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Posted on Techdirt - 27 July 2015 @ 10:35am

Eight Years After Bogus Expulsion Over Supposed 'Threat,' Former Student Obtains $900k Settlement From University

from the delayed-justice dept

It's taken former Valdosta State University (VSU) student Hayden Barnes most of a decade and two trips to the 11th Circuit Appeals Court, but his efforts to hold the school accountable for its abusive behavior have finally paid off.

Today, more than eight years after his unjust expulsion, student Hayden Barnes’ federal civil rights lawsuit against Georgia’s Valdosta State University (VSU) and former VSU president Ronald Zaccari concluded with the announcement of a $900,000 settlement…

“After eight years, and one of the worst abuses of student rights FIRE has ever seen, Hayden Barnes has finally received justice,” said FIRE President and CEO Greg Lukianoff. “Thanks to Hayden’s courageous stand, would-be censors at public universities nationwide have 900,000 new reasons to respect the free speech and due process rights of their students.”
We've covered multiple cases of universities overstepping their bounds when it comes to free speech, but VSU's case is particularly stupid. VSU president Ronald Zaccari didn't care for Barnes' peaceful protest of the school's 2007 plan to use $30 million in new student fees to erect two parking garages. Barnes posted fliers and sent emails to the student body and staff stating his objections to the plan. He also crafted a sarcastic photo collage titled "S.A.V.E. - Zaccari Memorial Parking Garage" and posted it to his Facebook page.

Soon after that, the school -- led by Pres. Zaccari -- expelled Barnes, claiming his Facebook collage was evidence he posed a "clear and present danger" to the university.
As a result of recent activities directed towards me by you, included but not limited to the attached threatening document, you are considered to present a clear and present danger to this campus. Therefore, pursuant to Board of Regents' policy 1902, you are hereby notified that you have been administratively withdrawn from Valdosta State University effective May 7, 2007.
The letter also informed Barnes that the only way he would be readmitted to VSU would be if he underwent a psychiatric evaluation and submitted to ongoing mental health therapy.

Attached to the letter was a screenshot of Barnes' "threatening document" (the Facebook post), which obviously contains nothing approaching a threat. Presumably, Zaccari read the word "memorial" and conveniently decided this troublesome critic wanted him dead, rather than considering it might be a light slam referencing Zaccari's concern about his VSU "legacy."

Well, Zaccari has managed to secure his legacy… as well as a bill for damages he's personally responsible for paying.
Zaccari [...] used this bogus rationale to expel Barnes without a hearing. Barnes sued Zaccari and other VSU administrators in 2008, and in 2013 a federal district court found that Zaccari had violated Barnes’s due process rights. Barnes was awarded $50,000 in damages for which the court determined that Zaccari was personally liable, sending a message to public college administrators that there can be real, personal costs for abuses.
Despite this win, the university continued to fight against Barnes' claims, sending it back to the 11th Circuit Course twice. All it managed to do was increase the amount of legal fees it could potentially be held liable for. With a loss all but assured, the school finally fell on its $900,000 sword on July 23, 2015.

It's not that VSU doesn't care about its students' rights or doesn't provide them with avenues of recourse. It's that in this case the school, led by Zaccari, did everything it could to prevent Barnes from availing himself of these options. The most recent decision by the 11th Circuit Court contains a detailed recounting of the events leading to the long-running lawsuit that shows Zaccari actively pushing for a form of expulsion ("administrative withdrawal") that would allow the school to bypass Barnes and his right to a more adversarial process.

It was this abuse of due process -- and Zaccari's guiding hand -- that led to him being held responsible for $50,000 in damages.
The court ruled that because Zaccari ignored Barnes’ “clearly established constitutional right to notice and a hearing before being removed from VSU,” Zaccari could not shield himself with the defense of “qualified immunity.” In other words, Zaccari’s abuse of power was so egregious that the Eleventh Circuit found he could be held personally liable for his wrongdoing.
$900,000 may seem like a decent payout, but it has to be spread over eight years of litigation. At best, this possibly puts Barnes at break-even. It will likely come with stipulations stating that it is not an admission of wrongdoing by VSU administration. It may prompt the university to more closely inspect its expulsion policies and address due process concerns in the future, but the school has issued no statement on its participation in the lawsuit nor its official position on the outcome.

The settlement is far more useful as a warning to other schools and administrators who may be considering ditching due process niceties in their haste to expel/shut up students that don't agree with their positions or activities. Even more effective than the $900,000 handed over to Barnes by the school is the $50,000 the school's president is personally on the hook for. There are few things more powerful than the direct targeting of an abusive individual's wallet, especially when that person had likely assumed his position would insulate him from being held accountable for his actions.

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Posted on Techdirt - 24 July 2015 @ 6:25pm

DEA's Confidential Informant Program Basically Being Run With No Oversight Whatsoever

from the 'do-what-thou-wilt;-that-it-the-whole-of-the-policy' dept

DOJ Inspector General Michael Horowitz's report on the DEA's use of confidential informants has been published. (We're still an unknown amount of time away for his report on the agency's use of administrative subpoenas.) And it's still incomplete. Horowitz has been fighting the FBI and DEA every step of the way, as both agencies have proven not only unwilling to turn over needed documents, but thoroughly resistant to DOJ intervention or threats against their collective wallets.

The opening of the OIG report gives some insight into the months of DEA interference and recalcitrance.

Our audit work thus far has been seriously delayed by numerous instances of uncooperativeness from the DEA, including attempts to prohibit the OIG’s observation of confidential source file reviews and delays, for months at a time, in providing the OIG with requested confidential source information and documentation. In each instance, the matters were resolved only after the Inspector General elevated them to the DEA Administrator. As a result, over 1 year after we initiated this review, the OIG only has been able to conduct a limited review of the DEA’s Confidential Source Program.
This makes the concluding sentences of this same paragraph seem particularly hopeless.
Nevertheless, we have uncovered several significant issues related to the DEA’s management of its Confidential Source Program that we believe require the prompt attention of DOJ and DEA leadership, as identified in this report. We will continue to audit the DEA’s Confidential Source Program to more fully assess the DEA’s management and oversight of its confidential sources.
If you can't get the DEA to turn over existing documents, it's highly unlikely Horowitz's recommendations will be implemented with any expedience. The DEA has already shown complete disdain for its oversight. Putting this in print won't change that.

The problems begin with the DEA apparently cherry-picking which Attorney General guidelines it will follow when dealing with confidential sources. Rather than add the guidelines as its own section of the DEA's policies, the DEA instead chose to fold in certain recommendations. This has created two sets of policies -- the DEA's and the (supposedly overriding) AG's. It hasn't gone well… at least in terms of cohesiveness. But it has worked out perfectly if you consider "thwarting oversight" to be an essential part of drug enforcement.
The DEA’s differing policies have resulted in DEA personnel being able to use high-risk individuals as confidential sources without the level of review as would otherwise be required by the AG Guidelines for high-level and privileged or media-affiliated sources. These categories include individuals who are part of drug trafficking organization leadership, as well as individuals who are lawyers, doctors, or journalists. The AG Guidelines provide a special approval distinction for these individuals because the use of them as confidential sources poses an increased risk to the public and DEA and creates potential legal implications for DOJ. The exemption of the DEA from these requirements results in a relative lack of DEA and DOJ oversight…
And what has this lack of oversight led to? All sorts of fun stuff. The DEA has shown little interest in thoroughly reviewing its informants' "conduct authorization." By failing to stay current on what informants can commit what criminal acts, illegal activities are occurring with the implicit approval of the agency -- whether or not they contribute to ongoing investigations.

These sources may be committing not-directly-approved Otherwise Illegal Activity (OIA - yes, it's an official DEA term) for years after they've contributed to any DEA investigations. The DEA is also apparently unwilling to keep its sources' files up-to-date, meaning it could be years before the agency cuts a useless source loose. This lack of attention has resulted in DEA sources becoming the subject of other law enforcement agencies' investigations.
In some cases, the DEA continued to use, for up to 6 years without any DOJ intervention, individuals who were involved in unauthorized illegal activities and who were under investigation by federal entities.
While committing criminal acts in the service of the Drug War, these sources were also availing themselves of additional taxpayer funds -- again without proper oversight -- in the form of federal benefits.
We estimated that, in just the 1-year period from July 1, 2013, through June 30, 2014, the DEA paid 17 confidential sources or their dependents FECA benefits totaling approximately $1.034 million.
The DEA's oversight-dodging is more than just its ad hoc meshing of pertinent rules. It also involves using a completely different categorization process for its informants. Certain informants working with other federal agencies are designated "high level" and must be directly approved by the DOJ and US Attorney's Office. The DEA avoids this outside approval process by using its own rubric, which doesn't contain the "high level" designation and appears to have very flexible sitpulations. This includes policies pertaining to informants whose communications may fall under the heading of "privileged."
Other DEA headquarters’ officials acknowledged that Special Agents are permitted to establish as a confidential source a privileged or media-affiliated status individual, such as a doctor or lawyer, to obtain information not related to the source’s employment. In these cases, the DEA’s legal staff would review the proposed utilization of the privileged or media-affiliated individual to ensure there is not a breach of privilege. However, this requirement and process is not included in the DEA Special Agents Manual section on confidential sources. Thus, the DEA solely relies on the discretion and judgment of its special agents to identify occupations that necessitate additional review and seek that from DEA legal staff.
The agency's approval of Otherwise Illegal Activities is similarly flawed, again allowing the agency to avoid oversight. (As well as any perception of the DEA as a competent, well-run crime-fighting machine.) For a drug-targeting agency, it certainly takes a very hands-off approach to drug-related activity.
[T]he DEA Special Agents Manual section on sensitive activities explicitly excludes drug buys and other routine confidential source activities, and the DEA Special Agents Manual section on confidential sources does not provide detail on the process for using confidential sources to perform illegal acts such as drug buys, does not require SAC approval for larger drug deals, and does not reach smaller ones…

These inadequate DEA policies and procedures related to OIA greatly increase the risk to the DEA, the U.S. government, and the public from the involvement of DEA confidential sources in OIA. DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA.
This lackadaisical approach is likely costing the DEA drug busts. Because it shows almost no interest in policing approved criminal activity, it could find itself struggling when attempting to prosecute former informants or their conspirators.

And its own internal oversight policies are a complete joke. No matter what the policies state, actual review of informants' files has long been nothing more than a swift rubber-stamping. Up until the OIG started looking into its confidential source program in 2012, the DEA, for the most part, spent only 15-30 seconds examining each confidential source file.

On top of all this, there's a strain of unearned credibility given to the DEA and the sources it employs by other government agencies. Despite a complete lack of documentation, claims submitted to the Department of Labor seeking compensation for injuries or death were routinely approved.
The DEA submitted and DOL accepted a claim for a confidential source who was presumably killed overseas in 1991. However, according to the file, there were no witnesses to the confidential source’s death and the source’s body had not been recovered.

The DEA submitted and DOL accepted a claim for a confidential source who was shot and injured at home in 2002. However, the file indicates that there were no witnesses to the shooting and the file contained no evidence of a link between the shooting and the individual’s status as a DEA source.
In addition, the DOL considered anything the DEA forwarded to it to be perfectly accurate, resulting in "disabled" confidential sources drawing paychecks from both the DEA and the DOL for years at a time.

Considering what's in the report, it's of little surprise the agency fought Inspector General Horowitz for as long as it did. And it's still fighting. This report is based on an incomplete survey of pertinent files. The DEA is still holding some stuff back, claiming it needs to protect the sources it can't be bothered to keep an eye on.

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Posted on Techdirt - 24 July 2015 @ 3:57pm

Government Appoints Insider With Terrible FOIA Track Record To Head Up Gov't Info Services At National Archives

from the you-can't-make-something-work-better-just-by-rearranging-broken-parts dept

Update: In writing this post the original link to Alex Howard's piece at Huffington Post, which makes up the majority of quotes here somehow slipped. We apologize to Alex for the error..

The Department of Homeland Security (DHS) is looking to revamp its FOIA system, which is not only suffering from the over-redaction common to intelligence/security agencies, but also from a massive backlog of unfulfilled requests. As befits an agency that often can't tell the First Amendment from a terrorist threat, the effort is going badly.

First off, the DHS recently debuted its mostly-nonfunctioning FOIA request app, which would probably have added to its backlog if only it worked. But it's a move in the right direction -- greater transparency -- even if in practice, it's pretty much the equivalent of tripping over something and calling it "forward progress."

The DHS has similar problems with its internal technology.

A November 2014 report from the General Accountability Office found the DHS duplicates efforts when processing FOIA requests. Holzer acknowledged the issue in a memorandum that said different departments of the DHS are using FOIA software that fails to meet federal standards.
The Holzer quoted here is the current senior director of FOIA operations at the DHS, James Holzer. Under his direction, the DHS has moved ever so slightly towards the "responsive agency" ideal. But every small step forward continues to be undermined by the agency's desire to keep its documents to itself. It currently has the greatest number of partially-filled requests of any government agency.

Part of this is due to the fact that the agency receives more requests than any other agency. And part of this is due to the government talking big about transparency, but refusing to put federal money where its mouth is.
According to the Department of Justice's annual report, there were 3,838 full-time FOIA staff members in 2014. In 2011, there were 4,396.
But part of this is due to Holzer himself, who has erected fee barriers to further distance requesters from the documents they seek.
Holzer wrote a 2014 letter that MuckRock, which provides a FOIA request and hosting service, was "not a member of the news media," though it featured journalists like Michael Morisy and Shawn Musgrave publishing journalism on matters of public interest, like domestic drone programs.
According to Holzer, MuckRock is a "commercial" entity -- apparently basing his determination solely on the fact that MuckRock has a website and internet users visit it to view FOIA documents.
Making documents available on MuckRock's website, even at no charge, drives traffic to the website and furthers its commercial purposes.
On top of all this, the DHS has also been found to censor FOIA responses for purely political reasons and has occasionally handled its massive backlog of unanswered requests by tossing thousands of them into file boxes and forgetting about them.

So, given this background, it's a little disheartening to hear that Holzer is being promoted to a position that will give him even more control over the government's end of the FOIA process.
This week, Archivist of the United States David Ferriero announced that James Holzer would be the new director of the Office of Government Information Services at the U.S. National Archives, beginning on August 9.

"Dr. Holzer’s experience administering FOIA and his demonstrated commitment to transparency will benefit OGIS, the National Archives, and the American public," said Ferriero.
Well, "commitment to transparency" means only as much as the administration itself is committed to transparency -- which isn't much. The promotion of an insider like Holzer to this post means FOIA requesters should expect little more than the status quo for the duration of his tenure. The government isn't imaginative enough to explore the areas outside its confines while filling an open FOIA oversight slot. This is the sort of job that shouldn't be left to a company man, as HuffPo's Alexander Howard points out.
It's hard to find a positive interpretation of the fact that a FOIA officer from DHS has been appointed ombudsman. FOIA requesters will need a strong advocate to arbitrate disputes and push for their requests to be addressed. A candidate from the nonprofit, academic or media worlds would be much more likely to do that than a DHS staffer.
The FOIA program will never approach the ideals of the law as long as it continues to be overseen only by government officials. Their interests are at odds with the public's in most cases. It's yet another area of government that would be better served by an advocate for the public, drawn from the public.

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Posted on Techdirt - 24 July 2015 @ 11:38am

Officer Indicted For Lying On Warrant Application That Led To Toddler Being Burned By Flashbang Grenade

from the actually,-I'd-rather-have-honest-cops-than-burned-toddlers,-TYVM dept

The local police union defended the indefensible: the burning/maiming of a toddler with a flashbang grenade, delivered during a no-knock raid in service of the Drug War. According to the union rep, burned toddlers are just the price society has to pay to keep the streets relatively free of criminals.

"You have to draw the line between your right as a citizen to privacy and a community's right to live in a crime-free environment. You can't have them both," Mills said.
Thanks, but no thanks. Not only did the union defend these Georgia police officers' needlessly aggressive tactics, but it attempted to lay the blame for a burned toddler at the public's feet. And now, with a grand jury indictment being handed down, it appears the union was also defending a liar.
According to the indictment, [Deputy] Autry falsely claimed a confidential informant who had provided reliable information in the past had bought methamphetamine from Wanis Thonetheva at his mother's house in Cornelia. In truth, the informant was newly minted, and it was his roommate who claimed (without verification) to have bought drugs at the house. That lie was the basis for the early-morning, no-knock raid during which 18-month-old Bounkham "Bou Bou" Phonesavanh, Thonetheva's cousin, was nearly killed by a flash-bang grenade that landed in the playpen where he was sleeping.
Any CI that can put a no-knock raid in motion is inherently trustworthy. Except when they aren't. So, much like the toddler's family's lawsuit alleged, the impetus for the raid that saw SWAT members tripping over children's toys in the yard on their way to tossing a flashbang grenade into a crib was nothing more than some random citizen "helping" keep his neighborhood safe.

All that investigative work and "upon information and belief" was actually Habersham County Deputy Sheriff Nikki Autry spinning a tale of small-time drug running in exchange for the permission to perform the law enforcement version of a home invasion.
Specifically, Defendant Autry provided and swore, in pertinent part, (1) that she conducted an undercover drug investigation during which time CI #1459 was able to purchase a quantity of methamphetamine from [W.T] at [W.T.'s] residence; (2) that CI #1459 [was] a true and reliable informant who provided information in the past that led to criminal charges on individuals selling illegal narcotics… and (3) that she confirmed that "there [was] heavy traffic in and out of the residence."

This information that Defendant Autry provided and swore to was false, because, as Defendant Autry then well knew: (1) CI #1459 did not purchase a quantity of methamphetamine from W.T. during her investigation; (2) CI #1459 had not provided information in the past that led to criminal charges on individuals selling illegal narcotics… and (3) she had not confirmed that there was heavy traffic in and out of the residence.
The presentment accompanying the grand jury's findings suggest several improvements for drug enforcement activities, starting with dialing back the "gung-ho" aspects of drug warring.
Some of what contributed to this tragedy can be attributed to well-intentioned people getting in too big a hurry, and not slowing down and taking enough time to consider the possible consequences of their actions. Without serious supervision and constant vigilance, the work of drug enforcement, like many other jobs, can unfortunately become routine and lead to complacency and lack of attention to detail. The difference in this type of work is that the consequences can be devastating to both citizens and law enforcement when things go wrong.
Making thing go "right" more often means bringing SWAT teams and tactics back in line with their original intentions: for use only the most dangerous operations. Over the past few decades, SWAT teams have gone from seldom-used specialists who dealt with shootouts and hostage situations to routine -- but extraordinarily violent -- delivery services for unremarkable search/arrest warrants. The presentment points out law enforcement agencies have several options that don't involve violently raiding residences during odd hours.
We recommend that whenever reasonably possible, suspects be arrested away from a home when doing so can be accomplished without extra risk to law enforcement and to citizens. Going into a home with the highest level of entry should be reserved for those cases where it is absolutely necessary. This is to protect both citizens and law enforcement officers.

We have heard evidence that many drug suspects often initially believe a law enforcement entry is in fact a drug robbery. In an instant, they reach for a weapon or take an action that makes a situation escalate. This is dangerous to all involved, and neither the public nor law enforcement officers should be in this dangerous split second situation unless it is absolutely necessary for the protection of the public, which is the highest concern for our lawenforcement officers under their duty.
It's a nice set of words, but the real test will be the application of these principles -- principles that never should have been abandoned in the first place. To start with, it's rare to find an officer who places protection of the public over protection of themselves. Almost every act of unwarranted violence is defended by the words "feared for my safety." We don't ask that officers become punching bags and bullet-catchers, but there's a lot of leeway between a "furtive motion" and emptying a service weapon into an unarmed person. (Or tossing a flashbang through the nearest window with little regard for what lies behind it.)

The standard MO for drug-related warrants is to deliver them with as much violence, force and noise as possible, under the assumption that every drug dealer -- no matter how small -- awaits the arrival of police with barricades and an arsenal. This simply isn't borne out by the results of these raids, which often fail to turn up any weapons -- or at least none being wielded by the residents of the home. In some cases, there are also no drugs to be found, but this result rarely leads to the turfing of a CI or a less-violent entry when serving the next warrant.

The deaths and injuries caused by drug enforcement aren't in danger of approaching the death and injuries caused by the drug trade, but the former is more disturbing than the latter. While we might expect a certain amount of violence from purveyors of illicit substances, we don't really expect as much from law enforcement. And yet we're seeing it occur on a far too regular basis.

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Posted on Techdirt - 24 July 2015 @ 8:17am

Malibu Media Seeks Order Forbidding Defendants From Discussing 'Copyleft' Blog Content

from the cf.-circular-reasoning dept

Copyright troll Malibu Media would prefer the many courtrooms it uses as speculative invoicing middlemen to be free of disparaging statements. To that end, it has filed a motion that specifically asks that certain blogs not be brought up nor discussed nor quoted extensively from by the defendant or his counsel. (h/t to Raul)

The Court should preclude Defendant from referring to copyleft blogs for any purpose, including specifically references to and Plaintiff expects Defendant may attempt to reference these blogs at trial in an effort to introduce unsubstantiated allegations against Plaintiff. The blogs target Plaintiff and its counsel with vitriolic hate speech and contain comments that are biased, slanderous, and prejudicial, and should not be referred to at trial for any purpose. “Many internet blogs commenting on this and related cases ignore the rights of copyright owners to sue for infringement, and inappropriately belittle efforts of copyright owners to seek injunctions and damages.” Malibu Media, LLC v. John Does 1, 6, 13, 14, 950 F. Supp. 2d 779, 781 (E.D. Pa. 2013).
Yes, we can't have sites that expose the immoral and illegal activities of copyright trolls exposing the immoral and illegal activities of copyright trolls, can we? We'll just have to see what the judge has to say about this exclusionary motion. And in support of its allegations about the content of these blogs, Malibu Media cites a friendly footnote from one of its rare wins [p. 2] -- a derogatory phrase penned by Judge Michael Baylson and co-opted in its entirety by Dallas Buyers Club for use in its threatening letters to alleged infringers.

Rather hilariously, Malibu Media uses an infrequently-used term to describe these blogs, in an equally-sad attempt to appear evenhanded.
Plaintiff, Malibu Media, LLC (“Plaintiff”) by and through undersigned counsel, hereby moves for the entry of an order precluding Defendant Michael Harrison (“Defendant”) and his counsel from referring to copyleft blogs at trial for any purpose...
Sensing the court may not be familiar with the concept of "copyleft," it is more fully described in the attached footnote:
“Copyleft” is the polite way of describing an anti-copyright ideology. “Freetards” is the degrading equivalent of “copyright trolls” when used in association with copyright producers.
With this handy guide to the nuances of the copyright debate now on the record, the case can presumably proceed safely. According to Malibu, the blogs that have long tracked its legal efforts have "no probative value" and the mere mention of the forbidden sites may "provoke" jurors into browsing these blogs during their downtime... which obviously won't win Malibu any new fans favorable jurors.

All in all, it's pretty much a vindication of the efforts made by Fight Copyright Trolls and Die Troll Die. If these were nothing more than storehouses for hyperbolic statements and woodchipper discussions, it's highly unlikely Malibu would be attempting to preemptively banish them from court.

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Posted on Techdirt - 23 July 2015 @ 1:57pm

Frivolous Serial Pro Se Litigant Upset Journalists Portrayed Him As A Frivolous Serial Litigant

from the loaded-legal-filing-pressed-directly-to-his-own-temple... dept

It's extremely difficult to win a defamation suit when the allegedly defamatory statements are THINGS THAT ACTUALLY HAPPENED.

It was, on the surface, a bit ironic. A pro se plaintiff who was mentioned in an article about serial filers of lawsuits sued the article's authors and the newspaper that printed it.

But the New London Day newspaper, reporter Karen Florin, executive editor Timothy Dwyer and Wyatt Kopp, who was interviewed by the newspaper, prevailed when a judge ruled that no one was defamed in an article that focused on the costs incurred by the court system and defendants when low-income plaintiffs whose court fees are waived file dozens of dubious claims.

"After viewing all the revised complaints and evidence in this case, the court cannot identify any statement by Kopp that can be legally construed as defamatory," wrote New London Superior Court Judge Terence Zemetis, who added that "stating that a lawsuit is frivolous is an expression of opinion and is not defamatory."
The plaintiff was Sylvester Traylor, a frequent pro se filer whose legal battles (mostly losing) can be found here, as well as other places around the internet. The article at the nominal center of this lawsuit (which was also filed against numerous other parties covering the same proposed bill targeting the abuse of in forma pauperis [waived fees] filing) didn't make any defamatory statements.

Everything Traylor took offense to was the direct result of Traylor's own litigious activities. The article simply cites his multiple filings, as well as judges' reactions to his "protracted legal battles." It even directly quotes court orders and opinions -- which are far more damning than anything posted at the New London Day.
In July 2012, the Second Circuit Court of Appeals dismissed one of Traylor's filings and warned him that "the continued filing of duplicative, vexatious, or frivolous appeals, mandamus petitions or motions may result in sanctions, including a leave-to-file sanction requiring Traylor to obtain permission from this Court prior to filing further submissions in this Court."

In a November 2012 order dismissing a case Traylor brought against 12 state legislators, court officials and an insurance company, Hartford Superior Court Judge Carl J. Schumann wrote that Traylor's "litigious ferver is perhaps understandable, but it has clearly reached the point of becoming unnecessarily costly, wasteful and fruitless."
In true "vexatious litigant" style, Traylor accused the paper of making "selective and calculated statements to slant the characterization of the plaintiff's legal cases," claiming its failure to cite the three judgments in his favor was some sort of defamation-by-omission. Even more legally-unsound, Traylor argued that the paper said something it didn't actually say.
[T]hough the article did paint a picture that Traylor's lawsuits were "frivolous," it was clear that it was Kopp—not the newspaper—drawing that conclusion, the judge ruled.
Not that Traylor has anything to worry about. The article he sued over (along with journalists covering the same bill for local TV stations) discussed an attempt to curb serial litigants who "abused" in forma pauperis privileges granted to indigent filers. The first sought greater legal review prior to allowing cases to advance. The latter suggested litigants could work off their comped filing fees by performing community service. Neither bill went anywhere, so Traylor is free to continue filing "frivolous" lawsuits until informed otherwise by presiding judges.

He's also free to fight speech with speech, which the New London Day allowed him to do by printing his short editorial against proposed limitations to waived-fee filings. It also contacted him for the January article he sued over, posting his defense of his actions. And none of that was enough to prevent Traylor from filing another lawsuit.

The ultimate defense against defamation accusations is the truth. This will probably be lost on Traylor as it's been lost on far too many serial litigants. If a person wants to complain (via the courtroom) that they've been misrepresented by "slanted" statements, they should at least have the self-awareness to recognize it's their actions that are creating this negative perception.

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Posted on Techdirt - 23 July 2015 @ 12:48pm

Judge Says Government Can Continue To Refuse To Acknowledge Certain Drone Strike Documents

from the no-hard-truth-left-unhidden dept

Documents pertaining to the accidental killing of two men by US drone strikes in Yemen can continue to remain unacknowledged by the agencies guiding the strikes.

A federal judge has ruled the CIA and Defense Department (DOD) do not have to confirm or deny whether they have records on the “factual basis for the killing” of either Samir Khan or Abdulrahman al-Awlaki, who were killed in two separate drone strikes in September and October of 2011.
The heavily-redacted order does contain some good news, however. The presiding judge ordered the Dept. of Defense and the CIA to turn over FOIAed documents to the ACLU that contain "previously acknowledged facts," thus preventing the Dept. of Justice from turning real life into a bizarre fantasy world where previously disclosed information can be treated as though it was still locked up in the agency's "TOP SECRET" digital filing cabinet.

But the obvious downside is this: because the government has been given permission to avoid confirming or denying the existence of the documents the ACLU is seeking, the search for more information on accidental deaths and collateral damage will still consist of issuing speculative FOIA requests, which will then result in more lengthy, expensive litigation.

I'm pretty sure the involved agencies believe they can outlast FOIA requesters, especially if they continue to receive mostly-favorable decisions from judges who place more faith in the government and its assertions about national security than in those who view government secrecy with considerably more skepticism. The problem is that the government has the resources to fight long legal battles. Most FOIA requesters do not.

This decision also further insulates the government from the repercussions of its own actions. By allowing the agencies to neither confirm nor deny the existence of these documents, it gives the government permission to deflect further inquiries into the oversight governing drone strikes -- and what it does when it suspects a strike has killed the wrong people.
If one accepts the government’s claims that Khan and Abdulrahman’s deaths were “accidental,” one at least has to believe the government did some kind of review after the strikes once they recognized two US citizens had been killed. This is what the ACLU suspects.

The ACLU and Center for Constitutional Rights have pursued a lawsuit challenging the constitutionality of the strikes, which killed the three US citizens. And, in this lawsuit, the ACLU has challenged the right of the government to keep information related to their deaths secret.
This sort of information is definitely of the "public interest" variety and should be given more heft when weighed against national security concerns. The American public isn't necessarily supportive of this highly-secret program and considering its complete lack of say in the matter, the least it should be given is the opportunity to more closely examine the accountability process.

Instead, the opinion allows the government to redact much of what it can't Glomar into nonexistence with the most abused FOIA exemption: b(5). Nominally for "deliberative process" documents only, the exemption has expanded to cover almost anything the government doesn't want to (immediately) reveal. About the only way to remove a b(5) exemption is through the courts -- an expensive process with low odds of success.

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Posted on Techdirt - 23 July 2015 @ 10:43am

Your Tax Dollars At Work: 1,000-Page Funding Bill Dropped On Senate Floor One Hour Before Vote

from the instant-sausage dept

The legislative sausage-making process is apparently so streamlined that many sausage-makers are barely involved in the process. It's not that they don't want to be. It's that other sausage-makers want their product to be pushed out the door with a minimum of inspection.

Senator Mike Lee posted a video to his Facebook page that contained a rather graphic depiction of expeditious sausage-making. As his printer whirred away behind him, Lee noted that a $47-billion, 1,033-page transportation funding bill was up for a vote. In less than an hour.

If I don't have time to read legislation before voting on it, my default vote is no. We received the highway bill today at 3:06 p.m., and it is over 1,000 pages long. Our first vote on this legislation is scheduled for 4:00 p.m.
The bill -- which failed to obtain the number of votes needed to open debate -- was a bipartisan effort (led by Barbara Boxer [D] and Mitch McConnell [R]). That's probably the best thing that can be said about it and the legislators behind it. Rather than prove lawmakers can occasionally put aside their differences and actually move forward with the business of legislating, this bill simply signals that both sides of the aisle are willing to resort to bullshit tactics.

The bill arrived at the last minute because the effort itself was last minute. Federal highway aid to states is up against a July 31st expiration deadline. Despite its length, the bill is still far from finished. It takes money from a variety of unrelated programs to fund federal aid for the next three years. The problem is the bill authorizes spending for the next six years. That's the other reason the bill's champions were hoping to shove this through with a minimum of debate: the bill leaves it up to the next Senate class to figure out where it's going to get the other $45-60 billion it will need to keep the federal aid flowing.

Fortunately, most senators were angered by this last-minute page dump.
Sen. Charles Schumer of New York, the No. 3 Democratic leader, said, "I can't remember a time where I have been asked in all my years in the Congress to vote yes ahead of time on a bill we haven't seen, and there are no amendments" allowed.

Sen. Richard Blumenthal, D-Conn., called the bill "a black hole." He said Democrats have been told changes have been made to auto, trucking and rail safety provisions that were agreed to last week on a party-line vote by the Senate commerce committee, but no details were provided before the vote. Some Democrats have described the provisions as giveaways to industry that would undermine safety.
Schumer is certainly exaggerating. While the very specific facts of this legislative effort may indeed be unique, shoving under-scrutinized bills past legislators is something of a tradition in Washington. PATRIOT Act, anyone? It took until June of 2014 before many lawmakers realized the extent of what they had authorized in 2001. The recording industry pushed through a favorable law change at literally midnight back in 1999. PoliceStateUSA points out that John Boehner dropped a gun control law on the floor when only 10 legislators (out of 435) were on hand to vote. Just recently, the aforementioned Mitch McConnell put a "no questions asked" Section 215 reauthorization bill up for a vote, using his powers as a majority leader to bypass all the hoops the USA Freedom Act was made to jump through.

Anything that might be debated heatedly often arrives at a moment when debate is least likely to occur. Thursday afternoons as legislators are all packing up to return to their homes. Late nights when few lawmakers are left in the building. Or -- like this one -- hundreds of pages of legalese released to voting members shortly before a scheduled vote.

And, in this case, the bill arrives with a bit of extortion attached. Senators who refuse to vote for something they haven't read face the prospect of dealing with angry locals whose federal aid has just expired. Far too often, legislators allow everything to reach the brink of collapse before making a move. There's not a person out there who thinks the best laws are made at the last minute. No one wants poorly-written funding programs that hobble other sectors in a short-sighted attempt to balance the books for the very immediate future. Even if this manages to make it out alive, it still only "fixes" everything for half of the time period authorized by the bill. So, in three years, there will be another last-minute attempt to secure funding, and it will be any other funding legislators feel is at least temporarily expendable that will be forced to patch up funding holes left by the last Senate session.

Sometimes, the sausage doesn't even get made. Instead, a bunch of random ingredients are shoved into a casing and passed off as a finished product. And it's the public that's forced to "eat" this sausage -- both in terms of the asking price, as well as any nasty side effects consumption of the poorly-made sausage may cause.

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Posted on Techdirt - 23 July 2015 @ 8:28am

NJ Legislators Want To Ban Drone Photography Of 'Critical Infrastructure'

from the your-rights-end-where-our-freaking-out-begins dept

Government paranoia about "critical infrastructure" will now be extended to drone photography, if New Jersey's proposed legislation is any indication. While law enforcement agencies are still weighing the Fourth Amendment implications of surveillance drones, some local governments are moving ahead with plans to shortchange the First Amendment.

This new legislation makes it a criminal offense to use a drone to take a photograph of “critical infrastructure.” And what is “critical infrastructure”? Any “asset” whose incapacity—even partial incapacity—would have an impact on the physical or economic security, or public health or safety, of the state. This specifically includes highways, waste treatment facilities, bridges, tunnels, and more.
This proposal would codify something many public employees (especially those in law enforcement/security agencies) already mistakenly believe: that photography of public structures is illegal and probably has something to do with terrorism. Even if the structure is already completely viewable with the naked eye, can be viewed via satellite photography and has been the subject of multiple official photo releases, people with cameras around certain structures are considered inherently suspicious. Now, this misguided "security" concern is being extended to eyes in the sky, something the government seems to believe should be in the possession of government agencies only.

The proposed penalties for violations are fairly severe.
Specifically, this bill makes it a fourth degree crime for a person to use a civilian unmanned aerial vehicle, commonly referred to as a drone, to conduct surveillance of, gather evidence or collect information or data about, or photographically or electronically record any critical infrastructure without the prior written consent of the entity that owns or operates the critical infrastructure. A fourth degree crime is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.
On top of that, the legislation would help the state build a list of "usual suspects."
The bill also prohibits a person from operating a civilian drone unless it is registered with the Division of Aeronautics in the Department of Transportation. In addition, a person is prohibited from operating a civilian drone unless the person maintains liability insurance coverage to insure against loss resulting from liability for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation, or use of the drone. The required minimum coverage is to be in an amount determined by the Commissioner of Banking and Insurance in consultation with the Commissioner of Transportation.
A person who operates a civilian drone without the required registration or insurance is subject to a civil penalty of not less than $1,000 for a first offense and not less than $5,000 for a second or subsequent offense. In addition, for a second or subsequent offense, a person’s civilian drone registration is to be revoked for a period of two years.
So, while law enforcement agencies argue that aerial surveillance has minimal Fourth Amendment impact because public places have a lowered expectation of privacy, they're also supporting legislation that would grant public structures more protection than a member of the public's fenced-in backyard. Of course, the Fourth Amendment only deals with privacy. This legislative push concerns security -- something that tends to receive higher priority than Constitutional rights.

Then there's the inherent stupidity of carving out a drone-specific ban. People with regular cameras (or cell phones) will still be able to photograph these structures, as will aerial photographers in planes and helicopters. It's a very specific paranoia -- one limited solely to new tech that's currently subject to very little government control.

And that's really what this is all about. Lawmakers have (civilian) drone fever and the only cure is more cowbell legislation. Those pesky men (and women) and their flying machines are harming the nation's security somehow with their democratization of aerial photography. These legislators obviously feel the only entity that should have full access to the skies and everything below is the government. And if the First Amendment has to suffer some cutbacks, so be it.

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Posted on Techdirt - 22 July 2015 @ 3:19pm

Judge Orders CIA To Pay $400,000 In Legal Fees To FOIA Requester It Jerked Around For More Than A Decade

from the just-put-it-on-the-public's-tab dept

The CIA has been fighting to keep POW/MIA records out of Roger Hall's hands for over a decade. With that FOIA battle finally over, the CIA is now fighting to keep its money out of Roger Hall's hands. Judge Royce Lambert's order sounds a little exasperated with this vexatious defendant.

First, the CIA admits Hall (and Studies Solutions Results) have mostly won. But it then goes on to claim it shouldn't be required to follow this provision of the Freedom of Information Act -- that "substantially prevailing" plaintiffs are entitled to legal fees.

The CIA concedes that the plaintiffs have prevailed on several of their claims and that they are therefore eligible for fees. Opp'n 8. The CIA also "accepts some responsibility for the unnecessarily protracted nature of this litigation" and notes that there is "accordingly no need for the Court to consider whether the plaintiffs are entitled to an award." Furthermore, the CIA does not argue that interim fees are inappropriate or that fees should not be awarded until the conclusion of litigation.
So, what is the CIA's problem? It admits fault but only wants to pay a small fraction of what Hall is seeking. Hall claims a decade's-worth of the CIA's admittedly "unnecessarily protracted" litigation has cost him more than $400,000. The CIA thinks $75,000 is more than fair for screwing him around for 10+ years.

First, the CIA claims Hall's win isn't much of a win, and if he's racked up hundreds of thousands of dollars in legal fees, it's his own fault.
The CIA requests that the Court reduce the requested fees because plaintiffs have achieved only limited success, calling their victory "largely pyrrhic..." The CIA argues that because plaintiffs sought such "extraordinarily broad categories of records," "it was almost inevitable that litigation would ensue."
Judge Lambert points to the court record as being contradictory to the CIA's portrayal of the litigation.
This allegation is, to some extent, in tension with the statement that it "does not dispute that the plaintiffs have substantially prevailed on several of their claims." Indeed, the Court has repeatedly rejected the claim that the FOIA requests were overly broad and unduly burdensome, and now agrees that plaintiffs have achieved significantly more than a victory.
In fact, he points out it's the CIA that's been racking up loss after loss.
Overall, the Court finds that the plaintiffs in this case have been quite successful in achieving their objective: obtaining documents unlawfully withheld. When this lawsuit was filed, the CIA refused to release the requested records and failed to respond to plaintiffs' request for over a year. After many years of litigation, the CIA has released more than 4,000 documents, quite a substantial success. The Court finds that plaintiffs' actions in diligently pursuing their claims were reasonable -- even those that were ultimately unsuccessful -- and it will not use the benefit of hindsight to scrutinize every one of plaintiffs' actions.
And while the CIA attempted to use a little math to buttress its claims that Hall's litigation has been mostly unsuccessful ("CIA… specifically takes issue with a number of unsuccessful motions filed by the plaintiffs…"), it didn't bother to apply anything of the sort to its counteroffer on legal fees.
[T]he court finds it troubling that the CIA did not even attempt to analyze how many hours related to such motions, instead stating only that "a fee award up to $75,000 may be appropriate."
Which means the court now has to do the calculations the CIA couldn't be bothered to perform.
The CIA… [provided] no basis from which to determine how much of a reduction would be appropriate and [left] such calculations to the Court. This not only inconveniences the Court, but should the Court produce its own analysis for the first time in a written opinion, the plaintiffs would not have a chance to respond.
And it comes to much, much more than the CIA offered.
Applying the historic Laffey rates to Hall and SSR's total requested hours produces an award of $346,231 after billing 0.8 hours [yes, the CIA argued over 0.8 billable hours -- out of 1,008.7 total] to the clerical rate rather than the attorney rate. Their attorney, James Lesar, agreed that it is appropriate to deduct 15% of the time recorded as a matter of billing judgment, yielding an award of $294,296.40.
In addition to the $294,000, another $120,000 will be going to James Lesar himself, bringing the total award to $414,478.40.

After being presented with these results, the CIA argued that it was simply too much… by citing other cases with lower awards, no matter their relevance to the issue at hand.
The cases the CIA cites in an attempt to show that this award is out of sync with fees awarded in similar cases are not illustrative. Simply listing cases and fee awards is not helpful.
The CIA will now be lifting over $400,000 from taxpayers' wallets to pay for its combative, secretive behavior. Records pertaining to prisoners of war and missing in action soldiers are the very definition of "public interest" documents. Throughout the course of this case, the CIA repeatedly claimed otherwise, claiming that the documents might be of interest to surviving relatives/spouses only. The court disagrees.
Certainly information regarding missing following the Vietnam and Korean Wars is exactly the type of information that interests the public. Disclosure of this information has the potential to shed light on the extent, nature, intensity, and duration of the government's efforts to locate and show the degree to which the CIA has accurately informed the public about its search efforts and the information it possesses. [...] Information regarding POW/MIAs is not only of interest to the public, but hard to come by.
It's the public that's been forced to take part in a pyrrhic victory. More documents have been freed, but it took years of litigation. That bill will be footed by the same public the CIA denies has any interest in the documents. There's more information available now than there was 10 years ago, but every step of the way, the CIA used the public's money to fight against the public's interest. And now it needs another $400,000 from the public to pay back other members of the public.

The servicemen and women whose information the CIA fought to withheld would probably have reminded the public that "freedom isn't free." The payout resulting from this extensive legal fight turns those words into a ghastly parody.

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Posted on Techdirt - 21 July 2015 @ 9:29pm

Suspended Cop Sends Email To Department Thanking Them For The Paid Time Off

from the swiftly-voted-'Most-Punchable'-by-his-peers-and-non-peers dept

Police misconduct and abuse allegations are always greeted with defensive department statements about "thorough investigations" and "taking allegations seriously." And yet, when it's all said and done, very little has been done to prevent future abuse.

The most common outcome is a temporary reassignment. Sometimes there are suspensions, most of which are simply paid vacations. Even if a cop manages to get fired, his union will step up to try to get him his job back. In some cases, officers are allowed to resign rather than face firing -- a move that ensures vacation, sick time and pensions are paid out.

The public is supposed to take these various levels of wrist-slapping very seriously. And law enforcement officers and agencies are supposed to make sure this illusion of accountability isn't completely shattered. But one former officer of a Canadian police department has just stripped the veneer of respectability coating the law enforcement discipline process.

Back in 2011, Constable Craig Markham did all sorts of things a cop shouldn't do.

On September 28, 2011, the Appellant [Craig Markham] received a text on his personal cell phone from A.S. inquiring about her common law partner, N.C., who had just been arrested and was in police custody facing serious drug related charges. N.C. was an acquaintance of the Appellant.

The Appellant accessed the Service’s internal records system as well as CPIC and searched out information regarding N.C. He then proceeded to the cells where N.C. was being held and had a discussion with him. After leaving N.C., the Appellant phoned a mutual acquaintance of theirs, E.C., and advised him that N.C. had been arrested. The Appellant again accessed the Service’s internal records, copied the synopsis form and the occurrence report pertaining to N.C.’s arrest to his Service email account, and emailed it to his personal email account. The next day the Appellant again accessed the Service’s system to inquire about E.C. and A.S
Markham was fired for passing confidential information to a member of the public. Or, rather, the Waterloo Police Service attempted to fire him. He appealed the decision, which resulted in three years of paid suspension while he waited for his case to be heard.

Markham was finally, officially fired for these violations early last year after his case was heard. No. Wait. He resigned because the Waterloo Police Service Board gave him this option.
The Hearing Officer gave the Appellant seven days to resign or he was to be terminated from all employment with the Service. The Appellant sought a lesser penalty.
You would think that being allowed a graceful exit and three years of fully-funded free time would be payment enough. But no, Markham had to rub it in. In what has to be one of the stupidest moves ever performed by a disgraced public servant, Markham sent an email to the department's legal rep gloating about his paid time off. (via Information Liberation)
A former Waterloo Regional Police officer who was suspended with pay for three years sent an email to police thanking them for his continued salary while he sat at home, played golf, travelled and took a course to become a firefighter.

“I am very thankful and fortunate to have received such a nice gift from WRPS over the last three years. You have opened up other doors for me and have paid me to sit back and watch. What a dream come true,” Craig Markham wrote in an email on March 27 addressed to the police service’s solicitor.
Markham made over $90,000 a year pursuing his hobbies while his case was being appealed. He might have gotten away with it if he hadn't felt compelled to apprise his former department of the details of his extended vacation. Unfortunately for him, his audaciously moronic move pissed off his former boss.
Police Chief Bryan Larkin presented the letter to members of the Region of Waterloo Police Services Board at a meeting last week.

“He (Markham) mocks what is supposed to be a fair and judicial system,” Larkin said in an interview.

“It sends a bad message to the community,” Larkin said.

“More importantly, it harms and takes away from the incredible work of the 760 officers who are out there everyday putting their lives at risk.”
Larkin is completely right. And every police department that allows (or is forced to by union contracts) its misbehaving officers to take paid vacations as "punishment" for wrongdoing is making the situation worse. Markham just exposed the system for what it really is: a great way to abuse the public's trust and get paid for doing nothing.

Unbelievably, Markham is now trying to play the victim.
“I think it’s disgusting that Bryan Larkin released my email,” Markham told the meeting. “He is using me as a scapegoat.”
Whatever Larkin is using Markham for, it's the first thing he's earned in over three years. Markham claims the email was sent in a "moment of frustration," but it's rather difficult to square that with his boasts about using unearned paychecks to travel and play golf -- the total of which approaches $350,000.

But despite his email's jocular recounting of hobbies pursued and unearned money spent, Markham still maintains he's still an upstanding dude.
“I’m not the taxpayer bandit,” Markham said. “It’s not like I came in during the middle of the night with a mask on and robbed the taxpayer.”

“It just sounds like I laid on the beach and drank pina coladas for three years.”
As for the first part? No, it's actually worse. Markham robbed taxpayers behind their backs, collecting paychecks he hadn't earned while fighting to reclaim a position he didn't deserve. He abused the public's trust and spent more than three years taking their money in exchange for nothing at all.

As for the last?

I can't think of anyone else to blame for what this "sounds like." If Markham doesn't like being misrepresented by his own words, maybe he should have chosen them more carefully.

The only silver lining (beyond a possible overhaul of disciplinary policies in Waterloo) is the fact that only the province of Ontario allows its law enforcement officers to collect paychecks while suspended. If Markham had done the same thing anywhere else, he might have actually felt the sting of accountability. But he did it in Waterloo and managed to continue abusing the public's trust even after exiting the field of public service.

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Posted on Techdirt - 21 July 2015 @ 3:14pm

NYPD Officials Apparently Deleting Incriminating Communications Related To Alleged Illegal Summons Quotas

from the cross-cut-filing-system dept

The NYPD doesn't care for transparency. Its relationship with open records requesters ranges from "frosty" to "antagonistic." It even employs its own in-house, completely arbitrary classification system in order to prevent even more of its documents from making their way into the hands of the public.

And, despite policies specifically mandating the preservation of records, NYPD officials are apparently preemptively deleting certain communications to ensure they'll never be made public.

Attorneys for the city have failed to turn over even one email from the files of former Police Commissioner Raymond Kelly or former Chief of Department Joseph Esposito regarding summons activity over the last eight years, attorney Elinor Sutton writes in new filings in Manhattan Federal Court seeking sanctions against the city.

“It is simply not tenable that Commissioner Kelly and Chief Esposito did not — in the entire period of 2007 through the present — write or receive emails using terms” related to the word “summons,” Sutton writes.
Seven years of discussing police business and not once did Kelly or Esposito use the word "summons," one of the most common terms used when discussing police business. How can this possibly be? Well, when you're looking for evidence that NYPD bosses and supervisors instituted illegal quotas, the word "summons" would figure prominently in responsive documents... if said documents hadn't been memory-holed for the preservation of the greater good their positions.

And it's not just the top two men in the NYPD that have a "summons" hole in their communications. Searches for responsive emails/texts from three other high-ranking NYPD officials came up empty as well.

What Sutton has obtained that points to an unofficial quota system has come from whistleblowers and "other means." Sutton has copies of emails and texts -- sent using NYPD phones/email accounts -- that discuss quota-like "expectations" for officers and reprisals for failing to hit these numbers. But the NYPD's own search for these same documents has found nothing. This either means the NYPD isn't performing thorough searches or it has been destroying incriminating documents. Either way, the NYPD's lack of responsive documents looks very suspicious.

And the city itself is complicit in the "vanishing" of possibly culpatory evidence.
[C]ity lawyers didn’t advise the NYPD to preserve communications related to summonses until 2013 — three years after the suit was filed, Sutton says.
The city won't say much about the lawsuit or its police department's actions, but this contradictory set of sentences says a lot more than the city rep probably intended it to.
In a response filed last week, city attorney Qiana Smith-Williams said the alleged evidence destruction was “short on meritorious claims” and that the sides had not yet “exhausted the possibility of a settlement.”
If you believe the opposition's case is lacking in merit -- and you have an inexhaustible amount of (public) funds to fight it -- why would you be entertaining a settlement? The obvious answer is this: a settlement would allow the city to end the discovery process, maintain its secrecy, allow those involved in the quota scheme to avoid further examination/punishment. Handing out (public) money to the plaintiffs in settlement form also allows the city/NYPD to move on without having to admit wrongdoing. A payout means nothing changes. Quotas will still remain, but steps will be taken to ensure it's better hidden.

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Posted on Techdirt - 21 July 2015 @ 11:39am

German Film Distributor Issues Takedown Request Falsely Targeting IMDb, Reddit And Techdirt

from the HOW-DO-I-ANTIPIRACY dept

You'd think it wouldn't be too hard to vet a DMCA takedown request for false positives, especially when the request only includes 28 URLs. You'd be wrong.

TMG (Germany's Tele Munchen Group, which acts as a European distributor for several motion picture studios) issued a takedown request on behalf of Universal Pictures France, hoping to delist links to a few movies. But its algorithm is obviously flawed.

To start with, it listed our article on the Hacking Team hack under its list of supposedly infringing URLs for the movie "Hacker."

Now, Hacking Team itself announced shortly after the data dump that "law enforcement was involved" and that orders were being sent out to have their leaked documents and emails removed from the web. Without a doubt, Hacking Team does have law enforcement involved somewhere, but takedown notices from the company itself have yet to arrive. (Third parties seem to be a bit more active on that front.) And with the documents stashed multiple places around the web, any takedown requests will be little more than symbolic.

I doubt it's using distant third parties to achieve its takedown goals, but clumsy, automated, Googling, "content protection" companies and rights holders are perfectly capable of inadvertently achieving the same aim.

It appears TMG's search for infringing URLs includes little more than the title, as this same request also targets a Reddit post that has nothing to do with its "Hacker" movie.

Instead, this links to a account of a gamer allegedly using hacks to get an edge in DotA 2 (Defense of the Ancients 2). Obviously, this has nothing to do with copyright infringement.

And, for good measure, TMG's efforts on behalf of Furious 7 in the same takedown request targets the movie's IMDb page. Because why not take down a wholly legitimate page on a wholly legitimate site that not only offers a wealth of information on the movie itself, but also acts as an unpaid promotional platform, what with its ample supply of trailers and links to retailers.

And, yes, some people will point out that most of what is targeted appears to be infringing content (or links to it). But here's the thing. It doesn't take long to vet small requests like these for false positives. At the very least, TMG owes it to the rights holders that pay for these services to issue legitimate takedown requests. Something like this making its way to Google makes TMG look, at best, clumsy, and at worst, incompetent and censorious. And while it's rarely a concern for rights holders and content protection companies, they also owe it to the rest of the internet to do their best to avoid targeting legitimate URLs -- especially those that have absolutely nothing to do with the content being "protected" and are, as in the case of IMDb, sites that can actually increase sales.

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Posted on Techdirt - 21 July 2015 @ 8:12am

Driverless Cars: Disrupting Government Reliance On Petty Traffic Enforcement

from the uber-but-for-killing-your-small-town-speed-trap dept

Self-driving cars are on the way, and in their wake, they'll leave a variety of entities slightly less better off. Insurance companies may be the first to feel the pinch, as less-than-risk-averse drivers are replaced with Electric Grandmothers more than willing to maintain safe speed limits and the proper distance between vehicles. And as goes the car accident, so go other areas of the private sector: personal injury/DUI lawyers, hospitals, body shops, red light camera manufacturers, towing companies, etc.

But the public sector will take the hit as well. "Flow my tears," said the policeman.

Consider the following. This past year, the City of Los Angeles generated $161 million from parking violations. Red light violations have a fee of $490. Californians caught driving under the influence are fined up to $15,649 for a first-offense misdemeanor DUI conviction and up to $22,492 for an under-21 equivalent. Cities in California collect, on average, $40 million annually in towing fees that they divide with towing firms. Simply put, the hundreds of millions of dollars generated from poor driving-related behaviors provide significant funding for transportation infrastructure and maintenance, public schools, judicial salaries, domestic violence advocacy, conservation, and many other public services.

Since California legalized driverless vehicles, Google has logged more than 1.7 million miles during the testing phase and been involved in 11 accidents, none of which were the fault of the driverless vehicle. Tesla, Mercedes, and others are not far behind. It turns out that automated vehicle technology—unlike humans—abides by the law. And that’s bad news for local government revenues. In other words, once driverless cars become mainstream, deep revenue sources acquired from driving-related violations such as speeding tickets and DUIs will decrease greatly.
Someone has to pay for the roads and other government activities, but it won't be drivers. So, as the Brookings Institution report points out, new revenue streams will have to be sought. The obvious suggestion is tax-per-mile billing, but that puts the government right in your vehicle -- an idea that's not going to gain in popularity any time soon.

While the loss of revenue will have an impact, the picture painted here is skewed. For many years, communities have treated police departments as revenue generators, rather than crime fighters. This has skewed incentives so badly that some small towns have become nothing more than profitable speed traps. That's one end of the issue: the pressure (or the willingness) to overpolice minor traffic violations to keep city governments (and the police departments themselves) funded.

But that's only part of it. The situation looks rather dire, especially if one doesn't examine what's not being said in these paragraphs. As Scott Shackford at Reason points out, the Brookings Institution report does some mighty fine cherry-picking for its list of potentially-affected government services. Without a doubt, a downturn in revenue will affect good government programs like public schools and domestic violence programs. But it will also cut back funding for far more dubious government spending.
What an interesting list of government-financed uses they've chosen. Notice they left off "Poorly made third-party database software that will stop working properly in less than three years and that was purchased from somebody belonging to the same frat as the assistant city manager," "police abuse settlements," and "blatant pension spiking."
These "losses" will also be somewhat offset by less tax revenue being spent on traffic enforcement, accident response units and other related law enforcement activities. This will also mean fewer law enforcement officers will need to be employed, which should further reduce government expeditures.

The problem is that most governments aren't capable of heading off this sort of "threat" to their livelihoods, even with years of advance notice. Trimming back unneeded public sector employees won't happen until years after it's obvious they're no longer needed and will often come accompanied with expensive severance packages. New tax revenue streams won't be explored until they can be put off no longer, and often will just be added on top of existing taxes, rather than replacing those that have slowed to a trickle.

Worse, those most affected by this sort of shift will be the same people most affected by most government tax increases: the poor. The lowest income brackets will be the last to adopt driverless vehicles, leaving them the most exposed to fines for traffic violations (fines that will likely increase as revenue dwindles), as well as new costs like per-mile taxation. They're also most likely to see support programs they rely on suffer cuts as traffic enforcement money dries up.

The report somewhat addresses this outcome with a discussion of income inequality and the "disappearance of the middle class." While some of it is accurate and some of it is mostly buzzwords in search of a point, there's no doubt that traffic enforcement revenue will mostly be collected from those who can least afford it. After all, governments have done this for years -- something that helped fuel the outrage and backlash in Ferguson after the shooting of Michael Brown.
Is Brookings actually trying to blame the gap between billionaires and the poor for the racial tension in Ferguson? Which venture capitalist was it who told the Ferguson police to step up fine collection to rake in more money for the city's coffers? Which hedge fund manager invented the bureaucratic court system in Ferguson and other St. Louis County cities designed to wring every last cent from any indigent minority who couldn't afford an attorney? Which Wall Street "fat cat" is adding additional fees to every little fine so that getting pulled over for something as simple as not signaling a turn could end up costing hundreds of dollars for somebody who could end up losing his license and his ability to even work?
While driverless cars hold a great deal of disruption potential, when it's all said and done, governments will remain largely undisrupted. Whatever changes are made in response will arrive well after they're needed and be badly implemented. The same people who suffered in the previous system will find no improvement in the next one. While one would hope the drastic reduction in traffic enforcement would result in better, smarter policing more focused on serious criminal activity, old habits die hard. Cops will just go where the driverless car ain't, rather than trim that area of law enforcement to the minimum required. And cities will cut programs deemed expendable, rather than subject their own spending habits to greater scrutiny.

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Posted on Techdirt - 20 July 2015 @ 9:08pm

State Court: Nothing 'Stale' About Evidence Nearly A Quarter-Century Old

from the kind-of-puts-a-new-wrinkle-in-'evidence-preservation'-obligations dept

The digital era has redefined evidence "staleness." The evidence that law enforcement often claims needs to be grabbed quickly (and, often, violently) to save it from destruction is the same evidence that could conceivably live on forever if never subjected to a concerted destruction effort.

Back in 2012, Judge Posner detailed this shift in inadvertent evidence preservation in the US v. Sevier decision:

“Staleness” is highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but rarely relevant when it is a computer file. Computers and computer equipment are “not the type of evidence that rapidly dissipates or degrades.” United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010). Because of overwriting, it is possible that the deleted file will no longer be recoverable from the computer’s hard drive. And it is also possible that the computer will have been sold or physically destroyed. And the longer the interval between the uploading of the material sought as evidence and the search of the computer, the greater these possibilities. But rarely will they be so probable as to destroy probable cause to believe that a search of the computer will turn up the evidence sought[.]
How long is too long? The answer is entirely open-ended. A recent decision from a California appeals court says a 23-year gap between the crime and the search warrant doesn't render the evidence "stale." A reopened "cold case" investigation into the apparent murder of a Los Angeles police officer resulted in the issuance of warrant in 2009 to search the defendant's current possessions, including the computer she didn't own (if she even had one) back in 1986.

The defendant moved to suppress the evidence, but the court said her "staleness" argument didn't apply. (But the "good faith exception" did... [It almost always does.]) Both warrants were extremely broad.
The first permitted authorities to search appellant’s residence and several vehicles registered to her. It sought electronically and digitally stored material, documents, and records related to the homicide, Rasmussen or Ruetten, including “letters, diaries, journals, writings, newspaper articles, books, correspondence, [or] greeting cards”; photographs of Ruetten and Rasmussen; items that may have belonged to Ruetten or Rasmussen; information identifying persons “who may have associated with or [may] have known” Ruetten, Rasmussen or appellant; medical or dental records tending to establish whether appellant received treatment for injuries after February 24, 1986; “bills, receipts, papers, reports or forms” from 1986 generally; and all .38/.357 caliber firearms in appellant’s possession.

The second warrant, issued by a different magistrate, gave permission to search the “computers, storage media, computer hardware and digital evidence” seized pursuant to the first warrant, including “[email], internet browsing histories, cached information, partially deleted files, records, receipts, screen captures, photographs, logs, [and] printouts.
The lower court had some issues with the breadth of the warrants, but managed to talk itself out of its queasier feelings.
The court agreed there was a plausible argument for overbreadth in the requests to search for “bills, receipts, paper or reports or forms from 1986” and for the names of all “people who may have associated with” Rasmussen, Ruetten or appellant. The court was “uncomfortable” with the request to search appellant’s computers because they were unlikely to have been in existence at the time of the crime.
It also suggested it had no business telling magistrate judges how to do their jobs.
However, the court concluded that warrants should not be read in a hypertechnical way and that it was up to the issuing magistrates to tell the detective to “‘tighten [the] language’” or “beef it up.”
The defendant argued that there was no "nexus" between the original crime and her current residence, not to mention the fact she had no computer back in 1986, so any search of her current computers was predicated on an unsupported assumption that these would contain evidence related to the 1986 murder.

The appeals court didn't find either argument persuasive. It pointed out that, while both warrants were broad, they were supported by probable cause. And, more importantly, the lack of a "bright line" measurement for "staleness" -- along with the common use of computers as "permanent" storage of copies of physical items -- allowed for this sort of search, despite the length of time elapsed since the initial investigation.
With respect to her contention that her move from one residence to another precluded a finding of a nexus between her current home and the evidence sought, the warrants specifically sought photographs, journals and diaries. A person does not normally discard such items, even after several moves.
That handles the physical "nexus" argument. Here's the court on the digital end of it:
Appellant claims that the warrant was overbroad in granting permission to search her computers, as there was no evidence she owned any of them at the time of the homicide. The fact that she may not have owned those computers at the time of the crime did not preclude the possibility that she had transferred information or records -- particularly photographs -- to computers owned at the time of the search. (Cf. Arkansas Chronicle v. Easley (E.D. Va. 2004) 321 F.Supp.2d 776, 795 [recognizing that photographs and video preserved in computer format are “easily transferrable”]; U.S. v. Christie (10th Cir. 2013) 717 F.3d 1156, 1164 [observing that personal computers often hold “diaries, calendars, files, and correspondence”].)
Now that the near-permanence of digital evidence is ensured by long-lasting storage and even longer-lasting cloud service backups, "staleness" is no longer an issue. But while that may give law enforcement a pass of serve search warrants years after alleged criminal activity occurred, it should also factor into discussions about warrantless searches based on exigent circumstances.

The government argued in the Riley case that the omnipresent "threat" of evidence destruction necessitated instant, warrantless access to arrested suspects' cellphones. (This was presented to the court without any supporting evidence that automated wiping or other uncontrollable evidence destruction had occurred with any frequency). But the opposite actually seems closer to reality: whatever is on a cellphone (or someone's computer) will last almost indefinitely unless a person makes active, time-consuming efforts to thwart evidence recovery.

From Posner's 2012 opinion:
When you delete a file, it goes into a “trash” folder, and when you direct the computer to “empty” the trash folder the contents of the folder, including the deleted file, disappear. But the file hasn’t left the computer. The trash folder is a waste paper basket; it has no drainage pipe to the outside. The file seems to have vanished only because the computer has removed it from the user interface and so the user can’t “see” it any more.
Most people never make it past "Empty Recycling." Even though plenty of options exist for common users to ensure deleted files are actually deleted (read: overwritten), Posner points out that "use of such software is surprisingly rare." This coincides with the very low number of incidents where law enforcement has run into the use of automated tools to destroy digital evidence. And yet, the government insisted the possibility of evidence destruction should allow it to warrantlessly search cellphones and other devices at the time of arrest.

But it really shouldn't get to have it both ways. Either there's a good chance the evidence sought is intact -- and will be for possibly decades to come -- or it's all vanishing before it can get its hands on it, in which case the argument for "staleness" must be addressed in more detail.

Fortunately, the Supreme Court has put an end to law enforcement's insistence it must have access right now. That's good news, especially when combined with the unavoidable conclusions courts will reach when dealing with storage options that preserve evidence for years. The government can't be allowed to claim there's no time to get a warrant when it's readily apparent they have all the time in the world.

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Posted on Techdirt - 20 July 2015 @ 3:56pm

Charlie Hebdo Bows To Assassins' Veto, Hecklers' Veto; Will No Longer Mock Mohammed

from the everyone-else-loses dept

For years, Charlie Hebdo waged a brutal, often ugly war on good taste, restraint and self-righteousness. The satirical magazine took on every major religion, along with anything else it could satirize. It only had problems with one particular target: Islam. Rather, it only had problems with followers of Islam who believed brutal acts of violence were a perfectly acceptable way of resolving religious differences.

After years of publication that were marked with multiple attacks (some political, some physical), the worst case scenario finally happened. Two Islamist gunmen entered Charlie Hebdo's offices and killed twelve employees.

This was met with outrage by journalists, satirists and cartoonists around the world. For weeks, people who felt free speech -- no matter how offensive -- should never be punishable by death, expressed their solidarity using the phrase "Je Suis Charlie."

This attack was also met with outrage by government officials, who expressed their concern in the usual way: by calling for more surveillance and restrictive laws. To these figures, the attack had very little to do with free speech and everything to do with terrorism. It was just another nail and governments had plenty of unused legislative hammers just dying to be deployed. That their proposals were the antithesis of free and open societies -- the sort of thing espoused indirectly by Charlie Hebdo's satirical War on Everybody -- was completely lost on them. It was an opportunity to seize more control, provided by some very helpful terrorists.

The solidarity expressed in the immediate aftermath of the attacks soon fell apart, however. Charlie Hebdo, still mourning its dead, was attacked by its own colleagues -- journalists and artists from around the world. The PEN American Center chose to bestow its annual "Freedom of Expression Courage" award on Charlie Hebdo, a move that was met with protests from other PEN members including Teju Cole, Joyce Carol Oates and Eric Bogosian. To them, the award did nothing more than award "racists" for "punching down" and adding to anti-Islamic sentiment.

Not only was the protest completely tone-deaf in the wake of the massacre, it was a willful and very selective misreading of Charlie Hebdo's body of work. While Charlie Hebdo was famous for its caricatures of Muhammad, it also attacked other major religions. The only difference was that no other religion's acolytes did anything more than fire off angry letters. That these writers and artists would basically side with those who killed Charlie Hebdo's staffers -- even inadvertently -- is sickening.

Even if these artists felt Charlie Hebdo's work was reprehensible, there were -- and continue to be -- much greater issues at stake. Hundreds of journalists, satirists and artists around the world have been imprisoned by governments in order to silence them. By siding against Charlie Hebdo, these artists sided with not only extremists who feel killing is an appropriate reaction to being mocked indirectly, but these governments who feel creative efforts targeting certain individuals or ideas should be punishable by imprisonment or death. What happened to Charlie Hebdo could happen to anyone. All it takes is angering the wrong people. But the 145 artists and writers who signed the protest letter felt this abandonment of their colleagues was the high moral ground.

Fortunately, PEN didn't see it this way. It offered a succinctly brilliant response to the misguided protest:

PEN, in a statement posted on its website earlier this week, reiterated its position that the intent of Charlie Hebdo’s cartoons “was not to ostracize or insult Muslims but rather to reject forcefully the efforts of a small minority of radical extremists to place broad categories of speech off limits.”
But now, a few months later, the terrorists have won. And they had help.
Last week, in an interview with German newsweekly Stern, Charlie Hebdo editor-in-chief Laurent “Riss” Sourisseau waved a white flag, stained with the blood of 12 murdered colleagues and comrades, when announcing that he would no longer draw cartoons of the Muslim prophet Muhammad. It was clear that Charlie Hebdo — of which Riss owns 40 percent — was also done with Muhammad mockery. This comes just a few months after cartoonist Renald “Luz” Luzier said that drawing Muhammad “no longer interested” him. He quit Charlie Hebdo not long after. The editor of Danish newspaper Jyllands-Posten was more forthcoming about why he too was done with the prophet. As the newspaper that kicked off the “Muhammad cartoon crisis” in 2005, Jyllands-Posten would not be republishing anything from Charlie Hebdo, he stated bluntly, because the staff feared a repeat of the the massacre in Paris.
This is why terrorists do what they do. These are the results they want. And as much as it is disheartening to see this decision being made, it's also a completely understandable reaction. Dying for your art may be a romantic ideal, but it's hardly the sort of thing any person should honestly expect themselves or others to do. We may be disappointed that Charlie Hebdo no longer has the strength of its convictions that saw it weather previous attacks, but when 12 people are gunned down for making fun of one religious figure, those who wish to avoid the same fate know exactly what to remove from the equation.

But it's not just the threat of attacks. The lack of support from its peers and their accusations of racism have also contributed to this decision. Not only is it literally dangerous to "attack" one particular religious figure, it's also unpopular.
The relentless campaign against Charlie Hebdo by those accusing it of “racism” or “punching down” has had an effect. Because once deployed, as the surviving staff of Charlie Hebdo discovered, the racism charge sticks to the accused’s skin like napalm. And no one is immune — even murdered cartoonists — because there are no penalties for filing a false report. So if they expected unmitigated solidarité after their staff was machine gunned (while planning their participation, it should be noted, in an anti-racism event), they were surely disappointed when non-Francophone writers who hadn’t previously heard of Charlie exploded with denunciations of its racist intent.
It's one thing to work while keeping an eye out for gunmen in the hall. It's even harder to do when other beneficiaries of free speech protections decide your speech isn't worthy of similar respect. Charlie Hebdo didn't lose its courage. It lost its comrades.
So one can't begrudge Riss and Luz and all the other survivors at Charlie Hebdo the decision to go soft on those who most demand mockery and derision. But we should begrudge those in media who shrugged at the assassin’s veto, claiming they couldn’t publish satirical cartoons out of respect for religion, for whom Je Suis Charlie was merely social media signaling.
Those who went soft were those whose convictions couldn't even hold up to an attack that happened to someone else. Then there were plenty who never held these convictions at all, but Je Suis Charlie'd right up to the PEN Award nominations before deciding the few people shouting "racist!" were the voice of reason. And they sold out Charlie Hebdo -- along with every persecuted artist and journalist in the world -- by decrying its offerings as being unworthy of their consideration, respect and support.

I'm sure the terrorists feel they have won. We should ask Teju Cole, Joyce Carol Oates and the other 200+ signers of the anti-Charlie Hebdo petition if they feel they've achieved a victory as well.

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Posted on Techdirt - 20 July 2015 @ 10:12am

General Wesley Clark: Some WWII-Style Internment Camps Are Just The Thing We Need To Fight Domestic Radicalization

from the perhaps-separate-restrooms-for-'radicals'-might-curb-their-enthusiasm dept

So, we're engaged in a war of sorts. Against capital-T "Terror." It's a very ambiguous war that couples troop deployments with a dense mesh of surveillance programs. As is the case with all wars, there are those "up top" who see the only way to fight back -- or just "secure" the nation -- is to expand the government's powers.

Many horrible decisions have been made during times of war. In the past, some of these moves may have seemed more justifiable. The enemies were more tangible. They moved above ground, using vehicles and infantry. The stakes were higher, with countries being invaded and their citizens forced to live in uninterrupted terror. The United States government did some very regrettable things -- most notably, the forced incarceration of US citizens of Japanese descent in internment camps.

Most people look back at this with disgust -- an example of what not to do during times of war. But a lot of that hindsight vanished along with the World Trade Center on September 11, 2001. The government took control of the situation in the immediate aftermath, with an emphasis on "control." Spying powers and military authorities were vastly expanded. An entirely new agency -- the Department of Homeland Security -- came into being and swiftly became the Border Patrol-on-steroids, expanding "papers, please" harassment across, and into, the country. The TSA set up shop in every airport and swiftly proved more capable of abusing power than securing air travel.

Fourteen years on and very few lessons have been learned. Many government officials seem to still be under the impression that every day is another September 11th. Or would be, if not for these expanded powers. There but for Executive Order 12333 go we as a nation. Security has a cost, but the estimate keeps changing.

Officials keep hoping we can head off another attack by catching "radicals" and "extremists" before they can do any damage. The FBI has set up an entire cottage industry based on little more than entrapment. Maybe these people being "radicalized" are just too hard to find. Maybe that's why the FBI has to do 90% of the "radicalization" on its own before swooping in to save the nation from daydreamers and shit-talkers who have the misfortune of being "befriended" by its undercover agents.

General Wesley Clark has a solution. In an interview with Thomas Roberts on MSNBC, General Clark (who was last seen at Techdirt telling Congress that P2P software was a threat to national security) suggests a return to the WWII good old days might be the only way to stamp out the threat of self-radicalizing "lone wolves." (via Crooks and Liars)

We have got to identify the people who are most likely to be radicalized. We've got to cut this off at the beginning. There are always a certain number of young people who are alienated. They don't get a job, they lost a girlfriend, their family doesn't feel happy here and we can watch the signs of that. And there are members of the community who can reach out to those people and bring them back in and encourage them to look at their blessings here.
So, the nation's intelligence agencies need to be looking for underemployed weirdos who can't maintain a relationship or exude positivity about their current situation. Then they need to do something about these potential "lone wolves." Like, put them all in one place where we can keep an eye on them.
But I do think on a national policy level we need to look at what self-radicalization means because we are at war with this group of terrorists. They do have an ideology. In World War II if someone supported Nazi Germany at the expense of the United States, we didn't say that was freedom of speech, we put him in a camp, they were prisoners of war.
Free speech for some, indefinite detainment for others! USA! USA! USA!
So, if these people are radicalized and they don't support the United States and they are disloyal to the United States, as a matter of principle fine. It's their right and it's our right and obligation to segregate them from the normal community for the duration of the conflict. And I think we're going to have to increasingly get tough on this, not only in the United States but our allied nations like Britain, Germany and France are going to have to look at their domestic law procedures.
Nothing says "you're never getting out of here" like "for the duration of the conflict." Does anyone foresee an end to the War on Terror in their lifetime? (You youngsters milling around towards the back waiting for your Ubers and Amazon drone deliveries are encouraged to speak up.) How about in their kids' lifetimes? There is no endgame. There is only constant wariness and the endless grasping for more control and power.

This is a war we can't end. We can't even bow out and awkwardly "agree to disagree" like we did in Vietnam and Korea. It is the true "forever war." Even if ISIS becomes just another Al-Qaeda and fades from prominence, something else will take its place. There will always be those who feel violence is the only way to get results. But General Clark wants certain kinds of speech to be punished with neverending imprisonment. He wants a return to one of the most morally-dark moments in American history. For national security.

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Posted on Techdirt - 20 July 2015 @ 9:09am

Canadian Court Says Google Isn't A 'Publisher,' Not Responsible For Defamatory Content Returned In Search Results

from the because-duh dept

Slightly over a month ago, a Canadian court (British Columbia) issued a ruling that basically stated it could order Google to block websites globally. This nonsensical, overreaching order was issued on behalf of plaintiff Equustek Solutions, Inc., which hadn't even originally named Google as a defendant. It wasn't until Google appealed the decision that it was actually roped into the lawsuit. The court defended all of its stupidity by pointing out the real problem here was Google's global reach, not the impossibilities and idiocy of its own decision.

For what it's worth, another Canadian court has come down on the side of Google, choosing not to hold it responsible for returning search results plaintiffs don't like.

Last month, Justice Lauri Ann Fenlon refused to force Google to block defamatory comments about a Vancouver lawyer, Glenn Niemela, from its global search results.
The British Columbia Supreme Court finds Google's position as a search engine to be wholly unlike that of a "publisher." This would be the sane view -- the one not espoused by the Equustek decision.

The plaintiff has been fighting to remove allegedly defamatory content from the internet. Google, for its part, had voluntarily delisted several URLs from being accessed at (but not elsewhere at other domains). That wasn't good enough for Niemela, who wanted Google to remove them worldwide. This was despite the fact that Google wasn't under any legal obligation to delist anything and despite the fact that Niemela had to perform a bit of search engine wrangling to even get the offending URLs to show up.
In the present case, Mr. Niemela has identified additional URLs but they appear to be pre-existing links buried deep in search results. For example, in his tenth affidavit sworn January 20, 2015, Mr. Niemela states:

2. On January 6, 2015 I did a Google search of “Glenn Niemela”.
3. I searched to the last page displayed on the search results. The last page was page 38. Page 38 has the following notation:

In order to show you the most relevant results, we have omitted some entries very similar to the 380 already displayed.
If you like, you can repeat the search with the omitted results included.

Attached hereto as Exhibit “A” to this my affidavit (pages 3 and 4 of this affidavit) is a copy of page 38.

4. When I clicked on the above notation on January 6, 2015 the search on “Glenn Niemela” expanded to 69 pages.
5. On January 14, 2015 twenty-two (22) defamatory snippets and an associated twenty-one (21) URLs are released on this second layer of Google searches.

Each page on Google’s search results contains 10 URLs, with the most relevant and useful at the top of the list. I take judicial notice of the fact that few searchers will be motivated to move through 380 search results on 38 pages to reach what Mr. Niemela describes as “the second layer”. In any event, Google has agreed to block those URLs as well, voluntarily removing them from
But Niemela still wanted an injunction because he was convinced these buried URLs were still harming his legal practice. The court notes that 90% of the searches for his name originated in Canada, where all the "harmful" URLs are currently being blocked. It also notes that Niemela performs 100% of his legal work in Canada, which would make him particularly well-insulated against the contents of these posts.

Furthermore, it points out that there are limits to what the court can actually order a site to do in other countries. Niemela has issues with US search results, but the Supreme Court correctly notes (unlike the other BC court) that it can't actually make Google do anything in the US.
Finally, the Court is reluctant to make an order that cannot be complied with. Mr. Niemela acknowledges that Google is not able to comply with an order compelling it to block defamatory search results in the United States. Two federal statutes, the Communications Decency Act of 1996, 47 USC (1996), and the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 USC (2010), protect internet providers such as Google and block enforcement orders that would infringe on the First Amendment right to free speech.
Among the other issues the court had with this particular case are the fact that Niemela sat on these "harmful" URLs for two years before bringing the lawsuit. Not only that, but he had failed to show any evidence that the existence of these URLs (and their accessibility from other countries) had actually harmed his current and future business prospects. Damningly, the court flat out states that Niemela is his own worst enemy, and that perfectly legal (and non-defamatory) detrimental information about him and his practice is easily accessible to anyone using Google from anywhere.
[W]hile Mr. Niemela attributes the decline in his law practice to the defamatory statements and their general accessibility through search engines such as Google’s, there are other possible explanations. A disciplinary history with the Law Society is prominently revealed in Google searches of “Glenn Niemela”.
Even if Niemela had put together a better case, it's unlikely this particular court would have followed the other BC court into infamy by issuing an impossible, imprudent and likely illegal court order. The court found that "publication" is a necessary element of defamation, and Google -- no matter its marketshare and global reach -- is nothing more than a search engine.

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Posted on Techdirt - 20 July 2015 @ 5:46am

Washington Post Observes Encryption War 2.0 For Several Months, Learns Absolutely Nothing

from the we're-going-to-take-this-stupidity-and-DOUBLE-it dept

Last October -- following Apple and Google's announcements of encryption-by-default for iOS and Android devices -- was greeted with law enforcement panic, spearheaded by FBI director James Comey, who has yet to find the perfect dead child to force these companies' hands.

The Washington Post editorial board found Comey's diatribes super-effective! It published a post calling for some sort of law enforcement-only, magical hole in Apple and Google's encryption.

How to resolve this? A police “back door” for all smartphones is undesirable — a back door can and will be exploited by bad guys, too. However, with all their wizardry, perhaps Apple and Google could invent a kind of secure golden key they would retain and use only when a court has approved a search warrant. Ultimately, Congress could act and force the issue, but we’d rather see it resolved in law enforcement collaboration with the manufacturers and in a way that protects all three of the forces at work: technology, privacy and rule of law.
When is a "backdoor" not a "backdoor?" Well, apparently when an editorial board spells it G-O-L-D-E-N K-E-Y. It's the same thing, but in this particular pitch, it magically isn't, because good intentions. Or something.

Months later, the debate is still raging. But it's boiled down to two arguments:
1. This is impossible. You can't create a "law enforcement only" backdoor in encryption. It's simply not possible because a backdoor is a backdoor and can be used by anyone who can locate the door handle.

2. No, it isn't. Please see below for citations and references:

The FBI is at an impasse. Comey firmly believes this is possible, despite openly admitting he has zero evidence to back this claim up. When asked for specifics, Comey defers to "smart tech guys" and their warlock-like skills.

Sensing James Comey might be struggling a bit, the editorial board of the Washington Post is once again riding to the rescue. And they've brought the same level of cluelessness with them. (h/t to Techdirt reader Steve R.)
Mr. Comey’s assertions should be taken seriously. A rule-of-law society cannot allow sanctuary for those who wreak harm. But there are legitimate and valid counter arguments from software engineers, privacy advocates and companies that make the smartphones and software. They say that any decision to give law enforcement a key — known as “exceptional access” — would endanger the integrity of all online encryption, and that would mean weakness everywhere in a digital universe that already is awash in cyberattacks, thefts and intrusions. They say that a compromise isn’t possible, since one crack in encryption — even if for a good actor, like the police — is still a crack that could be exploited by a bad actor. A recent report from the Massachusetts Institute of Technology warned that granting exceptional access would bring on “grave” security risks that outweigh the benefits.
After providing some statements opposing its view on the matter -- most notably an actual research paper written by actual security researchers -- the editorial board continues on to declare this all irrelevant.
The tech companies are right about the overall importance of encryption, protecting consumers and insuring privacy. But these companies ought to more forthrightly acknowledge the legitimate needs of U.S. law enforcement.
And by "forthrightly acknowledge," the board means "give law enforcement what it wants, no matter the potential damage." After all, what's PERSONAL safety, security and a handful of civil liberties compared to "legitimate needs of law enforcement?"
All freedoms come with limits; it seems only proper that the vast freedoms of the Internet be subject to the same rule of law and protections that we accept for the rest of society.
Your rights end where law enforcement's "legitimate needs" begin. Except they don't. The needs of law enforcement don't trump the Bill of Rights. The needs of law enforcement don't automatically allow it to define the acceptable parameters of the communications of US citizens.

The editorial finally wraps up by calling for experts in the field to resolve this issue:
This conflict should not be left unattended. Nineteen years ago, the National Academy of Sciences studied the encryption issue; technology has evolved rapidly since then. It would be wise to ask the academy to undertake a new study, with special focus on technical matters, and recommendations on how to reconcile the competing imperatives.
The WaPo editorial board is no better than James Comey. It can cite nothing in support of its view but yet still believes it's right. And just like Comey, the board is being wholly disingenuous in its "deferral" to security researchers and tech companies. It, like Comey, wants to hold two contradictory views.
Tech/security researchers are dumb when they say this problem can't be solved.

Tech/security researchers are super-smart and can solve this problem.
So, they (the board and Comey) want to ignore the "smart guys" when they say this is impossible, but both are willing to listen if they like the answers they're hearing.

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Posted on Techdirt - 17 July 2015 @ 10:16am

Court Shuts Down Government's Attempt To Claim An In-Car GPS System Is A 'Container'

from the just-a-cardboard-box-full-of-detailed-traffic-records dept

Almost everyone gets from Point A to Point B in a vehicle. This works out well for police officers looking to perform Fourth Amendment-skirting searches. The "motor vehicle exception" allows law enforcement to search the interior of vehicles without a warrant as long as probable cause exists that contraband or evidence may be hidden inside it. This exception can be extended to cover the contents of locked trunks, as well as any "containers" located inside the vehicle.

This no-warrant loophole has been exploited thoroughly by law enforcement and granted credence by deferential courts. It nows extends to houseboats, airplanes and motor homes and can be used even if in the absence of exigent circumstances (i.e., enough time to obtain a warrant) or even if the vehicle itself is in no danger of going anywhere (i.e., locked in an impound lot).

In this particular case, the government not only deployed the "motor vehicle" exception, but also maintained that an in-vehicle GPS system was basically just a cardboard box full of detailed info about that vehicle's travel history. To a government that has previously asserted a cell phone full of personal information is pretty much the same thing as a pair of pants and the contents of its pockets, this sort of misrepresentation is nothing new. Unfortunately for it, this court was similarly unimpressed by the government's terrible, self-serving metaphors.

The State likens the GPS device in this case to a locked container and directs us to lower court decisions comparing computers and cell phones to locked containers. See Brief of Appellee at 21-22. Indiana does not have a case directly on point, but lower courts in other jurisdictions are split on the issue of whether a computer or cell phone may be treated as a container and subjected to a warrantless search under the automobile exception.
So far, so good, but the lack of clear precedent doesn't help the state's case, not when the Riley decision is factored in.
It should be noted that the State’s persuasive authority comparing computers and cellphones to containers were all decided before the Supreme Court’s decision in Riley v. California, infra, which we believe is instructive.


In our view, the GPS unit in this case is akin to a computer or cell phone. The device stores large amounts of information that could not possibly be stored in an ordinary physical container. For that reason, an electronic storage device cannot be treated as a container. Moreover, the location data it does store has been identified by the Supreme Court as private information. Just as the Supreme Court believed that treating a cell phone as a container was “a bit strained,” id. at 2491, we believe that treating the GPS device as a container under the automobile exception is inappropriate.
The state also argued that even if the warrantless search of the GPS system was a violation of privacy, it didn't violate that much privacy and the evidence gleaned from it is still admissible in court.
The State maintains that Wertz’s GPS device is not deserving of the same level of protection as a cell phone, because a GPS device does not contain the same amount of personal information. The GPS unit does not hold pictures, Internet history, text messages, a calendar, or several of the other features that a smart phone does.
The court agrees that GPS devices contain less personal information than the cell phones of the Riley decision, but that doesn't mean there's no expectation of privacy in other devices.
No one will dispute that society considers a cell phone to be more private than the GPS device in this case. But that does not mean that electronic devices other than cell phones are not entitled to Fourth Amendment protections. It remains true that devices like Wertz’s GPS have an enormous storage capacity, and they store information that most people consider to be private. Any differences between the contents of a cell phone and a GPS device do not support treating the GPS device as a container.
The state also pointed to the motor vehicle exception as allowing for the search of the GPS device. The court points out the logical error in this assertion:
The State’s proposed distinction would require us to conclude that a cell phone found next to a driver in the passenger seat of his vehicle could be searched without a warrant, regardless of the Supreme Court’s decision in Riley. But such an outcome is unthinkable if the Court meant what it said in Riley. Although the State is correct that Riley dealt only with the search-incident-to-arrest exception, Riley’s discussion of Fourth Amendment protections afforded to electronic devices that store private information transcends the search-incident-to-arrest exception. The analysis in Riley easily transfers to other circumstances where an exception to the warrant requirement would otherwise exist, including the automobile context.
The state also attempted to use the Supreme Court's Jones decision to defend its actions, claiming this decision only found "long-term" monitoring of movements to be a violation of the Constitution. But the court points out that a search of a personal GPS device -- much like a search of location data stored on smartphones -- is still the same privacy violation, even if it doesn't include "real-time" monitoring.
The Fourth Amendment forbids real-time, long-term monitoring of a citizen’s location. See supra, ¶¶ 26-31 (discussing Jones concurrences). There is no logical basis for allowing the government to obtain the same information without a warrant by inspecting a citizen’s location information after-the-fact.
The government has many ways to work around the supposed limitations of the Fourth Amendment, which it seems to prefer to use even when obtaining a warrant seldom requires any significant amount of effort. It's not as though the police involved here couldn't have obtained a warrant. The suspect was in the hospital, recovering from the traffic accident central to the vehicular homicide case. It just chose to use the exception, rather than the rule, and in doing so, lost the ability to use the evidence it obtained.

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