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Posted on Techdirt - 20 March 2019 @ 11:59am

Washington Prison Management Software Setting People Free Too Early, Keeping Other People Locked Up Too Long

from the on-average,-it-works dept

All this technology is getting in the way of justice being served. For the second time in five years, Washington's Department of Corrections is dealing with issues created by its prisoner management software. Four years ago, this happened:

For three years, state Department of Corrections staff knew a software-coding error was miscalculating prison sentences and allowing inmates to be released early. On Tuesday, Gov. Jay Inslee gave the damning tally: up to 3,200 prisoners set free too soon since 2002.

For thirteen years, officials knew there was a problem with the software but did nothing about it. It wasn't until the state's governor got involved that anyone at the DOC started caring about its malfunctioning code. The code was supposedly fixed but new problems arose, affecting both sides of the jail walls.

A software problem has caused at least a dozen Washington prison inmates to be released too early — or held too long — and has sparked a review of as many as 3,500 cases.

Department of Corrections (DOC) officials are scrambling to determine whether the other inmates’ sentences were miscalculated and are still working to gauge the scope of the problem.

The previous bug miscalculated "good time" credits, resulting in thousands of premature releases. This time around, buggy code is screwing up calculations for inmates who have violated their parole. A few have benefited from the problem. But most of the cases being reviewed involve inmates who have been jailed for too long.

The previous calculation error resulted in two homicides by an inmate who was released too early. This time around, it's far more likely inmates who have served their time aren't being released. Either way, there's life and liberty on the line and the Department of Corrections is showing little sense of urgency when addressing these problems.

If there's a silver lining, it's this: with enough votes, the state's convoluted sentencing laws will be simplified, potentially making the calculation of sentences easy enough any human can do it.

[State Representative Roger] Goodman has proposed legislation, House Bill 1495, creating an 18-member task force that would review and recommend simplifications to the state’s sentencing guidelines, with a final report due by the end of 2020. He said his committee also may ask DOC leaders for a public briefing and explanation of the latest sentence-calculation problems.

Of course, this could take as long to fix as it took the state DOC to fix its original software problem. No answers would be expected for another 18 months, by which point new bugs in the DOC's software may surface and start handing out get out of jail free cards to some inmates and go directly to jail cards to others who've already served their time.

And if it's not working now, there's a good chance the DOC's software will never function properly. Part of the problem is the legislature itself, which complicates sentence calculations by adding new wrinkles with each legislative session. According to the Seattle Times, at least 60 bills in the pipeline could affect sentencing guidelines, increasing the chance of new calculation errors developing.

Software may be the only way to handle a job this complex. But those overseeing the software's deployment have shown they're not too interested in proactive maintenance of this complex system. Problems are eventually solved, years after the fact. That sort of responsiveness is unacceptable when guidelines are being constantly altered by new legislation.

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Posted on Free Speech - 20 March 2019 @ 9:32am

Federal Judge Tosses Cops' Lawsuit Against A Councilmember Who Said The Police Dept. Had Committed Murder

from the being-offended-isn't-the-same-as-being-harmed dept

A federal judge in Washington just reminded two Seattle police officers that a politician saying unkind things about law enforcement is not defamation. (h/t Peter Bonilla)

Following the killing of Che Taylor by Seattle police officers, councilwoman Kshama Sawant issued statements criticizing the Seattle Police Department for the shooting. From the decision [PDF]:

Approximately five days after the shooting, Sawant appeared before a crowd and media in front of the police department. This was not official city council business, and certainly not a “legislative function.” Sawant, however, implied awareness of inside factual information, and appeared to be making a statement against interest. With gravitas established, she went on to pronounce Che Taylor’s death a “brutal murder” and product of “racial profiling.”

Sawant reiterated these comments throughout the year, according to the lawsuit. However, she never directly accused the two suing officers -- Scott Miller and Michael Spaulding -- of being murderers. Her comments called the shooting a "brutal murder" and implied the PD engaged in biased policing, but at no time did she mention these two officers by name.

The officers argued Sawant's statements impugned them individually even though she only spoke about the police department as a whole. The court says suing as individuals and advancing a group theory of defamation takes far more than the officers showed in their complaint.

[W]whether proceeding under an individual or group theory, Plaintiffs must plead that the statements “specifically” identified or singled them out, or was understood as “referring to [them] in particular.” Sims, 20 Wn. App. at 236.

Here, Plaintiffs have not done so, and the Court finds that Councilmember Sawant’s statements do not satisfy the “of and concerning” requirement. According to the SAC, Councilmember Sawant, while standing in front of the Seattle Police Department, stated that “the police” committed a “brutal murder” which was “racially motivated.” (Dkt. No. 23 at ¶¶ 46, 54.) Councilmember Sawant did not identify Officers Miller and Spaulding by name, nor did she provide any information that would even remotely allow listeners to ascertain their identities, such as their rank or position, division or unit, precinct, or length of time on the force. Finally, Councilmember Sawant’s statements referred broadly to “the police,” the “Seattle Police Department,” and “systematic police brutality and racial profiling.”

Feeling insulted by blanket statements isn't a solid basis for a defamation lawsuit. The officers' attempt to tie reporting from local papers to the councilmember's statements fares even worse.

While Plaintiffs contend that Councilmember Sawant “continually brings it back to these specific officers and this specific incident” her references to “holding the Seattle Police Department accountable for their reprehensible actions, individual actions” and seeking “justice on the individual actions” do not clearly establish Officers Miller and Spaulding as their target. See Sims, 20 Wn. App. at 237 (“[T]he plaintiff must show with convincing clarity that he was the target of the statement.”) (emphasis added).

That the Seattle Times contemporaneously published an article identifying Officers Miller and Spaulding by name does not change this outcome. The “identification of the plaintiff[s] as the person[s] defamed” must be “certain and apparent from the words themselves,” without reference to extrinsic sources. Id. at 234 (emphasis added) [...] Finally, even if Plaintiffs were correct that the references to “individual actions,” coupled with their identification in the Seattle Times, could somehow transform what are otherwise vague and oblique statements into actionable defamation, the SAC does not plead any of these facts.

The officers have already been given one chance to turn their complaint into something actionable. The court isn't willing to give them a third try -- not when it's apparent this defamation lawsuit can't be fixed.

[E]ven if the Court were to grant Plaintiffs leave to amend to include these statements, they cannot satisfy the “of and concerning” requirement, and Plaintiffs make no effort to explain how they could resolve this deficiency, or how additional discovery could possibly uncover additional actionable statements.

The lawsuit is done. Dismissed with prejudice. These cops paid for the chance to learn that people saying unkind things is not actually defamation, especially when the person saying these things never names names. Thanks to this stupid lawsuit, Seattle taxpayers will be doubling up paying for these officers' actions. First, they paid for the city's defense of Councilmember Sawant's non-defamatory statements. They'll be asked to foot the bill again in the near future to defend these officers from a lawsuit brought by the family of the man they killed.

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Posted on Free Speech - 20 March 2019 @ 3:27am

Florida College Asked Local Sheriff To Declare Faculty Member's Artwork Obscene

from the christ-what-a-bunch-of-officious-assholes dept

Cops may not know art, but they know what they don't like. Blowing past the First Amendment to give their official opinion on art critical of law enforcement is never an acceptable "solution," but it's one that happens nonetheless.

Last year, a high school decided it would rather demonstrate its subservience to local law enforcement than stand behind its students and their First Amendment rights. Photos of a painting of a cop in Ku Klux Klan hood pointing a gun at a black child appeared in the school newspaper. Instead of running the article, a teacher ran down to the cop shop to offer a profuse apology on behalf of "99.9% of the teachers at the school." Returning to school with the aftertaste of boot polish still lingering in his mouth, he engaged a full-on tongue kiss with the town's mayor, who offered his own profuse (and cowardly) apology to the offended police department.

Now, as Sarah McLaughlin of FIRE reports, another institute of learning has decided the best approach to controversial artwork is to display its soft underbelly to law enforcement as quickly as possible. A faculty member's artwork was deemed "controversial." This is an unsurprising development. Controversy and artwork have enjoyed a long and healthy relationship for many, many years.

What is surprising is the university's reaction to the controversial artwork. Faculty member Serhat Tanyolacar's submission was met with a whole lot of resistance from Polk State (Florida) itself due to its subject matter.

Tanyolacar’s piece, “Death of Innocence,” depicts several poets and writers juxtaposed with a number of altered images of President Donald Trump and other political figures engaging in sexual activity. According to Tanyolacar, the work is meant to highlight “moral corruption and moral dichotomy” and provoke debate.

Polk State Program Coordinator Nancy Lozell informed Tanyolacar on Feb. 6 that it would not be displayed at a then-upcoming faculty art exhibition because the college “offers classes and volunteer opportunities to our collegiate charter high schools and other high schools in Polk county and we feel that that particular piece would be too controversial to display at this time.”

The university refused to offer any justification for this move when asked to explain its ignorance of the First Amendment by FIRE. It also refused to provide an answer as to when the artwork would be exactly controversial enough to be put on display.

But it gets a whole lot weirder and scarier and stupider. Documents obtained via public records requests show school officials decided to get local law enforcement involved in its First Amendment altercation. For reasons only known to the school (but reasons that certainly appear to be vindictive), the school asked the Polk County Sheriff (rather infamous around these parts) and the county district attorney to hand down an ad hoc obscenity ruling. This is part of the letter sent to the school's president by the school's attorney, discussing the "solid ground" the university would be on if it chose to keep censoring Tanyolcar's art.

Earlier this week, we understand that you and several other College administrators met with the Polk County Sheriff and an Assistant State Attorney for the Tenth Judicial Circuit to discuss the Work. We understand that both the Sheriff and the Assistant State Attorney have stated that they view the Work to be obscene material and that they intend to enforce Florida’s obscenity statute in the event that the Work is displayed to the general public without restriction.

Without question, the Work is an overt depiction of sex acts being committed by national politicians, including the President of the United States. Art is often in the of the beholder, but, as Justice Potter is known for saying, “I know [obscene material] when I see it.” Jacobellis v. State of Ohio, 378 US. 184, 197 (1964)(Potter, J., concurring). You are certainly entitled to rely upon the wisdom and advice of the County Sheriff and the State Attorney’s Office in determining if the local Polk County community would view the Work as obscene material. Given that law enforcement has opined that the Work is obscene, we feel constrained to advise you of the same.

Not only did the school approach law enforcement to get clearance to bury this artwork, it also received assurances the Polk County Sheriff's Department would arrest someone (probably the artist) if the work was displayed publicly.

It's difficult to express just how fucked up this is. Rather than support a faculty member's protected expression, the university went out of its way to find some way to punish him for creating it. It wasn't enough for Polk State to simply reject his submission and deal with the inevitable -- and accurate -- accusations of censorship. No, it had to go to one of the lousiest sheriff's departments in the country and ask for assurances someone would be rung up on obscenity charges should the blow-back force release of Tanyolacar's creation.

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Posted on Techdirt - 19 March 2019 @ 12:01pm

Officer's Body Cam Fails To Capture Footage Of Woman Shooting Herself In The Head While Her Hands Were Cuffed Behind Her

from the another-law-enforcement-miracle dept

There's more than one contortionist performance going on here. (h/t Greg Doucette)

A 19-year-old woman whose hands were cuffed behind her back when she committed suicide during a traffic stop in Chesapeake died of a gunshot wound through the mouth, according to the Office of the Chief Medical Examiner.

This is the official line -- one repeated several times by local journalists. The traffic stop leading to this highly unlikely conclusion occurred July 25, 2018. Here's what the Chesapeake Police Department said then:

Officers pulled over the car at 4:24 p.m. Wednesday near the intersection of Berkley Avenue and Wilson Road, police said in a news release Wednesday afternoon.

The exact timeline is not clear, [spokesman Leo] Kosinski said. As officers used a stun gun on the driver, Wilson, who was a passenger, shot herself, he said. Police attempted life-saving measures and called for medical assistance, but she died at the scene, the news release said.

The original report also noted the PD was looking at body cam footage from the scene to determine what happened.

Less than a week later, the initial impression was the official narrative.

Police had handcuffed Wilson when Medlin began resisting arrest and trying to flee, said Officer Leo Kosinski, police spokesman. Wilson was left standing next to the passenger side of the car while police rushed to help the officer who was trying to arrest Medlin, he said.

It was then that Wilson somehow got a gun and shot herself in the head, Kosinski said. It was not immediately clear how Wilson got the gun, but it was not a police weapon, he said.

“We clearly ruled that it was a suicide,” Kosinski said.

"We." I guess that means the PD since the medical examiner didn't hand down his declaration until March 14, 2019. The police department, however, made its own unscientific findings public twice in one week.

As for the body camera footage, there was nothing usable there.

One officer was wearing a body camera, but it was “knocked offline” while Medlin was fighting the officer, Kosinski said. If the camera hadn’t gone offline, it still wouldn’t have recorded the shooting, Kosinski said, because the officer was struggling with Medlin.

The police department has 356 cameras and deploys "40-60 per shift." The department has 525 officers so it seems the odds were in favor of there being multiple cameras on the scene. But the only footage recorded didn't capture the incident. Multiple police cruisers were on the scene, but the Chesapeake PD decided to eliminate dash cams when it acquired body cameras, removing one more impartial witness.

With the official word from the state, the Chesapeake PD closes the book on an extremely dubious "suicide." Whether this is just a bunch of lies or some very terrible police work, the end result is the same: someone in handcuffs ended up dead. The odds that this person decided to escalate a traffic stop to a successful suicide attempt are incredibly low. Something fucked up happened that afternoon and the police department hasn't even attempted to explain how something like this might have happened. Since the medical examiner has spoken, the Chesapeake PD has decided it's no longer obligated to provide an explanation.

The CPD launched an internal investigation into Wilson's suicide in July. Kosinski confirmed that the department has since concluded that investigation, but declined to comment on its outcome.

Worse, there's been no pushback from the local media covering this arrest and its ensuing, and completely unbelievable, suicide. This isn't journalism. It's stenography.

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Posted on Techdirt - 19 March 2019 @ 9:30am

ICE Officers Forging Signatures, Deploying Pre-Signed Warrants To Detain Immigrants

from the at-this-point,-only-ICE-thinks-ICE-shouldn't-be-abolished dept

[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Or whatever.

Here's ICE's much vaguer take on the Fourth Amendment, according to documents obtained by Brent Oxley, a fired ICE officer.

Internal emails and other ICE documents he obtained through a Freedom of Information Act request, since reviewed by CNN, show that other officers across the five-state region where Oxley worked had improperly signed warrants on behalf of their supervisors -- especially on evenings or weekends. Some supervisors even gave their officers pre-signed blank warrants — in effect, illegally handing them the authority to begin the deportation process.

Oxley forged signatures of supervisors. Other ICE officers didn't go that far. Many simply phoned up the supervisor who was supposed to be reviewing the warrants -- you know, to ensure they were compliant with the Constitution -- and then signed them on their behalf. In all the cases reviewed by CNN, no one was following the rules.

The President claims the "crisis" at the southern border warrants a national emergency declaration. The job ICE does is, apparently, too important to be done correctly. The agency is cooking the books to make it appear as though the nation is overrun by dangerous immigrants. Simultaneously, ICE threw manpower and funding at creating a fake college so it could sweep up immigrants and visitors attempting to comply with the law.

This warrant process that can barely be called a "process" is resulting in the illegal detention of immigrants who haven't violated the law. The Fourth Amendment is supposed to limit government wrongdoing, but ICE officers appear to believe civil rights are inconveniences to be routed around. It wants to make the fun part of the job -- rounding up people and detaining them -- more efficient.

The process is detain first, ask questions later, if ever.

One ICE deportation officer in the Northwestern United States, who asked not to be named because he wasn't authorized to speak for the agency, said his supervisors were not reviewing and signing individual warrants, called I-200s, as prescribed.

"I've had two supervisors since the memo came out. Both do it different ways, neither in the way that's outlined in the policy," the officer said. "My first supervisor would just sign the I-200s; he'd leave them blank and I would fill in the name later. My current supervisor tells us to sign his name for him." Most supervisors in that office do the same, he added.

It's only after ICE has someone in custody that anyone conducts a review of the paperwork. Apparently the agency feels comfortable abusing the rights of non-citizens, even though these same protections are extended to them by the government. It's a collective shrug from ICE towards the Constitution the agency's officers are sworn to uphold.

Brent Oxley is no hero. He's not even a whistleblower. This misconduct has come to light because the union representing ICE officers is trying to get a man who forged supervisors' signatures on warrants his job back. All Oxley was trying to show was that ICE's Fourth Amendment violations are common practice. He wasn't trying to expose the agency's wrongdoing. He was simply trying to justify his own.

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Posted on Techdirt - 18 March 2019 @ 3:32pm

Federal Court Blocks Washington State's Unconstitutional Cyberstalking Law

from the fixing-stupid dept

When legislators craft unconstitutional laws, it's a safe bet the first people to abuse them will be members of the government. We've seen this happen with outdated criminal defamation laws and the new wave of "Blue Lives Matter" legislation. Attempts to curb online evils like cyberbullying and revenge porn tend to disregard the First Amendment. If they're not challenged, they go on to be tools deployed by government officials to silence critics.

That's what happened in the state of Washington. A vociferous government critic found himself targeted by a displeased politician who used the state's cyberstalking law to obtain a very restrictive protective order to silence his online nemesis. As the federal court notes in its decision [PDF], the speech the critic engaged in is the very reason for the First Amendment's existence. (via Courthouse News)

Rynearson is an online author and activist who regularly writes online posts and comments to the public related to civil liberties, including about police abuse and the expansion of executive power in the wake of September 11. Rynearson’s writings are often critical—and sometimes harshly so—of local public figures and government officials. These writings are well within the traditions of independent American political discourse, and are intended both to raise the awareness of other citizens regarding the civil-liberties issues that Rynearson writes about, and to hold civic and political leaders accountable to the community through pointed criticism. This sort of expression is at the very heart of political speech which the First Amendment most strongly protects.

Rynearson's online posts were highly critical of politicians he felt didn't condemn the indefinite imprisonment of foreigners, something authorized by the NDAA (National Defense Authorization Act). One politician he felt was too enthralled with indefinite detention was Clarence Moriwaki.

[I]n February 2017, Rynearson wrote a series of public posts on Facebook criticizing Clarence Moriwaki, the founder of the Bainbridge Island Japanese-American Exclusion Memorial (“Memorial”), for failing to criticize Governor Inslee and President Obama for voting for/signing the NDAA. The thrust of Rynearson’s posts was that Moriwaki should be removed from his role as board member and de facto spokesperson for the Memorial because Moriwaki used the lessons of the internment, and his role with the Memorial, to criticize Republican politicians (chiefly, President Trump) in many media articles or appearances related to the Memorial, but failed to criticize Democratic politicians.

As the court notes, Rynearson used "invective" and "ridicule" to make his points. Moriwaki reported this ridicule (which, as the court points out, did not contain obscenity or threats) to local law enforcement. This did not result in an arrest, but Rynearson received a letter from the prosecutor notifying him she would "revisit" the possibility of prosecuting him if he didn't shut the hell up.

This also resulted in Moriwaki obtaining a protective order against Rynearson -- one that decided the First Amendment simply didn't exist.

For a period of time, from March 2017 to January 2018, Rynearson was also subject to a civil protection order imposed by the Bainbridge Island Municipal Court based on posts critical of Moriwaki. Moriwaki v. Rynearson, No. 17-2-01463-1, 2018 WL 733811, at *12 (Wash. Sup. Ct. Jan. 10, 2018). The cyberstalking statute was one of the statutes invoked by the Municipal Court in imposing the protection order. Moriwaki, 2018 WL 733811, at *5. The order imposed sharp limits on Rynearson’s speech, such as barring the use of Moriwaki’s name in the titles or domain names of webpages.

This order was vacated by the same court after Rynearson's Constitutional challenge. Now, Rynearson is challenging the law itself, pointing out (very reasonably) that the law's unconstitutional restrictions could see him on the receiving end of future protective orders or criminal charges.

The federal court says Washington's law is unconstitutionally overbroad, threatening a whole lot of protected speech.

Section 9.61.260(1)(b)’s breadth—by the plain meaning of its words—includes protected speech that is not exempted from protection by any of the recognized areas just described. Section 9.61.260(1)(b) criminalizes a large range of non-obscene, non-threatening speech, based only on (1) purportedly bad intent and (2) repetition or anonymity.

The state couldn't come up with much to defend its bad law -- just a couple of unpublished opinions that don't say quite what the state imagines they say. The federal court offers its rebuttal, which only cites the highest court in the land.

[T]he Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because “in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.”

With that, the federal court declares the law unconstitutional, handing Rynearson an injunction preventing the state of Washington from using the law against him.

Based on the record before the Court it is highly likely that in the final analysis the Court will declare the provision is unconstitutional and therefore unenforceable. Anonymous speech uttered or typed with the intent to embarrass a person as here, is protected speech. The plain meaning of the italicized words render 9.61.260(1)(b) unconstitutional.

For the reasons given here, this Court concludes that RCW 9.61.260(1)(b) is facially unconstitutional.

The law is effectively dead. The only thing surprising about this is that the law has survived so long without being struck down. For 15 years, it's been illegal to "embarrass" people online. It took a politician abusing the law to silence a critic to finally get it struck down.

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Posted on Techdirt - 18 March 2019 @ 11:59am

ICE Has Access To ALPR Databases, Bypasses Internal Restrictions By Outsourcing Searches To Local Cops

from the get-all-you-can,-then-ask-for-more dept

ICE has been wanting full access to the billions of license plate records stored in ALPR databases for years. The DHS first floated the idea more than five years ago. It was reined in briefly in response to public backlash and Congressional criticism, but the idea of a national ALPR database was never truly killed off.

ICE was the agency sending out quote requests for a national database access. A few minimal protections were put in place, but all that was holding ICE back was logistics. The contract was finalized at the beginning of last year, hooking ICE up with ALPR records gathered by the hundreds of plate readers operated by local law enforcement agencies. Now, all that third party work is paying off.

More than 80 law enforcement agencies in the US have agreed to share with US Immigration and Customs Enforcement (Ice) license plate information that supports its arrests and deportation efforts, according to the American Civil Liberties Union (ACLU), which obtained a trove of internal agency records.

The documents acquired by the ACLU show that Ice obtained access to a database with license plate information collected in dozens of counties across the United States – data that helped the agency to track people’s locations in real time. Emails revealed that police have also informally given driver information to immigration officers requesting those details in communications that the ACLU said appeared to violate local laws and Ice’s own privacy rules.

When the agency takes the formal, contracted path to ALPR data, it's running through two third parties: Vigilant, the leading manufacturer of plate readers, and Thomson Reuters, a multimedia conglomerate that has added data brokering to its portfolio of journalistic endeavors.

The original proposal limited ICE's access to the 50 biggest metropolitan areas. That's a lot of ground already, but the agreement allows local law enforcement in other areas to give ICE permission to browse their end of the Vigilant database. Not that it ultimately matters. Vigilant doesn't seem to worry too much about siloing off data. Most law enforcement agencies are sharing data with lots of other agencies already, so intermingling is an inevitability.

It also appears there's no expiration data on a lot of the data ICE is accessing. According to the documents, over 9,000 ICE agents have access to years a plate/location data, allowing them to reconstruct people's movements over a long period of time.

Whatever restrictions exist on ICE's access to Vigilant databases are easily avoided.

Emails showed that a police detective in Orange county, California, repeatedly conducted database searches in response to requests from an Ice specialist in criminal investigations. The two appear to have worked together frequently over several years, with the Ice employee providing details of the immigration investigations (such as information from a target’s Facebook page) and the local detective responding with license plate information.

“I am here for ya. :),” the detective wrote in one email to Ice, which included a report. In another exchange, after the Ice officer said “hate to ask” for more reports, the detective responded: “Come on, you don’t really hate to ask.. :).”

As the ACLU points out, these informal requests allow ICE to bypass the internal processes that are supposed to ensure access to this wealth of plate/location data is justified. The communications contained in these documents show ICE repeatedly ignoring these requirements.

At this point, everything will have to be fixed in post. Cops have been utilizing plate readers for years and Vigilant has been storing the billions of plate records generated every year for just as long. The DHS never needed to build a national license plate/location database. One was being built while it put on its little charade about respecting rights and citizens' freedom to move around the country without being surveilled.

The ACLU is demanding legislators enact more privacy protections for this data and engage in some actual oversight, but that ship has been sailing for years. ICE's access was an inevitability. It enacted privacy protections just so it could ignore them by asking local law enforcement to perform database searches. And it was all sold to the public with assurances ALPR tech would hunt down car thieves, kidnappers, and violent criminals. In reality, it's being used to track people who've overstayed their visas.

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Posted on Techdirt - 18 March 2019 @ 9:34am

Court Dismissed Lawsuit Brought Against Social Media Companies Alleging An Anti-Conservative Conspiracy

from the lawsuits-are-the-new-tinfoil dept

Alt-right sideshows Laura Loomer and Larry Klayman sued Twitter, Facebook, Google, and Apple for [checks filing] participating in a government-enabled conspiracy to deplatform Freedom Watch/Loomer in order to further a leftist agenda, etc. etc. ad nauseum. Their complaint alleged violations of the Sherman Act, DC's public accommodation law, and the First Amendment. In support of these allegations, the plaintiffs offered vague theories about "public platforms" and some misreadings of pertinent court precedent. (via Eric Goldman)

After a round of motions, the court has ruled in favor of everyone being sued. The decision [PDF] makes it clear none of the arguments made by the plaintiffs hold water, much less achieve complete coherence. The only thing the court agrees with is that Loomer and Freedom Watch have standing to bring the suit. But standing is only worth something when your arguments have merit.

While they have established standing, the Plaintiffs have failed to state viable legal claims. Consider first their Sherman Act arguments. Section 1 of the Sherman Act states that “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce among the 7 several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. “Independent action is not prescribed” by § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 760 (1984). So a valid claim must allege that the Platforms “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Id. at 764. The Plaintiffs’ claim fails to do this.

True, the Amended Complaint repeatedly states that the Platforms have engaged in a conspiracy or illegal agreement. See, e.g., Am. Compl. 4, 5, 12, 17. But it offers only these conclusory statements to suggest the existence of such an agreement. It includes no allegations, for example, that any of the Platforms met or otherwise communicated an intent to collectively suppress conservative content.

A conspiracy requires the participation of conspirators. But some of the alleged conspirators still played ball with the plaintiffs, which undercuts the conspiracy needed to sufficiently allege antitrust violations.

The Plaintiffs also suggest that the Platforms “have engaged in ‘conscious parallelism’ and in concert mimicked each others’ refusal to deal with Freedom Watch and Ms. Loomer.” Am. Compl. 21. But Freedom Watch admits that it “has and still does pay Google and YouTube, Facebook and the other Defendants for services.” Id. at 11. This admission contradicts assertions of a coordinated “refusal to deal” with the Plaintiffs.

The complaint fares no better when dealing with the second antitrust allegation -- the supposed "monopoly" power of the [checks notes] four defendants being sued. As the court points out, the plaintiffs could have brought some data to their legal fight. Instead, they chose to bring conclusory statements and assertions about "leftist agendas."

[T]he Plaintiffs offer no market share data for any of the Platforms in either the local or worldwide markets for media and news publications. Instead, they make claims about the “social network global market,” the “social networking advertising revenue” market, the “digital ad revenues” market, and the “mobile ad market.” Am. Compl. 18. And though the Amended Complaint states that “59% of Twitter users get their news through the Twitter platform” and that “48% of all American adults [get] their news from Facebook,” it offers no support for the notion that either firm has achieved or tried to achieve monopolization of the nationwide media and news publications market.

The allegations claiming that kicking Loomer/Freedom Watch violated DC's Human Rights Act is just as ridiculous. The court points out the law refers only to physical public spaces and it's not willing to re-litigate a DC circuit opinion and/or rewrite local law on behalf of the plaintiffs.

Finally, the court addresses the most ridiculous of all the lawsuit's assertion: that moderation decisions by social media services somehow violated the plaintiffs' First Amendment rights. The plaintiffs cite the Packingham decision by the Supreme Court, completely misreading that decision's findings. In that case, the court said the government couldn't prevent people from accessing internet services. Loomer and Klayman pretend it actually said platforms can't ban people from accessing their platforms. The district court points out the distinction the plaintiffs are ignoring.

True, in Packingham, the Supreme Court recognized that Facebook and Twitter are among the “most important places (in a spatial sense) for the exchange of views” in society today. 137 S. Ct. at 1735. But the case involved a challenge to a state law that limited the speech rights of certain criminals on these platforms. Id. at 1738. It did not create a new cause of action against a private entity for an alleged First Amendment violation.

The second citation from the plaintiffs isn't any better, and the court again restates the obvious: moderation decisions by private companies are not actions taken by government entities, no matter how many users the platforms accommodate.

[T]he Plaintiffs here allege no nexus between the Platforms’ actions and a function traditionally reserved exclusively to the state. Nor do they contend that the Platforms were designated by the state to perform a governmental operation. Instead, the Amended Complaint focuses on the Platforms’ alleged suppression of conservative political content. It details, for instance, the seemingly disparate treatment of conservative news publishers on Facebook and of conservative commentators on Twitter. Am. Compl. 4-5. But while selective censorship of the kind alleged by the Plaintiffs may be antithetical to the American tradition of freedom of speech, it is not actionable under the First Amendment unless perpetrated by a state actor. Thus, their claim must be dismissed.

This will surely be appealed. But the outcome will be the same. Actions by private companies can't violate rights and the existence of multiple social media platforms simultaneously preemptively defeats most antitrust allegations.

Some conservatives are convinced there's a leftist agenda being played out in social media. But rather than fight it with more speech, they're trying to bring the government in to fix these perceived problems. Whatever floats your speech boat, but remember, any "fixes" you get will remain in place for years -- even if the perceived pendulum swings the other way. The rules that "level the playing field" will come back to bite these agitators in their asses if they ever manage to talk a court or a bunch of legislators into taking their bad ideas seriously.

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Posted on Techdirt - 15 March 2019 @ 10:44am

Appeals Court: Stored Communications Act Privacy Protections Cover Opened And Read Emails

from the shouldn't-have-needed-to-be-said,-but-at-least-it-was-said-forcefully dept

The Fourth Circuit Court of Appeals has handed down an important decision [PDF] bolstering privacy protections for stored email. As we're painfully aware, unopened email older than 180 days is granted zero privacy protections, treated like unopened snail mail left at the post office. Opened email, on the other hand, would seem to carry an expectation of privacy, but a district court ruling came to exactly the opposite conclusion, prompting this appeal.

A lawsuit involving a pair of affairs and one party's decision to read someone else's emails surfaced a question not often posed without a government party involved. Here's the court's summary of the convoluted backstory that led to accusations of federal law violations:

From August 2011 to February 2015, [Patrick] Hately had an intimate relationship with Nicole Torrenzano (“Nicole”), with whom Hately has two children. During their relationship, Hately and Nicole shared login and password information for their email accounts—including Hately’s Blue Ridge College email account. But when, about March 2015, Nicole informed Hately that she also was involved in an intimate relationship with [Dr. David] Watts, who was her co-worker and married to Audrey Hallinan Watts (“Audrey”), Hately and Nicole separated.

Pertinent to this action, Hately did not change the password that he shared with Nicole for his Blue Ridge College email account. Watts and Nicole continued their personal relationship, and during the fall of 2015, Watts and Audrey initiated divorce proceedings. In an effort to help Watts in his divorce proceedings, Nicole told Watts that Hately and Audrey were having an affair. Nicole said she knew of emails between Hately and Audrey that Watts could obtain by using the password that she had to Hately’s Blue Ridge College email account.

This certainly doesn't make what Watts did OK, but he seemed to feel it at least made his actions legal.

Watts stated that he used the password Nicole gave him to browse through Hately’s emails but contended that he “did not open or view any email that was unopened, marked as unread, previously deleted, or in the [student email account]’s ‘trash’ folder.”

This bizarre defense of invading someone else's privacy convinced the lower court that Watts' actions were legally in the clear, even if they were clearly morally wrong. It dismissed his Stored Communications Act claims against Watts, stating that the SCA did not protect opened email. According to the lower court, the only email protected by the SCA is email still in transit. Once it's been downloaded and opened, it's apparently cool for other people to access and read, even if it's not their email account.

With this bizarre take, the lower court basically stated spam email routed directly to the trash has more privacy protections than direct communications between living, breathing persons. The appeals court points out this interpretation is off base by a long distance. A lengthy discussion of the SCA and Congressional intent -- along with a revival of Hately's state law claims -- takes up a great deal of the opinion's 55 pages.

Dr. Watts -- the email interloper -- argued the SCA did not protect these communications because the Blue Ridge College email server was not an "electronic communication service," but rather a "remote computing device." This argument hinged on the email system's construction, which used Google's services for transmitting and storing email. But the university also stored a copy of all Blue Ridge email on its own servers as a backup for users. This crucial fact restores the expectation of privacy, according to the appeals court, which points out Blue Ridge's backup server actually makes it both.

The district court's reasoning rests on the premise that, for purposes of the emails in question, Blue Ridge College's email service could not simultaneously function as both an electronic communication service and a remote computing service. But nothing in the plain language of the definitions of electronic communication service and remote computing service precludes an entity from simultaneously functioning as both.

There is no logical or technological obstacle to an entity "provid[ing] to users thereof the ability to send or receive wire or electronic communications"—i.e., functioning as an electronic communication service—while, and as part of the same service, "provi[ding] the public [with] computer storage or processing services by means of an electronic communications system"—i.e., functioning as a remote computing service. And the relevant legislative history expressly contemplates as much, stating that "remote computing services may also provide electronic communication services." S. Rep. No. 99-541, at 14; see also H.R. Rep. No. 99-647, at 64 ("[T]o the extent that a remote computing service is provided through an Electronic Communication Service, then such service is also protected [under Section 2701(a)].").

As the appeals court notes, it makes no sense to suggest email users consider opened email worthy of less protection than others they've sent directly to the trash without reading. Servers like the one used by Blue Ridge to back up the Google-based email system are the end result of users' desires. Users want to store emails for later reading or use. And Congress -- even with its horribly-outdated Stored Communications Act -- recognized the privacy inherent to these personal communications. This covers delivered and opened email, no matter where the original or its backup resides.

To read the law otherwise is to upend the personal nature of email communications, allowing almost anyone to access anyone else's email without permission and face zero consequences (at least under federal law) for doing so.

The district court’s construction of Subsection (B)—that previously delivered and opened emails stored by a web-based email service are not in “electronic storage” and therefore not actionable under Section 2701(a)(1)—would materially undermine these objectives. Potential users of web-based-email services—like Blue Ridge College’s email service—would be deterred from using such services, knowing that unauthorized individuals and entities could access many, if not most, of the users’ most sensitive emails without running afoul of federal law. Likewise, without the prospect of liability under federal law, unauthorized entities will face minimal adverse consequences for accessing, and using for their own benefit, communications to which they are not a party. The legislative history establishes that Congress did not intend such a result.

The district court’s interpretation of Subsection (B)—which would protect only unread emails stored in by web-based email service—also leads to an arbitrary and untenable “gap” in the legal protection of electronic communications.

Back the case goes to the lower court, reversed and remanded with instructions to reach a less illogical conclusion. And in doing so, the appeals court sets an important precedent that clarifies what the SCA actually covers.

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Posted on Techdirt - 15 March 2019 @ 9:51am

CBP Still Arresting Immigrants Trying To Stay In The Country By Furthering Their Education

from the bad-hombre,-ph.d. dept

Looks like ICE isn't finished protecting the nation from dangerous immigrants seeking to… attend local universities. A massive sting operation involving a fake college, fake accreditation, and hundreds of immigrants who paid for classes but received nothing more than an arrest in exchange for their cash is apparently still ongoing.

Federal immigration officials have arrested more students who were enrolled at a fake university in metro Detroit.

And many of the students who enrolled at the university created by the Department of Homeland Security (DHS) are now in the process of being removed from the U.S. as Indian-American advocates grapple with what they say is an unprecedented number of arrests of Indian students.

The U.S. Immigration and Customs Enforcement (ICE) has arrested 161 foreign students from the University of Farmington on civil immigration violations, ICE spokesman Khaalid Walls said this week.

To be clear, most of the students detained or arrested were doing exactly what the law allows them to do: stay in US while continuing their education. A (manufactured) shortage of H1-B visas made this the only legal option for many of these students. According to the lawyers representing the students, a majority of those arrested were enrolled in master's degree programs at the fake school. They had paid tuition and were fully expecting to be able to attend school while waiting for H1-B slots to open up.

It was ICE that arbitrarily decided attempting to follow the law was the equivalent of illegally overstaying their visas. The students thought they were dealing with a legit operation, which is exactly what ICE wanted them to think. It even secured accreditation for its fake school to better sell the false promise of students being able to do exactly what immigration law allowed them to do.

And for that, they're being arrested and deported. While ICE may have rounded up a few scammers selling students access to something they already rightfully had access to, the biggest scam was run by the government. The government created a fake school, took students' real money, and arrested them for trying to extend their stays legally.

Hopefully, this will see ICE hit with a number of lawsuits. It's difficult to imagine a court being OK with the details of this sting operation -- one that targeted immigrants and visitors trying to extend their stays lawfully. This is the kind of thing that "shocks the conscience," a legal term of art that leaves participating personnel and agencies with almost no legal defense for their actions and courts ready to step in and right the wrongs.

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Posted on Techdirt - 14 March 2019 @ 3:39pm

Arkansas Senate Unanimously Approves A Conviction Requirement For Asset Forfeiture

from the limited-good-news,-everyone! dept

Some more good news about asset forfeiture comes our way, courtesy of Lauren Krisai. It appears the Arkansas senate overwhelmingly agrees the abusive state of forfeiture it oversees cannot continue. The state senate unanimously passed an asset forfeiture reform bill that would institute a conviction requirement for seized assets, preventing law enforcement from policing for profit.

The bill would basically outlaw civil asset forfeiture in its current form, replacing it with criminal asset forfeiture. And it would prevent cops from using rinky-dink criminal charges to take property away from state residents.

There shall be no civil judgment under this subchapter and no property shall be forfeited unless the person from whom the property is seized is convicted of a felony offense that related to the property being seized and that permits the forfeiture of the property.

Unfortunately, it does contain a couple of loopholes. First, law enforcement can convert this back to civil asset forfeiture if it can show the person never responded to the civil complaint against their property. Tying this to a conviction requirement should make this tougher to exploit, seeing as a person dealing with a criminal complaint will probably be apprised of the state's desire to take their property.

Second, it still allows local law enforcement to take advantage of the federal government's equitable sharing program to bypass the new restrictions. The Tenth Amendment Center points out the state took a shot at closing this loophole with an earlier law. This is what the state's partially-closed loophole looks like:

(1) No state or local law enforcement agency may transfer any property seized by the state or local agency to any federal entity for forfeiture under federal law unless the circuit court having jurisdiction over the property enters an order, upon petition by the prosecuting attorney, authorizing the property to be transferred to the federal entity.

(2) The transfer shall not be approved unless it reasonably appears that the activity giving rise to the investigation or seizure involves more than one (1) state or the nature of the investigation or seizure would be better pursued under federal law.

Given that most seizures are performed by "drug interdiction units" or whatever, exploiting the federal loophole is as easy as claiming the property seized is part of a larger drug cartel's operations. Almost every state drug charge has a federal equivalent, so if local cops don't want to pursue a conviction, they can give the feds a cut of the seizure to bypass any state-level conviction requirements.

As the Institute for Justice notes, Arkansas has some of the country's worst forfeiture laws. And this legislative attempt to close the federal loophole has had zero negative effects on local law enforcement's ability to turn vague claims about drugs into cop shop petty cash.

Arkansas law enforcement received $27 million in DOJ equitable sharing proceeds between 2000 and 2013, which equates to roughly $1.9 million each calendar year. And these proceeds have been increasing steadily over the years, from a few hundred thousand dollars a year in the early 2000s to over $3 million in 2013.

If Arkansas legislators really want to end forfeiture abuse, they'll also need to address equitable sharing. Until that loophole undergoes further restrictions, it will be business as usual in the state. Cops would rather have 80% of something than 100% of the nothing they'll get if they feel they can't obtain a felony conviction.

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Posted on Techdirt - 14 March 2019 @ 1:32pm

Thai Government Uses Fake News Law To Lock Up Opposing Party Leaders

from the securing-a-nation-from-the-threat-of-free-and-open-elections dept

Thailand's government continues to make life miserable for its citizens. Pretending mass censorship and broken encryption are just the price citizens have to pay for a "secure" nation, the government has turned the internet into a minefield for critics and political opponents. This is all on top of a lese majeste law that criminalizes badmouthing the king, which would be horrible enough on its own.

Thanks to the leader of the free world, the term "fake news" is now being deployed to put people in real jails for sharing content of dubious origin or not in alignment with the official narrative. Shutting down criticism by deploying anti-fake news laws is a horrendous abuse of government power. But even legitimate uses of these laws are still troubling. Should the sharing of actually fake news be a criminal offense? The Thai government says yes.

A spokeswoman for the Future Forward party said on Tuesday that a representative of the ruling military junta had filed a police complaint accusing Pongsakorn Rodchompoo of violating the Computer Crime Act, which carries a penalty of up to five years in jail.

Pongsakorn has admitted sharing an article that accused a top junta official of buying cups of coffee for 12,000 baht ($377) each, but says he deleted the post within minutes after learning it originated from a website promoting fake news, Future Forward spokeswoman Pannika Wanich said.

Five other people were also arrested for sharing the fake story, but it's definitely a boon for the government in power when the law takes out a political opponent. Literally unbelievable, the government says the fake story -- which detailed government overspending that didn't actually happen -- posed a "threat to national security." Conveniently, the charges target the leaders of a political party current challenging recent election results.

If fake news is the new speech-damaging dodge, "national security" is the trusty standby -- one that's been used to increase censorship and surveillance all over the world, not just in nations run by hypersensitive authoritarians. The Thai government may be saying stuff about fake news and national security, but the real motivation is keeping its opponents quiet. Charges have also been filed against Future Forward party leader Thanathorn Juangroongruangkit for "putting false information online." The Guardian notes that Thanathorn is a "particularly articulate" critic of the Thai government and military.

And, because all of these new laws just aren't enough to keep every critic silent, the nation's criminal defamation law is still being used in particularly petty ways.

Thailand’s army chief, General Apirat Kongsompong, has ordered officials to file defamation charges against a former police chief who is running for prime minister after he made remarks regarding the many decorations on the general’s uniform...

Presumably, keeping the general's chest free from criticism will result in a more secure nation -- one run by some of the most insecure people in the country.

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Posted on Free Speech - 14 March 2019 @ 9:36am

Texas Senator Who's Experienced Some Press Criticism Introduces Bill To Gut State's Anti-SLAPP Law

from the fixer-here-with-the-fixes dept

Everything's bigger in Texas. Even the free speech protections. Texas has one of the strongest anti-SLAPP laws in the nation. These protections against bogus, speech-chilling lawsuits are so big they even covered a US President who complained libel laws in America were too restrictive, resulting in a swift dismissal of a defamation lawsuit brought against him over a fairly innocuous, if invective-loaded, tweet.

Some Texas legislators like the bigness of their home state, but not so much the anti-SLAPP law that deters bogus lawsuits filed to silence critics. The Reporters Committee for Freedom of the Press brings news that a bill that would gut a substantial amount of Texas' anti-SLAPP protections has been introduced into the state Senate.

House Bill 2730 and SB 2162 would allow the entity accused of filing a meritless lawsuit to drop their case just days before a hearing. This effectively allows an entity to sue a media company for defamation, receive a hearing date, and then drop the lawsuit days before a hearing to avoid a bad ruling and the cost of the defendant’s legal fees.

The bills would also remove clearly articulated categories of protected speech relating to matters of public concern from the Texas anti-SLAPP law. The legislation drops the definitions of those categories of public speech and deletes anti-SLAPP protections for communications between parties on matters of public concern.

In addition, the bill would weaken protections for anonymous parties by exempting online commenters from the law's anti-SLAPP protections, and would give defendants only three days to file an anti-SLAPP motion when hit with a defamation lawsuit.

Why would legislation like this be needed? There's no good answer. And by that, I mean anyone agitating for an increase in baseless lawsuits is up to no good. I'm sure there's a certain number of people with power or connections to power who are irritated they simply can't threaten critics into silence with a strong anti-SLAPP law in place. Getting their bluff called by defendants now costs them money and that's an unacceptable outcome.

It could be Angela Paxton -- the senator who introduced the bill -- finds it too difficult to target her critics under the current law. The rookie legislator is also the wife of state Attorney General Ken Paxton. Angela Paxton has only been in office since January 8 of this year and she's already generated a ton of negative press, thanks to her initial legislative effort which seemed crafted specifically to ease her husband's legal woes.

In what state Sen. Angela Paxton describes as an effort to safely expand Texas’ burgeoning financial tech industry, the freshman Republican from McKinney has filed a bill that would empower the office of her husband, Attorney General Ken Paxton, to exempt entrepreneurs from certain state regulations so they can market “innovative financial products or services.”

One of those exemptions would be working as an “investment adviser” without registering with the state board. Currently, doing so is a felony in Texas — one for which Ken Paxton was issued a civil penalty in 2014 and criminally charged in 2015.

I'm not saying Paxton wants to start silencing her critics. But I'm not not saying that either. Her excuse for the husband-pardoning bill was that her constituents in the tech-heavy sector of Texas were looking for easing of restrictive regulations. So far, she hasn't made a similar statement about her constituents in Richardson suddenly developing concerns about Texas' anti-SLAPP restricting their restrictions of speech. All anyone can do it speculate about her motivations while being mesmerized by the new senator's blase approach to bad optics.

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Posted on Techdirt - 13 March 2019 @ 7:31pm

New Florida Bill Seeks To Bury Recordings Of Mass Shootings

from the screwing-the-public-to-save-the-government dept

Florida legislators are thinking about handing some opacity back to Florida law enforcement agencies in the wake of the Parkland school shooting. The tragedy of the event was compounded by on-site law enforcement's response: that is, there wasn't any. Faced with increased scrutiny over a handful of mass shootings in the state, at least one legislator's response has been to bury the bad news under a new public records exemption. [h/t War on Privacy]

In less than three years, Florida has seen the second-deadliest mass shooting – Pulse nightclub – and the second-deadliest school shooting – Marjory Stoneman Douglas High School. One gunman killed five at the Fort Lauderdale-Hollywood International Airport. Another killed five at a Sebring bank.

Yet Senate Bill 186 would create an exemption to the state’s public records law for all photographs and audio and video recordings that relate to the “killing of a victim of mass violence.” The bill defines mass violence as the killing of at least three people, not including the perpetrator. Violation would be a third-degree felony, punishable by up to five years in prison.

Senator Tom Lee's bill is a gift to the government at large, even if law enforcement agencies and schools will be the most direct recipients of this largesse. If this "privacy protection" had been in place a few years ago, the public would have had no idea how badly the Broward County Sheriff's Department botched its response to the school shooting. Not only would that have kept the BCSD relatively free of criticism, it would have shielded its oversight -- state legislators -- from being asked what they were doing to prevent school shootings and/or ensure better response from those expected to serve and protect the public.

Supporters of bills like these claim it's all about protecting the privacy of crime victims and their families. But as the excellent Sun Sentinel op-ed points out, most requests to block release of recordings originates with governments and businesses rather than the victims and their loved ones. These requests have prevented the public from accessing key details in everything from Dale Earnhardt's Daytona crash to an inmate's death at the hands of jailers.

The law already blocks the release of recordings containing the death of a law enforcement officer. This addition could be read to cover any deadly incident in which more than one person is killed. Any whistleblower releasing recordings to show the public what really happened -- rather than the official narrative -- will now face felony criminal charges for doing the right thing. This isn't going to restore confidence in government agencies and their response to deadly incidents. All it will do is drive a wedge between them and the people they serve.

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Posted on Techdirt - 13 March 2019 @ 12:04pm

FOIA Documents Detail DHS/CBP's Rules-Free Rollout Of Biometric Scanning Program

from the where-we're-going-we-don't-need-rules dept

The push is on to implement biometric screening at major US airports. The DHS has been pushing this for awhile, telling concerned travelers all they need to do to opt out is not travel. The pilot programs don't seem to have produced anything in the way of actionable results, but the administration's insistence that the US is surrounded by terrorists has dropped a lead foot on the DHS's gas pedal, resulting in an accelerated process that ignores both concerns about biometric scanning tech and the concerns of the traveling public that will be subjected to it.

EPIC's numerous FOIAs have resulted in an impressive stash of documents detailing the DHS's biometric scanning surge.

According to 346 pages of documents obtained by the nonprofit research organization Electronic Privacy Information Center — shared exclusively with BuzzFeed News and made public on Monday as part of Sunshine Week — US Customs and Border Protection is scrambling to implement this “biometric entry-exit system,” with the goal of using facial recognition technology on travelers aboard 16,300 flights per week — or more than 100 million passengers traveling on international flights out of the United States — in as little as two years, to meet Trump's accelerated timeline for a biometric system that had initially been signed into law by the Obama administration. This, despite questionable biometric confirmation rates and few, if any, legal guardrails.

The documents contain little that suggests the DHS will be addressing the numerous concerns that have resulted from its biometric scanning rollout. Nothing delivered by the CBP shows any limits placed on partnerships with the private companies supplying the tech, including their use of the wealth of data supplied by travelers. Data-sharing appears to be part of the CBP's plan, and there's nothing in the paperwork suggesting the government will deter private companies from exploiting the biometric data their scanners collect.

What little the CBP did have to say about its biometric scanning program is that it's definitely going to happen and it's definitely going to keep expanding. And it's going to do this under the cover of darkness as the CBP moves forward with the program it sells as a "convenience for travelers."

The documents also suggest that CBP skipped portions of a critical “rulemaking process,” which requires the agency to solicit public feedback before adopting technology intended to be broadly used on civilians, something privacy advocates back up.

Minimal oversight meets minimal transparency. It's the sort of officious brushoff we've come to expect from terrorism-related government programs. The less the public knows, the less likely it is to express its concerns in actionable ways. The rollout also has the advantage of operating in a legal vacuum. There's not a lot of casework on the suspicionless gathering of biometric data. It could be argued someone's face has no privacy expectations when it's being worn out in public, but it doesn't necessarily follow that the government should be able to collect this data en masse and hold onto it for an indefinite period of time.

So far, data shows facial recognition tech isn't the miracle proponents believe it is. Deployed systems have tended to produce a large number of false positives. And if they're kicking out false positives on a regular basis, they're also likely missing the people the systems are supposed to identify and remove from circulation. The government's refusal to discuss the limitations and use of this tech publicly only adds to the problem. The public's best source of info comes from documents sued out of the agency's hands. Forced transparency isn't really transparency.

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Posted on Free Speech - 12 March 2019 @ 3:32pm

Appeals Court Upholds Dismissal Of Defamation Lawsuit Against Actor James Woods

from the an-obvious-conclusion,-but-one-that-needed-to-be-reached-anyway dept

James Woods -- saved from a defamation lawsuit by a question mark -- has just had his dismissal affirmed by the Sixth Circuit Court of Appeals. Whatever schadenfreude there was to be enjoyed by seeing Woods hoisted on his own litigious petard was swiftly dispelled by the ridiculousness of the lawsuit, which posited that Woods' careless question tying the plaintiff to [gasp!] Bernie Sanders' presidential campaign rose to the level of actual defamation. All we can hope is Woods handles this victory with a bit of grace, rather than gloating over his opponent's death, should she unfortunately precede him to the Great Beyond.

The lower court did take a couple of shots at Woods during its dismissal of the suit, pointing out he was as uncooperative as possible when the plaintiff, Portia Boulger, tried to serve him. Boulger was offended by Woods' tweet that portrayed her as a Bernie plant trying to sabotage Trump's impeccable reputation by flinging Nazi salutes during one of his rallies. Here's a quick summary of the supposed defamation, taken from the appeals court decision [PDF]:

On March 12, 2016, Twitter user @voxday posted the Nazi salute photograph, together with a photograph of Portia Boulger and a caption identifying Boulger as an “Organizer (Women for Bernie).” (Def. Mot. for J. on the Pleadings, R. 7, PageID 61.) The two photographs and caption were accompanied by the (false) statement, “The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.” (Id.) Shortly thereafter, Woods tweeted the same two pictures, along with a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” (Comp., R. 1, PageID 3.) At the time, Woods had more than 350,000 followers on Twitter.

After being notified by Boulger's lawyer that she was seeking to sue him, Woods issued a retraction and an apology. Boulger argued the damage had already been done. She had been the recipient of several unpleasant communications from Woods' followers, which apparently included death threats.

The Appeals Court also takes a shot at Woods for dodging service from Boulger, pointing out the ridiculousness of him attempting to dismiss a lawsuit he claimed he hadn't been properly served with yet.

As the district court noted, although Woods raised the defenses of insufficient service of process and lack of personal jurisdiction in his answer, he immediately filed a motion for judgment on the pleadings in which the defenses were not included. The motion for judgment on the pleadings was filed several months early—because Woods had not yet been served—and necessarily sought a decision on the merits. Woods’s motion was thus “inconsistent with the idea that the district court lacked personal jurisdiction over the defendant[].”

[...]

The filing of the motion for judgment on the pleadings therefore created a reasonable expectation that Woods would defend the suit on the merits. Any other holding would create a perverse outcome. One can imagine a litigant asking the court to proceed on the merits, and then, only if the court’s decision is unfavorable, seeking to re-assert jurisdictional defenses.

The decision then spends several pages diving into the thick weeds of Ohio defamation law. There's a four-prong test applied at the state level to determine whether or not a question is a "statement of fact." After a lot of discussion, the court finally gets to the point: the question mark -- coupled with the actor's opinionated Twitter feed -- makes it clear Woods was asking followers to make that call themselves, rather than directing them to arrive at a foregone conclusion. That many of them skipped the whole "decide for yourself" stage isn't Woods' fault, nor does it turn a question into a libelous statement of fact.

Here, the tweet at issue is reasonably susceptible to both a defamatory meaning—that Woods was asserting Boulger was the woman giving the Nazi salute—and an innocent meaning—that Woods was merely asking his followers a question. Because Woods’s tweet could reasonably be read to have an innocent meaning, under the innocent construction rule the tweet, as a matter of law, is not actionable.

There's also the matter of context. As the court sees it, the opinionated Woods could get away with posing a question like this. The New York Times perhaps not so much.

A review of Wood’s Twitter feed from March 12, 2016, shows that although he posted news articles, his tweets were frequently accompanied by his own colorful commentary. [...] These tweets illustrate that a reasonable reader of Woods’s tweets on March 12, 2016, likely knew that he made frequent use of sarcasm, exaggeration, and hyperbole—characteristics more likely seen in an opinion, rather than a statement of fact. See Scott, 496 N.E.2d at 708. Thus, the general context could lead a reasonable reader to believe the tweet at issue was not a statement of fact.

[...]

Twitter is a medium for users to express both opinions and disseminate news. For example, a Twitter user who tweets his or her thoughts on various celebrities is an account that is more analogous to an editorial section of a newspaper. Cf. Vail, 649 N.E.2d at 185–86 (finding that a column that appeared on the Forum page of the newspaper and titled “Commentary” gave a reader the message that the column would convey the personal opinion of the writer, as distinguished from a news story). But the Twitter account of an online news source, such as the New York Times, is not meaningfully distinguishable from a hard copy news story. Consequently, it is clear that Twitter can be used to disseminate both factual accounts and assertions, as well as commentary and opinion.

This breakdown of Twitter seems elementary and even a bit unnecessary, but the court is reminding readers (and plaintiffs) that context matters. It always does. Unfortunately, many plaintiffs in defamation lawsuits want the court to strip commentary of its context to make it easier for them to secure a victory. Fortunately, our courts have generally been very protective of speech and extremely hesitant to hand down rulings that could restrict the free exchange of commentary and opinion. It's unfortunate Woods' followers decided his somewhat disingenuous question granted them permission to harass and threaten Boulger. But those disgusting responses are the responsibility of the disgusting people making them. The court made the right call, ensuring Twitter in all its greatness and awfulness remains a freewheeling, often-horrifying marketplace of ideas.

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Posted on Techdirt - 12 March 2019 @ 11:59am

Appeals Court Doesn't Buy Government's National Security Assertions; Says Lawsuit Against FBI Can Continue

from the 'we-can't-explain,'-they-explained dept

A lawsuit against the FBI for pervasive, unconstitutional surveillance of Muslims can continue after receiving a very key determination from the Ninth Circuit Court of Appeals. At the center of the case are three Muslims who claim the FBI's continuous surveillance -- assisted by an FBI informant -- violated a number of Constitutional protections.

The key victory here is the court's overturning of the lower court's ruling on the national security assertions raised by the government in hopes of avoiding having to litigate the alleged violations at all. The lower court granted the government's motion to dismiss, saying the government's secrecy matters far more than an unviolated Constitution. The appeals court reverses that, noting stating that the government can't dodge litigation simply by claiming the subject of the lawsuit is too sensitive to discuss in court. From the decision [PDF]:

Plaintiffs asserted eleven claims, which fell into two categories: claims alleging unconstitutional searches, and claims alleging unlawful religious discrimination. The district court dismissed all but one of plaintiffs’ claims on the basis of the state secrets privilege, and allowed only the Foreign Intelligence Surveillance Act (“FISA”) claim against the FBI Agent Defendants to proceed.

The panel held that some of the claims the district court dismissed on state secret grounds should not have been dismissed outright. The panel further held that the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in FISA.

The lower court showed too much deference to the state secrets assertions. It must now reexamine the claims made by the government, as well as their application to the alleged harms. This is very helpful precedent -- one that forces lower courts to pay a lot more attention to the government's natsec hand-waving, rather than simply conclude the government knows best when it comes to state secrets.

There's more good stuff in the panel's opinion. Two FBI agents will have to defend themselves against claims of unlawful surveillance, like the following:

Plaintiffs offer sufficient well-pleaded facts to substantiate their allegation that some of the Agent Defendants—Allen and Armstrong—were responsible for planting devices in AbdelRahim’s house. Specifically, the complaint details one occasion on which Allen and Armstrong asked [FBI informant] Monteilh about something that had happened in AbdelRahim’s house that Monteilh had not yet communicated to them, and explained that they knew about it because they had audio surveillance in the house.

Plaintiffs also allege sufficient facts with regard to those two Agent Defendants in support of their allegation of electronic surveillance of Fazaga’s office in the OCIF mosque in Mission Viejo: Allen and Armstrong told Monteilh that electronic surveillance was “spread indiscriminately” across “at least eight area mosques including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West Covina, and Upland,” and that “they could get in a lot of trouble if people found out what surveillance they had in the mosques.”

The defenses raised by the sued agents forms part of the Ninth Circuit's state secrets decision. It was the agents that raised this defense, not the agency they worked for (which was also sued). As the court notes, the agents cannot possibly hope to prevail by raising a defense the government determined didn't apply to the situation.

The Agent Defendants—officials sued in their individual capacities—are not the protectors of the state secrets evidence; the Government is. Accordingly, and because the Agent Defendants have not identified a reason they specifically require dismissal to protect against the harmful disclosure of state secrets where the Government does not, we decline to accept their argument that the Government’s dismissal defense must be expanded beyond the religion claims.

What the government did do is invoke FISA's protections against open discussion of counter-terrorist surveillance programs. The court reminds the government that the law was created in response to abusive surveillance programs deployed by the government -- abuses much like those central to this case. While it did eventually lend its name to more surveillance abuses following the 9/11 attacks, it was actually more of a reform effort in its original state. Since the government appears to have forgotten FISA's original aim, the appeals court delivers this reminder.

The inference drawn from the text of § 1806 is bolstered by § 1810, which specifically creates a private right of action for an individual subjected to electronic surveillance in violation of FISA. FISA prohibits, for example, electronic surveillance of a U.S. person “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” 50 U.S.C. § 1805(a)(2)(A). Here, Plaintiffs allege they were surveilled solely on account of their religion. If true, such surveillance was necessarily unauthorized by FISA, and § 1810 subjects any persons who intentionally engaged in such surveillance to civil liability. It would make no sense for Congress to pass a comprehensive law concerning foreign intelligence surveillance, expressly enable aggrieved persons to sue for damages when that surveillance is unauthorized, see id. § 1810, and provide procedures deemed adequate for the review of national security-related evidence, see id. § 1806(f), but not intend for those very procedures to be used when an aggrieved person sues for damages under FISA’s civil enforcement mechanism. Permitting a § 1810 claim to be dismissed on the basis of the state secrets privilege because the § 1806(f) procedures are unavailable would dramatically undercut the utility of § 1810 in deterring FISA violations. Such a dismissal also would undermine the overarching goal of FISA more broadly—“curb[ing] the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.”

To sum up, the appeals court isn't willing to let the government (or its agents) claim this apparently-illegal surveillance is too sensitive to discuss in open court. The government will still get to submit evidence and arguments to the court in ex parte hearings if it wants to argue certain elements of the case cannot be discussed publicly, but it will not be granted a blanket exception it can use to dodge the litigation in its entirety. The court ends its decision by noting the government can't have this much power if it's not willing to accept the responsibility that comes with it.

In holding, for the reasons stated, that the Government’s assertion of the state secrets privilege does not warrant dismissal of this litigation in its entirety, we, too, have recognized the need for balance, but also have heeded the conclusion at the heart of Congress’s enactment of FISA: the fundamental principles of liberty include devising means of forwarding accountability while assuring national security.

Which is exactly how it should be. Unfortunately, too many courts take the district court's path and give the government all the secrecy it asks for.

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Posted on Techdirt - 11 March 2019 @ 1:50pm

Auto Finance Company Sues Massachusetts City Over Its Unconstitutional Sale Of Seized Vehicles

from the money-v-power dept

An opponent of asset forfeiture has arisen from an unexpected place. Honda's finance division has taken the city of Revere, Massachusetts to court over the seizure and sale of a vehicle it still technically owned.

American Honda Finance Corp., based in California, alleged in its lawsuit filed Feb. 12 in U.S. District Court for the District of Massachusetts that its constitutional rights were violated when a Honda Civic was seized in 2016 by Revere's police department.

"Plaintiff brings this action to remedy a deprivation of its long-settled and fundamental rights to be free from unreasonable seizures and to due process of law under the United States Constitution," American Honda Finance Corp. said in its 13-page complaint.

The complaint [PDF] makes it clear the company thinks this is some bullshit: seizing and selling a vehicle that still belongs to the company holding the lien. Until the vehicle is paid off, Honda still owns the car. But Massachusetts law enforcement doesn't appear to care who owns the car so long as they get to profit from its sale. The narrative detailed in the lawsuit makes it clear zero effort was made to make the car's real owner aware of the city's plans for the seized car.

On or about November 2, 2016, HONDA obtained a purchase money security interest and lien in The Subject Vehicle.

On November 28, 2016, The Subject Vehicle was officially titled in the State of New York with Shanasia Hackworth recorded as the owner and HONDA recorded as the first priority lienholder.

On or about December 30, 2016, REVERE took possession and custody of The Subject Vehicle pursuant to REVERE’s police officers acting in the course of their duties as law enforcement officers.

On or about December 30, 2016, REVERE, through its police officers acting in the cause of their duties as law enforcement officers, and pursuant to laws enacted to further official state interests, directed Mario’s Service Center, Inc. to tow and detain The Subject Vehicle.

On or about December 30, 2016, Mario’s Service Center, Inc. towed The Subject Vehicle and retained The Subject Vehicle on behalf of REVERE as part of an “investigation.”

REVERE did not notify HONDA that The Subject Vehicle had been seized.

REVERE thereafter concluded its investigation. REVERE did not, thereafter, return The Subject Vehicle to HONDA or anyone else. Instead, REVERE authorized its agent, Mario’s Towing Service Center, Inc., to detain and dispose of the vehicle pursuant to Massachusetts G.L.c. 255, §39A.

REVERE did not notify HONDA that after the investigation ended that REVERE authorized Mario’s Towing Service Center, Inc. to detain and dispose of The Subject Vehicle.

REVERE did not ensure that its agent, Mario’s Towing Service Center, Inc., notified HONDA that REVERE had authorized detention and disposal of the Subject Vehicle.

On or about May 18, 2017, REVERE’s agent, Mario’s Towing Service Center, Inc., sold The Subject Vehicle and The Subject Vehicle was retitled through the Massachusetts Department of Transportation with HONDA’s lien not recorded on said title.

Under Massachusetts law the sale pursuant to Massachusetts G.L.c 255, §39A and subsequent retitling extinguished HONDA’s property interest in The Subject Vehicle.

At no time prior to the sale or retitling of The Subject Vehicle did REVERE or any person provide any notice to HONDA relating to The Subject Vehicle.

There's a genuine question of property interest in a vehicle whose title still resides with the financing company. This can't be the first time a company has complained about a vehicle of theirs being auctioned off without notice, but this is the first federal complaint I've seen directly challenging a state's seizure of vehicles from drivers who don't actually own the vehicles they're driving.

This was filed ten days before the Supreme Court held that certain forms of asset forfeiture violate Constitutional protections against excessive fines. Honda's complaint seems to anticipate the high court's displeasure with abusive forfeitures and pulls no punches in its description of the program the city of Revere participate in. (Emphasis in the original.)

Massachusetts G.L.c. 255, §39A effectuates the Commonwealth’s interest in enforcing traffic laws and in protecting the public from hazardous street conditions. The statute provides a means for the state to compensate private parties who assist the state by towing and storing vehicles at the direction of police. The statute has, however, fallen out of step with modern developments in constitutional law which confirm that a duly perfected security interest and lien in a vehicle is a constitutionally protected property right.

A program that takes property away from the property's true owner -- an entity completely disconnected from the underlying criminal activity/accusations -- appears to be a violation of the company's Constitutional rights, if not the greater protections given to property owners by the state's constitution. The suit alleges a host of violated rights, as well as conversion under state law, arguing the sale of the vehicle without notifying the lien holder is basically theft of Honda's property.

Is it going to take the deep pockets of pissed off corporations to finally make a serious dent in abusive forfeiture programs? It might. This case may be more tow-and-sell than most forfeitures, but the principle behind it -- the state depriving companies of their property without notice -- is identical. If this case adds to the judicial dialog on forfeiture programs, I'm all for it.

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Posted on Techdirt - 11 March 2019 @ 3:29am

Thailand Decides To Make Its Terrible Cybersecurity Law Even Worse

from the this-baby-can-hold-so-many-domestic-surveillance-programs dept

More censorship and encryption-breaking is on the way, thanks to the Thai government's broad interpretation of the term "cybersecurity." The government has been leaning heavily on American social media companies to disappear content critical of… you guessed it, the government. To keep the king from being insulted too often (or for too long), the government is also exploring undermining website encryption and holding service providers directly (and criminally) responsible for the words and deeds of their users.

Another round of amendments has made Thailand's cybersecurity law worse. It seems almost impossible, given its history. And yet here we are, watching as the government gives itself everything it wants, leaving citizens with the dubious privilege of generating tons of data the government can access at will.

The bill (available in Thai) was amended late last year following criticism over potential data access, but it passed the country’s parliament with 133 positives votes and no rejections, although there were 16 absentees.

There are concerns around a number of clauses, chiefly the potential for the government — which came to power via a military coup in 2014 — to search and seize data and equipment in cases that are deemed issues of national emergency. That could enable internet traffic monitoring and access to private data, including communications, without a court order.

Naturally, everyone but the government is concerned about these amendments. The Asia Internet Coalition has issued a statement expressing these concerns. All of its concerns are valid. And, considering the history of this law and this government, all are likely to be ignored.

The bugs listed in the AIC's statement are considered features by a government that has a long history of silencing dissent and jailing critics.

Protecting online security is a top priority; however, the Law’s ambiguously defined scope, vague language and lack of safeguards raises serious privacy concerns for both individuals and businesses, especially provisions that allow overreaching authority to search and seize data and electronic equipment without proper legal oversight. This would give the regime sweeping powers to monitor online traffic in the name of an emergency or as a preventive measure, potentially compromising private and corporate data.

Vague language and a lack of safeguards. Overreaching authority and lack of oversight. That's exactly what the Thai government wants. This is deliberate. This is what's wanted by governments all over the world. The US government wants this. So does the Australian government. The UK government has spent most of the past decade refining its overreach and scaling back its oversight.

This isn't just a Thai problem. It's a government problem. But the Thai problem is made worse by its disturbing (and ancient) lese majeste laws, which add some old school twists to its cyber pretensions. But the script is otherwise identical: the same ideas pushed by other governments, using the same "security" pitch to strip citizens of their protections and privacy.

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Posted on Techdirt - 8 March 2019 @ 7:39pm

Court Says Lawsuit Over Fake Subpoenas Issued By Louisiana DA's Office Can Proceed

from the fake-it-til-you-break-it dept

There's a very slim chance some New Orleans prosecutors might have to pay for their threats and lies. But a slim chance is better than none. The Orleans Parish DA's office was caught using fake subpoenas to coerce cooperation from witnesses and victims of crimes -- a practice it had engaged in for decades before being hit with multiple complaints and lawsuits.

Prosecutors sent out bogus subpoenas -- all bearing the threats of fines and imprisonment -- to hundreds of witnesses over the past several years. None of these were approved by courts overseeing ongoing prosecutions. None of the subpoenas were issued by the Clerk of Courts. The DA's office was simply cranking out fake subpoenas and hoping recipients would be too intimidated by the threat of jail time to question the veracity of the documents.

Lawsuits followed the public exposure of this underhanded tactic. One of the lawsuits, filed by a number of crime victims who'd been served the bogus subpoenas, has received the green light to proceed from a federal court in Louisiana. (h/t CJ Ciaramella)

Unfortunately, there's a ton of hurdles that need to be overcome by the plaintiffs. If you think qualified immunity shields too much official wrongdoing, just wait until you run up against absolute immunity, which tends to protect those operating above law enforcement's pay grade: prosecutors and judges.

Fortunately for the plaintiffs, the crap the DA's office pulled with its fake subpoenas is shady enough to strip away some of this protective layer. As the court notes in its opinion [PDF], the DA's office has never had the power to issue its own subpoenas. That it has been doing exactly this is a serious problem.

Allegations that the Individual Defendants purported to subpoena witnesses without court approval, therefore, describe more than a mere procedural error or expansion of authority. Rather, they describe the usurpation of the power of another branch of government.

"Ends justifies the means" is rarely a successful defense. But that's what the DA's office has offered. The judge rejects it:

Furthermore, that the alleged activity by the Individual Defendants took place as a means to a prosecutorial end is not dispositive of the issue. Under that logic, virtually all activity engaged in by a prosecutor would be absolutely immune from civil liability.

And with that, one layer of immunity disappears.

This Court finds that granting the Individual Defendants absolute immunity for allegations of systematic fraud that bypassed a court meant to check powerful prosecutors would not protect the proper functioning of a district attorney’s office. It would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.

Unfortunately, the prosecutors are covered by absolute immunity for threatening witnesses with arrest to ensure they gave testimony or attended hearings. As screwed up as this sounds, victims of crimes can be thrown in jail to make sure prosecutors can speak to them. Totally legal. All just part of our judicial sympathy for zealous prosecutions. Threatening someone with jail time in person is perfectly fine. It's only the use of fake paperwork -- and bypassing the court system -- that's not protected.

Although the distinction is an admittedly fine one, threatening to imprison a witness to compel cooperation in a criminal prosecution while possessing the lawful means to follow through on that threat is not the same as manufacturing documents in violation of the lawful process for obtaining court-approved subpoenas for witnesses. Threatening witnesses—particularly verbally—with imprisonment to further witness cooperation in an active criminal prosecution seems to this Court to fall into the category of “pursuing a criminal prosecution” as an “advocate for the state.” Holding that such conduct fell outside the protections of absolute immunity would, in fact, potentially subject prosecutors to civil liability for exercising authority they lawfully possess under the law of Louisiana and many other states.

Just as unfortunately, the same behavior the court found couldn't be protected by absolute immunity can be shielded by qualified immunity, at least as far as the plaintiffs' violation of due process claims.

Plaintiffs’ allegations that prosecutors manufactured “subpoenas,” deliberately side-stepping judicial oversight of the subpoena process, appears to this Court to represent a breed of official misconduct. Claims that the practice was not only condoned but directed by top prosecutors and the DA himself only make the allegations more disturbing. This Court believes that Plaintiffs’ claims sufficiently shock the conscience such that they allege a constitutional violation.

Nevertheless, the Individual Defendants are entitled to qualified immunity on these claims. Plaintiffs fail to cite to any case law suggesting that the Defendants’ violated a clearly established right of Plaintiffs.

The court clearly thinks the manufacture of subpoenas is reprehensible, but can't find precedent to make it stick. And since it can't craft a bright line itself, prosecutors can continue to abuse subpoenas until a higher court decides enough abuse is enough.

A few more claims survive the layers of protective immunity. Four plaintiffs are able to show at this point that the DA's office also fudged the truth on "material witness" warrant affidavits. A few plaintiffs can also move ahead with First Amendment claims -- allegations that the combination of fake subpoenas and actual material witness arrest warrants resulted in compelled speech: testimony extracted by prosecutors using these tools as leverage. Those claims will move forward along with the narrowed allegations of abuse of process the court said can't be shielded by absolute immunity.

It's a very limited win for some of the plaintiffs. And it's not even a real victory yet. This opinion allows certain claims to move forward and removes a little immunity. It gives the plaintiffs a small chance to hold some of the Orleans Parish DA's Office personally responsible for abusing the court system and the public's trust for decades.

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