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Posted on Techdirt - 23 January 2019 @ 9:38am

FBI Forensic Experts Claim Mass-Produced Jeans And Shirts Are As Distinct As Fingerprints And DNA

from the evidentiary-clown-show dept

The evidence the feds use to lock people up continues to be laughable. Well, laughable under any other circumstances. Freedom is a high price to pay for bad science, but the FBI seems to believe the tradeoff between lost freedom and junk science is a net gain for society. Judges seem to agree. It's difficult to challenge the sufficiency of evidence against you, nevermind the underlying "science" backing dubious forensic evidence like hair or bite mark matching.

The gold standards in forensic evidence aren't even gold. DNA is a hitchhiker which can put people never involved with a crime at the scene just by hitching a ride on first responders. Fingerprints have been considered individual markers for years, but even that assessment appears to have been overstated.

But dig deep enough into the FBI's forensic toolkit and you'll find some truly surprising forms of "evidence." ProPublica has done exactly that, uncovering so-called science that far more resembles faith. Convictions have been obtained thanks to FBI forensic experts claiming mass produced products like shirts and jeans are just as distinct as fingerprints and DNA.

A bank robbery trial 16 years ago was a watershed for such testimony. Prosecutors charged an ex-convict with robbing a string of banks across South Florida over two years. Richard Vorder Bruegge, an FBI image examiner, told jurors that the button-down plaid shirt found in the defendant’s house was the exact shirt on the robber in black-and-white surveillance pictures. The examiner said he matched lines in the shirt patterns at eight points along the seams.

The prosecutor asked Vorder Bruegge what were “the odds in which two shirts would be randomly manufactured by the company, having all those eight points of identification lining up exactly the same?”

Only 1 in 650 billion shirts would randomly match so precisely, Vorder Bruegge said, “give or take a few billion.”

The following image -- used in court to send Wilbur McKreith to prison for 92 years -- was part of the FBI's collection of circumstantial evidence, which included seeing McKreith's vehicle near some banks that were robbed and McKreith spending around $10,000 in cash around the time of the robberies.

Where Vorder Bruegge got his "1-in-650-billion" estimate, no one knows. There's is no body of work -- at least, not outside of the FBI -- on clothing pattern matching. There's no data available detailing the number of identical shirts created during manufacturing runs or how many variations an examiner should expect to find in a lot of manufactured clothes. Nor is there any specific training required to turn an FBI examiner into an expert on clothing features. From what's been obtained by ProPublica, the only requirement appears to be a functioning pair of eyes.

After Congress passed a law in 1968 requiring banks to have security equipment, most banks installed surveillance cameras. Meanwhile, Eastman Kodak sold the public millions of pocket-size cameras and amateur photographers took billions of exposures of life and, occasionally, of crimes.

Pictures flooded the bureau as evidence. The lab formed a team called the Special Photographic Unit to find information in images and manage the bureau’s inventory of 35 mm cameras. No scientific background or advanced degrees were required.

Unlike other areas where examiners focused on one thing (fingerprints, bullet casings, hair), "image examiners" looked at everything: facial features, clothing, and anything else that might help them make a match. But how much of a match? The FBI was trying something new, using low-quality photos and some unscientific hunch that clothing, ears, freckles, etc. were unique. As of 2005, the FBI still wasn't offering any formal courses to train its "image examiners," despite claiming in court shirts and jeans were as unique as fingerprints.

Like anything else, this "science" is prone to confirmation bias. But in these cases, it's much worse. FBI image examiners aren't given control images or items to guard against this. They're only given images and the items investigators believe are evidence, so it guides examiners to inevitable conclusions. The "research" tends to be little more than finding ways images and items match, working backwards from the assumption the item being examined is evidence of a criminal act.

Since the FBI is considered to be staffed with the smartest and most technically-astute investigators and examiners, courts generally have granted deference to their testimony in court, even when they make claims of scientific certainty that can't possibly be true. The examiner/expert claiming mass produced shirts were unique also claimed mass produced denim jeans were unique, in direct opposition of what's known about mass production.

[Vonder Bruegge] wrote that manufacturing defects like dropped stitches, where a stitch is missing, are identifying features — the equivalent of a facial scar.

Not at all, said Alicia Carriquiry, director of the Center for Statistics and Applications in Forensic Evidence and an Iowa State University professor. Sewing machines can drop stitches in a consistent manner, embedding the same set of stitches in garment after garment.

“This could be that the same sewing machine in China is producing a drop stitch in the same position in every last pair of jeans until they change that needle,” Carriquiry said. Thousands of pairs of jeans would have the same feature.

The barcode pattern is unique because the stitching varies between pairs, Vorder Bruegge wrote.

But jean manufacturing has been standardized across the industry for a long time, said Charles Jebara, chief executive of Alpha Garment, which sells jeans under Nicole Miller and other labels. The number of stitches per inch along a seam is much the same from one factory floor to another. “They’re using the same kinds of machines, the same general processes to get that operation done,” Jebara said.

The supply chain for denim jeans is so standardized the FBI no longer does fiber comparisons for denim fibers recovered from crime scenes. And yet, the FBI's champion of image examining claims [PDF] wear marks and creasing in jeans is unique enough to act as supporting evidence in criminal trials.

This isn't science. This is jargon-laden hunchery masquerading as evidence. And despite the DOJ's vows to dial back statements of certainty from its experts, people are still going to jail because someone with no specialized training said a pair of jeans is more distinct than a DNA strand.

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Posted on Free Speech - 23 January 2019 @ 3:35am

US Media Companies Engaging In Proactive Censorship Of Content Ahead Of India's New Hate Speech Laws

from the proxy-censorship-really-isn't-an-improvement-over-direct-censorship dept

India's government is still seeking more direct control of the internet, using ill-defined buzzwords ("hate speech," "fake news") as justification for broken encryption and holding tech companies directly responsible for content created by users. The Indian government may have passed and killed a "fake news" law in the space of 24 hours, but the term lives on as a useful enabler for censorship.

New rules proposed by the Indian government to rein in tech giants and combat fake news could have a profoundly chilling effect on free speech and privacy online. The proposed changes involve Section 79 of the IT Act, a safe harbor protection for internet “intermediaries” that’s akin to Section 230 of the Communications Decency Act in the US. Current law protects intermediaries such as internet service providers and social media platforms from liability for the actions of their users until they are made aware of a particular post; intermediaries also must only censor content when directed by a court.

The proposed amendments attempt to curb the spread of misinformation on platforms like Facebook and Twitter by effectively forcing internet companies to censor a broad swath of user content. They also require secure messaging services like WhatsApp to decrypt encrypted data for government use, which could affect the security of users around the globe. The rules also would require internet companies to notify users of their privacy policies monthly.

Just the threat of government intervention has been enough to turn a number of US companies into proactive censors. As Paris Martineau notes in this Wired article, Netflix and a number of other streaming services have already voluntarily agreed to engage in self-censorship, purging their Indian offerings of content that "disrespects the country's flag," "hurts religious sentiments," or promotes terrorism.

Netflix's justification for self-censorship is apparently that this is somehow better than direct government censorship. But this justification makes no sense, especially when proactive measures tend to remove more content than is actually illegal. Add in some automation and legal content is going to get flagged and removed faster than the Indian government can issue self-serving removal requests.

The government's timetable on content removal only adds to the problem. The Indian government wants content it finds illegal removed within 24 hours of notification. Short turn times -- seen elsewhere in the world -- have increased proactive takedowns by internet companies, resulting in far more content removals than are strictly necessary.

Not that these governments are complaining. Bogus takedowns aren't their problem, beyond the occasional courtroom dispute over mistakenly-removed content. At this point, governments need only threaten to put direct censorship in place to start seeing content these governments don't like removed.

India's plan introduces compromised encryption to the mix, which would set a dangerous precedent if companies like WhatsApp comply. If it can be done in India, it can be done anywhere, and a long list of government entities frustrated that they don't have access to every domestic online conversation will see this as an invitation to make similar demands. And once the floodgates are opened halfway around the world, it's going to be tough to argue you can't do the same thing in your home country.

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Posted on Techdirt - 22 January 2019 @ 11:55am

Intelligence Agencies Sued For Refusing To Turn Over Documents Related To Jamal Khashoggi's Brutal Murder

from the letting-the-passage-of-time-do-the-dirty-work dept

The shocking and brutal murder of Washington Post journalist Jamal Khashoggi by members of the Saudi Arabian government late last year was breathtaking in its audacity and execution. Lured to the Saudi consulate in Turkey by Saudi government officials, Khashoggi was strangled and dismembered by a team of Saudi security operatives.

Khashoggi was a legal resident of the United States, in self-imposed exile from Saudi Arabia as a result of the government's treatment of dissidents. As a lawful resident, Khashoggi was technically protected by the many of the same laws and rights US citizens are. While the US government limits those rights and protections when legal residents (but not citizens) travel out of the country, the US intelligence community still bears a "duty to warn" lawful residents of any violent threats against them.

The IC knew Khashoggi was a target of the Saudi government. It knew Riyadh had "something unpleasant" waiting for Khashoggi should he return to Saudi Arabia. A plan to lure Khashoggi back to Saudi Arabia was intercepted by US intelligence. No one knows whether Khashoggi was ever warned by US intelligence of these plans.

The Committee to Protect Journalists -- along with the Knight Institute -- wants to know if any attempts were made to inform the murdered journalist of Saudi Arabia's plans. So far, the Office of the Director of National Intelligence has refused to publicly comment on the IC's "duty to warn." These two entities have filed FOIA requests seeking info about the IC's duty to warn Jamal Khashoggi, asking each of the IC's five components to release documents detailing their actions/inactions. These were filed shortly after news broke of Khashoggi's murder. So far, none of the agencies have handed over any documents.

As the Knight Institute points out, there definitely should be documents related to Khashoggi and the government's "duty to warn."

Intelligence Community Directive 191 provides that, when a U.S. intelligence agency acquires information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person, the agency must “warn the intended victim or those responsible for protecting the intended victim, as appropriate.” The directive further obligates the agencies to “document and maintain records” on any actions taken pursuant to that duty.

"Document" is a key part of "document and maintain," but so far, the IC agencies haven't turned over any documents, or even admitted they have any. All five agencies have rejected the request for expedited processing and most haven't even gotten around to deciding whether or not a fee waiver applies. So, the two entities have sued [PDF], hoping to jolt the Intelligence Community out of its complacency.

Documents pertaining to the IC's duty to warn are extremely newsworthy... right now. The IC knows this just as much as the plaintiffs know this. But the IC has much more to gain by stonewalling these requests. If these agencies failed to pass on information to Khashoggi -- in effect allowing him to end up in the hands of people who wanted him dead -- it's not going to reflect well on the IC. The longer it takes for the news to get out, the greater the chance a new obscenely-disturbing incident will grab the attention of the American public and allow it to walk away from any dereliction of duty unscathed.

If it does have documents and it did warn Khashoggi of the Saudi government's plans for him, it would make little sense to withhold these facts and allow public perception to fill the void. But the IC tends to indulge in secrecy for secrecy's sake, viewing frustrated requesters, Senators, and Congresspersons as a reward in itself.

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Posted on Techdirt - 22 January 2019 @ 3:25am

Oregon Lawmaker Wants Public Records Requesters To Tell Gov't Agencies What They Plan To Do With Released Documents

from the we'll-decide-what's-acceptable-use dept

As if government agencies needed any new ways to thwart accountability and transparency. Oregon legislators are introducing a host of alterations to the state's public records law, but one of those looks like nothing more than an easily-abusable tool to be wielded against public records requesters. Jessie Gomez of MuckRock has more details:

Senate Bill 609, sponsored by Senator Betsy Johnson (D-Scappoose) at the request of former Representative Deborah Boone, would require requesters to disclose the intended use for records being requested with any state agency. Boone believes the bill would help eliminate requests that [seek] personal information.

“There are so many requests for emails and texts, sometimes tens of thousands, that require hours of someone’s time to research and at present the requestor does not have to disclose what they intend to do with the information,” said Boone via email to MuckRock.

What Boone appears to be concerned about is public records requesters obtaining documents containing personal info and using this info to… well, it's kind of left up to the imagination Here's another quote from Boone that doesn't do much to clear up the bill's purpose.

It seems reasonable to ask that the requestor to disclose what they intend to do with the information, some of which can be of a personal nature.

It actually isn't reasonable to ask this question. There may be an extremely tiny subset of records requesters who seek to extract personal info from public records to engage in harassment or some other form of criminal activity. But it seems someone doing this wouldn't be honest about their intentions even if required to inform a government agency about their plans for the requested documents.

What it will do is allow agencies to unilaterally refuse to release documents to requesters who give them reasons they don't like. The bill doesn't even hint at what would be considered unacceptable use for public records, which means agencies are free to explore the outer limits of the undefined term, leaving requesters with little recourse but lengthy appeals and expensive litigation.

Even better (from the perspective of public servants who dislike serving the public), agencies will be able to compile secret blacklists from which to serve up request rejections, claiming the requester's stated reason for seeking documents is not one of the ones they find acceptable.

Rep. Boone is leaving her office so this is a parting gift for the government she's leaving behind. Don't think it will survive a Constitutional challenge if it ever becomes law, but for now, it's a turd floating in legislative stream.

The stream's not completely ruined, though. There's some good news for records requesters as well.

Other bills include reducing request fees by 50 percent for news media, prohibiting the use of personal email for official business, and awarding attorney fees when agencies fail to respond to record requests.

The best thing the legislature could do is send Boone's bill to her home address postage-due.

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Posted on Techdirt - 17 January 2019 @ 8:16pm

NY Court Tells NYPD It Can't Hide Surveillance Of Protesters Behind A Glomar Response

from the prying-the-lid-off-the-public-records-jar dept

Another lawsuit over the NYPD's surveillance of First Amendment-protected activities continues. Records requests by Black Lives Matter offshoot Millions March detailing surveillance methods used by the NYPD against protesters have been met with the usual opacity by the PD. It has done what it always does in cases like these: throw FOIL exemptions around and stonewall the hell out the request. The PD has also added a few Glomar responses to the mix, refusing to confirm or deny the existence of sought records.

Fortunately, the judge presiding over the case -- Arlene Bluth -- isn't in a charitable mood. Greeted with the NYPD's incessant opacity, the judge has called bullshit -- repeatedly -- over the course of a 14-page ruling [PDF]. The plaintiffs are seeking records related to the NYPD's use of surveillance tech targeting cellphones. It is well known the NYPD owns and has access to Stingray devices. What these records would show is the use of Stingrays in an untargeted manner -- either to gather cellphone identifiers indiscriminately or simply to disrupt phone service during protests by funneling all phones in the area into the NYPD's cell tower spoofer.

The NYPD has given the plaintiffs a Glomar response -- a term that derives from national security efforts at the federal level. There are a few good reasons why a Glomar might be deployed, but none of them fit the NYPD's blanket refusal to confirm or deny existence of these records.

Although this affidavit provides ample reasons why a FOIL request for counter-terrorism information might merit a Glomar response, it does not provide any explanation for how it applies to this case. This proceeding concerns respondent's alleged efforts to interfere with the cell phones of protesters and Miller fails to address why a Glomar response should be available in the context of protestors. Miller does not claim that these protestors were affiliated with the terrorists he lists in his affidavit, that these protestors engaged in behavior that might be connected to terrorism or that there might be terrorists hidden among the protesters. In fact, Miller does not allege that these protesters engaged in any terrorism-related behavior whatsoever.

The NYPD also claimed the Glomar response was valid because -- and let me see if I can get this straight -- the described deployment of cell tower spoofers against protesters would violate the law. I don't know how the NYPD imagined this stunted, malformed argument might work in court, but I'm sure it didn't think it would only further undercut its Glomar response. Here's the court's response to whatever the hell this assertion is:

Miller appears to insinuate that deliberately using technology to interfere with protestors' cellphones would violate the law. If that were the case then, of course, respondent should be able to deny that records exist because respondent, according to respondent, cannot interfere with a lawful protest. Revealing that the NYPD follows the law would not provide aid or comfort to terrorists.

That's if the NYPD is following the law. If it isn't…

Of course, if respondent is using technology on protestors and, by its own account, violating the law, then it cannot hide exposure of that fact through a Glomar response.

Even if deployment was lawful and not targeting protesters but still managed to disrupt their service, the NYPD still can't use a Glomar response. The court points out that other exemptions exist that might cover the content of these documents, but even that would need far more justification than the NYPD has provided to this point.

For all its claims of disrupted investigations and comforted terrorists, the NYPD cannot convince the court that records detailing cellphone disruption during protests fits any of the exemptions and/or blanket neither deny/confirm responses the NYPD has provided.

The Court recognizes that respondent does not have to disclose how it conducts criminal investigations. But this is not about a criminal investigation or a counterintelligence operation. It arises from reports of protestors who claim that their cellphones are suddenly unable to function while in the middle of a protest. That possibility, that respondent is interfering with protestors' ability to communicate with each other, is a serious concern ripe for the use of FOIL.

The NYPD is offering nothing more in defense of its opacity than "trust us." The court asks, "Why should we?"

Ultimately, respondent wants petitioners and this Court to simply trust respondent that it is not violating the law by interfering with a constitutionally-protected protest. But that notion is anathema to FOIL. FOIL is intended to shed sunlight on government actions. The very notion of a Glomar response (declining to confirm or deny the existence of records) contradicts the purpose of disclosure under FOIL.

The ruling also pokes holes in another transparency dodge: the "trade secrets" exemption the NYPD offered up more than a year after its original Glomar response. Not only does the court say it's a bit too late to adding additional exemptions to the mix, but the trade secrets exemption argument is a non-starter to begin with.

If the prices and the product features are trade secrets, then every single contract a governmental agency enters into would be exempt from FOIL. Every contract contains information about pricing and, where a product is purchased, the contract presumably also has details about the product. It may lay out what the product is for, what its capabilities are and how it can be used. These are not trade secrets…

After letting the NYPD know it needs to either confirm or deny existence of the Glomared records (and letting it know it will be on the hook for the plaintiffs' legal fees), the court again drills this point home: unjustified invocations of national security concerns are not acceptable.

Terrorism-related concerns cannot be used to justify the use of a Glomar response in every FOIL context. The petitioners here are protestors, engaging in First-Amendment protected activity. The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.


To embrace the use of Glomar response here would shut off all public inquiry and require respondent to hold itself accountable. That notion runs counter to the very purpose of freedom of information statutes. [...] FOIL is not about blind trust -- it is about holding government officials accountable. That principle is fundamental to a democratic society and cannot be set aside so easily.

The NYPD can't be happy it's been told it isn't a law unto itself. But it's probably going to take a lot more rulings like this to make minute inroads into its culture of opacity.

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Posted on Free Speech - 17 January 2019 @ 9:36am

Attorney General Nominee Seems Willing To Let The DOJ Jail Journalists Over Published Leaks

from the getting-nothing-more-here-than-a-changed-nameplate dept

Jeff Sessions did everything the president wanted him to do: roll back civil rights investigations, get tough on immigration, amp up the War on Drugs, blame everyone but law enforcement for spikes in crime. It didn't matter. The president shitcanned Sessions because he recused himself from the DOJ's investigation of Trump's Russia-related activities.

His replacement, William Barr, is undergoing the formality of a confirmation hearing. It's assumed there's no way he can blow it. But he's trying.

Barr would be no improvement over the departed Sessions. Barr thinks marijuana should be illegal everywhere. He's a fan of expanding executive power. As attorney general under George Bush Sr., he ordered phone companies to comply with DEA demands for millions of call records originating in the United States, laying the groundwork for the NSA's Section 215 collections.

He also doesn't seem to care much for the First Amendment. As attorney general, he pushed for a Constitutional amendment banning the burning of American flags in the wake of a Supreme Court decision offering First Amendment protection for this form of expression.

Thirty years later, Barr seems just as reluctant to respect the First Amendment. During the confirmation hearing, Sen. Amy Klobuchar lobbed what should have been a softball to the AG nominee. Moving on from the appalling murder of Washington Post journalist Jamal Khashoggi by members of the Saudi government, Klobuchar asked if the Justice Department would jail journalists for doing their jobs.

Instead of a quick "No," or a quickly-qualified "Yes, but only under the most extreme circumstances," Barr responded with a disturbingly long "ummm" and an uncomfortable silence. When Barr finally broke his silence, his answer was worse than his silence.

I can conceive of situations where…you know, as a last resort… and where a news organization has run through a red flag or something like that, knows that they're putting out stuff that will hurt the country… there could be a situation where someone could be held in contempt.

This is bad news for the free press. Jeff Sessions already began laying the groundwork for easier surveillance and prosecution of journalists by the DOJ. The standards alluded to by Barr ("policies in place") have been there for more than two decades. As they stand now, the DOJ has to exhaust all other investigative methods before demanding information from journalists and, if it plans to subpoena news agencies, it has to give them advance notice and work with them to minimize First Amendment intrusions.

Facing a rash of leaks following the election of Donald Trump, the DOJ has changed course. Under Sessions' (and now Rod Rosenstein's) supervision, the policies are being rewritten to make it much easier for the government to target journalists during investigations.

Multiple sources familiar with the ongoing DOJ review tell me that it has two main goals. The first is to lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records; the second is to eliminate the need to alert a media organization that Justice intends to issue a subpoena.

Given Barr's answer here, it's safe to assume he'll pick up where Sessions left off when he becomes attorney general. That's bad news for journalists and bad news for the First Amendment in general. Barr could have reaffirmed the DOJ's commitment to upholding the Constitution but instead indicated the DOJ will prioritize protecting the government over protecting the people it serves.

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Posted on Free Speech - 16 January 2019 @ 8:14pm

Turkish Court Jails Journalist For Telling The Truth About A Politician's Offshore Tax Shelter

from the there-is-no-defense-against-defamation-in-Turkey dept

Truth is no defense against allegations of defamation -- not in Turkey where criminal defamation law is just one of the government's many weapons deployed against critics. Journalist Pelin Ünker has been sentenced to more than a year in jail by a Turkish court for publishing undeniable facts.

An Istanbul court sentenced the International Consortium of Investigative Journalists’ member to imprisonment for 13 months for “defamation and insult.”

Ünker, who reported that former prime minister Binali Yildirim and his sons owned companies in Malta in the Turkish newspaper Cumhuriyet, was also fined $US1615.

Ünker's reports were drawn from the Paradise Papers, which exposed the secret bank accounts of politicians and world leaders -- tax dodging efforts deployed by people whose salaries are paid with tax dollars collected from others. The accusations involving Binali Yildirim were true, and yet, the court somehow found telling the truth about a high-ranking Turkish government figure was defamatory.

Ünker said what made the “world first” ruling so remarkable was that the complainants acknowledged that her articles were true.

“This decision is not a surprise for us. Because the result was certain from the beginning. There is no criminal offense or defamation in my articles,” she said.

“The fact is Binali Yıldırım’s sons have Maltese companies. Binali Yıldırım had already accepted that they have these companies. In the indictment, it is also accepted.

In Turkey, it's illegal to expose shady dealings and wrongdoing if it involves government officials. The courts serve the Turkish government, rather than act as a check against its overreach. This is all headed up by one of the world's thinnest-skinned autocrats, Recep Tayyip Erdogan, who made made a cottage industry of worldwide censorship.

It's a garbage ruling by a garbage court in a country run by a collective of garbage people who wield an unholy amount of power. Ünker plans to appeal the ruling -- not necessarily because it will change things, but because that's what you do when you're faced with a clearly unfair ruling from a wholly-subservient court.

If anything is going to change the situation in Turkey, it's not going to be some magical reawakening of basic respect for human rights from deep inside the government. It's the rest of the world applying pressure by refusing to pretend President Erdogan has anything worthwhile to contribute to the world. American tech companies need to blow off the country's demands for user info and content removal, and governments of other countries need to stop following up on criminal complaints filed by Turkey against foreign citizens. The status quo is being maintained by world inaction and Turkey's citizens paying the price over and over again.

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Posted on Techdirt - 16 January 2019 @ 9:28am

Judge Recommends Vacating The Sentence Of One Of The FBI's Handcrafted Terrorists

from the well...-half-the-sentence-has-already-been-served-so... dept

Nearly 13 years after the FBI managed to turn a California cherry picker into a international terrorist, one of its self-created terrorists is about to be turned back into regular California resident, albeit one missing more than a decade from his life.

Hayat went to Pakistan in 2003 to visit his mother and get married. The FBI and prosecutors insisted he went there to train to be a terrorist. When he returned to the US, he was arrested and indicted. Prosecutors tacked on some lying to federal agents charges because of course they did, pushing Hayat's sentence to 24 years.

This conviction was upheld by the Ninth Circuit Court of Appeals but Hayat's motion to vacate his sentence has found some sympathy from a federal magistrate judge.

A federal magistrate on Friday recommended overturning the controversial 2006 conviction of a California man accused of attending a terrorist training camp in Pakistan and plotting an attack in the United States.

Hamid Hayat, now 36, who was then a young cherry-picker from Lodi, has served about half his 24-year sentence.

But U.S. Magistrate Judge Deborah Barnes said he likely never would have been convicted were it not for the inexperience of his defense attorney, who failed to call alibi witnesses.

Hayat's lawyer was clearly inexperienced, having never defended a client during a criminal trial before. The results speak for themselves. Judge Barnes' examination of the case shows Hayat was possibly coerced into a false confession and had a decent alibi for his visit to Pakistan that -- if explored more fully -- would likely have shown the FBI's speculations about his reason for returning to Pakistan were wrong.

His attorneys argue that much of the evidence used against him was faulty, including prosecution claims that Hayat attended a terror training camp in Balakot, Pakistan, in 2003 and 2004 – a facility they say had been shut down before Hayat even got to Pakistan.

Hayat's confession was obtained during a "marathon" questioning session by FBI agents. This apparently included a special agent lying about the evidence the FBI had on Hayat's supposed terrorist training.

According to court testimony, the Hayats were interviewed twice by the FBI. The first time, they both denied they knew anything about terrorism. But during a second interview at Sacramento FBI headquarters, after many hours of grilling without a lawyer, Hamid Hayat changed his story and confessed he attended a terrorist training camp for about three months. The jury asked for a read-back of FBI Special Agent Harry Sweeney’s trial testimony.

Sweeney testified that Hamid Hayat admitted to going to the camp after Sweeney asked him, “Would there be any reason why we would have a satellite image of you at a camp in 2003?”

Under cross-examination, Sweeney acknowledged there was no such photo.

Unfortunately, there's nothing illegal about federal agents lying to suspects during questioning. But there's certainly a law against lying to federal agents. The background of the case suggests the FBI may have been looking for something -- anything -- to justify its infiltration of a local mosque by one its surprisingly-expensive informants.

Naseem Khan claimed to have seen four of the world's most-wanted terrorists in Lodi, California. Over the course of three years, the FBI paid Khan $230,000 to infiltrate a local mosque, despite discovering his claims of seeing top world terrorists were completely false. It was Khan who suggested Hayat visit a terrorist training camp while visiting Pakistan. The government apparently had no evidence Hayat ever visited a training camp, relying almost solely on a confession that appears to have been coerced.

The court says there's not much here that makes the FBI look like a competent anti-terrorism force. There's a questionable confession, an even more questionable informant telling people to engage in terrorist activities, and a bunch of speculation about Hayat's activities while not under direct surveillance. As the judge points out, citizens shouldn't be locked up for things the FBI THINKS they may have done. More evidence is needed and a more competent attorney might have been able to stop this farce before it took more than a decade away from Hamid Hayat.

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Posted on Techdirt - 15 January 2019 @ 3:34pm

Court To Revenge Porn Bro Suing Twitter: You Agreed To Twitter Picking The Courtroom Every Time You Created A New Alt Account

from the pro-se-at-life dept

Craig Brittain's $1 billion lawsuit against Twitter is still rolling slowly towards its inevitable dismissal. Bringing with him his usual legal expertise -- which includes badly misreading the Knight Institute v. Trump decision and asking for some weird hybrid judgment/injunction/perma-unbanning -- Brittain has so far forced Twitter to… move his case to another venue. (via Eric Goldman)

Twitter invoked the forum selection clause of its terms of service -- terms Brittain agreed to time and time again as he created new accounts only to have them permanently suspended later. The terms say Twitter can move your lawsuit to its preferred venue (California federal court) and if you don't like it, well… you can just not use Twitter and/or sue Twitter.

Brittain's attempt to avoid having his Arizona lawsuit moved to California contains some rather novel legal arguments. First, he claimed Twitter's terms of service were invalid because [checks filing] it doesn't contain the mandatory "option" of arbitration. Here's the court's take [PDF]:

Brittain asserts that the Terms are unconscionable because they contain no arbitration clause and “have changed over time without arbitration.” Doc. 27 at 4. But Brittain cites no legal authority suggesting that Twitter is required to include an arbitration clause in its Terms. Nor has he otherwise shown that the Terms are unconscionable or illusory.

Second, he claimed it would be impossible for him to continue his doomed lawsuit in another state because he has no way of getting to California. It may be true -- and forum selection does tend to create unnecessary expenses for plaintiffs/defendants -- but in this case it isn't because the federal courts are accessible by those with limited travel options.

Brittain asserts that his status makes it “gravely difficult” for him to participate in the litigation. Doc. 27 at 2, 5. He notes that he “is traveling primarily by bicycle and/or public transportation to file, upwards of 40 miles per trip[.]” Id. at 2. But the Northern District of California permits filing by mail, eliminating the need for Brittain to bicycle or use public transportation to file court documents.3 The fact that Brittain is a self-represented, indigent litigant is no basis for not enforcing the forum selection clauses. As noted, the private interests of the parties must be weighed in favor of the preselected forum. See Yei, 901 F.3d at 1087. Brittain has not shown that litigating in California “will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” M/S Bremen, 407 U.S. at 18.

Brittain also claims millions of social media users would cry out at once and be silenced if Twitter was allowed to take Craig's unwinnable lawsuit to California. Brittain asserts… reasons.

Brittain further asserts that enforcement of the forum selection clauses would “contravene a strong public policy of the venue in which the suit was brought,” and “the public policy of . . . the District of Arizona is superior to that of the requested forum.” Doc. 27 at 5. He cites the purported “public interest of over one billion total users,” including “tens of millions who have been censored, deverified, or suspended by Twitter,” but draws no connection between the interests of those alleged users and Arizona public policy.

The court is not swayed.

Twitter notes, correctly, that Arizona public policy favors enforcing forum selection clauses. Doc. 30 at 8. “Enforcement of a forum selection clause such as the one[s] at issue does not contravene any strong Arizona public policy as Arizona courts routinely hold that forum selection clauses are presumptively valid and that the party claiming the oppressiveness or unreasonableness needed to invalidate such a clause must meet a heavy burden of proof.”

Brittain's lawsuit is still alive for the time being. He'll just have to lose it in California, rather than in front of the home crowd.

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Posted on Techdirt - 15 January 2019 @ 9:34am

Federal Judge Says Compelling People To Unlock Phones With Their Fingerprints/Faces Violates The 5th Amendment

from the surprising-turn-of-events dept

The advent of biometric "passcodes" -- fingerprints and facial recognition -- appear to be leaving those who choose these methods with fewer Fifth Amendment protections. A handful of courts have ruled fingerprints and faces aren't "testimony." Much as officers can collect fingerprints and mugshots without a warrant following an arrest, they can also apply fingers and faces to locked phones to get to the data inside.

But it's not as simple as some court decisions make it appear. Even passwords can be considered testimonial, as they may indicate ownership of a locked device or compel production of evidence to be used against the device's owner. The passcode argument has gone both ways in court, which usually comes down to the individual judge's definition of "foregone conclusion." Does the foregone conclusion refer to the device's ownership or the evidence contained in it? The latter is harder to prove, and raising the burden of proof to this level tends to result in courts finding the compelled production of passwords to be a Fifth Amendment violation.

Via Thomas Brewster at Forbes, there's finally some good news on the biometric security front. A federal judge in California has ruled forcing people to unlock phones using biometric measures is a Fifth Amendment violation.

[I]n a more significant part of the ruling, Judge Westmore declared that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking their devices with their biological features.

As the court points out [PDF], when the fingerprint IS the password, the Fifth Amendment is implicated despite these features normally being considered non-testimonial.

The Court finds that utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. First, the Government concedes that a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. In this context, biometric features serve the same purpose of a passcode, which is to secure the owner's content, pragmatically rendering them functionally equivalent.

The court notes law enforcement is well aware of jurisprudence surrounding device security. In this case, the more time that passed between the seizure of the devices and their compelled unlocking, the less likely law enforcement would be able to evade the Fifth Amendment. Judge Westmore doesn't find this reasoning acceptable.

[A] passcode is generally required "when a device has been restarted, inactive, or has not been unlocked for a certain period of time." This is, no doubt, a security feature to ensure that someone without the passcode cannot readily access the contents of the phone. Indeed, the Government expresses some urgency with the need to compel the use of the biometric features to bypass the need to enter a passcode. This urgency appears to be rooted in the Government's inability to compel the production of the passcode under the current jurisprudence. It follows, however, that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one's finger, thumb, iris, face, or other biometric feature to unlock that same device.

The court goes on to say the government had other options to access messages -- like approaching Facebook with a warrant -- rather than intrude on the Fifth Amendment (and the Fourth Amendment -- more on that in a moment), but it chose to do it this way. Just because it's easier and faster to do it via compelled production doesn't make it right. In fact, in the court's eyes, all this effort did was violate the Constitution in multiple ways.

An attempted assault on the Fourth Amendment also occurred in this case. Investigators looking for evidence of extortion via Facebook sought to have every device and person at a residence seized and searched, with every resident compelled to unlock devices found during the search. As the judge points out in the rejection of the search warrant application, the Fourth Amendment requires far more specificity.

This request is overbroad. There are two suspects identified in the affidavit, but the request is neither limited to a particular person nor a particular device.

Thus, the Court finds that the Application does not establish sufficient probable cause to compel any person who happens to be at the Subject Premises at the time of the search to provide a finger, thumb or other biometric feature to potentially unlock any unspecified digital device that may be seized during the otherwise lawful search.

This is a far better answer to this sort of request than others we've seen. Searching someone's home and digging through their electronics is one of the scariest powers the government has. The Fourth Amendment is in place to limit these exercises of immense government power to those that are justifiable and necessary. When judges grant overbroad orders, they're doing more than failing to act as a check against government abuse. They're normalizing abuse of citizens' rights via judicial precedent.

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Posted on Techdirt - 14 January 2019 @ 2:15pm

Sixth Circuit Appeals Court Latest To Say It's Cool If The FBI Broke The Law During Its Playpen Investigation

from the deterrents-never-used-will-rarely-exhibit-a-deterrent-effect dept

The seventh Appeals Court to weigh in [PDF] on the FBI's Network Investigative Technique deployed in the Playpen child porn investigation has weighed in. Unfortunately, it makes the Sixth Circuit the seventh appeals court to find the FBI's warrant problematic, but willing to apply the "good faith" band-aid.

The problem with the application of the "good faith exception" is it assumes good faith on behalf of the FBI. There's no reason to believe the FBI acted in good faith, though. While it was in the process of obtaining a single warrant allowing it to search computers all over the world, it was well aware Rule 41 limited searches to the jurisdiction where the warrant was obtained. It knew this because the DOJ was in the process of asking the Supreme Court and Congress to change Rule 41 to remove the jurisdiction limits while it was pursuing this investigation.

The Appeals Court grants good faith anyway, despite this background. It does do us (and the appellant) the favor of discussing good faith in light of the DOJ's simultaneous attempt to codify searches it was already performing, but just because the discussion is expanded a bit doesn't mean it makes much sense. Here's the opening of the Sixth Circuit's federal forgiveness pitch:

The good-faith exception is not concerned with whether a valid warrant exists, but instead asks whether a reasonably well-trained officer would have known that a search was illegal.

A "well-trained officer" should never have sought the search warrant in the first place, because a "well-trained officer" would have known search warrants were limited to the jurisdiction they were issued in. But the agent sought the warrant anyway and a magistrate judge actually approved it. The judge's approval means more to the Sixth Circuit than the FBI's bad faith proposition.

For the same reasons articulated in Master, we conclude that the good-faith exception is not categorically inapplicable to warrants found to be void ab initio. The difference between a state court judge acting without authority and a federal magistrate judge acting without authority is of little significance—in both instances, the individual who signed the warrant (arguably) had no power to do so. Master’s holding that the good-faith exception applies to one applies with equal force to the other. Accordingly, the good-faith exception to the exclusionary rule is not categorically inapplicable to warrants that are void ab initio because of a magistrate judge’s jurisdictional error.

But the case cited (Master) isn't applicable to this situation. In that case, an officer presented a warrant request to the wrong county judge, accidentally obtaining permission to search outside of the judge's jurisdiction. A similar mistake could not have possibly been made with this warrant request. A federal magistrate -- whose jurisdiction covers an entire state -- could not have been mistakenly approached to grant permission to search an entire nation. The FBI's warrant affidavit clearly states it sought to search computers without knowing where any of the targets were located. The judge saw this and signed it anyway. Even if the judge blew the call, there's no way anyone can argue with a straight face the FBI did not know the warrant request violated the law as it stood when it requested permission to deploy its NIT.

It may have been "reasonable" for the FBI agent to rely on the issued warrant, but only if you ignore what was happening at the DOJ during the time this investigation was occurring. In fact, it can be argued this investigation and a similar one in 2014 expedited the DOJ's efforts on this front as it surely recognized some judges were going to find its NIT warrant invalid.

This explanation by the Sixth Circuit of its decision to extend good faith to the FBI agent doesn't help. In fact, it doesn't make sense.

But reasonable jurists have come to different conclusions about whether the NIT Warrant was valid. Compare United States v. Austin, 230 F. Supp. 3d 828, 833 (M.D. Tenn. 2017) (finding the NIT Warrant does not violate Rule 41(b) because it is the equivalent of a “tracking device” and therefore falls under the ambit of Rule 41(b)(4)), with United States v. Croghan, 209 F. Supp. 3d 1080, 1089 (S.D. Iowa 2016) (concluding that the magistrate judge lacked authority to issue the NIT Warrant), overruled on other grounds by Horton, 863 F.3d at 1052. We cannot, therefore, expect officers to have known that this type of warrant was invalid at the time it was sought. See Workman, 863 F.3d at 1321 (“[I]f a violation took place, it has escaped the notice of eight federal judges who have held that the same warrant complied with federal law and the federal rules even though data was being extracted from computers outside the Eastern District of Virginia. . . . [E]xecuting agents could reasonably have made the same mistake and reasonably relied on the magistrate judge’s decision to issue the warrant.”).

The court is saying an FBI agent -- requesting a warrant in 2015 -- can be excused for his Rule 41 ignorance because court decisions made 1-2 years after the warrant was sought suggest the NIT warrant area might have been a bit more gray than previously imagined. Furthering the retroactive forgiveness, the court goes on to point out -- as others have -- that Rule 41 changes, which went into effect more than two years after the warrant was obtained, now makes this sort of search legal. Since suppressing evidence is supposed to deter bad behavior by law enforcement, a past abuse that has been codified into law does not present further opportunities for exactly this same abuse of authority.

Certainly it would be impossible to violate rights in the same exact way again, what with the rules having been changed following the abuses contained in this investigation. But the deterrent effect of suppression would discourage law enforcement from seeking permission to perform illegal searches, even if there's a chance those searches may become Constitutional in the future due to changes in the law. This is the court telling law enforcement to roll the dice in edge cases because you just never know what the future might bring. This encourages misconduct because it demonstrates the extent of the federal courts' capacity to forgive.

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Posted on Free Speech - 14 January 2019 @ 10:43am

Federal Court Says Iowa's Ag Gag Law Is Unconstitutional

from the because-of-course-it-is dept

As farms have found themselves scrutinized for their practices, there's been a legislative desire to cover questionable actions under the protective garb of opacity. Ag lobbyists have successfully pushed for laws criminalizing the exposure of facts. As a bonus, they've also secured legislation labeling animal rights activists and others concerned about farm animal well-being as "terrorists."

The victories have been short-lived. Anyone not completely consumed by self-interest would recognize the laws violate the First Amendment by preventing fact-gathering or dissemination of observations by those who've bluffed their way onto farms precisely to uncover abusive practices. Courts are overturning these laws, but that's not stopping anyone from writing new ones just as unconstitutionally sound. Fortunately, a recent federal court decision [PDF] adds to the ammo opponents of these laws can use to bring them down. (via Courthouse News Service)

Iowa's "ag gag" law was a direct response to criticism of farm practices -- criticism driven by undercover investigations by journalists and activists posing as farm employees. State legislators had a host of bad reasons for the law -- all of them dancing around the actual reason: to prevent criticism of farm practices.

Lawmakers described the bill as being responsive to two primary concerns of the agricultural industry: facility security (both in terms of biosecurity and security of private property) and harms that accompany investigative reporting. For example, as to security, then-Representative Annette Sweeney provided: “With this bill we want to make sure everybody involved in our livestock facilities and working within in those facilities is forthright, and want to make sure our livestock is being kept safe,” and then-Senate President John “Jack” Kibbie supported an early draft of the bill because “[t]here’s viruses that can put these producers out of business, whether it’s cattle, hogs or poultry.” As to reputational harms, former Senator Tom Rielly commented on a draft version of the bill: “What we’re aiming at is stopping these groups that go out and gin up campaigns that they use to raise money by trying to give the agriculture industry a bad name.”

It's surprising the real reason is named, even if the phrase -- "harms that accompany investigative reporting" -- is polluted by spin. The rest is disingenuous gibberish. Keeping employees "forthright" was never the point. Actual non-activist employees weren't prevented from lying about animal treatment practices. And the easiest way for the ag industry to fight a negative reputation would be to end the practices that give it a "bad name." Since that clearly wasn't going to happen, captured regulators decided to poke holes in the First Amendment. The court is here to close those holes and send legislators and their favorite lobbyists back to the drawing board.

The court says that even if it buys the government's arguments for the enactment of the law, it's stated reasons (which ignore the desired side effect of preventing the public from learning about the industry producing its food) aren't enough to justify this intrusion on First Amendment rights.

However, accepting Defendants’ argument that property and biosecurity are the state’s actual interests protected by § 717A.3A, the Court is persuaded these interests are important; but they are not compelling in the First Amendment sense. Herbert, 263 F. Supp. 3d at 1211-12 (assuming, despite record evidence to the contrary, that the state’s proffered interests— protection from spread of disease; injury to animals and workers caused by unauthorized actions—were the actual reasons for enacting the statute, but finding that the harms targeted were “entirely speculative,” and therefore could not be considered compelling); Otter, 118 F. Supp. 3d at 1207-08 (finding the state’s “interest in protecting personal privacy and private property” to be important, but not compelling; furthermore, “even if the [s]tate’s interest in protecting the privacy and property of agricultural facilities was ‘compelling’ in the First Amendment sense, [the statute] [wa]s not narrowly drawn to serve those interests”).

You'd think a state government so concerned about "protecting" favored industries would have done a little more on the evidence-gathering front. Then again, maybe it did but (surprise!) couldn't find anything to justify its legislative stance. Either way, the end result is the same: the First Amendment isn't subject to legislators' fantasies.

Defendants have produced no evidence that the prohibitions of § 717A.3A are actually necessary to protect perceived harms to property and biosecurity.


Defendants have made no record as to how biosecurity is threatened by a person making a false statement to get access to, or employment in, an agricultural production facility. Nor, in the absence of any record to the contrary, will the Court assume that biological harm turns on a human vector making a false statement unrelated to such harm in order to gain access to the facility. Protecting biosecurity is therefore purely speculative and cannot constitute a compelling state interest.

Furthermore, the stated interests are already protected by laws against trespassing and possessing pathogens with the intent to harm the health of farm animals or crops. The state argued the trespassing law doesn't seem to be deterring trespassers, but the court counters this by asking why the state thinks using the First Amendment as a doormat will be a more effective deterrent to trespassing.

The court speculates there may be a way to craft a law that deters what the state says it wants to deter, as well as the things the state won't admit it wants to deter, but this ain't it chief.

To the extent that a violation of § 717A.3A can be likened to the common law breach of a duty of loyalty, to criminalize such a breach goes far beyond what is necessary to protect the state’s interests and allows for expansive prosecution.

No matter what your stated reasons are for implementing a law, if the actual target is the act of journalism -- gathering facts and reporting on observations -- you're going to run into Constitutional challenges. And if you're not honest about what you're really targeting, your law won't survive judicial examination.

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Posted on Free Speech - 11 January 2019 @ 12:42pm

Vietnamese Government Whines Facebook Isn't Helping It Censor Critics Quickly Enough

from the get-bent-fellow-UN-member dept

The censorship arm of the Vietnamese government is at it again, complaining that it's not getting enough censorship accomplished. The target of its complaints is, oddly enough, a former enabler of its dissent-stifling efforts, Facebook.

To help it snuff out criticism and dissent, the government granted itself expansive new powers with a cybersecurity law that went into effect at the beginning of this year. When a law is clearly written to target government critics, it appears that it can be applied a lot more broadly, especially when the definition of "cybersecurity" includes all of this:

According to the ABEI [Authority of Broadcasting and Electronic Information], Facebook had violated Vietnamese laws in three major areas of managing information content, online advertising and tax liability.

Facebook had not reportedly responded to a request to remove fanpages provoking activities against the State at the request of authorities.

Facebook had also allowed content from personal accounts to post slanderous content, anti-government sentiment and libel and defamation of individuals, organisations and State agencies. This content had been found to seriously violate Viet Nam’s Law on Cyber Security, Government’s Decree 72/2013, on the management, provision and use of internet services and online information and the MIC’s Circular 38 detailing the provision of public information across the border.

Just like that, criticism of the government becomes an cybersecurity threat, as does libel, defamation, and, um, providing public information across borders. Vietnam censors are angry Facebook hasn't responded to multiple emails demanding the removal of "distorted or misleading" content. However, Facebook has responded, telling the Vietnamese government these posts don't violate "community standards."

Apparently, the Vietnamese government is going to tax Facebook into submission.

According to ANTS market research company, in 2018, spending on online advertising in Viet Nam was estimated at US$550 million, of which advertising spent on Facebook and Google were $235 million and $152.1 million respectively. However, the two have reportedly ignored their tax obligations in Viet Nam.

The fact that foreign businesses such as Facebook do not pay taxes had caused the state to lose money and float the online advertising market, said the ABEI.

If this doesn't work (and it won't), the government is going to do other vague things ("necessary economic and technical measures") to hurt Facebook and "ensure a clean and healthy network environment." One "necessary economic measure" is somehow blocking Facebook from collecting money for "hatred advertising," whatever the hell that is.

What the government really wants is direct control. The Financial Times reports the government is demanding Facebook physically set up shop in Vietnam as the new law requires. Having a local office makes it that much easier for men with guns to follow up on ignored content removal requests. For exactly this reason, Facebook should never create a Vietnam office, unless it's going to do it patent troll-style and rent out an empty office and tell the Vietnamese government all content removal requests must be mailed to the nearest strip mall with a Mailboxes, Etc.

The Vietnamese government doesn't have much leverage as it loves having access to Facebook to deliver its version of events, as well as give its 10,000 full-time internet monitors something to look at. So, it's not going to kick Facebook out. It's just going to keep demanding fees it can't collect while claiming anything anti-government is a threat to the nation's safety.

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Posted on Techdirt - 11 January 2019 @ 10:45am

CBP Will Search You And Your Property If You're Paying Too Much Attention To An Agent. Or Too Little.

from the all-that-can-be-said-for-sure-is-the-CBP-is-going-to-be-performing-searches dept

There's a lot of talk about border security recently. Rather strangely, it involves CBP officers going without paychecks for an indefinite amount of time as government funding is held hostage in exchange for border wall/fence money.

Not that the CBP needs to remain near the wall/fence. It's able to hassle people within 100 miles of the border, which also includes international airports and has the capability to sweep up most of America's population. And that's just CBP officers. The CBP's drones are being lent out to anyone who wants to use one as far inland as they want to use it.

The CBP performs a whole lot of searches. Over the past couple of years, the CBP has vastly increased the number of electronic searches it performs, needing little more than "because it's there" to perform at least a surface scan of a device's contents. Deeper digging requires extra paperwork, but a staggering amount of exceptions to the Fourth Amendment apply at the borders which, as we noted earlier, covers far more than points of entry.

The ACLU's FOIA lawsuit has resulted in the production of a couple of lengthy documents from the CBP. These documents detail search procedures and the CBP's long list of justifications for performing these searches. There are 1,200 pages in the newly-released stash. 1,100 of them are the CBP's "Enforcement Law Course" [PDF]. The other 100 are a Powerpoint [PDF] containing "legal update training."

The CBP has studied every Fourth Amendment-related legal decision to compile a long list of things officers can use to predicate a warrantless search. This multi-jurisdictional paper chase results in the expected internal contradictions, resulting in the CBP being able to argue both sides of a flipped coin can give them permission to perform a search. Here's a quick summation of some of the documents' contents by Max Rivlin-Nadler of The Intercept.

[The CBP] can determine “whether the vehicle or its load looks unusual in some way,” or “whether the passengers appeared dirty.” If those descriptions don’t apply, they can assess “whether the persons inside the vehicle avoid looking at the agent,” or conversely, “whether the persons inside the vehicle are paying undue attention to the agent’s presence.” And if those don’t apply, they can simply determine that the car is in an area nearby the border and pull it over on that basis alone.

Being near a border is inherently suspicious, even if someone has only made the mistake of residing legally within 100 miles of a border or airport. That sucks for them since it means any trip out of town and onto a major highway could result in a fully "justified" search.

When Border Patrol officers aren't claiming their dogs can detect smuggled humans in moving vehicles dozens of feet away, they're saying whatever comes to mind to justify a search they've already performed. A much longer list of search predicates -- culled from hundreds of legal decisions all over the nation -- is contained in the documents.

(1) whether the vehicle is close to the border;
(2) whether the vehicle is on a known smuggling route;
(3) whether the vehicle’s presence is inconsistent with the local traffic patterns;
(4) whether the vehicle could have been trying to avoid a checkpoint;
(5) whether the vehicle appears to be heavily laden;
(6) whether the vehicle is from out of the area;
(7) whether the vehicle or its load looks unusual in some way;
(8) whether the vehicle is of a sort often favored by smugglers;
(9) whether the vehicle appears to have been altered or modified;
(10) whether the cargo area in the vehicle is covered;
(11) the time of day or night at which the vehicle is spotted, and whether it corresponds to a shift change;
(12) whether the vehicle is being driven in an erratic or unsafe manner;
(13) whether the vehicle appears to be traveling in tandem with another vehicle;
(14) whether the vehicle looks as if it has recently been driven off road;
(15) whether the persons inside the vehicle avoid looking at the agent;
(16) whether the persons inside the vehicle are paying undue attention to the agent’s presence;
(17) whether the persons in the vehicle tried to avoid being seen or exhibited other unusual behavior;
(18) whether the driver slowed down after seeing the agent;
(19) whether the passengers appeared dirty;
(20) whether there is intelligence available that suggests that smuggling will occur in the area or by a specific vehicle; and
(21) whether the vehicle is coming from an area of a sensor alert.

Heads, the CBP wins. Tails, citizens and visitors lose.

As this chart shows, a whole lot of searching can be performed under the "Border Exception." Things and people that have crossed a border tend not to require probable cause or warrants to be searched.

The CBP is going to perform a search. That's pretty much all there is to it. The only thing limiting it is hours in the day. The courts aren't helping either. They've been lulled to sleep with statements about "border integrity" and "national security," becoming complicit in a unilateral removal of rights for anyone in the areas the CBP is allowed to roam.

There's no upside here. The steady deterioration of rights near the border will continue. There hasn't been a presidential administration yet willing to put an end to the DHS's mission creep. And it really doesn't matter how well the CBP knows its Fourth Amendment caselaw. It will still be granted good faith exceptions for searches that somehow manage to implicate what's left of the Fourth Amendment because protecting the nation is somehow more important than protecting the rights of its citizens.

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Posted on Free Speech - 11 January 2019 @ 9:22am

Appeals Court: First Amendment Violation To Ban Members Of The Public From Gov't Officials' Facebook Pages

from the seems-obvious-but-let's-keep-stacking-up-the-caselaw dept

Late last spring, a federal court in New York made it clear Trump's blocking of Twitter users violated those users' First Amendment rights. As the court reasoned then, Twitter may be a private company, but the use of it by government official to engage with the public makes it a limited public forum -- limited to Trump's account and Twitter users' interaction with it. Twitter remains free to moderate as it pleases. The ruling did not say Twitter itself was a public forum, just government officials' use of the platform via official accounts.

When Trump's account blocked people he didn't like, he violated the First Amendment.

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that "[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs," ... and defendants do "not contest Plaintiffs' allegation that the Individual Plaintiffs were blocked from the President's Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies." ... The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.

Nearly a year later, another lawsuit involving government officials and their social media accounts has reached the appellate level. And the Fourth Circuit Court of Appeals has come to the same conclusion. The stakes may be smaller -- shrinking from the President and his millions of followers to a Virginia county board member -- but the outcome is the same. From the decision [PDF]:

The Chair's Facebook Page also is "compatib[le] with expressive activity." Cornelius, 473 U.S. at 802. "Congress [has] recognized the internet and interactive computer services as offering 'a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'" Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (quoting 47 U.S.C. § 230(a)(3)); cf. Bland, 730 F.3d at 386 (finding post to campaign Facebook page "constituted pure speech"). And the Supreme Court recently analogized social media sites, like the Chair's Facebook Page, to "traditional" public forums, characterizing the internet as "the most important place[] (in a spacial sense) for the exchange of views." Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). An "exchange of views" is precisely what Randall sought—and what in fact transpired—when she expressly invited "ANY Loudoun citizen" to visit the page and comment "on ANY issues," and received numerous such posts and comments.

But Chairperson Phyllis Randall didn't like Brian Davison's comments on any issues, especially those related to ethics and school board spending. So she banned Davison from posting comments to her page -- the same page she declared to be her "county Facebook page." The court's description of the page leaves little doubt it was being used as an official tool of communication by Phyllis Randall.

Randall created and administered the Chair's Facebook Page to further her duties as a municipal official. She used the Chair's Facebook Page "as a tool of governance," id. at 713: through the Chair's Facebook Page, Randall provides information to the public about her and the Loudoun Board's official activities and solicits input from the public on policy issues she and the Loudoun Board confront.

If a government official is going to use a social media account in this fashion, they can't ban others from accessing it or posting comments without violating the First Amendment. Randall's arguments about how "public" this "public forum" was -- what with a private company providing the communications platform -- don't budge the needle at all. As the court points out, any interpretation still leads to First Amendment violations.

Upon concluding that interactive component of the Chair's Facebook Page amounts to a public forum, we would normally need to determine whether it constitutes a traditional public forum or designated or limited public forum. In the present case, however, we need not decide that question because Randall's ban of Davison amounted to "viewpoint discrimination," which is "prohibited in all forums."

This really shouldn't be up for discussion but it will be as long as politicians think they can enjoy the advantages of third-party social media platforms with none of the downside. Talking to the public is always going to result in comments and questions government officials don't want to hear. But that's part of job. Being a public servant means dealing with the public, which can often be far from pleasant. Banning people on platforms is an easy way to silence critics, but it's almost always going to be a violation of their rights.

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Posted on Free Speech - 11 January 2019 @ 3:18am

LinkedIn Is Helping The Chinese Government Silence Critics

from the maybe-people-will-start-paying-attention-to-their-notifications-NOW dept

The social networks of the world aren't doing much to make the world a better place. Facilitating communications across borders is great -- a definite net gain for the world's citizens. But these platforms insist on distributing globally while thinking locally, making their operations subject to censorial governments in the countries where they do business.

Facebook's refusal to stand up to various authoritarian governments arguably made it an accessory to the fact in genocide. Twitter tends to sit back and let Turkey's government vanish away criticism of President Erdogan and his actions. Google appears to be one of the few companies responsive to the Chinese government's demands for content deletion, which is probably due to its ability to get past the country's Great Firewall as well as its temporarily suspended construction of a Chinese government-controlled search engine.

One social network rarely appears in these discussions, most likely because few people actually see it as a social network. LinkedIn -- the de facto adult in the world of social networking -- is also giving China what it wants when it wants it.

LinkedIn censored the profile and activities of a vocal critic of the Chinese government for users in China, in another apparent response to a censorship request from the government.

Corporate fraud investigator Peter Humphrey, who is British and lives in the UK, was informed by LinkedIn in December that his profile had been censored in China, but after being asked about it by BuzzFeed News this week, LinkedIn restored the page and said it had only been blocked in error.

It comes days after LinkedIn censored the page of a pro-democracy activist in China before also later restoring it after a wave of negative publicity.

LinkedIn is one of the only American social media services to be warmly welcomed on the other side of the Great Firewall. Consequently, this means it actually has something to report about China and its demands for content removal in its transparency reports. So far, the censorship plan is working... with an assist from LinkedIn.

LinkedIn is trying to have it both ways. It's complying with China's demands and saying things about having to follow the laws of the country it's doing business in, as it did in a message to Peter Humphrey about his account suspension. (Screenshot at this link.)

While we strongly support freedom of expression, we recognized when we launched that we would need to adhere to the requirements of the Chinese government in order to operate in China.

Then, when the heat comes down, LinkedIn is trying to pretend its proxy censorship was just a mistake.

Asked why Humphrey's profile had been removed in China, Nicole Leverich, a spokesperson for LinkedIn, said an internal review found the profile was “blocked in error.” It has now been restored for users in China, she said.

“Our Trust and Safety team is updating our internal processes to help prevent an error like this from happening again,” she added.

Swell, if that is what's actually going to happen going forward. But China is batting 9-for-9 in takedowns so far, which seems to indicate the review process kicks in only after people start complaining, rather than when LinkedIn receives requests from the Chinese government.

While it makes things easier to abide by local laws when offering services in other countries, companies shouldn't be in any hurry to indulge censorship just because locals laws enable the silencing of criticism and dissent.

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Posted on Techdirt - 10 January 2019 @ 10:44am

EU Court Adviser Says Google Shouldn't Have To Enforce A French RTBF Request Anywhere But In Europe

from the jurisdictional-limitation-is-not-exactly-a-novel-concept dept

The "Right to Be Forgotten" -- a European construct that allows people to erase their internet history at the drop of a takedown request -- should only apply in countries affected by the law. That would seem to be obvious but, so far, it hasn't played out that way. There has been insistence by a few judges and governments that delisting orders should cover anywhere Google's search engine can be used, rather than just in the originating country.

The abusable system has led to questionable delisting requests, which almost always results in the person making the dubious request generating even more URLs to target with the next round of takedowns. That's the nature of the internet, and that's why some judges think content delisted in one country should be made unavailable everywhere in the world.

For a while, it appeared the EU was inclined to agree with French regulators who believed they should be able to control the distribution of content worldwide from an office in Paris. Fortunately, it doesn't appear these regulators will get to control the internet. Reuters reports the EU court is probably going to end up siding with Google in this dispute.

Google can limit the “right to be forgotten” to internet searches made in the European Union, an adviser to the bloc’s top court said on Thursday, backing an appeal by the U.S. search giant against a French fine.

Now, this isn't guaranteed to happen. The Reuters report notes the EU Court normally follows the advice of its legal advisers, but not always. The French government doesn't appear willing to back down, despite this recommendation.

France’s CNIL data protection authority said it noted the opinion and restated its view that the right to privacy should apply regardless of the geographical origin of the person doing an internet search.

This "right" should be watched closely and exercised cautiously. Its short history shows this hasn't been the case. Google is compliant with most requests it receives, but there are still a number of bad faith efforts making their way through the system. Just like DMCA notices, some RTBF requests target legitimate and newsworthy content solely for the purpose of making embarrassing or inconvenient facts vanish from the web. Allowing a European country to control the world's search results will do little more than encourage further abuse.

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Posted on Free Speech - 10 January 2019 @ 9:27am

Chinese Police Now Performing Door-To-Door Twitter Censorship

from the have-you-heard-the-good-news-about-shutting-the-fuck-up? dept

The Chinese government doesn't have much interest in utilizing social media companies' online portals to target content it doesn't like. And there's plenty of content the government doesn't like. Between the Great Firewall and its obsessive tracking of citizens through pervasive surveillance tech and "Citizen Scores," there's really not much left for American social media companies to do.

The data contained in social media company transparency reports appears to indicate the Chinese government is capable of censoring content without outside assistance. Only Google's shows a significant amount of requests from the Chinese government. Facebook hasn't seen anything in years. And Twitter's report sports a gaudy "N/A" when it comes to content takedown requests from the Chinese government.

If you want something done right, you have to do it yourself.

The 50-year-old software engineer was tapping away at his computer in November when state security officials filed into his office on mainland China.

They had an unusual - and nonnegotiable - request.

Delete these tweets, they said.

The agents handed over a printout of 60 posts the engineer had fired off to his 48,000 followers. The topics ranged from U.S.-China trade relations to the plight of underground Christians in his coastal province in southeast China.

When the engineer didn't comply after 24 hours, he discovered that someone had hacked into his Twitter account - @hesuoge - and deleted its entire history of 11,000 tweets.

Facebook and Twitter are banned in China, but that isn't stopping Chinese citizens from using these services. The crackdown on Twitter, however, does far more to silence dissent than targeting other American social media services. Twitter has been a key outlet in many authoritarian countries where internet censorship is the norm, and even though only a very small percentage of Chinese internet users utilize Twitter, it seems to pose more of a threat to the Chinese government than other platforms with hundreds of millions of users.

The best way to make a point about not angering your government is to make it in person. The article says more than 40 in-person visits involving demands for tweet deletion have been reported, which is likely only a very small percentage of the number that have actually taken place. And, as this report shows, compliance is appreciated but not necessary.

He Jiangbing, a financial commentator, said police came to his Beijing living room to warn about his tweets.

Days earlier, officials visited the Guangzhou home of Ye Du, a well-known writer and supporter of the late Nobel Peace Prize laureate Liu Xiaobo, to hand him a printout of 802 tweets he needed to delete, Ye said in an interview.

Meanwhile, all 30,000 tweets from the account of Wu Gan, an activist serving an eight-year prison sentence, were deleted in November, which suggested a government hack, said Yaxue Cao, a Washington-based activist.

And, lest we pretend this sort of behavior is confined to nations with long histories of oppressing their own people, UK police have recently ramped up their in-person visits to request removal of offending tweets. The high road shouldn't be ceded so quickly by countries claiming to be at the forefront of personal liberty, not when the low road is clogged with so many nations already.

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Posted on Techdirt - 10 January 2019 @ 3:23am

FBI Officially Has A Leak Investigation Unit

from the because-why-not dept

The Obama Administration was never a fan of leakers and whistleblowers. The Trump Administration isn't either. And it's continuing to ramp up investigations in response to a steady stream of leaks that tend to arrive moments after executive proclamations in order to undermine or contradict whatever has just been proclaimed.

Fired company man Jeff Sessions thought the best plan to tackle leaks was prosecuting the recipients: journalists. Not really the best plan of action in a country with enshrined speech rights, but that's the way things are being done in the nation's capital. True to form, the DOJ has gone after leakers with a vengeance, threatening to rewrite all of Obama's personal prosecution records.

The FBI is getting in on the action, according to a document obtained by Ken Klippenstein of The Young Turks. The word "espionage" is tossed around, but most of what the Trump Administration has dealt with has been embarrassing, rather than a concerted effort to hand secret documents over to our country's enemies. Nonetheless, hunting leakers is official FBI business.

"By law, the FBI is the lead federal agency responsible for the investigation of violations of the espionage laws of the United States,” one document, bearing the subheader “Functions and Mission Statement” reads.

“The complicated nature of — and rapid growth in — unauthorized disclosure and media leak threats and investigations has necessitated the establishment of a new Unit,” the document continues.

The file, dated November 10, 2017, is heavily redacted — as are the rest of the records provided to TYT. One document, dated May 24, 2018, shows that the Bureau’s Resource Analysis Unit approved a request by its Counterintelligence Division to establish a new cost code, apparently for the new leaks unit.

As Klippenstein notes, the obtained document [PDF] indicates Jeff Sessions was a man of words, rather than a man of action. The establishment of the unit -- meaning the point at which it started being funded -- didn't occur until May 2018. Sessions claimed in August 2017 the FBI already had a leak-fighting unit in place and that leak probes had already increased by 800%.

Sessions' leak-targeting premature ejaculation may have been meant to scare government employees into keeping the feds' secrets. If so, it wasn't too effective. The rate of leaks has slowed from "daily," but there's no shortage of insiders willing to spill dirt on the chaotic White House to journalists.

The government isn't opposed to leaks, per se. It just likes to ensure the narrative it wants to project makes its way to the public before the truth even gets its pants on. That hasn't worked for years, as the Obama Administration discovered prior to its war on leakers and whistleblowers. It's not going to work here either, but it does raise the odds the First Amendment is going to suffer for the sins our government fails to keep covered up.

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Posted on Techdirt - 9 January 2019 @ 3:26pm

Dept. Of Interior Wants To Rewrite FOIA Law To Make It Easier To Reject Requests

from the fully-committed-to-screwing-the-general-populace dept

The US Department of the Interior wants to do all it can to comply with recent changes to FOIA law. It wants transparency and accountability just as much as US citizens want it. In the comments preceding its proposed changes [PDF] to FOIA response procedures, it has this to say:

The Department is fully committed to an equitable FOIA program that ensures compliance with the statutory requirements of transparency, accountability, and prompt production.

Here's how it's planning to "ensure compliance" and produce all the good stuff compliance would bring. (h/t Steve Reilly)

The bureau will not honor a request that requires an unreasonably burdensome search or requires the bureau to locate, review, redact, or arrange for inspection of a vast quantity of material.

Hmm. This doesn't sound like compliance at all. This sounds like an agency rewriting FOIA law to limit the number of FOIA requests it will respond to. This determination will be made solely by the agency, which is giving itself a brand new exception to FOIA requirements. Sure, requesters can challenge this determination, but it's probably going to take a lawsuit to dislodge documents held by an agency so very committed to "transparency, accountability, and prompt production."

The DOI says this new limitation is necessary because it's seen a surge in requests and litigation. These are inextricably linked, thanks to the agency's inability/unwillingness to respond to requests in a timely fashion.

The problem goes deeper than the backlog. Government agencies don't throw much money or manpower at responding to FOIA requests, preferring instead to spend taxpayer dollars fighting taxpayers in court over requested documents.

The DOI's recent leadership has contributed to this problem by making a relatively uninteresting department highly FOIA-able. Ryan Zinke's departure from the Department at the end of last year won't do much to slow the bleeding. Zinke's 21-month stint was marked by controversy after controversy, including shady real estate deals, abuse of travel privileges, $139,000-worth of office doors, and a long list of attacks on animal conservation efforts. The paper trail he leaves behind is of considerable public interest, and the surge in FOIA requests his agency is facing is evidence of that.

The good news is the public can comment on this proposed change. The bad news is, of course, the change could be implemented over the objections of the American people. The suggestion box is open but it's not like anyone's counting votes for and against.

If this does get codified, other federal agencies will certainly push for their own exception -- one that grants them the power to unilaterally reject FOIA requests. This will result in a self-fulfilling justification for increased restrictions on FOIA responses as agencies will always experience an uptick in FOIA litigation with rules like these in place.

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