the government aren't threatening the security of the nation, but the government is willing to overlook the letter of the law to pursue its true, dissent-crushing spirit.

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Posted on Techdirt - 11 October 2018 @ 1:33pm

NY Legislators Introduce Bill That Would Seriously Curb Law Enforcement's Surveillance Collections

from the take-what-you-want-but-only-keep-what-you-need dept

A bipartisan group of New York assembly members has introduced a bill that doesn't appear to have much of a chance at becoming an actual law. But what a bill it is. If it does receive the governor's signature, it would drastically revamp how the NYPD (and other agencies) handle the massive amount of video and data they collect daily.

A bill introduced in the New York Assembly would prohibit the state from creating any database containing aggregate surveillance data including ALPR, audio, video and facial recognition records. Passage would not only protect privacy in New York; it would also put major roadblocks in front of federal surveillance programs.

Assm.Tom Abinanti (D-Greenburgh/Mt. Pleasant), along with a bipartisan coalition of six assembly members, introduced Assembly Bill 11332 (A11332) on Sept. 19. The proposed law would bar state agencies and departments, and contractors engaged in business with the state, from using any database as a repository of, a storage system for, or a means of sharing facial recognition functionality. I would also prohibit the creation of any permanent repository or storage system for aggregate license plate reader data records, aggregate audio surveillance recordings, aggregate video surveillance images, or aggregate driver license photographs.

In effect, A11332 would prohibit the creation of any comprehensive database storing surveillance data.

It's an anti-haystack bill. And law enforcement loves its haystacks. The NYPD -- believing itself to be a globetrotting intelligence agency -- loves them more than most. Law enforcement agencies have obtained massive boosts in collection power over the years, thanks to omnipresent surveillance cameras, automatic license plate readers, and cheap digital storage. Biometric data has recently been added to the mix, promising to turn dumb cameras into suspect-spotting field agents.

The tech has advanced ahead of best practices or privacy impact assessments. The new hardware is presumed legal until proven otherwise and is often obtained and deployed with minimal oversight and zero public input.

This bill doesn't outlaw the continued hoovering of data points/camera footage but it does ensure the massive amount collected will have to be quickly sorted into hay and needles by restricting stored collections to stuff pertinent to ongoing investigations.

The immediate local impact would be immense. But expect the feds to start inserting themselves into local legislating. This bill would make it impossible for federal agencies to accomplish their dream of connected, nationwide databases of license plate photos and biometric data.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of A11332 would hinder the creation of federal surveillance databases. Information that is never retained by the state cannot be shared with the feds.

If the bill passes unamended, law enforcement may be able to retain more than it should by making broad claims about everything in its collections being somehow relevant to investigations. If these legislators are serious about making this law do what it says it does, they will need to tack on some reporting requirements that will force agencies to go on the record about their data retention practices.

While it's true law enforcement agencies can't possibly know what data/footage will prove useful in future investigations, that shouldn't be used as an argument for retaining everything collected. Legitimate privacy concerns should not be subordinated to New York law enforcement's fear of missing out.

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Posted on Techdirt - 11 October 2018 @ 9:46am

Cool Cool Cool Oversight Office Says It's Incredibly Easy To Hack The Defense Dept.'s Weapons Systems

from the just-a-hack-away-from-a-dystopian-hellscape dept

holy_shit(1).pdf [PDF]:

In operational testing, DOD routinely found mission-critical cyber vulnerabilities in systems that were under development, yet program officials GAO met with believed their systems were secure and discounted some test results as unrealistic. Using relatively simple tools and techniques, testers were able to take control of systems and largely operate undetected, due in part to basic issues such as poor password management and unencrypted communications.

Terrified/horrified yet?

In addition, vulnerabilities that DOD is aware of likely represent a fraction of total vulnerabilities due to testing limitations.

The Government Accountability Office's report contains nearly no good news. Just bad news on top of bad news with the chilling reminder that these are weapons systems so a malicious attack could do more than damage systems or exfiltrate sensitive data. It could actually kill people.

Why is the Defense Department's… um… defense in such shoddy shape? Well, it didn't get that way overnight. It took literally decades for it to arrive at this nexus point of technological advances and laissez-faire cybersecurity oversight.

Multiple factors contribute to the current state of DOD weapon systems cybersecurity, including: the increasingly computerized and networked nature of DOD weapons, DOD’s past failure to prioritize weapon systems cybersecurity, and DOD’s nascent understanding of how best to develop more cyber secure weapon systems. Specifically, DOD weapon systems are more software and IT dependent and more networked than ever before. This has transformed weapon capabilities and is a fundamental enabler of the United States’ modern military capabilities. Yet this change has come at a cost. More weapon components can now be attacked using cyber capabilities. Furthermore, networks can be used as a pathway to attack other systems. We and others have warned of these risks for decades. Nevertheless, until recently, DOD did not prioritize cybersecurity in weapon systems acquisitions.

The GAO points out the DOD has spent more time locking down its accounting systems than its weapons systems, even as the latter has increasingly relied on computer hardware and software to operate. The systems used by the DOD are a melange of commercial and open-source software, which relies on vendors to provide regular updates and patch vulnerabilities. (Unfortunately for the DOD, some vulnerabilities may not have been disclosed to software/hardware vendors by other government agencies like the NSA.) But the DOD gives itself a 21-day window to apply patches and some remote weapons systems may go months without patching because they often need to return from deployment to be patched properly.

The end result is a network of defense systems riddled with security holes. The GAO says it doesn't take much to commandeer weapons of mass destruction.

Test teams were able to defeat weapon systems cybersecurity controls meant to keep adversaries from gaining unauthorized access to the systems. In one case, it took a two-person test team just one hour to gain initial access to a weapon system and one day to gain full control of the system they were testing.

Some programs were slightly more resistant to outside attacks. But they couldn't fight off attacks from insiders or contractors.

[O]ne assessment found that the weapon system satisfactorily prevented unauthorized access by remote users, but not insiders and near-siders. Once they gained initial access, test teams were often able to move throughout a system, escalating their privileges until they had taken full or partial control of a system. In one case, the test team took control of the operators’ terminals. They could see, in real-time, what the operators were seeing on their screens and could manipulate the system. They were able to disrupt the system and observe how the operators responded.

System data could be easily manipulated, resulting in the exfiltration of 100 GBs of sensitive data. Other data was altered by testers, with the alterations going unmolested and unnoticed.

Ready for more horror?

[I]n some cases, simply scanning a system caused parts of the system to shut down. One test had to be stopped due to safety concerns after the test team scanned the system


One test report indicated that the test team was able to guess an administrator password in nine seconds.


Multiple weapon systems used commercial or open source software, but did not change the default password when the software was installed, which allowed test teams to look up the password on the Internet and gain administrator privileges for that software.

And no one at the DOD is learning from their mistakes.

One test report indicated that only 1 of 20 cyber vulnerabilities identified in a previous assessment had been corrected. The test team exploited the same vulnerabilities to gain control of the system. When asked why vulnerabilities had not been addressed, program officials said they had identified a solution, but for some reason it had not been implemented. They attributed it to contractor error. Another test report indicated that the test team exploited 10 vulnerabilities that had been identified in previous assessments.

Other tests by the GAO went "undetected for weeks." DOD employees did not see crashes as possible indicators of malicious attacks, stating that "unexplained crashes were normal for the system." Operators had become desensitized to security warnings, thanks in part to one system that always indicated it was under attack.

This isn't to say the DOD isn't try — dear sweet god in heaven:

One test report indicated that operators identified test team intrusion attempts and took steps to block the test team from accessing the system. However, the test team was able to easily circumvent the steps the operators took. In another case, the test team was able to compromise a weapon system and the operators needed outside assistance to restore the system.

Run silent, run deep.

As testers took over systems and escalated privileges, DOD officials interviewed by the GAO were expressing confidence in their cybersecurity programs. What programs the officials couldn't really say, since assessments appear to be a rarity and those that are carried are skin-deep. They admitted many systems had never been comprehensively tested, either due to the late implementation of penetration testing programs or because tests "would interfere with operations."

The only thing surprising about the report is that the systems weren't already crawling with malicious software by the time the GAO got around to engaging in penetration testing. Maybe state-sponsored hackers are just biding their time, waiting for an opportune moment to take control of US weapons systems. Or maybe the thought of turning a cyberwar into a conventional war isn't that appealing. Directly attacking DOD systems would pretty much be the software equivalent of declaring war, and very few countries are willing to escalate from military-sponsored action to boots on the ground.

But if it's only better judgment holding our enemies back, that's not going to last forever. Better judgment isn't exactly the calling card of several world powers, including our own at the present. The DOD has been told it sucks at security several times over the past 30 years. The message has yet to sink in. The GAO will revisit this years down the road. Perhaps the DOD will fare better the next time around. It certainly can't do worse than it is now.

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Posted on Techdirt - 11 October 2018 @ 3:38am

DHS Investigators Argue The Border Warrant Exception Covers Searches Performed Miles From The Border

from the DHS:-everywhere-you-want-to-be dept

The DHS is back in court, arguing for its "right" to expand border searches to cover the entire country. The case in which Homeland Security investigators are making this dubious claim involves the placement of a GPS device on a truck crossing the Canadian border… which FBI agents then tracked all the way down into California.

The "bust" carried out in Southern California turned up plenty of legal frozen pastries and four bags of a cocaine-like substances known as regular-ass sugar. The FBI posited this was a trial run for actual drugs and chose to take its collected evidence to court, where it was promptly thrown out by the presiding judge. As the judge saw it, tracking a vehicle inland requires a warrant. The "border exception" to warrant requirements can't be expanded to cover searches performed miles from the 100-mile "Constitution-free zone."

The government maintains the judge's opinion is wrong, according to this report by Cyrus Farivar of Ars Technica.

A top Homeland Security Investigations official has told a federal court that it remains the agency's policy that officers can install a GPS tracking device on cars entering the United States "without a warrant or individualized suspicion" for up to 48 hours.

There is no such time limit, HSI Assistant Director Matthew C. Allen also told the court, for putting such trackers on "airplane, commercial vehicles, and semi-tractor trailers, which has a significantly reduced expectation of privacy in the location of their vehicles."

The argument, laid out very briefly in the government's filing [PDF], is basically that DHS policy says this sort of thing is OK, so there's no need to worry about Constitutional protections or precedential Supreme Court decisions.

HSI exercises its border-search authority for the purpose of protecting national security and revenue of the United States. Pursuant to this authority, it is policy that a customs officer may install a GPS tracking device on a vehicle at the United States border without a warrant or individualized suspicion. HSI limits warrantless GPS monitoring to 48 hours, with the exception of airplanes, commercial vehicles, and semi-tractor trailers, which have a significantly reduced expectation of privacy in the location of their vehicles. It is HSI's position that such policy is consistent with the U.S. Supreme Court's decisions in United States v. Jones, 565 U.S. 400 (2012), and United States v. Flores-Montana, 541 U.S. 149 (2004).

It may be HSI's position but it's not the judge's position, nor is it a Constitutionally-sound position. The judge has already determined this inland tracking required a warrant, so simply restating DHS policy isn't going to reverse this decision. The government will probably get a chance to expound on this argument at a later date, but for now, all it's offering is a conclusory reiteration of internal policy. That's not even close to the same thing as an argument supported by caselaw and precedential decisions.

But for the rest of us, the DHS is at least clarifying its stance on the border warrant exception: it can track you anywhere you travel in the country, so long as a) it's within 48 hours of the warrantless placement of the tracking device, or b) the vehicle involved has any commercial purpose. The argument it barely makes still doesn't address the fact there's no current exception for warrantless deployment of GPS tracking devices.

The "border exception" the government claims exists actually doesn't. The law says nothing about border freebies and vehicles crossing the border are, more likely than not, going to travel outside of the area where the border exception is applicable. This is basically the DHS claiming because it can search your vehicle without a warrant at a border crossing, it can search it anywhere else in the US provided your vehicle crossed the US border at some point in the recent past. If the government can somehow convince the court its border protection mandates allow for inland searches, the Fourth Amendment will be null and void.

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Posted on Techdirt - 10 October 2018 @ 1:37pm

New Laws Will Force Transparency On California Law Enforcement Agencies Starting Next Year

from the here-comes-some-of-that-responsibility-that's-supposed-to-accompany-power dept

Starting next year, California law enforcement agencies will finally be subject to a bit more scrutiny and accountability. For years, law enforcement officers have been able to hide misdeeds behind super-restrictive public records laws -- laws so restrictive even law enforcement's best friends (i.e., prosecutors) couldn't see them.

For the general public, this meant near total opacity. For criminal defendants, this meant rarely having the chance to impeach an officer's testimony by offering evidence of past misconduct or routine untruthfulness.

Over the past few years, efforts have been made to roll back the restrictions built into California's public records laws. All of these efforts died on the way to the governor's desk, most riddled with rhetorical bullets fired by California police unions who claimed making this information public would endanger the lives of bad cops.

The status quo -- in place for the last forty years -- is being disrupted. Two bills have been signed by Governor Jerry Brown, creating holes in law enforcement's law-enabled opacity.

Under the law, records involving “personnel, medical, or similar files of disclosure which would constitute an unwarranted invasion of personal privacy” were exempt from the public. Police records often fell into this category, with officer personnel records - such as use of force violations - subject to additional protection under the law.

Now with two new laws, SB-1421 and AB-748, the public has the opportunity to review records that were once exempt from oversight. Under SB-1421, law enforcement agencies are required to provide public access to records related to use of force, sexual assault complaints, and dishonesty in investigations and reporting of a crime. AB 748, authored by Assemblymember Phil Ting (D - San Francisco), supports Skinner’s bill by requiring the release of body camera footage within 45-days of a critical incident with a 30-day delay if a case is still pending.

The state's police unions are still complaining about the new laws, calling the governor's decision "reckless" and "disappointing." But the Peace Officers Research Association of California (PORAC) goes even further, claiming the law requiring the release of body cam footage will encourage bad behavior by the usual suspects: people protected by the First Amendment.

Brian Marvel, President of the Peace Officers Research Association of California (PORAC), representing more than 70,000 public safety members, said AB 748 creates significant problems by doing the following:

It jeopardizes the privacy of witnesses, which in today's society is exceedingly difficult to have them come forward, given the bullying tactics of certain activists groups.


It invites the media to interfere with investigations and prosecutions by contacting witnesses, second guessing determinations, and driving a false narrative regarding an incident, all to sell newspapers and get clicks on their websites.

These arguments are pathetic. Anyone arguing their critics are serving up criticism "for the clicks" has already lost the battle. The best way to combat a "false" narrative is openness and transparency. If law enforcement agencies really wanted to set the record straight following a shooting, they'd proactively dump footage and documents. Instead, these agencies spent years hiding behind the state's public records laws, only making long-delayed appearances to claim people criticizing an officer's actions were wrong and were being misled by public enemy #1, the Fourth Estate.

It's likely good law enforcement officers support this transparency. After all, nothing to hide is nothing to fear, as we've been told when rights are about to be violated. Trust is built through transparency and accountability. Law enforcement agencies have never been fans of either, which has directly resulted in the destroyed community relationships they show so little interest in fixing.

Legislation can start rebuilding the trust law enforcement agencies aren't willing to repair. It's perfectly understandable why they'd be opposed to these bills: they do have something to hide and lots to fear. But they're public agencies, funded by taxpayers and supposedly answerable to those they serve. They haven't been. Not by a long shot. But these new laws -- which go into effect at the beginning of next year -- will force agencies to begin addressing their more problematic employees. In the long run, it will work out better for everyone.

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Posted on Techdirt - 10 October 2018 @ 10:42am

Texas Cops Seize Anti-GOP Sign From Homeowner's Lawn

from the whole-lot-of-stupid-everywhere-you-look dept

Stupid unconstitutional stuff is happening in Texas. "Again?" I hear you ask, irritated but not surprised. "Yes," I repeat. "In Texas, and involving local politicians and law enforcement." "Again?" I hear you say (again) and the circle of commentary life continues uninterrupted.

A resident of Hamilton, Texas, posted a political sign in her front yard composed of a white label board remix of political cartoonist Ann Telnaes' remix of the GOP logo.

Here's the original:

And here's the sign that was, until recently, in homeowner Marion Stanford's yard:

As one does in this age of social media telegraphy, outraged parties brought this to the attention of a local politician with a sizable following -- Texas Ag Commissioner Sid Miller -- who dumped his own petrol on the partisan bonfire by posting it to Facebook and calling it an example of "Democrat sleaze." He also claimed the picture was supposed to be "Judge Kavanaugh's young daughter" -- a claim made without supporting evidence but with the amplification of 738,000 Facebook followers.

Shortly thereafter, Marion Stanford began receiving threats. Unfortunately, this is the predictable part of the backlash. Stanford also received a visit from local law enforcement, which was a bit less predictable. But they weren't there about the threats. They were there about the sign, as the Dallas Morning News reports.

Tuesday evening, she said, police came to her house and said they had received complaints.

“Police told me to remove the sign or they would take it and would arrest me,” Stanford said. “So I let them take the sign.”

This claim has been denied by the city, which issued this statement via the city manager.

The city manager of Hamilton, which is about 100 miles southwest of Fort Worth, denied that police mentioned arrest or forcibly took the sign.

“It’s political season, and a citizen here placed a yard sign that featured a political animal taking an inappropriate position with a young child,” Pete Kampfer said. “A police member visited the owner’s home, and the owner asked the officer to take the sign.”

This denial is more than a little weird. First off, even if officers did not mention arrest, they said something that caused her to hand over the sign to them. The police had no business being there in the first place, so their presence is completely inexplicable… or is at least something the city manager isn't willing to explain.

Second, the whole sentence starting with "it's political season" makes zero sense. "Political season" or no, the sign was protected expression the government had no business interfering with. The addition of "taking an inappropriate position with a young child" suggests the city -- and possibly the police -- are no smarter than the idiot commenters on Sid Miller's page who claim the picture is pretty much child porn. It isn't and only someone hoping to see someone punished by the government for protected speech would make this claim. That group apparently includes the city manager.

This is lawsuit bait. Even if the police did not threaten arrest, officers did visit a citizen to discuss protected expression -- protected expression that ended up being removed by police officers and taken to the station. Whatever the chain of events, it makes everyone involved at the government level look bad. There was no reason to visit, much less take the sign. Even if the homeowner offered to give it up, officers shouldn't have been there to ask the question, much less take her up on her offer.

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Posted on Techdirt - 10 October 2018 @ 3:26am

Government Moves To Seize All Backpage Assets Prior To Securing Convictions

from the civil-asset-forfeiture:-because-proving-your-case-takes-too-much-time dept

The DOJ rounded up the cast and crew from Backpage and threw a 93-count indictment at them. It did this prior to FOSTA's passage -- legislation portrayed as the only way the government could take sites like Backpage down. History is being rewritten to give FOSTA the credit for the Backpage takedown, but the truth is the government didn't need the legislation to target the site. Of course, for all the talk of sex trafficking, sex trafficking is not among the 93 charges the government brought against the site's personnel.

Now that it has Backpage execs facing criminal charges, the government is doing what it can to make sure they can't mount a solid defense. The government is coming after their money via civil asset forfeiture, hoping to lock up their property even if it can't lock up the Backpage site runners.

The complaint [PDF] -- titled "United States of America v. Various Internet Domain Names" -- claims everything the site's personnel owned was obtained through illegal activity, even if it's likely at least some of the assets are completely unrelated to Backpage's income. It also must be noted these assertions are being made prior to anything being proven in the DOJ's prosecution, but will receive far less scrutiny from the judge making the determination on the ultimate ownership of the property.

The complaint also contains a large amount of "surrendered" property, which was apparently handed over voluntarily after the arrest of Backpage execs. This list includes internet detritus such as domain names and bitcoin. There are millions of dollars at stake, scattered across multiple banks located around the world. The DOJ is busy consolidating its purloined fortune in advance of convictions.

This is a bullshit, but completely legal, tactic. In addition to depriving the accused of the finances needed to secure solid legal representation, it also forces them to fight a legal battle on two fronts. The money the defendants no longer have access to won't help them find top lawyers willing to take on the government in both criminal and civil actions.

In addition, the complaint plays small ball to hoover up funds from accounts in the names of Backpage execs' family members. Sure, the governments wants what's in joint accounts or those controlled by significant others, but the decision to empty personal checking accounts of what appear to be the children of the defendants seems unnecessarily punitive.

Here's what listed under Backpage co-founder James Larkin's seizable assets:

$278.73 seized from Bank of America account ‘8225 (“BA ‘8225 Funds” or “Account 22”), held in the name of Troy C. Larkin (“T. Larkin”)

$1,038.42 seized from Bank of America account ‘7054 (“BA ‘7054 Funds” or “Account 23”), held in the name Ramon Larkin (“R. Larkin”)

Then there's some questionable claims about the legality of certain expenditures. These allegations are made to shore up the government's seizure of all funds in certain accounts. The nefarious activities alleged include [re-reads complaint] paying for phone service, internet service, and site backup.

Plaintiff alleges that a substantial percentage of outgoing payments from Account 1 have been payments for the operation of For example, between July and October 2017, funds were wired from Account 1, as following:

a. $570,530 to Verizon Digital Media Services in Los Angeles for services related to the website; and

b. $1,497 to “Backupify,” a company that provided data backup services for Backpage

Linking "Account 2" to "Account 1" -- supposedly as evidence of criminal activity -- the government finds money was moved around to… pay for internet service. The lead-up and denouement are unintentionally hilarious.

Funds from Account 2 were also used to promote and facilitate prostitution. For example:

a. On December 2, 2016, the Netherlands Account transferred $324,055.85 to Account 2;

b. On December 8, 2016, the Netherlands Account transferred $499,970.00 to Account 2;

c. On December 27, 2016, the Netherlands Account transferred $199,970.00 to Account 2; and

d. From March to December 2017, Account 2 paid over $9,000 to “Cox Communications,” an internet services company that Backpage used to facilitate its internet presence and promote its sale of prostitution advertising.

Whatever you may think about Backpage and its execs, you should not be applauding the government's decision to move forward with seizing assets before securing convictions and proving its case in court. This gives the government two shots at these funds -- via civil asset forfeiture and, if this fails but the government secures convictions, via criminal asset forfeiture post-trial.

It's a Congress-ordained scam -- one that separates people from the assets they need to fight criminal charges while they're still under the presumption of innocence. Civil asset forfeiture allows the government to declare inanimate objects "guilty" using a lower standard of proof and could conceivably allow the feds to keep every cent they seized even if the arrested Backpage execs are found innocent. And, while the government can drag out criminal proceedings for as long as it can get away with it, the clock starts ticking immediately on civil forfeiture, forcing defendants already tied up in one court to somehow find a way to fight the proceedings with limited time and funds.

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Posted on Techdirt - 9 October 2018 @ 10:44am

Stupid Law Firm Decides To Threaten Something Awful Over Hot-Linked Hitler Picture

from the fools-for-attorneys:-non-pro-se-edition dept

A stupid law firm supposedly specializing in IP rights enforcement has decided (again!) to jam its dangling appendages into one of the internet's more ferocious hornets' nests. When you're in the business of threatening litigation over hot-linked images (yep), you probably don't pay much attention to the URLs you target.

The law firm of Higbee & Associates should know better than to go to this well twice. But it doesn't. Due diligence doesn't seem to be a priority. If it was, some of its "pre-litigation" specialists might have noticed the firm went after Something Awful in 2015 for using an image from Under the Skin in its review of the movie. Obviously, this was fair use and a little bit of web searching turns up multiple uses of the same image, suggesting it had been made available by the studio for promotional purposes.

You'd think one failure to turn Something Awful (SA) into an ATM would have been enough for Higbee & Associates. Apparently not. Richard "Lowtax" Kyanka -- having taken over SA's legal department after the departure of Leonard "J" Crabs -- received a demand letter from the law firm over the supposedly unauthorized use of a picture of (go figure) Hitler.

The law firm apparently thought the threat letter would result in Kyanka cutting a check to prevent being sued for up to and including $150,000. But the firm's stupidity goes further than simply trying to threaten a site it had failed to threaten successfully in the past. The demand letter references an image not hosted by Something Awful but one posted to a forum thread by an SA member.

Here's Kyanka's take on the legal conundrum posed by Higbee's ridiculous letter.

As you can clearly see, I had been given a bill for nearly $7,000 because somebody on the Something Awful forums linked to an image of Hitler, a file being hosted on the third-party site Imgur. "Now wait a minute Rich 'Lowtax' Kyanka," you may be saying to nobody in particular. "How can you possibly get sued for somebody linking to an image hosted on a third party site?" The answer is simple: because Higbee and Associates exist.

This garbage dicked law firm generates nearly $5 million a year by encouraging photographers to sign up with their company, then performing a reverse image search for anything matching their client's submitted photos. An automated system then flags the suspected offending site, spits out a super scary legal threat based off a template, and delivers it to the site owner. Upon receiving the notice of possible legal action, many victims freak out and pay these idiots the stated arbitrary amount of cash, under the looming threat of being taken to court for $150,000. Higbee and Associates operate one of the biggest dirtbag law firms to ever pollute the internet, preying on fear and dealing in bulk.

Unfortunately, in my 20 years of running this site, I've been forced to brush up on general copyright law, and I damn well know that linking to an image hosted on a third party image site breaks absolutely no law, even if it is digital, lossy compressed Hitler.

Kyanka's immediate response to Higbee's threat letter is both hilarious and profane, mostly simultaneously.

I have an even better idea: I'm not going to pay you a fucking dime and you can go fuck off to hell for eternity because I am absolutely in no way responsible for images hosted by a third party service, in this case Imgur. Go fuck yourselves and prey on some other website that hasn't been around for two decades and knows damn well what their legal responsibilities entail, and what they're responsible for. Your entire law firm is a straight up piece of flaming shit that tries to intimidate folks with EXPENSIVE LEGAL THREATS in the hope that your extortion scheme will work on some of them. I am not one of those people. So I cordially invite you to take your pdf, print it out, and ride it like a sybian until the cows come home. Then I invite you to fuck the cows as well.

The staff at Higbee's was presumably not amused, nor willing to ride threat letter PDFs like marital aids for the rest of eternity. It handed over Kyanka and his angry communications to one of its "pre-litigation" people so they, too, could harvest the vitriol from the seeds the firm had planted. A few more rounds of law firm employees hoping to sound serious and threatening being greeted with disdain, mockery, and creative insults followed.

Finally, Kyanka decided to do the firm's due diligence for it.

Oh, and since I'm such a swell guy, I'll send you a little graphic explaining Imgur's copyright and linking policies, which clearly dictates the copyright responsibility for each and every image is the sole responsibility of the individual who uploaded it. I'm sure it was just a freak accident that you guys somehow missed the literal first search result for "copyright law and internet image links Imgur," but it's not like you guys are lawyers whose sole job is to do such things as required by the law. Here's the link as well; let me know if you require explicit, step by step instructions detailing how to click internet links.

Maybe this finally got through to the Higbee & Associates. There have been no further legal threats issued since this last salvo by Kyanka. This is the way it should be, minus all the unpleasant interactions preceding this. A hotlinked image isn't a violation of anyone's copyright. The violation, if any, was committed by the person who uploaded the image to Imgur, not the forum poster who linked to it. A DMCA notice sent to Imgur should have been the full extent of Higbee's actions, but instead it decided to subject itself to public mockery by handling this like an overeager hobbyist, rather than the capable law firm it imagines itself to be.

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Posted on Techdirt - 9 October 2018 @ 3:06am

Federal Court Dumps Another Lawsuit Against Twitter For Contributing To Worldwide Terrorism

from the legal-definition-of-insanity dept

The lawsuits against social media companies brought by victims of terrorist attacks continue to pile up. So far, though, no one has racked up a win. Certain law firms (1-800-LAW-FIRM and Excolo Law) appear to be making a decent living filing lawsuits they'll never have a chance of winning, but it's not doing much for victims and their families.

The lawsuits attempt to route around Section 230 immunity by positing the existence of terrorists on social media platform is exactly the same thing as providing material support for terrorism. But this argument doesn't provide better legal footing. No matter what approach is taken, it's still plaintiffs seeking to hold social media companies directly responsible for violent acts committed by others.

Eric Goldman has written about another losing effort involving one of the major players in the Twitter terrorism lawsuit field, Excolo Law. Once again, the plaintiffs don't present any winning arguments. The California federal court doesn't even have to address Section 230 immunity to toss the case. The Anti-Terrorism Act allegations are bad enough to warrant dismissal.

Here's what the court has to say about the direct liability arguments:

The FAC [First Amended Complaint] plausibly alleges that ISIS used Twitter to reach new followers, raise funds, and incite violence. It also adequately alleges that Twitter knew ISIS-affiliated users were posting these communications, and that it made only minimal efforts to control them.

Nevertheless, the direct relationship link is missing. Most of the allegations are about ISIS's use of Twitter in general. The relatively few allegations involving Twitter that are specific to the attacks that killed plaintiffs' family members also provide little more than generic statements that some of alleged perpetrators of the attacks were "active" Twitter users who used the platform to follow "ISIS-affiliated Twitter accounts" and otherwise "communicate with others." Nothing in the FAC rises to the level of plausibly alleging that plaintiffs were injured "by reason of" Twitter's conduct. Consequently, the direct ATA claims are dismissed.

The indirect liability route doesn't fare any better:

The FAC does not allege that Twitter was "aware" that it was "assuming a role in" the terrorists' attacks in Europe. See id. It does not allege that Twitter encouraged ISIS to carry out these attacks or even knew about them before they occurred. At most, the FAC alleges that Twitter should have known ISIS was planning an attack and that it ignored the possible consequences of letting terrorists operate on its platform. That is in effect an allegation of recklessness, but JASTA [Justice Against Sponsors of Terrorism Act] requires more. Although plaintiffs are correct that Congress referred in its statement of findings and purpose to those who "knowingly or recklessly contribute material support or resources" to terrorists, JASTA § 2(a)(6) (emphasis added), the plain language of Section 2333 reaches only those "knowingly providing substantial assistance." 18 U.S.C. § 2333(d)(2). This clear statutory text controls.

There's no plausible conspiracy claim either. If this argument was given credence by the court, Twitter would be a co-conspirator in any criminal activity carried out by its users.

Nothing in the FAC establishes an agreement, express or otherwise, between Twitter and ISIS to commit terrorist attacks. Plaintiffs point to Twitter's terms of service that every user is subject to, but while that clearly is an "agreement," it is hardly relevant to a terrorist conspiracy. No other plausible agreement is mentioned in the FAC.

The plaintiffs are given one more chance to amend their complaint, but these are allegations that can't be massaged into victorious arguments. The problem that continues to be talked around in these lawsuits is that you cannot hold a social media platform responsible for the actions of its users. If the plaintiffs drop the ATA arguments, they're just going to run into Section 230 immunity. While the acts of terrorism were horrific and drastically affected the lives of the families of those killed, suing Twitter, Facebook, et al over these acts doesn't do anything for the plaintiffs but take time and money away from those who've already lost loved ones.

I'm not suggesting the law firms engaging in these lawsuits are lying to plaintiffs about their chances or encouraging futile litigation. I certainly would hope they aren't engaged in any of the above because that would mean they're preying on hurting people to earn income. But this steady stream of lawsuits -- much of it emanating from two law firms -- seems to suggest a level of intellectual dishonesty that's especially unseemly given the underlying circumstances.

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Posted on Techdirt - 5 October 2018 @ 3:41pm

Philly Cops Face Criminal Charges For Performing An Illegal Pedestrian Stop


Weird stuff is happening in Philadelphia. Things have changed drastically since Larry Krasner became District Attorney. Anyone who enters this office and immediately earns the undying hatred of the local police union is probably someone actually serious about accountability.

Right after taking office, DA Krasner secured 33 resignations from prosecutors and staff who weren't willing to get on board with his reform efforts. He went after the bail system, pointing out it did little else but ensure the poorest Philadelphians spent the most time in jail while still presumably innocent. Then he pissed off the police union by daring to tell incoming police cadets force deployment -- especially deadly force -- is a power to be used only when necessary and handled with the utmost of respect.

Accountability INTENSIFIES. A bogus pedestrian stop performed by two cops has led to [rubs eyes in disbelief] the arrest of the two cops who performed the stop. (h/t Max Marin)

The statement [PDF] issued by the DA's office says two Philly PD officers, Matthew Walsh and Marvin Jones, stopped a citizen for "apparently using narcotics." This citizen filed a complaint, resulting in an Internal Affairs investigation.

The narrative delivered by the two cops on their report was undone completely by video obtained by Internal Affairs.

Based on video surveillance recovered during the course of the IAD investigation, Police Officer Walsh and Police Officer Jones could not have seen the citizen "apparently using narcotics." In addition, the citizen was fully compliant at the time of the stop. Moreover, the search of the citizen (which resulted in the removal of a prescription pharmaceutical from the citizen's pants pocket) was not noted on the "Vehicle/Pedestrian Investigation Report" prepared and submitted by the officers.

Normally this sort of behavior would result in a halfhearted investigation and officers being cleared of any wrongdoing. In extreme cases, someone might be suspended with pay. Lies and illegal stops rarely result in anything more than stern words and civil rights lawsuits. They almost never result in the arrest of the officers involved.

But not here. Officers Walsh and Jones have both been arrested and charged with criminal conspiracy, false imprisonment, tampering with records, obstructing administration of law, and official oppression. Rather than force the citizen to fight this abuse in court, the DA's office has taken steps that will result in far more deterrence of future unconstitutional policing by making it clear abusive actions will be punished severely.

Unbelievably, there's more. Another near-impossibility was achieved only a few weeks earlier.

Today, Philadelphia District Attorney Larry Krasner announced that the Philadelphia District Attorney’s Office is charging former 15th District Philadelphia Police Officer Ryan Pownall with Criminal Homicide (18 Pa.C.S.A. § 2501), Possession of an Instrument of Crime (18 Pa.C.S.A. § 907), and Recklessly Endangering Another Person (18 Pa.C.S.A § 2705). Pownall voluntarily turned himself in today.

The Investigating Grand Jury (IGJ), whose members completed a review of the evidence and events leading up to the shooting death of David Jones, recommended that the Philadelphia District Attorney’s Office (DAO) issue charges against Pownall.

Officer Pownall shot David Jones in the back three times while he was running away from the officer. Jones was carrying a gun, which Pownall found during his search of Jones, but following a brief altercation, Jones tossed his weapon away and ran from Officer Pownall. Perhaps Pownall could have justified his actions (or attempted to) if he felt Jones was still carrying his gun, but his own statements to responding officers made it clear he'd seen Jones throw his weapon away before running. Video recovered from the scene showed Jones was unarmed, never turned towards Officer Pownall or acted in a threatening manner at any point during his brief flight.

As the grand jury sees it, this killing was completely unnecessary.

The IGJ (Investigative Grand Jury) found that by firing his gun in the direction of traffic, Pownall recklessly endangered other people in his vicinity, that at the time of his flight, Jones was not a danger to anyone and that Jones’s death was not necessary to secure his apprehension.

True, it doesn't take much to secure a conviction from a grand jury. But when the target is a cop, prosecutors -- despite playing on a completely-skewed playing field -- rarely seem to be able to talk grand jurors into returning charges. Officer Pownall is innocent until proven guilty, but he'll get to see firsthand what that presumption actually means once a trial's underway.

This has been a big month for police accountability. Hopefully, this trend continues... and expands much further than one DA's office in Pennsylvania.

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