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Posted on Techdirt - 16 May 2022 @ 03:28pm

NSA Swears On The Body Of Ed Snowden It Will Not Backdoor New Encryption Standard

Maybe it’s occasionally OK to shoot the messenger. You know, maybe one to the knee to help determine whether or not they can be trusted.

The NSA — which has undermined encryption standards in the past — says it won’t undermine the next strain of encryption, one being built to withstand the inevitable arrival of quantum computing.

The US is readying new encryption standards that will be so ironclad that even the nation’s top code-cracking agency says it won’t be able to bypass them.

The National Security Agency has been involved in parts of the process but insists it has no way of bypassing the new standards. 

“There are no backdoors,” said Rob Joyce, the NSA’s director of cybersecurity at the National Security Agency, in an interview.

Pardon my cynicism, but that’s exactly the sort of thing someone planning to backdoor encryption would say. The NSA has backdoored encryption standards in the past, something exposed by the Snowden leaks. And while Snowden’s current residence in a country apparently desirous of instigating World War III looks extremely questionable in hindsight, it doesn’t take anything away from the factual revelations he delivered to the world.

While it’s true the NSA has spent less time agitating (at least publicly) for encryption backdoors than, say, the FBI, its troubling past strongly suggests it should not be taken at its word this time around.

But the threat is real. And if the NSA truly cares about national security, it will do nothing to undermine the new standard. Quantum computing has the capacity to be the pipe wrench that makes security efforts mostly irrelevant. The sooner a new standard can be put in place, the better. If the NSA can help achieve this more quickly, it should. But it should never be assumed the NSA’s intentions are pure.

The other concerning question is whether the new standard will arrive ahead of expected quantum encryption cracking efforts.

The Biden administration last week unveiled a plan to switch the entire US economy to quantum-resistant cryptography, which will rely on new NIST algorithms, as much “as is feasible by 2035.” 

Joyce, of the NSA, said it was a question of “when, not if.” He is among those who worry U.S. adversaries are stealing and stockpiling encrypted data intended to remain secret for decades or more in anticipation of being able to unlock it when viable quantum computing arrives. China, for one, is pouring billions of dollars of investment into developing quantum computing, according to US researchers.

The tech arms race continues. If the NSA truly cares about the security of the nation, it will stick to its “no backdoors” promise. If it cares more about its own interests, it will find a way to subvert something intended to protect US interests from enemies. And it will justify its efforts by claiming national security is too important a job to be limited by encryption standards capable of withstanding even the NSA’s own encryption-breaking efforts.

Posted on Techdirt - 13 May 2022 @ 07:39pm

NYPD Lawyer Forged Emails, Lied To Courts, Withheld Information From Lawsuit Plaintiffs

The NYPD has long been a stalwart opponent of transparency and accountability. It has spent years trying to rebrand as a national security agency, drafting on former mayor Rudy Giuliani’s unearned reputation as the post-9/11 savior of New York City.

Journalists have noted the NYPD is even more secretive than the CIA and NSA, two agencies whose secrets have only been revealed by leakers. Not even its own oversight can crack this extremely thick blue line that separates the NYPD from everyone else. And its own union has stated the public deserves the silence and opacity it gets because, without it, New York City would become a hellhole overseen by the criminal element.

Rick Pinto, writing for Hell Gate, says at least one member of the thin blue line between transparency, accountability, and (apparently) compliance with court orders has (finally) been kicked to the curb by New York City’s Law Department.

Last week, in an effort to avoid sanctions for failing to turn over evidence, Dara Weiss, the NYPD’s lead lawyer in the cases, was found to have lied to the federal judge and to have forged multiple documents, mocking up fake copies of an email that she had claimed to send, but never had.

Weiss, an 18-year veteran of the New York City Law Department, which represents the City of New York and its agencies in lawsuits, was fired on Friday, according to court documents.

One down, but oh so many to go. Dara Weiss managed to make herself an unavoidable target for removal by brazenly defying court orders and, in the case examined by Pinto, forging emails in an attempt to claim she had actually complied with a court order.

This firing follows months of misconduct by the NY Law Department lawyer. She had been sanctioned five times in recent months by New York courts for refusing to turn over evidence and information requested by plaintiffs in civil rights lawsuits against the NYPD.

The final straw appears to have been an email Weiss forged in response to discovery requests targeting communications sent in response to former Sergeants Benevolent Association president Ed Mullins’ racist tweets. Weiss was ordered to turn over this information by March 3 by Judge Gabriel Gorenstein. Instead of handing over this information, Weiss apparently chose to forge an email showing she had already released this to the plaintiffs.

Gorenstein threatened the NYPD and its lawyers with sanctions for ignoring this order. Weiss tried to avoid this by sending a letter to the judge on April 26, claiming she had sent the info to the plaintiffs. As proof, she offered a PDF screenshot of an email she claimed to have sent to the plaintiffs disclosing the information the court had ordered her to hand over.

What she didn’t do was provide the original email, which plaintiffs claimed they had never received.

This perplexed the dozens of plaintiffs’ lawyers Weiss was claiming to have sent an email to—none of them had received it. That day, Rickner pressed Weiss in emails for evidence that she had indeed offered to meet. On the morning of the next day, April 27, she responded by sending them a PDF file she claimed was a copy of the email. Presumably confused why Weiss would send a PDF as proof she had sent an email, plaintiffs’ lawyers wrote back, asking her to “forward the actual email, as an attachment, so it has the metadata intact.”

Weiss wrote back that afternoon, this time including what she claimed was the text of the email, though not as an attachment with original metadata. But there were peculiar discrepancies between that email text and the PDF that Weiss said she had generated from the email, according to a letter Rickner later wrote to the court. For one thing, an email address was misspelled in the PDF, but appeared correctly in the second email.

The plaintiffs’ forensic expert pressed Weiss for the original email in order to examine the metadata. Weiss then claimed to have forgotten to send the original email, which explained why the plaintiffs hadn’t seen it. She called this an “error” but still refused to hand over copies of the draft email so the metadata could be examined.

The forensic expert arrived at this conclusion:

“Saying the email had been sent, when it had not been, was almost certainly not an accident.”

If this analysis is correct (and there’s nothing indicating it isn’t), Weiss not only lied to counsel representing those suing the NYPD, but also lied to the federal court itself. After the New York City Law Department’s request to meet with the judge in private to discuss this issue was rebuffed by the court, the Law Department did the next best thing: it fired the lying lawyer.

“This Office takes this matter very seriously and does not tolerate such conduct under any circumstances,” Miller wrote. “As a result, this attorney’s employment has been terminated. We sincerely apologize to the Court and all the parties for the inconvenience this has caused.”

That ends Weiss’s 18-year career at the NYC Law Department, during which she handled more than 80 civil rights cases involving the NYPD. But this isn’t her only misconduct. As mentioned above, she has been sanctioned multiple times by courts, including being sanctioned and fined for withholding documents from a plaintiff who was beaten while being detained on Rikers Island.

The good news is the NYPD has one less liar representing its rank-and-file liars. The downside is the New York City Law Department considers this termination to be the end of the line. It apparently has no interest in examining Weiss’s past efforts to see how often she ignored court orders, hid information from plaintiffs, or otherwise abused her position to give some of the most powerful people in New York City a leg up during civil rights litigation.

Much like other government agencies, the Law Department apparently feels riding to the rescue to do the unavoidable after years of apparent malfeasance is a form of accountability. It really isn’t. It’s nothing more than doing the right thing because doing the wrong thing is no longer an option.

Posted on Techdirt - 12 May 2022 @ 08:08pm

Los Angeles Sheriff’s Deputy Allegedly Removed ‘Unauthorized” Sheriff’s Gang Tattoo With A Bullet

The Los Angeles Sheriff’s Department is home to several gangs. Even though the current sheriff, Alex Villanueva, thinks this is up for debate (via a threatened lawsuit against the LA City Council), enough evidence (anecdotal and otherwise) points to deputies forming cliques that turn the Thin Blue Line from defensive to offensive.

Like any gang, the LASD’s gangs subject participants to hazing and an unwritten code of silence. Loyalty to the gang is supposed to surpass loyalty to the sheriff’s department or the public these deputies are supposed to serve. As any gang member can attest to, there is strength in numbers and the LASD’s gangs have managed to survive both a federal investigation and public scrutiny.

And, like any gang, a failure to play by these rules is met with punishment. At best, breaking the rules will result in ostracism. In most cases, though, rulebreakers are subjected to violence. Apparently, LASD deputies who are members of LASD gangs aren’t immune from this immutable fact of gang membership.

And like many gangs, the retaliation is generally known for its brutality, rather than its creativity. Yakuza members lose a finger when they’ve fucked up. LASD gang members lose whatever’s handy when the shit goes down, as Cerise Castle reports for KnockLA.

Deputies with the Los Angeles County Sheriff’s Department attempted to shoot a deputy gang tattoo off of a man during a camping trip in Kern County in 2015. Department sources say the deputies shot the tattoo off because an unauthorized change had been made to the design. All deputy gang tattoo changes must be cleared with deputy gang leadership, several sources told Knock LA.

If you’re a fan of inter-agency ultraviolence, KnockLA has posted a photo of the resulting wound. (Content warning: jfc) If you’re a fan of torture porn, this might be your kink. If not, suffice to say tattoo recipients would probably prefer lasers or harsh acids to alter “unauthorized” tattoos.

Here’s what the much vaunted “training and experience” gets you when you combine camping trips (and, presumably, alcohol) with nonconformance to unwritten rules. The bullet to the ankle apparently followed less violent but presumably equally painful methods of altering the tattoo that had offended this deputy’s fellow gang members. ALLEGEDLY.

The shooting occurred when a group of deputies held down the tattooed man while another fired off several rounds of his off-duty weapon and attempted to burn the design off the man’s ankle with the hot barrel of the gun. When the deputy was unable to burn the tattoo off, he fired the gun directly at the other man’s tattoo, according to a source familiar with the incident. The injured deputy was transported from Dove Springs to the Antelope Valley Hospital in Lancaster in a private vehicle, according to lieutenant Bill Smallwood. 

Lest we be sued by Sheriff Alex Villanueva for reporting on the gang members his department houses, we’ll be using the term “alleged” quite often. Allegedly, the deputy whose ankle was nearly removed by a bullet was allowed to access medical retirement, despite the fact the off-duty deputy had his ankle burnt and shot by other off-duty deputies during this ultra-bizarre, unofficial team-building exercise.

The trigger man, however, is ALLEGEDLY well-liked by the current sheriff — the one who insists there are no cliques/gangs operating under his allegedly inattentive nose at the Los Angeles Sheriff’s Department.

A source familiar with the incident identified Wyatt Waldron of the Lancaster Sheriff’s Station as the deputy who pulled the trigger. Waldron was promoted to sergeant in 2021 under Sheriff Alex Villanueva.

A true man of the (certain) people, allegedly.

Two years after shooting a fellow deputy in the leg, Waldron was given the “Lifesaving Award” by LASD

The shooting happened in 2015. At that point, it was reported as an “accidental discharge.” The LA Times article is headlined “L.A. County deputy accidentally shoots co-worker during camping trip.” The investigation of this incident was handed over to the Kern County Sheriff’s Department, another agency that seemingly has no problem with deputies handing out extrajudicial violence whenever they see fit.

Investigative irregularities are the name of the game, according to this KnockLA report. According to the LASD Inspector General, evidence was mishandled. The gun used to shoot the deputy was transported back to LA in a compartment of a trailer owned by another deputy. This deputy then turned the gun over to a third deputy who finally turned it over to investigators. The deputy who transported the gun then claimed he “couldn’t remember” who handed him the gun or even putting it in his trailer. The deputy who shot Waldron was initially interviewed by the Kern County Sheriff’s Department shortly after the shooting but months later, his statements to the LASD’s Internal Affairs Bureau were inconsistent with his earlier statements. And, despite admitting he had misled Kern County investigators, the LASD’s Internal Affairs Bureau decided not to pursue its investigation into the deputy.

In the end, it’s all deference. Rather than rock the gang-infested boat, the LASD, along with its oversight, decided it would be better to pretend this didn’t happen. And the LASD decided to reward the alleged tattoo shooter with a promotion and a “lifesaving” award that made him appear to be part of the solution to LA’s crime problems, rather than just another criminal destroying what’s left of the Department’s goodwill and trustworthiness.

Posted on Techdirt - 12 May 2022 @ 01:37pm

Kansas Federal Court Says Ten Weeks Of Pole Camera Surveillance Isn’t A Constitutional Violation

Jurisprudence on warrantless long-term surveillance is still all over the place. On one hand, some courts feel anything observable by passersby shouldn’t be off limits to law enforcement officers who haven’t secured a search warrant.

Other courts have determined lengthy surveillance — especially when using cameras that can zoom, enhance, move, and record every minute of weeks of watching — might be a Fourth Amendment problem. In these cases, the inability of officers to perform the same surveillance without raising suspicion from the surveilled appears to be the difference, especially when coupled with the perfect recall recordings can provide.

This ruling [PDF] by a Kansas federal court says 10 weeks of always-on pole camera surveillance doesn’t raise constitutional questions. (h/t Orin Kerr, who notes the First Circuit has been sitting on a possibly precedential pole camera surveillance case for more than a year now. [Not that the case would matter here in terms of circuit precedent, but may have been useful to cite during arguments for/against…])

The underlying criminal offense isn’t the sort of thing most pole camera surveillance cases are made of. No drugs or weapons trafficking. Just some alleged “theft of public money.”

Suspecting that Defendant Bruce Hay had falsely claimed he was disabled to receive disability payments, federal agents surveilled him without a warrant to obtain evidence of his physical capabilities. The agents installed a pole camera on public property across the street from his residence and recorded nearly ten weeks’ worth of footage.

The federal officers were members of the Veteran’s Administration’s Office of the Inspector General. They placed a camera facing Hay’s house that was able to capture his porch, front yard, and driveway. The camera was activated for nearly eight continuous weeks. It was then used intermittently to capture another two weeks of footage from March 24 to May 8, 2017, following the eight straight weeks captured from October 6, 2016 to November 29, 2016.

The camera was motion-activated and could be controlled remotely by OIG agents. They could also control its zoom, pan, and tilt features. The camera did not record audio, but it did allow the VA OIG to record everything seen by the camera for access by agents.

Hay argued that while Tenth Circuit precedent holds that pole camera surveillance isn’t a search under the Fourth Amendment, the Supreme Court’s Carpenter decision (creating a warrant requirement for historical cell site location data) undercut circuit precedent.

Here, just like in Jackson (and Cantu), the pole camera could not view inside Hay’s house; the camera could only capture the front of his residence, an area plainly visible to the public. Under Jackson, then, Hay lacked a reasonable expectation of privacy in the area viewed by the camera, so the pole camera surveillance was not a search under the Fourth Amendment.

Hay does not attempt to distinguish Jackson. Instead, he contends Jackson does not control the outcome of this case after Carpenter v. United States, where the Supreme Court found an expectation of privacy in historical cell-site location records, because Carpenter “upended” Jackson’s reasoning. Hay argues that, under Carpenter and the concurring opinions in United States v. Jones, he has a “reasonable expectation of privacy in his movements over time.” And he urges this Court to find that the prolonged pole camera surveillance here invaded that privacy expectation. While Hay does not expressly use the term, his argument is premised on a “mosaic theory” of the Fourth Amendment, under which law enforcement activities that are not searches in isolation may nevertheless become a search when viewed in the aggregate.

The federal court disagrees. It says there’s no binding precedent that requires the court to read the Supreme Court decisions in Jones and Carpenter as creating a “mosaic theory” capable of covering the surveillance of a home’s entrance. This surveillance doesn’t reveal much about a person’s movements, other than when they leave and when they come back, in contrast to weeks of historic cell site location info (or a car-mounted GPS-tracking device), which reveals plenty about a person’s movements.

And, the court adds, the Supreme Court expressly limited its finding to the cell site location info at hand.

The Carpenter Court also emphasized that its ruling was “a narrow one,” limited to the specific question presented in that case, and it did not “call into question conventional surveillance techniques and tools, such as security cameras.” This Court therefore cannot read Jackson as relying on reasoning that Carpenter has upended.

That’s not to say the implications of Carpenter may not ever become a factor in cases like these. It’s that this circuit (the Tenth) isn’t quite there yet. As it stands now, Hay’s arguments fail.

Hay may well be right that the Tenth Circuit should, in light of Carpenter, reconsider Jackson and broaden the application of Carpenter’s mosaic reasoning to pole camera surveillance. But this Court’s role is to apply Tenth Circuit precedent, not to reconsider it.

This appears to be the court hinting Hay’s arguments might fare better one step up the ladder at the Tenth Circuit Court of Appeals. Then again, the Tenth could simply decide its prior precedent is still the law (of this portion) of the land and boot it back with little to no comment.

Hay’s “mosaic theory” doesn’t apply here, either. The camera watched his house. It did not track his movements beyond that space. While it did give investigators advantages they would not have had if they had engaged on an in-person stakeout, it did not allow them to surveil his movements once he left the house.

The court closes its opinion by again hinting it might be worth exploring at the appellate level.

Hay raises legitimate concerns about the duration of the pole camera surveillance. But the pole camera surveillance in this case does not present the same privacy concerns that animated the majority in Carpenter and the concurrences in Jones. Thus, even applying the mosaic theory, the prolonged pole camera surveillance did not invade any reasonable expectation of privacy.

For now, it’s a loss for Hay and anyone seeking to challenge warrantless pole camera surveillance. But the court here has hinted it may be time for existing circuit precedent to be given a closer examination by the higher court. Hay may not present the best case for overturning precedent, but 10 weeks of nearly uninterrupted surveillance is a better case than most, even if the underlying crime seems a bit underwhelming.

Posted on Techdirt - 11 May 2022 @ 07:59pm

No Absolute Immunity For Sheriff, Prosecutor Who Created False Testimony That Locked Up An Innocent Man For 16 Years

The thing about absolute immunity is it tends to be absolute. Except when it isn’t. This immunity — one that protects prosecutors, judges, and certain politicians — can be stripped, but it happens so rarely it’s little more than a rounding error in the totality of civil rights lawsuits. (Perhaps unsurprisingly, another case involving stripped absolute immunity also deals with Louisiana law enforcement.)

To lose access to this immunity, prosecutors must cross several lines. The prosecutor in this case (brought to us by the Volokh Conspiracy) did exactly that. Louisiana district attorney Scott Perrilloux and Livingston Parish Sheriff’s Detective Marlon Foster crafted a story for a 14-year-old “witness” to testify to in court, resulting in the falsely accused Michael Wearry to be convicted for a murder he didn’t commit.

Here’s part of the lower court’s ruling [PDF], which was handed down in June 2020.

The question presented by Foster’s Motion is whether a Livingston Parish Sheriff’s Office Detective, acting in concert with a local prosecutor, is entitled to absolute immunity for allegedly pulling a 14-year-old boy out of school on at least six occasions to intimidate him into offering false testimony at a murder trial – false testimony concocted wholesale by that detective and prosecutor and carefully rehearsed, the child’s compliance ensured with scare tactics like taking him to view the murder victim’s bloody car.

The detective asked for absolute immunity, claiming the alleged misconduct was entirely related to the prosecution of Wearry. This claim conveniently omitted the obvious fact that the intimidation of the 14-year-old also contributed to (the now-deceased) Detective Foster’s “investigation.”

The ruling against both the detective and the prosecutor dives a little deeper into the allegations, showing just how severe this misconduct was and how it continued even after Wearry’s conviction was vacated (by the US Supreme Court, no less):

Perrilloux and Foster allegedly “made an intentional and deliberate decision to fabricate a narrative . . . in order to procure Wearry’s conviction and death sentence”;

Identified Jeffery Ashton, a 14 year old child who was “subject to juvenile court proceedings at the time and was vulnerable to intimidation by authorities.” Foster “picked him up from school, [drove] him to Perrilloux’s office, and then, without a parent present . . . intimidated him” and “provided [him] with a completely fabricated story to adopt and repeat” that implicated Wearry in the murder;

Foster and Perrilloux included Wearry on a list of people Ashton identified from a photo array, even though “Ashton told them he did not” recognize Wearry and, in fact, “had no personal knowledge connecting Wearry to Walber’s death”;

Foster and Perrilloux “[C]oached Ashton in at least six separate meetings to perfect the falsified story”; Persuaded Ashton that he had previously provided “details about the night of Walber’s murder that Ashton had never actually provided”;

And, after the United States Supreme Court vacated Wearry’s conviction, allegedly instructed Livingston Parish Sheriff’s Deputy Ben Ballard to “coerce Ashton into perpetuating his false testimony,” including “promis[ing] favors in exchange for favorable trial testimony” at the new trial.

At that point, the court had already denied absolute immunity to the prosecutor. In this decision, it denied absolute immunity to Detective Foster.

Foster’s survivors appealed. And the Fifth Circuit Appeals Court — which rarely sees an immunity request it doesn’t like — has affirmed [PDF] the lower court’s judgment.

As the Appeals Court points out, absolute immunity shields prosecutors (and officers hoping to be thought of as prosecutors) from lawsuits predicated on charging decisions. Once these entities start engaging in investigative work, the immunity is no longer absolute. And when they pull the shit these two did, nothing can save them.

We can discern no meaningful difference between the prosecutor’s fabrication of evidence in Buckley and the fabrication alleged here. Both involved, at bottom, a search for false witness testimony for use as evidence. As the Ninth Circuit put it succinctly: “Shopping for a dubious expert opinion is fabricating evidence, which is unprotected by absolute immunity. It follows, then, that acquiring known false statements from a witness for use in a prosecution is likewise fabricating evidence that is unprotected by absolute immunity.” Milstein v. Cooley, 257 F.3d 1004, 1011 (9th Cir. 2001) If anything, the allegations in Wearry’s complaint make out a more extreme conspiracy to manufacture false evidence than the one presented in Buckley.


When Ashton’s repeated statements to the Detective and District Attorney varied from their prescribed narrative, the officials concealed those statements. Ashton did not identify Wearry in a nine-person photo array, but instead identified others in the array. And even when the Detective and District Attorney pointed out Wearry’s photo to Ashton and asked about it specifically, Ashton stated that he did not recognize him. Yet the narrative presented by the Detective and District Attorney included Ashton’s positive identification of Wearry. Thus, while the prosecutor in Buckley shopped for false testimony to support his physical evidence theory, the defendants here falsified a witness’s statements themselves.

Put more succinctly, this is the fabrication of evidence during an investigation, not merely the suborning of perjury at trial. That’s why the pleas for absolute immunity fail… at least for the prosecutor. As noted above, the Fifth Circuit simply says that the detective has no right to avail himself of this immunity that has never been extended to local law enforcement officers during investigations. While it can be obtained when sued over testimony during a criminal proceeding, it is not available when the detective was neither a witness nor a prosecutor.

Immunity denied.

Neither Detective Foster nor District Attorney Perrilloux is owed absolute immunity under the facts alleged in Wearry’s complaint. The Supreme Court has made clear that police officers, even when working in concert with prosecutors, are not entitled to absolute immunity. Nor are prosecutors when they step outside of their role as advocates and fabricate evidence. The facts and actions alleged by the complaint are fundamentally investigatory in nature, and therefore absolute immunity is not warranted.

The only option now is to appeal this decision. But that would require asking the Supreme Court to find in favor of these law enforcement officials — ones the court criticized when vacating Wearry’s conviction. Good luck with that.

Posted on Techdirt - 11 May 2022 @ 01:36pm

China Finalizes Hong Kong Police State By Installing Man Who Led Crackdown On Protests As Its Next Leader

The country that promised to allow Hong Kong to choose its own leadership until at least 2047 is putting the finishing touches on its ahead-of-schedule oppression. Pro-democracy protests greeted China’s incursion into the area, alerting the world to the fact the ultra-profitable region was being invaded by forces indistinguishable from those that had turned China into a quasi-socialist nation by murdering millions of people who disagreed with the government’s means and methods.

Hong Kong never really had a chance. It takes a nation of millions to hold a nation of billions back, but the current Chinese government doesn’t really care what the rest of the world thinks about it or its actions. While pretending Hong Kong was still a democracy, the Chinese government not-so-quietly installed its own leaders and laws, criminalizing pro-democracy activity and bypassing what little was left of Hong Kong’s democracy to put its preferred representatives in charge.

Carrie Lam, a pro-China stooge, was given the reins to Hong Kong. She was very useful to the Chinese government, advancing its laws and efforts without questioning the damage to the electorate she no longer needed to be worried about. The Chinese government then made it clear “police state” wasn’t something theoretical and/or metaphorical by moving up former Secretary of Security John Lee to second-in-command. It also promoted a former police commissioner to fill Lee’s spot.

Lee’s pedigree had apparently impressed his Chinese handlers. Lee was instrumental in the crackdowns on pro-democracy protests, heading up police efforts to enforce Chinese laws written specifically to punish protesters, critics, and dissenters.

To further rig things in its favor, the Chinese government decided its version of “democracy” would only pertain to “patriots” who supported its premature takeover of Hong Kong. Instead of counting votes cast by unhappy Hong Kong residents, the “election” of new officials would be handled by a Chinese-appointed “committee” that would handpick 40 or 90 city legislators, including the most important position: Chief Executive of the region.

Carrie Lam, the useful stooge, approved this move away from anything lightly resembling democracy, claiming it was important that Hong Kong be led by “patriots.” Her period of usefulness appears to be over. Lam’s kowtowing to China managed to set off the region’s largest ever demonstration after she proposed rewriting extradition laws to make it easier for China to disappear Hong Kong residents opposed to its actions. Having failed to live up to the Chinese government’s oppressive standards, Lam is stepping down.

She will be replaced by her second-in-command, John Lee — an official best known for his overseeing of law enforcement brutality targeting pro-democracy protesters. Lee obtained his position thanks to the Chinese government’s recently installed “patriot” committee that allows the puppet government to appoint pro-China legislators and officials.

John Lee, who became the face of the national security law and who oversaw the arrests of dozens of activists and raids on newsrooms, is set to replace outgoing Chief Executive Carrie Lam when she finishes her five-year term at the end of June.

In what the government billed as an “open, just and honest” election, a largely government-appointed, pro-Beijing committee of 1,461 people appointed the next leader for the city’s 7.5 million residents on Sunday. Lee was the only person in the running, in contrast to previous years that saw run-offs between multiple candidates.

Engage in enough intimidation and violence and you can pretend to uphold democratic ideals while ensuring the election process is a forgone conclusion. Lee also supported the revamped extradition bill that would have given the Chinese government the ability to spirit away Hong Kong residents at will. While protests raged, Lee gave the Chinese government what it wants: more violence against protesters and more public proclamations that demonstrators were “radicals” and “terrorists.” For this show of loyalty in the face of widespread condemnation, Lee has been awarded the keys to the region.

The Chinese government will also see its oppressive stock rise with Lee’s appointment. It now has a true loyalists installed, rather than an interim loyalist (Carrie Lam) who failed to demonstrate she could secure the submission of Hong Kong residents.

At the unveiling of his policy manifesto on April 29, Lee emphasized the need to integrate Hong Kong with other economically important Chinese cities. There was no English translation provided, despite English being one of Hong Kong’s two official languages – in striking contrast to most government events to date.

He also vowed to bolster security legislation and introduce “national identity” education. Both proposals have long been controversial, with previous attempts to introduce legislation foiled by protests and pushback – much to Beijing’s frustration.

There will be no independence for Hong Kong. The Chinese government has amply demonstrated it won’t be deterred by mass protests or worldwide condemnation. All that’s left to determine is how much the government can profit from Hong Kong’s position as a center of world commerce… and how long it can retain this position once its pro-democracy proponents have exited the county, either through self-exile or at the hands of John Lee, its new, unelected, thoroughly compromised Chief Executive.

Posted on Techdirt - 11 May 2022 @ 10:55am

Maryland Lawmakers Pass Bill That Mandates ‘Stalkerware’ Training For Law Enforcement

Some (mostly) good news has arrived, courtesy of Hayley Tsukayama and Eva Galperin of the EFF. The Maryland legislature has passed a bill that would require law enforcement officers to be trained to better spot stalkerware deployment and give them a better understanding of applicable laws related to electronic surveillance and tracking.

The bill, S.B. 134, passed unanimously through the Maryland Senate and House of Delegates. EFF thanks this bill’s author, Senator Susan Lee, and her staff for all of their work on this bill. The bill originated from conversations between the Senator’s office and EFF Director of Cybersecurity Eva Galperin, based on her extensive work on “stalkerware”—commercially-available apps that can be covertly installed on another person’s device for the purpose of monitoring their activity without their knowledge or consent. The bill is now on Governor Larry Hogan’s desk. If he either signs it or waives his right to veto, then it will become law.

The EFF has long fought against the proliferation of “stalkerware” — extremely invasive spyware often deployed by disgruntled spouses, significant others, or garden variety miscreants who simply wish to become unseen parasites with the power to eavesdrop on almost all cell phone activity of their victims.

This is a good law, to be sure, and should be adopted elsewhere in the nation. Successfully prosecuting stalking and harassment cases requires knowledge of tactics and software used to perform these acts. The better law enforcement gets at recognizing the digital symptoms of these crimes, the better it will be at generating probable cause for warrants and arrests.

But even with the movement forward, let’s not forget law enforcement’s troublesome past with spyware and the sort of stalking now handled digitally.

For years, law enforcement officials have pushed “stalkerware” as useful options for parents wishing to monitor their children’s internet usage and communications. Tools that provide information to parents about nearly every aspect of device usage have been touted by cop shops, even as those creating these parental versions of stalkerware play fast and loose with all the personal information and communications that have been hoovered up by their software.

Law enforcement officers are notorious domestic abusers. They also have access to databases filled with personal information, which they have used to target women they find attractive or their exes’ new paramours. This is untraceable stalkerware, fully sanctioned by government agencies and seldom subjected to any serious oversight. Cops who abuse databases are more likely to receive wrist slaps than criminal sentences.

The problem with training cops about stalkerware is that it might backfire. Just like some retail employee orientation classes on theft might teach employees how to beat anti-theft systems, teaching officers which stalkerware is the most difficult to detect might result in officers selecting those options to deploy when in possession of significant others’ devices or electronics seized from attractive criminal suspects.

This is not to say officers shouldn’t be trained to recognize stalkerware and use digital symptoms to build criminal cases. But it would be foolhardy to assume this mandated training won’t be misused by some officers who prefer stalking to hunting stalkers and who often tend to disregard the claims of women who approach them for help.

Posted on Techdirt - 10 May 2022 @ 10:51am

Alt Right ‘Journalist’ Who’s Lost Every Lawsuit Over Banned Accounts Files Another Lawsuit Over Banned Accounts

Laura Loomer still thinks she can sue her way back onto Facebook and Twitter. In support of her argument, she brings arguments that failed in the DC Appeals Court as well as a bill for $124k in legal fees for failing to show that having your account reported is some sort of legally actionable conspiracy involving big tech companies.

For this latest failed effort, she has retained the “services” of John Pierce, co-founder of a law firm that saw plenty of lawyers jump ship once it became clear Pierce was willing to turn his litigators into laughingstocks by representing Rudy Giuliani and participating in Tulsi Gabbard’s performative lawsuits.

Laura Loomer has lobbed her latest sueball into the federal court system and her timing could not have been worse. Her lawsuit against Twitter, Facebook, and their founders was filed in the Northern District of California (where most lawsuits against Twitter and Facebook tend to end up) just four days before this same court dismissed Donald Trump’s lawsuit [PDF] alleging his banning by Twitter violated his First Amendment rights.

Trump will get a chance to amend his complaint, but despite all the arguments made in an attempt to bypass both the First Amendment rights of Twitter (as well as its Section 230 immunity), the court’s opinion suggests a rewritten complaint will meet the same demise.

Plaintiffs’ main claim is that defendants have “censor[ed]” plaintiffs’ Twitter accounts in violation of their right to free speech under the First Amendment to the United States Constitution… Plaintiffs are not starting from a position of strength. Twitter is a private company, and “the First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies.”

Loomer’s lawsuit [PDF] isn’t any better. In fact, it’s probably worse. But it is 133 pages long! And (of course), it claims the banning of her social media accounts is the RICO.

The lawsuit wastes most of its pages saying things that are evidence of nothing. It quotes several news reports about social media moderating efforts, pointing out what’s already been made clear: it’s imperfect and it often causes collateral damage. What the 133 pages fails to show how sucking at an impossible job is a conspiracy against Loomer in particular, which is what she needs to support her RICO claims.

The lawsuit begins with the stupidest of opening salvos: direct quotes from Florida’s social media law, which was determined to be unconstitutional and blocked by a federal judge last year. It also quotes Justice Clarence Thomas’ idiotic concurrence in which he made some really dumb statements about the First Amendment and Section 230 immunity. To be sure, these are not winning arguments. A blocked law and a concurrence are not exactly the precedent needed to overturn decades of case law to the contrary.

It doesn’t get any better from there. There’s nothing in this lawsuit that supports a conspiracy claim. And what’s in it ranges from direct quotes of news articles to unsourced claims thrown in there just because.

For instance, Loomer’s lawsuit quotes an authoritarian’s George Soros conspiracy theory as though that’s evidence of anything.

On or about May 16, 2020, Hungarian Prime Minister Viktor Orbán and the Hungarian Government called Defendant Facebook’s “oversight board” not some neutral expert body, but a “Soros Oversight Board” intended to placate the billionaire activist because three of its four co-chairs include Catalina Botero Marino, “a board member of the pro-abortion Center for Reproductive Rights, funded by Open Society Foundations” — Soros’s flagship NGO — and Helle Thorning-Schmidt, former Prime Minister of Denmark, who is “unequivocally and vocally anti- Trump” and serves alongside Soros and his son Alexander as trustee of another NGO, and a Columbia University professor Jamal Greene who served as an aide to Senator Kamala Harris (D-CA) during Justice Kavanaugh’s 2018 confirmation Hearings.

Or this claim, which comes with no supporting footnote or citation. Nor does it provide any guesses as to how this information might violate Facebook policy.

Defendant Facebook allows instructions on how to perform back-alley abortions on its platform.

Loomer’s arguments don’t start to coalesce until we’re almost 90 pages into the suit. Even then, there’s nothing to them. According to Loomer, she “relied” on Mark Zuckerberg’s October 2019 statement that he didn’t “think it’s right for tech companies to censor politicians in a democracy.” This statement was delivered five months after Facebook had permanently banned Loomer. Loomer somehow felt this meant she would have no problems with Facebook as long as she presented herself as a “politician in a democracy.”

In reliance upon Defendant Facebook’s promised access to its networks, Plaintiffs Candidate Loomer and Loomer Campaign raised money and committed significant time and effort in preparation for acting on Defendant Facebook’s fraudulent representation of such promised access to its network.

On or about November 11, 2019, Loomer Campaign attempted to set up its official campaign page for Candidate Loomer as a candidate rather than a private citizen.

On November 12, 2019, Defendant Facebook banned the “Laura Loomer forCongress” page, the official campaign page for Candidate Loomer, from its platform, and subsequently deleted all messages and correspondence with the campaign.

On page 94, the RICO predicates begin. At least Loomer and her lawyer have saved the court the trouble of having to ask for these, but there’s still nothing here. The “interference with commerce by threats or violence” is nothing more than noting that Facebook, Google, and Twitter hold a considerable amount of market share and all deploy terms of service that allow them to remove accounts for nearly any imaginable reason. No threats or violence are listed.

The “Interstate and Foreign Transportation in Aid of Racketeering Enterprises” section lists a bunch of content moderation stuff that happened to other people. “Fraud by Wire, Radio, or Television” consists mostly of Loomer reciting the law verbatim before suggesting Facebook and Procter & Gamble “schemed” to deny her use of Facebook or its ad platform. Most of the “fraud” alluded to traces back to Zuckerberg saying Facebook would allow politicians and political candidates to say whatever they wanted before deciding that the platform would actually moderate these entities.

There’s also something in here about providing material support for terrorism (because terrorists use the internet), which has never been a winning argument in court. And there’s some truly hilarious stuff about “Advocating Overthrow of Government” which includes nothing about the use of social media by Trump supporters to coordinate the raid on the US Capitol building, but does contain a whole lot of handwringing about groups like Abolish ICE and other anti-law enforcement groups.

All of this somehow culminates in Loomer demanding [re-reads Prayer for Relief several times] more than $10 billion in damages. To be fair, the ridiculousness of the damage demand is commensurate with the ridiculousness of the lawsuit. It’s litigation word soup that will rally the base but do nothing for Loomer but cost her more money. Whatever’s not covered by the First Amendment will be immunized by Section 230. There’s no RICO here because, well, it’s never RICO. This is stupid, performative bullshit being pushed by a stupid, performative “journalist” and litigated by a stupid, performative lawyer. A dismissal is all but inevitable.

Posted on Techdirt - 9 May 2022 @ 08:04pm

Cops Are Being Trained By Consultants Who Have Publicly Outed Themselves As Bigots And Far Right Extremists

In news that is altogether so unsurprising it needs a “resigned sob” emoji attached, a Reuters investigation has found that far-right extremists are training cops because of course they are.

Given law enforcement’s beginnings as an entity tasked with ensuring plantation owners maintained their access to free labor, it’s little wonder that cop shops have welcomed racists and fans of authoritarianism into their ranks. This continues even as times (and laws) have changed. America has made halting, often unconvincing moves towards equality. Meanwhile, law enforcement has continued to court people who believe might — and far more often, white — makes right. A majority of law enforcement officers are white males. And that’s why they welcome training from white males who believe white males are still the best people this country has to offer.

On social media, Richard Whitehead is a warrior for the American right. He has praised extremist groups. He has called for public executions of government officials he sees as disloyal to former President Donald Trump. In a post in 2020, he urged law enforcement officers to disobey COVID-19 public-health orders from “tyrannical governors,” adding: “We are on the brink of civil war.”

Rather than regarded warily as some sort of unpredictable animal, Whitehead has been not only welcomed, but also paid handsomely to deliver extremist-soaked “training” to a nation of government employees.

The Idaho-based law enforcement consultant has taught at least 560 police officers and other public safety workers in 85 sessions in 12 states over the past four years, according to a Reuters analysis of public records from the departments that hired him.

Whitehead’s willingness to swim in the mud with fellow bigots has occasionally hurt him. But it hasn’t hurt him often enough or deeply enough. As the Reuters investigation notes, Whitehead was temporarily banned from advertising his training wares by the Washington state training commission, which expressed concerns with training materials Whitehead offered that referred to a turban-wearing officer as a “towel head” and (for who knows what fucking reason) “contained cartoons of women in bikinis.”

Whitehead — being white, ignorant, and an asshole — learned nothing from this experience.

Since then, he said, he has expanded the section of his course that caused that controversy, adding more “pot-stirring” material, including a slide that ridicules transgender people: “Suspect is a gender-fluid assigned-male-at-birth wearing non-gender-specific clothing born Caucasian but identifies as a mountain panda.” Whitehead said such barbs are intended to push back against pressures on law enforcement to espouse left-wing views on gender or race.

That’s a shitty thing to do to people. These are not “left-wing views.” This is simply treating other human beings as human beings. This is nothing more than asking officers to attempt to understand cultures unfamiliar to them or gender identities that may not seem apparent. Respecting these does not reflect poorly on an officer. But they’re trained by asshats like Whitehead to believe it does: that treating anyone who isn’t a cop like a human being is a form of weakness. The “warrior mentality” is a way of life for cops, something drilled into their skulls by those training them and amplified by the federal government’s willingness to give them free access to military surplus gear. Us vs. them, with “us” being cops and everyone else, no matter their race, color, or sexual identity, being the enemy.

Also unsurprising: Whitehead isn’t alone in his far right views and his willingness to let his bigotry color (sorry) his training.

He’s one of five police trainers identified by Reuters whose political commentary on social media has echoed extremist opinions or who have public ties to far-right figures.


One trainer attended Trump’s January 6, 2021, rally at the U.S. Capitol that devolved into a riot, injuring more than 100 police officers. Two of the trainers have falsely asserted that prominent Democrats including President Joe Biden are pedophiles, a core tenet of the QAnon conspiracy theory. Four have endorsed or posted records of their past interactions with far-right extremist figures, including prominent “constitutional sheriff” leader David Clarke Jr. and Proud Boys leader Joe Biggs, who is being prosecuted for his involvement in the Capitol riots.

Cops who claim to respect the rule of law should be steering far clear of extremists like these. Instead, they and their views are embraced. This is evidenced by the astounding number of cops (current and former) and law enforcement officials who participated in the raid of the Capitol on January 6, 2020 in an attempt to overturn a lawful election.

These are fringe figures. There is no debate. Whitehead and the others singled out by this investigation hold views that are not all that far removed from fringe-fondling sovereign citizens. As Whitehead has clearly (but moronically) stated, he believes elected sheriffs should be free to ignore any law they personally feel is unconstitutional. This obviously includes things like vaccine mandates and “sanctuary city” laws. But Whitehead’s belief in the “constitutional sheriff” goes beyond these confines. In his belief, not even the US president can order elected local sheriffs to do anything.

Whitehead is not alone in his extremism or his ability to bend the ears of cops who are likely receptive to his hot takes on race, and also to his belief that police officers should have to answer to no one.

Kansas-based trainer Darrel Schenck teaches firearms classes through his own company as well as through the law enforcement division of the National Rifle Association (NRA), the leading U.S. gun-rights lobby. Schenck has voiced the belief that Democrats are pedophiles, called reports of violence during the U.S. Capitol riots “fake news,” and declared the 2020 election illegitimate, commenting: “election fraud is the real pandemic.”


Police instructor Adam Davis characterized Biden as a “puppet and a pedophile” on Facebook. In other posts, he slammed people who protest racial bias in policing as “pawns” in the “scheme to destroy this nation.”

Davis has worked as a contractor for Street Cop Training, one of the biggest private providers of law enforcement instruction. He spoke at an industry trade conference hosted by the company in October, and he gives lectures to police agencies nationwide. Street Cop Training did not respond to requests for comment.

A lot of entities refused to comment. But these trainers did. And they universally claimed their extremist-aligned social media posts were nothing more than raising innocent questions about government narratives or just poor attempts at humor. They also claimed they were able to separate their personal beliefs and politics from the training they provide to officers.

But law enforcement loves these views. And most officers have no problem with people who associate with Oath Keepers, Proud Boys, bigots, and conspiracy theorists. Those paying for their training overlook concerning background info, like trainers espousing batshit election conspiracy theories or suggesting a lawful election is the government being overthrown.

If this is what cops want, let them shout it from the rooftops. Don’t let them hide behind noncommittal statements about “concerns” or “investigations” that never seem to conclude. Let the would-be authoritarians embrace their worst aspects. But make it public. Don’t let them pretend this isn’t what they want.

If cops want to be coddled by white extremists and bigots who encourage their “us vs. them” beliefs, they can own it. And, in doing so, they will make it clear to the general public who they serve: themselves. Those who haven’t been paying attention can decide whether their Gadsden flag encompasses the jackboots they otherwise worship. And those who have been paying attention can stop trying to meet cops halfway and let them know they’re not deserving of our respect or our tax dollars.

Posted on Techdirt - 9 May 2022 @ 01:34pm

Staten Island District Attorney Used Forfeiture Funds To Secretly Purchase Clearview AI Access

There are several reasons law enforcement agencies would take care not to associate themselves with Clearview.

First off, Clearview is the NSO Group of the facial recognition tech world. Its actions — which begin with scraping data from any publicly accessible website and end with selling its product to whoever expresses an interest — have made it a pariah in a field heavily populated by companies with malfunctioning moral compasses.

Second, Clearview has often overstated — if not actually lied about — its ability to help cops solve crimes. Many of its public statements and advertising pitches have been directly contradicted by the law enforcement agencies mentioned in these claims.

Third, Clearview is facing tons of legal action — not only in the United States, but overseas where privacy laws are much stricter. Law enforcement agencies are often unwilling to get in bed with international scofflaws… at least not publicly.

All of that explains why a district attorney’s office in New York City decided the best way to buy access to this tech was to buy it with off-the-books funds, as Sam Biddle reports for The Intercept.

Public records turned over to the Legal Aid Society in response to its request for information about how the Staten Island DA’s office paid for Clearview included a document titled “Guide to Equitable Sharing for State, Local, and Tribal Law Enforcement Agencies,” which outlines the program and how state entities can make use of it. In a letter sent to the Legal Aid Society and shared with The Intercept, the DA’s office confirmed that federal forfeiture proceeds had paid for its Clearview license.

The Staten Island DA’s decision to become part of the Clearview crew was first reported by Gothamist early last year. This purchase — which had yet to be connected to easily abused forfeiture funds — made this DA’s office an anomaly.

In New York City, the DA’s acquisition of the technology appears to be an outlier. In response to Gothamist’s inquiries, representatives for the District Attorneys of the Bronx, Brooklyn, Manhattan and Queens confirmed that their offices do not have Clearview AI’s software.

And rightly so. No self-respecting law enforcement agency should choose to do business with a company whose collection and storage methods operate in unsettled law and open not only Clearview, but also its customers, to potentially damaging litigation.

The use of forfeiture funds made it possible for the Staten Island DA’s office to secure use of this controversial product without alerting its oversight — or the general public that pays its bills — to this acquisition. One of the many, many problems inherent to asset forfeiture is its ability to provide discretionary funds to government agencies that can be spent without alerting oversight and/or opening up these proposed purchases to examination by taxpayers and their immediate representation.

That this office chose to go this route shows it understood how problematic its acquisition was. If it truly believed Clearview was the best tool for the job, it would have engaged in this purchase more transparently.

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