Posted on Techdirt - 1 July 2015 @ 1:49pm
Sure, Freedom of Information laws are great, but they have their downsides. For one thing, they clearly signal to agencies which records are being sought. It's unavoidable. To answer a request, an agency needs to know what it's looking for. Once the request is out in the open, efforts can begin in earnest to excise information anyone affected doesn't want made public.
I'm not saying anyone did anything wrong, but it very definitely looks like someone did something deliberately wrong.
A top official at a controversial U.S. export finance agency deleted text messages sent within days of the 2014 midterm elections after a watchdog group filed an open records request for the messages, the agency admitted recently.
The watchdog group -- Cause of Action
-- sought "text messages, Blackberry messenger chats and SMS messages sent or received by top officials during the period of days between November 2, 2014 and November 8, 2014." These would be texts fired back and forth during the mid-term elections by officials of the controversial US Export-Import Bank, which was facing the reality of having its funding halted by House Republicans.
Cause of Action got most of what it sought… several months later. It filed the request on November 20, 2014 but didn't receive a response
until May 12, 2015. That response brought with it the following bad news:
[T]he messages for Scott P. Schloegel were accidently deleted on approximately January 1, 2015. Enclosed is signed declaration from Mr. Schloegel attesting to the deletion.
And sure enough, there's Schloegel's attestation
that he did, indeed, nearly 45 days after the request was received, "accidentally" delete the relevant text messages. This violation of duties to preserve public records wasn't reported to Cause of Action until its very belated response from the agency itself, four months
after the deletion took place.
For what it's worth, there's a sworn statement that says Schloegel didn't do this on purpose. I'm not sure how much culpability that alleviates, but I suppose it's better than a sworn statement claiming Schloegel did this deliberately
and what are you going to do about it? But the end result is the same. The messages sought won't be making their way to the requesting entity.
And for what it's worth, Cause of Action is now suing
the Export-Import Bank, demanding that the DOJ and/or Congress commence an investigation and work toward the recovery of the deleted messages. Whether or not this will prompt any action remains to be seen, but Cause of Action is still working hard to audit government agencies' FOIA response efforts. This particular request is part of a larger effort, as noted in the lawsuit:
In part due to this concern, Cause of Action has been conducting an investigation into whether federal agencies comply with their obligation to preserve text messages for a period of time. As a part of this investigation, Cause of Action lawfully requested that Ex-Im Bank produce the text message records of five high-ranking agency officials for a one week period in which text messaging likely would have been used to conduct agency business (November 2-8, 2014, or election week).
Because so much official communication now travels on more ethereal channels, the effort it takes to simply make possibly embarrassing documents vanish is practically nil. Any failure to follow up on accusations like these -- or even purportedly innocent "deletions" -- will signal to government agencies that carelessness with the public's information is acceptable. There's really no reason government agencies aren't working with redundant systems at this point. It takes little-to-no effort to ensure pertinent files housed on issued electronics are backed up elsewhere, thus ensuring that this sort of sworn "accident" doesn't result in the permanent removal
of requested information.
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Posted on Techdirt - 1 July 2015 @ 11:40am
The TSA runs a fairly entertaining Instagram account, if you're the sort of person who is impressed by pictures of weapons seized from stupid passengers. That would be the extent of its social media prowess. Its blog is pretty much a 50/50 mix of Yet Another Thing You Can't Take Onboard and Blogger Bob defending the TSA's latest gaffe.
One of the TSA's official Twitter flacks tried to loft a lighthearted "hey, look at this thing we came across!" tweet. She couldn't have picked a worse "thing" to highlight, considering the ongoing outrage over civil asset forfeiture.
For those who can't see the embed, the tweet says:
If you had $75,000, is this how you'd transport it? Just asking! TSA @ #RIC spotted this traveler's preferred method
Pictured was someone's carry-on bag, opened to expose the cash contained in it.
First: should the TSA be broadcasting the contents of someone's luggage -- especially considering the contents are a large amount of cash -- along with broadcasting the airport where it was discovered and the baggage's appearance? There may not be any recognizable privacy violations here, but it's certainly bad form. And it does no favors to the person carrying it.
Second: unless the traveler was attempting to take the money out of the country without reporting it to Customs, it's none of the TSA's business how a traveler carries money from place to place. It may be careless, but it is not illegal and it is certainly not something government agencies should spend too much time obsessing over. (But of course they will, because travelers' cash can quickly become the government's cash, thanks to civil asset forfeiture
Third: the TSA's public interest in this member of the public's cash is flat-out unseemly. Not only does the tweet portray the unnamed person as some sort of idiot/criminal (or both!), but it led many to the obvious assumption that this cash was seized.
But, you know, LOL #otherpeoplesmoney and all that.
The foregone conclusion that this money had been seized was (momentarily) dispelled by another tweet from the TSAmedia_Lisa account
TSA didn't seize/confiscate/take it. It alarmed the x-ray machine as an unknown and we spotted it. It's just a curiosity
So, somehow a passenger managed to walk through airport security with a large amount of cash and managed to still be in possession of it on the DEPARTURE side of the checkpoint?
No. This is AMERICA, land of the somewhat free and home of the brave drug warrior.
A followup email to the Washington Post's Chris Ingraham proved TSAmedia_Lisa's (Farbstein)
response was technically
true and completely
Asked about the incident via e-mail, Farbstein said that "the carry-on bag of the passenger alarmed because of the large unknown bulk in his carry-on bag. When TSA officers opened the bag to determine what had caused the alarm, the money was sitting inside. Quite unusual. TSA alerted the airport police, who were investigating."
It seems the police didn't just "investigate." They worked with another federal agency to take the money
In this case, the cash was seized by a federal agency, most likely the Drug Enforcement Administration, according to Richmond airport spokesman Troy Bell. "I don't believe the person was issued a summons or a citation," he said. "The traveler was allowed to continue on his way."
So Farbstein's claim about how it was "just a curiosity" is completely bogus. Not only was the photograph and putting it on social media a questionable invasion of privacy, but then they handed it off to another federal agency to take the money... and then the TSA clearly implied the opposite
on social media once the story blew up.
It's not entirely clear which "federal agency" took the money, but a good guess is that the DEA is likely in possession of this "curiosity" now, thanks to its willingness to troll mass transportation departure points
in search of "guilty" money
Also ridiculous is the airport spokesperson noting that the traveler was allowed to "continue on his way," $75,000 lighter. As if that makes everything OK? If this money is completely unrelated to criminal activity, the government has just stolen money from one of its citizens. If it is
linked to criminal activity, the traveler is probably in for a world of hurt if it belonged (or was owed) to someone else. Either way, the citizen loses, the government wins and the TSA badly mishandles another social media interaction.
So, the TSA's attempt at cheery lightheartedness did nothing more than once again expose its dark, humorless center. The tweet may as well have read "If you had $75,000, you don't have it any more! Just saying! #freemoney" One of the nation's most tone deaf agencies continues to prove it simply won't be outdone in this category. And the trickle of details confirmed what everyone was thinking the moment this picture hit the internet: that the person carrying that money was last in possession of it shortly before the photo was taken. The government gets its
money and the TSA delivers the news as a punchline at the expense [pretty much literally] of some random traveler whose misfortune is the government's gain.
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Posted on Techdirt - 1 July 2015 @ 7:10am
Open records requests and lawsuits go hand-in-hand. Agencies obfuscate, stall, perform deliberately inadequate searches and fail to respond in a timely manner. These actions frequently result in lawsuits, which are notably almost always filed by the requester.
The Hamilton Township of New Jersey isn't like other government agencies. It's far more proactive.
In March, a private citizen named Harry Scheeler Jr. sent a request to Hamilton Township for surveillance footage of the town-hall and police-department buildings, making the request under the state Open Public Records Act (OPRA) and the state common law right of access to public records. A few weeks later, instead of responding to the request, the township sued Scheeler and asked a local court for relief from any obligation to respond, then or in the future. The township also asked for attorney’s fees.
As Jonathan Peters at the Columbia Journalism Review points out, this isn't the first time this has happened, but it is incredibly rare and it almost always ends badly for the agency instigating the legal action. This case is no different, although it did manage to survive long enough for Scheeler to narrow his request in hopes of having the lawsuit dropped. The township was very persistent, unfortunately. But unfortunately for the township, the presiding judge recognized
how truly effed-up it would be to allow this suit to continue or otherwise encourage government agencies to sue open records requesters.
Scheeler asserts that the Township has no authority to seek relief from the records request in court; that only the requestor has such a right. Consequently, before reaching the merits of the request, the threshold issue that the court addresses in this opinion is whether a government agency, such as the plaintiff, may file a lawsuit against a person requesting public records, or whether the right to institute a lawsuit determining the validity of the request belongs solely to the requestor. The court concludes that the right to bring the issue to court belongs exclusively to the requestor, not the government agency.
New Jersey's open records law -- like those everywhere in the US -- provides for the filing of legal complaints against unresponsive government agencies. What the law doesn't provide for is the township's actions. In lieu of a response, it sought an injunction barring not only this
request, but any future requests for similar information by Scheeler. As the court points out, this is about as far-removed from the intention of open records laws as anyone can get.
To allow a government agency to file a lawsuit against someone who has submitted a request for government records would undoubtedly have a chilling effect on those who desire to submit such a request, undercutting the public policy previously described.
A government agency's lawsuit against document requestors subjects them to involuntary litigation with all of its concomitant financial, temporal, and emotional trimmings. A public policy that gives a government agency the right to sue a person who asks for a government document is the antithesis of the policy underlying both OPRA and the common law to provide citizens with a means of access to public information to keep government activities open and hold the government accountable.
Now, not only has the temporary restraining order against Scheeler been lifted, but the township will be paying his legal fees as well. The court notes that not doing so would basically allow government agencies to trap citizens in "quixotic battles" against entities with "almost inexhaustible resources." Because Scheeler was "trapped" by a lawsuit he didn't initiate and one that pertained to the government's obligation to turn over requested documents, the presiding judge reads the fee-shifting provision of the state's open records law as applicable to legal fees. To do otherwise, the court points out, would be reward the township for violating open records laws.
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Posted on Techdirt - 30 June 2015 @ 3:53pm
The McKinney (Texas) Police Department is under lots of outside scrutiny, thanks to the racially-tinged antics of its police force -- namely the since-departed Officer Eric Casebolt, who barrel rolled into infamy in a cell phone-captured video that culminated in him pinning down a 14-year-old girl while waving a gun at two teens.
Since that point, multiple entities have filed public records requests with the police department. An interim response given to MuckRock's Shawn Musgrave lists 61 requests as of June 19th, a number that has certainly increased since that point. One of the early requesters was Gawker's Andy Cush, who sought "[Officer Eric] Casebolt’s records and any emails about his conduct sent or received by McKinney Police Department employees."
Cush just received a response from the city's legal representatives claiming it will cost nearly $80,000 to compile this information.
The city arrived at that extraordinary figure after estimating that hiring a programmer to execute the grueling and complex task of searching through old emails would cost $28.50 per hour, and that the search for emails about Casebolt would take 2,231 hours of said programmer’s time. That only comes to about $63,000; the bill also includes $14,726 “to cover the actual time a computer resource takes to execute a particular program.” In other words, the operating cost of the computer used to search the emails is nearly 15 grand on its own.
Perhaps in an effort to make this stratospherically-high fee appear more reasonable, the law firm broke it all down in table form
According to the city's lawyers, this exorbitant estimated fee is due to the police department switching over to a new email system on March 1, 2014. Apparently, every email created before then can't be searched without hiring a programmer to create a new program from the ground up. Whatever email software the city used prior to this apparently created email in an "unsearchable" format.
This estimate reeks of… well, several things (arrogance, obfuscation...), but mainly of bullshit. I find it hard to believe city personnel are unable to search older emails, especially considering "older" only means "slightly more than a year old," rather than "stored on punchcards." It boggles the mind that a move to a new email system would cut several years of emails irrevocably adrift from the rest of the city government's computing system -- or that the city would be fine with a lack of basic search options post-upgrade.
The city is claiming it will take a year
of 40-hour work weeks for a programmer to create a search system for pre-2014 emails. Worse, it claims the same even if "an existing system" is used. That may just be boilerplate language for fee estimates, but it also could be closer to the truth than its "one year of programming" claim. No matter which system is used -- the "existing" or the bespoke -- the city still claims it will still take an unreasonable amount of time to search the system. According to the estimate, it will take roughly three years
of 40-hour work weeks to "execute a particular program."
This appears to be nothing more than an attempt to dissuade requesters from pursuing information about Eric Casebolt or the McKinney Police Department. This "make 'em pay" strategy is as old as open records laws themselves. The city of Ferguson hit a number of journalists with exorbitant fees
in the wake of the Michael Brown shooting. The Florida State Attorney's office told a requester seeking information on the alleged (and highly suspicious) suicide of her daughter that it would cost nearly $180,000
to fulfill her request.
Gawker's options here are pretty limited. It can either limit its request to post-March 2014 emails as suggested by the city's lawyers (pretty much useless if seeking a full representation of Eric Casebolt's career) or it can petition the state attorney general
to take a look at the city's claims.
A person who believes the person has been overcharged for being provided with a copy of public information may complain to the attorney general in writing of the alleged overcharge, setting forth the reasons why the person believes the charges are excessive. The attorney general shall review the complaint and make a determination in writing as to the appropriate charge for providing the copy of the requested information.
This particular avenue of recourse has been used frequently in the past. A 2012 examination of Texas open records requests
by the Center for Public Integrity found McKinney ranked highest in the state in the number of fee complaints to the state attorney general (per 100,000 residents). Not all of these were fee-related, but the ratio of referred requests suggests the local government is more reluctant to turn over responsive documents than its neighbors. A spokeswoman for the city notes in the article that requests related to the police department are treated with "an overabundance of caution." This response to Gawker, however, seems not so much cautious as confrontational -- a "shut up and go away" response in the form of a thoroughly ridiculous $79,000 price tag.
I have reached out to the city employees listed in the letter to Gawker, asking for details on the current and pre-2014 email systems, as well as any methods used by city employees to access older emails. I'm not expecting an answer, but if one should materialize, it will be passed on.
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Posted on Techdirt - 30 June 2015 @ 2:46pm
"The more things change, the more everything is just Smith v. Maryland (1979)."
Or so the FISA Court notes in its latest order authorizing the continued collection of bulk phone records under… well, not Section 215, which expired, but under a "non-hyper-literal evil genie" reading of the contradictory forces temporarily in play thanks to the passage of the USA Freedom Act.
"Plus ça change, plus c'est la même chose," well, at least for 180 days. This application presents the question whether the recently-enacted USA FREEDOM Act, in amending Title V of FISA, 2 ended the bulk collection of telephone metadata. The short answer is yes. But in doing so, Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specifically authorized. For this reason, the Court approves the application in this case.
The order notes that there was much more to consider in this renewal application. It nods to the expiration of Section 215 on May 31st and its brief return to its pre-Patriot Act form for roughly 24 hours before the passage of USA Freedom pushed the expiration date up until 2019. It notes the legal challenges
brought against the bulk collection by Ken Cuccinelli and FreedomWorks, as well as the stipulations added to the collection by the surveillance reform bill.
The order denies Cuccinelli/Freedomworks' request to shut down the bulk collection entirely but does grant their request to serve as amicus curiae -- a new position provided for by the USA Freedom Act. This, however, is limited solely to motions already presented to the court by FreedomWorks and Center for National Security Studies. And the FISA Court finds the opposition to the government's claim of 180 days' worth of uninterrupted, unaltered bulk collections to be lacking in merit. The culprit is (partially) the USA Freedom Act itself.
The USA FREEDOM Act prohibits the FISC from issuing an order for production of tangible things without the use of a "specific selection term." USA FREEDOM Act§ 103(b), amending FISA § 501(c). This amendment and the related amendments set forth in sections 101 through 103 of the USA FREEDOM Act prohibit the government from acquiring tangible things in bulk under a FISA business records order. Crucially for purposes of this case, however, section 109(a) of the USA FREEDOM Act states that these amendments do not take effect until 180 days after enactment (November 29, 2015).
And if that was not clear enough, the USA FREEDOM Act also states that "[n]othing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order [under the business records provisions of FISA] as in effect prior to [the ban on bulk acquisition taking effect after 180 days]." USA FREEDOM Act §109(b). In passing the USA FREEDOM Act, Congress clearly intended to end bulk data collection of business records and other tangible things. But what it took away with one hand, it gave back - for a limited time - with the other.
The rest of the order is given over to dismissing a handful of other legal challenges to the bulk collection program, including the Second Circuit Court's finding that the program -- in its current form -- is not actually authorized by law
The FISA Court, however, finds the appeals court's analysis "flawed" and reliant on "mischaracterizations." While the Second Circuit found the program "had no endpoint," the FISA Court claims the USA Freedom Act gives it one: November 29, 2015. This is the FISA Court shifting back into "hyper-literal evil genie" mode. The Section 215 collection has always had an "endpoint." It's just always been renewed by Congress, up until 2015's expiration, which was more a result of Snowden's leaks than an autonomous decision to give the program a true
endpoint. Without a doubt, the modified collection will go through the same cycle of endless renewals.
The government's access to American phone records is never going to end completely, not as long as the government and FISA Court continue to rely on the Third Party Doctrine
, as defined by the 1979 Smith v. Maryland
decision. The FISA order refers to this decision repeatedly in its justification of ongoing bulk collections, either in pre-USA Freedom Act form or with the new limitations in place. As long as the government can rely on this large Fourth Amendment loophole, domestic surveillance in the form of bulk collections (as well as subpoena and National Security letter abuse) will continue. There is effectively no
"endpoint" for these collections, as the Second Circuit pointed out.
The only thing "correct" about the FISA Court's analysis of these collections -- including the convenient elasticity of the term "relevant" -- is that a new Fourth Amendment privacy right doesn't simply spring into existence because these programs harvest information on millions of Americans. If the government -- and the courts -- aren't willing to extend protections to certain "business records" for an individual, the same lack of protection remains in place when it's hundreds of thousands who are affected.
For what it's worth, Section 215 (now Section 501) will no longer be collected and stored by the NSA after this six-month wind-down. These records will reside with telcos and be returned only in exchange for specific searches based on "reasonable articulable suspicion."
Unfortunately, this order doesn't bode well for the newly-created position of amicus curiae. Everything examined here in ad hoc, interim form is dismissed completely by FISA judge Michael Mosman. Barring a Supreme Court examination of bulk domestic collections or a revisiting of the issues central to Smith v. Maryland
, arguing the public's case against bulk harvesting is going to be an exercise in futility.
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Posted on Techdirt - 30 June 2015 @ 8:23am
A federal judge has just ordered the government to return $167,000 it took from a man passing through Nevada on his way to visit his girlfriend in California. The officers really wanted that money, too. They used two consecutive stops to jerry-rig some probable cause… even though at that point they thought they were only dealing with $2000. From the original stop forward, the entire situation was deplorable, indisputably showing that everyone involved was more interested in taking (and keeping) a bunch of cash than enforcing laws or pursuing justice.
The order is a jaw-dropping read. It begins with the flimsiest of "reasonable suspicion" and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a "left-lane violation" -- driving too slow in the passing lane. (This itself isn't actually a moving violation, but the Supreme Court's Heien decision has ensured that law enforcement needn't be slowed by actual knowledge of the laws they're supposed to be enforcing.)
This lead to some questioning, because reasons:
Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit “his chick.” Id. at 60:9-61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2- 22. Gorman’s use of the word “chick” aroused Monroe’s suspicion that Gorman’s answers were rehearsed because Monroe thought that “chick” was an unusual word for a person Gorman’s age—thirty-one at the time of the stop—to use.
Obsolete vernacular = "reasonable suspicion." That and State Trooper Greg Monroe felt Gorman's claimed employment with a "beach activities and paddle board company" sounded similarly "rehearsed." Monroe went back to his vehicle and tried to rustle up a K9 unit. But there were no units nearby, the records check was coming up clean and Monroe was running out of ideas. First, he told Gorman he was free to leave. Then he started fishing:
Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded “I don’t want to talk about how much I make.” At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman’s motor home, or if he was carrying large amounts of U.S. currency. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m, Monroe asked Gorman “do you mind if we search the vehicle?,” to which Gorman said “I do mind, yes.” At this point, Monroe told Gorman that he was free to leave [for the second time], returned to his vehicle, and said “he’s carrying money” aloud to himself.
Monroe smelled money and he wasn't about to let $2000 travel across his state without being apprehended. So, he called the Highway Patrol and told dispatch his suspcions, stating that the only way the vehicle could be searched was with the use of a drug dog. Dispatch called Deputy Doug Fisher and informed him that Gorman did not consent to a search
and that he "might want to follow up on the information." Here we have two different law enforcement entities basically colluding to perform a search simply because one entity experienced a refusal. The court isn't impressed.
The Court is particularly troubled that the officers’ belief that Gorman would not consent to a search, and his opposition to the canine sniff, appears to have contributed to the officers’ purported reasonable suspicion to extend the stop and continue the investigation. Individuals have a right to refuse consent for a search, and the existence of this right requires that denial of consent not be a basis to prolong a stop.
On top of this, Monroe called Deputy Fisher directly to "relay his suspicions." He also inflated the amount of money Gorman had admitted to be carrying with him -- from $2000 to $5000. Fisher left the Sheriff's Office ostensibly to perform a "roving patrol," but soon decided to park himself on the side of the highway in order to catch Gorman when his RV passed by. Fisher pulled the RV over after it "crossed the fog line" a few times.
Having been stopped for a second time in under an hour, Gorman was understandably annoyed. He told Fisher the same thing he had told Monroe during his twenty-minute stop earlier. Fisher ran the same
records checks and received the same lack of anything actionable. Despite this, Fisher pushed for a canine search.
[A]pproximately twelve minutes into the traffic stop, Fisher released his drug-detection canine “Euros” from his vehicle. Fisher and Euros then approached the motor home and began walking around it in the clockwise direction, starting at the rear left-hand side of the vehicle. As Fisher and Euros circled the rear of the motorhome, Euros sat down near the vehicle’s back right compartment, facing the compartment. Fisher described this as a “committed sit and stare,” which he considered to be a positive alert.
Even if you believe -- like the Supreme Court does
-- that drug dogs are mostly reliable and unlikely to respond to signals
(unconscious or otherwise) from their handlers, Fisher's next statements indicate that bringing a drug dog onto the scene is just an easy way to generate "probable cause" where none exists.
Gorman then referred to the back rear compartment and said “I can open that if you want to look in it. It’s charcoal and stuff like that, do you want to look in it?” Fisher replied “do you want to talk to me now?” Gorman replied “if he alerted somewhere, look in it because there’s no drugs.” Fisher then noted that odor could come out anywhere on the vehicle, and that the rear back compartment was on the “downwind side of the vehicle.”
Armed with the drug dog's affirmation that drugs might
be located somewhere in the RV, the deputy acquired a telephonic warrant and immediately began searching the entire interior
of the RV. And while the drug dog continued to "alert" on objects inside the vehicle, no drugs were found. The only thing "illegal" in Gorman's motorhome was $167,000 in cash, stashed away in the freezer, microwave and bedroom. Gorman was (for the third time in under two hours) free to go. But his money wasn't.
Gorman fought back. Almost two-and-a-half years
from the point the money was taken, it is now ordered to be returned. On top of that, Gorman will also be awarded attorney's fees. Why? Because the government lied every step of the way.
First off, two different law enforcement officers performed consecutive stops, with the second stop being predicated on the "suspicions" generated by the first. This is something law enforcement cannot do
Here, Gorman was initially stopped for a minor traffic offense at approximately 9:03 a.m. and released at approximately 9:26 a.m. when Monroe concluded that he did not have probable cause to search the motor home. Gorman was stopped the second time, again for a minor traffic offense, at approximately 10:15 a.m., and held for more than nine minutes before Fisher asked if he could conduct a canine sniff. Fisher knew that Monroe had previously ran a records check and lacked probable cause to hold Gorman, but nonetheless two additional records checks were conducted in order to prolong the detention and make time for a canine sniff. The positive alert occurred approximately twelve minutes after the second traffic stop occurred.
All tolled, Gorman was detained for a total of approximately thirty-five minutes without convincing independent reasonable suspicion—before the officers conducted a canine sniff of the motor home and obtained probable cause for the search. Of course, “an individual who has already been seized can still be further seized for purposes of the Fourth Amendment.” Hopkins v. Bonvicino, 573 F.3d 752, 772 n.12 (9th Cir. 2009). But a second stop requires additional reasonable suspicion independent of the reasonable suspicion present in the first stop.
On top of that, the government -- when arguing for its "right" to take money just because -- claimed the two stops were entirely unrelated.
In its supplemental briefing, and after it became evident that the two stops were connected, the United States argues that “Monroe’s earlier traffic stop is wholly irrelevant to the Fourth Amendment analysis applicable to Gorman’s motion to suppress.” Specifically, the United States contends that “Fisher’s traffic stop was based on his own observations of traffic violations being committed by Gorman, without regard to any information provided” by Monroe. These statements cannot be reconciled with the testimony by Monroe and Fisher, or an independent review of the evidence before the Court.
Note the phrase "after it became evident." This wasn't evident at first. Deputy Fisher hid this fact from the magistrate judge when requesting a warrant over the phone and lied about what Gorman had actually told him.
[T]he warrant application never mentions Monroe’s original stop, that Monroe called Fisher with information about Gorman and Gorman’s vehicle, or that Fisher was dispatched to investigate Gorman. This omission thereby represented to the magistrate that Fisher pulled Gorman over solely due to his traffic violations, as opposed to having been encouraged to investigate Gorman by NHP and Monroe. Second, Fisher represents in the warrant application that Gorman “indicated he had no job.” This is unambiguously contradicted by the video of Fisher’s questioning of Gorman, in which Gorman states clearly that he works for a Maui paddle board company.
These lies -- kindly called "omissions" by the court -- sadly wouldn't be enough on their own to suppress the evidence
obtained by the search. But the application of the Supreme Court's Rodriguez decision
(officers can't unnecessarily prolong stops to perform [often dog-assisted] fishing expeditions) does call for suppression.
But Deputy Fisher wasn't the only one lying. The State's Attorney's office also lied to the court.
The Court is disappointed that the United States would aggressively pursue this forfeiture action while all of its moving documents for summary judgment and supporting affidavits contained material omissions concerning the history leading to the traffic stop and canine sniff at issue. The government’s Motion for Summary Judgment, with supporting affidavits from Deputy Fisher and the Assistant United States’ Attorney, made no disclosure of anything which would have suggested that Fisher’s stop was a follow-up on Monroe’s stop and was based upon suspicion of a drug related offense.
This is how the government portrayed Fisher's actions in its provided documents.
On January 23, 2013, ECSO Deputy Doug Fisher was monitoring west-bound traffic on Interstate 80 near Elko, Nevada.
But, as pointed out earlier in the order, Doug Fisher wasn't assigned to traffic patrol and wouldn't have just been "monitoring traffic" if he hadn't received a call from dispatch about Gorman's RV, as well as a direct call from Trooper Monroe himself.
On top of the deceit at all levels, there were problems with the search itself. The drug dog alerted on a rear compartment. But rather than search that area, the deputies searched the entire
[E]ven assuming that the officers had probable cause to search the back right compartment where the canine alerted, the Court is not convinced that the dog’s positive alert to the compartment gave the officers probable cause to search the entire motor home. Despite Gorman’s consent to search the compartment, the officers did not even begin their search of the motor home with the compartment, instead beginning with a search of the motor home’s main cabin. “Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” United States v. Ross, 456 U.S. 798, 824 (1982)
The court doesn't weigh this issue specifically (although it does express its skepticism) but it doesn't have to. The prolonged detainment without probable cause is enough to suppress the evidence under Rodriguez
The court sums it up succinctly while ordering the government to hand over not only Gorman's original $167,000, but attorney's fees as well.
Gorman is undoubtedly the successful party here.
This order shows law enforcement at its ugliest: willing to lie and cheat to maintain control of what it stole.
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Posted on Techdirt - 29 June 2015 @ 2:41pm
Here's something you see all too rarely -- not because the government's civil asset forfeiture programs aren't routinely abused -- but because it's a good way to spend lots of money fighting a losing battle.
Vu Do, owner of two nail salons in New York City, is trying to retrieve nearly $44,000 -- his life savings which he had put together over twenty years -- taken from him by the DEA at the JFK airport. The complaint points out that Do has run two legitimate businesses in NYC for several years, and not once has he been arrested or even charged for violations of controlled substances laws.
Nevertheless, the DEA took all of Do's money under the assumption that he's involved in the drug business, despite being more than willing to let him go without even a citation. Do had planned to take his money to California to help his financially-struggling siblings out, but ran into the DEA first.
Then there's this:
The Plaintiff did not know that it was a violation of Federal regulations to carry cash in excess of $5,000 at the time of the seizure.
There's a good reason for not knowing this. There is no
federal regulation prohibiting citizens from walking around (or boarding planes) with any amount of cash. Asset forfeiture laws make this practice unwise
, but nothing in federal law says Do was forbidden from boarding a plane with his $44,000.
There are reporting requirements
for any amount over $10,000 in cash traveling in
of the country, but nothing says travelers can't go from state-to-state with their own money. They don't even have to report it. They will, obviously, experience more scrutiny from the TSA, but it's not illegal to do what this salon owner did.
So, why is this in here? It could be that Do performed his own research and came to the wrong conclusions. But that doesn't explain why his legal representation didn't point this out to him or remove it from the complaint. My guess is it's either an oversight (by his lawyer) or him just repeating what a TSA/DEA agent told him en route to the seizure of his money.
The DEA can easily bleed Do dry, or at the very least make it a break even scenario. Trying to get the government to return seized property is about as straightforward as engaging in quantum mechanics with a headful of acid. (Or firing a teacher
in New York City.) This chart, part of the Heritage Foundation's new PDF
discussing the many abuses of civil asset forfeiture, shows exactly how much work -- and how much can go wrong in the process -- it takes to get your stolen property back. (via Reason
) [click through for a larger version]
According to this chart, Do has no shot at reclaiming his money. He had a certain amount of time to challenge this seizure (until April 30, according to the DEA's administrative seizure notice
) and his June 17 lawsuit falls well outside that time limit. Not being "timely" is pretty much an instant loss.
If so, that's 20 years worth of savings headed towards ensuring the DEA has the funding to keep seizing cash
from travelers. Despite its best efforts, an actual drug trafficker will occasionally stumble into the agency's sticky grasp, inadvertently legitimizing the whole crooked program. I can't imagine the DEA looks forward to encounters with actual criminals, seeing as it involves arrests and a whole bunch of additional paperwork. Cash is king. And as long as asset forfeiture programs remain in effect, government agencies will prefer the easy busts of "guilty" money
over the more legitimate effort of removing criminals from the streets.
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Posted on Techdirt - 29 June 2015 @ 3:54am
The thing about transparency is that it's not just about what you reveal. It's also about what you choose to keep hidden. In the ongoing docket for the government's 2015 bulk records requests, there appears to be a missing document.
BR 15-75 (BR = "business records," "15" = 2015) -- the government's request to have 180 days' worth of "business [records] as usual" collections before the limitations of the USA Freedom Act kick in -- is present. So is the opinion addressing the repercussions of the passage of USA Freedom, which is denoted as "BR 15-77, BR 15-78." But where -- and what -- is BR 15-76?
Patrick Toomey at Just Security has a theory:
It’s hard to be certain, but it’s likely that BR 15-76 is an application to restart the phantom CIA bulk financial records program or another undisclosed bulk collection program. Beginning in late 2013, multiple outlets reported on the CIA’s bulk collection of Americans’ international money transfer records from companies like Western Union and Moneygram. Other outlets stated at the time that the CIA program overlapped significantly with efforts to collect “financial transaction data” by both the NSA and the Treasury Department. And according to the New York Times, beyond the CIA program, several officials “said more than one other bulk collection program has yet to come to light.”
If Toomey is correct, I wonder how long said "undisclosed program" will remain undisclosed. Others have come to light over the years, including the DEA's concurrent collection of domestic phone records, something it apparently ditched to give the DOJ only "one" bulk records collection to defend publicly.
Previous to the post-Snowden era of begrudging transparency, omissions are no longer going to go unnoticed. In the discussion of the BR 15-77,78 opinion, it was noted that no order was attached
, meaning the government has presumably not yet received a go-ahead from the court on phone metadata. Ever since the Office of the Director of National Intelligence engaged Transparency Mode, the FISA Court has regularly delivered orders and opinions on the NSA's bulk collection activities. While some orders have been shortly delayed, there's never been a complete omission, nor this long of a gap between expiration of a previous order and a reinstatement of the collection request.
Now that the FISC is playing along with the new transparency, omissions of any sort are simply unacceptable. As Toomey states, if this missing paperwork is related to another bulk records collection (possibly one authorized under pre-Patriot Act stipulations), it's not acceptable that the government has chosen to withhold it from the public. The public doesn't have less
right to know about the harvesting of its records simply because said program hasn't been forced out into the open yet.
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Posted on Techdirt - 26 June 2015 @ 1:36pm
The Intercept has just released an interesting document from its Snowden stash: an unredacted damage assessment of the New York Times' 2005 exposure of the NSA's warrantless wiretapping program -- a program that saw the agency monitoring the emails and phone calls of US citizens.
It's not that the government hasn't made damage assessments public before. It just does it very, very rarely and mostly for self-serving reasons. The most recent publications of damage assessments were in response to the Snowden leaks. The released assessments were heavily-redacted and made plenty of unfounded assertions about the damage done to the national security infrastructure by the leaks.
This 2005 damage assessment was never released. It was purely an internal document. Thanks to it being part of Snowden's package of leaked documents, it can be read without the sort of excessive redaction the government deploys when discussing even the most inane (or obvious) aspects of national security.
Such was the internal distress at the possible exposure of this surveillance program that the government managed to delay its publication for a year. Despite its successful pushback, the assessment here is no different that the assessment of the Snowden leaks. In other words, mostly speculation backed by very little support.
The memo gives a general explanation of what terrorists might do in reaction to the information revealed. It was “likely” that terrorists would stop using phones in favor of mail or courier, and use encryption and code words. They could also plant false information, knowing the U.S. government was listening. But the leaked program had not “been noted in adversary communications,” according to the memo. It gave no specific examples of investigations or targets that had or might be impacted by the revelations.
Once you get past the obvious suggestion that terrorists will adapt communication methods in light of presumably-unknown information, you get to more detailed discussion of the NYT article itself. The assessment breaks down every statement of fact in the article and provides its corresponding level of classification.
(TS//SI//STLW//NF//OC) "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity."
(TS//SI//STL WIINF//OC) (NSA) "monitored the international telephone calls (communications to the U.S.) and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years … to track possible "dirty numbers" linked to Al Qaeda..."
(TS//SI//STLW//NF//OC) "NSA eavesdrops (under this program) without warrants on up to 500 people in the United States at any given time." ... the number monitored ... may have reached ... the thousands"
(S//SI) "Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored (by NSA) at one time."
Oddly, the government considers the most obvious possible outcome of the exposure of this program (that terrorists would alter communications in light of this info) to be "classified."
(C) (The article) would alert would-be terrorists (inside the United States) that they might be under scrutiny.
If there was a battle for American hearts and minds to be fought in the wake of this publication, you'd think the agency would want this conclusion made public (preferably with some supporting evidence), rather than bury it with other classified documents.
Nearly a decade down the road, the government has yet to offer any solid proof that the New York Times' article resulted in compromised capabilities or surveillance programs.
“To this day we’ve never seen any evidence — despite all the claims they made to keep us from publishing — that it did any tangible damage to national security. This is further confirmation of that,” [New York Times writer Eric] Lichtblau told The Intercept.
In fact, the only clear response to the publication of this leaked info didn't take the form of altered collection techniques or additional terrorist attacks. It took the form of a full-blown DOJ investigation, involving 25 FBI agents and five prosecutors. This too, resulted in a whole lot of nothing
The leak and the response to it indicates the government was more worried about US citizens
, rather than its foreign adversaries, finding out about what it was up to.
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Posted on Techdirt - 26 June 2015 @ 10:33am
The UK's short-lived, awkward relationship with its Freedom of Information law appears to winding its way towards an acrimonious divorce. Not fully implemented until 2005 and disowned by its co-creator (former PM Tony Blair) in his memoirs only five years later, it has apparently now reached the point of irreconcilable differences: those being the public's interest in what their representatives are doing and their representatives' extreme disinterest in sharing their
feelings emails and documents.
Not that it ever was a fully-functioning Freedom of Information law (it was pre-sabotaged by automated email deletion programs before it ever went into effect), but it was at least somthing. But, sadly, it appears the UK government's "embrace" of transparency is every bit as sincere and warm-hearted as its embrace of free speech.
Michael Gove, the justice secretary, is considering making it more difficult to procure information from government bodies, including allowing officials to count “thinking time” when calculating how much it costs to retrieve information. One plan is to make it easier for ministers to veto publication of certain documents… Another is to change the way the cost of finding information is calculated so that officials can more readily turn down requests.
The first aspect would hand final veto power over to acting prime ministers. This is viewed by Gove and others as "needed" because the government was unable to prevent Prince Charles' correspondence from being released to The Guardian. As is almost always the case with contested open records requests, some embarrassment resulted from the publication of the released documents -- which showed that member of royalty pushing his personal perspective on issues like defense spending… or homeopathy... on a variety of legislators.
The second aspect is more related to Michael Gove's own FOI problems. Gove has previously been investigated for using personal email accounts to conduct official business. The 90-day automatic email destruction policy the UK government instituted is somewhat helpful in keeping the public uninformed, but what if someone wants to retain these official records longer for personal
reasons, but doesn't feel particularly compelled to share them with FOI requesters? Well, that's where the discussion of fees comes into play.
Currently, citizens can request anything as long as the costs incurred by government bodies doesn't exceed £600. Considering many files are stored electronically, can be easily searched and resulting documents sent
electronically, costs of fulfilling requests continue to decrease. So, Gove and others are suggesting a couple of changes: lowering the £600 cutoff point and/or padding invoices. The latter would see such intangibles as "considering" potential document releases billed at an hourly rate. Redaction efforts would also be billed.
If these changes are put into effect, FOI releases will slow to a trickle and some requests will meet with an almost un-challengable refusal, thanks to executive veto power. David Cameron promised a "complete revolution in transparency" during his term. Depending on your opinion of Cameron, this is either the antithesis of his goal, or exactly what he had in mind.
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Posted on Techdirt - 26 June 2015 @ 6:07am
Lest it be left behind by other countries bullied into submission by US trade agreements, the Canadian government has now expanded copyright terms for recording artists from 50 years to 70 years. (It was previously passed, but has now received the Official Royal Assent.) While not as obnoxiously long as the terms afforded to songwriters (life plus 50 years… which will probably be life plus 70 before too long…), it's still a needless expansion that does little for living artists while carving another 20-year hole in the public domain.
While one would expect a less-than-balanced perspective from a trade-focused entity, Billboard's "coverage" of the ruling sounds like it was written by the recording industry itself.
Two months after the Conservative government’s Economic Action Plan 2015 for Canada included its intention to amend the Copyright Act from 50 years to 70 years, the bill has been given royal assent and is now law. That ensures that songwriters will enjoy copyright royalties from early works well into their senior years.
Now songs such as Buffy Sainte-Marie’s "Universal Soldier" -- released 50 years ago this August -- are no longer in danger of entering the public domain.
Yes, it's the much-dreaded "public domain," which has repeatedly traveled several decades back in time to destroy nascent creative efforts. This "severely limited" time frame only extends to sound recordings. Songwriters and composers will continue to be rewarded for their creative efforts for 50 years after they're no longer able to cash royalty checks BECAUSE THEY'RE DEAD.
Music Canada -- the RIAA of The North -- applauds this decision.
In extending the term of copyright in recorded music, Prime Minister Harper and the Government of Canada have demonstrated a real understanding of music’s importance to the Canadian economy. Thank you. We are thrilled to see Canada brought in line with the international standard of 70 years.
Except it's not really a "standard." "Standards" tend to be a bit more static. This "standard" keeps edging up periodically, mainly because of Mickey Mouse, the best unofficial lobbyist the recording and motion picture industries have ever had. It's only a "standard" because the US has kowtowed to the entertainment industry and then passed this bullying along to other countries, using secretive trade agreements and both carrot and stick. A "standard" of $500 weekly protection payments, as "agreed upon" by baseball-bat wielding thugs offering oblique threats would be similarly as "legitimate" as this supposed "international standard."
As Billboard goes on to note, national treasures like Anne Murray, Gordon Lightfoot, Leonard Cohen and Neil Young would have faced the ghastly prospect of (their labels) being unable to exploit recordings from more than fifty years ago without this two-decade protection bump. Well, they likely would have continued to see royalties (life+50), but Music Canada's main patrons, not so much.
This is a win for record labels. It does next to nothing for the names listed above, other than ensure another twenty years of repackaged, decades-old songs -- not exactly the sort of "creative effort" people imagine when they talk about the advantages of copyright protection. All this does is give certain corporations the ability to wring a few more dollars out of recordings made more than 50 years ago. It will have zero impact on creative efforts going forward.
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Posted on Techdirt - 26 June 2015 @ 4:08am
As the French government feigned shock and indignation at revelations that a spy agency would spy on world leaders, it went ahead and continued pushing its new surveillance bill through the legislature.
Yet also today, the lower house of France’s legislature, the National Assembly, passed a sweeping surveillance law. The law provides a new framework for the country’s intelligence agencies to expand their surveillance activities. Opponents of the law were quick to mock the government for vigorously protesting being surveilled by one of the country’s closest allies while passing a law that gives its own intelligence services vast powers with what its opponents regard as little oversight. But for those who support the new law, the new revelations of NSA spying showed the urgent need to update the tools available to France’s spies.
This is the hypocrisy inherent
to all countries housing intelligence agencies (which is, pretty much, ALL countries). Government leaders express indignation that their spy partners would use their powers to spy on them, while the agencies under their purview do exactly the same thing. On top of that, concern is rarely expressed about their own citizens, whose data and communications are being swept up not only by foreign intelligence agencies but also by domestic surveillance programs.
That's the thing that will
happen. France will widen its (already-expanded
) surveillance net because a) government
and b) the Charlie Hebdo
massacre. Never let an attack on free speech prevent you from introducing your own chilling effect. And never let a tragedy go to waste. These are hallmark government moves, easily understandable when you realize most governments prize power expansions above all else.
This is the thing that won't happen
France should respond to the U.S.’s “contempt” for its allies by giving Edward Snowden asylum, the leftist French daily newspaper Libération declared on Thursday.
France would send “a clear and useful message to Washington, by granting this bold whistleblower the asylum to which he is entitled,” editor Laurent Joffrin wrote (translated from the French) in an angry editorial titled “Un seul geste” — or “A single gesture.”
While Snowden has applied to several countries for asylum (presumably France is one of them), it's doubtful the French government will follow through with a suggestion from an "angry, leftist" newspaper. As much as it claims to be righteously angered by the latest revelations, it is likely in no hurry to strain its "Five Eyes" relationship with a powerful ally. (It will, however, continue to antagonize
American tech companies with protectionist trade laws and batshit-crazy court decisions
…) If the French government actually issues an asylum invitation to Snowden, I'll order a proper chapeau from some non-Amazonian online retailer and eat it.
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Posted on Techdirt - 25 June 2015 @ 8:07am
If you want to know how misguided this lawsuit it, just read the subheadline:
IN a South Australian-first, internet giant Google is being sued by an Adelaide academic who claims she has been defamed by a US-based website it links to.
Do you see the problem here? Health researcher Janice Duffy is obviously intelligent, but she's been trying to hold Google responsible for Ripoff Report's actions for nearly six years now
, draining what's left of her savings and leaving her to crowdfund
her self-represented last stand against Google in the South Australian Supreme Court.
What she claims has happened as a result of the allegedly defamatory posts at Ripoff Reports is genuinely awful.
Dr Duffy said she had been unemployed since she was forced to leave her SA Health position in 2010 after her colleagues learnt of the false claims about her on the website, and she believed she had not been able to find work since because of it.
She said that she had since suffered intense depression and often contemplated suicide because of the situation, but was determined to have Google remove the links and seek compensation through the court action.
But her assertions take a turn for the quixotic when she mentions other options considered and discarded.
Dr Duffy said the website [Ripoff Report] charges people up to $10,000 per page to remove offending material, but she could not afford this as she had spent all of her savings and superannuation fighting Google in court.
I would never encourage someone to cave to borderline extortionate demands -- and Ripoff Reports is far from the paragon of online virtue -- but if she had the money at her disposal and spent it all targeting the company that returns search results
, rather than the company hosting the material or, better yet, the person who wrote the posts, it's tough to be wholly sympathetic. [UPDATE:
In contradiction to her own statements to the Adelaide Advertiser, Dr. Duffy claims to have attempted
to pay Ripoff Report to remove the posts.]
But she's going to keep fighting, sunk cost fallacy
be damned. What little she does have going for her in this quest to make Google pay for its refusal to delist allegedly defamatory content without a court order is her native country's rather dubious
court decisions and the lack of Section 230-esque protections, which brings the prospect of winning within the realm of imagination.
On her personal blog
, she posits this rhetorical question:
I still cannot figure out why Google would pay three law firms, two barristers and a QC literally hundreds of thousands of dollars rather then just remove the links to the defamtory content. That is all I wanted, for them to be removed. And yet, here I am almost 6 years and a couple of dozen removal notifications later facing a trial.
The answer, of course, is that this case -- while deeply personal to Dr. Duffy -- isn't just about her
. Ceding this ground would allow others less suitably injured to use Google as their own personal reputation management firm. It would allow copyright holders to provide even flimsier justifications for link delisting. And it would open Google up to several similar lawsuits from parties who find it easier to target Google for alleged slights, rather than the authors of defamatory posts. This is why Google's fighting so hard and this is why it really shouldn't be fighting this battle at all.
In its defence, Google claims its activities do not render it “a publisher at all, or in the alternative, the publisher of the matters complained of’’.
The legitimate target(s) of a defamation suit include:
1. The person who uttered the defamatory statements.
All else is simply pray-and-spray litigation. Different laws in different countries will raise or lower
the effectiveness of this praying/spraying, and certain countries are willing to overlook logic
simply to bash large American companies, but in terms of legitimate
lawsuits, the only party that should be listed as a defendant is the defamer. There are discovery routes towards discovering the true identities of anonymous/pseudonymous parties. And yes, this option will increase expenditures. But targeting the biggest, most publicly available names -- no matter how distantly "involved" -- isn't exactly a money saver either, as Janice Duffy has discovered.
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Posted on Techdirt - 25 June 2015 @ 4:01am
Loads of politicians continue to skirt the requirements of open records laws by using personal email accounts to handle official business. Others simply implement voluntary/poorly defined data retention policies that ensure nothing of interest will be handed over to the public. Given a short enough retention period, any request can be stonewalled until the autodestruct has rendered responsive files unavailable.
This is what the UK government is doing. Tony Blair, the prime minister behind the implementation of the UK's Freedom of Information laws, has publicly lamented ever inviting the public into the conversation. It now appears they'll still be mostly excluded from any email correspondence. (via slashdot)
Weeks before Tony Blair’s Freedom of Information (FOI) act first came into force, Downing Street adopted a policy of automatically deleting emails more than three months old, resulting in a system described by those who worked under it as ‘dysfunctional’. Campaigners have described the timing of the IT policy as ‘not a coincidence’.
Any emails retained past this point have to be saved by the recipient. The deletion system works so efficiently and thoroughly that some government employees thought they'd been issued faulty devices
One former permanent secretary told the newspaper that he thought there were problems with his BlackBerry when he noticed his emails kept disappearing.
The public might call this system opacity at its finest. But it's apparently not all that popular with those on the inside, either. It's one thing to be on the outside and attempting to peer in with a stack of FOI requests. It's quite another when government employees often experience email-induced early-onset dementia. The "90 Days or it's Deleted!" policy has been referred to as "extremely frustrating," especially when no one's able to verify what was agreed upon in meetings held only three months ago.
On top of 10 Downing Street's disappearing act, there's a concerted effort by other staffers and lawmakers to keep emails out of the public's hands. Some delete theirs almost immediately after reading. Others avoid discussing anything "interesting" in official emails.
The problem obviously traces back to Blair's hesitant implementation of the law. A promise of new openness was immediately undercut by a deliberate email retention policy change. When the leadership openly regrets and resents new avenues of accountability, the rank-and-file will only be more than happy to follow. In his memoirs, Blair called the FOI law a "weapon" in the hands of "journalists," showing just how deep-seated the government's disdain for openness actually is.
There's not a government on the planet that welcomes the scrutiny of the public. Fortunately, some legislators have recognized this as an unhealthy attitude. The battle over the freedom of information didn't end with FOI laws. It was only the beginning. The UK government -- like ours -- still has plenty of "weapons" of its own to deploy in the interest of opacity. Destruction of "retention" policies, easily-abused exemptions, stonewalling, disingenuous search efforts, exorbitant fulfillment fees -- all of these are the tools the government uses to remain in its natural vampiric state of living off the income of others while recoiling from the sunlight.
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Posted on Techdirt - 25 June 2015 @ 12:59am
No one seriously believed it was just US law enforcement agencies using repurposed war gear to track cellphone users, did they?
An investigation by the British news channel Sky News claims to have found evidence of fake cellphone towers operating in London and elsewhere that acts similarly to devices known as IMSI catchers, the most famous of which is manufactured under the brand name StingRay.
The results of Sky News' GDMK Cryptophone-enabled cell tower wardriving can be found in this file
, which supposedly uncovered more than 20 cell tower imposters in London alone in a three-week period. We've still got the UK beat on nomenclature, though. IMSI catchers are pretty much always referred to as "stingrays
" (actually a product name trademarked by manufacturer Harris Corporation). Due to the lack of official acknowledgement or FOA-ed documents, we're stuck with the clunky "ICT hardware," as produced by manufacturer Datong.*
*Time to crowdsource a better British nickname. We honestly can't be using "ICT hardware" in the future when further details inevitably leak out. You'd think the Brits would already have this handled, considering the split development of the language (American/English) has necessitated a need for an English-to-English dictionary at this point.
Here's what officials don't
have to say about the Sky News revelations, which follows on the heels of previous investigations by The Guardian
and the Times of London
. The only thing on record -- outside of the inevitable refusal to confirm or deny -- is this statement, which implies the public's right to know what law enforcement is up to falls far, far behind law enforcement's need to bust bad guys.
“We’re not going to talk about it,” Met official Bernard Hogan-Howe told Sky News when asked for comment. “The only people who benefit [from a comment] are the other side, and I see no reason in giving away that sort of thing."
Of course. And then there's this "reassurance," which only states that whatever the police are doing with these devices, it's certainly not as bad as the worst case scenarios envisioned by the most overactively-imaginative.
“If people imagine that we’ve got the resources to do as much intrusion as they worry about, I would reassure them that’s impossible,” Hogan-Howe added without providing any evidence to support his claim.
But that's OK, because what we do
know about IMSI catchers should be scary enough. They force phones
to the "dumbest" connection -- 2G -- to better facilitate the interception of calls and texts. They indiscriminately hoover up all call data in the area and can often disrupt normal phone service. Their exisitence is routinely hidden
from courts, judges and criminal defendants. And they've been deployed thousands of times by hundreds of law enforcement agencies without a warrant
These are all reason the public should be made aware of the purchase and use of these devices. But because usage isn't as "intrusive" as Hogan-Howe fails to specify it could
be, British citizens are apparently supposed to believe everything is perfectly fine.
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Posted on Techdirt - 24 June 2015 @ 2:44pm
Pawn shops -- like scrap metal dealers and junkyards -- are "closely regulated" businesses. What this means is they are compelled to track acquisition information and make it available for law enforcement to view without a warrant. The nexus of these businesses to criminal activity is undeniable. But that doesn't necessarily mean everything law enforcement demands, it gets. Some demands exceed the diminished Fourth Amendment protections afforded to these businesses.
The "closely regulated" language comes from the US Supreme Court. In a decision affecting a New York junkyard owner, the Supreme Court found that:
A business owner's expectation of privacy in commercial property is attenuated with respect to commercial property employed in a "closely regulated" industry. Where the owner's privacy interests are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises, if it meets certain criteria, is reasonable within the meaning of the Fourth Amendment.
A decision in the New York Supreme Court (People v. Keta
) seemingly went against the US Supreme Court's precedent. It narrowed the broad exceptions to the Fourth Amendment somewhat, with the presiding judge (Vito J. Titone) noting
"Our responsibility in the judicial branch is not to respond to these temporary crises or to shape the law so as to advance the goals of law enforcement, but rather to stand as a fixed citadel for Constitutional rights."
But "advancing the goals of law enforcement" still seems to be the goal. Officers are free to inspect acquisition records without a warrant, as well as seize stolen goods in plain sight, but most other actions (including searches of safes, etc.) still require additional paperwork.
In order to expedite police inspections of pawnbrokers, New York legislators passed a law making it even easier for law enforcement check in on "closely regulated" businesses
RCNY §21-03(a) and (b), §21-04(a) and (c), §21-07(a)-(f), and § 21-08, promulgated as a result of Local Law No. 149 require pawnbrokers and dealers in second-hand merchandise to create electronic transaction records and upload the same to a web-based electronic transfer service designated by the NYPD known as Leads Online, who then makes those records available to the NYPD.
Because this law compels (sort of…) the upload of information to a database that can be accessed at will by law enforcement and other entities, it does not conform
to the standards set by the NY Supreme Court's Keta
[T]he foregoing statutes fail to prescribe limits for the review of the records required to be disclosed and, in fact, in requiring the daily disclosure of those records seem to vest with the NYPD the unbridled discretion which even the court in Glenwood TV, Inc., would invalidate a statute authorizing warrantless searches (103 AD2d, 322, 330).
Specifically, at this stage, it is hard to fathom how the foregoing statutes - bereft of any standards on the frequency of searches, setting virtually no limit on how said searches will be conducted and thus, conferring unfettered discretion upon the defendants suffer from the very afflictions the court in Keta held afflicted VTL § 415-a(5) - can, in light of their facial unconstitutionality born by this record, be constitutionally applied.
The court mentions the "means to an end
" approach the NYPD is rather fond of. Simply having on-demand, warrantless access to on-site inspection of "closely regulated" businesses' records wasn't enough. It wanted to enjoy the same privileges without leaving the office. Now, these "inspections" -- along with others permitted under the same set of statutes -- have been halted until further notice
This compelled database of acquisition information is the centerpiece of another lawsuit
against the city and the NYPD. It appears from the allegations made in this suit that the NYPD expresses a certain irritation
with those that don't opt-in to the online database. (The law
requires creation and storage of electronic records, but does not actually mandate the use of Leads Online by affected businesses, stating only that "such electronic record may include real-time sharing or accessing of such records in an electronic format and/or through use of an internet website designated by the police commissioner
Plaintiff here alleges that Defendants have “effectively singled out Gem from other pawnbrokers and secondhand dealers and have done so with malice and bad faith.” (Am. Compl. ¶ 152.) Plaintiff further alleges that pawn brokers who choose not to use Leads Online are subject to additional onsite inspections for “administrative purposes,” and that Plaintiff has experienced continual visits to its stores, warrantless searches, holds on jewelry, criminal summonses and over all harassment. (Id. ¶¶ 36–133.) Defendants raise no argument as to this element of Plaintiff’s selective enforcement equal protection claim, instead relying on the fact that the NYPD is permitted to perform administrative inspections. The Court finds that Plaintiff’s detailed description in its Amended Complaint of the actions taken beyond mere administrative inspections, including various in-store visits from the NYPD, statements made to Gem employees, subsequent requests for jewelry holds, and the seven misdemeanor summons received, (see id.), are adequate to demonstrate at the pleadings stage a malicious or bad faith intent to injure Plaintiff. The Court therefore finds that Plaintiff has stated a plausible claim for violation of the Equal Protection Clause and Defendants’ motion to dismiss is, therefore, denied.
This lawsuit was filed before Local Law 149 was passed and enacted, suggesting there was a pre-legislation push by the NYPD to move these records to an online database. As of this point, the lawsuit is still ongoing
, having survived the city's motion to dismiss.
cited in the lawsuit don't specify anything more than the sort of records to be maintained. In accordance with the new law, these records are to be maintained electronically, but nothing specifically mandates the use of an online database.
As the court sees it here, this demand to participate in the online collection of these records -- which can be perused at the sole discretion of law enforcement officers and others with access to the database -- falls dangerously close to being a "general warrant." Compelled production of records during periodic inspections and/or suspicion of illegal activity is one thing. Providing at-will "inspections" with no corresponding guidelines turns "close regulation" into a prime fishing spot for law enforcement, who will no longer be participating in periodic inspections and searches, but rather trolling databases simply because they have unfettered access to the information.
Obviously, this has its parallel in the recent incident involving Motel 6's faxing
of guest information to local law enforcement nightly. Motels and hotels are businesses that are subject to routine inspection of collected records, but nothing about this sort of regulation demands proactive measures on the part of the businesses involved, other than the collection and maintenance of the required records. The rest is dependent on law enforcement not abusing these privileges, which wander outside the protections of the Fourth Amendment -- supposedly in the "public interest," i.e. fighting crime.
The necessary limitations -- and there are only a few -- are subverted by instantly-accessed, central collections of this information. The Supreme Court may have lowered the Fourth Amendment standards for these businesses, but New York's highest court stills sees at least a minimal amount of privacy implications in this sort of regulation. These are in place to help law enforcement combat theft, but these noble ends are not a justification for "by any means necessary" approaches.
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Posted on Techdirt - 24 June 2015 @ 12:38pm
National security apparently means "securing" the nation at the expense of citizens' security. New Snowden documents published by The Intercept show massive amounts of dicking around in the coding of popular anti-virus software by the NSA and GCHQ. The list of antivirus products not affected would be much, much shorter than a list of those that have been.
Much of what listed here involves the NSA and GCHQ monitoring threats reported to these antivirus makers (by intercepting email messages, naturally), obviously in hopes of finding something temporarily exploitable. But in other cases, the efforts went much, much deeper. The GCHQ obtained a warrant
to reverse engineer Kapersky products because it felt the company's software was "obstructing" its hacking attempts.
“Personal security products such as the Russian anti-virus software Kaspersky continue to pose a challenge to GCHQ’s CNE [Computer Network Exploitation] capability and SRE is essential in order to be able to exploit such software and to prevent detection of our activities,” the warrant renewal request said. “Examination of Kaspersky and other such products continues.” The warrant renewal request also states that GCHQ reverse engineers anti-virus programs to assess their fitness for use by government agencies.
Not only did the GCHQ seek permission to tear apart a legitimate security product for its own ends, but it also asked for an exception to UK copyright law in order to do so.
GCHQ’s success as an intelligence agency is founded on technical knowledge and creativity. In particular this may involve modifying commercially available software to enable interception, decryption and other related tasks, or “reverse engineering” software (this means to convert it from machine readable code into the original format, which is then comprehensible to a person). These actions, and others necessary to understand how the software works, may represent an infringement of copyright. The interference may also be contrary to, or inconsistent with, the provisions of any licensing agreement between GCHQ and the owners of the rights in the software.
Recognizing this could potentially cause a problem if its efforts were discovered, GCHQ explicitly asked that it be granted permission to engage in copyright infringement in the name of national security.
There is a risk that in the unlikely event of a challenge by the copyright owner or licensor, the Courts would, in the absence of a legal authorisation, hold that such activity was unlawful and amounted to a copyright infringement or breach of contract. The purpose of this warrant is to provide authorisation for all continuing activities which involve interference with copyright or licensed software, but which cannot be said to fall within any other specific authorisation held by GCHQ and which are done without the permission of the owner.
In other words, GCHQ doesn't have specific authorization to violate copyrights or licensing agreements, but for this particular effort, the warrant would act as a blanket permission slip to engage in this illegal activity. And, in doing so, it stretched an intelligence law to cover its violation of intellectual property laws
GCHQ obtained a warrant for reverse engineering under a section of British intelligence law that does not explicitly authorize — and had apparently never been used to authorize — the sort of copyright infringement GCHQ believed was necessary to conduct such activity.
The spy agency instead relied on the Intelligence Services Commissioner to let it use a law pertaining only to property and “wireless telegraphy,” a law that had never been applied to intellectual property, according to GCHQ’s own warrant renewal application. Eric King, deputy director of U.K. surveillance watchdog Privacy International said, after being shown documents related to the warrant, “The secret reinterpretation of powers, in entirely novel ways, that have not been tested in adversarial court processes, is everything that is wrong with how GCHQ is using their legal powers.”
On top of that, the type of warrant it obtained was only to be used for foreign surveillance, but supporting documentation notes GCHQ would also be performing its reverse engineering to support "police operations" and the domestically-focused National Technical Assistance Centre.
When it comes to national security efforts, laws just don't apply, it would appear. The NSA and GCHQ's efforts are completely indistinguishable from those of cybercriminals. While these agencies may have "good" on their side -- at least in terms of not wishing specific harm to non-targets -- the end result is the same: a less secure computing world.
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Posted on Techdirt - 24 June 2015 @ 6:01am
Canada's civil liberties-trampling anti-terrorism law (C-51) only recently passed, but authorities have been nothing if not proactive in combating the threat posed by radicalized citizens. Co-opting US law enforcement's belief that supportive words = 'material support,' the Royal Canadian Mounted Police (RCMP) raided the home of an "extremist," arresting him and seizing a bunch of his computer equipment.
Harun Abdurahman, known as Aaron Driver to his father, apparently came under surveillance after expressing his "extreme views" during an interview with a Canadian newspaper. His father, a career member of the Canadian Armed Forces, seems somewhat dismayed by his government's actions.
"They told me he was on the watch list. He was considered a radical extremist and 'we hope he doesn't go to terrorist,'" said the man's father in an exclusive interview with CBC News in March. The CBC is not identifying the father.
"Here you've got your national security force, if you will, monitoring your child," he said. "How would you react to something like that? I didn't know what to say."
Driver/Abdurahman may be C-51's first test case/victim, even though his surveillance and arrest occurred before
the law was passed. But if the aftermath of this arrest is any indication, Canadians who articulate "extreme" views have a lot more reasons to fear their government than their government has reason to fear them.
After spending a week in jail, Driver has been released. He has not
been charged, but federal authorities are treating him as though he just served a lengthy prison sentence for an incredibly heinous crime. There are 25 stipulations attached to his release (once again, not charged with any crime
) which will severely limit Driver's ability to live anything approaching a normal life
Here are just a few of the restrictions imposed by authorities:
- Wear an electronic monitoring device around the clock.
- Take part in "religious counselling" and forward the counsellor's name to RCMP.
- Follow an overnight curfew (from 9 p.m. to 6 a.m. daily) and stay at his home in Winnipeg's Charleswood neighbourhood. The home was raided earlier this month.
- Surrender any passports he has and not apply for any passport from Canada or any other country.
- Not possess any desktop, laptop or tablet computer. Any cellphone he has must be approved by RCMP, and the phone number must be submitted to police.
- Provide passwords and access to his cellphone at the RCMP's request, with "such requests not to exceed two times per month."
- Stay away from social media websites, including Facebook, Twitter, Kik, Surespot and Telegram encrypted chat.
- Have "no contact or communication directly or indirectly with any member of ISIS, ISIL, Islamic State of Iraq and Syria and Al Qaida in Iraq." He must also not possess anything bearing the logos or names of any of those groups.
The government believes these are reasonable restrictions to place on a person who has not been charged with nor convicted of any criminal activity. Federal prosecutor Ian Mahon sees these stipulations -- which are far more severe than those that convicted criminals face -- as nothing more than an appropriate level of quid pro quo.
"If he is willing to enter into certain conditions, then there's no reason to keep him in custody," Mahon told CBC News on Monday.
How about "if he hasn't been charged with any crimes, then there's no reason to keep him in custody?" That's sort of how criminal custody works. Apparently, plenty of exceptions will be made for someone deemed dangerous enough to justify a raid involving several officers loaded in tactical gear and the seizure of electronics, but not dangerous enough to be charged and put on trial. This is the Canadian government aggressively chilling speech it doesn't like and nothing more.
And for all the supposed danger Driver posed, the police didn't seem to exercise much care during its weeks of surveillance.
Neighbours say undercover officers have been watching the home in the city's southwestern neighbourhood of Charleswood for months.
If the RCMP truly believed this was a dangerous individual, it would have done better obscuring its presence. But all it was looking for was an excuse to bust someone for the nonexistent crime of supporting unpopular views. It openly surveilled a Canadian citizen, held him for a week without charge and then only agreed to release the uncharged
Driver if he would agree to further round-the-clock scrutiny from authorities so concerned about his online comments, they couldn't even find anything to charge him with.
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Posted on Techdirt - 24 June 2015 @ 3:58am
More potential copyright insanity from the European Union. Some positive moves have been made, but they often seem to be offset by extremely awful ideas. Photographing public structures could soon become copyright infringement. At this point, there's no unified "freedom of panorama" across European countries. Some recognize this as a right inherent to citizens. Others feel any photographic reproductions of structures in public spaces are a violation of the creators' rights. (via Boing Boing)
A more logical approach to unification was proposed first in a copyright reform report written by Pirate Party representative Julia Reda.
The [copyright reform] report had originally suggested that the current disparity in laws on freedom of panorama across Europe (see map) be harmonised by proposing a unified standard allowing images of works that are permanently located in public places.
Perhaps feeling that anyone who self-identifies as a "pirate" is likely untrustworthy, the EU Parliament's Legal Affairs Committee has rewritten this proposal, going in the opposite direction.
16. Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them
Instead of defaulting for the more logical assessment that only very limited protections can be extended to buildings and other structures fully visible to the public and erected in publicly-accessible areas, the Committee has extended "permission culture
" to include objects not normally considered to be inaccessible to the public by camera/drawing/etc. because they're accessible to the public in all other respects.
Rather than allowing people to take and publish their own photographs of buildings and monuments in public places—as celebrated in the annual Wiki Loves Monuments campaign, as well as many many books with author-supplied photographs—full permissions, clearances, royalties, and/or use of authorised images would be required for videos, photographs, paintings or drawings with any potential commercial use. (Wikipedia does not accept images unless they can be re-used for any purpose.)
This would end a long-standing tradition in many countries that the skyline and the public scene should belong to everybody; in the UK and Ireland, for example, this goes all the way back to the Copyright Act 1911, [which first set down copyright exceptions in statute law, and is currently reflected in section 62 of the UK Copyright Designs and Patents Act 1988, and section 93 of the Irish Copyright and Related Rights Act 2000.
The status of existing books published without such clearances would become unclear; most Wikipedia images depicting public art would be lost; and it would become very much more difficult and more expensive to publish future books comprehensively illustrating architecture and public art (or even artists' sketchbooks depicting them).
You can already see the effects of the legal disparity in regards to the "right of panorama" in effect at Wikipedia. Its page for the Atomium
, a structure created by André Waterkeyn for the 1958 World's Fair in Brussels, contains a censored image, thanks to Belgium's copyright laws.
Waterkeyn's family, aided by royalty collection agency SABAM, has pursued "unauthorized" photographs of the outdoor structure. Despite its actions, there are plenty of images of the Atomium floating around the internet. But you won't find one on its Wikipedia page. The next commercial use of depictions of this outdoor structure won't be happening until 2076, if EU's copyright laws aren't unified into something less completely ridiculous.
It's not just limited to Europe, although that's where the next battle is taking place. This same sort of copyright overreach can be witnessed in photos submitted to Wikimedia Commons which have been edited due to complaints from entities residing in countries without "freedom of panorama" protections. More requests for deletion/editing are cataloged here.
It will be about three months before the EU begins debating the proposed copyright reforms. Those living in the countries possibly affected by a "unified" ruling in favor of this clause are encouraged to contact their representatives.
If you're an EU citizen, for maximum impact please contact each of your local MEPs and ask them to communicate your concern to the MEP responsible for co-ordinating their group position on the matter—in the UK, for example, this would be Sajjad Karim (on-side?) for the Conservatives, or Mary Honeyball (wobbly?) for Labour—and ask them to ask the coordinating MEP to confirm that the group will be seeking to remove this clause as it currently stands from the report, and defend the full right to make use of photographs taken in public places, in this case the existing UK law. In this way you'll get the chance to learn what the group's detailed current position is (which you may then find you need to work to persuade your own MEP away from). The coordinating MEP will also thus be made aware of the full range of concerns being expressed to the group, and may be more likely to answer a request forwarded by a fellow MEP than a direct approach.
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Posted on Techdirt - 23 June 2015 @ 2:47pm
More government malfeasance is being alleged in the all-over-but-the-Genius-Bar-employment prosecution of whistleblower Thomas Drake. Documents directly related to his whistleblowing efforts -- ones that would possibly have helped him fight the administration's efforts to punish him for supposedly-protected activities -- were allegedly destroyed by the Department of Defense.
Two government watchdog agencies are investigating whether the Pentagon inspector general destroyed evidence improperly during the high-profile leak investigation of former National Security Agency senior official Thomas Drake.
“DOD OIG’s handling of documents . . . is within the scope of an ongoing inquiry by the Office of Special Counsel (OSC),” Raymond Hulser, the chief of the Justice Department’s Public Integrity Section, wrote to U.S. Magistrate Judge Stephanie Gallagher in a letter dated June 11. “In the event that OSC finds evidence of criminal conduct during the course of its work, it will refer that evidence to the Department of Justice for appropriate action.”
Succinctly put, the "proper channels" for whistleblowing were used by Thomas Drake, who was prosecuted under the Espionage Act. The missing files are related to his attempt to utilize those proper channels. Obviously, following procedures can't really be considered "espionage." The government's case against Drake fell apart
, resulting in Drake pleading guilty
to a single "unauthorized computer use" charge. But the case went on long enough that it drained Drake's personal savings and his revoked security clearance pretty much barred him from further government employment, leading to his current position as an employee of an Apple store
The government’s handling of documents first became an issue during the evidence-gathering stage of Drake’s prosecution, when his criminal defense lawyers sought records related to his whistleblower cooperation with the Pentagon inspector general’s office in order to defend him.
At the time, the Justice Department told the judge that most of the “hard copy documents” related to the Pentagon inspector general’s office audit that Drake had cooperated with couldn’t be provided to the defense because they’d been destroyed “pursuant to a standard document destruction policy.”
Drake’s current lawyers, who didn’t represent him in the criminal case, told the court in a letter in April that they learned otherwise while representing Drake in his recent whistleblower claim against the NSA.
Drake’s lawyers wrote that the Pentagon inspector general’s office destroyed the documents “outside of normal policy and to impede . . . the criminal case.”
Even if these documents do somehow materialize, there's not much they can do other than vindicate Drake's actions. It won't rebuild his personal finances or return him to his former government position. In fact, even if evidence of wrongdoing is uncovered, it's likely to result in no meaningful actions. The court itself can't do much more than refer the findings to the Department of Justice, which has already noted that it is looking into these allegations. But to what end? Proof of deliberate destruction of evidence is the sort thing routinely wrist-slapped by the DOJ and the administration, both of which will probably allow the DOD to investigate itself and offer various plans to prevent future malfeasance, should it somehow manage not to clear itself
of any wrongdoing.
If evidence of document destruction comes to light, the only practical purpose it will serve is to further illustrate how rigged
the "justice" card game is -- what with prosecutors playing with incomplete, marked decks provided to them by "victims" of government whistleblowing.
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