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Posted on Techdirt - 5 May 2015 @ 9:04pm

DOJ Handing Out $20 Million For Police Body Cameras

from the finally,-a-law-enforcement-grant-that-doesn't-involve-military-gear dept

The Department of Justice is looking to help equip more law enforcement officers with body cameras.

The Obama administration is spending $20 million on police body cameras, amid rising tension over police violence.

The announcement from the Justice Department on Friday would create a new pilot program to equip police in dozens of cities with the devices, as the first step in a $75 million three-year effort that President Obama requested from Congress in December.

“This body-worn camera pilot program is a vital part of the Justice Department’s comprehensive efforts to equip law enforcement agencies throughout the country with the tools, support and training they need to tackle the 21st century challenges we face,” Attorney General Loretta Lynch said in a statement shared with media outlets. “Body-worn cameras hold tremendous promise for enhancing transparency, promoting accountability and advancing public safety for law enforcement officers and the communities they serve.”
One-third of the first $20 million will be routed to "small law enforcement agencies" -- the ones least likely to adopt this technology due to the cost of acquiring cameras. While grants towards initial purchases are helpful, unless there's more money on the way, ongoing maintenance and video storage costs will still be stated as reasons to avoid equipping officers with cameras.

This is a good move forward, though, even if simply equipping cops with cameras isn't a quick fix for law enforcement misconduct. As it stands now, most camera-equipped officers still exercise a great deal of control over what actually gets captured. And police departments -- often aided by sympathetic legislators -- are working quickly to limit the public's access to body camera recordings.

While there have been reports that body cameras have lowered both citizen complaints and use of force incidents, there's still more than enough released body cam footage that indicates it will take more than realizing they're being recorded to deter certain officers' abusive behavior and excessive force.

For instance, here's some footage captured by a Utah police officer's body cam that shows he and his fellow officers unleashing a police dog on a person with both hands in the air (while claiming the suspect "might have had a weapon" [that he was going to pull with his feet?]). Knowing a camera was running didn't result in any additional restraint by the officers.

Then there's the matter of the "extra rights" many officers have secured through police union pressure and law enforcement-friendly lawmakers. In addition to maintaining control over the release of footage, officers in some cities are given up to three days to review evidence before making a statement -- or even answering questions about the incident itself.

The administration's decision to fund body camera efforts is an implicit criticism of the current state of American policing. Police officers are well aware of what message is being sent by the deployment of these cameras. Even though captured footage also holds the power to exonerate wrongly-accused police officers, this fact is seldom mentioned by those critical of these programs. Instead, officers and their representatives suddenly develop concerns about the public's privacy -- something they've never expressed much interest in over the past several -- and mostly unrecorded -- decades.

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Posted on Techdirt - 5 May 2015 @ 3:48pm

Citizens Looking To Safely Record Interactions With Law Enforcement Have A Couple Of New Options To Consider

from the automated-accountability dept

The ACLU has a "new" app available that allows users to record interactions with the police and automatically upload them to the ACLU's servers to preserve the footage in case the phone is seized… or smashed on the ground.

The app itself is not new, although it is new to California. Previous ACLU apps that serve the same purpose have already debuted in New York (as "Stop and Frisk Watch"), New Jersey (the now-defunct "Police Tape" app that generated 'flash mob' fears all the way across the country in Burbank, CA), Mississippi, Oregon, Nebraska and Missouri.

Each version has been tweaked to comply with local recording laws and presumably more versions are on the way. The Mobile Justice app also provides a handy list of rights citizens have when interacting with law enforcement (subject to law enforcement recognition of those rights, of course) as well as incident forms that can be filled out post-interaction to give the ACLU more detail on the recording itself.

Inarguably, it has been footage obtained by citizens that has blown the lid off police misconduct in this country -- ranging from seemingly routine harassment of camera-wielding citizens to incidents like the death of Walter Scott at the hands of South Carolina police officer Michael Slager, who shot him in the back as he was running away.

If your local ACLU chapter hasn't put together an app to automatically archive recordings of law enforcement interactions, there's another app on the way that will give anyone the ability to capture footage and ensure that, not only will it survive attempts to destroy evidence, but that it will possibly be seen by others as the event unfolds.

[O]ver the course of the weekend, developer Marinos Bernitsas demoed an app that immediately begins recording live audio and video as soon as you tap the app’s icon, but doesn’t actually display the video stream being recorded on the smartphone’s screen.

Meanwhile, instead of having the stream sent out to the public via social networks like Twitter, only designated contacts you’ve previously configured in the app’s settings are alerted to the incident via phone calls and text messages.
Unlike the ACLU's app, Bernitsas' program isn't specifically aimed at police accountability. It's also meant to act as a form of protection against any potentially dangerous interaction. Because it hasn't been crafted with an eye on local recording laws, there's a chance that footage captured could result in charges being brought against the person recording and streaming the incident.

It does have two advantages over the ACLU's app: First off, the app doesn't need to be opened to initiate a recording. Secondly, anyone who grabs the phone will have little clue they're being recorded. The only indicator that anything out of the normal is happening is a red banner across the top of the screen, which may look like nothing more than phone UI customization. The app also makes it possible to capture and stream recordings in areas where coverage is less-than-optimal.
What’s also clever about the app is that even if the user loses their Internet connection, Witness will record video in 10-second chunks and store them locally on the end user’s iPhone. When their connection returns, that video is uploaded to the server.
With the footage going to any contacts the user chooses rather than a neutral party only interested in certain incidents and interactions (like the ACLU), this app holds potential for abuse. One could easily "repurpose" this public safety app to stream sexual encounters, private conversations, etc.

The upside of this downside is that doing so will violate many states' wiretapping laws, which would provide for prosecution of those who use this app for purposes other than what was intended. That the perpetrator creates his or her own damning evidence is helpful and one would imagine captured footage (if still stored at the pass through point) could easily be obtained from Witness' servers with a subpoena. The ACLU notes that footage sent to it is also potentially accessible to law enforcement via subpoenas or other court orders, but does point out that it will fight these requests, rather than simply hand over whatever's requested.

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

Police Department Says It Will No Longer Be Accepting Motel 6's Nightly Guest Lists

from the too-much-potential-downside,-apparently dept

In a remarkably swift turnaround -- no doubt prompted by some media backlash -- the Warwick, RI, police department has announced it will no longer be accepting late night guest list faxes from Motel 6.

Police Chief Stephen M. McCartney has discontinued the short-lived practice of accepting a copy of the Motel 6 daily guest list to see if any of the lodgers should be investigated.

He said he was concerned about the legal ramifications of the practice, including the possibility that the list could become a public record under the state’s Access to Public Records Act. He said an invasion-of-privacy lawsuit against the city also would have been possible.

“The information is sensitive,” McCartney acknowledged Friday. “All we’re doing is raising a lot of eyebrows about things that we quite frankly don’t need to have.”
It should be noted that the Warwick PD never asked for this information in the first place. This was all on Motel 6, with an assist from Mayor Scott Avedisian. While there were concerns about criminal activity at the motel, it appeared to be mayoral and council pressure that prompted Motel 6's move, rather than demands from the police department.

It was Mayor Avedisian who smugly announced "We know everyone who is staying in the motel tonight," and it was Mayor Avedisian who was hoping to use Motel 6's obsequiousness as leverage to obtain similar nightly lists from other hotels and motels in the area. But it appears all of that is now off the table. If the police aren't going to accept or use the lists, what's the point in making anyone send these over?

The mayor -- who immediately claimed the faxed guest list was already leading to arrests -- has his assertion toned down by the police chief when he stated his department wasn't actually running criminal background checks on guest names.
On April 14, Mayor Scott Avedisian reported that there had been four arrests on undisclosed charges arising from the motel having provided the guest list. On Friday, McCartney qualified that statement, saying that the arrests over nine or 10 days might or might not have been the result of checking the list.

Receiving the information would have allowed the police to inquire about each name in their own records or in criminal databases, but McCartney said that since the policy was announced, that had not been done.

“I was collecting the data but I was not doing anything with it,” he disclosed.
The police still retain the privilege of stopping by and taking a look at the guest list whenever it wants to -- something similarly enjoyed by police departments across the nation. This warrantless access to motel records is currently being challenged in the Supreme Court, but for now, these are still nothing more than "business records" afforded no expectation of privacy thanks to the Third Party Doctrine.

The policy going forward will be checking on motel guests lists only when there's a "reasonable suspicion" that a guest may be wanted for or involved in criminal activity, which is certainly more protective of guests' privacy than running guests lists against criminal databases every 24 hours.

The Motel 6 has also posted a sign notifying potential guests that their information may be turned over to law enforcement, something that may encourage criminals to stay elsewhere and give the privacy-conscious heads up that renting a room nullifies a lot of privacy expectations.

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Posted on Techdirt - 5 May 2015 @ 4:09am

New York Times Publishes Name Of CIA's Drone Strike 'Architect' While Other Media Outlets Pretend This Is Still Some Sort Of Secret

from the 'unnamed'-means-'unaccountable' dept

The New York Times' recent coverage of the fallout from a targeted drone strike that took out two hostages -- one American, along with the suspected terrorist -- contained a detail missing from many other new outlets' coverage of the same incident: Michael D'Andrea.

D'Andrea is the "architect" behind the CIA's targeted strike program. D'Andrea's name had never been previously published by a major news source (although it had been outed elsewhere). The Washington Post -- in its pre-Snowden leak days -- featured a long profile of the chain-smoking Islam convert that included several personally-identifiable details about D'Andrea… but not his name.

Unfortunately, the Post's experience with Snowden didn't affect its stance on the publication of this official's name. Perhaps still too reliant on government assertions that naming D'Andrea would increase the risk of him being targeted by terrorists, the Post left his name out of a more recent article on his reassignment as part of a CIA reorganization.

The Post and the New York Times have both published leaked documents and both have become less willing to oblige obfuscatory requests by government officials over this time period. New York Time's executive editor Dean Baquet explained his paper's decision to publish D'Andrea's name this way:

Baquet said the Times would not reveal names in a gratuitous way, but Sunday's drone story demanded it.

“The whole story was about accountability,” he said. “In a story about accountability, how could you not mention the guys who run the program?”
Accountability is key. As long as journalistic operations continue to allow the government to decide whose names are printed, accountability will remain nothing more than an ideal towards which the government would prefer not to stride. The Post's decision to defer to government officials in its March story about D'Andrea is "explained" by a couple of sentences that could have been copied directly from an (unnamed) official's email.
Because he remains undercover, The Washington Post has agreed to withhold his full name. He has been publicly identified in the past by both his actual first name, Mike, as well as that of his CIA-created identity, Roger.
But leaders of the CIA's counterterrorism programs aren't "undercover" by default. As Gawker points out, previous occupants of D'Andrea's position weren't exactly concerned about exposure "risks."
D'Andrea's predecessor at the counterterrorism center was also treated as an undercover operative, but the position has historically been occupied by real, named senior government officials. The center's founding director was Duane "Dewey" Clarridge, a man who is not afraid of talking to reporters. Cofer Black, who ran the center during and after 9/11, was repeatedly named as such in the Post and trades on the experience to market himself as a paid speaker. Robert Grenier, who has also been named by the Post, highlighted the gig on the cover of his book.
D'Andrea wasn't (and isn't) an operative working in CIA field operations. He's an official (or was until recently) with the power to order drone strikes on foreign soil without even needing to verify the identities of those he's sentencing to death. That's too much power to hand over to someone who can't be held accountable -- not even in the most minimal fashion -- by the American public. These strikes have resulted in the death of several civilians, at least in part because D'Andrea sought -- and obtained -- permission to bypass the supposed "rules" of targeted drone strikes. When something goes wrong -- and it will -- there needs to be someone at the top of the line, known to the public, who should answer for it.

Even though the name is public knowledge (and has actually been so for a few years now), other members of the press are still acting as though it's possible to keep his identity a secret by simply refusing to do what the New York Times did.
When Times reporter Matt Apuzzo, who co-wrote the CIA drone story, appeared on MSNBC’s “Morning Joe,” co-host Mika Brzezinski signaled at the start that the segment wouldn’t veer into the agents’ identities.

“There’s a couple of different angles on this story,” Brzezinski said. "We’re going to not name names here.”
By doing this, these outlets are no better than the government they're protecting. Our intelligence agencies and various law enforcement counterparts still believe there's a way to retroactively apply secrecy to information already in the public domain. MSNBC's refusal to name names is no different than the DOJ claiming that documents it wants to keep secret are still secret simply because the order to hand them over to the public didn't originate from the DOJ itself.

Far too many articles on highly-controversial subjects contain quotes attributed only to "unnamed officials." The New York Times does this just as often as any other outlet, but at least it has shown it won't continue to obfuscate this detail about the CIA's drone strike program. Of course, the "damage" to D'Andrea is somewhat mitigated by his recent reassignment to elsewhere within the CIA, but it does at least allow the public to put a name to the faceless killings.

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Posted on Techdirt - 4 May 2015 @ 2:32pm

DOJ Apparently Last To Know About Widespread Stingray Usage/Secrecy; Vows To Look Into It

from the 'what-is-the-deal-with-all-these-Stingrays?'-no-longer-rhetorical dept

Considering the number of documents confirming the FBI's stranglehold on Stingray device information that have been made public in recent months (including the FBI's nearly-blank 5,000-page FOIA response), this move by the DOJ is a surprising development.

The Justice Department will start revealing more about the government’s use of secret cellphone tracking devices and has launched a wide-ranging review into how law-enforcement agencies deploy the technology, according to Justice officials.

Senior officials have also decided they must be more forthcoming about how and why the devices are used—although there isn’t yet agreement within the Justice Department about how much to reveal or how quickly.
So… caveats, obviously. There's more on the way, but we don't know when we'll get it, or how much it will actually be, but at least the DOJ will finally be taking a look at a technology that's being deployed by law enforcement agencies -- often without warrants. And when they do use warrants, they're often obtained with misleading affidavits so as to comply with the non-disclosure agreements the FBI forces them to sign before deploying the devices.

This is also surprising, considering the FBI wrote itself a large enough loophole to ensure it never needed to bother with this sort of paperwork.
In recent months, the Federal Bureau of Investigation has begun getting search warrants from judges to use the devices, which hunt criminal suspects by locating their cellphones, the officials said. For years, FBI agents didn’t get warrants to use the tracking devices.
One wonders how the Wall Street Journal knows this, considering the FBI is the last agency that would publicly confirm or deny anything about its Stingray usage. Perhaps some more documents are on the way whether the FBI likes it or not…

But it appears outside scrutiny has finally forced the DOJ to confront the all-encompassing secrecy surrounding Stingrays -- something that routinely excludes defendants and judges and sometimes stretches far enough to lock out other "good guys," like prosecutors and states' attorneys.

For the first time ever, legislators are beginning to ask uncomfortable questions about the technology. While the FBI can apparently blow off a majority of the US population -- including the judicial system -- it's not going to have nearly as much luck fending off determined lawmakers. The technology it loves could become the technology it can no longer have -- or at least see it subjected it to a number of requirements that would make it much less enjoyable to deploy.

Congressional scrutiny is never comfortable. But another contributing factor is the entities directly and indirectly involved with tracking cell phones: service providers. They're unhappy and they've got a pretty good idea how often requests for data are heading their way and how specious or redundant the requests are.
Federal law-enforcement and phone-company officials also have expressed concerns that some local police authorities were abusing a legal shortcut by submitting an inordinate number of requests for cellphone information, according to people familiar with the matter.
Some of this is parallel construction. Some of this is abuse of an avenue previously used to acquire specifically-targeted information: pen register/trap and trace orders. It's already public knowledge that law enforcement agencies -- backed by the FBI's own legal rationalizations -- are using these to cover Stingray usage and/or bypass warrant requirements.

On top of this, law enforcement agencies are busy ensuring that the words "exigent circumstances" become as meaningless as "relevant" or "probable cause."
About a year ago, Baltimore police officials began deluging some phone companies with requests for customer cellphone information, claiming it couldn’t wait for a judge’s order, according to people familiar with the matter. Normally, police need a court order to get that kind of information about a phone customer. But there is an exception for emergency requests. Phone companies’ rules vary, but they generally allow emergency requests to be fulfilled in missing-persons cases or when there is a risk of death or serious injury. Typically, the phone company employee doesn’t ask questions to verify the nature of the emergency.
No doubt the Baltimore PD used the hell out of this loophole, what with its 4,300 Stingray deployments over a seven-year period.

Whether this examination by the DOJ will result in any meaningful changes is debatable. It could easily decide that everyone's following all the rules, at least as far as the FBI's interpretation of statutes governing pen register orders. That it's actually securing warrants is a positive sign, but it would be nice to see if the affidavits actually specify the devices used to perform the "search." It's one thing to gather data on phone calls. It's quite another to lock down where that phone is located by sifting through everyone's data while pretending to be a cell tower -- especially considering the devices also have the capability to intercept certain communications.

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Posted on Techdirt - 4 May 2015 @ 8:10am

US Presidential Election Is So Corrupt Even The Person In Charge Says She Has No Power To Stop Abuse

from the pay-to-play dept

If you were holding onto the faint hope that federal election campaigns were ever going to be anything but "buy your way into office" spending sprees, you may as well kiss it goodbye. The Federal Election Committee's head has just admitted her agency is completely powerless to do the one thing it's supposed to be doing.

The leader of the Federal Election Commission, the agency charged with regulating the way political money is raised and spent, says she has largely given up hope of reining in abuses in the 2016 presidential campaign, which could generate a record $10 billion in spending.

“The likelihood of the laws being enforced is slim,” Ann M. Ravel, the chairwoman, said in an interview. “I never want to give up, but I’m not under any illusions. People think the F.E.C. is dysfunctional. It’s worse than dysfunctional.”
It's not often you hear a public official openly state that the agency under her control can't do its job. Usually, excuses are made, bucks are passed and talking points spun to give the illusion that agencies are not only capable of performing their duties, but could be oh-so-much-better if they weren't hobbled by everything but themselves. This is refreshing -- if ultimately depressing -- honesty.

Much of the problem is the system itself. Like the elections it's unsuccessfully regulating, it's subject to the whims of two diametrically-opposed political parties. There are six commissioners: three Democrats and three Republicans. What was intended to be fair has instead devolved into gridlock, with the two parties rarely reaching an agreement on anything. This is the behavior of the supposed adults in the room:
Some commissioners are barely on speaking terms, cross-aisle negotiations are infrequent, and with no consensus on which rules to enforce, the caseload against violators has plummeted.
With the Supreme Court's Citizens United decision loosening restrictions on campaign spending, it has been left up to the Commission to police campaign funding abuse. Sadly, it's not that the Commission lacks the power to do so. It's that it lacks commissioners willing to rise above the base level of partisan politics to do it.

Again, these are the people -- all supposedly mature adults -- who are supposed to be safeguarding the electoral process.
[T]he six commissioners hardly ever rule unanimously on major cases, or even on some of the most minor matters. Last month at an event commemorating the commission’s 40th anniversary, even the ceremony proved controversial. Democrats and Republicans skirmished over where to hold it, whom to include and even whether to serve bagels or doughnuts. In a rare compromise, they ended up serving both.
There's $10 billion headed into the pockets of presidential candidates, and commissioners aren't going to do much more than taxpayer-funded paychecks while muttering insults at opposing party members. And while the Oval Office goes on the auction block, the Commission will be arguing over baked goods.

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Posted on Techdirt - 1 May 2015 @ 6:36pm

FBI Hands Over 5000 Pages Of Stingray Info To MuckRock, Redacts Nearly All Of It

from the [NOTHING-TO-SEE-HERE] dept

MuckRock has obtained a whole stack of Stingray-related documents from the FBI. As is to be expected, there's not much left unsaid by the agency, which is at least as protective of its own Stingray secrecy as it is with that of law enforcement agencies all over the US.

There's nearly 5,000 pages of "material" here, most of which contains only some intriguing words and phrases surrounded by page after page of redactions.

Want to know [REDACTED]'s thoughts on the possible legal implications of Triggerfish? Just close your eyes and allow your imagination to run free.

Here's a quick reference guide that allows FBI agents to quickly match up their chosen "technique" with the appropriate legal standard and process.

That's not to say there's nothing of interest left intact. A few pages explain the FBI's legal rationale for IMSI catcher deployment -- including the fact that the Patriot Act expanded the reach of pen register orders to include not just numbers dialed, but also the location of the phone itself. This allows the FBI and other law enforcement agencies to route around one of CALEA's (Communications Assistance for Law Enforcement Act) few limitations related to pen register orders: that service providers not be required to hand over subscriber location info.
In passing CALEA in 1994, Congress required providers to isolate and provide to the government certain information relating to telephone communications. At the same time that it created these obligations, it created an exception: carriers shall not provide law enforcement with "any information that may disclose the physical location of the subscriber" in response to a pen/trap order… By its very terms, this prohibition applies only to information collected by a provider and not to information collected directly by law enforcement authorities. Thus, CALEA does not bar the use of pen/trap orders to authorize the use of cell phone tracking devices used to locate targeted cell phones.
But, for the most part, it's 5000 pages of this:

And this (from a document titled "Stingray for Dummies"):

It's not a complete loss, although it's clear the documents suffer from over-redaction. The FBI clearly doesn't want to discuss methods or technical details, but nothing in the multiple FOIA exemptions deployed justifies covering up its minimization procedures or where the device sits in terms of the Fourth Amendment.
"It does not seem credible to me that they can't release more of those kinds of records," [ACLU attorney Nate] Wessler told me. "Information about ongoing investigations, highly technical details of the devices, how they're put together, those kinds of things, redact them, fair enough. Information about whether they have to get a warrant or not, how they purge or do not purge bystanders data. They're clearly talking about those things."

"There's no conceivable reason why they shouldn't tell the public what their Fourth Amendment rights are protecting when they use these," he added. "The documents are not without value, but what the FBI has released is not adequate."
If nothing else, the documents have given a small, narrow glimpse behind the FBI's veil of secrecy -- as well as some more insight into its Stingray-related legal maneuvering. The FBI has managed to turn a pen register order -- something previously used to collect dialed numbers -- into something that can be deployed to locate an individual, or at least their cellphone. Unsurprisingly, this legal theory traces back to the Patriot Act, one of the largest expansions of intelligence and law enforcement powers ever produced by the US government.

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Posted on Techdirt - 1 May 2015 @ 9:38am

Who Pays When The DEA Destroys Your Vehicle And Kills Your Employee During A Botched Sting? Hint: Not The DEA

from the law-enforcement:-still-hazardous-to-innocent-Americans dept

The DEA likes to borrow stuff. It's just not very good about returning borrowed items in the same shape it got them.

Like a woman's Facebook account.

Or a businessman's semi truck.

And his employee's life.

Craig Patty runs a tiny trucking company in Texas. He has only two trucks in his "fleet." One of them was being taken to Houston for repairs by his employee, Lawrence Chapa. Or so he thought.

In reality, Chapa was working with the DEA, which had paid him to load up Patty's truck with marijuana and haul it back to Houston so the DEA could bust the prospective buyers. That's when everything went completely, horribly wrong.

[A]s the truck entered northwest Houston under the watch of approximately two dozen law enforcement officers, several heavily armed Los Zetas cartel-connected soldiers in sport utility vehicles converged on Patty’s truck.

In the ensuing firefight, Patty’s truck was wrecked and riddled with bullet holes, and a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy who was mistaken for a gangster.

The truck’s driver was killed and four attackers were arrested and charged with capital murder.
Until Patty received a call notifying him that his employee had been killed, he was completely unaware of the DEA's operations involving both his truck and his driver. Unbelievably, things got even worse for Patty after this discovery.

Patty's truck was impounded by the DEA. After it was released to him, it was out of service for several months as it underwent more than $100,000-worth of repairs. The DEA offered him no financial assistance for the truck it helped fill with bullet holes nor did it offer to make up for the revenue Patty lost while his truck was out of commission. His insurance company likewise turned down his claim, citing his truck's use in a law enforcement operation.

Nor did the DEA offer to do something to repair his newly-acquired reputation as a drug runner and/or DEA informant -- something that makes Patty's life a little bit more dangerous.

Nor will it have to. A federal judge has dismissed Patty's lawsuit against the DEA seeking up to $6.4 million in damages. (h/t to attorney Mark Bennett, who previously advised Patty but did not represent him in this lawsuit.)
A Houston-based federal judge ruled that the U.S. Drug Enforcement Administration does not owe the owner of a small Texas trucking company anything, not even the cost of repairing the bullet holes to a tractor-trailer truck that the agency used without his permission for a wild 2011 drug cartel sting that resulted in the execution-style murder of the truck’s driver, who was secretly working as a government informant.
The government argued that it is neither culpable for the damage nor under any obligation to inform the owner of any property that it wishes to use in its operations, because "clandestine."
No statute, regulation, or policy “specifically prescribe[d]” or prohibited the course of action Patty alleges the DEA agents followed. The DEA derives its authority from the Controlled Substances Act, 21 U.S.C. § 801, its implementing regulations, and various executive orders…

In this case, Task Force Officer Villasana submitted a similar declaration. He states that the DEA’s decision “to proceed with such an operation is entirely discretionary, and not mandated by any statute, rule, or policy.” Whether and how to conduct such an undercover investigation and operation is “necessarily discretionary in nature.” Villasana did not try to give advance notice to Patty that the Task Force would be using his truck because of operation’s covert nature, the risks of injury and potential for damage if something went wrong, and the uncertainty about whether other individuals (including Patty) could be trusted.
Patty responded that Villasana's own testimony ran contrary to this declaration's assertions.
Patty argues that DEA policy prohibited Villasana’s actions… He points to Villasana’s deposition testimony that “[i]f we’re going to use somebody else’s vehicle, we have to have permission,” and that “if [Villasana] knew who the owner was and the informant would have said to [him], Hey, listen, so-and-so, [the owner] owns this truck and I’m going to do this, [he] would say, Well, we need to get ahold of [the owner].”
The judge points out that Villasana also testified that he was "not aware" of any policy instructing him to notify the vehicle's owner of its potential use in a drug sting operation, nor was he under any obligation to even determine the identity of the owner through DMV records. No permission was needed, at least not as stipulated by DEA policy. What Villasana spoke of in his testimony was something left solely to his discretion.

So, it would appear the government -- especially law enforcement agencies -- can take stuff but are under no legal obligation to return it in working order. Nor are they expected to compensate the owner for any damage sustained.

This argument, perhaps the most solid of the multiple presented, dead ends thusly.
In any event, Patty fails to explain how these constitutional provisions specifically prescribed a different course of conduct or specifically proscribed what the officers did. The record shows that the DEA task force members did not know Patty’s name, were under the impression that his driver was the vehicle’s rightful lessee, and third parties caused the vehicle damage. To borrow a phrase from qualified immunity law, Patty has not shown that the “clearly established law” in place when the undercover operation was planned and implemented made the officers’ conduct unconstitutional.
In the end, it's the crime-fighting ends that justify the means -- even if the means include destroying half of a businessman's fleet of vehicles and turning him into a potential drug cartel target.
Orchestrating a covert controlled drug delivery using a vehicle and driver unconnected to any law enforcement organization to obtain evidence against a suspected drug cartel smuggling operation to prosecute those responsible fits within and furthers these policy goals. Deciding to carry out the operation without giving the vehicle owner advance notice and obtaining his consent is consistent with maintaining the covert nature of the operation and therefore with the policy goals.

Patty argues that Villasana’s testimony shows that he did not make a conscious decision whether to get Patty’s permission to use the truck, and therefore did not consider public-policy interests. But “the proper inquiry under prong two is not whether [the government actor] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was ‘susceptible to policy analysis.’” Spotts v. United States, 613 F.3d 559, 572 (5th Cir. 2010) (quoting Gaubert, 499 U.S. at 325). Courts have consistently held that covert law-enforcement operations like the one at issue here are susceptible to policy analysis and covered by the discretionary function exception.
Furthermore -- quoting previous Eighth and Ninth Circuit Court decisions:
"...discretionary, policy-based decisions concerning undercover operations are protected from civil liability by the discretionary function exception, even when those decisions result in harm to innocent third parties."
TL; DR, courtesy of Andy Vickers, Patty's attorney:
A federally deputized corporal from the Houston Police Department decides to pay your small company’s driver to drive your truck to the Mexican border, load it up with illegal drugs, and try to catch some bad guys. He knows that the driver is lying to “the owner” – although he doesn’t know your name or identity and doesn’t bother to find out. The bad guys outwit the cops. Your company’s driver is killed. Your truck is riddled with bullet holes.

Query:   is our federal government liable to pay for the damages to you and your property?

Answer:   Nope.
Law enforcement immunity, combined with deference towards the judgment of those in the business of busting bad guys means it's almost impossible to force the government to reimburse private citizens for property taken without permission and damaged during the course of its "covert" use. Maybe the DEA could just bypass the legal process and cut Patty a check for the repairs? You know, just to be "neighborly" and show that we're all Americans here and no one -- not even the Drug Enforcement Agency -- is "above' making amends when things go horribly wrong.

Not a chance. To do so without an accompanying legal piece of paper explaining how this payment is not an admission of wrongdoing would be to admit fault, however implicitly. And the government doesn't want to be facing any more lawsuits than it already does. In this case, it saw a chance for a swift, cheap dismissal (thanks to some poorly-aimed arguments) and took it. And, barring a successful appeal, the decision continues the trend of courts finding law enforcement officers and federal agents culpable for their actions in only the most egregious cases.

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Posted on Techdirt - 29 April 2015 @ 9:05pm

Pentagon Also Looking To Set Up A Branch Office In The Silicon Valley

from the the-NEW-East-Coast/West-Coast-rivalry dept

It's officially a trend. US government agencies are making cross-country treks to Silicon Valley in hopes of talking tech companies into joining forces as they work towards thwarting the upcoming Cybergeddon.

President Obama’s newly installed defense secretary, Ashton B. Carter, toured Silicon Valley last week to announce a new military strategy for computer conflict, starting the latest Pentagon effort to invest in promising start-ups and to meet with engineers whose talent he declared the Pentagon desperately needed in fending off the nation’s adversaries.
I'm sure the government could use the help but sending pitchmen tied to domestic surveillance/crotch-grabbing airport "security" (as in the case of DHS Secretary Jeh Johnson) or extrajudicial killings/endless wars (as in the case of Carter and the DoD) isn't going to win many new converts. It's going to have even less success winning over those who've already decided there's no way they're partnering up with the US government, not after two years of leaked documents showing the NSA has backdoored hardware, software, mobile devices... basically anything these companies touch.

Carter wants to rebuild trust. He could start by declassifying a pile of documents on Dept. of Defense activities before some leaker does it for him, but he's really not here to offer increased transparency. All he's offering is the same talking point agencies have routinely deferred to when commenting on exposed surveillance programs.
“I think that people and companies need to be convinced that everything we do in the cyber domain is lawful and appropriate and necessary,” Mr. Carter told students and faculty at Stanford.
That sentence is full of truth, but fundamentally dishonest. Yes, people and companies need to be "convinced" that these government agencies are acting lawfully and only doing what's '"appropriate or necessary." But a really good place to start would be actually ensuring that government agencies act lawfully and only do what is appropriate and necessary. Simply claiming you are when the facts show otherwise doesn't do anything for anybody.

There's a CyberWar coming and the government is heavily scouting the West Coast for foot soldiers. If the government finds itself continually rebuffed by tech companies, will it decide to institute a cyberdraft? Legislators are pushing through bills to make "information sharing" -- something that would normally describe voluntary efforts -- mandatory. What Carter says sounds like he's prepared to initiate a cyber-Vietnam Conflict in hopes of heading off the next cyber-Pearl Harbor.
He urged the next generation of software pioneers and entrepreneurs to take a break from developing killer apps and consider a tour of service fending off Chinese, Russian and North Korean hackers…
Or, as Dealbreaker's Thornton McEnery refers to this pitch: "Lean in… or Die."

It's not just touching base with tech companies. The Pentagon wants an actual base in the Silicon Valley.
The Pentagon plans to open its first office in Silicon Valley and provide venture capital in an effort to tap commercial technology that can be used to develop more advanced weapons and intelligence systems.
The desire for bright, young minds is understandable. What isn't is the government's apparent belief that a few chats and moving into the neighborhood will somehow make years of uncovered abuses simply vanish. The outreach would be admirable if it wasn't mired in the usual talking points. The government should expect nothing from the tech world -- for years.

The DoD and DHS opening branch offices in the Silicon Valley just as cybersecurity bills edge closer to becoming law is no coincidence. Much like many military-industrial contractors build offices and plants in the Beltway area to ensure maximum access to legislators, the government must also have a West Coast presence if it wants to efficiently "lobby" for information sharing and surveillance-ready products and services. And let's not forget the government's desire to "share" information is still mostly about obtaining usable exploits and beefing up existing surveillance programs, rather than ensuring the security of its constituents. Any statements to the contrary aren't to be trusted.

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Posted on Techdirt - 29 April 2015 @ 4:01pm

3D Printer Creator Withholding Long-Delayed Shipments To Early Backers Over Supposed 'Defamatory' Comments

from the yeah,-that's-not-how-that-works dept

There are a lot of ways to deal with unhappy Kickstarter backers. Being generally unresponsive to complaints isn't a good idea. Withholding already-delayed shipments and blaming it on allegedly defamatory comments definitely isn't.

Cobblebot promised shipments to its earliest backers by October 2014. It's now April 2015 and some have yet to see the 3D printers they've paid for. Worse, other backers of other products by Cobblebot have already received theirs. (Cobblebot started another Kickstarter project shortly after this one was funded, as well as using IndieGogo to raise additional funds.) It's the earliest backers -- at least those who have been critical of numerous shipping delays -- who are still waiting for their paid-for printers to be shipped.

Whatever the real reason behind these delayed shipments, Cobblebot has chosen to portray this as a (highly dubious) legal issue.

One customer, who goes by the handle of JeffRandall on the Cobbleverse forum, recently contacted the company via email with the following message:

“Can you please tell me what the status is for my final shipment. I paid the final invoice over a week ago and I am one of the 99 super early bird backers [these backers had an expected delivery date which passed 6 months ago!]. The message from you was that the package had been prepared, yet it hasn’t shipped in over a week.”

Jeff received the following, rather alarming reply shortly after:

“Hello Jeffrey,

Sorry for the delay and an explanation is necessary. Your account was placed on hold by our legal department. Under Texas law, it is unlawful to engage in defamation of another’s character and reputation. The law presumes certain categories of statements are defamatory per se, including statements that (1) unambiguously charge a crime, dishonesty, fraud, rascality, or general depravity or (2) that are falsehoods that injure one in his office, business, profession, or occupation. Main v. Royall, 348 S.W.3d 318, 390.

Several of your recent posts on various internet forums were being reviewed by the legal department for inclusion in our fourth round of upcoming legal actions being filed to protect our company’s reputation from the illegal act of defamation.

All the above being said, we did receive a hold release from the legal department today and will proceed with the shipping of your package. What does it mean when the legal department releases a hold? It normally means one of two things: 1) The legal department has decided the reviewed statement(s) were not defamation under Texas law; or 2) They have decided to issue a warning (Cease & Desist letter) to provide the opportunity to stop defaming the company’s reputation.

Keep in mind that the support department does not have access to the legal department’s records, so we don’t know anything for certain. We are just attempting to explain the type of hold that we saw placed on your account and what that type of hold means.

In any case, the hold has been released and we will move forward with the shipping of your final package.
Thanks for supporting Cobblebot and have a wonderful day!

Cobblebot Team"
All in all, a ridiculous response. Why further anger an already angry customer? Especially when "Cobblebot Team" can't be bothered to specify what exactly Randall (or others) said that was "defamation per se." As Popehat's Maxim states: "Vagueness in legal demands is the hallmark of frivolous legal thuggery."

This legal vagueness is part of Cobblebot's colorful history. It's been complaining about comments by unhappy backers since August of last year. This post in its forums -- sporting the rather unreassuring title of "Everything is ON SCHEDULE" -- claims people are flooding its inbox with concerns about "defamatory" posts by others.
We have also been receiving a large number of emails concerning some of the negative publicity that we are getting from certain individuals, some 3D printing communities, and people who work for competing businesses. As someone who has been using the internet since back in the 1200 baud modem days, I can say with confidence that the internet has always been and will likely continue to be filled with very opinionated individuals. These individuals, regardless of their ignorance with regards to Cobblebot, our operations and suppliers, are entitled to their opinion. We are aware, as many of you have pointed out to us, that some of these individuals have crossed certain legal lines into things like defamation. While many of you have asked us if we plan to respond to these individuals or what we plan to do – I’m afraid that we cannot answer that question. Any action Cobblebot decides to take or not take to defend its reputation is an internal matter and will not be made public by us. That being said, we do appreciate the efforts that many of you have made to defend against some of the accusations being tossed around, as well as the efforts made to bring these things to our attention.
The most ridiculous claim in the C&D sent to Randall is this: that the "legal" arm of Cobblebot is completely walled off from the "support" side. In all likelihood, they are one and the same. The man behind Cobblebot is Jeremiah Clifft, who's also an attorney… or at least was one. This makes composing and sending C&D's full of scary legalese very, very cheap. It also indicates that -- even if there are two walled-off divisions of the "Cobblebot team" -- one man stands astride both, holding a recently-expired license to practice law.

To date, Cobblebot seems to have sent out more C&Ds than printers, apparently targeting customers unhappy with shipping delays, unkept promises (like the inclusion of assembly instructions/videos) and its general unresponsiveness to legitimate complaints.

Now, Cobblebot has every right to pursue truly defamatory comments, but there's a process for that and it should be wholly unrelated to the process of fulfilling backers' orders. By its own statements on the matter, its order fulfillment team is completely removed from its legal team. There's no reason these two should be mixing in this fashion, and they only appear to do so when it works out in Cobblebot's favor. Defamatory comments or no, the backers have paid for their products. They should be given what they've paid for.

To use this as an excuse to put shipments on hold just gives more credence to the theory that Cobblebot is making promises it can't possibly keep. Its own Kickstarter pitches suggest a move towards a more triangular business model.
So just how did CobbleBot manage to ship over 1,150 3D printers costing $299, when they themselves stated that the average price for a machine of this size is over 12 times that price, ‘$3,716.57’? Well, they haven’t.
It still has yet to ship more than a handful of these 3D printers, despite three successful crowdfunding campaigns. Now, it's apparently taking internet orders and shipping those first, all the while claiming defamatory statements by early backers are what's keeping them from receiving theirs. Something's rotten in this deal and it's not the heated comments of pissed off backers.

Additional suggested reading:

Cobblebot's Google+ page, which contains many more details on Cobblebot's shipping deficiencies.

A long and thorough explanation of how business models like Cobblebot's simply aren't feasible -- at least not at this point, as well as a few equations that can give backers a good estimate as to when similar Kickstarters will run out funding.

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Posted on Techdirt - 29 April 2015 @ 1:44pm

Government Agencies Love Expanding E-ZPass Coverage; Handling Data Responsibly, Not So Much

from the no-roadblocks-for-mission-creep dept

Traffic management may be the goal, but watch out for the mission creep. New York's E-ZPass system started out as an efficient way to keep traffic on toll roads running without interruption, but has expanded its coverage to areas where no tolls apply. A couple of years ago, a New York driver rigged up his E-ZPass transponder to light up every time it detected an E-ZPass signal. It lit up a lot.

E-ZPass swears the information collected by its system away from toll roads is only harvested "in aggregate" and "anonymized," and solely for the purpose of delivering data on traffic patterns. All well and good, but it's still the same technology it uses on actual toll roads, where vehicles are tracked individually and specifically. This information is turned over in response to court orders (both civil and criminal) as well as to a variety of government agencies, including the New York City's tax collectors and the Department of Homeland Security. It wouldn't take much to flip a switch and have E-ZPass track drivers all the way through the city, far from any toll roads.

New York's ACLU is concerned about this potential for abuse, as well as the system's use in general. It requested documents related to E-ZPass from a handful of New York government agencies and, somewhat surprisingly, received quite a bit of information in response. But among all the documents it secured, information pertaining to privacy policies and disposal of generated data was definitely in the minority.
The New York State Department of Transportation and the New York State Thruway Authority, for example, produced privacy policies that are vague and barebones. Those agencies report that the E-ZPass readers they use at non-toll locations work differently from those at toll locations. Part of a system called TRANSMIT, the readers electronically scramble identifying information about EZ-Pass accounts, assign an anonymous ID to each vehicle that passes through the system and dump the anonymous IDs every few hours…

The New York City Department of Transportation, more troublingly, appears to have never considered the impact of its study on New Yorkers’ privacy rights. In response to the NYCLU’s FOIL (request number 6), the city Department of Transportation responded that it has no policies or training materials on storage, retention, destruction and use of information generated by or collected from E-ZPass readers.
The NY DOT's response said this specifically:
...[no] responsive documents were found with respect to items 4, 6, 7, and 8 of your request.
These are the items the DOT claims it has no responsive documents for.
4. Documents, including but not limited to privacy policies and marketing materials, that describe the types of data that can be collected by E-ZPass Readers, when it will be collected, and how it will be used.

6. Policies and training materials describing the storage, retention, destruction, and use of information generated by or collected from E-ZPass Readers.

7. Policies and training materials describing when and how NYCDOT shares information and/or data gathered from E-ZPass Readers with other entities, including but not limited to the New York City Police Department, the Federal Bureau of Investigation, and the Drug Enforcement Administration.

8. All documents, redacted as necessary and permitted under law, describing or containing law enforcement requests to NYCDOT for information gathered from E-ZPass Readers in New York City since January 1, 2012, including the response to the requests.
Not exactly comforting, considering there's been no effort on the part of any of the involved agencies to inform the public that E-ZPass is scanning their devices in areas far removed from toll roads. While E-ZPass may only harvest aggregate, anonymous data currently, that could change at any time and its silence on its expanded coverage area doesn't exactly give hope that it will be forthcoming should an outside agency (like the surveillance-happy NYPD or the DHS) start requiring it to track drivers throughout New York City.

What is collected about each specific vehicle from scanners on toll roads isn't being handled responsibly either. While the policies make it pretty clear that this data won't be handed out to everyone who comes asking (like commercial third parties), it is certainly willing to provide info when hit with a subpoena from a government agency. As we've seen in the past, government entities who have direct access to E-ZPass data have abused it for political reasons. The harvesting of data is the necessary byproduct of assessing toll fees, but running the system for years with nothing in the way of disposal policies only increases the potential for abuse.

Finally, no Freedom of Information story is complete without some sort of ridiculous redaction being pointed out. The NY Thruway Authority returned this 9-panel abstract art piece to the NYCLU under the tile "ITS Manual." ("ITS" presumably stands for "Intelligent Transportation Shaping," and copies of other ITS manuals can be found scattered around the internet -- wholly unredacted.)

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Posted on Techdirt - 29 April 2015 @ 9:42am

The Exposure Of CIA Torture Is Finally Costing Someone A Job: Former Senate Staffer Alissa Starzak

from the halls-of-power-still-clogged-with-assholes,-apparently dept

Oh, good. As if there was ever any doubt that the exposure of CIA torture was never going to result in anyone involved being held responsible, the current push to knock a former Senate staffer off her career path further confirms the government's preference for shooting messengers.

Alissa Starzak, a former Democratic majority staffer on the Senate Intelligence Committee, played a critical and controversial role during her time on the panel: She was a lead investigator for the torture report, and was one of two staffers involved in an ongoing feud over damning internal CIA documents obtained by the committee.

Currently serving as deputy general counsel for the Defense Department, Starzak was nominated last July to serve as general counsel to the Army.

But the critics of the torture investigation -- namely, Senate Intelligence Committee Chair Richard Burr (R-N.C.) -- are orchestrating a quiet campaign to stall Starzak's nomination.

Burr confirmed to The Huffington Post that he is working to keep the former investigator from getting approved by the Senate.
This would be the same Richard Burr who ridiculously demanded everyone in possession of the full, unredacted CIA Torture Report return their copies immediately, presumably so he could memory-hole the damning documents as quickly as possible.

So, while everyone else involved walks away with their careers pretty much intact -- and covered by the president's mawkishly-worded admission that "we tortured some folks" -- Starzak will be about the only person to emerge from this horrific debacle with her options limited.

The Senate Intelligence Committee is divided against itself. Feinstein tackled the CIA's torture programs, facing down fellow committee members while doing so. Since Burr can't hang Feinstein -- largely because she's still a very hawkish on NSA surveillance -- he's just going to fit Starzak with a noose and hang Feinstein in effigy.

Starzak wasn't involved with the torture review for long, leaving Feinstein's staff for a job with the Department of Defense in 2011, but she managed to secure a key document that served as a touchstone for future Senate investigative work. While digging through the documents the CIA allowed the Senate to access on its computers in the agency's basement, she came across the files later known as the "Panetta Review." At the time (2010), they seemed unimportant. It wasn't until the CIA began defending itself against claims made in review drafts that Senate staffers realized how instrumental this file was.
It was in June 2013 that the CIA, now under the leadership of John Brennan, sent the committee its official response to the completed torture study. The agency largely defended its use of torture -- in stark contrast with what the Panetta Review said -- which tipped Senate staffers off to the document’s importance.

After the CIA issued its response, Senate investigators sat through dozens of hours of meetings with agency staff in an effort to resolve the discrepancies between the official CIA line and the Senate’s findings. But those meetings yielded little. Newly aware of the relevance of the Panetta Review -- as it backed their findings and undermined the agency’s official response -- staffers slipped the document back to their secure committee spaces sometime in late 2013.
This move led to CIA claims that the Senate had improperly accessed documents… which led to the Senate accusing the CIA of spying on staffers. This finally resulted in CIA opening its own investigation into the Senate allegations and (of course) clearing itself of any wrongdoing, while raising new accusations about Senate staffers' improper access.

So, while CIA, DOJ and administration officials are free to duck questions about their involvement in the approval (either explicit or tacit) of the CIA's torture programs, Burr and others are holding Starzak's future hostage until she answers for this supposed improper behavior.
Critics are now holding up Starzak’s nomination -- and say they are willing to kill it entirely if need be -- to get more answers about the Panetta Review. Specifically, they say, they want the committee’s Democratic staffers to provide more information about how the file was discovered in 2010 and how, in late 2013, staffers slipped the printed documents back to the committee’s secure office spaces, in apparent violation of an agreement with the agency.

“Clearly it looks like … [she] knew that this document existed, knew that people were reading it and as a counsel didn’t try to keep people from doing it,” the lawmaker familiar with the controversy said. “[I want] information that fills in the blanks of what happened. And she clearly knows something.”
It's nothing but thug tactics, wrapped in the faux concern for an intelligence agency's operational security. Burr is irritated that Senate staffers didn't play by the CIA's self-serving ruleset -- not because rules mean much to him, but because it resulted in the exposure of truly vile behavior from officials and operatives Burr routinely defends. And he's willing to let the record show that he prefers punishing those who expose torture to punishing the torturers themselves.

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Posted on Techdirt - 29 April 2015 @ 3:57am

Sheriff's Department Swears Informants Are Trustworthy, Reliable Despite Entirely Random ID Number Scheme

from the this-guy's-a-good-guy-whoever-the-hell-he-is dept

Cops don't believe much of what criminals say -- even those who are still just "suspects" or "persons of interest." They'll say anything they can to stay out of jail. Perps are liars. Except when they're not.

When these perps become confidential informants, they're suddenly considered George Washington of the underworld -- paragons of truth and reliability. Affidavits and courtroom statements play up their honesty and integrity in a way only cops can: "CI-22 made several controlled purchases and said he saw weapons in the house." "CI-4130 has worked closely with Drug Interdiction over the past three years, leading to multiple arrests." And so on.

Confidential informants are given numbers rather than names to ensure those they've helped arrest don't come after them when they're released. A CI's "pedigree" is provided to magistrates in warrant applications and presented to trial judges as evidence of the informant's trustworthiness. All of these are sworn statements -- statements that rely on the confidential informant being not only who the officer says he/she is, but that this CI has proven trustworthy in the past. But all the courts -- and the defense -- see is a number.

In the [Richard] Graf affidavit, [Somerset Sheriff's Deputy Carl] Gottardi attested he had probable cause to believe Graf was hiding marijuana and other drug accoutrements in his home, based on information Gottardi received from a confidential informant called "11-25." 11-25 "ha[d] been a very reliable informant . . . for the past several years," and had helped "obtain[] numerous drug search warrants, . . . with numerous persons being charged and convicted of various . . . drug offenses," Gottardi swore. 11-25 had "also provided other law enforcement officials with reliable drug related information in the past." Specific to this case, Gottardi also wrote in the affidavit that 11-25 relayed his personal knowledge that "for several years [] Graf has continually sold large amounts of marijuana," describing the location of the "camp type residence" where Graf sold his "high grade, commercial type" stuff.

Relying on Gottardi's affidavit, a state Justice of the Peace signed off on the warrant, and during the search of Graf's home, police found marijuana plants and an unregistered short-barreled shotgun. Not surprisingly, Graf was indicted on federal firearms possession and drug charges.
CI 11-25: useful, honest and reliable. The sworn statements say "You can trust CI 11-25. He's never steered us wrong." Except that CI 11-25 could be literally anyone.

When Graf challenged these CI statements, he uncovered something that indicated the numbering system was worthless, and by extension, so was every sworn statement averring to the reliability of CI 11-25. Because there was no single "CI 11-25."
[H]is new lawyer decided to get to the bottom of things himself by digging up all the warrant applications filed by the Somerset County Sheriff's Department from April 2009 through April 2012 and searching for all references to "11-25." Turns out, there were none, that is, no warrant applications filed prior to April 2011 (which was when Gottardi got the warrant to search Graf's home) naming "11-25" as an informant. "11-25" did appear, however, in two of the warrant applications filed after Graf's, but in each of the three affidavits where "11- 25" was mentioned, the informant's background and history as a tipster were described a little differently.
It gets worse. The government's response completely undermined any previous claims of reliability -- not just for CI 11-25 -- but for any CI it had used to obtain warrants in the past.
The government fired off an explanation, though, and in support of its opposition to the motion, submitted a supplemental affidavit from Gottardi describing his "practice to periodically change the identifying numbers assigned to confidential informants." Gottardi also claimed that "the person designated CI 11-25 in the Graf search warrant has been assigned four identifying numbers during the course of" his work with Gottardi. In addition, "[o]ccasionally, identifying numbers will be re-used for different persons," Gottardi swore.
Graf shot back with the obvious: if the numbers have no underlying structure and are applied to any number of confidential informants, there's no way to verify the veracity of the officers' assertions on warrant requests. Just because one CI 11-25 was useful and honest doesn't mean the CI 11-25 in Graf's case was. CI 11-25 is no one. CI 11-25 is everyone. Sworn statements linking back to a group of informants all periodically using the same identifying number are what laypeople call "lies." It may not have seemed like a lie when the warrant application was filled out, but Graf's research shows that the CI 11-25 who helped generate probable cause either wasn't the person sporting the number when the warrant was obtained, or wasn't as reliable as the swearing officer portrayed him or her.
Gottardi's unconventional practice, Graf urged, "is meant to enhance the credibility of the [informant] whose number repeatedly appeared before the same [reviewing official], even though, according to Gottardi, they are different people."
The lower court was similarly nonplussed.
The court noted that "assigning the same numerical identifier to three different confidential informants within a relatively brief timespan" was a "surprising revelation about what seems . . . a highly irregular, ill-advised, and potentially misleading procedure."
Unfortunately, the judge chose to turn examination of this system and the randomly-numbered CI over to the ATF. The ATF looked it over and declared everything to be perfectly normal and CI 11-25 (who wasn't CI 11-25 at the time the warrants were obtained) just as honest and trustworthy as Gottardi had portrayed him in warrant applications. Graf's attempt to suppress the evidence was shut down.

The appeals court similarly found that the discrepancies between described informants -- combined with the "irregular" numbering system -- wasn't enough to call for the suppression of evidence. The leeway given to law enforcement by courts again makes an appearance, as even a numbering "system" that completely undercuts the alleged "pedigrees" of Gottardi's confidential informants isn't enough to show that he deliberately misled the magistrate when seeking warrants.
As we have acknowledged in the past, making a substantial preliminary showing is no easy feat, particularly when law enforcement relies on tips from unnamed confidential informants. See United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993) ("When the government obtains a search warrant based on information provided by a confidential informant, defendants often lack the information required to meet the exacting standards of Franks."). Graf, like many other defendants in the same boat, has simply failed to meet his burden of making a substantial preliminary showing -- particularly under the deferential clear error standard of review we afford to a court's denial of a Franks hearing.
Second-hand statements that can't even be attributed to a fixed number are still trustworthy enough to secure search warrants, apparently. And the courts will back up this irresponsible (to say the least…) behavior because just writing down whatever identification number comes to mind in the affidavit isn't considered too misleading. This numbering system could be deployed to cover up all sorts of unconstitutional activity -- like warrantless searches, Stingray use, intercepted communications, etc. In each case, the fruits of these searches could be attributed to statements made by an unverifiable confidential informant. Even better, the informant never need exist. Cops could approach magistrates with supporting statements from CI-whatever because there's absolutely no way to establish the CI's existence, much less his or her "pedigree."

Yes, a coherent and consistent numbering system would slightly increase the chances of the CI being identified, but it also provides a modicum of proof that this person exists, rather than just being a string of numbers entirely unrelated to any singular person.

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Posted on Techdirt - 28 April 2015 @ 1:49pm

US Marshal Shuts Down Citizen Recording By Grabbing Phone And Smashing It On The Ground

from the warranty-hopefully-covers-'acts-of-[someone-who-thinks-he's]-God' dept

So… this US Marshal seems to have a ton of unresolved issues to work through. (h/t to Techdirt reader william)

Where to start… First off, this guy doesn't look like he's patrolling an LA suburb. He's dressed for a war zone.

There's a message being sent by this "tactical gear" and it says that these Marshals think they're a military detachment and everyone around them not clearly labeled as law enforcement is the "enemy" -- including anyone with a camera.

Now, it's pretty well established that citizens have the right to film law enforcement officers while in public places. There are exceptions, of course, but none of those appear to be in play here.

What does appear to be in play is the mental exception far too many law enforcement officers feel they can deploy whenever they'd rather not be "watched." According to an interview with Beatriz Paez, whose filming was "interrupted" by the US Marshal (and fortunately filmed by yet another person from across the street), the officers first turned their backs to her (which is fine) and then proceeded to keep moving towards her to block off her view.

When this more subtle intimidation failed to deter Paez, the US Marshal simply stormed up to her, grabbed her phone, smashed it to the ground and finally, kicked the shattered device back to her.

I guess she can be thankful he didn't demand she hand over the phone as evidence. Although, if he had deployed that BS tactic, he'd just look stupid rather than abusive and potentially dangerous -- a person armed to the teeth who can't control his impulses.

As is par for the course when law enforcement officials can no longer ignore the bad behavior of one of their officers, thanks to a citizen's recording, there's now an "investigation" underway.
“The U.S. Marshals Service is aware of video footage of an incident that took place Sunday in Los Angeles County involving a Deputy U.S. Marshal. The agency is currently reviewing the incident,” officials said in a statement.
I would hope that review has been concluded already. The video is only 58 seconds long and the marshal's actions are clearly visible. One would think the review would be about 60-65 seconds long and conclude with a supervisor's disgusted, "Seriously, dude. WTF." This should be followed by an appropriate punishment, like perhaps some sort of anger management courses and long relocation to the basement office, but will more likely conclude with a stern talking-to and a short paid vacation.

And make of this what you will:
Paez said she began recording when she saw the law enforcement presence, their military-style weapons and a line of people being detained. She said the officers started letting the people they detained go soon after she pulled out her phone and started recording.
Hmm. It would appear the officers were uncomfortable with possibly questionable actions being recorded for posterity. We don't know exactly what was going on, and it could just be a coincidence, but the attempts to intimidate Paez into putting down her phone (which concluded with a US Marshal's smash-and-grab grab-and-smash) suggest something not quite by-the-book was underway when she first began documenting the scene. We'll know more if Paez's footage can be recovered from her destroyed phone.

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Posted on Techdirt - 28 April 2015 @ 11:43am

New Version Of USA Freedom Surveillance Reform Bill To Hit The House This Week

from the more-improvements,-but-a-few-worrisome-concessions dept

The USA Freedom Act is back in another attempt to rein in the NSA -- one that was sabotaged twice last year. A bill under this name was first introduced in the House, which actually passed out of committee, but only after being gutted in response to pressure from the administration. A much better version was introduced by the Senate, but this one never managed to make it out to the floor for a full vote -- held back by NSA defenders who portrayed its Section 215 reforms as somehow more damaging to privacy than an unrestrained NSA.

This House bill heads into committee with only a few weeks remaining before certain provisions of the Patriot Act are due to expire, including the Section 215 bulk records program. Sen. Mitch McConnell has done what he can to lower this bill's chance of success. Shortly before USA Freedom was to be introduced into Senate, he delivered a bill that would authorize a "no questions asked" renewal of these provisions until the end of 2019. Thanks to his position as Majority Leader, he was able to bypass the committee vote and bring it straight to the floor.

This version of USA Freedom is obviously a vast improvement over the previously-eviscerated House bill, but there are still concerns on both sides of the issue. NSA defenders will probably oppose it because it supposedly goes too far. Civil liberties defenders will oppose it because it doesn't go far enough. The ACLU has already expressed its concerns about the pending legislation.

“The disclosures of the last two years make clear that we need wholesale reform. Congress should let Section 215 sunset as it’s scheduled to, and then it should turn to reforming the other surveillance authorities that have been used to justify bulk collection,” said Jameel Jaffer, the group’s deputy legal director.
What the bill does do is fix a lot of what was broken on its last trip through. The legislation would end the Section 215 bulk records collection and force the NSA to perform targeted requests for phone metadata from telcos. It would also provide an avenue to challenge the use of this data in court by adding a requirement to serve notice to those whose records were accessed. In addition, it would make National Security Letter gag orders challengeable by those companies served with one and require a "periodic review" of outstanding non-disclosure orders to ensure they're still valid.

What it doesn't do is actually end Section 215. It would end the bulk collection but "emergency" requests could still be made to circumvent the additional search restrictions USA Freedom imposes. It also preserves the NSA's ability to deploy roving wiretaps.

Sen. Ron Wyden says he's not in love with the new bill, but he'll support it.
"I obviously want it to go further, closing the backdoor search loophole and the like," the Oregon Democrat said. "But I think Sen. Leahy's effort to end the collection of all of this personal information ... are very important and I'm in support of it."
Considering McConnell's last-minute maneuvering to save Section 215 from alteration or expiration, there will probably be others who will throw their support behind this bill rather than see the bulk records collection remain intact for the next half-decade. If nothing else, it's at least a step towards serious surveillance reform.

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Posted on Techdirt - 28 April 2015 @ 9:33am

The CIA Will Keep Killing Civilians With Drone Strikes Because The 'Rules' For Drone Strikes Aren't Actually Rules

from the more-like-a-list-of-'it-would-be-nice-if...'-requests dept

Extrajudicial killing by pilotless air strikes is just something our government does now. Weaponized drones are sent out to eliminate enemies of the United States, supposedly under the guidance of the Dept. of Justice and some presidential policy directives. But the rules aren't rules. They appear to be set in stone when the legal authority behind these drone strikes is questioned. But they're much more fluid when they "need" to be... like, say, after a drone strike takes out more than its intended target. [h/t Chris Soghoian]

Last week, the U.S. officials disclosed that two Western hostages, U.S. and Italian aid workers Warren Weinstein and Giovanni Lo Porto, were killed on Jan. 15 by a U.S. drone strike aimed at al Qaeda militants in Pakistan…

Last week, Mr. Obama apologized for the killings and took personal responsibility for the mistake. He called the operation “fully consistent with the guidelines under which we conduct counterterrorism efforts in the region...”
But what guidelines? Certainly not those that supposedly govern these strikes. According to those guidelines, the target must be determined to be an "imminent threat" before the strike can be authorized. EXCEPT:
President Barack Obama tightened rules for the U.S. drone program in 2013, but he secretly approved a waiver giving the Central Intelligence Agency more flexibility in Pakistan than anywhere else to strike suspected militants, according to current and former U.S. officials.
These rules were in place to prevent exactly what occurred in this drone strike: civilian casualties. In Pakistan, this condition does not apply. So, rather than have the CIA hold off until it had gathered more intelligence, the strike was carried out at the agency's discretion.

Obama apparently issued a Presidential Policy Directive on drone strikes in 2013. Whatever it changed in the existing policies has yet to be implemented. It certainly didn't revoke the CIA's Pakistan pass. Rules don't apply in that country's borders. And there's no way of telling if the similar waiver exempting Iraq and Syria has been withdrawn.

The DOJ's drone strike memo says targets must present a "continued" and "imminent" threat. This wording alone ensures only minimal investigative standards need to be met before authorizing a drone strike in any country the US currently has a military presence. (Or adjacent to that country…) Because troops may be targeted by terrorist groups, any suspected terrorists in the area can be considered "imminent threats" simply because of their proximity -- not their actions.

This language -- along with multiple administrative waivers -- has turned drone strikes into something performed almost exclusively at the CIA's discretion. Sure, there's some oversight of the program, but like a majority of US intelligence oversight, it's mainly words rather than deeds.

Here's what drone killing oversight looks like:
About once a month, staff members of the congressional intelligence committees drive across the Potomac River to C.I.A. headquarters in Langley, Va., and watch videos of people being blown up.

As part of the macabre ritual the staff members look at the footage of drone strikes in Pakistan and other countries and a sampling of the intelligence buttressing each strike, but not the internal C.I.A. cables discussing the attacks and their aftermath.
So, the CIA holds a monthly snuff filmfest for intelligence oversight committees. Figuring moving pictures are worth thousands of words, it then withholds the thousands of words justifying its decision to carry out a strike. Despite this process being clearly aimed at minimizing objections and questions, intelligence committee heads still offer their support of the program and the agency running it, even when they clearly don't trust the CIA on other issues.
When Ms. Feinstein was asked in a meeting with reporters in 2013 why she was so sure she was getting the truth about the drone program while she accused the C.I.A. of lying to her about torture, she seemed surprised.

“That’s a good question, actually,” she said.
Cognitive dissonance has long been a feature of intelligence committee leadership. Sen. Feinstein has now done this twice -- the other time being her outrage over the CIA spying on her staffers, while simultaneously offering her support for NSA programs that performed similar functions.

The CIA holds an extreme amount of power, one that can be used carelessly and/or thoroughly abused. And no one -- at any level of government -- has done anything more than encourage it to handle drone strikes as it sees fit. And all the while, the rules continue to shift, molding themselves to each situation, often applying retroactive forgiveness for legally-questionable strikes.

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Posted on Techdirt - 27 April 2015 @ 3:43pm

Seattle PD Hires Coder Who Demanded It Hand Over Every Video Produced By Its Body Cameras

from the we-need-more-of-this,-please dept

Back in December, an anonymous person requested pretty much every report the Seattle PD generates daily, along with all footage from its newly-instituted body camera program. Today, that man is no longer anonymous and was recently hired by the Seattle PD.

The Seattle Police Department is taking the unconventional step of bringing a programmer who bombarded it with public records requests in-house. Chief Operating Officer Mike Wagers has led efforts to hire 24-year-old self-taught programmer Tim Clemans—initially, at least, on a three-month trial basis to work on redaction and disclosure of data.

He'll make $22.60 an hour and start on May 6. If all goes well, Clemans will stay on as a full-time staffer.
Seattle's police department has been mired in bad news for a few years now, but it does seem to actively be trying to change its culture (read: being responsible for 20% of the city's homicides) and relationship with the public. Additional scrutiny from the DOJ has nudged it in this direction, but Tim Clemans' request almost killed the body camera program before it got off the ground.

Fortunately, some reconsideration of the issue resulted in the PD attempting to make transparency and technology its ally, rather than its enemy. It has started its own YouTube channel and uploads body cam footage frequently. It held a hackathon to address the issue of en masse redaction -- something no other police force seems to have considered when facing the same nexus between accountability and privacy. Most have simply opted to withhold the footage from 99.9% of the public.

But not the Seattle PD. Not only did it host a hackathon, but it hired Clemans, despite his admittedly vexatious FOIA request and despite him having posted dash-cam footage of an incident where he was hassled by one of Seattle's finest.
The police department is hiring Clemans despite a tense March 27 encounter with Officer Jason Bender at Westlake Center. Clemans said he was filming police that day and pointed his camera at the officer during a benign interaction with two young men—one black and one white. "My filming just demonstrates what the police are doing," he said when asked why he was filming them in particular. "Both the good and bad."

But, he said, Bender was annoyed at being filmed. A dash-cam video (obtained by Clemans and posted on his YouTube account, of course!) only recorded garbled audio of a lengthy argument that ensued. Bender, who identifies himself as a member of the department's Crisis Intervention Team, asks Clemans pointedly, "Do you videotape criminals? No, you don't. You know why? Because the criminals are not"—but here the audio becomes difficult to make out. "Enjoy your safety that's provided to you."
It should be noted that Seattle has been much more proactive in considering the concerns of its citizens, rather than in deferring to whatever law enforcement officials say is best for everybody. The mayor's office evicted the Seattle PD's two drones, citing the need to "focus" on "community building," rather than simply keeping an eye on as much of the community as technologically possible. (The drones ended up with the LAPD, which shares none of these concerns.)

The good news is that Clemans is viewed as someone who can help the Seattle PD reach its goals. He'll be working on more auto-redaction solutions -- targeting the removal of personally-identifiable information on citizens from police documents. His auto-redaction work for body cam footage is still being fine-tuned. Most of what's been uploaded to date is blurry and unintelligible, but this recently-uploaded video tries a new approach -- one that's visually striking, even if it's still mostly useless as a tool of accountability.

Considering how most law enforcement agencies value their privacy over that of the general public's, it's kind of nice to see an agency take a much more balanced approach to this sort of situation. Body cameras are headed towards being as ubiquitous as dash-cams, so there will need to be processes in place to prevent privacy violations. While most have opted at this point for maximum obfuscation, the Seattle PD actually seems to want to be ahead of the transparency curve.

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Posted on Techdirt - 27 April 2015 @ 2:46pm

Copyright Troll Gets Fed; Resumes Torrent Lawsuits After Multiple Dismissals Led To A 19-Month Pause In Filings

from the well,-you've-got-to-lose-money-to-make-money...-or-something dept

Don't feed the trolls.

OPINION AND ORDER granting in part and denying in part 20 21 the Motions for Default Judgment. Philip Spain and Heather Dew are permanently enjoined from infringing plaintiff's copyrighted work, as outlined in the Opinion and Order, and are ordered to destroy all copies of plaintiff's motion picture "Killer Joe," as outlined in the Opinion and Order. Plaintiff is awarded damages against Phillip Spain in the amount of $6,000 and attorneys' fees and costs in the amount of $950 and damages against Heather Dew in the amount of $6,000 and attorneys' fees and costs in the amount of $950. The Clerk is directed to enter Judgment in accordance with this Opinion and Order. Signed by Chief Judge Edmund A Sargus on 03/16/2015.
With this order, Killer Joe Nevada, LLC is back in the copyright trolling business. Its last Doe lawsuit was filed August 28, 2013. Since March 16th, it has filed eight Doe lawsuits. More are likely on their way.

Who is "Killer Joe?" It's actually a what -- an apparently well-received 2011 film that just didn't make much money. A budget of $10 million only produced $3.7 million in box office receipts. Part of this is due to director William Friedkin's refusal to recut the film to earn a more box office-friendly R rating, resulting in its release being limited to 75 theaters. Another part of this is due to the general public finding other movies to spend their money on. But according to producer Nicolas Chartier, it's piracy that's killing his box office receipts, almost single-handedly.
Hurt Locker ended up winning six Oscars, but at the same time we had 8 million illegal downloads on the movie. And I was like, "Wow, you know, we barely reimbursed the movie and we had 8 million illegal downloads." Well, if everybody had given me one dollar, that would be 8 million dollars, and the movie cost 11, so we lost 80 percent of the movie to piracy. That cannot hold.
Chartier's math is so suspect it should be held without bail. Chartier is the CEO of Voltage Pictures -- an entity more well-known for its mass copyright infringement lawsuits than the movies it produces. Killer Joe is one of Chartier's babies and his legal reps spent a great deal of 2013 trying to "recoup" its losses by suing large numbers of torrenting Does.

The action commenced on April 16, 2013, with Killer Joe Nevada, LLC filing six lawsuits "targeting" 114 Does. This pace continued for a few months before coming to a halt in late August. Here are the numbers:
April 2013 - 27 lawsuits, 824 Does
May 2013 - 23 lawsuits, 875 Does
June 2013 - No lawsuits filed
July 2013 - 6 lawsuits; 152 Does
August 2013 - 1 lawsuit; 15 Does
And then… nothing.

Killer Joe may have been suing en masse and saving on its $350 filing fees by naming multiple Does to each suit, but it wasn't seeing any return on this investment. Some judges just weren't buying it.

In the Western Tennessee District Court, a judge dismissed five of its lawsuits because it failed to serve even a single defendant out of the 95 Does it sued.
On March 19, 2014, the Court ordered Plaintiff to submit a status report informing the Court about the steps that have been taken up to this point, what additional information Plaintiff requires, and what additional steps Plaintiff needs to take before it will be ready for a Rule 16(f) conference. Plaintiff’s response to the Court’s order was due within ten (10) days of the entry of the order. Plaintiff never responded to the Court’s order. Thereafter, on April 4, 2014, the Court entered an order to show cause as to why Plaintiff’s Complaints should not be dismissed without prejudice under Federal Rule of Civil Procedure 4(m). That Rule provides that “[i]f a defendant is not served within 120 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against the defendant or order that service be made within a specified time.” Plaintiff filed its Complaints one year ago yesterday, and more than 120 days since the entry of the Magistrate Judge’s order granting Plaintiff’s request for discovery. However, there is no evidence that Plaintiff has successfully served any Defendant named in any of the cases before the Court. To date, no Defendant has answered or appeared to defend, and Plaintiff has failed to take any further action against any Defendant.
In an Ohio district court, four more cases were voluntarily dismissed by Killer Joe -- again because it couldn't produce any defendants or otherwise respond to the court's order to show cause.

It also voluntarily dismissed four lawsuits (against 99 Does) in Illinois. A Georgia District Court judge ordered it to withdraw subpoenas issued to ISPs, only to find out Killer Joe had apparently decided to ignore her instructions. [Emphasis in the original. Also of note, famous troll fighter Blair Chintella was the attorney bringing this fact to the judge's attention.]

Although the correspondence and e-mails do not conclusively show that subpoenas were being sent after May 28, at the least, they strongly suggest that plaintiff has yet to contact the ISPs to inform them of the Court’s decision nullifying all subpoenas except for those directed at John Doe #1. For these reasons, the Court REMINDS the plaintiff that discovery should have been discontinued and rescinded as to all defendants who were severed and dismissed. The Court DIRECTS the plaintiff to immediately contact the ISPs in each case to rescind and withdraw previously-issued subpoena for each such defendant. Further, any information that plaintiff may have obtained through these subpoenas must be returned.
The same court also called out Killer Joe for the shady logic it deployed to justify suing Does en masse.
[P]laintiff’s own evidence illustrates the unlikelihood that many of the defendants identified in this action were online and “sharing” at the same time. For example, John Doe 2 was observed to have been in the BitTorrent swarm on April 7, 2013. (Activity Log, attached to Pl.’s Compl. [1] as Ex. A.) John Doe 10, however, was observed to be participating on January 22. (Id.) Therefore, John Doe 10 needed to stay online for over two (2) months in order to be involved in the same transaction as John Doe 2. This seems implausible at best.
But now Killer Joe is back in business. All it took was one default judgment against a few defendants it actually managed to track down before the lawsuits collapsed under their own ridiculousness. It has successfully managed to wrest $13,900 from two defendants -- out of a possible pool of 1,866.

This is "success" as defined by copyright trolls. A hit rate of .107%. Only being ~$6,000 in the hole after nearly two years of "litigation." (Based on the $350 filing fee only: 57 lawsuits at $350/per is $19,950.). The lawyers still need to be paid, which means the $6,000 net loss is likely much larger… unless the lawyers are working on a contingency basis, in which case they apparently have too much free time.

Killer Joe seems to have learned something from its previous experiences. It's now targeting one Doe per lawsuit. That won't make it more successful, as it still believes it can turn an IP address into a named defendant, but at least it won't be voluntarily or involuntarily dismissing dozens of potential defendants at a time and is less likely to be called out by judges for its questionable logic and mass filing schemes.

But all the same, trolls shouldn't be fed. And these defendants allowed it to happen, when even the most minimal of defensive efforts likely would have seen Killer Joe drop the case and quite possibly stop trying to convert torrent hashes into "lost" ticket sales.

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Posted on Techdirt - 27 April 2015 @ 12:34pm

NSA's Stellar Wind Program Was Almost Completely Useless, Hidden From FISA Court By NSA And FBI

from the lies-on-top-of-lies-on-top-of-legal-quackery dept

A huge report (747 pages) on the NSA's Stellar Wind program has been turned over to Charlie Savage of the New York Times after a successful FOIA lawsuit. Stellar Wind has its basis in an order issued by George W. Bush shortly after the 9/11 attacks. Not an executive order, per se, but Bush basically telling the NSA that it was OK to start collecting email and phone metadata, as well as warrantlessly tap international calls into and out of the United States.

The extensive detailing of the program's history contains some rather surprising elements. While much of it remains redacted, there's still enough exposed that indicates the program was like many others the NSA has pursued: expansive, intrusive, done without oversight… and ultimately mostly useless.

In 2004, the F.B.I. looked at a sampling of all the tips to see how many had made a “significant contribution” to identifying a terrorist, deporting a terrorism suspect, or developing a confidential informant about terrorists.

Just 1.2 percent of the tips from 2001 to 2004 had made such a contribution. Two years later, the F.B.I. reviewed all the leads from the warrantless wiretapping part of Stellarwind between August 2004 and January 2006. None had proved useful.
Not that this lack of results kept those writing the report from celebrating the "successes" the FBI apparently couldn't find. Of course, there's nothing to be gleaned from this information because those have been completely redacted.

What is clear is that the program quite possibly did more harm than good. The NSA was sweeping up an unprecedented amount of information but -- because of its secret origins -- was mostly unable to share with the CIA or FBI. In particular, the warrantless wiretapping the NSA engaged in couldn't be passed on to the FBI until leaked details finally forced legislators to act on this apparent breach of Americans' privacy -- which they did by codifying the NSA's actions, making them perfectly -- and retroactively -- legal. Even then, it still posed problems for the FBI.
F.B.I. agents were asked to scrutinize phone numbers deemed suspicious because of information from the program. But the agents were not told why the numbers had been deemed suspicious, only “not to use the information in legal or judicial proceedings.”

That made some agents uncomfortable, and it was not clear how such mysterious leads fit into their rules for investigations.
The FBI, which is now heavily engaged in the management of parallel construction for law enforcement Stingray usage, found itself in the awkward position of disguising the origin of intelligence it hadn't specifically asked for, as well as having the NSA tell it what it could and couldn't say in front of judges. This would include applications made to the FISA court.
We asked [DOJ intelligence counsel James] Baker whether he thought the restrictions on the use of Stellar Wind-derived leads disseminated to field offices, as described above, were sufficient to guard against including Stellar Wind information in FISA applications. Baker stated that his experience with FBI record-keeping practices did not give him a high degree of confidence that such separation could be consistently maintained. In addition, Baker believed that the nature of FBI international terrorism investigations would make it difficult to track Stellar Wind-derived information. According the FBI OGC, Baker did not share with the FBI his concerns about whether its record-keeping practices would keep Stellar Wind information from being used in FISA applications.
Rather than disconnect the FBI from the influx of questionably-obtained NSA "tips," the administration worked with the DOJ to make it easier for the agency to find something to do with intelligence passed on by the NSA.
The Justice Department created the new type of investigation, initially called a “threat assessment,” which could be opened with lower-grade tips. Agents now use them tens of thousands of times a year.
Questionable "intel" leads to even more questionable not-quite-investigations. As can be seen by the FBI's own conclusions, about the only thing Stellar Wind did for it was increase the number of man hours wasted running down the NSA's "leads."

As for the FISA court, there's a good reason it's been perceived as a "rubber stamp" for NSA requests. Bush's secret executive authorizations were disclosed to FISA Judge Royce Lamberth by Bush himself. Further orders for these collections were routed only through Lamberth, and his successor, Colleen Kollar-Kotelly.

This belated admission (which did nothing to halt the collections) was prompted by none other than James Baker, who stumbled across a clumsy attempt at parallel construction.
[Baker] came across “strange, unattributed” language in an application for an ordinary surveillance warrant and figured it out, then insisted on telling Judge Lamberth.
Another FISA court judge did discover the NSA's Stellar Wind program, although to him it appeared to be an extensive string of telephone metadata abuses by the NSA. Judge Reggie Walton threatened to shut down the Section 215 collection entirely in 2009, concerned about the agency's deliberate misleading of the court on the program's inner workings and its extent. As Marcy Wheeler points out, these weren't technically "abuses." They were just Stellar Wind collections that failed to be properly obscured when placed in front of a FISA judge other than Colleen Kollar-Kotelly.
I have long scoffed at the claim that the phone dragnet violations discovered in 2009 were accidental. It has always been clear they were, instead, features of Stellar Wind that NSA simply never turned off, even though they violated the FISC orders on it.

The Stellar Wind IG Report liberated by Charlie Savage confirms that.

It describes that numbers were put on an alert list and automatically chained.

"An automated process was created to alert and automatically chain new and potential reportable telephone numbers using what was called an “alert list.” Telephone numbers on the alert list were automatically run against incoming metadata to look for contacts. (PDF 31)"

This was precisely the substance of the violations admitted in 2009.
Kollar-Kotelly, on the other hand, was much more indulgent when responding to NSA requests, allowing the agency to recast the low bar of pen register orders as justifying bulk email metadata collections obtained through Stellar Wind -- something she did a few years before the NSA allowed Stellar Wind to bleed into its Section 215 collections.

The documents don't restore any faith in the "oversight" of the NSA's activities. Instead, it shows two presidents acting in secrecy to permit the surveillance of American citizens and involved agencies covering it up with parallel construction, intense secrecy, manipulation of oversight bodies and several very questionable legal theories.

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Posted on Techdirt - 27 April 2015 @ 9:26am

Motel Decides It Should Just Start Faxing All Guest Info To Local Police Every Night

from the corporate-suckup dept

The Third Party Doctrine is ridiculous. Law enforcement and intelligence agencies routinely exploit this loophole to warrantlessly access all sorts of data because of the stupid assertion that anything you "voluntarily" turn over to a third party carries no expectation of privacy. The agencies blow right past the reality of the situation: that any "voluntary" exchange of personal data for services is anything but voluntary. Service providers won't provide you with an internet connection or cell phone service without collecting massive amounts of usage data. Hotels and motels won't rent you a room unless you tell them who you are and provide documentation to back up your claims.

So, it's stupid all over and no one's in any hurry to fix it because drugs need to be warred against and terrorists must be handcrafted by FBI undercover agents and the rest of whatever. The courts have generally refused to stretch the Fourth Amendment to cover the data created by these involuntary exchanges. That's a problem and one that is only very slowly being addressed.

Motel 6 has just decided to make it worse. While warrantless access to motel records is being challenged in the Supreme Court, the chain has decided to preemptively strip away any privacy expectations that may result from court rulings and just hand it all over to law enforcement because sometimes criminals stay in motel rooms.

City police have arrested four people staying at the Motel 6 on Jefferson Boulevard as a result of the hotel chain's agreement to provide police with a daily guest list, Mayor Scott Avedisian said Tuesday.

The names of Motel 6 guests, which police then check for outstanding warrants, is one of five steps Motel 6 corporate managers agreed to take in response to a string of high-profile incidents and concerns the establishment was becoming a haven for passing criminals.
Everything about this is pure bootlicking dickishness. See if you can finish reading this statement without looking for something to wipe all the "smug" off you.
"We know everyone who is staying in the hotel tonight," [Mayor Scott] Avedisian said in a phone interview after a meeting with Motel 6 executives that also included Warwick police chief Col. Stephen M. McCartney and Seekonk, Mass., Town Administrator Shawn E. Cadime.
Great. And that's your business why? Oh, because some arrests were made. A modicum of successful law enforcement cures all privacy ills, etc.

Motel 6's spokesmouths aren't exactly coming across as champions of the people either.
As of now, guests who check-in at Warwick’s Motel 6 will not be told their names are on a list that goes to the police station every night.

Alerting motel guests that local police know their whereabouts "is not a normal process of our check-in,” said Victor Glover, a vice president of safety and security for G6 Hospitality, the parent company for Motel 6. “I don’t know that we have any plans of instituting that as we move forward.”
Now that Motel 6 has stepped up to serve as a purveyor of moderately-priced rooms and a fully compliant police informant, law enforcement's foot is completely wedged in the door between room rentals and personal privacy. Mayor Avedisian plans to use Motel 6's kowtowing as leverage against other hotels and motels in the area.
Avedisian said now that Motel 6 has agreed to share its national "do not rent" list of problem guests, he intends to reach out to the Rhode Island Hospitality Association to see if other establishments in the city would be willing to do the same.
I have no problem with private businesses maintaining lists of customers they won't do business with and passing on this information to police if the list contains suspected criminals. But that's miles away from what Motel 6 has agreed to do -- hand over information on everybody who rents a room before the police even ask for it. That's just begging for a lawsuit.

The Warwick police chief says his department never demanded this level of compliance. This was Motel 6's own offering in response to a couple of high profile sex trafficking arrests and pressure from the city, which threatened it with lawsuits and additional regulation. Rather than recognize it as the sort of unfortunate thing that happens from time to time and just move on, Motel 6's execs decided the solution was to fax over a list of guests every evening. The police have no idea on what sort of privacy protections it will put into force -- if anything. Police Chief Stephen McCartney has passed the buck to the state attorney general... as if that mainly-prosecutorial office is going to issue tough restrictions on data retention or meaningful privacy protections.

The Third Party Doctrine is already terrible enough. What it doesn't need is do-gooders like Motel 6 erasing what minimal line there is between its customers' data and law enforcement.

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