Posted on Techdirt - 3 March 2015 @ 9:00pm
With the abuses of asset forfeiture being loudly publicized, there has (finally) been some legislative pushback against these abusive programs. Wyoming's legislators -- hoping to institute asset forfeiture reform -- ran into pushback themselves from the state's governor, who vetoed the popular bill (which passed out of the Senate with an 80-9 vote) when it hit his desk.
Governor Matt Mead explained his reasons for doing so in a letter to the Senate president Phil Nicholas. According to Mead, he didn't agree that Wyoming has an asset forfeiture problem and saw no reason to curtail a program that is (supposedly) so effective in fighting the Drug War.
Now, while Wyoming hasn't made splashy headlines with bogus busts, it's more likely due to the limited population than better laws or better law enforcement. Mead's letter explaining his veto contains three examples he feels prove Wyoming is better-behaved than most when it comes to separating citizens from their possessions. But none of those are particularly persuasive.
One deals with $17,000 being returned after "procedural safeguards" were ignored. The other two simply assume the seizure of funds was completely justified, even though no corresponding conviction is noted in his explanation.
In one case, a car owner denied knowing whose $327,000 was found in his vehicle. Fully justified, of course, because as Mead explains, the seized funds were spent "to enforce drug laws." In the other case, $415,000 was found in a vehicle being carried on a semi trailer full of vehicles. This, too, was taken and the seizure fully justified because the money was obviously evil in and of itself. Here's Mead's actual sentence explaining what happened to these funds.
"The money was taken out of circulation so it could not be used for other illegal activity."
Stupid money. It's like it's a troubled teen in need of a grounding. "Don't let it out! It will probably just do illegal things!"
Not cited: the "illegal activity" prompting the seizure of the funds in either case.
The reform bill didn't ask for much -- just a conviction to go with every seizure -- but that was still too much for Mead, who still carries inside him the beating heart of a long-term prosecutor
. To him, these means are perfectly acceptable because drugs are a problem. Case closed.
That's likely one of the factors playing into the deployment of his otherwise seldom-used veto power. This is the other: a meeting with the Wyoming Association of Sheriffs and Police Chiefs -- which occurred three days before the veto
Beyond all that, Mead simply believes asset forfeiture is a law enforcement tool that simply cannot be questioned.
I believe civil asset forfeiture is important and it is right.
Too "right" to be even slightly
curtailed by the addition of a small but logical stipulation: a conviction of the assets' owner before the assets can be claimed. Mead prefers the way it's been done for years: assets are presumed guilty, the burden of proof rests on those whose assets have been seized and anything not clearly associated with any criminal activity can still be repurposed to fight the Everlasting War on Drugs.
Wyoming may not have a history of forfeiture abuse, but it makes no sense not to head off a problem before it becomes one. Everything about its current program
lends itself to abuse.
Wyoming has horrible civil forfeiture laws, with an F law grade. The state’s final grade is pulled up to a C only by limited use of equitable sharing (an evasion grade of A) to date. The government can seize and subsequently forfeit property with just probable cause that it is subject to forfeiture. This is the lowest standard, far easier for the government than proving criminal guilt beyond a reasonable doubt. A property owner who wishes to claim an innocent owner defense bears the burden of proof, effectively making owners guilty until proven innocent. All of the proceeds from civil forfeiture are distributed to the state Attorney General’s asset fund. In turn, those funds are used as matching funds for federal drug enforcement grants. Finally, although officials are required to collect information on the use of forfeiture, they did not respond to requests.
Gov. Mead's view of this program is rosy to the point of blindness. But that's the sort of thing we expect from career prosecutors who question very little if anything about the law enforcement under their purview and who wholeheartedly support strong drug enforcement tactics. Mead may not see any abuse occurring, but I get the feeling he's not looking too hard. Considering how low the bar is set in terms of burden of proof, you'd have to do some serious digging to find seizures not
justified by this barely-there requirement. And, considering the funds flow into Mead's former office, I would imagine he's in no hurry to find anything that might threaten the state's revenue stream, or its attendant matching funds grants from the US government.
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Posted on Techdirt - 3 March 2015 @ 2:34pm
We lost one of the "good guys" when Magistrate Judge John Facciola retired late last year. Facciola was a leading figure in the small -- but important -- "Magistrates' Revolt" that emerged in the wake of the Snowden leaks. Multiple times the government approached Facciola for a signature on overly-broad warrants seeking the entire contents of a phone or an email account, only to find the judge unwilling to help it pack for its fishing trip.
More than once, the government was forced to rewrite its requests, and on one memorable occasion, it went "judge shopping" in hopes of obtaining the signature Facciola wouldn't give it, only to be rebuffed by the unamused judge on the opposite coast.
Zoe Tillman of the National Law Journal has a fascinating interview with the retired judge. Facciola was one of the few magistrates who actively attempted to understand the legal nuances inherent to today's interconnected world. According to Facciola, magistrate judges who allow technological advances to pass them by aren't doing the public any favors by not staying current. Law enforcement has moved on, and it's tough to act as a check against overreach if you don't understand the subject matter. The mental image of investigators dusting for fingerprints and tossing suspects' residences is completely outdated. Investigative work now involves -- almost exclusively -- more ethereal methods.
When asked how his job had changed since he took his post in 1997, Facciola responded:
[I]n March 2012, my criminal month, at the end of the month I realized something: I had not issued a warrant or an order for anything that was tactile. Everything I issued was for some form of electronically stored information. Whether it was a Facebook account or cell site information.
You almost look forward to the day when a guy will just want to break a door down and go in and get cocaine. Those days are gone forever apparently.
This would explain law enforcement's outspoken opposition
to any form of electronic encryption. Today's law enforcement agencies seemingly have little stomach for old-fashioned police work. Searching something "tactile," like a suspect's residence, is almost always an afterthought. These agencies would rather dig through every communication they can obtain before they even think
about utilizing methods that have worked for years. (And default mode for today's law enforcement has shifted the approach to physical searches as well. Increasingly, handling the "tactile" means going "tactical" with no-knock warrants, military rifles, full body armor, repurposed mine-resistant vehicles and a hell of a lot of guys shouting contradictory instructions/firing weapons in contradictory directions within moments of the "breach.")
This nearly-exclusive focus on digital searches poses a problem for the magistrates charged with vetting warrants for Constitutionality, not the least of which are the outdated laws and guidelines governing searches of citizens' communications and data. And this can't be fixed by the courts themselves.
[T]he problem is not a judicial one, the problem is Congress has not looked at the Stored Communications Act since 1986. My gosh. 1986. [...] If you look at the opinions about the Stored Communications Act, they are some of the most complicated opinions you will see because it's a classic example of the square peg not fitting in the round hole… There [is] out there a lot of wonderful thinking about how the act could be amended to bring it kicking and screaming into the 21st century. But no movement by Congress. That's deeply troubling.
Not that the judicial system hasn't tried. It's just that the conclusions are still unclear and mainly deal with warrantless searches. The Sixth Circuit Court ruled that email contents are covered
by the Fourth Amendment, contrary to the claims of those who rely on the outdated SCA. The Supreme Court had a chance to weigh the SCA against the Fourth Amendment in 2010, but chose to carefully avoid the subject
. So, if it's to be fixed, it's up to Congress, and there is only a very slim chance that it will be willing to alter a law so thoroughly exploited by law enforcement and intelligence agencies, even given the events of the past couple of years.
Particularization is what's needed in the digital realm, according to Facciola, but that's clearly not what the government wants. It wants to dump peoples' computers and devices on the metaphorical carpet and root through the pile until it finds what it's looking for. (Or, as has happened frequently, find something it wasn't
looking for and pursue that
angle instead/in addition, occasionally necessitating additional warrants.)
Particularized searches of ethereal contents is easier said than done, especially when one half of the parties involved has no interest in limiting its searches. Facciola has suggested searches of this type be handled by the third party that holds the data, but that has been shot down by other judges as "impractical." Facciola additionally suggests wholly separating the search team and the evidence review team (using a "Chinese wall") to help assure the search won't exceed the limitations provided by the warrant. The last resort is still the front line, however.
The third solution… is more careful supervision of the conduct of the search by the magistrate judge.
That's where Facciola fit in. He challenged the government on its broad search requests and forced it to reconsider its tactics. Unfortunately, there's usually been another judge willing to grant
warrants that don't meet the standards of more demanding magistrates.
In his parting comment, Facciola points out that judges aren't the only technologically-resistant participants in the judicial system. Those on the other side of the bench have their issues as well.
We have to get across to lawyers that they really have to read outside of their fields. Every day I read the tech section of The New York Times. I find almost every article has to do with the law. And that's an important thing.
I learned from [a law professor] that — did you know this? — the telephone was in existence for 10 years before lawyers started to use it. They thought it was beneath their dignity. You wondered, did they use the elevator?
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Posted on Techdirt - 3 March 2015 @ 9:24am
A small crack in the FBI's Stingray secrecy has appeared. A 2012 pen register application obtained by the ACLU was previously sealed, but a motion to dismiss the evidence obtained by the device forced it out into the open. Kim Zetter at Wired notes that the application contains a rare admission that Stingray use disrupts cellphone service.
[I]n the newly uncovered document (.pdf)—a warrant application requesting approval to use a stingray—FBI Special Agent Michael A. Scimeca disclosed the disruptive capability to a judge.
“Because of the way, the Mobile Equipment sometimes operates,” Scimeca wrote in his application, “its use has the potential to intermittently disrupt cellular service to a small fraction of Sprint’s wireless customers within its immediate vicinity. Any potential service disruption will be brief and minimized by reasonably limiting the scope and duration of the use of the Mobile Equipment.”
Notably, the application (and the magistrate's approval) do not
refer to the device by any of the common names (Stingray, IMSI catcher, cell tower spoofer, etc.), but rather as "mobile pen register/trap and trace equipment." While it does admit the device will "mimic Sprint's cell towers," it downplays the potential impact of the device's use.
The fact that Stingray devices disrupt cell service isn't new, but an on-the-record admission by law enforcement is. The warrant application claims that numbers unrelated to the ones being sought will be "released" to other cell towers. The unanswered question is how long it takes before this release occurs.
“As each phone tries to connect, [the stingray] will say, ‘I’m really busy right now so go use a different tower. So rather than catching the phone, it will release it,” says Chris Soghoian, chief technologist for the ACLU. “The moment it tries to connect, [the stingray] can reject every single phone” that is not the target phone.
But the stingray may or may not release phones immediately, Soghoian notes, and during this period disruption can occur.
The problem with the so-called "release" is related to the amount of disruption that occurs when the device is used. Advances in cell technology have surpassed the ability of Stingray devices to capture calling info and location data. Upgrades are available and law enforcement agencies are scrambling
to get their cell tower spoofers up-to-date, but the general process still involves "dumbing down" everyone's connection to the least secure and most easily-intercepted connection: 2G.
In order for the kind of stingray used by law enforcement to work, it exploits a vulnerability in the 2G protocol. Phones using 2G don’t authenticate cell towers, which means that a rogue tower can pass itself off as a legitimate cell tower. But because 3G and 4G networks have fixed this vulnerability, the stingray will jam these networks to force nearby phones to downgrade to the vulnerable 2G network to communicate.
If a device is in operation nearby, all
calls that can't find a better connection will be routed to the cell tower spoofer. This means calls won't be connected, texts won't be sent/received and internet service will be knocked offline. While Stingrays are supposed
to allow 911 calls to pass through without interruption, these are far from the only type of "emergency" communications. If the device is deployed for any considerable length of time, citizens completely unrelated to the criminal activity being investigated may find themselves unable to communicate.
And while the targeted number apparently belonged to Sprint, the warrant application notes that all
service providers in the area will be asked to turn over a large amount of subscriber information.
[D]irecting AT&T, T-Mobile U.S.A., Inc., Verizon Wireless, Metro PCS, Sprint-Nextel and any and all other providers of electronic communication service (hereinafter the "Service Providers") to furnish expeditiously real-time location information concerning the Target Facility (including all cell site location information but not including GPS, E-911, or other precise location information) and, not later than five business days after receipt of a request from the Federal Bureau of Investigation, all information about subscriber identity, including the name, address, local and long distance telephone connection records, length of service (including start date) and types of service utilized, telephone or instrument number or other subscriber number or identity, and means and source of payment for such service (including any credit card or bank account number), for all subscribers to all telephone numbers, published and nonpublished, derived from the pen register and trap and trace device during the 60-day period in which the court order is in effect…
This request seems to run contrary to what's asserted earlier in the warrant application, in reference to the Stingray device itself.
In order to achieve the investigative objective (i.e., determining the general location of the Target Facility) in a manner that is the least intrusive, data incidentally acquired from phones other than the Target Facility shall not be recorded and/or retained beyond its use to identify or locate the Target Facility.
It appears there is a "catch-and-release" policy when it comes to Stingray devices, but the FBI's data request to every cell phone service provider in the area contains no such assurances about minimization. Additionally, the request for data on "all subscribers to all telephone numbers" covers a 60-day period, while the use of the tower spoofer is limited to two weeks.
So, not only did the FBI potentially disrupt cell service while searching for the robbery suspects, it also collected a massive amount of data on every subscriber whose phone happened to connect with its fake tower. It's not really "catch-and-release" if additional call/location data on unrelated subscribers is obtained from from other providers. This broad request was granted without question or additional stipulations by the magistrate judge -- the only limitation applied (in a handwritten addition, no less) being that the FBI would not
be able to use the device "in any private place or when they have reason to believe the Target Facility is in a private place." (This falls in line with the FBI's "warrant requirement," which is written in a way that ensures the FBI will never
have to seek a warrant for Stingray use.)
The FBI, along with other law enforcement agencies, has refused to answer questions about the disruptive side effects of Stingray device usage. With the unsealing of this document, their silence no longer matters. These agencies are well aware of these devices' capabilities -- something they're clearly not comfortable discussing. The excuses deployed routinely involve "law enforcement means and methods" and claims about "compromising current and future investigations," but with more heat being applied by the nation's legislators
, this code of silence may finally be broken. The use of these devices -- despite being fully aware that critical communications may be at least temporarily
prevented -- sends a continual implicit message to the public: your safety and well-being is subject
to law enforcement's needs and wants.
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Posted on Techdirt - 2 March 2015 @ 2:40pm
Here's a little bit more evidence to throw on the pile marked "You Don't Need to Destroy the First Amendment/Section 230 to Stop Revenge Porn."
Eric Chanson and Kevin Bollaert, proprietors of the revenge porn site YouGotPosted, are now on the hook for $450,000 each, thanks to a default judgment. This lawsuit rests heavily on the duo's violation of child pornography laws, so it's not a complete win for revenge porn opponents, but it does suggest a way out for minors who find themselves posted on sites operated by similar blights on humanity.
Defendants watermarked sexually explicit photographs of Plaintiff, a minor, with a “You Got Posted” logo and then posted them on the Website, along with identifying information including Plaintiff’s name and state of residence (California). Defendants did not take any steps to verify Plaintiff’s age before posting her photographs. Nor did Defendants obtain Plaintiff’s consent or that of her parents. According to the complaint, Defendants were aware that Plaintiff was a minor and that the images constituted child pornography when they posted the images on the Website. Defendants used Plaintiff’s photographs to advertise the Website and profited from using Plaintiff’s images.
Neither of the defendants mounted much of a challenge to the allegations. Chanson filed a motion for dismissal after being served but the court denied it nine months later. Chanson was deemed to have defaulted in June of last year, based on his lack of communication after his September 2013 motion.
Bollaert, on the other hand, was detained by more pressing matters -- like his arrest for extortion, online harassment and identity theft. All of the charges were problematic
(especially the harassment charge, which somehow managed to bypass established Section 230 protections), but they did manage to keep Bollaert otherwise occupied as the lawsuit against him proceeded. Still, Bollaert was served two months before his arrest and had the option to file a response at any point, seeing as his conviction on the extortion charge (the most logical of the charges brought -- considering Chanson and Bolleart ran a side business taking down YouGotPosted material for a fee) didn't actually occur until February of 2015
All in all, the pair's accuser was awarded $150,000 (from each) in statutory damages under US child pornography laws, along with $150,000/each in punitive damages and another $150,000/each for violations of California's ridiculous "publicity rights" law
. It may seem slightly more palatable when it's being used to punish revenge porn site operators, but that still doesn't make that bad law any less stupid or easily abused
It all adds up to $450,000 from each of the defendants and the option to pursue legal fees is still open.
If you're looking to shut down revenge porn site operators, this particular case doesn't have a whole lot to offer, other than the likelihood that pursuing a lawsuit could easily result in a default judgment if your allegations are solid. Judging from past events
, it seems unlikely that many revenge porn site operators are interested in defending their actions in front of a judge. It also provides some comfort for minors whose photos and information have been posted at these sites.
On the other hand, easily-abused laws (with the exception of California's publicity rights statute) weren't abused to pursue these site owners. There was no suggestion that posting pictures without authorization is automatically copyright infringement or any desire expressed to punch holes in Section 230 protections. That's a plus for the internet in general. And the outcome shows there are a multitude of ways to approach the revenge porn problem that don't involve carving out chunks of the First Amendment.
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Posted on Techdirt - 2 March 2015 @ 9:24am
Your law enforcement panic of the day: an app that automatically uploads recorded footage and forwards it to the ACLU. (h/t to Dave Maass.)
New Jersey's ACLU branch put together "Police Tape" back in 2012, an app which allowed anyone to record cops with a press of a button. The app then hid itself while the recording continued. If the recording was interrupted, the app would automatically send the recording to the ACLU. The app also advised those confronted by cops of their rights in various situations.
The app is apparently no longer available, but ACLU-NJ reported 30,000 downloads within the first few months of its availability. Widespread coverage of this police accountability app led to a somewhat overwrought response from (of all places) the Burbank, California Police Department.
"OFFICER AWARENESS," the bulletin yells, before heading into a brief summation of the app's capabilities. It takes a turn for the truly absurd when Lt. Eric Deroian attempts to portray the app as potentially dangerous to officers.
Both apps [including the "stop and frisk" app developed by ACLU-NY] will notify other app users within a defined area if someone has activated their app, with the exact location of the police action. This may result in officer safety issues if community groups are able to pinpoint various police actions, and respond to the location in the form of a flash mob.
First off, let's deal with the why
of this app's existence. It is only because officers have routinely (and illegally) confiscated
, shut down
or deleted recordings
from civilians' cell phones that an automatic archival process is needed. Despite being told repeatedly by judges
, the DOJ
and their own internal policies
that citizens have the right to record police officers in public areas, many cops still seem to believe this isn't actually a right but a privilege completely subject to any recorded officer's willingness to oblige.
Because cops doing bad things hate to be held accountable for their actions, they often turn on those recording their actions. And because officers have power, weapons and the benefit of a doubt eternally on their side, it's usually pretty easy to shut down recordings. The tide is slowly turning, but civilians are still severely limited in their options when confronted by a cop who doesn't want to be recorded.
That's why apps like these even exist, and cops have only themselves to blame for this situation.
Now, let's address the inadvertent hilarity of the "flash mob" claim. Even if
there were enough people with the app installed in the area, it's highly unlikely a coordinated (and apparently threatening) response would be mounted. The thing about successful flash mobs is that they're usually coordinated ahead of time. The best ones are, anyway. There are some that gel unexpectedly, but flash mobs usually require participants to be at least a little
Being suddenly alerted about some unexpected police bullshittery isn't generally going to provoke anything more than additional cameras and angry voices. I've seen tons of police video captured by citizens and I have yet to see crowds physically attack officers no matter how much of a beatdown they're putting on some unlucky individual. A lot of yelling and swearing? Yeah. But nothing more "threatening" than that. Even when a cop is choking the life out of someone
, everyone stands a few feet away and hurls nothing more dangerous than epithets and criticism.
Here's the other thing: You know who else can "notify [others] in their area" and "pinpoint various police actions?" Cops. And their "flash mobs" usually arrive at high speed with sirens blaring, and armed to the teeth with a variety of lethal (and slightly less-lethal, depending on application) weapons. This "mob" has the force of law behind it, as well as a large number of options citizens don't
have -- like departments and unions
willing to justify nearly any amount of misconduct, as well as various levels of legal immunity should the "police action" result in a civil lawsuit. They'll also be acting out of "fear for their safety," so the occasional kidney punch/emptied gun magazine will be almost instantly forgiven. All the unfriendly citizen flash mob has is… well, their voices and their cameras. Nothing like bringing a Galaxy 4 to a gun/Taser fight.
Bottom line: there's nothing to fear from police accountability apps like these except the accountability. This is what Lt. Deroian's warning is really
about. He closes it by noting that a "suspect" had the app installed on his phone, but leaves the details of this person's crime wholly up to the overactive imaginations of the officers reading this "alert."
A better "Officer Awareness" memo might have addressed the fact that citizens have a right to record and that patrolling OFFICERS should be AWARE their actions have a good chance of being recorded, so try not to violate too many rights/beat down too many "suspects." And be careful out there.
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Posted on Techdirt - 27 February 2015 @ 6:11am
The NSA continues to "save" the United States from terrorism by making it weaker. Not only has the agency actively undermined encryption standards, but its willingness to insert backdoors and spyware in any piece of hardware or software it can get its hands on has severely damaged the world's trust of American technology.
Cloud computing providers have already felt the aftershocks of the Snowden leaks. An Open Technology Institute report published a year after the first revelation noted that many had already seen a drop-off in sales and predicted that the backlash against the NSA's surveillance tactics could cost companies anywhere from $22-180 billion over the next three years.
Hardware makers are getting hit hard as well. One of the largest buyers of American tech products has dropped some very big brands from its approved supplier list.
China has dropped some of the world's leading technology brands from its approved state purchase lists, while approving thousands more locally made products, in what some say is a response to revelations of widespread Western cybersurveillance.
Chief casualty is U.S. network equipment maker Cisco Systems Inc, which in 2012 counted 60 products on the Central Government Procurement Center's (CGPC) list, but by late 2014 had none, a Reuters analysis of official data shows.
Smartphone and PC maker Apple Inc has also been dropped over the period, along with Intel Corp's security software firm McAfee and network and server software firm Citrix Systems.
It's certainly no surprise that Cisco would be one of the first dropped by foreign purchasers wary of NSA meddling. A leaked document
detailing the agency's hardware interdiction program contained a photo of operatives carefully unwrapping a box full of hardware destined for NSA spyware implants. While the faces of the agents may have been blurred, the logo on the box
was not. As the story spread across the internet, one conclusion was drawn: Cisco products are not "safe."
The fact that foreign hardware may arrive loaded with spyware and backdoors isn't the only thing prompting the Chinese government to drop nearly half of its overseas security-related tech suppliers. There's also the ongoing tension between the US and China, which has devolved into each country
accusing the other of inserting backdoors into exported tech. It appears both sets of accusations are correct, but for years it was largely assumed that China was mostly alone
in these efforts.
China also has a domestic market it would like to expand, which will now get a leg up from the government. As it eyes an increased exports, it is likely aware that many foreign governments and other potential purchasers consider its exports no more "secure" than NSA-infected tech shipping from the US. Purchasers will find themselves taking the "lesser of two evils" approach when seeking to obtain tech products -- something that won't always work out in favor of American companies.
Cisco has openly stated that "geopolitical concerns" -- like the NSA's interception of its products destined for foreign markets -- have led to a downturn in sales. Other affected companies like Intel have yet to issue official statements detailing any NSA-related impact on their sales, but it's clear the last 18 months of leaks have done little to raise their future expectations
. OTI's wide-open estimate on potential losses will probably never achieve sharper focus. It's unlikely former customers are going to clearly state that unrenewed contracts or supplier list culls are due to the NSA's actions, but surveys have indicated this concern does factor heavily into purchasing decisions.
The leaks aren't going to stop, and what is already in the public domain will continue to take its toll. Just as certainly, the NSA isn't going to stop looking for ways to circumvent encryption or compromise hardware. At this point, there's no way any
company can claim with certainty that they have avoided becoming part of any
government's intelligence apparatus -- and that's going to hurt them for years to come.
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Posted on Techdirt - 27 February 2015 @ 3:59am
The FBI is still actively thwarting its oversight. Last fall, DOJ Inspector General Michael Horowitz informed the House Judiciary Committee that the FBI was routinely denying his office documents it needed to perform investigations. The withheld documents included everything from electronic surveillance information to organizational charts. Not only did the FBI refuse to hand over requested documents, but it also stonewalled OIG investigations for so long that "officials under review [had] retired or left the agencies before the report [was] complete."
Nearly six months later, the situation remains unchanged. Horowitz is again informing the House Judiciary Committee that the FBI is still less than interested in assisting his office. The same stonewalling tactics and withholding of information continues, preventing the IG from fully examining the DEA's use of administrative subpoenas.
The unfulfilled information request that causes the OIG to make this report was sent to the FBI on November 20,2014. Since that time, the FBI has made a partial production in this matter, and there have been multiple discussions between the OIG and the FBI about this request, resulting in the OIG setting a final deadline for production of all material of February 13,2015.
Both words in the phrase "final deadline" were quickly rendered meaningless by the FBI.
On February 12, 2015, the FBI informed the OIG that it would not be able to produce the remaining records by the deadline.
The FBI's fluid definition of "final deadline" apparently includes a shrugged "We don't really know when -- or if -- these documents will be produced."
The FBI gave an estimate of 1-2 weeks to complete the production but did not commit to do so by a date certain.
The FBI claims it still needs to review the requested document list to ensure nothing that's being asked for falls into its multitudinous exceptions -- like information related to grand juries, Title III electronic surveillance and, oddly, the Fair Credit Reporting Act.
Horowitz's letter points out two things, the latter of which may prompt more immediate action than the first.
In the first place, the exceptions raised by the FBI do not apply to OIG investigations. Secondly, the (apparently continual) stonewalling of OIG investigations is, at best, a misuse of taxpayer funds.
Section 218 of the Appropriations Act does not permit the use of funds appropriated to the Department of Justice to deny the OIG access to records in the custody of the Department unless in accordance with an express limitation of Section 6(a) of the IG Act. The IG Act, Section 6(a), does not expressly or otherwise limit the OIG's access to the categories of information the FBI maintains it must review before providing records to the OIG. For this reason, we are reporting this matter to the Appropriations Committees in conformity with Section 218.
We'll see if the the FBI suddenly becomes a bit more helpful now that Horowitz has made a move for its wallet. But once again, this sort of activity completely undermines the arguments of those defending these agencies by pointing to the "rigorous oversight"
supposedly keeping domestic surveillance in check and abuses of power to a minimum.
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Posted on Techdirt - 26 February 2015 @ 9:00pm
More cities and states are getting behind the idea that outfitting their law enforcement officers with body cameras will result in better policing and more accountability. Unfortunately, many of them then follow this moment of clarity by gutting the "accountability" part of the programs.
Los Angeles law enforcement agencies will only turn over camera footage if it's part of a criminal or civil suit. Florida legislators are pushing for additional exceptions in the state's open records laws specifically for body camera footage and specifically at the request of the state's police union.
Minnesota seems to be taking the same route. The state wants its law enforcement officers to wear cameras but some legislators don't feel the public should have access to the footage. A bill supported by the state's law enforcement aims to keep as many recordings out of the public's hands as possible.
The bill states:
[A]udio and video data captured by a portable video recording system that is not part of an active or inactive criminal investigation must be destroyed within 90 days of the date the data were captured, unless the data subject, or any peace officer identifiable by the data, submits a written request to the law enforcement agency to retain the data for possible use in a future proceeding related to the circumstances under which the data were originally collected. Any law enforcement agency that receives a request to retain data shall retain it for a reasonable time, based upon the likelihood of its future use and the agency's policies for retention. Peace officers who are identifiable by portable video recording system data shall have unrestricted access to the data while it is retained and must be permitted to make copies.
It seems reasonable... until you realize what it's allowing law enforcement agencies to do. Anything retained by these agencies will only
be accessible to civilians in the recording, and then only
by request. Alleged misconduct that is cleared by law enforcement oversight will move affected recordings into the "destroy" pile, which means agencies can start deleting potentially damning footage almost immediately, provided there are no current requests for the recordings.
The bill also exempts recordings from state public records laws by deeming nearly all recordings "nonpublic" by default.
Except for data classified as active criminal investigative data pursuant to subdivision 7, portable video recording system data is private data on individuals or nonpublic data at all times. Notwithstanding subdivision 7, portable video recording system data that are part of an inactive investigation remain classified as provided in this subdivision.
pertains to "criminal investigative data" -- which is also "nonpublic" and "private."
On the other hand, peace officers will have unrestricted access
to any footage they appear in. This open-ended access is the sort of thing that can lead to tampering and deletion. Any
officer should, at best
, have controlled
access to recordings involving them if the recording system is going to maintain any sort of integrity. Anything else is completely irresponsible.
If the bill goes forward, the body cameras willed be largely robbed of their deterrent effect. By removing the general public from the information flow, the cameras will no longer be tools of police accountability, but rather just another surveillance option for peace officers. The cameras basically become "one way" collections, wholly controlled by the officers who generate the recordings.
Those representing the law enforcement side are defending this bill by presuming to speak for the public they don't want to be accountable to...
Dennis Flaherty, executive director of the Minnesota Police and Peace Officers Association, said public access to body camera footage "really serves no public purpose."
… because it might make things a little tougher for peace officers:
Flaherty and other law enforcement representatives expressed concern about what wide public access would mean -- both for exposing citizens' private lives and, in their minds, spurring more complaints against officers.
"Complaints against officers" is exactly
what's spurring so many states and cities to outfit their cops with cameras. Flaherty conveniently forgets that body camera footage can also exonerate
wrongly-accused officers in his haste to portray body cams as somehow intrusive to public officers.
Video works both ways… theoretically. Public access is essential if the camera programs are going to have any chance at reducing complaints and misconduct. Drastically limiting the number of people who can access recordings makes it highly unlikely the goals will be met. The bill creates a cover system for abuse and allows for full narrative control by law enforcement agencies. And this is coming from a state where law enforcement already expects the public
to perform its surveillance for it and turn over video recordings captured in private businesses whenever a cop asks for it.
That's not accountability. That's nothing more than a bunch of government agencies attempting to dodge their responsibilities to the public they're supposed to be serving.
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Posted on Techdirt - 26 February 2015 @ 2:29pm
Despite the feds' best efforts to keep IMSI catchers (Stingray devices, colloquially and almost certainly to the dismay of manufacturer Harris Corporation, as they head to becoming the kleenex of surveillance tech) a secret, there's still enough information leaking out around the edges of the FBI's non-disclosure agreements to provoke public discussion.
The discussion appears to have reached the top of the food chain. Sen. Bill Nelson -- following the lead of Senators Leahy and Grassley -- has sent a letter to FCC chairman Tom Wheeler asking the following:
[image credit: Julian Sanchez
Dear Chairman Wheeler:
On Feb. 23, The Washington Post published a front-page article “Secrecy around Police Surveillance Equipment Proves a Case’s Undoing.” That article indicated that the Tallahassee Police Department and other law enforcement agencies around the country have been using a device called the StingRay to collect cell phone call information.
That article and previous others concerning the device reveal the StingRay was certified for use by the Federal Communications Commission (FCC), contingent upon the conditions that StingRay’s manufacturer sell these devices solely to federal, state, and local public safety and law enforcement; and that state and local law enforcement agencies must coordinate in advance with the Federal Bureau of Investigation (FBI) before acquiring or using this equipment. According to the article, these devices now have been purchased by 48 law enforcement agencies in 20 states and the District of Columbia and used in hundreds of cases.
Yep, the devices are pretty much everywhere and no one wants to talk about them. When the US Marshals Service isn't stepping in
to physically remove Stingray-related documents, local law enforcement agencies are disguising their use of these devices behind vague warrants and subpoenas.
What Sen. Nelson wants to know is what the FCC
knows about Stingrays.
What information the FCC may have had about the rationale behind the restrictions placed on the certification of the StingRay, and whether similar restrictions have been put in place for other devices;
Whether the FCC inquired about what oversight may be in place to make sure that use of the devices complied with the manufacturer’s representations to the FCC at the time of certification; and
A status report on the activities of the “task force” you previously formed to look at questions surrounding the use of the StingRay and similar devices.
What we DO know so far about the interplay of Harris, the FBI and the FCC is that the first two parties have been less than forthright with the third. Harris managed to push its devices past the FCC by implying they would only be used
in emergencies -- even though it was already clear at the point it made that statement that law enforcement agencies were frequently deploying them in non-emergency situations.
The FBI has performed its own obfuscation, implying in a letter to law enforcement agencies that the FCC required
the signing off a non-disclosure agreement with the FBI. The FCC has since denied this, and obtained documents indicate it's the FBI
that wants to control
the flow of information regarding Stingrays, not the other way around.
I imagine the FCC would be compliant with this request, considering its past relationship with the FBI and Harris. But it can expect to run into significant resistance from the DOJ, which still believes that the long-exposed technology should still be afforded NSA-level secrecy -- especially when answers to Sen. Nelson's questions will likely expose its less-than-honest dealings with the FCC.
Sen. Nelson deserves some extra praise for being willing to put himself in an awkward situation. As the ACLU's Chris Soghoian notes
, the senator has picked a very public fight with his second biggest campaign contributor
needs to provide some answers and, while it's really the FBI that should be talking at this point, the FCC's take on this -- and its dealings with the FBI -- should be enlightening. The FBI's insistence on secrecy is not only screwing defendants during the discovery process, but it's also harming local law enforcement itself, which has shown an alarming willingness to drop cases/charges
rather than reveal the use of Stingray devices.
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Posted on Techdirt - 26 February 2015 @ 11:38am
The billion-dollar lawsuit against the producers of the Edward Snowden documentary CitizenFour rolls on, gradually unraveling as it does. Since we last covered the story (where the United States of America was added as an involuntary plaintiff -- a plaintiff since forcibly removed by the court), a lot has happened. For one, CitizenFour won an Oscar for Best Documentary, something that can't be sitting too well with Horace Edwards and his legal representation, which sought to have the film removed from consideration during the early days of this lawsuit.
The film has also been put into limited release and is streaming on HBO GO -- something that makes the following developments even crazier than they would be without these key details. Over at Vice, Jason Koebler has compiled a timeline of Edwards' (and his lawyer, Jean Lamfers') descent into paranoiac craziness.
Around January 23rd, Lamfers requests that a copy of the film not be allowed to be entered as evidence, what with it being full of highly-sensitive documents, espionage and whatever. She asserts that the movie contains so much classified info that it should only be reviewed in camera.
Then, no hell at all breaks loose, although in Lamfers' and Edwards' eyes, the espionapocalypse is nigh.
Poitras and her attorney deliver a copy of the film to the Lamfers. She does not take it well.
"I said I did not want to take possession of it. This was because of my understanding the film contains classified information based on my having seen the film. I received no response to [my] request from defendants' counsel [to bar the film from being entered as evidence in court]," Lamfers wrote in an email sent to the judge presiding over the suit. "To the contrary defendant's counsel delivered a copy of the DVD to my office (which remains unopened and under lock and key)."
That time when the normal process of discovery became a cheap knockoff of a le Carré novel.
From this point on, it's a long but fast slide downhill into amateur cloak-and-dagger awkwardness.
Two DVDs and a transcript of the film are entered as evidence because this is how that process works. Lamfers immediately files a motion asking for these to be sealed. The requested injunction would have no
effect on the public release of the film, as the judge notes.
"Given the inherently public nature of this film, the Court can discern absolutely no interest that could justify sealing this exhibit. Moreover, even if this DVD contained some sort of confidential information for which Plaintiff had an interest in preventing public disclosure, it has already been publicly filed…"
[Side note: For reasons only comprehensible to Cryptome, a copy of the movie is being made available at the site
, apparently under the mistaken belief that publicly-filed evidence automatically enters into the public domain. This perhaps-willful misunderstanding of both the court system and copyright law may be at least partially due to Cryptome's ongoing animosity towards anyone involved with the Snowden leaks
for their refusal to make every single document Snowden gave them available in one massive dump -- and without redactions.]
Undeterred by the judge's logic, Lamfers proceeds to pester the court with "emergency" phone calls in hopes of sealing the Very Dangerous DVD. The judge reminds Lamfers that there are certain ways these things are handled during court proceedings and making "emergency" phone calls isn't one of them. Lamfers reads this rebuking email
and decides the judge is suggesting she pester the court with "emergency" emails.
Lamfers emails the judge, at 12:46 AM local time (according to the court record), chastising the court for endangering national security and not immediately responding to her call.
"This situation has placed the plaintiff in an untenable position regarding avoiding irreparable harm and obtaining appropriate relief sought on a serious issue in a timely manner," she wrote. "The denial of a sealing motion has furthered the irreparable harm and relief necessary to address such harm, among other things, by the continuing injury through repetition of classified, stolen information that reaches a broader constituency of extremists with each showing."
Lamfers follows this up with a filed motion stating that the DVDs and transcript should be locked up under the legal precedent of "better safe than sorry." (No, I am not making this up. If I was, it would be more credible.)
Apparently further phone calls from Lamfers ensued, because the court is forced to formally -- via a court order
-- tell her to knock it off.
Plaintiffs counsel has been instructed that the Court prefers informal communications with the Court be made by e-mail, with copy to the opposing counsel. In the Court's experience, such informal communications are rarely necessary and are typically limited to coordinating hearing dates after the court has determined a hearing is necessary, or to address routine, procedural questions. The does not and will not entertain requests for relief in this manner and the Plaintiff shall refrain from this practice going forward.
Well, we'll see if that works. Nothing else has so far. The docket
shows things have remained eerily quiet over the past several days, but there's no telling how many phone calls and emails have made their way to Judge Julie Robinson's court in the meantime.
Of course, the lawsuit doesn't hinge on the misguided actions of the plaintiff and his counsel but on the actual merits of the case. However, even if Edwards' suit has its legal merits, he and his counsel appear to be the worst people to argue them.
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Posted on Techdirt - 26 February 2015 @ 8:06am
Fool me once, shame on me. Fool me annually and let me get my checkbook! Losses continue to mount, but some very resilient states are still willing to throw more taxpayer money at the film industry. Michigan -- a state that seems to be able to generate at least one fiscal horror story per year -- is one of the nation's most consistent losers. Two years ago, it bet the state pension fund on film-related subsidies… and lost. When the "investment" failed to generate a return, nearly $2 million was removed from the already-underfunded retirement pool. One small town pinned its hopes and dreams on a film project that promised 3,000 new jobs but instead fell apart, dragging the town towards insolvency.
Michigan has made some moves in the right direction after being burned so often by Hollywood and its fleeting, mercenary "interest" in its state. It paid out nearly $100 million in subsidies in 2011, but that number has dropped to $38 million for the coming year. Michigan House Minority leader Tim Greimel is pushing to bring that back up to $50 million, claiming that the program has been a great job creator -- an assertion that couldn't be farther from the truth.
The state has funnelled $500 million in public funds to its fledgling film industry since 2008, and has almost nothing to show for it. While some jobs were created—temporary production crews, mostly—those were offset by the losses to the sectors of the economy that had to finance the film subsidy (i.e. Economics 101).
In fact, over the past 15 years, job creation has remained almost flat. According to the Bureau of Labor statistics, there were 1,537 in-state jobs in the film industry in 2001. As of 2013, there were 1,564. And in that particular year, the subsidized industry didn't create a single job
This boondoggle currently costs Michigan taxpayers $50 million a year and even the state’s own economic development agency (MEDC) reported this costly subsidy failed in 2013 to create one permanent job,” said Tricia Kinley, senior director of tax and regulatory reform at the chamber, in an press release.
A study released in 2012 showed that for every Michigan dollar spent on subsidies, the film industry only generated $0.11 of in-state revenue
. And yet, politicians like Greimel are still insisting the best way to make money is to spend money -- year after year after year.
The same issue is under discussion in Pennsylvania, another state suffering from budget overruns and the odd desire to throw away the better part of every subsidy dollar. Despite a $2.3 billion deficit, some legislators are thinking of increasing the state's film subsidies
Senate Bill 218, introduced by state Sen. Wayne Fontana, D-Allegheny, would raise the cap to $125 million. It’s now $60 million a year.
Senate Bill 219, also by Fontana, would allow for “rollover” of tax credits approved for a project but not ultimately awarded.
To push for these bills in the face of some heightened resistance, Fontana is trotting out some very suspicious numbers. The Department of Community and Economic Development -- an entity that sounds neutral but in reality administrates the film subsidies -- claims this handout has generated thousands of jobs and billions in revenue
Since the program’s inception, nearly $433.5 million in film production tax credits have been approved/awarded to film production companies under the program. These companies, in turn, have directly injected close to $1.8 billion into PA’s economy; generated an estimated $3.2 billion in total economic activity; and supported an estimated 21,700 jobs (based on 2014 IMPLAN multipliers).
There are big problems with the Department's fuzzy math, as Rachel Martin at Watchdog.org points out. For one, it grabs unfinished and pending projects and mixes them in with completed projects to up the totals for both the number of jobs and the amount of money generated. Looking at the state's financial statements reveals something completely different.
[F]rom fiscal 2007 to 2013, only $55 million in credits were awarded and 2,700 jobs were created.
A more sobering assessment
put together by the state's Independent Fiscal Office takes a lot of the irrational exuberance out of the Department's fluffed numbers. There's no "anything's possible" math to be found here. The report takes a very long and detailed look at the fiscal performance of the state's film subsidies and finds that -- much like other states -- handing out money to Hollywood doesn't make it rain locally.
In terms of budgetary return, a 2013 report by the state Independent Fiscal Office, “Uncapping the Film Production Tax Credit: a Fiscal and Economic Analysis,” found the state got a return of 14 cents on the dollar for tax credits, from state taxes generated by the program.
This pitiable return rate remains completely unchanged from the conclusions drawn by the Tax Foundation in 2010
. Pennsylvania's film subsidies hand out dollar bills to film producers and then follow along behind them to catch any change that might fall out of their pockets. It's easy to sell subsidies to legislators, who are often more interested in the reflected glory of Hollywood projects than in safeguarding the funds they've been entrusted with.
The report also debunks the notion that film subsidies are job creators, much less wealth generators.
Wages constitute more than 60 percent of production expenses receiving credit under the FPTC, and the economic effects of the FPTC depend heavily on the amount of credit-eligible earnings that leave the state. Nonresidents spend only a small share of their earnings in the state while working on a production, thus limiting the impact on the state economy… According to data analyzed by the IFO, approximately 70 percent of production-related wages were paid to nonresidents.
The bottom line, according to the IFO?
The net, fully phased-in fiscal impact for the additional credits authorized in FY 2013-14 is estimated to be -$46.5 million at the lower end… and -$93.1 million at the higher end of the range.
Of course, if Pennsylvania decides to limit or dump its subsidies, it will soon discover that all the money it spent in the past has purchased nothing in the way of loyalty.
As an example of the mobility and fickleness of the industry, consider the show “Banshee.” It filmed its first three seasons in North Carolina, but packed up after that state eliminated its tax credit program and replaced it with a much smaller grant program.
The show will now film in Pittsburgh, which has a built-in irony, given that the show’s setting has always been the fictional Banshee, Pennsylvania.
Given the deficit the state is facing, you'd think legislators would be more than happy to drop the subsidy, if only to prevent the leakage of another $50-90 million. But the glamour of show business -- even if only admired from afar -- is tough to resist. It's easy to mistake the busy milling around of temp workers and nonresident stars for created jobs and positive economic impact. Throwing away 9/10ths of every dollar simply doesn't make sense, especially in a state already severely overdrawn. But nothing involving both Hollywood and accounting ever adds up
The math is so severely screwed up that the original home of the stars is upping its subsidy ante in hopes of luring Hollywood back to Hollywood
Between 2004 and 2012, the California entertainment industry lost 16,137 film production jobs. During that same period the state of New York increased its entertainment employment by 25 percent. The Milken Institute attributes this shift in employment to the billions of dollars in robust incentives from competitive states like New York, New Mexico, Texas, and Louisiana.
If you can keep all of the money in one place, a state might turn a profit. But with productions scattered all over the US, California will just be another state throwing money at fickle, mostly uninterested productions. A short-term "bribe" never buys loyalty, especially not in the Land of 1,000 Backstabbings. The film industry is still very cutthroat and California's decades-long slide into legislative absurdity has made movie-making within its heavily-taxed confines very unattractive. (And then there's the labor stranglehold, but we'll let that go. For now...) The solution? More taxes! But this time mostly from the little people!
The legislation will increase the annual allocation of state tax credits to $330 million per year, more than triple the current amount, starting with fiscal year 2015-16 and lasting for five years. [...]The legislation also provides extra incentives — beyond the current 20% — for visual effects and music scoring, as well as to producers who shoot in parts of the state outside of the Los Angeles region.
The industry is -- and has been for years at this point -- pay-to-play. Unfortunately, it's the states' long-term residents who are paying the most, and reaping none of the benefits.
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Posted on Techdirt - 26 February 2015 @ 6:06am
If the US intelligence committee is concerned about the status of "hearts and minds" in its ongoing NSA v. Snowden battle, it won't be winning anyone over with its latest response to a FOIA request.
Various representatives of the intelligence community have asserted (sometimes repeatedly) that Snowden's leaks have caused irreparable harm to intelligence-gathering efforts and placed the nation in "grave danger." But when given the chance to show the public how much damage has been done, it declares everything on the subject too sensitive to release. EVERYTHING.
Here's the Defense Intelligence Agency's appraisal of the current situation, as released to Vice News' Jason Leopold.
On the subject of compromised information:
How about intelligence sharing and cooperation?
At least we know that -- as of January 2014 -- there were four (4) "talking points."
Every single assessment, dating back to September 2013, is fully redacted. How does that help communicate the DIA's concerns about Snowden's leaks to the general public? How does that persuade anyone about the alleged severity of the situation?
From what's not
on display here, it's safe to say the general public's perception of the American intelligence apparatus doesn't matter. Those who do
matter are those already on the NSA's side, and then only those with the power to guide legislation towards favorable ends. It's safe to say that there are people in Washington DC who have seen at least a portion of these reports, but that small group contains no members of the general public.
A fully-redacted report may seem logical in the eyes of the intelligence community, which despite multiple leakers, still pretends its secrets will always be secret. Page after page of redaction shows it's really not interested in the transparency it keeps promising will make everything better. It doesn't want to give the public any more information than it already has and this mess of whiteout and black ink clearly and loudly states that it believes the public has no stake in the ongoing debate over mass surveillance.
It's a wordless insult, delivered under the pretense of "national security."
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Posted on Techdirt - 26 February 2015 @ 1:03am
One of the many problems with America's criminal justice system is the use of federally-mandated sentencing guidelines. These policies take a one-size-fits-all approach to sentencing, stripping away the chance of any leniency being applied by the presiding judge. The guidelines demand ridiculously lengthy prison terms for certain crimes -- the foremost being anything drug-related. Following close behind it are mandatory sentences for sexual offenses. What's meant to act as an effective deterrent has instead become an easy way to lock up people for far longer than their criminal activity would warrant.
One judge found out just how out of touch federal sentencing guidelines are when he did something out of the ordinary: he asked the jury's opinion. (via Simple Justice)
The crime was one of the most universally-loathed: the collection and distribution of child porn. And the perpetrator was completely unsympathetic.
When government agents used cutting-edge software to hack into the hard drive of Ryan Collins’s computer, they found more than 1,500 sexually-explicit images of children, some of whom were younger than twelve. The agents also discovered file-sharing programs, indicating that Collins may have been distributing the pornography online.
Collins was unrepentant, even after a jury in Cleveland, Ohio convicted him of possessing, receiving, and distributing child pornography. The prosecutors sought the statutory maximum sentence of 20 years’ imprisonment, and the federal sentencing guidelines would have allowed a term of as long as 27 years.
Even when faced with someone as apparently damnable as Ryan Collins, the jury's suggested sentence was lower than the sentencing guidelines called for. Far lower.
Before dismissing the jury, [Judge Gwin] asked each member what they thought would be an appropriate sentence for someone who had downloaded child pornography. According to Gwin, the average of the sentences they recommended was only 14 months.
This admittedly-small sampling shows that mandatory sentencing guidelines do not match up -- at all
-- with what the public believes to be fair and just. These guidelines are supposedly written on behalf of the general public, with Congress and other government bodies acting to "protect" us from drug dealers, sex offenders, hackers, etc. by locking them away for extended periods of time. But it appears the public may still feel "protected" without putting child porn enthusiasts behind bars for a quarter of a century.
And it's not just Judge Gwin's peculiar query -- although he appears to be the first to make this line of questioning public. Other judges have heard similar answers from jury members, behind the scenes.
Iowa district court judge Mark W. Bennett:
"Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence -- every time – even here, in one of the most conservative parts of Iowa, where we haven't had a 'not guilty' verdict in seven or eight years – they would recommend a sentence way below the guidelines sentence."
Why wouldn't judges ask the jury's opinion on sentencing? After all, it's supposedly composed of the accused's "peers." They're entrusted with determining guilt or innocence, but somehow can't be trusted to offer up a worthwhile opinion as to the "reasonableness" of the sentence recommended by Congress? Those intimately familiar with the details of the case should at least be trusted to give their view on the ensuing sentence. Their view is no less informed than that of their representatives, who mostly deal with criminals and the criminal justice system in the abstract -- and are often far more inclined to appease the prosecutorial half of the equation than appear to be "soft on crime."
Judge Gwin's informal jury straw poll shows that the word "justice" -- in the context of mandatory sentencing guidelines -- is nothing more than a prosecutorial term of art, completely removed from the actual definition of the word
All those people being sentenced to decades in prison under the pretense that it’s what society wants and needs is revealed, as Judge Bennett says, as baloney. While the Sentencing Commission won’t heed the defense lawyer perspective, perhaps a few federal judges making this point clear might carry sufficient weight to end the needless destruction of a life or two under the draconian guidelines. For the rest, maybe they will start taking the admonition of § 3553(a), “sufficient, but not greater than necessary.” seriously.
As for Judge Gwin, he did what he could in response to this gaping disparity by sentencing Collins to the minimum allowed under the guidelines -- five years, or roughly four years longer
than the jury felt was reasonable or just. The prosecution had recommended the maximum -- 27 years -- a number so far removed from the public's sense of justice it may as well have been a number pulled out of thin air by a government lawyer who had stumbled into the wrong courtroom.
We're imprisoning people at an alarming rate
in this country, and the nation's unofficial hobby shows no sign of slowing. And we're doing it for far longer than the public itself feels is necessary. We're destroying lives by taking criminals out of circulation for decades at a time, based on little more than Congressional appeasement of professional moral panickers and the law enforcement officials who love them. The fact that so many of our prisons are now run by private corporations
makes the situation worse, because nothing pays better -- or more consistently -- than cell after cell of long-term "tenants."
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Posted on Techdirt - 25 February 2015 @ 2:43pm
Guess which national agency's feelings hurt the most?
The 2014 Best Places To Work in the Federal Government Survey, published by Stier’s group, ranked DHS dead last among large agencies.
Many DHS employees have said in the annual government “viewpoint” survey of federal employees that their senior leaders are ineffective; that the department discourages innovation, and that promotions and raises are not based on merit. Others have described in interviews how a stifling bureaucracy and relentless congressional criticism makes DHS an exhausting, even infuriating, place to work.
Beyond the problems listed here, there are a great many reasons why it might suck to work for the DHS. To begin with, the agency is actually a Frankensteinian monstrosity consisting of 22 agencies, all with their own ideas on how to run things and nearly all of them with their own sets of problems.
The DHS is in the (relatively) newly-minted business of securing the homeland against all comers -- mostly terrorists of the foreign and domestic varieties. Whether it's done out of paranoia or just the overwhelming need to look busy every time the national budget nears a vote, the DHS has gone overboard in its assessments of potential threats. The shorter of the two lists it has compiled by this point would be titled "Not Terrorists." Over the years, the DHS has conjectured that terrorists are hiding in food trucks
, using hotel side entrances
their First Amendment rights, possibly years away
from graduating high school… etc.
The DHS also presides over the TSA, a security agency in name only that seems mostly interested in patting down mastectomy patients
, running their brusquely officious hands over pre-teens
, dumping breast milk
and other "explosives precursors" into nearby garbage cans and feeling completely threatened
by words printed in foreign languages.
It also keeps an eye on the CBP, which can't seem to stop shooting
unarmed people, follow its own guidelines on vehicle searches
, and operates a fleet of shiny, expensive and nearly useless drones
Then there's ICE (with its own morale problems
), the IP-focused Keystone Kops whose antics -- including yanking websites away from owners without a word of explanation and returning them years later
without an apology, raiding lingerie shops for dangerously unlicensed panties
, and struggling to come up with excuses
for denying FOIA fee waiver requests -- are only outpaced by the imaginary rights vendettas of the City of London
That would be enough to depress anyone, especially the good
employees who started out with ideals and enthusiasm but are now forced to answer question after question after question about why working for the nation's largest group of unhinged conspiracy theorists is a bit of a downer. The DHS has dumped a lot of money into divining the sources of its employees' unhappiness. But it seems more interested in spending money than fixing the problems.
The first study cost about $1 million. When it was finished, it was put in a drawer. The next one cost less but duplicated the first. It also ended up in a drawer.
So last year, still stumped about why the employees charged with safeguarding Americans are so unhappy, the department commissioned two more studies.
Yes, if anything's going to fix morale, it's going to be periodic questioning of employees who know
their last several answers went completely ignored. Will the latest studies be titled "NO REALLY GUYS THIS TIME WE'RE LISTENING?"
To hear people like new DHS head Jeh Johnson tell it, the agency has never been more interested in improving morale.
Johnson and Deputy Secretary Alejandro Mayorkas have “personally committed themselves to improving the morale and workforce satisfaction across the Department of Homeland Security,” said Ginette Magana, a DHS spokeswoman. “They are directly engaging with employees, listening to their concerns, working diligently to improve employee recognition and training, and are focused on strengthening the skills and abilities of every employee. She said the studies “comprise a first step in a comprehensive process dedicated to tangible results.”
Yeah, but what about all the other "first steps" currently tucked away in drawers, presumably still in mint condition? How many "first steps" and empty promises are DHS employees expected to suffer through before they finally wander away from the metaphoric disinterested, lying spouse they call an employer? "No, really. This time will be different, honey. I SWEAR."
As it stands now, DHS employees pretty much have to stick guns in their mouths before someone will start paying attention to their morale issues.
Three years ago, officials in the department’s office of health affairs, which provides expertise on national security medical issues, began to wonder about the health of one of their own programs. In response to low scores on the viewpoint survey, officials had set up a program, DHSTogether, aimed at making DHS “one of the best places to work in the Federal government.”
The DHS spent over a million dollars on yet another study to find out why this study-prompted "Togetherness" wasn't working. The National Academy of Science's Institute of Medicine arrived at this alarming conclusion.
The report, released in September 2013, concluded that DHSTogether had been starved of money and support from DHS leaders and devolved into little more than an ineffective suicide prevention program.
The DHS apparently didn't feel like talking anyone down, so it buried the report on the report as well.
And the vicious cycle of studies will continue. On top of the two recently-commissioned studies, the agency plans to add a "follow-up" survey to its annual "viewpoint survey," and plans to follow up government contractor ICF's morale study with yet another study once that one's completed.
Clearly, bureaucracy -- especially the combined bureaucracy of 22 agencies forced by
terrorists knee-jerk lawmaking
to live together under one superagency's roof -- generates more questions than answers. And clearly, in the DHS's case, the questions are the only part that matters.
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Posted on Techdirt - 24 February 2015 @ 8:54pm
The Institute for Justice's 2010 report "Policing for Profit" listed Virginia as one of the worst five states in the nation in terms of forfeiture abuse. Pushing the state towards its Bottom Five finish was this perverted incentive: 100% of the proceeds from civil asset forfeiture were retained by the law enforcement agency performing the seizure. And, like a majority of states, Virginia also perverted the justice system, deeming the property "guilty" and transferring the burden of proof to those whose assets were seized.
Now that civil asset forfeiture has gone mainstream, receiving coverage from major press outlets, legislators are having a harder time ignoring opponents of these "legalized theft" programs. In response, Virginia's lawmakers are trying to drag the state out of its forfeiture morass.
Last week the Virginia House of Delegates overwhelmingly approved a bill that would effectively raise the burden of proof for civil forfeitures by forcing the government to return seized property unless it can obtain a criminal conviction. The bill, introduced by Del. Mark Cole (R-Spotsylvania) and Del. Scott Surovell (D-Mount Vernon), passed by a vote of 92 to 6 and is now being considered by the state Senate.
This fixes one major issue with many civil asset forfeiture programs. Virginia's laws only demanded a "preponderance of the evidence," something that sounds like a lot but in reality is far lower than establishing guilt "beyond a reasonable doubt." If the latter edges towards a theoretical 75% assurance of guilt, the percentage for asset forfeiture approaches a coin flip: 51%. Now, there needs to be a conviction before the agency can keep the seized property.
But there are also problems left unaddressed by this proposal.
That conviction does not have to involve the owner, however. Someone who uses an asset (a car or a home, say) in connection with a crime could be convicted, whereupon the asset would be forfeited, even if it belonged to someone else. Once a "substantial connection" between an asset and a crime is established, Virginia puts the burden on innocent owners to prove their innocence, and this bill does not change that.
The law also doesn't change the allocation of seized funds. 100% is still awarded to the agency performing the seizure with 10% of that allocated for "promoting law enforcement activities." The law also leaves the DOJ loophole
open, allowing agencies to route seizures through the feds in order to dodge restrictions placed on them by local laws.
The introduction of a criminal conviction requirement should be the minimum standard any
agency with these powers should have to meet. Without it, you get the sort of abuse perpetrated by Virginia's law enforcement, which has seized nearly $3 million/year in vehicles for the last 18 years and approximately $5 million in cash/year over the last decade. Contrary to the oft-stated defense that these programs are necessary to cripple powerful drug lords and multimillion dollar fraudsters, more than half the cash seized from 2001-2006 fell in the $614-1,288 range and the average worth of vehicles seized has hovered at about $6,000.
Law enforcement agencies won't be happy with the new requirement, as it's certain to result in a lower take. According to Institute of Justice statistics, the total amount seized by the state's agencies spiked in 2007, jumping from about $4 million a year to over $25 million a year. And there's been no sign of slowdown since.
It's not a complete fix, but it does at least attack the biggest problem inherent to these programs: the lack of a conviction requirement. Somehow, proponents of asset forfeiture feel there's still some unshattered logic remaining when they contradictorily deem certain property guilty, but somehow can't amass enough evidence to charge its former owners with anything.
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Posted on Techdirt - 24 February 2015 @ 6:24am
The DMCA takedown system is once again being abused by Craig Brittain. The recently deposed
king inadvertent court jester of the revenge porn world -- defenestrated by the FTC no less -- has issued a new bogus takedown request in hopes of purging the internet of critical articles.
Brittain's takedown asks for the delisting of 23 posts from various sites, all of which have been denied by Google. Among the more scathing posts Brittain hoped to remove with his abusive request include those written by two of his nemeses, Ken White (of Popehat) and Adam Steinbaugh. Also listed: posts residing at Ars Technica, Gawker, Forbes, Huffington Post, GigaOm, Reddit, Salon, Vice and The Verge. Somehow, it appears that our own article on Techdirt about him may be the only one he didn't seek to take down. Gee, thanks, Craig!
To top it off, Brittain also requests -- wait for it -- that the FTC's press release concerning his settlement with the agency, along with details of the case proceedings, be removed as well.
But what takes it into truly surreal territory is Brittain's seeming inability to realize just how hypocritical his request is. For someone who made a living posting photos and contact information without permission (and made a further living pretending to be a "takedown lawyer" who could make the unauthorized photos and contact info vanish for the right price), he seems suddenly very sensitive about the use of photos and personal information. Or at least the use of his, anyway. From the takedown request hosted at Chilling Effects:
Unauthorized use of photos of me and other related information. Unauthorized use of statements and identity related information. Unauthorized copying of excerpts from isanybodydown.com. Using photos which are not 'fair use'.
[For whatever reason, Brittain claims the infringed item is a "book," which one must admit would be quite the conversation starter, ender and shatterer of friendships/marriages, should the now-dead "Is Anybody Down" website have been published as a glossy, hardbound coffee table-type book.]
Desperate times call for desperate measures, I suppose, and for someone who only knew how to profit off the misery of others, a lifetime ban from exploiting both ends of a revenge porn website must be making Brittain very desperate indeed. You'd think he would have learned from the last time he sent out a bogus takedown request that the only thing that does is create more
criticism. Brittain's name is irrevocably toxic and he can't seem to think of a better way to clean up his destroyed reputation than tossing a self-serving DMCA hail mary. With these 23 own-goals on the record -- along with a new wave of criticism headed his way --
Pustule Nickelback McHitler's
Brittain's best bet at this point is probably to just exit the internet altogether.
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Posted on Techdirt - 23 February 2015 @ 9:08pm
Pat Lynch, the president of New York City's Patrolmen's Benevolent Association (PBA), has always been a cop's best friend, especially the more questionable ones. In the wake of Eric Garner's death at the hands of an NYPD officer, Lynch was quick to deflect criticism by pointing fingers at the person who captured the incident on video.
The New York City Patrolmen’s Benevolent Association, the largest union representing NYPD officers, said in a statement that it was “criminals like Mr. Orta who carry illegal firearms who stand to benefit the most by demonizing the good work of police officers.”
Lynch also opposed efforts (supported by Police Commissioner Bill Bratton) that might make his officers more accountable, ignoring evidence collected elsewhere
because it didn't agree with his belief that cops shouldn't be watched. Oh, and the real
problem is that the city is too quick to hand over money
to victims of police misconduct.
We are reserving our decision on body cameras until we see some real evidence of their effectiveness and impact on the officers who carry them. The Public Advocate cites the $152 million that the city spends on lawsuits against police officers but what she fails to say is that the city refuses to fight even the most ridiculous and baseless of the claims. Instead, they settle these ridiculous suits when they should fight everyone of them to conclusion which would effectively put an end to quick buck lawsuits against our officers.
As the situation eroded after the killing of Eric Garner, Lynch continued to support the NYPD's every action. When two officers were killed in their cars by a gunman, Lynch used this tragedy to widen the divide between the police and the policed. During memorial services for the slain cops, attending officers turned their backs on Mayor De Blasio
for his daring to suggest his mixed-race son might have more to fear from the city's stop-and-friskers than whites.
Lynch further leveraged this tragedy with his explicit support of the NYPD's "work slowdown." Unfortunately, this non-enforcement of bullshit charges
failed to return the city to its murder-a-minute heyday of the 70s and 80s, instead highlighting the fact that only going after more dangerous criminals was actually a fairly good way to police a city.
But even though Lynch has done his most to be a cop's best friend, it's becoming clear that many cops are no longer returning his affections. Union members are finally realizing that Lynch doesn't really serve his members' interests. He only serves himself.
Back in January, a union meeting devolved into shoving matches and screaming as members began to express their displeasure with Lynch's preference for grandstanding, rather than taking care of his officers
A police union meeting sparked an uproar Tuesday when officers blasted union president Pat Lynch over his demand that Mayor Bill de Blasio apologize to the NYPD, police sources said.
The war of words took place at the end of the two-hour meeting at Antun’s in Queens Village when union delegates from the Patrolmen's Benevolent Association began shouting at Lynch, demanding to know what came out of a recent meeting with the mayor, a law-enforcement source said.
Lynch accused the mayor of having "blood on his hands"
after the slaying of two NYPD officers, while refashioning their corpses into his personal pulpit. But his officers don't care whether or not De Blasio apologizes for his statements on the Garner case. What they actually want is what almost all officers want: safety.
The officers at the union meeting wanted answers from Lynch about getting heavier weapons, better bulletproof vests and new patrol cars, the source said.
Lynch values being very publicly right
above almost anything else. His officers just want to feel that what happened to two of their own won't happen to them. Lynch not only doesn't care about the rank-and-files' priorities, he's not above using their deaths to further his career
Critics of Patrick Lynch have accused the fiery union leader of campaigning for reelection on the backs of murdered cops — including the use of a somber photo at a memorial for the slain officers…
The latest controversy stems from a new campaign video showing the president of the Patrolmen’s Benevolent Association in uniform at a makeshift memorial honoring Liu and Ramos.
The 1-minute, 4-second video, which a Lynch spokesman said was not authorized by the campaign, begins with a backdrop of stars and the words: “Team Lynch 2015.”
In one image, Lynch is delicately laying flowers at the foot of the memorial.
“Thousands of cops went to that memorial and he gets his picture taken and uses it,” the delegate said. “ None of the other cops had their pictures taken. Only the politicians . . . so that makes him worse than the politicians.”
"Authorized" or not, it's not making Lynch any more friends in the department, something he kind of needs if he's going to continue to hold this position of power. And as for the authorized aspect of the video, various PBA spokespeople seem to be offering contradictory statements.
The pictures in the video are not meant to elicit the sympathy vote, spokesman Al O’Leary said. “(They are) just the most recent photos available of him in uniform,” he explained.
Why someone from Lynch's camp would feel compelled to defend images from an unauthorized video, much less make statements about the intent of the photos that supposedly weren't picked by Lynch's office, is puzzling. Then there's the fact that the video first surfaced on PBA treasurer Joseph Alejandro's Facebook page
, which would at least suggest endorsement of the content. (Which has since been removed for -- of all reasons -- copyright claims by the NY Daily News
over images used in the video.)
Whether or not Lynch specifically authorized this video no longer matters. He will suffer the backlash from its publication just the same. He no longer has control of the union and he has really no one else to blame. While the PBA will undoubtedly continue to defend its officers from criticism and accountability, it likely won't be Lynch heading it up. It's the union that isn't, one whose "leadership" cares more about press appearances and political warfare than ensuring its members are better protected and equipped.
At the end of the day, cops (rightly or wrongly) just want to make it home alive. And while Lynch is certainly quick to deploy the unofficial First Rule of Policing
in defense of his officers' misconduct, he has no interest in actually backing up his stated concern for officer safety with any practical actions. Lynch's eventual exit will be welcomed, even if his replacement may be the same sort of self-centered political animal. Lynch managed to turn two tragedies into nothing more than a pointless, public shouting match with the Mayor's office that did nothing at all to serve the officers whose wages he receives a cut of.
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Posted on Techdirt - 23 February 2015 @ 2:32pm
Rightscorp -- another company with designs on revolutionizing the pursuit of infringers -- has a murky past, a very troubled present, and almost no future. For the second time in three months, it's facing a lawsuit over its shakedown tactics. Rightscorp tries to present itself as the good guy of the anti-piracy world, "allowing" alleged infringers to buy their way back into the company's good graces for the low, low price of $20 per accusation. It seems like quite a bargain when coupled with the company's Standard Threat Letter, which never fails to mention the $150,000 statutory limit when addressing potential shakedown victims.
So far, its efforts have met with limited success. (Putting it kindly.) Its stock price -- which occasionally threatened to top the gilded $1/share limit now hovers at around $0.09/share.
Its perky press releases
can't hide the fact that a trickling revenue stream backed by shady tactics is never going to make millionaires of its shareholders.
filed last November accuses Rightscorp of violating damn near everything under the sun in its quest to spin alleged infringers into gold.
The complaint seeks class damages against Rightscorp for violations of the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, California’s Rosenthal Act, and Abuse of Process. The complaint alleges unlawful robo-calls, as well as other unfair debt collection practices, and that Rightscorp has abused the legal process by issuing DMCA Section 512(h) subpoenas that it knew were objectively baseless.
If someone can take Rightscorp down for its shakedown tactics, it's probably Morgan Pietz
, who is armed with a wealth of practical Prenda experience
. This latest suit doesn't have Pietz, but it does have another list of accusations, most of which revolve around Rightscorp's seeming indifference to federal laws governing telecommunications
First, in the rundown of the events
leading to this class action lawsuit, attorney Sergei Lemberg points to the fact that Rightscorp's questionable tactics can be traced back to information obtained with an equally questionable subpoena. (Internal citations omitted.)
The legality of Rightscorp’s subpoenas is highly questionable. Under 17 U.S.C. § 512(h), a subpoena may not be issued to an ISP which does not store information on its system but rather acts as a mere “conduit” for electronic communications. Rightscorp willfully disregards this requirement, issuing such subpoenas to conduit ISPs and storage ISPs alike. In In re Subpoena Issued to Grande Commc’ns Networks LLC, 1:14-mc-00848, Doc. No. 1 (W.D. Tex. Sept. 5, 2014), the plaintiffs moved to quash a subpoena issued by Rightscorp to its internet service provider. Rather than defend its subpoena’s legality, Rightscorp packed up its bags and withdrew its subpoena the very next day. The case was dismissed in result.
From there, the filing moves on to what Rightscorp did with its questionably-obtained subscriber data, including the deployment of unsolicited phone calls, text messages and threatening emails. Here's one email one plaintiff received.
Dear Melissa Brown,
Attached is the evidence of 26 copyright infringements that have occurred as a direct result of a file sharing program operating under your internet connection: [REDACTED]. I have also included all 26 e-mail notifications that were automatically sent to your internet service provider regarding federal law being broken under their services. Any further questions or concerns you may contact my direct line at (310) 405- 0102. I do ask that you refrain from derogatory language when speaking with a DMCA Agents, as the transactions are kept on file.
Thank you for your cooperation,
The last sentence of this email stands out, as it could add to the numerous legal woes currently being faced by Rightscorp. As was pointed out by one of Fight Copyright Troll's Twitter followers
, this wording suggests Rightscorp records and stores all incoming calls in apparent violation of California law.
California is a so-called two-party state, and the recording of a phone conversation without consent may result in penalties.
That point isn't mentioned in the lawsuit, but plenty of other violations are. The complaint notes that Rightcorp also sent unsolicited text messages to the plaintiff's phone as well as used a robodialer to make repeated calls. Considering the only loophole for unsolicited communications under the Telephone Consumer Protection Act pertains to "emergency purposes," it would appear that its use of both (text messages are considered "calls" by the FCC) run afoul of federal law.
Despite being told to cease its calls, emails and text messages, Rightscorp persisted. Now, it's being accused of "wilfully violating" the TCPA in its pursuit of the two plaintiffs.
While debt collectors are allowed to call debtors to pursue collections, they have to adhere to many rules, including how many calls may be placed a day and between what hours. Unless consent is obtained, they cannot send text messages or use other forms of communications (like email).
Rightscorp isn't a debt collector, although I'm sure it feels its business model is closely related. In reality, Rightscorp's business is more closely aligned with telemarketers, which any
person can opt out of receiving calls from in perpetuity. (Telemarketers are also
not allowed to send unsolicited text messages.) Rightscorp is, in essence, selling
$20 settlements to any alleged infringer it can obtain contact data for. Its "offers" are backed by no legal authority. It would take an actual lawsuit to pursue infringement allegations and that has never been part of Rightscorp's plans.
If it chose to handle its business honestly (by suing alleged infringers), it would have no need to harass the accused via phone calls, emails and text messages. (It would, in fact, have several reasons not
to contact potential defendants.) But since suing doesn't figure into the revenue stream, Rightscorp is reduced to pitching tiny "settlements" (in quotes because settling doesn't prevent an infringer from being sued by the rightsholders themselves) to the gullible or easily-intimidated.
Hopefully, this lawsuit (and its previous one) will take the last few pennies out of its falling stock price and force it to return to whatever it was that it was doing when it was d/b/a Stevia Agritech Corp. or Kids Only Market Inc
. There are much better ways to pursue alleged infringers (like: not at all!) than abusing or skirting every law on the books that relates to the chosen "business model." At this point, Rightscorp's tactics appear to be every bit as toxic as its stock price.
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Posted on Techdirt - 23 February 2015 @ 5:50am
Germany-based Total Wipes -- infringement cop to the stars (who don't care how idiotic their representation makes them appear) -- is still pursuing its unstated motto of "Quantität über Qualität." Why send targeted requests when you can just dump a bunch of unrelated URLs into a DMCA takedown request and let Google sort it all out?
TorrentFreak reports that Total Wipes is at it again, actively pursuing a lifetime achievement award in asinine takedown requests. It starts out by mistakenly effing with the EFF, generally not considered to be a good idea when you can't be bothered to uphold your end of the DMCA's sworn statement.
‘Protecting’ an album called “Cigarettes” on Mona Records, Total Wipes sent Google a notice containing not a single infringing link. Unbelievably one of the URLs targeted an article on how to use PGP on the Mac. It was published by none other than the EFF.
You'll notice that 'protecting' is surrounded by scare quotes, as should be anything Total Wipes "pursues" with its misfiring shotgun of a "business model." This particular takedown request
appears to have achieved maximum stupidity with its 55 swings of the URL, none of which make contact. But it gets so much worse.
Going after alleged pirates of the album “In To The Wild – Vol.7″ on Aborigeno Music, Total Wipes offer their pièce de résistance, the veritable jewel in their crown. The notice, which covers 95 URLs, targets no music whatsoever. Instead it tries to ruin the Internet by targeting the download pages of some of the most famous online companies around.
We've seen various rights holders' self-appointed spokesmen attempt to portray the word "free"
as synonymous with "infringement." Here, Total Wipes does the same, only with the word "download." Here are but a few of the 95 URLs "targeted"
by Total Wipes' anti-piracy "software."
A look at Total Wipes' "profile" at Google's Transparency Report shows the company has an appalling hit rate
. It may actually have paying clients, but they're barely being served. If Google wasn't compelled to treat every incoming request as legitimate, in order to avoid further condemnation and/or potential Congressional action, it would have booted this farcical "music group" long ago.
Pretty much everything Total Wipes says about its anti-piracy "service" is either laughable or provably false
Our carefully own created script uses the info you provide to deeply scan a vast range of IP networks, search engines, social sites, and other infringing locations for illegal instances of your content. Following a large group of data, our internal spider's scripts identify all links as valid or not, beginning the removal process. A consistently action of removing illegal instances of your content from all platforms drives higher sales.
If you manage to work your way past the broken, secondhand English, you're left with things like these:
"carefully… created script"
"internal spider's scripts identify all links as valid or not"
Well, obviously not. Unless "valid" simply means "live," rather than "infringing."
"removing illegal instances of your content… drives higher sales"
If someone could just introduce a little bit of evidence to back up this frequent assertion, that would be great
. Providing legal alternatives that are reasonably priced and easy to use drives sales better than stumbling around the internet on your "own created spider," asking Google to remove multiple instances of non-infringement. Artists who have willingly associated with Total Wipes' inadvertent argument for harsher bogus takedown sanctions
aren't doing themselves any favors. In their names, Total Wipes is repeatedly driving its anti-piracy clown car up to Google's door and unloading takedown after takedown loaded with more misses than hits.
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Posted on Techdirt - 23 February 2015 @ 3:52am
The DOJ wants to amend Rule 41 (Search and Seizure) to grant its agencies unilateral powers to hack any computer in the world. This would expand its reach beyond the US, using warrants granted by magistrate judges to facilitate searches and seizures of remote data. This would obviously open up a whole diplomatic can of worms, what with the FBI hacking into computers whose locations it can't ascertain until after the fact.
Not that the DOJ is bothered by the implications of the amendment it's pushing. It argues that the law already has determined searches in known jurisdictions legal. What's left to be established is whether it's similarly legal to search computers whose true location is unknown, thanks to the use of proxies and VPNs. That operating extraterritorially might cause some diplomatic strain or possibly even be illegal in the country the search takes place doesn't seem to have crossed its mind. In its opinion, this is the natural progression of Rule 41, which must be updated to reflect the change in technology.
Google has fired back at the DOJ in its comments on the proposed wording change, pointing out not only the damage it could cause to international relationships, but also its further dismantling of Fourth Amendment protections.
Although the proposed amendment disclaims association with any constitutional questions, it invariably expands the scope of law enforcement searches, weakens the Fourth Amendment's particularity and notice requirements, opens the door to potentially unreasonable searches and seizures, and expands the practice of covert entry warrants.
Google then suggests that if the DOJ wishes to keep stripping away these protections, it should have the decency to do it the way it's usually been done: through acts of Congress.
The substantive changes offered by the proposed amendment, if they are to occur, should be the work of congressional lawmaking. Such was the case with a slew of legislation providing law enforcement with the ability to use technological means to conduct invasive searches on targets, including the Foreign Intelligence Surveillance Act, which provides law enforcement with the ability to legally surveil and collect foreign intelligence information; Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which provides law enforcement with the ability to legally intercept wire, oral, and electronic communications; the Stored Communications Act, which provides law enforcement with the ability to legally access electronically stored communications; and the Pen Registers and Trap and Trace Act and USA PATRIOT Act, both of which provide law enforcement with the ability to legally intercept real-time telephony metadata. In passing this legislation, Congress was able to openly debate and weigh the various constitutional issues at play.
This would seem to be the least
the DOJ can do, rather than trying to sidestep the process it forces American citizens to use
"I empathize that it is very hard to get a legislative change," Amie Stepanovich, senior policy counsel with Access, a digital-freedom group, told the judicial panel during a meeting called to review the proposal in November. "However, when you have us resorting to Congress to get increased privacy protections, we would also like to see the government turn to Congress to get increased surveillance authority."
Google also warns that the non-specific wording of the proposal lends itself to all sorts of shady tactics.
There are a myriad of serious concerns accompanying the government's use of NITs [Network Investigative Techniques]. These are outlined in detail in other comments submitted to the Committee and include, among other things, the creation of vulnerabilities in the target device thereby increasing the target's risk of exposure to compromise by other parties, actual damage to the target device, the creation of a market for zero-day exploits, and unintended targets' exposure to malware. Additionally, the remote facilities accessed by the government may in fact identify and disclose the 'hack' or take action to prevent it or retaliate against its use. These are serious concerns that are more appropriately considered and balanced by Congress than by the Committee.
Again, with the exception of the eventuality listed last, these are side effects the DOJ couldn't care less about. Collateral damage is almost always acceptable, and at this point -- considering what we've learned about the tactics deployed
by the NSA and other intelligence agencies -- making things worse and less safe for the world's citizens is just another essential part of fighting Wars on Things.
The DOJ seems to view its proposal as a necessity in the race against technological advance, rather than a dangerous expansion of power that could result in some very negative repercussions. Unfortunately, the nation's prosecutors
and magistrate judges
seem to be very much aligned with the DOJ. Both refer to the Rule 41 change as "filling a significant gap" in existing law.
But it does far more than that. The DOJ argues it's just a needed tweak, but it gives its agencies unprecedented extraterritorial powers and encourages these investigators to view anonymous connections as inherently suspicious.
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