Last year, the Supreme Court handed down a ruling in a school free speech case that came down squarely, if very narrowly, on the side of the student. The student suing over being kicked off the cheerleading squad for sending a snapchat message saying “fuck school fuck softball fuck cheer fuck everything” prevailed, with the nation’s top court finding her speech, however crude, was protected by the First Amendment.

But it wasn’t a blanket ruling on off-campus speech by students. Schools can still engage in discipline over off-campus speech, but the court suggested they were better off erring on the side of caution than assuming they’re permitted to replace parental supervision in all cases involving off-campus speech. Of particular importance to this case was the government’s interest in providing disruption-free education to other students. The “disruption” claimed by the school in this case was nothing more than a “5-10 minute” disruption of a single class over a period of a couple of days.

The lower courts are now offering their interpretations of this ruling, which created no bright line standard for dealing with off-campus speech. Erring on the side of restraint may be the guideline SCOTUS suggested, but it’s not really a good baseline.

So, we’re getting rulings like this one [PDF] recently issued by the Ninth Circuit Court of Appeals. (h/t Eric Goldman)

In this case, the speech central to the case was objectively far more objectionable than the f-bomb-laden mini-rant delivered by the irritated cheerleader.

For example, in early February 2017, Epple uploaded a photograph in which a Black member of the AHS girls’ basketball team was standing next to the team coach, who was also Black, and Epple drew nooses around both their necks and added the caption “twinning is winning.” In another post, he combined (1) a screen shot of a particular Black student’s Instagram post in which she stated “I wanna go back to the old way” with (2) the statement “Do you really tho?”, accompanied by a historical drawing that appears to depict a slave master paddling a naked Black man who is strung up by rope around his hands. On February 11, 2017, he posted a screenshot of texts in which he and a Black classmate were arguing, and he added the caption “Holy shit I’m on the edge of bringing my rope to school on Monday.” Other posts, although not referencing specific students, contained images either depicting, or making light of, Ku Klux Klan violence against Black people. One post included what appears to be a historical photograph of a lynched man still hanging from a tree; another depicts a Klan member in a white hood; and a third combines the caption “Ku klux starter pack” with pictures of a noose, a white hood, a burning torch, and a Black doll.

So, truly terrible stuff from a bunch of minors who had decided to spend their time engaging with each other’s basest instincts. And that’s not even the worst of it. Other posts used derogatory, racist terms like “gorilla,” nappy ass” and “nigger.”

On the other hand, there was more at stake in this lawsuit. The Supreme Court’s Mahanoy decision involved someone being banned from participating in an extracurricular activity. The plaintiffs here were first suspended, then expelled, prevented from attending school altogether.

Also of interest to this case was the nature of the account. It was not publicly accessible. It was an invitation-only Instagram group composed of Cedric Epple’s closest confidants. Of course, thirteen can keep a secret if twelve of them are dead, as the saying goes. Eventually, the contents of this invitation-only group were made public, resulting in some actual (at least in comparison to the cheerleading case) disruption.

During the weekend of March 18–19, 2017, one of the account’s followers showed multiple photos from that account to the girls’ basketball player who had been depicted with a noose. On Monday, March 20, that student, in turn, shared what she had learned with several other students who had been targeted by the account’s posts. That same day, one of the followers of the account was asked to lend his phone to a student who claimed to need to call her mother, and while this student had the phone, she took it into the restroom, where she and another student took pictures of some of the contents of the yungcavage account. Those photographs were then shared with other students.

As knowledge of the account rapidly spread, a group of about 10 students gathered at the school, several of whom were upset, yelling, or crying. Although the next class period had started, the students “were all too upset to go to class.” The school’s Principal, Jeff Anderson, asked them to come to the conference room adjacent to his office, where they were joined by two of the school’s Assistant Principals, Melisa Pfohl and Tami Benau. Benau stated that she had “never seen a group of students as upset as these girls were.” The school administrators summoned the school’s counselors and mental health staff to join them, and around the same time, some of the students’ parents (who had presumably been contacted by their children) began to arrive.

In the following days, both students behind the account were suspended before being expelled. Students who had knowledge of the posts wished to speak to their instructors about what they had seen, further disrupting already disrupted classes. Some students expressed their unwillingness to attend classes with these students and others reported feeling scared, bullied, or otherwise unable to resume their studies. A rally and an on-campus demonstration also followed these disclosures, with the demonstration culminating with two of the students who were members of the private Instagram group being punched by other students.

The Ninth Circuit says the facts of this case are distinguishable from the Supreme Court’s 2021 decision. Substantial disruption occurred. And that disruption was (apparently) foreseeable, even if the students did take the precaution of limiting access to their racist comments by operating within the confines of a private social media group.

[O]nce Epple’s posts hit their targets, the school was confronted with a situation in which a number of its students thereby became the subjects of “serious or severe bullying or harassment targeting particular individuals”— which Mahanoy specifically identifies as an “off-campus circumstance[]” in which “[t]he school’s regulatory interests remain significant.” As Epple acknowledges, he was expelled on the ground that he had engaged in “bullying” within the meaning of the generally applicable and speech-neutral prohibitions contained California Education Code section 48900.4. Although Epple may be correct that his parents have the primary responsibility for policing his off-campus use of social media, the school’s authority and responsibility to act in loco parentis also includes the role of protecting other students from being maltreated by their classmates. Epple’s conduct here strongly implicated that “significant” interest of the school.

While the Appeals Court is obviously correct it was foreseeable the posts would cause disruption after their targets viewed them, that’s not the same thing as being a foreseeable outcome when the messages were still contained by the boundaries of the thirteen-member Instagram group. So, that seems to be a bit of cart-ahead-of-horse reasoning that suggests the plaintiffs should have known it was inevitable their atrocious Instagram posts would be exposed. If it was so obviously foreseeable, you’d think even a bunch of bigoted minors would know better than to create the content in the first place. Then again, stupid people do stupid things all the time, even when the negative outcomes are blatantly obvious. The court explains it this way:

Epple again emphasizes that he did not ever intend for the targets of his posts to ever see them. But having constructed, so to speak, a ticking bomb of vicious targeted abuse that could be readily detonated by anyone following the account, Epple can hardly be surprised that his school did not look the other way when that shrapnel began to hit its targets at the school. And, as we have explained, recognizing an authority in school administrators to respond to the sort of harassment at issue here presents no risk that they will thereby be able to “punish[] students engaged in protected political speech in the comfort of their own homes.” Epple’s actions had a sufficient nexus to AHS, and his discipline fits comfortably within Tinker’s framework and does not threaten the “marketplace of ideas” at AHS.

In the context of this case, Epple’s speech is not protected. He was not making any larger statement about his allegiance to racist factions or expressing displeasure with societal changes. He freely admitted he made these posts for no other reason than to entertain himself and other members of his group — a recognizably juvenile justification for being ignorant and hateful.

Not protected in this context — which involves the recognition of educational institutions having an obligation to protect students from discrimination and maintain disruption-free learning environments. That makes sense. But the concurrence, written by Judge Ronald Gould, suggests this speech should not be protected in any cases involving students and public schools.

Hate speech has no role in our society and contributes little or nothing to the free-flowing marketplace of ideas that is essential to protect in a school environment. Just as a school cannot be forced to teach hate speech, neither should it be forced to entertain and tolerate within its walls hate speech promulgated by arrantly misguided students. When school authorities take action to root out the persistent echoes of racism that arise from time to time in American society, courts should not stop them, instead allowing racist comments to be rooted out and not deemed protected by the First Amendment. These principles apply with cogent force to hate speech that threatens to dehumanize ethnic or racial groups within our multiracial society.

[…]

In my view, civilized society should not tolerate imagery encouraging hate; government bodies, consistent with the Constitution, can and should be able to take steps to stop it.

Judge Gould may briefly refer to “case-by-case basis,” but his proposal suggests governments replace parents in cases involving off-campus speech, even when the speech does not cause significant disruption of on-campus learning, supposedly for the good of the nation at whole.

His follow-up sentence that ends the next paragraph in his concurrence uses an even broader brush. While most of the paragraph refers to minority students being subjected to hate speech (itself a slippery term with no clear definition), his concluding sentence simply says “government bodies,” which could be read to include any government agency that comes across hate speech. The most charitable reading suggests the judge is still referring to schools. But even so, this would allow schools to directly regulate off-campus behavior — something that may be conducive to rooting out hate speech but is the sort of overreach that has never been considered as an acceptable compromise to accomplish this noble aim.

Leave it to the NYPD to suggest some people’s rights just don’t matter. The NYPD has resisted pretty much every reform effort shoved in its general direction and this one — which would affect questioning of juvenile detainees — is being resisted as well. (“Stop resisting!” only works in one direction, unfortunately.)

Here’s C.J. Ciaramella with more details for Reason:

The City recently reported that a coalition of public defenders, juvenile justice organizations, and other groups are pushing to pass a bill in the next session of the New York Legislature that would require minors speak with a lawyer before they waive their Miranda rights and talk to police.

If such a bill passed, New York would join several other states that have tightened rules for juvenile interrogations in recent years. Both Maryland and Washington passed laws requiring attorney consultations for minors before interrogations. Last year, Illinois became the first state in the U.S. to ban police from lying to minors during interrogations. Oregon followed suit shortly after. 

It’s a simple reform: one that ensures minors receive the same constitutional protections adults do when detained by police. There’s no reason they shouldn’t have these protections. While the rights of minors can sometimes be slightly diminished to ensure things like school safety, their rights when arrested by police officers remain exactly the same as every other American.

All this would do is force the NYPD to give juveniles access to lawyers during questioning — the same demand that can be made by anyone under arrest. The NYPD ain’t having it, though. And, as Ciaramella points out, the statement it gave The City suggests it thinks children should be underserved when arrested, unable to fully utilize their constitutional rights.

“Parents and guardians are in the best position to make decisions for their children, and this bill, while well-intentioned, supplants the judgment of parents and guardians with an attorney who may never have met the individual,” a police spokesperson said in an unsigned email. 

No wonder no one signed this horseshit. Who would want to put their name on such self-interested stupidity?

The NYPD knows lawyers specializing in criminal defense are pretty goddamn good at defending the rights of accused and arrested people. Of course the NYPD doesn’t want anyone qualified to do this important job anywhere near people being questioned, whether they’re juveniles or adults. Pretending its in the best interest of arrestees to get help from people with little to no legal experience works out best for the NYPD and its apparent desire to engage in as much unconstitutional questioning as possible.

It’s not like this is just reform for the sake of reform. It’s the desire to prevent the NYPD from adding to the long list of false confessions and rights violations perpetrated by law enforcement agencies across the nation against minors they’ve arrested. There’s nothing theoretical about the potential harm. There are plenty of real life cases found everywhere in the nation.

Ciaramella highlights just one of them — a case that shows exactly why the NYPD wants children to have access to no one but parents, as well as why this reform effort is sorely needed.

Reason reported in 2021 on the case of Lawrence Montoya, who at the age of 14 falsely confessed to being at the scene of a murder after several hours of being badgered by two Denver police detectives. Montoya’s mother was present for the first part of the interview. She encouraged him to talk and eventually left her son alone in the interrogation room with detectives, allowing them to lean on him until he gave them what they wanted: a flimsy confession constructed with the facts that they had fed to Montoya.

That’s what the NYPD prefers: parents who will likely suggest cooperation is the best route and leave it in the hands of professionals who want to secure confessions and convictions, rather than actually seek justice.

Law enforcement officers have a disturbing propensity for abusing their power. And far too many abuse this power to engage in things entirely unrelated to police work, like browsing databases for information about members of the opposite sex.

When someone with a lot of power expresses an unprofessional interest in someone, the power imbalance makes it extremely difficult for the targeted person to resist these advances. Even in seemingly innocuous cases, it’s abusive, especially when the person making the advances insists on doing so while in uniform and on the job.

This is an issue the Tenth Circuit Appeals Court recently wrestled with: the constitutional contours of a case where the pursuer was a law enforcement officer and the pursued person acted as a liaison for towing companies providing services to the Utah Highway Patrol. It certainly isn’t the sort of case handled regularly by federal courts as the Appeals Court alludes to in the opening of its decision [PDF]. (via Short Circuit)

Today we confront whether the law clearly established that Defendant Utah Highway Patrolman Blaine Robbins violated Heather Leyva’s (“Leyva”) Fourteenth and Fourth Amendment rights by pulling her over without reasonable suspicion to do so and by sending her flirtatious texts about the administration of a commercial towing relationship between her employer and the Utah Highway Patrol. In doing so, we consider the unique relationship between Defendant and Leyva in the context of each alleged constitutional violation.

Heather Leyva and the patrolman interacted frequently. Leyva worked for West Coast Towing (WCT), one of three companies in the Highway Patrol’s Heavy Duty Towing Rotation (HDTR). Leyva was the contact for the towing company and Patrolman Robbins managed the towing rotation. As the court notes, the relationship eventually evolved from a professional one to a personal one.

But it appears the patrolman thought there was a lot more going on than there was. What he saw as reciprocation was actually Leyva trying to preserve the professional relationship that made money for the towing company she worked for.

As the relationship evolved, Defendant’s communications with Leyva extended beyond helping Plaintiff resolve her HDTR questions. He sent dozens of flirtatious and suggestive text messages. She sometimes responded in kind. Plaintiff claims Leyva did so because she feared upsetting Defendant would affect WCT’s access to valuable heavy-duty towing jobs.

Leyva was also pressured by West Coast Towing to resolve what it believed to be unfair assignments that appeared to favor the other two companies in the rotation. Patrolman Blaine insisted nothing was being handled unfairly. The two continued to contact each other, with the patrolman handling most of the flirting duties.

Then things got weird and stalker-ish.

A couple of months after working with each other and after the relationship started to change, Defendant texted Leyva one night around 5:00 p.m. He asked about work-related matters. In response to one question, Leyva told Defendant to “standby” because she was on the freeway. Defendant asked where and said he would pull her over. Defendant now insists this was a joke. Levya told him the milemarker number as she passed it. Defendant asked where she was going. Leyva told him and said she would return in twenty minutes. Based on Plaintiff’s response, Defendant said, “I’ll be waiting 285. You in the what [sic] car. White car.” Leyva never responded.

It was a joke, says the sued officer. Except that he did exactly that later that evening.

Two hours later, Leyva was driving home in a different car at a different location. Defendant spotted her, turned on his lights, and initiated an apparent traffic stop. Leyva pulled over, not knowing Defendant was the driver of the patrol car, and got her identification ready. Defendant said, “I don’t need to see that, just seeing you is enough.” Defendant claims he pulled Leyva over as “a joke between friends.” They spoke for a short time and then went their separate ways.

Well, it may have been a joke but the patrolman was the only one laughing. Leyva told her boss at West Coast Towing that she felt she was being sexually harassed by Patrolman Blaine. Her boss reported Blaine to his supervisors at the Highway Patrol. The Highway Patrol investigated Blaine and determined he was still handling the towing rotation properly but that his conduct towards Leyva was unprofessional. It also determined he had no reasonable suspicion to perform the traffic stop. (Clearly Blaine knew he had no reasonable suspicion to engage in a stop. After all, he insists it was just a joke.) Patrolman Blaine was ultimately demoted and relieved of his towing rotation duties.

The district court examined these allegations and determined the patrolman had not violated any clearly established law, granting him qualified immunity simply because he had found a novel way to violate someone’s rights. It did this despite Patrolman Blaine making extremely stupid arguments like this:

Before the district court, Defendant asserted that Leyva consented to the traffic stop. The district court rejected this argument because “[n]o reasonable citizen would feel free to disregard a UHP vehicle with its emergency lights activated.”

To be fair, the district court also made some stupid determinations when finding in favor of the officer’s “not clearly established” argument:

In making this finding, the district court analyzed whether “the law clearly established that the traffic stop did not constitute a consensual police-citizen encounter.” ROA Vol. II at 147 (emphasis added). But that is not the proper inquiry. Instead, the question is whether Defendant had fair notice that conducting a traffic stop without reasonable articulable suspicion of criminal activity violated clearly established law.

This was so obviously a violation of rights the Tenth Circuit seems bewildered the patrolman would continue to insist otherwise. Just because the lower court blew the call doesn’t make him any less wrong. Every law enforcement officer would know a traffic stop without reasonable suspicion is a rights violation. And this officer knew he was on the wrong side of the law because he freely admitted he did it as a “joke.”

[O]ur reasonableness inquiry requires that an officer observe or have an articulable suspicion of a traffic violation before making a stop regardless of any other subjective motives the officer might have. A reasonable officer in Defendant’s shoes would have known that. Defendant admits he did not possess any reason to stop Leyva when he pulled her over. He never asked for her license or registration. And he issued no citation. He later noticed a cracked windshield but concedes he did not observe or suspect this before stopping Leyva. To him, he stopped Leyva as a “joke between friends.” Because Defendant pulled Leyva over without at least an articulable suspicion of a violation, we conclude that Defendant violated Leyva’s clearly established Fourth Amendment right to be free from an unreasonable seizure.

And that ties into the Fourteenth Amendment claim stemming from the sexual harassment allegations. Again, the Appeals Court says the law was clearly established at the time Patrolman Blaine engaged in his “joke.”

Defendant does not dispute that he engaged in unconstitutional sexual harassment when he stopped Plaintiff. And the law was clearly established at the time that he could not use his state-derived authority as a police officer to engage in sexual harassment.

This heads back to the court that screwed it up during its first pass. It’s a win for Leyva, but it won’t matter much to her. She passed away while the lawsuit was pending, so any payout will be headed to those handling her estate.

But here’s the most fucked up thing about this. And by “this,” I mean qualified immunity. The officer admitted he violated Leyva’s rights. And yet, this admission changed nothing about the qualified immunity discussion. The officer who knowingly violated rights was granted immunity by the lower court despite having no better argument than “I bet you can’t find a precedential case on point.” It would seem that if a sued officer admits knowingly violating rights, qualified immunity should no longer be an option available to them. Unfortunately, that’s not how it works. Leyva’s survivors had to spend more money appealing the lower court’s horrendous decision. And they had to do this despite the officer knowing he was in the wrong from the moment he decided to pull her over.

This is always going to be a thing with facial recognition. Hundreds of algorithms have been tested. Pretty much every single one does worse “recognizing” minorities than it does recognizing the predominant deployers of facial recognition tech: white males.

In 2020, the Detroit PD managed to rack up consecutive false arrests by relying far too heavily on the conclusions (badly) drawn by its facial recognition tech. This PD will rack up more false arrests in the future, seeing as its tech is wrong nearly 100% of the time.

Cops in New Jersey did the same thing later that year, arresting a man who voluntarily showed up at the station after being surprised to learn there was a warrant out for his arrest. The victim spent 10 days in jail and then the rest of his personal savings clearing his name.

The next headline-making misfire by facial recognition tech takes us down south, where the go-getters at two Louisiana law enforcement agencies combined forces to fuck up.

[A] recent attempt by the Jefferson Parish Sheriff’s Office to nab a high-end purse thief via facial recognition ended badly for a Georgia man who was jailed for almost a week over a false match, his lawyer says.

A detective took the algorithm at face value to secure a warrant to arrest Randal Reid, 28, in the June theft of luxury purses from a Metairie consignment shop, attorney Tommy Calogero said.

A Baton Rouge Police Department detective then adopted JPSO’s identification of Reid to secure an arrest warrant alleging he was among three men involved in another luxury purse theft the same week at a shop on Jefferson Highway, court records show.

This “adoption” of a mismatch made its way into the hands of Georgia law enforcement. Officers in Dekalb County, Georgia pulled over Reid and surprised him with the news he was wanted for robberies committed in a state he’d never visited. He was booked into the county jail on November 25. He was finally released on December 1, after the Jefferson Parish Sheriff’s Office “rescinded” the warrant.

Now, Reid’s lawyer does admit the facial match was pretty close, calling his client a “spitting facial image.” But it’s not just faces that need to match. The rest of the description should match as well. And that’s where things diverge. The suspect captured on store cameras was at least 40 pounds heavier. The suspect also did not have a mole on his face, like Reid does. Unless officers were inclined to believe Reid lost 40 pounds in five months while growing a mole on his face, Reid should have been released immediately.

But that didn’t happen. And it shows yet another problem with relying solely on facial recognition tech to obtain arrest warrants: the only thing this tech looks at is faces. There’s a lot more to a person than the set of physical features residing above the neck.

Then there’s the rest of the ridiculousness surrounding this screw up. Law enforcement officers don’t mind being wrong. That’s just another attack vector for warrantless searches and cash seizures. They just hate it when everybody else finds out that they’re wrong. That’s when they go into lockdown mode, preventing the press from accessing anything that might further expose their careless patterns and practices.

Sheriff Joe Lopinto’s office did not respond to several requests for information on Reid’s arrest and release, the agency’s use of facial recognition or any safeguards around it. That office also denied a formal request for the July 18 arrest warrant for Reid and copies of policies or purchases related to facial recognition, citing an ongoing investigation.

Baton Rouge police also did not respond to questions about its warrant for Reid’s arrest. 

When cops score a win, they can’t stop talking about it. When things go badly, they refuse to engage with the same press they rely on to reprint press releases touting their latest triumph over evil. It’s always the same and it never gets any less annoying or stupid.

However, NOLA did manage to obtain something that’s probably going to be useful to Reid and his ongoing lawsuit.

The warrant, signed by 19th Judicial District Judge Eboni Rose, does not say how Lopinto’s office identified Reid.

That looks like a pretty serious omission. It’s going to be pretty difficult for officers to claim they acted in good faith when the warrant was obtained in bad faith. And it may get worse for the JPSO if future document releases show the agency plays fast and loose with facial recognition matches, considering nearly every tech provider warns law enforcement agencies matches should never be used as the sole basis for arrests.

Occasional failures by facial recognition tech shouldn’t just be brushed aside as the inevitable outcome of widespread use. These tools are touted as being better than fallible humans at identifying suspects. But cases like these show the tech is little better than the officers using it, who far too often decide most black men look alike so why not just arrest the next one officers come across. We need tools that make police better, more accurate, and less likely to default to their biases. So far, though, facial recognition tech is just playing into the preconceptions of officers, but allowing them to blame the machine, rather than their own impulses for blown calls.

For at least 3 months in early 2020, France-based EncroChat wasn’t in sole control of its communication services. Its servers had been compromised by European law enforcement — a joint effort involving law enforcement agencies located in France, the UK, and the Netherlands.

Authorized by a single court order from a French court, the Joint Investigative Team (JIT) infiltrated EncroChat servers and began intercepting text messages and recording lock screen passwords. The encryption EncroChat provided was never compromised. Instead, malware deployed via the compromised servers allowed law enforcement to extract data and communications from infected devices and, in some cases, disable remote wipe features.

The fallout from the three-month bulk harvesting of data and communications from nearly 60,000 phones was immense. More than 100 million messages were intercepted, leading to hundreds of raids, thousands of arrests, and thousands of kilograms of drugs seized.

The fallout continues, with hundreds of criminal prosecutions underway in several nations. And hundreds of cases means dozens of evidentiary challenges, especially when it appears the entire operation was authorized by a single court order issued by one judge in only one of the nations where prosecutions are currently occurring.

Matt Burgess of Wired has taken an in-depth look at the ongoing battles over the legality of this hacking and the ensuing massive data haul. Complicating matters for prosecutors is the fact that the data was harvested in France but passed on to law enforcement in other countries, possibly in violation of recipient countries’ laws.

Across Europe, legal challenges are building up. In many countries, courts have ruled that messages from EncroChat can be used as evidence. However, these decisions are now being disputed. The cases, many of which have been reported in detail by Computer Weekly, are complex: Each country has its own legal system with separate rules around the types of evidence that can be used and the processes prosecutors need to follow. For instance, the UK largely doesn’t allow “intercepted” evidence to be used in court; meanwhile, Germany has a high bar for allowing malware to be installed on a phone. 

The unknown aspects of the remote access malware is one of the issues being discussed in German courts. Another concern being raised is how the data was shared by European law enforcement, including the German beneficiaries of this France-based infiltration.

There are multiple cases now headed to European Union courts, thanks to questions raised at the local level by defense lawyers. And, as Burgess points out, there’s one major case on the docket that could alter the evidentiary attack plans of others challenging this three-month, 100 million message “search” by the JIT.

In October, the French Court of Cassation questioned previous EncroChat legal decisions and said they should be re-examined. “The judge who authorized this measure was not in charge of 60,000 investigations, but only one, and therefore ordered a disproportionate act,” say lawyers Robin Binsard and Guillaume Martine, who are challenging the collection of the data. “We have to defend our clients without knowing how the investigators acted,” they say.

The issues of these cases are reminiscent of the FBI’s “Playpen” investigation. After compromising a dark web server hosting CSAM, the FBI deployed malware to users connecting to the site, allowing it to harvest device IDs, lP addresses, and other information it could use to identify investigation targets. The FBI’s search was authorized by a single court in Virginia but its malware was distributed to 8,000 computers in 120 countries.

In almost every case, the search performed by the FBI’s NIT (Network Investigative Technique) occurred outside of the jurisdiction it was supposed to be limited to. In almost every case, the FBI came away with a win, with judges deciding the extraterritorial searches violated the law but awarding good faith to the FBI because the (illegal) searches were authorized by a judge.

The same problems are evident in the EncroChat cases, only on a much more massive scale and with dozens of different countries and their laws implicated. And just like in the FBI NIT cases, prosecutors are refusing to hand over information about the malware deployed by law enforcement. We’ll have to see if they’re as willing to dump criminal cases if courts rule this information must be handed over to defendants. It’s going to take a long time to sort this all out. European law enforcement agencies are currently basking in the glow of successful, multi-national disruption of organized crime. But that glow will fade fast if courts begin ruling too much was done with too little judicial oversight — oversight that appears may have been misled about the breadth and depth of the search effort it authorized.

Rap artist Afroman’s biggest hit is “Because I Got High,” a track that details how his best intentions were undone by his weed intake. So, one might reasonably suspect marijuana might be found at his residence. But there’s very little that’s reasonable about what happened to Afroman four months ago.

Earlier this year, he became yet another statistic: a black person whose house was raided by heavily armed officers, all over the supposed existence of drugs and paraphernalia. But it’s not just about the raid. It’s about the damage done, which goes beyond the door officers destroyed en route to finding almost nothing but some loose cash they decided to keep.

After the Adams County Sheriff’s Office conducted a raid on his Ohio property in 2022 with a warrant for drug trafficking and kidnapping, Afroman, real name Joseph Foreman, told VICE he lost out on gigs and felt angry and powerless. He channeled that energy into a pair of songs, “Lemon Pound Cake” and “Will You Help Me Repair My Door,” with music videos that feature actual footage of deputies smashing their way onto his property, rifling through his belongings, and checking out the baked goods sitting on his counter before they cut power to his personal security cameras altogether. Clips from Afroman’s music videos have since gone viral on TikTok. He was never charged with a crime, and maintains that the sheriff’s department stole $400 of his money that they seized during the raid.

Fortunately for Afroman, his cameras were rolling. From that unjustified invasion of privacy, he managed to salvage a viral video, which racked up more than a million views in nine days.

There are few things more satisfying then watching a bunch of dudes dressed for war blunder around a house with increasing frustration as they fail to discover any evidence of the alleged criminal acts they swore were happening in order to secure the search warrant.

Speaking of the search warrant, it’s wild. It not only accuses Afroman of drug trafficking, it claims he’s suspected of kidnapping.

I don’t think the Adams County Sheriff’s Office actually believes Afroman kidnapped anyone. This looks like someone got careless cutting and pasting boilerplate and forgot to delete the part that’s unrelated to the drug allegations the swearing officer pretended he had probable cause to pursue.

This raid is like countless others that occur daily across the nation. And it contains the same casual abuses officers engage in just as regularly. Like the decision to pocket the cash found in the pocket of one of Afroman’s coats… just because. Worse, the Sheriff’s Office pretended $400 of this money never existed, despite being caught on camera taking it. Here’s what Afroman had to say about that in his interview with Vice:

So, that precinct could not investigate itself, so they had a neighboring precinct do it. Now the neighboring precinct is saying it’s just a miscount, but it’s funny how somebody stole or they “miscounted” exactly $400. 

Then there’s another common action taken by law enforcement officers during raids of private property: the controlling of the narrative by eliminating any recordings of their actions they can’t directly control. The officers eventually located Afroman’s home security cameras and disconnected them, leaving part of this search unrecorded. Here’s Afroman again, pointing out the obvious: unplugging cameras just makes cops look guilty as fuck.

According to America, police officers are the good guys. I figured a good guy would want to leave the camera going so he can verify the fact that he is a good guy. I know burglars and crooks and criminals and murderers, they spray paint the cameras. They want to take them down because they don’t want you to see who they are and what they’re doing. So I’m wondering, why is the good guy disconnecting the camera, taking away the verification that he is good?

The footage shows officers rifling through books of CDs, peering into the back of closets, struggling to maintain control of the entrance gate, drawing down on a cake already safely contained in a glass container, and otherwise doing a bunch of cop stuff. What it doesn’t show is the contraband found by officers looking for evidence of drug trafficking and kidnapping: a couple of joints, some (legal) hemp, and a vape pen. Not exactly the haul they thought they’d find. And not enough to sustain criminal charges since medical marijuana is legal in the state and recreational use decriminalized in Cincinnati, where Afroman resides.

Fortunately, there’s a permanent records of these cops and their actions. And it’s set to music, which makes it that much more enjoyable. What’s captured here isn’t an aberration: it’s standard operating procedure for cops all over the nation. It’s the casual abuse of power that’s rarely, if ever, punished by the agencies employing these sad excuses for public servants.

Shot-spotting tech is notoriously unreliable. The industry leader, ShotSpotter, continues to claim it’s helping solve gun crime even as many law enforcement customers shift from “current” to “former.”

In Newark, New Jersey, three-quarters of “gunshots” “detected” by ShotSpotter were false positives. In another city, the failure rate wasn’t quite as spectacular, but it was little better than a coin flip.

Out of Fall River’s 51 ShotSpotter activations in 2017, 21 have been false alarms, a 41 percent error rate. The sensors often report loud noises such as car backfires and fireworks as gunshots.

The city of San Diego, California terminated its contract with ShotSpotter after complaints from residents. It also saw little reason in spending more than a million a year on tech that produced false positives more than 10% of the time and had only led to two arrests in four years.

With all this good news about reliability and accuracy (and that’s just about the market leader), one might reasonably wonder why the DHS has decided to get into the shot-spotting business. A sense of wonderment is always welcome, but it should not be confused with what this DHS press release provokes, which is closer to “concerned bemusement.”

A new portable Gunshot Detection System can provide critical information about outdoor shooting incidents almost instantaneously to first responders. The system, called SDS Outdoor, was developed in collaboration between the Department of Homeland Security (DHS) Science and Technology Directorate (S&T) and Shooter Detection Systems (SDS) of Rowley, MA.

“Many U.S. gunshot detection technologies are not easily deployed in the field or at temporary locations,” said Dr. Dimitri Kusnezov, DHS Under Secretary for Science and Technology. “This new system can be moved by one or two officers without the need for technicians to transport and set up. This mobile capability will help responders approach gun violence incidents with greater awareness, reducing response times and increasing responder safety.”

The DHS wants to keep an eye on areas gunshot detecting mics aren’t currently located. Apparently, local law enforcement can ask the DHS to provide the tech (and possibly operators) when handling things like live events that may not be hosted in range of their current detection systems.

The DHS has taken existing tech and had it modified, supposedly to reduce the number of false positives the devices tend to produce.

The portable system is an enhancement to the current commercial, off-the-shelf Guardian Indoor Active Shooter Detection System. SDS Outdoor uses two factors—the sound and flash of the gunshot—to detect and validate each gunshot, drastically reducing false positives. Most other systems rely principally on sound, which can have higher false positive rates. Moreover, SDS Outdoor can be deployed for temporary events in locations where infrastructure support is not available, such as open-field concerts or pop-up rallies.

SDS (Shooter Detection Systems) also provides indoor options. The company also produces the “Guardian Active Shooter Detection” systems now deployed in some US schools. Like ShotSpotter, SDS claims its systems produce “near zero false alerts.” ShotSpotter’s accuracy claims are as inaccurate as its products. It’s hard to imagine SDS is doing any better. However, the addition of flash detection may reduce false positives, especially if the two (sound/light) need to be linked before a shot detection can be reported. If the two detection systems are independent, it seems likely to produce double the level of false positives, especially during daylight events when bright flashes of reflected sunlight are common.

The DHS touts the simplicity of the set-up and the system’s ease of use, which requires only a single officer to monitor gunshot detections. While working smarter remains preferable to working harder, there’s something to be said for having experts in the field monitor suspected gunshots, rather than just whoever happens to be on-duty at the time. Even ShotSpotter’s employees — supposedly just brimming with training and expertise — blow judgment calls and alter reports to favor law enforcement narratives/theories.

While it is good to see the DHS take an interest in limiting the damage done by active shooters, the solution is probably not half-baked tech run by novices and oversold by government officials and tech company reps. Some may say it’s better than nothing, but when false positives start prompting police violence and/or lead to false arrests, doing nothing might be the better option.

There are plenty of governments operating on platforms of pure evil, but the Saudi government is one the few that continues to be given a pass by other governments who fear alienating a source of oil located in the Mideast.

North Korea may be evil but it’s limited by its lack of a functioning economy. Sooner or later, the nation led by North Korean equivalent of a trust fund kid will be reduced to doing nothing more than talking, which is the most economical of antagonistic rhetoric options.

The Saudi government — headed by kings and princes — will never have money problems. And that makes this government far more disturbing when it chooses to indulge itself. This is the government that recently imprisoned a US citizen for 16 years over critical tweets. This is the same government that outlawed satire in 2018, instituting five-year prison sentences for those “mocking” the government and its favored religion.

This is the same government that killed and dismembered a Washington Post journalist (and legal US resident) and got away with it because no one in the international community with the power to stand up against the Saudi government chose to do so.

The DOJ recently indicted two former Twitter employees for acting on behalf of the Saudi government to spy on Twitter users the Saudi government hoped to silence, if not imprison. So, it’s clear the Saudi government’s efforts to silence critics and control the narrative have extraterritorial reach.

But it’s still doing what it can on the home front, where it’s not subject to laws that haven’t been written to favor the Saudi government. The latest news on the government’s efforts to control the narrative brings Wikipedia into the picture, showing the Saudi government — as powerful as it is — still fears the history it is constantly rewriting will be undercut by people concerned with compiling facts.

Saudi Arabia has infiltrated Wikipedia and jailed two administrators in a bid to control content on the website, weeks after a former Twitter worker was jailed in the US for spying for the Saudis.

One administrator was jailed for 32 years, and another was sentenced to eight years, the activists said.

An investigation by parent body Wikimedia found the Saudi government had penetrated Wikipedia’s senior ranks in the region, with Saudi citizens acting or forced to act as agents, two rights groups said.

The investigation referred to in this Guardian report was performed by DAWN (Democracy for the Arab World Now). The first notable aspect of this investigation is the fact that these arrests did not occur recently.

According to sources with knowledge of the matter who spoke to DAWN and SMEX, in September 2020, the Saudi government arrested two high-ranking Wikipedia administrators in Saudi Arabia, Osama Khalid and Ziyad al-Sofiani on the same day, charging them with “swaying public opinion” and “violating public morals.” The Specialized Criminal Court, the country’s counter-terrorism court used to prosecute political detainees, sentenced them in the summer of 2020 to five and eight years in Al-Haer prison in Riyadh, respectively.

For two years, these obviously politically motivated arrests flew under the radar. The fact that bullshit laws crafted solely for the government to wield against critics is the unsurprising part. But things did get worse far more recently for one of the Wikipedia administrators arrested and charged by the Saudi government:

The Specialized Criminal Court increased Mr. Khalid’s sentence to 32 years in September 2022 for the same charges in what appears to be part of a broader campaign to impose harsh additional sentences against political detainees. 

That’s insane. Khalid’s sentence was originally five years. Even at that length it was unjust and clear abuse of the government’s power. After serving nearly half his original sentence, the government decided to take away his freedom for another 27 years.

Wikipedia can’t save the editors the Saudi government has jailed. But it can help prevent the Saudi government from sock-puppeting its way into an alternative set of facts.

On December 6, 2022, Wikimedia announced that it had banned 16 users for “conflict of interest editing” following an internal investigation it had commenced in January 2022. Sources with knowledge of Wikimedia’s operations revealed to DAWN and SMEX that the ban was against 16 Saudi users, Wikimedia’s highest ranked editorial team in the region, following its discovery that they were serving as agents for the Saudi government to promote positive content about the government and delete content critical of the government, including information about political prisoners in the country.

DAWN says the publication of the list of excised Saudi administrators is a good start. But it feels the Foundation should do more. While increased vigilance in response to proven infiltration is essential, the Foundation should do more to prevent it from happening in the future, including monitoring administrators based in other countries with long histories of human rights abuses to ensure articles and edits originating from those countries aren’t just government propaganda.

But no matter what Wikipedia does in response to this situation, the Saudi government has already proven its point. And its willingness to jail people for decades simply because they tried to publish facts will serve as a strong deterrent to Saudi residents who think they can still pursue the truth.

Law enforcement agencies have no interest in tracking how often officers kill people. Despite all the talk about police reform, very few states require accurate reporting on deadly force deployments.

Even the DOJ doesn’t care. The federal face of law enforcement has been required to compile this data for over two decades. It has yet to provide an accurate account of US law enforcement deadly force use. Part of that isn’t the DOJ’s fault. It can’t mandate reporting due to the US Constitution, which limits how much direct intervention the federal government can engage in when dealing with state and local level issues.

The other factor in this perpetual under-reporting is due to the DOJ’s disinterest in obtaining accurate force deployment stats. Doing the job correctly would just turn local agencies with a predilection for killing against the DOJ, which means less cooperation when things the DOJ actually considers important (drug busts, forfeitures, etc.) are on the line.

This means that, for years, the private sector has been forced to do the government’s work for it. Multiple efforts have been mounted to accurately track killings by police officers, utilizing open-source data and public record requests to provide a fuller picture than the DOJ — with all of its billions in funding — has continually failed to provide.

What’s treated as “official” by government agencies is a massive misrepresentation of the actual facts. The private sector doesn’t need billions to accomplish what governments won’t. All it needs is people interested in reporting the truth.

And the uncomfortable truth is that law enforcement at all levels hasn’t been reformed, at least not noticeably. The tally for last year outpaces the years leading up to the supposed law enforcement reckoning that followed the murder of George Floyd by Minneapolis police officers. Here’s Trone Dowd, reporting for Vice News:

Mapping Police Violence’s 2022 tracking found that 1,176 people died during encounters with police last year, the highest number the organization has ever recorded. Samuel Sinyangwe, the creator of the project, said the number includes anyone who was killed by police, be it by shooting or other forms of force. According to Mapping Police Violence,  police killed the equivalent of 3.2 people per day in 2022—and there were only 12 days in the whole year when a deadly police encounter was not reported. 

Suppose you were an idiot. You might respond to this by saying something like, “Well, cops routinely deal with violent and dangerous people, so it’s no surprise they’ve killed [this year’s death total].”

Well, let’s talk about the “danger” and “violence” you (a rhetorical idiot) might present as a supposedly valid counterpoint. Here’s more data… again not collected, compiled, reported, collated, documented, or distributed by any actual government-powered clearinghouse.

More than a third of those killed by police encountered the authorities during a traffic stop, a mental health and welfare check, or a non-violent offense. 

Cops turn routine stops into dangerous encounters by engaging in pretextual stops predicated on minor moving violations that soon escalate into full-blown, warrantless, ad hoc criminal investigations that convert “routine stops” into Ralph-Wiggum-on-the-bus without any assistance from those being pulled over.

When you create the danger, you can’t use that danger to excuse your actions. I mean, theoretically. In practicality, it happens all the time. So, if traffic stops turn deadly, it’s probably because officers are engaging in fishing expeditions, rather than getting to the alleged point of the stop.

The other cases are the unhealthy side effects of sending cops out to “help” people. That’s not their job and it’s certainly nothing they’re trained to do. Most training involves securing scenes and neutralizing threats. Mental health issues present cops with people behaving unpredictably. And their training mandates they treat unexpected behavior as a threat to their safety. Consequently, people in need of mental health assistance are often helped to death by officers whose mental health toolkit is composed of bad information and bullets.

The same thing can be said about welfare checks. Cops see welfare checks as an opportunity to happen upon other criminal activity. People in need of a welfare check seldom expect police to react with violence to a secondhand cry for help. Case in point: Ft. Worth police officer Aaron Dean, who was recently convicted of manslaughter for shooting a woman through the window of her house while performing a “welfare check” that involved him walking around in the dark outside of Atatiana Wilson’s home without announcing his presence and shooting her within one second of spotting her through her window.

It’s all broken. And all the efforts to reform police haven’t changed a thing. It’s still the way it’s always been. Cops can kill. With impunity.

According to the data, 98.1 percent of officers involved in the death of a citizen between 2013 and 2022 faced no charges. Less than 0.3 percent of officers were convicted.

There’s a lot that needs to be fixed. Unfortunately, after decades of neglect and rot, a lot of this seems irreparable. But if we could just stop cops from killing people they were asked to help, we might finally see a drastic reduction in annual “killed by cops” numbers. But if cops don’t even want to be honest about killings they assert are always justified, what hope do we have that reform efforts that ignore the root of the problem (entrenched law enforcement culture) will ever succeed?

It’s the rise of the lawbots, something not even foretold by Futurama, which allowed a “simple hyper-chicken from a backwoods asteroid” to perform much of the series’ criminal justice work.

AI-in-everything is on the rise. And that includes lowball court cases, as Lauren Leffer reports for Gizmodo.

An AI-based legal advisor is set to play the role of a lawyer in an actual court case for the first time. Via an earpiece, the artificial intelligence will coach a courtroom defendant on what to say to get out of the associated fines and consequences of a speeding charge, AI-company DoNotPay has claimed in a report initially from New Scientist and confirmed by Gizmodo.

The in-person speeding ticket hearing is scheduled to take place in a U.S. courtroom (specifically, not California) sometime in February, DoNotPay’s founder and CEO Joshua Browder told Gizmodo in a phone call. However, Browder and the company wouldn’t provide any further case details to protect the defendant’s privacy.

AI legal representation in an actual court case will be happening. But, as the saying goes, who knows where or when. The smart money is on February, at least according to the New Scientist report linked to by Gizmodo. Where remains a mystery, but it’s traffic court, so the location doesn’t really matter.

Browder’s DoNotPay bot has been around for a few years at this point. It was originally created to help people fight bogus parking tickets, a suitably low stakes environment for testing the power of the legal AI. It experienced a lot of early success — a 64% success rate in 250,000 cases involving more than $4 million in fines. But that targeted a legal arena where challenges are anomalies and the stakes low enough cities will often dismiss tickets rather than bear the expense of addressing challenges by drivers.

The same thing applies to traffic court. The stakes are low. The odds of success are rather high, considering it can take nothing more than the ticketing officer’s inability to attend court to secure a win for the driver.

And there’s nothing wrong with providing AI assistance to people who have nothing more than a bit of money at stake. Whatever helps even the odds is a welcome addition to a process that pretty much ignores the presumption of innocence mainly because so few people bother to take the time to show up in court to challenge tickets.

That Browder has decided his AI might be capable of securing people’s literal freedom is more concerning. In 2017, he added functionality to assist immigrants with their asylum applications. Immigration law is much more complex than traffic law, and there’s a good chance the use of Browder’s AI may have made things worse for some applicants simply because there are a lot more inscrutable variables involved.

That being said, asking an AI to defend you in traffic court is a good test environment that is likely to have little effect on life or liberty, no matter the outcome. But not all vehicle infractions are low stake. In fact, challenges to the long-used practice of “chalking” tires to determine how long a vehicle has been parked have resulted in two appellate level decisions, with one finding this practice to be a violation of Fourth Amendment rights. So, in some cases, the issue may appear to be negligible while still in traffic court, but may have greater constitutional implications once freed of those confines by shrewd lawyering.

Then there are the negative side effects of being represented by an algorithm. While most traffic court dispensations rely on rote recitals by judges and ticketed drivers, a few don’t. And while most courts are willing to grant more leeway to laypeople representing themselves, it seems unlikely (human) judges will do the same when it becomes clear they’re dealing with an AI interloper that (without doing anything) insinuates it’s smarter than the average defendant, not to mention the average judge.

Browder has addressed this possibility of AI reliance being a net negative for this defendant, but he does so a bit too blithely:

The CEO said the company is also working with another U.S.-based speeding ticket defendant in a case that will go to Zoom trial. In that instance, DoNotPay is weighing the use of a teleprompter vs. a synthetic voice—the latter strategy Browder described as “highly illegal.” But he’s not too concerned about legal repercussions because “at the end of the day, it’s a traffic ticket.” Browder doesn’t expect courts to come down hard on speeding defendants over AI-coaching, and the law doesn’t have explicit provisions in it barring AI-legal assistance. Plus, “it’s an experiment and we like to take risks,” he added.

This is not to say AI has no business operating in the legal field. In traffic cases where someone’s driving privileges or freedom is not on the line, AI assistance may help, especially when the person its aiding has no legal expertise.

And lawyers may find AI useful while seeking relevant precedent or composing briefs and contracts, what with AI’s willingness to plumb the depths of legal rulings and corporate boilerplate to find solutions. But it’s unlikely (or, at least, incredibly unwise) people facing serious legal issues, like lawsuits or criminal charges, will rely on AI to get them out of a legal jamb. Good lawyers are good not just because they know the law. They also know the system and, most importantly, the people operating it. An AI can’t easily duplicate personal relationships with opposing counsel. Nor can it easily take advantage of unforced errors by legal opponents.

But in areas where lawyers are seldom retained, and users fully apprised of the limitations of the AI they’re relying on (which may find new, truly surprising ways to fail when navigating untested areas), there’s probably little harm in asking for some help when attempting to save a few bucks by challenging a bogus ticket. For everything else, actual people — as fallible as they can be — are still the best bet.