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Posted on Techdirt - 6 October 2015 @ 3:16am

Use-Of-Force Report Finds NYPD Completely Uninterested In Policing Itself

from the the-NYPD-is-unstoppable-because-it-never-beats-itself dept

The NYPD's Inspector General has just released a report on the department's use of force and there's nothing in it that's good news. It finds that the problem begins at the top and only gets worse from there.

[T]his Report analyzes and evaluates NYPD’s disciplinary system, including a close review of cases where OIG-NYPD, through independent review, determined that the use of force was not reasonable by any standard and not justified by any exigent circumstances or the need to protect an officer’s or the public’s safety. Historically, NYPD has frequently failed to discipline officers who use force without justification.
This is a failure of management. The report notes that the department's guidelines on force usage are so minimal they're almost nonexistent.
NYPD’s current use-of-force policy is vague and imprecise, providing little guidance to individual officers on what actions constitute force. NYPD’s current use-of-force Patrol Guide procedure, which is barely more than a page of text, is completely silent on what actions constitute “force.” The Patrol Guide likewise prohibits “excessive force” while offering no clarity on what constitutes “excessive force.” Officers are given few clear-cut rules when determining whether their actions constitute force and whether such actions must be reported.
With nothing to go on, officers make up their own rules as they go. And they're seldom punished for their actions. This ties in directly with the lack of guidance. It's kind of hard to punish someone for violating guidelines that don't exist. (When you have little desire to punish officer misconduct at all, the lack of solid force rules makes punishment almost impossible.)

On top of the limited guidance for use of force, the department does not instruct officers to use de-escalation tactics, only making the tiniest nod towards it when bringing in new officers.
NYPD spends only a portion of a four-and-a-half-hour course teaching de-escalation, out of 468 classroom hours—less than one percent of the curriculum. There is currently no Academy course specifically devoted to learning and practicing de-escalation techniques.
Excessive force complaints continue to mount. Officers abuse citizens and nothing happens. The amount of sustained complaints against NYPD officers is little more than a rounding error.
This total of 207 substantiated force allegations is based on the data provided to OIG-NYPD by CCRB. The total number of substantiated force allegations represents approximately 2.0% of the more than 10,000 allegations of force received by CCRB from 2010 to 2014.
The Inspector General found that the department not only had no guidance on use of force but nearly no standardized reporting on use-of-force incidents. In addition, when use-of-force complaints are substantiated by the CCRB (Civilian Complaint Review Board), NYPD management often delivered less severe disciplinary measures than those recommended by the Board.

And it's not just a few "bad apples." Officers involved in excessive force complaints were often accompanied by other officers who did nothing to rein in their colleagues. (From substantiated excessive force complaints.)
The second officer failed to intervene when the subject officer initially lost his temper and stood several feet away with his hands in his pockets. The second officer remained passive and did nothing to intervene or take control of the situation, even once the complainant was on the ground and the subject officer continued to yell at him.


Throughout the entire encounter, one of the four officers has been standing to the side observing the interaction. This officer does not intervene after the first, second, third, or fourth strike to the complainant’s face, and he does not even move. The officer stands passively, a few feet away, with his thumbs hooked in his belt. Only once the man is on the ground and has been struck a fifth and sixth time does that officer approach, place one hand on the subject officer’s back, and appear to intervene halfheartedly.
And even when complaints are substantiated (in the 2% of cases that actually make it that far), nothing happens. (From substantiated complaints.)
CCRB substantiated the force allegation against the subject officer, but he ultimately received no discipline.


CCRB substantiated the force allegation against the subject officer. The other officers’ force allegations were exonerated by CCRB. At the time of the writing of this Report, no disciplinary decision has been reached in this case, despite the matter being in the NYPD disciplinary process for the past seven months.


CCRB substantiated the force allegation against the subject officer. No other force allegations were made against the other officers. Discipline was not imposed in this case because the statute of limitation expired before CCRB forwarded the case to NYPD for disciplinary disposition.


CCRB substantiated the two force allegations against the subject officer. At the time of the writing of this Report, no disciplinary decision has been reached in this case despite the matter being in the NYPD disciplinary process for the past 20 months.
The OIG recommends a complete overhaul of the NYPD's use-of-force policies, as well as the creation of new incident reporting systems. The problem is that these recommendations are being handed to a police force that clearly has no interest in fixing its problems.
As noted, OIG-NYPD examined 104 substantiated allegations from the initial complaint through investigation, prosecution, and final decision. From these data, OIG-NYPD found that the trends initially observed in the January 2015 Chokehold Report are not an anomaly, but appear to be endemic of a larger dissonance between CCRB and NYPD. In a number of cases, the Department has failed to meet its fundamental obligation to police itself.
The NYPD's culture is rotten. This may be the beginning of a departmental overhaul, but this seems unlikely. The NYPD has weathered plenty of negative reports from oversight, thousands of excessive force complaints and dozens of civil rights lawsuits without it appearing to have any impact on the rank-and-file, much less the department's upper management.

What this report does do is provide the public with more data on just how screwed up the NYPD is. This may seem useless on its own, but it fits into the larger scheme of things. Every bit of data, every damning piece of cell phone footage, every substantiated claim -- whether punished or not -- strips a little more the protective paint off the thin blue line.

As Brooklyn criminal-defense attorney Ken Womble points out at FaultLines, we're winning the "War on Cops," even if progress seems minimal.
I have worked in Brooklyn for years, mainly in criminal defense. Brooklyn is, unfortunately, ahead of the curve when it comes to understanding the true nature of policing. Brooklyn juries are receptive to the idea that a cop would plant a gun on a suspect to push a false arrest. They are open to the argument that the word of a cop is worth very little. They understand these things because they have seen NYPD misconduct first hand. When the black woman on your jury has a son that has been arrested repeatedly for merely walking around his own neighborhood, she is going to have a healthy (and realistic) dose of skepticism about the police narrative.

I am optimistic. There is so much wrong with our system but the way we fight that is to open our mouths and tell our stories. That is why the Fault Lines project is so important. Police in this country have remained untouchable because we refuse to touch them. We are witnessing a cultural shift in the way people see cops. The stories of police abuse that are so common to Brooklyn are now common everywhere. With each story, the great American jury pool is turning.
Add the Inspector General's report to the growing pile of evidence that police officers haven't earned the unquestioning deference that has been afforded them for far too long.

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Posted on Techdirt - 5 October 2015 @ 2:44pm

Court Hands Loss To Doctor Who Sued Over Blog Posts Criticizing His Questionable Alzheimer's Treatments

from the woefully-inept-trademark-thuggery dept

Another bullshit lawsuit seeking to suppress critical speech has resulted in a loss for the plaintiff.

Last year, Dr. Edward Tobinick sued Yale physician Steven Novella over a blog post Novella had written that questioned and criticized Tobinick's off-label use of immune-suppressing drugs to treat… Alzheimer's patients. Here's a short quote from the post at the center of the lawsuit:

The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.

Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.
Tobinick first demanded Novella take the post down. When Novella refused, Tobinick sued him and Yale University. Tobinick didn't allege defamation, as one would expect. (At least, not originally, allegations of libel were added to an amended complaint.) Instead, Tobinick claimed Novella's post was "false advertising" and actionable under trademark law.

There are very few cases where plaintiffs have been successful misusing intellectual property laws to shut down critics. This one is no exception. Back in June, the court granted Novella's anti-SLAPP motion, striking Tobinick's motions for unfair competition, trade libel and libel per se. All that was left unaddressed was Tobinick's Lanham Act claim.

Now, the court has handed a victory to Novella, granting his motion for summary judgment and ordering the case closed. The court finds no merit to Tobinick's argument that Novella's critical blog posts were "commercial speech" and therefore actionable under the Lanham Act.
[T]he Court finds that the speech at issue here—that is, the First and Second Articles, published on —is not commercial speech. The Articles proposed no commercial transaction, and consequently do not fall within the “core notion” of protected speech. See Bolger, 463 U.S. at 66. Furthermore, the Articles do not fall within the scope of the definition expounded in Central Hudson, “expression related solely to the economic interests of the speaker and its audience.” 447 U.S. at 561. Both articles clearly state their intent to raise public awareness about issues pertaining to Plaintiffs’ treatments.

Thus, the First and Second Articles can only potentially qualify as commercial speech under Bolger. Yet the Articles differ from the pamphlets at issue in Bolger in a number of ways. First, the Articles are not conceded to be advertisements. Second, the only products referenced in the First Article are Plaintiffs’ treatments. To the extent that the Second Article mentions Defendant Novella’s practice, it is in direct response to the instant litigation as opposed to an independent plug for that practice.
The main thrust of Tobinick's Lanham Act argument was that because Novella made money indirectly from the website, it was commercial speech. The court doesn't care for this argument either, and points out that even certain commercial speech is still protected under the First Amendment and not subject to Lanham Act claims.
The third and final factor from Bolger, whether there was an “economic motivation” for the speech, is the primary basis for Plaintiffs’ opposition to summary judgment. Essentially, Plaintiffs contend that the Articles are commercial speech because SGU Productions, a for-profit company controlled by Defendant Novella, earns money by selling advertisements on its website (, advertisements in a podcast, memberships, and goods such as t-shirts…
Thus, even if Defendant Novella directly earns money from an organization sponsoring or producing the speech, this alone would not make the speech commercial. Furthermore, the specific evidence elicited in this case regarding SGU does not point to a strong economic motivation for the speech. Although Plaintiffs argue that “[t]he flow of money to Novella . . . is significant, as [Jay] Novella testified to over $200,000 last year,” Jay Novella also testified that, despite this profit, SGU “made no profit after expenses” because “we reinvest the vast majority of the money back into the company when we have a positive cash flow.”

The Court therefore finds that Defendant Novella’s speech in the First and Second Articles does not qualify as commercial speech, such that the Articles can form the basis of a Lanham Act claim.
Once again, we see a plaintiff learning the hard (and expensive) way that speech that may harm your commercial interests isn't automatically a.) defamatory or b.) a violation of intellectual property laws. Of course, many litigants already know this. They're apparently just hoping the courts don't.

With the granting of the anti-SLAPP motion, it looks like Tobinick will be paying the costs of defending against his bogus lawsuit. But it's not as though people looking to censor critics will be any less willing to engage in Hail Mary-esque lawsuits. Many defendants simply aren't willing to put themselves through the financial and mental pain and suffering that accompanies litigation. Because of this, this string of IP law-abusing legal failures won't prevent similarly bogus attempts from being made in the future.

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Posted on Techdirt - 5 October 2015 @ 3:49am

FBI Director Says Agency Will Track Police-Involved Killings Better By Not Changing Any Of Its Current Methods

from the mistaking-stasis-for-progress dept

After years of not giving a damn and letting the public do its job for it, the FBI is apparently ready to get serious about collecting stats on "police-involved shootings." In a statement released along with the FBI's 2014 Crime Report (tl;dr: most crime down again), FBI director James Comey says the agency will be doing… something… to ensure more comprehensive reporting of citizens killed by police.

[T]o address the ongoing debate about the appropriate use of force by law enforcement, we plan to collect more data about shootings (fatal and nonfatal) between law enforcement and civilians, and to increase reporting overall. Currently, the UCR program collects the number of justifiable homicides reported by police as well as information about the felonious killing and assault of law enforcement officers. These data are available in Crime in the United States and Law Enforcement Officers Killed and Assaulted. As helpful as this information is, however, we need more law enforcement agencies to submit their justifiable homicide data so that we can better understand what is happening across the country. Once we receive this data, we will add a special publication that focuses on law enforcement’s use of force in shooting incidents that will outline facts about what happened, who was involved, the nature of injuries or deaths, and the circumstances behind these incidents. We hope this information will become part of a balanced dialogue in communities and in the media—a dialogue that will help to dispel misperceptions, foster accountability, and promote transparency in how law enforcement personnel relate to the communities they serve.
There's a lot not to like about this statement.

First off, the FBI is only now getting around to "addressing the debate," after doing the bare minimum for the past several years. Currently, the data is "collected" via voluntary reports from law enforcement agencies and is limited to justifiable homicides, and then only those where someone was shot during the commission of a felony. This is why the FBI's yearly totals are, at best, half of what's tallied by private efforts.

Comey's statement basically says nothing's going to change. The collection will still be limited to "justifiable" homicides and will still be voluntary. Comey says he wants more law enforcement agencies to submit data, but there's no directive being issued to force the issue.

If anything's going to mobilize a more complete collection of shooting data, it will likely be new legislation. But the only recent effort towards a more comprehensive database of police-involved killings is languishing in Washington, having gone no further than being assigned to the Senate Judiciary Committee.

If any expanded reporting does result from Comey's announcement, it will still be heavily-skewed in favor of law enforcement agencies and their use of force. Because it will only contain information on homicides deemed to be justified, the report will not provide any further information on unjustified uses of deadly force. This will do nothing to further the conversation on law enforcement use of force, much less increase the level of trust in the communities they serve.

Comey is correct that continuing to serve up incomplete statistics won't result in positive change. But his statement contains nothing that indicates substantive changes in reporting is on the way. The only difference here is that the FBI is finally acknowledging the public's growing disgruntlement with the nation's law enforcement agencies. But Comey's light touch -- designed not to offend his agency's brothers-in-arms -- suggests the only thing he's willing to throw at the problem is a few extra words.

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Posted on Techdirt - 2 October 2015 @ 4:08pm

FAA Blows Past Mandated Deadline For Drone Regulation Rules

from the given-its-past-rulings,-perhaps-this-isn't-a-bad-thing... dept

Jason Koebel of Vice reports the FAA has missed its deadline to deliver a coherent policy on drone usage.

When Congress passed the FAA Modernization Act in 2012, it gave the agency until September 30, 2015 to fully regulate commercial drones for use in the United States. Well, it's October 1, and we're left with a patchwork of regulatory band-aids, quasi-legal "guidelines," and a small drone rule that still hasn't gone into effect yet.
This should come as no surprise. The FAA seems to be operating from the brainstem when it comes to regulating private drone use. Its previous rulings have been all over the place. On one hand, it recognizes the problems leaving this completely unregulated would pose. On the other, it seems unable to prevent itself from handing down horribly inconsistent rules.

Even Congress has recognized the FAA is unlikely to come up with a final set of drone rules any time soon.
As early as May 2014, Congress acknowledged that the agency would probably miss this deadline.

In a report published then, lawmakers noted that they were "concerned that the FAA may not be well positioned to manage effectively the introduction of [drones] in the United States" and specifically noted that a missed deadline was likely.
The FAA honestly doesn't seem to know what it wants, at least not in terms of long-term guidance. Its stabs at rulemaking have been mostly on-the-spot determinations, each one more contradictory than the last. In 2014, it said delivering the game ball for kickoff at a college football game was not permitted, supposedly because it was "commercial use." Then it turned around and approved drone-mounted cameras for use by movie studios, something entirely commercial.

Here's a quick visual representation of how screwed up the drone rulemaking process is.

As of 2012, the FAA still forbade "commerical use" of drones. Almost two years later, another regulatory agency (the National Transportation Safety Board) pointed out that the FAA had -- nearly three decades earlier -- exempted model planes from its regulatory control. Seeing model planes as analagous to private (i.e., non-government) drones, the NTSB's administrative judge basically said the FAA can't claim control over any and all flying objects. Tacocopters were back in business. At the center of its decision was the fact that the FAA had no active policy on drone use. Its assertions that it should be able to regulate these flights was based on nothing more than the feeling it should be able to do this and an internal memo that had never made its way into the FAA's official policies.

Considering the ubiquity of the technology, it's hugely irresponsible for the FAA to handle this on a case-by-case basis, especially when this process results so often in contradictory rulings. The FAA is correct to err on the side of caution, but it seems unable to see past the dangers drones might pose to other air traffic. In doing so, it has turned its rulemaking process into the worst combination of immobilization and overreactions -- less of a regulatory agency than a catatonic being that responds quickly and violently to certain stimuli. There appears to be little rational thought guiding the process.

While its recent efforts have clarified at least some of the parameters governing private drone use, the rules are still severely limiting. That's its overabundance of caution at work. The FAA certainly doesn't want to be seen as somehow allowing the sort of actions that have given private drone use a public image problem -- like interfering with airborne firefighting operations… or being used as high-flying tools for vandalism.

What is clear is that Congress won't be pushing the FAA towards better rulemaking or holding anyone accountable for its lack of timely rulings. By the time the FAA ever gets around to issuing comprehensive guidelines, they'll already be out of date.

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Posted on Techdirt - 1 October 2015 @ 4:00pm

Army Officials Withheld FOIA Documents To Push Out Its Spin On Head Injuries

from the information-wants-to-be-subservient dept

The Freedom of Information Act does open up the government to closer examination by taxpayers. The ideals of the law are rarely achieved, though. It requires agencies to respond in a reasonable amount of time, but far too often it takes a successful lawsuit to force an agency to give up the documents requested.

FOIA requesters are at the mercy of government agencies. If an agency wishes to punish a particularly tenacious FOIA requester, it can do so by unceremoniously dumping requested documents into the public domain, robbing him of any exclusivity. If an agency wants to wait until media heat dies before releasing incriminating/embarrassing documents, it can string along the requester for months or years without fear of reprisal. It's not that there aren't FOIA staffers who truly want to assist requesters, it's that there are far too many reasons agencies might want to stall the release of documents, if not withhold them altogether.

For instance, FOIAed documents can be withheld to allow government agencies to get out ahead of a negative story.

Two top Army generals recently discussed trying to kill an article in The New York Times on concussions at West Point by withholding information so the Army could encourage competing news organizations to publish a more favorable story, according to an Army document.


During a Sept. 16 meeting at the Pentagon, the Army surgeon general, Lt. Gen. Patricia D. Horoho, recommended to the superintendent at West Point, Lt. Gen. Robert L. Caslen Jr., that the Army delay responding to The Times’s request, according to the document. General Horoho then suggested trying to get The Wall Street Journal or USA Today to publish an article about a more favorable Army study on concussions.

“I recommend you let us publish this article BEFORE you release the FOIA to the NYT reporter,” General Horoho is quoted as saying in the summary, using an acronym for the Freedom of Information Act.
There's not much out there that's uglier than the government burying facts to control a narrative. And, of course, we'd know nothing about it if it weren't for another FOIA request. The biggest problem with how the Army handled this is that the FOIA side of agencies is supposed to be wholly divorced from its other goals. It should be a politically-agnostic process, with the only considerations being whether or not the requested information can actually be requested. The point of the law is to make the government accountable to the public. The process is never supposed to be subservient to the political/PR desires of government officials.

And yet it is. The officials quoted in the released document are claiming the things they said don't represent the things they meant.
Both generals acknowledged the authenticity of the summary, but said it misrepresented their discussion.
Well, OK then. But accountability is better served by putting the incriminating information in the public's hands and dealing with the consequences, not burying it until after the advance force spin team has had a chance to work its narrative magic.

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Posted on Techdirt - 1 October 2015 @ 2:43pm

Court Says USTR Can Continue To Keep The Public From Seeing The Trade Agreements They'll Be Subjected To

from the our-national-security-depends-on-it,-apparently dept

Towards the end of 2013, IP-Watch -- along with the Yale Media Freedom and Access Center -- filed a FOIA lawsuit against the USTR for its refusal to release its TPP draft documents. The USTR spent a year ignoring IP-Watch's William New's request before telling him the release of draft agreements would "harm national security."

What trade agreements have to do with "national security" is anyone's guess (especially since the USTR has cloaked the entire TPP proceedings in opacity), but the conclusion being drawn by this refusal is that the USTR feels the public has no right to know about trade agreements that affect the public.

A ruling has finally come down in the FOIA lawsuit and the court has granted the USTR the right to remain opaque.

As government negotiators dig into perhaps the final round of the Trans-Pacific Partnership trade negotiations this week in Atlanta, they may take comfort in knowing that nothing they are doing has to be shared with the public they represent until years after it is over. That’s because a federal district court in Manhattan decided this week, in a closely watched Freedom of Information Act case brought by Intellectual Property Watch, that draft texts of the trade deal can be kept secret.
The very small upside of this decision is that the court did find some of the USTR's arguments for secrecy suspect. While it did side with the USTR's arguments on the withheld draft agreements, it found the agency did not present credible justification for its use of some FOIA exemptions in regards to requested communications.
First and foremost, USTR’s declarations rely purely on conclusory statements from the agency itself, which simply proclaim that disclosure would complicate USTR’s future efforts. Even the sole piece of evidence meant to represent the views of actual private-sector actors comes from the agency’s declaration, and this too is vague and conclusory…

Critically, none of USTR’s explanations are document-specific, nor even category-specific. They are blanket assertions meant to cover all withholdings made under § 2155(g)(1) and Exemption 4…

[The] USTR’s bare assertions reporting secondhand concerns from the private sector constitute only weak evidence, at best.
The court also noted the USTR's arguments in favor of withholding information under Exemption 4 were undercut by wording in the agency's own policies.
In response to Plaintiffs’ argument that the withheld commercial or financial information is not “confidential” because it has already been shared among all ITAC members, USTR argues only that ITAC members are sworn to secrecy and cannot use information they receive via ITACs outside of those committees. But the obvious reply, absent from USTR’s briefs, is that USTR’s own Operations Manual states that information subject to Exemption 4 withholding will be kept from other ITAC members.
And if the USTR can't keep its own secrecy arguments straight, there's a good chance it has not performed the thorough examination of the contested documents it claimed it had.
As Plaintiffs argue, USTR’s failure to make this simple response raises questions about whether the agency has wrongly withheld information under Exemption 4 that has already been shared with other ITAC members. Finally, although the Court does not question USTR’s good faith in responding to this FOIA request, Plaintiffs are also correct to point out the troubling nature of USTR’s first round of responsive disclosures here, which apparently withheld 149 pages in full and redacted portions of 413 pages improperly, despite sworn declarations attesting to a line-by-line review of all the documents.
That being said, the court still won't be ordering the USTR to release draft TPP documents. The only thing it has done is order the agency to present documents explaining its withholding of certain communications under two FOIA exemptions. The bulk of the trade agreements will remain hidden away from the public -- this time with the court's blessing and thanks to the administration's advocacy on behalf of continued opacity.

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Posted on Techdirt - 1 October 2015 @ 8:28am

Secret Service Agents Dug Through Personal Info To Discredit Legislator Investigating Agency Wrongdoing

from the Secret(s)-Service dept

They get to wear nice suits, wield guns and hang around the President. They're entrusted with protecting perhaps the most important person in the world. The US Secret Service should only be staffed with the best the nation has to offer. Instead, its recent protective efforts can be generously described as "almost adequate" and it's apparently staffed with an assortment of vindictive children who can't stand the thought of having their shortcomings questioned.

Rep. Jason Chaffetz heads up the House Oversight Committee, which is tasked with investigating allegations that Secret Service agents had spent several hours drinking before (literally) crashing a "suspicious package" party being thrown in their absence on a street near the White House. Almost as soon as the hearings began, Secret Service agents began looking for some way to tear Chaffetz down.

Employees accessed Chaffetz's 2003 application for a Secret Service job starting 18 minutes after the start of a congressional hearing in March about the latest scandal involving drunken behavior by senior agents. Some forwarded the information to others. At least 45 employees viewed the file.
If this internal sharing of personal info were the extent of the wrongdoing, it would still be illegal. The US Privacy Act forbids the disclosure of these records, absent the written permission of the record's subject. Obviously, Chaffetz was never approached by the Secret Service to get his OK for using his job application against him. But this isn't the end of the agency's misconduct.
One week later, Assistant Director Ed Lowery suggested leaking embarrassing information about Chaffetz in retaliation for aggressive investigations by the House Oversight and Government Reform Committee into a series of agency missteps and scandals, the report said. Days later, on April 2, the information about Chaffetz unsuccessfully applying for a job at the Secret Service was published by The Daily Beast, an Internet publication.

"Some information that he might find embarrassing needs to get out. Just to be fair," Lowery wrote March 31 in an email to fellow Assistant Director Faron Paramore.
"Just to be fair." Let's take a look at that statement. Lowery's employees embarrassed themselves, both in terms of protecting the White House and showing up for work sober. And yet, the "fair" thing to do was to discredit a politician actually performing his job: the oversight of government agencies.

Lowery says he never ordered anyone to release any information the agency had on Chaffetz. (He just heavily suggested it...) He told the Inspector General that saying the "embarrassing" information "need[ed] to get out" was only a reflection of his anger and frustration. It's not as though anger hasn't been known to push people towards regrettable actions. Obviously, Lowery regrets this now that he's been caught, but claiming "the anger made me do it" doesn't excuse his support of illegal activity being performed by his agency.

DHS head Jeh Johnson officially apologized to Rep. Chaffetz, following it with this consolation prize:
"I am confident that U.S. Secret Service Director Joe Clancy will take appropriate action to hold accountable those who violated any laws or the policies of this department," Johnson said.
This may be true. Clancy was called out of retirement to take over the agency after the previous Secret Service head was booted following the White House security breaches. But it's still the sort of "promise" no one should accept at face value. The government is routinely terrible at holding its own employees accountable for their actions, and -- recent high-profile disgraces aside -- the Secret Service is no exception.

The attempted use of personal information by agency employees to discredit someone engaged in investigating their wrongdoing is a gross abuse of power. Many government agencies have access to a wealth of personal information, especially for those who have been entrusted with security clearances or have applied for certain federal positions. Just think of what one could do with access to even greater amounts of personal information.
Oh but this would never happen with an #NSA database, don't be ridiculous.
Very little stands in the way of agencies abusing their access and power. This just happens to be one of the times when someone got caught.

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Posted on Techdirt - 1 October 2015 @ 3:19am

Business With Shady History Sues Former Employee For Calling It Shady

from the remarks-resented,-resembled dept

ExecSummits, aka Executive Summits, aka CFO Summit, aka HR Summit, aka [Insert Corporate Buzzwords Here] Summit, is suing a former employee/contractor for a number of things -- one of those being defamation.

The lawsuit accuses Michael Healy and Karen Healy (apparently no relation) of absconding with a valuable client list, which they used to build their own "summit" business, G2 Summits. Whether or not this happened remains to be seen, as there's little on the web that details this course of events, other than a comment thread that is apparently the basis for the vague defamation claims scattered about the lawsuit.

In the middle of recitation of various fraud-related allegations, the complaint drops this intriguing hint of things to come:

As recently as September 2, 2015, Defendant MH has contacted clients of Plaintiff in an effort to prevent said clients from attending the September 15, 2015 conference; these efforts have included posting false blogs about Plaintiff on the internet, falsely accusing Plaintiff of having an F rating with the Better Business Bureau, and otherwise slandering Plaintiff and its employees.
"False blogs," eh? Or perhaps it's just Michael Healy's participation in a comment thread attached to a blog post declaring the whole of Michael Price's Executive Summits business model to be on the scammy side.

The claims raised in Healy's comments suggest he was hired by BizSummits (another arm of the ExecSummits megacorp). Soon afterward, he allegedly discovered the company was pretty much just a front for an email harvesting scheme. So he abandoned ship to start his own company. Whether or not the client list ExecSummits/BizSummits had already obtained went with him remains to be seen, but another rep of BizSummits, Kristin Mathias, also appears in the same comment threat to offer BizSummits' side of the story.

The links provided by Healy -- as well as those found through some Googling -- do indeed suggest there's an unsavory side to the BizSummits business. The post above the verbal fistfight notes the company has secured a number of URLs, all of which seem to serve up similar content, as well as the use of pictures sourced from other sites or stock photo collections. The author of the post wonders why a business so steeped in the art of business conferences is unable to produce any photos of the dozens of events it supposedly hosts every year.

This post appeared early last year (March 2014). The debate in the comment thread continued well into this month, abruptly ending with a deleted comment by Michael Healy on Sept. 14, 2015, three days after ExecSummits filed its lawsuit against him.

Since the first eruption, it appears BizSummits, et al have removed the photos blatantly "borrowed" from other sites… mostly. It still makes use of stock photos having nothing to do with the conferences it hosts and still borrows from other sites on occasion.

That, in and of itself, does not suggest Healy's assertions are all truthful or defensible. But the complaint against him doesn't exactly say WHAT it finds objectionable about Healy's claims. It only makes vague assertions.
Defendant MH, via written and oral communications, has falsely and maliciously made false charges regarding Plaintiff in reference to its trade and profession that were calculated to injure Plaintiff.

As recently as September 2, 2015, Defendant MH, using Plaintiffs confidential trade secrets, contacted a client of Plaintiff in an effort to defame Plaintiff and in an effort to re-direct this client to Defendant MH.

As a result of Defendant MH's actions, Plaintiff has been damaged in an amount to be proven at trial.
Presumably, this all refers to the contents of this comment thread. Oddly, BizSummits has shown no interest in going after the person behind the Dynamoo blog, which has several posts detailing sketchy actions by the many faces of BizSummits.

It has, however, brought legal threats against other people who have publicly questioned the legitimacy of its business. Back in 2012, a blogger did some investigating after receiving spam "invitations" from BizSummits (d/b/a in this particular email as CMO Summits). What she found was a vast network of "summits," none of which seemed to offer a verifiable product. She also uncovered more evidence that BizSummits is actually in the business of selling email lists -- using email addresses gathered in a rather illegitimate fashion.

This is from a since-archived SpamHaus ROSKO (Register of Known Spam Operations) report on Michael Price and BizSummits.
Michael Price runs a company selling harvested email lists. They scrape addresses from various sources including websites and then "verify" that their addresses are deliverable by sending out so-called "seminar invitations" or "health warnings".

If someone complains about this activity online such as in a blog entry, Michael threatens to sue them AND their employer if the blog is not taken down.


"We are getting two to three of these a day as well. The thing we notice is that the email address always has a different name before the @. We sell movie posters, and have noticed that all of these spam emails we have been receiving are addressed to movie stars such as Robert De Niro, so the email address will read rdeniro[at] or Marilyn Monroe, and the email address will be marilynmonroe[at]

It seems as if some robot is just pulling random names from our site, and creating email addresses for them using our domain as the stem. Unfortunately, our email account is catching all of these emails. The emails are coming from various domains, and don't seem to have any purpose whatsoever, unless they are phishing for valid email addresses and see what bounces back and what sticks."
More research confirming this is available at the Dynamoo blog.

Roughly a year later, Michael Price emailed a legal threat to the blogger.
Talia, I am one of the principals at BizSummits and just became aware of your libelous blog about us and our CMO Summit which you refer to as a “scam” and “scammers”. We are certainly not, I am shocked by what you wrote, and I would ask that you immediately take down that libelous post in its entirety or we will have no choice but to take legal action against you personally and YOUR WORKPLACE in the Superior Court of Denver.
The nastiest part of this threat (beyond its baselessness -- as Talia had linked to and provided screenshots of everything she had uncovered) is Price's willingness to sabotage the blogger's employment in order to silence her. Not that it worked. And not that Price ever followed through with his legal threat.

Price threatened another recipient of his company's solicitation emails back in 2010. He went after blogger Andrew Badera in 2011, similarly threatening Badera's employment over something written on a non-work-related blog.
Overnight I got a random email, at my WORK address, (new, private, unpublished) from someone (Michael Price, CEOVentures) claiming to own the email/the domain/the organization, that it's not a scam. I replied, asking the guy to take the email to a non-work point of contact. He responds by CALLING me at the office, then follows up with more email saying that I need to retract my statement, send him notice I've done so, or he will file a lawsuit against -- get this -- not just me, but also my new-ish fulltime employer, who of course has nothing to do with this.
So, we have a sense of BizSummits/Michael Price's general response to criticism of its "marketing" tactics.

On the other hand, we have the accusations against Michael Healy, who supposedly ran off with a copy of BizSummits' prospect list, one that possibly was harvested in a less-than-straightforward manner. The question is: what good will it do him? If it's loaded with clients who've already learned to route "summit"-related emails to the Spam folder, it's likely to be of little use to G2 Summits, who will probably be sending plenty of emails of their own.

That doesn't mitigate the alleged damages. Theft of a client list is still theft, no matter how little actual value the list contains.

The additional problem -- one that really isn't going to be addressed through this litigation -- is that G2 Summits appears to be deploying a few questionable tactics of its own.

G2 Summits borrows a (supposed) testimonial from BizSummits, word-for-word.

G2 Summits:

Tech Summits:

There's also the problem with its staff, which contains an unverifiable employee.

(Reverse image search turns up nothing on either of the non-Healy participants. "Frank" is apparently Frank Netherwood and his bio checks out. "Maria" is a complete unknown. And you'll have to inspect elements to suss out the image URLs... for reasons only known to the web designers.)

Now, G2 Summits may be completely above board, but there's nothing on the site (or elsewhere) that backs up its event-hosting claims -- like perhaps some photos of the actual events.

As to the defamation claims, Healy did claim to have emails from disgruntled clients of BizSummits seeking refunds for nonexistent events. If so, these will presumably come out in discovery if the case goes that far. This appears to be the first time BizSummits has actually sued anyone despite a history dotted with legal threats to small-scale bloggers. As for the spam techniques investigated by Dynamoo and verified by SpamHaus, BizSummits/ExecSummits' boss claims these were acts of recently-purchased "partners" and have since been cleaned up. And maybe the spam is truly gone (there don't seem to be any recent complaints), but even if so, the company's remaining "services" aren't impressing many people.

Whatever the case may be at the present, it's somewhat interesting that ExecSummits (and its various iterations) would actually follow through with something that might expose any questionable tactics it employs. I would take this to mean it has a pretty solid case against Healy… although the opposite could be quite true. Not every lawsuit filed is a wise one -- something we've definitely seen proven over the years.

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Posted on Techdirt - 30 September 2015 @ 3:49pm

FOIAed DEA Disciplinary Action Log Shows Very Little Discipline, Lots Of Inaction

from the cleaning-the-agency-up,-one-cautionary-letter-at-a-time dept

The DEA, like countless other law enforcement agencies across the nation, doesn't take employee misconduct too seriously. Perhaps upper management feels that drug warring is a tough, dangerous job and that any violations of policies/state/federal laws or other impropriety should be met with little more than a short, stern conversation and promises from agents that it won't happen again.

Brad Heath and Meghan Hoyer of USA Today have secured a log of DEA disciplinary actions via a FOIA request. What it shows is a lot of wrongdoing but very little discipline and/or action.

Lawmakers expressed dismay this year that the drug agency had not fired agents who investigators found attended “sex parties” with prostitutes paid with drug cartel money while they were on assignment in Colombia. The Justice Department also opened an inquiry into whether the DEA is able to adequately detect and punish wrongdoing by its agents.

Records from the DEA’s disciplinary files show that was hardly the only instance in which the DEA opted not to fire employees despite apparently serious misconduct.

Of the 50 employees the DEA's Board of Professional Conduct recommended be fired following misconduct investigations opened since 2010, only 13 were actually terminated, the records show. And the drug agency was forced to take some of them back after a federal appeals board intervened.
The DEA's history is littered with dirty deeds: warrantless surveillance, impersonation of medical professionals to gain access to patient records, a confidential informant program that runs with almost no oversight, concerted efforts to block internal investigations, etc. The document obtained by Heath shows its agents are perfectly capable of doing the wrong thing individually as well. And in most cases, they'll receive little more than the agency's lowest level of discipline (letters of caution) as punishment.

Recommendations for punishment are handed down by the DEA's Board of Professional Conduct. Its suggestions for suitable discipline are often ignored.

One of the most horrifying recent incidents of severe misconduct by DEA employees was met with the lightest of punishments.
This spring, the Justice Department said it had “serious concerns” about the discipline meted out to six agents who left a handcuffed college student in a holding cell for five days with no food or water. Two of the agents received brief suspensions; four others were given letters of reprimand.
The DEA, of course, has excuses for its unwillingness to mete out appropriate punishments for wrongdoing.
DEA spokesman Joseph Moses said that often happens because it's not until after the Board of Professional Conduct makes its recommendations that employees get to fully present their side of the story. That can prompt human resources officials ultimately to opt for lighter punishment.
And this, from former DEA internal affairs investigator Scott Ando, who apparently believes agent misconduct should be graded on a very generous curve.
"DEA agents should be held to a high standard, but not an unrealistically high standard."
From what's in this document, it appears agents aren't being held to any standard at all. Distribution of drugs and a refusal to cooperate with the resulting internal investigation netted one agent a two-week suspension. Another's DWI arrest resulted in two days without pay. Falsification of records and theft of government funds? Five-day suspension. Failed random drug test? Also a five-day suspension.

That's not a high standard. That doesn't even meet the standards of the private sector. The last one listed is particularly odious because in most companies, a failed drug test results in immediate termination. At the DEA -- home of the "Drugs Are Bad" brigade -- a failed drug test is one workweek off without pay.

And for those who like their bad news bundled with worse news, Scott Ando -- he of the "high but not too high standard" now heads up Chicago's Independent Police Review Authority, which investigates police misconduct complaints. Presumably, Chicago cops will be held to Ando's high expectations: a standard where all the slack is pre-cut and "Of A Doubt" is listed prominently under "Employee Benefits."

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Posted on Techdirt - 30 September 2015 @ 1:13pm

Blaming Facebook For A User's Content Is The Least Crazy Thing About This Lawsuit

from the lawsuit-almost-as-embarrassing-as-the-content dept

There are many proper ways to file a lawsuit. Then there's this one. (h/t Eric Goldman)

This is a case about one of the most powerful corporations in the world, a corporation that maliciously recreated obscene or pornographic sexual content on a personal profile account named "Franco CaraccioliJerkingman" (hereinafter as JERKINGMAN ACCOUNT or "Account"), inside its online digital community (hereinafter as "Website") because in Exhibit 1 (hereinafter as "Admission") Defendant Facebook ADMITS that after Defendant Facebook "REVIEWED" JERKINGMANT ACCOUNT which contained blatant pornographic obscenity, and recklessly "DETERMINED" that it was legitimate lawful content and NOT in violation of its community standards, thus, Defendant Facebook recreated, sponsored, republished, and/or acted as a speaker of the content by deciding to continue displaying it as opposed to deleting it.
Got that? Someone (someone not named in the suit as a defendant) managed to obtain video/photos of Caraccioli, um, jerking, and uploaded it to a Facebook account under the name of Franco CaraccioliJerkingman. This sounds more like revenge porn than defamation (one of the many causes of action raised in the complaint) and it sounds like Caraccioli might have a legitimate complaint against the original poster -- possibly even a criminal complaint -- but has chosen to go after Facebook instead.

Nowhere in the suit is the person who actually uploaded the content mentioned. The lawsuit "names" Does 1-10, but they are apparently unknown employees of Facebook.
Defendant is a corporation registered in the California Secretary of State as FACEBOOK, INC., and DOES 1 through 10… are located in their with its primary place of business at 1601 S. California Ave. Palo Alto, CA 94304.
In case that seems a bit unclear (and large chunks of the 38-page filing verge on unintelligible), there's more evidence in the latter pages of the complaint that indicate Caraccioli is only targeting Facebook and its employees.
At all times mentioned in this complaint, Mr. Caraccioli is informed and believes, and based thereon alleges. that DEFENDANT FACEBOOK, Inc., negligently and carelessly trained and retained its employees including, but not limited to, Does 1 through 10.


DEFENDANT FACEBOOK negligently failed to investigate the background of DEFENDANT FACEBOOK employees including, but not limited to, Does 1 through 10 in order to prevent republication of sexual or otherwise unlawful content in the DEFENDANT FACEBOOK's Website.
So, there's that. The plaintiff holds Facebook solely responsible for content posted by others. He seems to feel that Facebook's refusal to remove the content should undercut its Section 230 protections. He also claims Facebook is a "publisher," a legal strategy that may work elsewhere (like Canada) but not in the US.

On top of all of this, Caraccioli has filed his lawsuit in the wrong jurisdiction (federal rather than local), something that's pointed out by the judge's order to show cause. The order points out that the plaintiff has raised ten causes of action, not one of which implicates federal law. The complaint's obsession with Section 230 protections doesn't automatically turn this into a federal case, despite his invocation of a federal statute.
Perhaps in recognition of this deficiency, Plaintiff alleges in the FAC’s jurisdictional statement that “this case involves substantial issues of federal law involving the Communications Decency Act 47 U.S.C. § 230.” See FAC, at ¶ 23. But that allegation, and the discussion of the statute in other areas of the FAC, is still not enough for Plaintiff to satisfy his obligation to establish federal jurisdiction. This is because § 230, which generally works to immunize providers of interactive computer services against liability arising from content created by third parties, is not a claim for relief asserted by Plaintiff. Instead, it is a potential affirmative defense to Plaintiff’s claims, no matter its artful inclusion in the FAC. Affirmative defenses are not proper bases for federal jurisdiction.
That paragraph guts a great deal of Caraccioli's arguments, most of which shouldn't be made by your average pro se petitioner, much less a third-year law student. The complaint recycles arguments when not devolving into the needless convolutions often displayed when complainants mistake complexity and long-windedness for unassailable assertions.

Caraccioli maintains he was made aware of the Jerkingman account when the account sent him a friend request. This invitation was apparently sent to many of Caraccioli's friends and family members as well -- many of whom viewed the page and verbally promised Caraccioli they would report it to Facebook. Facebook reviewed the account's content and took no action, saying that it didn't violate any of its policies.

Caraccioli claims this simply can't be true, because it contained explicit video and photographs. As such, his complaint views Facebook's lack of action as an admission of guilt. Either it didn't actually review the content or it willfully allowed forbidden content to go untouched. (Pages added to the first draft of Caraccioli's amended complaint show Facebook recommending he "unfriend" or "unfollow" the Jerkingman account if he was unhappy with its posts.)

From there Caraccioli goes everywhere, but mostly after the Section 230 protections he feels Facebook nullified by not immediately deleting the Jerkingman account.

Now, I'm sure the subject matter of the uploaded videos continues to weigh heavily on Caraccioli's mind, but his repeated assertions about this presumed inapplicability of Section 230 contains some rather… suggestive phrasing. (All spelling errors from the original.)
Taking affirmative steps to review sexually explicit pornographic videos and images and determining that the content is in accordance with or following DEFENDANT FACEBOOK'S "Terms of Service," is at best a conscious, gross negligent, intentional, willful or wonton, or RECKLESS DISREGARD towards DEFENDANT FACEBOOK'S own "Terms of Service" and in violation of the legislative intent thrusting the CDA because children could and did in fact view the sexual obscene content in a place that is not protected or reserved for sexual content.
One should be careful to put as much distance between "thrusting" and "children" as possible when composing paragraphs about the unauthorized posting of masturbatory footage. Other mistakes -- like confusing deliberate or unprovoked action with a takeout staple -- are more easily forgiven.

To sum up multiple pages of identical allegations, Caraccioli asserts that Facebook should have removed the content as soon as it was notified because it was a "per se violation" of its Terms and Services. While other content (say, female nipples) may be open to debate, there was apparently no questioning what was happening in these videos.
Mr. Caraccioli kindly reminds this court that DEFENDANT FACEBOOK engaged in RECKLESS and MALICIOUS undertakings or steps in "reviewing" actual pornographic content and "determined" it was not obscene, because unless one is blind, pornographic content should be self-evident, especially if the words JERKINGMAN precede it's content.

This is followed by a defamation "cause of action." If the truth is the ultimate defense in the face of defamation allegations, where does that leave actual footage of someone performing a sexual act on themselves -- something openly admitted in the complaint by the plaintiff? Well, according to Caraccioli, some facts are defamatory, especially when they're somehow "false" facts.
The entire JERKINGMAN ACCOUNT was false as it pertains to Mr. Caraccioli in name, imagery, and display and diminished his reputation based on the mock and ridicule he experienced.
Now, Caraccioli may have suffered a diminished reputation, but it wasn't because of false statements. He suffered these actionable injuries because someone made something presumably private public. These are not the same thing. But there will be no letting the wind out of Caraccioli's overfilled sails.
The JERKINGMAN account was libelous on its face because it clearly exposed Mr. Caraccioli to hatred, contempt, ridicule and obloquy. Further, the JERKINGMAN ACCOUNT's content was pertaining to Mr. Caraccioli's privacy and involved extremely sensitive material under a reasonable person standard because any person holds their genitalia as a private part due to is sensitive material.
Again, Caraccioli's phrasing is, unfortunately, a bit too on the nose.

The whole complaint is worth reading, if only as an extremely comprehensive example of how not to compose a civil complaint. The sad fact is that this third-year law student felt confident enough in his own legal prowess to act as his own attorney… and then proceeded to file a bloated disasterpiece loaded with misspellings, grammatical errors, severely-flawed legal theories and all in the wrong jurisdiction.

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Posted on Techdirt - 29 September 2015 @ 11:13pm

New Jersey Supreme Court OKs Warrantless Searches Of Vehicles

from the more-exception,-less-rule dept

We've written before about how limited the Fourth Amendment is when applied to drivers and their vehicles. A number of court decisions -- along with continually-reinforced exceptions -- have allowed police to pull over motorists for any reason imaginable. Once they have someone pulled over, it's just a matter of obtaining consent from the driver or, failing that, coming up with a reasonable approximation of probable cause. (Drug dogs are a favorite.) After that, no warrant is needed to search the vehicle, along with the contents of any container found within it.

The "automobile exception" is the federal standard. Not every state has adopted it but a majority of them have. Until recently, New Jersey hadn't. Under its former standard, the motor vehicle exception did not exist. Police officers looking to search a vehicle without a warrant needed to make use of the "exigent circumstances" exception.

To no one's surprise, obtaining warrants was the least popular option. When "exigent circumstances" failed to present themselves, cops would instead try to obtain consent. It sounds like New Jersey's stricter reading of constitutional rights meant officers were less inclined to perform warrantless searches, but this is only an illusion. In striking down this requirement, the New Jersey high court presented a clearer picture of what was actually happening in the absence of a motor vehicle exception.

The New Jersey high court concluded that imposing the added condition of an emergency was impractically strict and led to an unintended surge of highway stops in which police induced drivers to allow them to look through their cars.
Inducement was the primary tactic. The state also offered an expedited warrant request system, but it failed to speed up the process.
[Justice Barry T. Albin] said the state experimented with “telephonic” search warrants in which officers connected with the court remotely through phone conferencing. But the system, he said, failed to live up to its promises and resulted in “unacceptably prolonged roadway stops.”

The state court system tested out the technology in 2012 with a pilot program. In one county where it was tried out, it took an average of 59 minutes for police to get a roadside warrant approved. In another part of the state, it often took as long as two hours.
So, this didn't work. A footnote from the dissenting opinion indicates why. It's not that the system wasn't fast enough. It's that it was only used when other options had failed.
According to the State, the pilot program “by its very design, reveals why telephonic warrants are not likely to emerge as a viable replacement for the automobile exception.” The State contends that “[a]ll of the participants in the pilot program understood that police officers would continue their post-Pena-Flores practice of requesting motorists to consent to a search” prior to trying to obtain a telephonic warrant.
This "consent first" approach to vehicle searches is what stretched out these stops to nearly an hour, not the telephonic warrant system. But with the Supreme Court's Rodriguez decision making prolonged traffic stops Constitutionally-unfeasible, this two-step process for effecting a search of a vehicle is no longer an option.

Not that the consent route was any better. The court's decision notes that induced-consent searches have been problematic in the past:
Not long ago, the State Police subjected minority motorists to consent searches on a grossly disproportionate basis because of racial profiling. As a result of the abuse of consent searches, the State Police were placed under the supervision of federal monitors pursuant to a consent decree.


Given the widespread abuse of consent searches, this Court in Carty forbade police officers from making consent-search requests unless they had reasonable and articulable suspicion to believe a vehicle contained contraband or evidence of an offense. Still, that standard does not remove the coercive effect of a search request made to a motorist stopped on the side of a road. We recognized in Carty “the inherently coercive predicament of the driver who is stopped on the highway and faced with the perceived choice of either refusing consent to search and therefore increasing the likelihood of receiving a traffic summons, or giving consent to search in the hope of escaping with only a warning.” Under those and other like circumstances, “it is not a stretch of the imagination to assume that the individual feels compelled to consent.”
Despite these concerns, the court finds the requirement of a warrant to search a stopped motorist's vehicle is too constrictive. It weighs law enforcement's interests against the Fourth Amendment and -- surprise -- finds in favor of law enforcement.
The current approach to roadside searches premised on probable cause -- “get a warrant” -- places significant burdens on law enforcement. On the other side of the ledger, we do not perceive any real benefit to our citizenry by the warrant requirement in such cases -- no discernible advancement of their liberty or privacy interests. When a police officer has probable cause to search a car, is a motorist better off being detained on the side of the road for an hour (with all the accompanying dangers) or having his car towed and impounded at headquarters while the police secure a warrant? Is not the seizure of the car and the motorist’s detention “more intrusive than the actual search itself”?
It's always disheartening to hear a court conclude that, after weighing all factors, there's not enough of a net gain to civil liberties to prevent further diminishment of Fourth Amendment protections. The court apparently feels motorists would be happier having their rights violated than their car impounded or their traffic stop extended. If this is true, there's no reason for this ruling. Citizens are perfectly capable of weighing these factors and making these decisions themselves. That's exactly what consent is.

Rather than stay ahead of the curve in terms of Constitutional protections, New Jersey's court has opted to let law enforcement needs take priority over the privacy of its residents.

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Posted on Techdirt - 29 September 2015 @ 4:02pm

Court Smacks Prosecutors For Refiling Identical Charges In Hopes Of Keeping Evidence From Being Suppressed

from the sore-losers dept

Prosecutors hate losing -- so much so that they're willing to color outside the legal lines for a chance at a win. Plenty of prosecutorial misbehavior has been uncovered over the years, most of it tied to the withholding of exonerating evidence.

But they also do other, smaller things. Like this, via

Police officers went to an apartment building in Clay Center where Parry and his girlfriend lived with their 2-year-old son. A neighbor of Parry's had reported a strong smell of burning marijuana in the building. The officers concluded the smell originated in Parry's residence, so they knocked on the door. Parry and his girlfriend stepped across the threshold to speak with the officers. The woman admitted she had been smoking marijuana earlier in the day during a birthday celebration. The officers requested permission to look in the apartment.
Long story short, consent was denied but the officers searched the apartment anyway, finding drugs and paraphernalia. This evidence was suppressed at Dominic Parry's hearing. This ruling was affirmed on appeal. The prosecutors decided that -- despite two rulings to the contrary -- they really deserved a second chance to put Parry behind bars. So, they gave themselves one.
Four days after the release of the panel decision in Parry I, the State dismissed No. 13CR2 against Parry without prejudice and immediately charged him in Clay County No. 14CR35 with the same offenses. As a practical matter, the complaints in the two cases differ only in their district court identification numbers.
Not only were the complaints the same, but the initial outcome was the same.
Not surprisingly, Parry filed a motion to suppress in No. 14CR35. The district court held another evidentiary hearing. This time the State argued the search of Parry's apartment was proper because exigent circumstances excused the need for a search warrant and even if the search were constitutionally improper, the marijuana and paraphernalia would have been inevitably discovered. The district court found those arguments unpersuasive and again granted Parry's motion to suppress.
And again, the state appealed, leading to the appeals court's disgruntlement at having to address the same prosecution twice.
The doctrine should apply here even though, technically, this case is not the same case as Parry I. The distinction between the two rests on the slenderest of technicalities. The charges against Parry are the same. The dismissal of the original case was immediately followed by the refiling of those charges in this case—a maneuver the State undertook several days after the adverse ruling from this court in Parry I. The State readily acknowledges the goal of the maneuver to be precisely what the circumstances otherwise indicate. The State wanted a do-over on the issue of the constitutionality of the police search of Parry's residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing.
The state claimed it wanted to explore doctrinal arguments it didn't look at during its first prosecution. The court reminds them that if this sort of thing were permitted, nothing would stop prosecutors for continually refiling charges until the desired result was achieved.
The State has dismissed and refiled criminal charges to evade an appellate decision confirming that Parry's Fourth Amendment rights were violated in a search of his home. The State wants to garner another hearing in the district court to make additional arguments on the issue. Law of the case aims to prevent precisely that sort of repetitive airing of points already decided in the district court and reviewed on appeal. If the doctrine were inapplicable in this situation, the State, in the face of an adverse decision on the merits in this appeal, could again dismiss, refile, and get yet a third opportunity to argue the issue—with no end in sight.
The end result of a finding in favor of the state would lead to widespread abuse, as failed prosecutions could be endlessly revived to address the state's arguer's remorse.
In marshalling their arguments, legal advocates always pick and choose among possible positions, honing the promising ones and jettisoning those that don't seem to be. Having chosen disadvantageously, especially in hindsight, an advocate cannot lay claim to manifest injustice as a result.
The justice system is already riddled with holes. Searches that blow right past Fourth Amendment protections are routinely salvaged through exigent circumstances exceptions, inevitable discovery rulings, nonverbal cues being interpreted by courts as consent and various other loopholes in constitutional coverage. (Beyond that, law enforcement officers are excused for any violations of the Fourth Amendment via the good faith exception, various levels of immunity and a court system still largely deferential to the needs and wants of law enforcers.)

Dropping charges and refiling them just to get another chance to secure a conviction is an obvious abuse of a system that's already severely compromised. That the state actually thought this might work says more about the system itself than the moral turpitude of the prosecutors.

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Posted on Techdirt - 29 September 2015 @ 2:43pm

Inspector General Says Postal Service Surveillance Program Being Handled Just About As Well As You'd Expect

from the just-another-ho-hum-day-of-bulk-surveillance dept

The US Postal Service has long been the Little Surveillance Agency That Time Forgot. For more than a decade, it has scanned every piece of mail it handles. Its "Mail Isolation and Tracking Control" program went into effect in response to post-9/11 anthrax mailings.

Prior to 2001, it only collected mail data on request. Post-2001, it's much more proactive. The problem with untargeted surveillance efforts is that they dehumanize the millions of people whose mail is scanned on a daily basis. This leads directly to the sort of behavior uncovered by the USPS's Inspector General. When you don't care about your "customers," your work gets sloppy.

These are the safeguards the Post Office has put in place to protect personal information and ensure accountability.

The Postal Inspection Service’s Criminal Investigations Service Center (CISC), the primary administrator of the mail covers program, is responsible for maintaining accountable mail cover documents and Postal Service (PS) Forms 2008 and 2009. PS Form 2008, Letter of Instruction, provides guidance for completing, returning, and safeguarding mail covers. PS Form 2009, Information Regarding Mail Matter, is used to record information from the outside of the mailpiece, such as the sender’s name and address. These forms contain information such as names, addresses, and financial institutions that, if used in the aggregate, could reveal personally identifiable information.
Here's what the Inspector General discovered. First off, the USPS isn't compiling its accountability paperwork (the PS forms listed above) in a timely fashion. The paperwork must be sent to the CISC within 60 days of the termination of the mail cover request. For external orders, the forms are supposed to be returned by the law enforcement agency making the request. For internal orders, the forms are handled solely by USPS personnel. The same 60-day time limit applies.
We found that Postal Service personnel or external law enforcement agencies did not return accountable documents for 49 of 75 files (65 percent). As of the date of this review, PS Forms 2009 and 2008 were unaccounted for up to 762 days beyond the mail cover period. We also found accountable documents for 16 mail cover files judgmentally selected from FY 2015 were not returned timely, not returned at all, or not retained in the mail cover file.
To add to the problem, the postal employees were closing files despite not having obtained all of the required paperwork.
Postal Inspection Service personnel closed 79 of 120 mail cover files (66 percent) during FYs 2012 through 2014 without PS Forms 2009 being returned… Fifty-one of the 79 mail covers involved preliminary investigations (known as area cases) and the postal inspectors should have returned the documents within 60 days of the end of the mail cover period. For the remaining 28 mail covers, postal inspectors should have returned PS Forms 2009 before CISC officials closed the mail cover files or before the postal inspector closed the investigation.
Not only were the investigative files improperly handled, but in-process mail-scanning orders were treated with a similarly cavalier attitude, exposing personal information related to targeted individuals.
During our visit to a facility in the Chicago District, we observed PS Forms 2008, which had the subject’s name and address posted, on the carrier’s casing station. We also found a mail cover request on the supervisor’s desk, which is on the workroom floor and visible to all employees. The manager stated that the supervisor posted the PS Forms 2008 on the carrier’s casing station as a reminder to perform the mail cover.

When not leaving sensitive documents lying around, supervisors were making up their own rules.
[A]t a facility in the Los Angeles District, a mail cover request was approved for one subject; however, the supervisor instructed the carrier to record mail cover information for all persons residing at the address.
And, as if to confirm the "lazy government employee" stereotype, this happened:
During our visit at another facility in the New York District, we found an unopened mail cover request in the inbox attached to the outside of the manager’s office door, where it was accessible to all employees.

That's not even the worst of it.
We also noted the mail cover was dated September 21, 2014, and our visit was 129 days past the [order's] end date. The manager stated he was not aware that the mail cover request was in his inbox…
It's not really an "inbox" then, is it? It's a black hole. Or a trashcan. Or a happy place where mail cover orders go to escape from the harsh reality of being executed in a timely fashion.

What appears to be a program of massive scope but limited use (if you don't want the government tracking your communications/packages, it seems unlikely you'd use a government agency for delivery) is apparently treated as just another tedious part of the job by USPS personnel -- a job very few want to do correctly, if at all.

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Posted on Techdirt - 29 September 2015 @ 8:18am

UN Broadband Commission Releases Questionable Report On 'Cyber Violence' Against Women

from the wherein-the-problem's-solutions-are-problems-themselves dept

The UN's Broadband Commission has just released a report on "Cyber Violence Against Women and Girls." That this has been put together by the Broadband Commission rather than something more directly related to either law enforcement or human rights should be the first warning flag. This indicates the UN feels the responsibility for "cyber violence" should be borne by ISPs and social media platforms, rather than those actually committing the acts detailed in the report.

Ken White at Popehat has written a long and thoughtful piece on the report that's well worth reading, even with his admission that he may cut the authors of the document too much slack. White discusses what's wrong with the Commission's aims, using the presupposition that its assertions about "cyber violence" towards women are true. Even granting the Commission this generous benefit of a doubt, there's still a lot that's worrying about the Commission's proposals and assumptions.

Perhaps the biggest concern is that the UN is behind it. While the concept of the United Nations is noble, the execution has been an ongoing disaster. The governing body has been far too willing to humor the whims and predilections of countries whose track records on speech and human rights are generally abysmal. This is the unavoidable outcome of "uniting" disparate nations. Because there's no way to please everyone, the UN has settled for a grade school-esque "everybody gets a turn" fairness. That leads directly to this sort of thing:

I don't trust the UN on free speech issues. You shouldn't either. In a world where Iran wins a seat on the UN's Commission on the Status of Women, people who care about women's rights should also be skeptical. Pro-censorship forces continually pressure the UN for international laws and norms restricting speech — for instance by demanding laws outlawing blasphemy. Allow me some unabashed American exceptionalism: that's a bad thing. The United States' vigorous approach to protecting free speech and rejecting blasphemy laws is good, and foreign norms that encourage blasphemy laws often used to persecute religious and ethnic minorities are bad.
No one should want the UN to take up this battle. Those looking to see free speech respected won't find much to like about the UN's involvement. Countries where actual violence is routinely perpetrated against women, along with cultural oppression, won't be talked into a national change of heart just because the UN has decided to shelter women from online violence. ISPs aren't going to be receptive to additional directives that require them to more heavily police their users, especially when the targeted content isn't as easy to recognize and curtail as the report makes it appear.

The Commission's report also ignores the obvious in its desire to right the internet's wrongs: laws are already in place to deal with much of the "cyber violence" the commission aims to prevent. The report lists six areas where women are subjected to "cyber violence," almost all of which are already addressed by criminal and civil statutes.
Surveillance/Tracking (i.e., stalking)
Recruitment (sex trafficking)
Malicious Distribution (defamation, revenge porn, etc.)
This isn't to say that legal systems already in place are handling the digital version of these criminal and civil violations perfectly. They aren't. We only need to look at sexting prosecutions to get a general idea of how badly this goes when laws written to serve a different purpose are stretched to address unforeseen modes of behavior.

But the solution isn't the construction of an entirely new legal framework, especially not one built on the assumption that "cyber violence" is equivalent to physical violence. We've similarly seen the disastrous results of laws written solely to address new issues like cyberbullying and revenge porn. The former tends to replace actual harm and malicious intent with highly-subjective measurements. The latter tends to criminalize acts that aren't revenge porn, thanks to sloppy wording and legislative grandstanding.

There may be some measured steps that could be taken to mitigate the problems the Commission is targeting, but the wording contained in the report strongly suggests a measured approach isn't what the Commission has in mind.
[R]hetorically, the report advocates a "zero tolerance for violence against women" mantra. I understand and share the anti-violence sentiment, but experience teaches that framing a response to a problem as "zero tolerance" leads to terrible results. That's not a problem with "women's issues," it's a problem with any perceived social ill. Telling people to take a "zero tolerance" approach effectively tells them to suspend critical judgment when addressing a problem. It doesn't lead to treating a problem seriously; it leads to treating a problem anxiously. When applied to something as complicated as the internet, that's potentially disastrous.
The report suggests "partnerships" between private industry and governing bodies, something that never works out well. The Commission hesitates to advocate government censorship, but does so disingenuously by suggesting that "voluntary" measures enacted under pressure from multiple governments are actually still voluntary. And it completely ignores the fact that any such systems put into place will be gamed immediately by the people they're meant to target, along with any number of trolls that game systems simply to game systems.

It also attempts to shoehorn in the unproven claim that video game violence leads to actual violence and does so citing perhaps the worst "source" available -- an article that leads off by quoting Lyndon Larouche uncritically.
It is the “New Violence,” as Democratic Presidential pre-candidate Lyndon LaRouche was the first to precisely characterize it at the time. It is the use of Nintendo-style games, and related means, to transform young children and adolescents, as well as law-enforcement personnel into “Samurai”-style programmed killers.
That's not the quote that makes it into the report. What it does quote is almost innocuous compared to the content surrounding it.
There is widespread representation of VAWG in mainstream culture, including in contemporary and popular music, movies, the gaming industry and the general portrayal of women in popular media. Recent research on how violent video games are turning children, mostly boys, into ‘killing zombies’ are also a part of mainstreaming violence. And while the presentation and analysis of this research is beyond the scope of this paper, the links to the core roots of the problem are very much in evidence and cannot be overlooked.
To call this alarmist screed "research" is beyond laughable. Even if you can somehow accept the assertion that violent video games are crafting a generation of "killing zombies," you're left with with the author's other assertions, which veer off into inadvertent satire.
Nintendo of America, Inc.: Manufactures Pokémon, Game-Boys, and equipment for satanic video games.


Hasbro Interactive: Official U.S. distributor of Pokémon (abbreviation for “Pocket Monsters”), the killing game designed for toddlers beginning at 2 and 3 years old; Dungeons and Dragons, the medieval satanic and magic fantasy game; Risk II, a “ruthless quest for world domination".
The report also quotes a report on harassment of Indian women via WhatsApp (with cited URL actually being a file path on some UN's employees C: drive). The report itself notes that the study was severely limited and that "no sweeping generalizations should be made." The Broadband Commission apparently failed to read that part of the report.
The use of WhatsApp instant messaging, for example, has become, according to some reports, the latest harassment tool of choice in countries like India and Malaysia, and increasingly around the world.
Diving into every citation would likely uncover more problems in the assumptions drawn by the Broadband Council. (For instance, the Pew report quoted in the paper conveniently ignores the research center's finding that men experience online harassment more often than women, although they are less likely to be sexually harassed or stalked.) Even if the sources were impeccable, the Commission's ultimate goals would still be questionable.

A governing body that grants far too much deference to countries that abuse their own population thinks it can clean up the internet. There are few direct attacks on free speech in the report, but that's probably more due to the UN's restricted definition of free speech ("Freedoms of expression should be and must be guaranteed and protected, when they are used for common justice, common purpose…") than the Commission's concerns about undue limits on expression.

Even if you firmly agree with the report's assertion that "cyber violence" disproportionately affects women and that new measures need to be put in place to rein this in, you can't -- in good conscience -- applaud the UN's involvement. This is a governing body that routinely turns a blind eye to physical violence targeting women and allows countries with atrocious human rights records to guide policy decisions. This sort of issue cannot be solved with blanket directives issued by a governing body that is routinely ignored by its member states and whose deference to even the worst "stakeholders" continually undercuts the ideals it claims to promote.

UPDATE: Ken White has written a follow-up piece stating that he was wrong to cut the UN Broadband Commission's report as much slack as he did the first time around.

First off, he points out how dangerous this could be, considering it's the Broadband Commission that's behind this report. As he notes, there are several authoritarian regimes fighting for more control of the internet -- which of course means more control of their citizens. A set of internet rules handed down by the UN will be leveraged against their weakest citizens and misused to shut down dissent, no matter how noble the original goal.

He also points out that the quote pulled from the Lyndon Larouche-touting anti-videogame screed almost singlehandedly undercuts the credibility of the entire report. It's just that bad.
This is the equivalent of submitting a serious proposal to Congress advocating for changes in the federal budget and, for the proposition that the NASA budget should be reduced, linking to sites that claim that the moon landing was faked.
Some may point out it's a single citation, from which only a few words were pulled. But this seems to indicate there are other media forms the UN would like to control.
One bad citation wouldn't normally destroy the credibility of an entire report. If any one can, this one does. It's used to support a drop-in that violent movies and video games are something the UN might want to look at. It is so freakishly inappropriate that I can only imagine four scenarios: (1) there are no sensible people involved in the preparation and approval of the report, (2) any sensible people involved with the report did not read the report any more carefully than I did, (3) the people behind the report believe this Jack Thompson/Tipper Gore/Jack Chick malarkey, or (4) the people behind the report don't particularly care about the reliability of the sources for their pronouncements.
White also spends more time discussing the Commission's problematic definition of "cyber violence," which seems to be about evenly split between things that aren't actual violence and things that are already criminal acts in most countries. This is where the report is the most dangerous. It's attempting to leverage vague wording and foregone conclusions to grant the UN increased speech-policing powers -- an idea no one should be in a hurry to support.

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Posted on Techdirt - 29 September 2015 @ 6:19am

DRM Still Breaking Games Nearly A Decade After Purchase

from the call-it-what-it-really-is:-gaping-security-holes dept

About a month ago, Microsoft's Boris Schneider-Johne explained that -- along with everything else Windows 10 was bringing to the party (privacy invasion, blocking of pirated software) -- it would also be bricking certain paid-for software. Two early -- and much-hated -- forms of DRM just simply didn't play nice with the new operating system: SecuROM and Safedisc.

"Everything that ran in Windows 7 should also run in Windows 10," said Johne, "There are just two silly exceptions: antivirus software, and stuff that’s deeply embedded into the system needs updating—but the developers are on it already—and then there are old games on CD-ROM that have DRM. This DRM stuff is also deeply embedded in your system, and that’s where Windows 10 says, 'Sorry, we cannot allow that, because that would be a possible loophole for computer viruses.' That’s why there are a couple of games from 2003-2008 with SecuROM, etc. that simply don’t run without a no-CD patch or some such."
This was great news for purchasers of these games, who had already been screwed once by the inclusion of DRM. Now, the DRM is considered a security flaw and their older games would no longer be playable on a computer running Windows 10. The purposefully-flawed software "protected" software companies from piracy (well, not really...) but left paying purchasers exposed.

The problem continues. As Microsoft seeks to seal more security holes, it's patching up earlier versions of its OS. So, people using older operating systems -- and playing even older games -- are now going to find their purchased software similarly useless.
A recent security patch released this month, MS15-097 Vulnerabilities in Microsoft Graphics Component Could Allow Remote Code Execution, breaks computer games that rely on the DRM system Safedisc on Microsoft's Windows Vista, Windows 7 and Windows 8 operating system.

Games that rely on Safedisc include the Age of Empire series, Battlefield 1942, Civilization 3, various Command and Conquer games or Microsoft Flight Simulator. These are all old games released more than 10 years ago but still playable on modern systems.
Microsoft has been so kind as to post a workaround that uses the Command Prompt to open/close the insecure driver to allow the games to be played. This workaround can also be applied permanently, but Microsoft recommends against this because it also re-opens the security hole permanently. And, once again, it's the paying customers who no longer have access -- or at least easy access -- to their purchases.

Now, one could argue that the damage done here is minimal. The games are old and very few Windows users will still be playing them. But justifying DRM by claiming it only affects a small number of people is a pretty terrible argument. No one necessarily expects 10-year-old software to adapt flawlessly to new operating systems, but they don't expect to be completely locked out of their purchases by security updates either.

It's not like purchasers expect this sort of behavior from other products they've purchased. A fifty-year-old book can be read just as easily as one printed last week, no matter how much printing technology has advanced over the past five decades. A board game can still be enjoyed years after its purchase, no matter how much game manufacturers would like you to purchase their newer offerings. Software shouldn't be an exception to the rule. But it is, thanks to DRM.

The fact that these two forms of DRM are considered vulnerabilities by the dominant operating system in the PC market says a lot about the software companies' priorities. It's a short-sighted viewpoint that only considers the first few weeks of sales. Anything these companies can do to protect these is considered excusable, even if it makes paying customers unhappy -- either immediately after their purchase, or several years down the road.

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Posted on Techdirt - 28 September 2015 @ 2:54pm

Judge Tells CBP That It Certainly CAN Be Sued For Its FOIA Response Foot Dragging

from the there's-a-reason-the-CBP-is-rarely-the-'moving'-party-in-FOIA-lawsui dept

Customs and Border Patrol, like many government agencies involved with law enforcement and/or security, isn't all that thrilled that Joe Citizen can demand access to its records. When not dragging its feet on requests, the agency actively thwarts FOIA requests, albeit using more than the normal "so sue us" non-response.

The DHS's Inspector General found that over a three-year period (2011-13), the CBP "mishandled" 23,000 FOIA requests. "Mishandled" is a misnomer. The agency improperly closed 11,000 requests. The other 12,000 requests were stashed in boxes and forgotten, never making their way into the CBP's FOIA response system.

A class action lawsuit has been brought against the agency for its "pattern and practice of failing to respond to FOIA requests within the statutory timeline." The plaintiffs are five immigration attorneys and thirteen non-citizens, the latter of which have found it difficult to remain in the country legally thanks to the CBP's unwillingness to turn over documents pertaining to their immigration status. (via Courthouse New Service)

The order notes that the CBP does not challenge the assertion that it doesn't respond in a timely fashion. But, as the plaintiffs point out, this is a problem that the CBP doesn't seem to be interested in solving. As it stands now, it's unlikely the CBP will get its FOIA act together. At least not in the near future. Or possibly ever.

CBP does not seriously dispute that it has failed to respond to plaintiffs’ FOIA requests within the statutory timelines. See, e.g., Dkt. No. 29 at 2 n.1. Plaintiffs also allege that CBP’s FOIA backlog -- the number of requests that have gone unanswered past the statutory deadline -- has swelled over the last few years and will require almost 10 years to zero out at the current pace.
While the CBP doesn't dispute the accusations of consistently tardy responses, it does make the dubious assertion that a pattern of late (or nonexistent) responses just isn't an actionable injury in the context of a class action suit.

No sale.
The government says that the case should be dismissed because an agency’s failure to meet the response deadline is not an actionable violation of FOIA. Dkt. No. 26 at 4. That argument is wholly at odds with the statute and cases construing it. FOIA’s intended purpose is to assure timely public access to governmental information and records. As Congress stated, “‘[i]nformation is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial.’” Gilmore v. U.S. Dep’t of Energy. The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent.
If the people the law is supposed to serve are going to be granted an opportunity to seek redress for their grievances, than you'd better believe FOIA-related foot dragging is actionable -- no matter how much the CBP wishes that weren't the case.
The government grudgingly acknowledges that “[s]ome Northern District of California decisions have recognized claims for delay in responding to FOIA requests” -- which of course overlooks the decisions outside this District that reach the same conclusion -- but urges the Court to discount them because they pre-date the District of Columbia Circuit opinion in CREW. In the government’s view, CREW undercuts these cases because it holds that the failure to meet FOIA’s deadlines has no legal consequence other than “an agency’s forfeiture of the exhaustion of administrative remedies defense.”
The CBP could not be more wrong, says Judge James Donato.
This argument is tantamount to a willful misreading of CREW. The case says nothing at all about the vitality of a FOIA claim based on a violation of the response deadline. The sole “question presented” in CREW “concerns when a FOIA requester must exhaust administrative appeal remedies before filing suit.” CREW held that when an agency fails to respond to a FOIA request within the statutory timeline, it cannot invoke an administrative exhaustion argument to keep cases out of court.
The government also argues the plaintiffs have no standing because their accusations require "specific allegations of future harm." Again, Judge Donato points out the error in its thinking.
Once again, CBP’s position is bereft of support. It does not cite a single case holding that specific allegations of futurity are essential to a pattern and practice claim or standing under FOIA. To the contrary, several cases have allowed pattern and practice claims for unreasonable delay -- and recognized a plaintiff’s standing to bring them -- “even where the plaintiff’s FOIA request had already been resolved.” Gilmore, 33 F. Supp. 2d at 1186 (and cases cited therein).
In Payne itself, the case on which CBP hangs its hat, the court sustained a claim for undue delay despite the fact that the agency had released the specific documents that prompted the lawsuit. And even if allegations of future harm were required, plaintiffs have stated enough facts to infer it here. Plaintiffs include several immigration attorneys, some of whom have practiced for decades, who “regularly file[]” FOIA requests on behalf of their clients. It is more than plausible to infer that they will continue to make regular FOIA requests for the CBP documents that are critical for their work, and continue to experience improper delays.
The plaintiffs haven't actually been handed a win here, but rather survived a motion to dismiss from the government. But the court's reading of the government's arguments here show it's not too impressed with the CBP's excuses for its miserable track record on FOIA responses.

The most disheartening aspect of this lawsuit, however, is contained in the plaintiffs' complaint. The CBP's delaying tactics have generated a 10-year backlog of unanswered requests. That backlog will only continue to grow as more and more people avail themselves of FOIA tools provided by the government. The government has opened up the process and made it more accessible, but has yet to fix the bottlenecks in the system -- recalcitrant agencies and/or those that are simply understaffed. The problem will continue, as will the lawsuits, for the foreseeable future, no matter the outcome of this particular case.

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Posted on Techdirt - 28 September 2015 @ 12:38pm

71% Of Americans Oppose Civil Asset Forfeiture. Too Bad Their Representatives Don't Care.

from the the-power-of-people,-bottlenecked dept

According to a YouGov/Huffington Post poll, 71% of Americans are opposed to civil asset forfeiture.

Too bad their opinion doesn't matter. This is part of the problem.

Most Americans haven't even heard of civil asset forfeiture. This is why the programs have run unchallenged for so many years. An uninformed electorate isn't a vehicle for change. This issue is still a long way away from critical mass.

Without critical mass, there's little chance those who profit from it will lose their power over state and federal legislatures. Forfeiture programs are under more scrutiny these days, but attempts to roll back these powers, or introduce conviction requirements, have been met with resistance from law enforcement agencies and police unions -- entities whose opinions are generally respected far more than the public's.

California's attempt to institute a conviction requirement met with pushback from a unified front of law enforcement groups. Despite nearly unanimous support by legislators, the bill didn't survive the law enforcement lobby's last-minute blitz. They also had assistance from the Department of Justice, which pointed out how much money agencies would be giving up by effectively cutting off their connection with federal agencies if the bill was passed.

Meanwhile, Michigan lawmakers have gathered unanimous support of asset forfeiture reform, but are not introducing a conviction requirement. This will make the bill more palatable for law enforcement, as it only raises the bar from a "preponderance of evidence" to "clear and convincing evidence" that seized property is linked to criminal activity. It would also make it a little easier for citizens to fight for the return of seized property if not charged with any crimes.

A reform bill introduced in Texas died an unceremonious death back in April when the committee chairman refused to move the legislation along until more concessions to law enforcement interests were made. The legislator who introduced the bill refused to budge and the bill was killed off.

Virginia's attempt to add a conviction requirement was similarly killed off by a legislative committee, despite nearly universal support from other legislators. The Senate Finance Committe claimed the State Crime Commission needed to examine the issue first, which will buy those opposed to reform at least another year to shore up their defenses.

Wyoming's governor vetoed an asset forfeiture reform bill, claiming the seizure of property without securing convictions was "important" and "right."

On the bright side, Montana and New Mexico have both enacted forfeiture reform. Montana introduced a conviction requirement and New Mexico went even further, eliminating civil asset forfeiture altogether. (Property can only be seized in criminal cases.)

But as for the rest of the nation, there has been little movement on asset forfeiture reform. Utah -- a state that overhauled its forfeiture system 15 years ago -- rolled those reforms back just as national scrutiny was increasing. A broader movement for reform seems unlikely when less than a third of the nation is even aware of these programs.

Even if awareness increases, legislators at the top end of the food chain are more interested in appeasing law enforcement agencies and prosecutors than pushing through reform bills that arrive on their desks with nearly unanimous support. Informing the electorate may put better people in office, but it won't change the mindset that almost always believes law enforcement knows best.

This problem is compounded when the law enforcement lobby starts complaining about the budgetary shortfalls reform efforts will create. If they aren't allowed to seize anything for any reason, they won't be able to buy the things they want or offset the costs generated by their seizure efforts. Any state strapped for cash -- and that's most of them -- will be hesitant to pick up the tab for "lost" revenue.

It all adds up to little forward motion. The public may be displeased with the status quo, but the status quo has paid off so much for so long, those with the power to motivate politicians won't be in any hurry to give up their forfeiture programs.

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Posted on Techdirt - 28 September 2015 @ 10:34am

Australian Government Warns That Alternative Rock, Teenage Rebellion Could Lead To Radicalization

from the but-what-of-dubstep? dept

The Australian government is fighting back against the unrelenting terrorist threat that threatens to consume every Western nation. It, too, has noticed that youngsters and their SnapChats are particularly prone to radicalization from outside forces. As Richard Chirgwin of the Register points out, it has chosen to address this threat to Australian society in the way only a government agency can: with a blend of the bizarre and the tone deaf.

Launched this week by justice minister Michael Keenan (who also glories in the title Minister Assisting the Prime Minister on Terrorism), the Radicalisation Awareness Kit is supposed to help school teachers identify which of their students is going to enter the adult world with a penchant for bomb-throwing.
Cue the cheery faces of unradicalized youth:

The 32-page booklet starts with a long definition of radlicalization, hedged by warnings that not every diversion from the mainstream will result in violence. Then it heads into a series of "case studies" that indicate every deviation from societal norms is a warning sign of impending unlawfulness.

The case studies are the best kind of hilarious: inadvertent.

"Erin" joined a "hate group" and committed crimes against Muslims. After a stay in jail and laying off the booze, "Erin" turned her life around. Not completely, but it's a start.
It is now a number of years since she left the group and Erin has sought treatment for her depression, reconciled with her family, is studying and has made some new friends. However, it was a difficult and slow process. She has moderated her beliefs significantly and makes a point of educating herself on issues rather than just accepting what others tell her. She does not entirely trust the government or police yet – it takes a long time to change some habits of thinking.
If nothing else, this fabricated tale shows the government to be overly-concerned about its place in the world. "Erin" is still partly broken because she doesn't "entirely" trust the government or police. What a shame. But it is hoped "Erin" will be made whole in the near future -- full of trust in the government and prone to only tempered beliefs.

But that's not the worst of it. Much like the Homeland Security Advisor's ridiculous claim that teens acting like teens pose a threat to national security, the Australian government's concerns about future radicalization are also tied to the hallmarks of adolescence.

As Richard Chirgwin points out, the radicalization anecdotes reach their nadir with the story of "Karen," starting with setting these ground rules for Normal Existence.
Karen grew up in a loving family who never participated in activism of any sort.
This is called foreshadowing. Karen soon deviates from her family's path of loving do-nothingness.
When she moved out of home to attend university Karen became involved in the alternative music scene, student politics and left-wing activism.
And there you have it: alternative music is the gateway drug to terrorism. As is politics, oddly enough, considering this narrative has been written by a political agency. And let's not forget the activism -- the kind of thing her normcore family never felt compelled to participate in.

Strangely, the government chalks this up to "normal teenage rebellion" before going on to warn parents about normal teenage rebellion.
One afternoon Karen attended an environmental protest with some of her friends. It was exhilarating, fun and she felt like she was doing the ‘right thing’ for society. She enjoyed spending time with this crowd. Over the next six months Karen progressively dropped out of university in order to live full-time in a forest camp, where she remained for a year. Her family were confused and disappointed and stopped supporting her financially.

You can guess what happened next. Logging operations were screwed with, Karen was arrested multiple times and, finally, she became disillusioned with her radical brethren and sistren. She chucked it all for a staid job at a "mainstream environmentalist organization." Happy endings all around, especially for Karen, who now realized the only way to fight the system was to become part of the system.
She now thinks illegal or aggressive direct-action campaigns only produce short-term solutions, and she is much more interested in working towards developing a sustainable solution using the legal system.
The warning signs the government says to look for are basically A Day in the Life of a Teen.
Issues that can help push someone onto a path of radicalisation may include:

• changes in living or employment
• anxiety, depression, paranoia, suicidal thoughts or other mental health issues
• personal issues such as health problems, addiction, anger or social problems
• dropping out of school or university
• negative changes in friendships and/ or personal relationships
• confrontations with family members
• discrimination and social unfairness
• exposure to hateful attitudes and actions, either as victim or perpetrator, and
• overseas events that may harm their community.
Now, the report does go on to caution that these are normal and don't necessarily signify Early Onset Radicalization. However, the report does make it clear -- especially through its anecdotal evidence -- that these can lead to radicalization when combined with activism, alternative music and an apparently unearned distrust for the government.

Perhaps sensing the sort of response this document might generate, the hefty propaganda leaflet also makes an effort to assure Australians that ASIO (the MI5/FBI of Down Under) is not allowed to crack down on radicalization warning signs -- at least not without going through the pre-lubed proper channels.
There are concerns that ASIO has extraordinary and unaccountable power. A review by the Independent National Security Legislation Monitor has found that ASIO’s powers have been used appropriately and effectively, with no evidence of abuses. As at November 2014, ASIO has not used its powers to detain anyone at all, and has used its questioning powers only 16 times since 9/11.

These questionable anecdotes notwithstanding, the document takes a fairly restrained look at radicalization and its causes. But the nuances of its more cautious wording are undercut by stories that equate trusting your government and steering away from activism with normality, not-so-subtly suggesting any deviations from the norm should be viewed with suspicion.

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Posted on Techdirt - 28 September 2015 @ 8:03am

Court Says Fifth Amendment Covers Smartphone Passcodes, But It's Hardly A Victory For Constitutional Rights

from the blueprint-for-fifth-amendment-evasion-currently-in-progress dept

A recent opinion issued in a prosecution by the Securities and Exchange Commission seems to indicate the government can't force members of the public to hand over passwords without violating the Fifth Amendment. But the details suggest something else: that this is limited to a very specific set of circumstances and is not in any way precedential, at least not at this point.

The courts have previously weighed in on the legality of forcing people to basically provide incriminating evidence against themselves through the compelled relinquishment of passwords. Back in 2013, a magistrate judge rejected an order compelling a defendant to decrypt a seized hard drive by providing the government with his password. A year later, the Massachusetts Supreme Court came to the opposite conclusion: that the compelled production of passwords did not have Fifth Amendment implications.

The DOJ has argued that it does have the right to demand passwords to unlock seized items and actually found a judge that agreed with it. In that case, the court found that unlocking a device was no different than producing documents at the government's request -- distancing it from the "compelled speech" against a person's own interests that the Fifth Amendment is supposed to guard against.

This case falls along those same lines, but the legal conclusions are a bit different.

The Securities and Exchange Commission (SEC) is investigating Bonan and Nan Huang for insider trading. The two worked at the credit card company Capital One as data analysts. According to the complaint, the two allegedly used their jobs as data analysts to figure out sales trends at major U.S. companies and to trade stocks in those companies ahead of announced company earnings. According to the SEC, they turned a $150,000 investment into $2.8 million.

Capital One let its employees use company-owned smartphones for work. Every employee picked his own passcode, and for security reasons did not share the passcode with Capital One. When Capital One fired the defendants, the defendants returned their phones. Later, as part of the investigation, Capital One turned over the phones to the SEC. The SEC now wants to access the phones because it believes evidence of insider trading is stored inside them.
But here’s the problem: The SEC can’t get in. Neither can Capital One. Only the defendants know the passcodes. And the defendants have refused to disclose them. As much as Capital One may want to aid the SEC in prosecuting its former employees, it can't.

The SEC sought an order to compel the production of the passcodes. The suspects refused on Fifth Amendment grounds. This brings us to the tricky details of this case, which suggest it won't become an across-the-board Fifth Amendment-protected "right" to deny the government access to password-protected devices and storage.

The government argued for the compelled production of passwords using the "foregone conclusion" doctrine.
The doctrine, introduced in Fisher v. United States, says that the Fifth Amendment doesn’t block complying with a court order when the testimonial part of complying with a court order is a foregone conclusion. In other words, if the government already knows the testimonial part of complying with the order, and they’re not seeking to prove it from the order, then you can’t use the Fifth Amendment to avoid compliance with the order.
In the government's creative interpretation of the doctrine, the production of passcodes would be no more than the defendants acknowledging they used the phones Capital One supplied them with -- something the government already knows and which has been confirmed by Capital One. Therefore, there are no Fifth Amendment implications. The judge disagreed, correctly pointing out that the government was seeking access to documents possibly contained on the phones, rather than simply seeking to confirm what it already suspected: that the phones were used by the defendants.

By using one thing to achieve another, the government was stretching its "foregone conclusion" to cover any evidence discovered on the unlocked phones. If the defendants have reason to believe incriminating documents resided on those phones, they are well within their Fifth Amendment rights to refuse the government's request. Or so you would think.

Should the SEC ultimately succeed with this interpretation of the "foregone conclusion" doctrine, it will have compelled incriminating testimony. It claims that it's merely seeking to confirm ownership by seeing if the passcodes unlock the phones. But once they're unlocked, it can compel the production of documents. Should these prove to be incriminating, it already has the defendants' admissions that these are their cell phones.

So, this case is less about securing Fifth Amendment rights than the government exploring options on how to obtain permission to compel defendants to hand over access to possibly incriminating information. If the court holds firm in its view of the government's true aims, it will be a small win for constitutional rights but one unlikely to be applied broadly.

As Orin Kerr points out in a second post on the case, some unanswered questions point towards the government being able to successfully argue that simply providing a password to a locked device isn't self-incriminating testimony.
If this analysis is right, then the password is incriminating because it provides a link to the evidence. The government could grant the defendants immunity, but it would need to be use and derivative use immunity — that is, immunity not just from the actual testimony but from what the testimony would reveal.See Counselman v. Hitchcock, 142 U.S. 547, 585 (1892). The defendants should win. That’s where Jonathan comes out, and it might be correct.

But I’m not sure. Here’s my question: Does the “link in the chain” test include a merely causal link — that is, a link in the chain to the evidence? Or does “link in the chain” mean that the testimony was part of the evidence of guilt but not enough to prove the entire offense — that is, a link within the body of evidence? If testimony is solely of value for its causal connection to evidence, and it has no evidentiary value itself, is the testimony incriminating?
If the government can argue that compelled production of passwords that leads to the discovery of incriminating material is merely causal (rather than the password itself being evidence of guilt), it may be able to skirt the Fifth Amendment entirely. This has obvious implications in the ongoing law enforcement war on encryption. With no firmly established legal footing for the argument that demanding passwords violates the Fifth Amendment, password-protected encryption will be ultimately no more safe than leaving everything unlocked and in plaintext.

So, while the court has -- for the moment -- denied the government's request to compel the production of passwords, the underlying legal entanglements don't exactly bode well for the future of the Fifth Amendment.

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Posted on Techdirt - 28 September 2015 @ 5:53am

In The Post-Ferguson World, Cops Are Now Victims And It's The Public That's Going To Pay The Price

from the meanwhile,-cops'-death-rate-remains-envy-of-loggers-everywhere dept

There's a new narrative out there -- one that's being repeated by campaigning politicians and buttressed by fearful news reports. Apparently, the public has declared war on law enforcement. Each shooting of a police officer is presented as evidence that it's open season on cops. Officers aren't simply killed. They're "targeted." The problem is, the stats don't back this up.

Radley Balko has posted a very thorough examination of actual statistics pertaining to officers killed (or assaulted) in the line of duty, and there's not a single stat that agrees with these assertions.

So let’s go through the numbers. Again. So far, 2015 is on pace to see 35 felonious killings of police officers. If that pace holds, this year would end with the second lowest number of murdered cops in decades. Here’s a graph depicting annual killings of cops with firearms from Mark A. Perry at the American Enterprise Institute:

No matter how you choose to slice the stats, none of them add up to a spike in murdered police officers. But you can cherry pick a number to make it seem worse than it actually is, like many pushing this point of view have.
[W]hen police advocates say that 2014 saw an 80+ percent increase in homicides of cops over 2013, remember a few things: First, 2013 wasn’t just an all-time low, it was an all-time low by a significant margin. Second, the 2013 figure was so low that even a small increase will look large when expressed as a percentage. Third, the figure for the following year, 2014, (51 officers killed) was essentially consistent with the average for the previous five years (50 killed), and still lower than any five-year average going back to 1960. (See this graph, also from Wang.) Fourth, again, 2015 is on pace (35 killings) to be lower than any year but 2013.
On the other hand, the killing of citizens by cops remains pretty much unchanged. Statistics are hard to come by, considering the FBI and DOJ haven't exactly been on top of collecting this data. Crowd-sourced information puts this year's killings at 817 as of September 13th. Last year, 1106 members of the public were killed by police officers. From May-December of 2013, 768 people were killed. And yet, there is no War on the Public or at least nothing that has been formally declared by pundits and politicians.

By espousing this narrative of increased unchecked aggression against police officers, those making these claims are making things even more dangerous for citizens and law enforcement.
When cops are constantly told that they’re under constant fire, or that every interaction with a citizen could be their last, or that they’re fortunate each time they come home from the job in one piece, it’s absolute poison for police-community relations. That kind of reminder on a regular basis would put anyone on edge. We’re putting police officers in a perpetually combative mindset that psychologically isolates them from the communities they serve.
This would be a problem even if the narrative were true. But it's much worse when the assertion is provably false.

What is true, however, is that the public's respect of law enforcement is eroding. In some communities, this trust was never there. Recent events like the killing of Michael Brown in Ferguson, MO and Eric Garner in New York City (along with Freddie Gray in Baltimore, etc.) have brought this to the surface.

A Gallup poll notes that current confidence in law enforcement has tied a 22-year low, with just 52% of the population stating they trust police officers. But the variations are small across the last two decades, maxing out at only 64%. Minority groups have experienced the lowest amount of overall change, largely because many have never trusted law enforcement.

The distrust seems more significant now because the public has far more outlets to express their displeasure. Twenty-two years ago, it would have been left to the odd protest and letters to editor. Now, it's everywhere, all the time. No wonder cops feels they're under fire. They've never had to deal with this level of pervasive criticism.

But for all the anger directed at law enforcement, there's been no spike in violence against police officers. This misconception stems from the same source: multiple expressive outlets for police officers and those who support them -- far more than have ever been available to the public historically. Additional criticism coming from unexpected sources -- prosecutors and politicians -- has caught law enforcement by surprise. They've been cut a lot of slack over the years but they're now finally seeing a bit of tension in their leads. This doesn't make their job any easier and it leads to additional resentment. But officers can't take it out on those up top, so it's everyone else on the bottom that pays the price.

So, a perceived war on cops will continue to be met with an unofficial war on the public. And, because we'll be able to witness more of this unofficial war, thanks to everyone (including police officers) wielding cameras, the public's faith in its public servants will continue to erode. Rather than being a source of strength in their communities, cops are now acting like victims. In this mindset, anything less than full, polite compliance will more frequently be greeted with shows of force, setting everyone up for a spin on the vicious cycle.

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