Posted on Techdirt - 28 July 2015 @ 2:19pm
Student loan debt is a serious problem here in the US as the price of higher education continues to outpace every standard economic yard stick. Lots of people think the government should step in to do something about it. While the administration makes helpful noises and tries to figure out how it can effectively tell Americans it's alright to rack up debt and walk away from it without actually, you know, encouraging Americans to get deeply in debt and walk away from it, one government employee is taking the bold steps the US government won't to eradicate student loan debt… specifically, his.
In a 2014 audit of the DA’s office representing Washington and Nowata counties [Oklahoma], the State Auditor’s Office found that $5,000 in forfeiture funds had been used to make payments on an assistant district attorney’s student loans.
That's a pretty egregious abuse of seized funds, and that's even if you find the whole asset forfeiture
system mostly abuse-free when it comes to seizing
property. Unbelievably, the DA's office defended the use of the public's money to pay off personal student loans.
The report said the district attorney maintained the expense was justified because most of the cases the assistant DA prosecuted were drug cases.
Which means what? That he was involved in several drug prosecutions and therefore entitled to a percentage of the take for his own personal use?
But no need to worry about the misspent $5,000. The DA's office has already "repaid" it using money seized a bit more lawfully via taxation.
After the issue came to light, the Oklahoma District Attorneys Council reimbursed the $5,000 using funds from its own student-loan program, the State Auditor’s report states.
So, everything's cool now. Except:
A 2009 audit of the District Attorney’s Office that represents Beaver, Cimarron, Harper and Texas counties found that a Beaver County assistant district attorney began living rent-free in a house obtained in a 2004 forfeiture. A judge had ordered the house sold at an auction, but the prosecutor lived there through 2009.
A bold new opportunity in real estate! Open to law enforcement members only!
There's so much more.
Schroedinger's seized pickup truck -- listed as "sold" at an auction -- remains in a sold/unsold state as neither the pickup, the paperwork nor the cash generated from the sale can be located. One district further perverted the perverse incentives by spending seized money before it had even been processed by the courts. In other instances, the money made its way onto the ledgers as "seized," but forfeiture cases were never filed. (This is particularly evil because without a filing, there's almost no way to challenge the seizure.)
The violations found by these audits are the sort of thing everyone should have expected when they allowed law enforcement to start seizing property without bringing criminal charges. Guns, vehicles and cash go missing. Proceeds from auctions are used to pay court costs and fund retirement parties. The program basically allows officers to steal from people they've already dehumanized as "drug traffickers." So, if someone's property goes missing and ends up as an off-the-books personal use vehicle/gun for some cop, no one's going to spend too much time worrying about the supposed "criminal" whose property has been seized. That's why the accountability is so lax and that's why the laws granting officers these powers need to be -- at minimum -- rewritten, if not taken off the books entirely.
And, as is always the case when asset forfeiture is attacked by legislators and regulators, there's a caricature of law enforcement on hand to offer homespun words of wisdom in defense of the legalized theft:
“I know for a fact we all try to work very hard to rid this devil’s candy (drugs) off of our state. And for someone to try and push us back — sheriff’s departments, police departments — that’s how we continue our fight, is to take that money and go forward,” Stradley said. “That will set us back many, many, many years.”
Will it set you back to 1990? And put you right in the middle of the crack epidemic? Or will it take you back to the 1920's, when marijuana was making jazz music tolerable and turning non-Caucasian males into rapists? How many years exactly
will forcing Oklahoma law enforcement to accompany seizures with criminal charges set back these agencies? We all want to know. Even those of us who swore off the devil's candy years ago or never made it past anything harder than devil's food cake.
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Posted on Techdirt - 28 July 2015 @ 11:01am
The Obama administration must be doing a little housecleaning in preparation for the 2016 winner. After months of highly-sporadic and belated responses to We The People petitions, it's answered two big ones (that have been sitting around forever) in a single day. It's also issued a handful of other responses to open petitions, some of which are little more than "we decline to respond," accompanied by a link to the site's Terms of Participation.
It took on two big petitions today. The first was a response to a request to pardon Snowden, which it denied under its "No Good Whistleblowing Goes Unpunished" policy. The second asked for a long-delayed rewrite of an outdated law.
The Electronic Communications Privacy Act has been in need of reform for years. If nothing else, the law's misleading name needs to be changed. One of the more notorious aspects of the law is that it gives email less privacy protection than snail mail, which is already an exceedingly low bar.
The administration agrees that reform of this law -- which treats email older than six months as "abandoned" and thus easily-accessible by law enforcement -- is needed. However, it does so both belatedly, vaguely and disingenuously.
The We The People petition calling for ECPA reform was posted November, 12, 2013. It passed the 100,000-signature threshold roughly 30 days later. At that point, a response was "required." 593 days later, that response has finally arrived.
It's obvious that many -- and arguably, most -- Americans today use email as one of their primary means of communication. Particularly in an era where we keep so much of our lives online, the content housed there deserves strong privacy protections -- which is at the core of what ECPA was designed to do. But over time, technology has evolved.
Which is why our policy teams agree with you: ECPA is outdated, and it should be reformed.
This is good news. Or it would be if there were any particular plan to get something done. While the response agrees that the outdated law's take on email privacy protection is pretty much terrible, the administration doesn't seem too willing to push for any specific reform effort.
We know there are still important details being worked out across government and in the halls of Congress. We aren't going to endorse a single ECPA-reform bill at this time. As any given bill goes through committee and makes its way to the House and Senate floors, the draft is negotiated and modified to address concerns and strengthen the bill.
In other words, we like the idea of reform so much we're going to do nothing about it. While efforts have been made over the past few years
, they've been stalled/gutted to appease law enforcement and (yes, really) regulatory agencies'
interests. Very little forward motion
has been made and without something stronger than "we'll probably support whatever actually makes its way to the President's desk" propelling this reform, it could still be several more years before the already-outdated law is rewritten to properly address a communication method that originated nearly 45 years ago.
Finally, the response sends a mixed message about reform in the very last sentence.
That said, we're encouraged by the strong bipartisan support for updating this legislation in both chambers of Congress, and are looking forward to seeing this law address today's technological realities while preserving the interests we must protect.
This seems to indicate it will be more supportive of a bill that has the backing law enforcement and other government agencies. A warrant requirement for emails older than six months isn't that much of an imposition, but so far, it's been a tough idea to sell. This last sentence shows the administration finds the government's "interests" worth protection. The privacy interests of millions of Americans? Not so much.
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Posted on Techdirt - 28 July 2015 @ 9:59am
The White House has finally responded -- more than two years later -- to a petition asking for a pardon of Edward Snowden. The petition surfaced soon after Snowden went public with his identity. Less than three weeks later -- June 25, 2013 -- it had passed the 100,000-signature threshold.
Understandably, the administration was in no hurry to respond to this petition. In the immediate aftermath of the first leaks, no entity was more unpopular than the NSA. Snowden, on the other hand, probably could have won a number of local elections as a write-in candidate at that point. So, the administration sat on it, as it has sat on a great many petitions not particularly aligned with its desires.
Unfortunately, the public's opinion hasn't shifted much. As other agencies have become more plaintive in their requests to undermine privacy and safety to keep criminals from "going dark," the public has become less and less enthusiastic about being forced to make more sacrifices in the interest of security. The NSA also hasn't become more popular in the interim. So buying time by cherry-picking We The People petitions to respond to hasn't made answering this petition any easier for the administration.
More than two years later -- 763 days past the point it became a viable petition -- the administration has answered. And the answer could have been written two years ago, as it refuses to acknowledge Snowden's contribution to recent surveillance reforms. The response was written by Lisa Monaco, the president's advisor on Homeland Security and Counterterrorism. Considering the source, the response is unsurprising. But it starts off with a lie:
Since taking office, President Obama has worked with Congress to secure appropriate reforms that balance the protection of civil liberties with the ability of national security professionals to secure information vital to keep Americans safe.
Wrong. The "appropriate reforms" have been forced into existence by leaked documents Snowden provided. This "conversation" the President keeps claiming he always wanted to have only took place
because he could no longer ignore it. This opening sentence is worse than merely disingenuous. It's a complete rewrite of Obama's civil liberties legacy. Before the Snowden leaks, Obama's stance on surveillance was "whatever Bush did, only more."
Next, Monaco goes on to say that no matter how instrumental Snowden was in the recent surveillance reforms (without ever actually saying that), he's still a just a criminal and should be treated as one.
Instead of constructively addressing these issues, Mr. Snowden's dangerous decision to steal and disclose classified information had severe consequences for the security of our country and the people who work day in and day out to protect it.
Except that this administration is no friend
to whistleblowers. Snowden knew this. Snowden also knew the "proper channels" were mostly there to ensure whistleblowers were silenced and punished. So he ran. This administration has prosecuted more whistleblowers than all other administrations combined
. When Snowden took off, it was five years into Obama's presidency, plenty of time to gauge what sort of odds the "proper channels" offered.
From that point, Monaco goes on to claim that the only legitimate act of civil disobedience is a punished act of civil disobedience.
If he felt his actions were consistent with civil disobedience, then he should do what those who have taken issue with their own government do: Challenge it, speak out, engage in a constructive act of protest, and -- importantly -- accept the consequences of his actions. He should come home to the United States, and be judged by a jury of his peers -- not hide behind the cover of an authoritarian regime. Right now, he's running away from the consequences of his actions.
First off, this is wrong. As has been explained countless times, under the Espionage Act, which is what Snowden would be charged under, he is not allowed
to present the evidence in his defense that he was blowing the whistle on an illegal program (and yes, it has been ruled illegal). Nor is he allowed to argue that the leak was in the public interest. In other words, the law is stacked such that he cannot present his argument fairly. The deck is stacked and Monaco knows
the deck is stacked and ignores that -- which is exceptionally dishonest.
I would imagine Monaco -- and by extension, the administration -- would also feel that those who hacked Hacking Team
are the real
criminals here, not the company that sold surveillance software and zero-day exploits to governments known for widespread abuse of their citizens. "Look, we appreciate them highlighting these dubious and likely illegal contracts. But to move forward, we really need to put the hackers who obtained the documents on trial."
But, honestly, no one expected this response to go any other way. No one who holds the top office in the nation is going to sell out the rest of the government for a whistleblower. So, it could have saved everyone the trouble and posted this answer June 26, 2013.
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Posted on Techdirt - 28 July 2015 @ 8:51am
Just as James Clapper's office was officially announcing the death of the bulk phone metadata program (ending November 29th, with three months of post-wind-down wind-down for data analysts), the DOJ was filing a motion in the Second Circuit Court of Appeals basically arguing that its finding that the program was illegal really doesn't matter anymore.
According to the DOJ, there really is no program -- at least if you don't count the six months the NSA has to make the move to the more targeted USA Freedom version. So this discussion about which program isn't authorized by which PATRIOT Act provision is… well, not completely moot, but like pretty much literally weeks away from moot, so why are we wasting our time here [EXASPERATED SIGH].
Plaintiffs’ claims will be moot when the bulk collection of telephony metadata under Section 215 ends on November 29, 2015, though they are not moot right now. On that date, the statutory authority for the Section 215 bulk telephony-metadata program will expire, and the data previously collected and held under that program will not be used in the future for intelligence-gathering or law-enforcement purposes. In the meantime, however, the Court should respect Congress’s decision to create an orderly transition away from the Section 215 bulk telephony-metadata program. Especially in light of Congress’s considered judgment that this program should continue for this limited period, plaintiffs are not entitled to any of the relief they request.
In support of its argument that the court should ignore its own findings and just listen to what the FISA Court said (and what legislators didn't
say, but obviously intended
), the government points to its own Tumblr post (certainly a historical moment in its own right) detailing the specifics of the end of Section 215.
On July 27, 2015, the Office of the Director of National Intelligence (ODNI) issued a public statement that the NSA has determined that “analytic access to that historical metadata collected under Section 215 . . . will cease on November 29, 2015,” at the end of the transition period. See Statement by ODNI on Retention of Data Collected Under Section 215 of the USA PATRIOT Act, available at http:// icontherecord.tumblr.com/post/125179645313/ statement-by-the-odni-on-retention-of-data (ODNI July 27 Statement). Thus, after that date, no further bulk collection of telephony metadata will take place under the Section 215 program, and the historical telephony metadata will not be used for intelligence or law-enforcement purposes and will not be disseminated.
To sum up: these past abuses should no longer be of concern as the data is going to be flushed (for the most part) within the next nine months. To better enable said data flush, the Second Circuit Court might want to wrap up the ACLU's suit
(and hasten the end of the EFF's
) so that no data is still being "preserved" past the November 2015 dump point.
To that end, the DOJ constantly reminds the Second Circuit that the FISA Court really has a handle on these sort of things and why don't we just leave it to the pros.
The FISC was right that Congress authorized the Section 215 bulk telephony-metadata program to continue during the six-month transition period. [p. 6]
As the FISC correctly noted, Congress’s decision to delay that ban for six months is a powerful indication that it intended to permit bulk collection in the interim period. [p. 9]
The FISC was thus correct when it observed that “after lengthy public debate, and with crystal clear knowledge of the fact of ongoing bulk collection of call detail records” Congress “chose to allow a 180-day transitional period . . . .” June 29 FISC Op. at 11. This Court need not and should not determine whether Congress “ ‘ratif[ied] the FISA Court’s interpretation of ’ ” Section 215. [p. 11]
This filing, like its Tumblr statement announcing the official end of the collection, emphasizes the single aspect of the Section 215 bulk collections that has been the focus of this litigation and most legislative efforts: phone metadata. The authorization, even in its altered, post-USA Freedom Act form -- provides for much more than just this one type of collection. The DOJ goes so far as to call the USA Freedom Act a "ban" on bulk, untargeted collections, when it actually doesn't go quite that far.
Marcy Wheeler points out that the DOJ may be less interested in the outcome of this ruling as it is with the implications of the EFF's litigation
. What could be uncovered if the NSA is forced to turn over relevant records from its bulk metadata collection is more illegal -- or at least unauthorized -- collection activity.
I believe both ACLU and EFF’s phone dragnet client Counsel on American Islamic Relations, had not only standing as clients of dragnetted companies, but probably got swept up in the two-degree dragnet. But CAIR probably has an even stronger case, because it is public that FISC approved a traditional FISA order against CAIR founder Nihad Awad. Any traditional FISA target has always been approved as a RAS seed to check the dragnet, and NSA almost certainly used that more back when Awad was tapped, which continued until 2008. In other words, CAIR has very good reason to suspect the entire organization has been swept up in the dragnet and subjected to all of NSA’s other analytical toys.
EFF, remember, is the one NGO that has a preservation order, which got extended from its earlier NSA lawsuits (like Jewel) to the current dragnet suit. So when I Con the Record says it can’t destroy all the data yet, it’s talking EFF, and by extension, CAIR. So this announcement — in addition to preparing whatever they’ll file to get the Second Circuit off its back — is likely an effort to moot that lawsuit, which in my opinion poses by far the biggest threat of real fireworks about the dragnet (not least because it would easily be shown to violate a prior SCOTUS decision prohibiting the mapping of organizations).
This announcement by Clapper's office, followed shortly thereafter on the same day by the filing of its response in the Second Circuit case, certainly gives the appearance that the NSA has lifted the corner of the rug and is just waiting for the signal to start sweeping any undiscovered abuses -- along with those previously exposed -- under it. That the expiration of the authority and the passage of the USA Freedom Act may have provided it with a better broom is unexpectedly fortuitous.
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Posted on Techdirt - 28 July 2015 @ 7:35am
The Office of the Director of National Intelligence has issued a statement addressing the inevitable shutdown of the Section 215 bulk phone metadata program.
NSA has determined that analytic access to that historical metadata collected under Section 215 (any data collected before November 29, 2015) will cease on November 29, 2015. However, solely for data integrity purposes to verify the records produced under the new targeted production authorized by the USA FREEDOM Act, NSA will allow technical personnel to continue to have access to the historical metadata for an additional three months.
Caveats apply. Data will still be held as required by a handful of ongoing lawsuits
. With the "bulk" part of the bulk records program shut down (but not completely), the government is obviously hoping for a speedy end to the litigation resulting from the Snowden leaks. That's the other motivating factor behind this public statement that not only states an end date, but the additional restrictions past that point.
This is a pretty remarkable moment in the security v. privacy battle, but there are still reasons to be concerned. The bulk telephony metadata program has received a majority of the focus since Snowden's initial leak and the NSA, at times, has seemed almost too
willing to let this program act as a scapegoat for its multiple privacy-violating surveillance programs.
Not that there haven't been seriously heated (and seriously misguided) arguments offered in support of this program, but if you take a close look at the history of the debate over Section 215, the most-spirited defenses
have not been raised by the NSA, but by legislators and former intelligence officials
. The program appears to have been sacrificed in order to prevent more intrusive surveillance programs from being subjected to more intense scrutiny.
And it's not even the totality of what can
be collected under Section 215. The statement from the ODNI specifically addresses only one kind of "tangible thing."
The telephony metadata preserved solely because of preservation obligations in pending civil litigation will not be used or accessed for any other purpose, and, as soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.
We don't know what else is being collected in bulk under the PATRIOT Act provision -- the same authority that expired this year and was replaced with the stipulations of the USA Freedom Act -- but we know it's more
than just "telephony metadata." "Tangible things" encompasses far more
than phone metadata ("books, records, papers, documents, and other items"), but this statement -- as well as arguments it's made in court in support of the six-month wind-down period -- only address phone records.
The Second Circuit Court found that the bulk collection of records under Section 215 was likely illegal
. That opinion called into question anything
collected under this authority, but the government here (and in its recent filing
in the Second Circuit Court) acts as though the "illegal" collection activity is limited solely to phone records.
Other NSA programs are going to be far more useful in gathering data and intelligence than the collection of phone records. Phone calls may never go away entirely, but the shift to mobile communications (followed shortly thereafter by the shift to feature phones and smartphones) has made phone calls the least used feature on these devices. Messaging programs and social media platforms now carry the bulk of everyday communications. And the NSA has programs in place to sweep up these as well, whether as content or metadata. So, all of this focus on "telephony" only serves to obscure
what else it may still collect with the revamped program, as well as everything else it does under much more secretive legal authorities.
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Posted on Techdirt - 27 July 2015 @ 10:35am
It's taken former Valdosta State University (VSU) student Hayden Barnes most of a decade and two trips to the 11th Circuit Appeals Court, but his efforts to hold the school accountable for its abusive behavior have finally paid off.
Today, more than eight years after his unjust expulsion, student Hayden Barnes’ federal civil rights lawsuit against Georgia’s Valdosta State University (VSU) and former VSU president Ronald Zaccari concluded with the announcement of a $900,000 settlement…
“After eight years, and one of the worst abuses of student rights FIRE has ever seen, Hayden Barnes has finally received justice,” said FIRE President and CEO Greg Lukianoff. “Thanks to Hayden’s courageous stand, would-be censors at public universities nationwide have 900,000 new reasons to respect the free speech and due process rights of their students.”
We've covered multiple
cases of universities overstepping
when it comes to free speech, but VSU's case is particularly stupid. VSU president Ronald Zaccari didn't care for Barnes' peaceful protest of the school's 2007 plan to use $30 million in new student fees to erect two parking garages. Barnes posted fliers and sent emails to the student body and staff stating his objections to the plan. He also crafted a sarcastic photo collage titled "S.A.V.E. - Zaccari Memorial Parking Garage" and posted it to his Facebook page.
Soon after that, the school -- led by Pres. Zaccari -- expelled Barnes
, claiming his Facebook collage was evidence he posed a "clear and present danger" to the university.
As a result of recent activities directed towards me by you, included but not limited to the attached threatening document, you are considered to present a clear and present danger to this campus. Therefore, pursuant to Board of Regents' policy 1902, you are hereby notified that you have been administratively withdrawn from Valdosta State University effective May 7, 2007.
The letter also informed Barnes that the only way he would be readmitted to VSU would be if he underwent a psychiatric evaluation and submitted to ongoing mental health therapy.
Attached to the letter was a screenshot of Barnes' "threatening document" (the Facebook post), which obviously contains nothing approaching a threat. Presumably, Zaccari read the word "memorial" and conveniently decided this troublesome critic wanted him dead, rather than considering it might be a light slam referencing Zaccari's concern about his VSU "legacy."
Well, Zaccari has managed to secure his legacy… as well as a bill for damages he's personally responsible for paying
Zaccari [...] used this bogus rationale to expel Barnes without a hearing. Barnes sued Zaccari and other VSU administrators in 2008, and in 2013 a federal district court found that Zaccari had violated Barnes’s due process rights. Barnes was awarded $50,000 in damages for which the court determined that Zaccari was personally liable, sending a message to public college administrators that there can be real, personal costs for abuses.
Despite this win, the university continued to fight against Barnes' claims, sending it back to the 11th Circuit Course twice
. All it managed to do was increase the amount of legal fees it could potentially be held liable for. With a loss all but assured, the school finally fell on its $900,000 sword on July 23, 2015.
It's not that VSU doesn't care about its students' rights or doesn't provide them with avenues of recourse. It's that in this case the school, led by Zaccari, did everything it could to prevent Barnes from availing himself of these options. The most recent decision
by the 11th Circuit Court contains a detailed recounting of the events leading to the long-running lawsuit that shows Zaccari actively pushing for a form of expulsion ("administrative withdrawal") that would allow the school to bypass Barnes and his right to a more adversarial process.
It was this abuse of due process -- and Zaccari's guiding hand -- that led to him being held responsible for $50,000 in damages.
The court ruled that because Zaccari ignored Barnes’ “clearly established constitutional right to notice and a hearing before being removed from VSU,” Zaccari could not shield himself with the defense of “qualified immunity.” In other words, Zaccari’s abuse of power was so egregious that the Eleventh Circuit found he could be held personally liable for his wrongdoing.
$900,000 may seem like a decent payout, but it has to be spread over eight years of litigation. At best, this possibly puts Barnes at break-even. It will likely come with stipulations stating that it is not an admission of wrongdoing by VSU administration. It may prompt the university to more closely inspect its expulsion policies and address due process concerns in the future, but the school has issued no statement on its participation in the lawsuit nor its official position on the outcome.
The settlement is far more useful as a warning to other schools and administrators who may be considering ditching due process niceties in their haste to expel/shut up students that don't agree with their positions or activities. Even more effective than the $900,000 handed over to Barnes by the school is the $50,000 the school's president is personally on the hook for. There are few things more powerful than the direct targeting of an abusive individual's wallet, especially when that person had likely assumed his position would insulate him from being held accountable for his actions.
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Posted on Techdirt - 24 July 2015 @ 6:25pm
DOJ Inspector General Michael Horowitz's report on the DEA's use of confidential informants has been published. (We're still an unknown amount of time away for his report on the agency's use of administrative subpoenas.) And it's still incomplete. Horowitz has been fighting the FBI and DEA every step of the way, as both agencies have proven not only unwilling to turn over needed documents, but thoroughly resistant to DOJ intervention or threats against their collective wallets.
The opening of the OIG report gives some insight into the months of DEA interference and recalcitrance.
Our audit work thus far has been seriously delayed by numerous instances of uncooperativeness from the DEA, including attempts to prohibit the OIG’s observation of confidential source file reviews and delays, for months at a time, in providing the OIG with requested confidential source information and documentation. In each instance, the matters were resolved only after the Inspector General elevated them to the DEA Administrator. As a result, over 1 year after we initiated this review, the OIG only has been able to conduct a limited review of the DEA’s Confidential Source Program.
This makes the concluding sentences of this same paragraph seem particularly hopeless.
Nevertheless, we have uncovered several significant issues related to the DEA’s management of its Confidential Source Program that we believe require the prompt attention of DOJ and DEA leadership, as identified in this report. We will continue to audit the DEA’s Confidential Source Program to more fully assess the DEA’s management and oversight of its confidential sources.
If you can't get the DEA to turn over existing documents, it's highly unlikely Horowitz's recommendations will be implemented with any expedience. The DEA has already shown complete disdain for its oversight. Putting this in print won't change that.
The problems begin with the DEA apparently cherry-picking which Attorney General guidelines it will follow when dealing with confidential sources. Rather than add the guidelines as its own section of the DEA's policies, the DEA instead chose to fold in certain recommendations. This has created two sets of policies -- the DEA's and the (supposedly overriding) AG's. It hasn't gone well… at least in terms of cohesiveness. But it has
worked out perfectly if you consider "thwarting oversight" to be an essential part of drug enforcement.
The DEA’s differing policies have resulted in DEA personnel being able to use high-risk individuals as confidential sources without the level of review as would otherwise be required by the AG Guidelines for high-level and privileged or media-affiliated sources. These categories include individuals who are part of drug trafficking organization leadership, as well as individuals who are lawyers, doctors, or journalists. The AG Guidelines provide a special approval distinction for these individuals because the use of them as confidential sources poses an increased risk to the public and DEA and creates potential legal implications for DOJ. The exemption of the DEA from these requirements results in a relative lack of DEA and DOJ oversight…
And what has this lack of oversight led to? All sorts of fun stuff. The DEA has shown little interest in thoroughly reviewing its informants' "conduct authorization." By failing to stay current on what informants can commit what criminal acts, illegal activities are occurring with the implicit approval of the agency -- whether or not they contribute to ongoing investigations.
These sources may be committing not-directly-approved Otherwise Illegal Activity (OIA - yes, it's an official DEA term) for years after they've contributed to any DEA investigations. The DEA is also apparently unwilling to keep its sources' files up-to-date, meaning it could be years before the agency cuts a useless source loose. This lack of attention has resulted in DEA sources becoming the subject of other law enforcement agencies' investigations.
In some cases, the DEA continued to use, for up to 6 years without any DOJ intervention, individuals who were involved in unauthorized illegal activities and who were under investigation by federal entities.
While committing criminal acts in the service of the Drug War, these sources were also availing themselves of additional taxpayer funds -- again without proper oversight -- in the form of federal benefits.
We estimated that, in just the 1-year period from July 1, 2013, through June 30, 2014, the DEA paid 17 confidential sources or their dependents FECA benefits totaling approximately $1.034 million.
The DEA's oversight-dodging is more than just its ad hoc meshing of pertinent rules. It also involves using a completely different categorization process for its informants. Certain informants working with other federal agencies are designated "high level" and must be directly approved by the DOJ and US Attorney's Office. The DEA avoids this outside approval process by using its own rubric, which doesn't contain the "high level" designation and appears to have very flexible sitpulations. This includes policies pertaining to informants whose communications may fall under the heading of "privileged."
Other DEA headquarters’ officials acknowledged that Special Agents are permitted to establish as a confidential source a privileged or media-affiliated status individual, such as a doctor or lawyer, to obtain information not related to the source’s employment. In these cases, the DEA’s legal staff would review the proposed utilization of the privileged or media-affiliated individual to ensure there is not a breach of privilege. However, this requirement and process is not included in the DEA Special Agents Manual section on confidential sources. Thus, the DEA solely relies on the discretion and judgment of its special agents to identify occupations that necessitate additional review and seek that from DEA legal staff.
The agency's approval of Otherwise Illegal Activities is similarly flawed, again allowing the agency to avoid oversight. (As well as any perception of the DEA as a competent, well-run crime-fighting machine.) For a drug-targeting agency, it certainly takes a very hands-off approach to drug-related activity.
[T]he DEA Special Agents Manual section on sensitive activities explicitly excludes drug buys and other routine confidential source activities, and the DEA Special Agents Manual section on confidential sources does not provide detail on the process for using confidential sources to perform illegal acts such as drug buys, does not require SAC approval for larger drug deals, and does not reach smaller ones…
These inadequate DEA policies and procedures related to OIA greatly increase the risk to the DEA, the U.S. government, and the public from the involvement of DEA confidential sources in OIA. DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA.
This lackadaisical approach is likely costing the DEA drug busts. Because it shows almost no interest in policing approved criminal activity, it could find itself struggling when attempting to prosecute former informants or their conspirators.
And its own internal oversight policies are a complete joke. No matter what the policies state, actual
review of informants' files has long been nothing more than a swift rubber-stamping. Up until the OIG started looking into its confidential source program in 2012, the DEA, for the most part, spent only 15-30 seconds
examining each confidential source file.
On top of all this, there's a strain of unearned credibility given to the DEA and the sources it employs by other government agencies. Despite a complete lack of documentation, claims submitted to the Department of Labor seeking compensation for injuries or death were routinely approved.
The DEA submitted and DOL accepted a claim for a confidential source who was presumably killed overseas in 1991. However, according to the file, there were no witnesses to the confidential source’s death and the source’s body had not been recovered.
The DEA submitted and DOL accepted a claim for a confidential source who was shot and injured at home in 2002. However, the file indicates that there were no witnesses to the shooting and the file contained no evidence of a link between the shooting and the individual’s status as a DEA source.
In addition, the DOL considered anything the DEA forwarded to it to be perfectly accurate, resulting in "disabled" confidential sources drawing paychecks from both the DEA and
the DOL for years at a time.
Considering what's in the report, it's of little surprise the agency fought Inspector General Horowitz for as long as it did. And it's still fighting. This report is based on an incomplete survey of pertinent files. The DEA is still holding some stuff back, claiming it needs to protect the sources it can't be bothered to keep an eye on.
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Posted on Techdirt - 24 July 2015 @ 3:57pm
Update: In writing this post the original link to Alex Howard's piece at Huffington Post, which makes up the majority of quotes here somehow slipped. We apologize to Alex for the error..
The Department of Homeland Security (DHS) is looking to revamp its FOIA system, which is not only suffering from the over-redaction common to intelligence/security agencies, but also from a massive backlog of unfulfilled requests. As befits an agency that often can't tell the First Amendment from a terrorist threat, the effort is going badly.
First off, the DHS recently debuted its mostly-nonfunctioning FOIA request app, which would probably have added to its backlog if only it worked. But it's a move in the right direction -- greater transparency -- even if in practice, it's pretty much the equivalent of tripping over something and calling it "forward progress."
The DHS has similar problems with its internal technology.
A November 2014 report from the General Accountability Office found the DHS duplicates efforts when processing FOIA requests. Holzer acknowledged the issue in a memorandum that said different departments of the DHS are using FOIA software that fails to meet federal standards.
The Holzer quoted here is the current senior director of FOIA operations at the DHS, James Holzer. Under his direction, the DHS has moved ever so slightly towards the "responsive agency" ideal. But every small step forward continues to be undermined by the agency's desire to keep its documents to itself. It currently has the greatest number of partially-filled requests of any government agency.
Part of this is due to the fact that the agency receives more requests than any other agency. And part of this is due to the government talking big about transparency, but refusing to put federal money where its mouth is.
According to the Department of Justice's annual report, there were 3,838 full-time FOIA staff members in 2014. In 2011, there were 4,396.
But part of this is due to Holzer himself, who has erected fee barriers
to further distance requesters from the documents they seek.
Holzer wrote a 2014 letter that MuckRock, which provides a FOIA request and hosting service, was "not a member of the news media," though it featured journalists like Michael Morisy and Shawn Musgrave publishing journalism on matters of public interest, like domestic drone programs.
According to Holzer, MuckRock is a "commercial" entity -- apparently basing his determination solely on the fact that MuckRock has a website and internet users visit it to view FOIA documents.
Making documents available on MuckRock's website, even at no charge, drives traffic to the website and furthers its commercial purposes.
On top of all this, the DHS has also been found to censor FOIA responses
for purely political reasons and has occasionally handled its massive backlog of unanswered requests by tossing thousands
of them into file boxes and forgetting about them.
So, given this background, it's a little disheartening to hear that Holzer is being promoted to a position that will give him even more control over the government's end of the FOIA process.
This week, Archivist of the United States David Ferriero announced that James Holzer would be the new director of the Office of Government Information Services at the U.S. National Archives, beginning on August 9.
"Dr. Holzer’s experience administering FOIA and his demonstrated commitment to transparency will benefit OGIS, the National Archives, and the American public," said Ferriero.
Well, "commitment to transparency" means only as much as the administration itself
is committed to transparency -- which isn't much
. The promotion of an insider like Holzer to this post means FOIA requesters should expect little more than the status quo for the duration of his tenure. The government isn't imaginative enough to explore the areas outside its confines while filling an open FOIA oversight slot. This is the sort of job that shouldn't be left to a company man, as HuffPo's Alexander Howard points out.
It's hard to find a positive interpretation of the fact that a FOIA officer from DHS has been appointed ombudsman. FOIA requesters will need a strong advocate to arbitrate disputes and push for their requests to be addressed. A candidate from the nonprofit, academic or media worlds would be much more likely to do that than a DHS staffer.
The FOIA program will never approach the ideals of the law as long as it continues to be overseen only by government officials. Their interests are at odds with the public's in most cases. It's yet another area of government that would be better served by an advocate for the public, drawn from the public.
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Posted on Techdirt - 24 July 2015 @ 11:38am
The local police union defended the indefensible: the burning/maiming of a toddler with a flashbang grenade, delivered during a no-knock raid in service of the Drug War. According to the union rep, burned toddlers are just the price society has to pay to keep the streets relatively free of criminals.
"You have to draw the line between your right as a citizen to privacy and a community's right to live in a crime-free environment. You can't have them both," Mills said.
Thanks, but no thanks. Not only did the union defend these Georgia police officers' needlessly aggressive tactics, but it attempted to lay the blame for a burned toddler at the public's feet. And now, with a grand jury indictment being handed down, it appears the union was also defending a liar
According to the indictment, [Deputy] Autry falsely claimed a confidential informant who had provided reliable information in the past had bought methamphetamine from Wanis Thonetheva at his mother's house in Cornelia. In truth, the informant was newly minted, and it was his roommate who claimed (without verification) to have bought drugs at the house. That lie was the basis for the early-morning, no-knock raid during which 18-month-old Bounkham "Bou Bou" Phonesavanh, Thonetheva's cousin, was nearly killed by a flash-bang grenade that landed in the playpen where he was sleeping.
Any CI that can put a no-knock raid in motion is inherently trustworthy. Except when they aren't. So, much like the toddler's family's lawsuit
alleged, the impetus for the raid that saw SWAT members tripping over children's toys in the yard on their way to tossing a flashbang grenade into a crib was nothing more than some random citizen "helping" keep his neighborhood safe.
All that investigative work and "upon information and belief" was actually Habersham County Deputy Sheriff Nikki Autry spinning a tale
of small-time drug running in exchange for the permission to perform the law enforcement version of a home invasion.
Specifically, Defendant Autry provided and swore, in pertinent part, (1) that she conducted an undercover drug investigation during which time CI #1459 was able to purchase a quantity of methamphetamine from [W.T] at [W.T.'s] residence; (2) that CI #1459 [was] a true and reliable informant who provided information in the past that led to criminal charges on individuals selling illegal narcotics… and (3) that she confirmed that "there [was] heavy traffic in and out of the residence."
This information that Defendant Autry provided and swore to was false, because, as Defendant Autry then well knew: (1) CI #1459 did not purchase a quantity of methamphetamine from W.T. during her investigation; (2) CI #1459 had not provided information in the past that led to criminal charges on individuals selling illegal narcotics… and (3) she had not confirmed that there was heavy traffic in and out of the residence.
accompanying the grand jury's findings suggest several improvements for drug enforcement activities, starting with dialing back the "gung-ho" aspects of drug warring.
Some of what contributed to this tragedy can be attributed to well-intentioned people getting in too big a hurry, and not slowing down and taking enough time to consider the possible consequences of their actions. Without serious supervision and constant vigilance, the work of drug enforcement, like many other jobs, can unfortunately become routine and lead to complacency and lack of attention to detail. The difference in this type of work is that the consequences can be devastating to both citizens and law enforcement when things go wrong.
Making thing go "right" more often means bringing SWAT teams and tactics back in line with their original intentions: for use only the most dangerous operations. Over the past few decades, SWAT teams have gone from seldom-used specialists who dealt with shootouts and hostage situations to routine -- but extraordinarily violent -- delivery services for unremarkable search/arrest warrants. The presentment points out law enforcement agencies have several options that don't involve violently raiding residences during odd hours.
We recommend that whenever reasonably possible, suspects be arrested away from a home when doing so can be accomplished without extra risk to law enforcement and to citizens. Going into a home with the highest level of entry should be reserved for those cases where it is absolutely necessary. This is to protect both citizens and law enforcement officers.
We have heard evidence that many drug suspects often initially believe a law enforcement entry is in fact a drug robbery. In an instant, they reach for a weapon or take an action that makes a situation escalate. This is dangerous to all involved, and neither the public nor law enforcement officers should be in this dangerous split second situation unless it is absolutely necessary for the protection of the public, which is the highest concern for our lawenforcement officers under their duty.
It's a nice set of words, but the real test will be the application of these principles -- principles that never should have been abandoned in the first place. To start with, it's rare to find an officer who places protection of the public over protection of themselves
. Almost every act of unwarranted violence is defended by the words "feared for my safety." We don't ask that officers become punching bags and bullet-catchers, but there's a lot of leeway between a "furtive motion" and emptying
a service weapon into an unarmed person. (Or tossing a flashbang through the nearest window with little regard for what lies behind it.)
The standard MO for drug-related warrants is to deliver them with as much violence, force and noise as possible, under the assumption that every drug dealer -- no matter how small -- awaits the arrival of police with barricades and an arsenal. This simply isn't borne out by the results of these raids, which often fail to turn up any weapons -- or at least none being wielded by the residents of the home. In some cases, there are also no drugs to be found, but this result rarely leads to the turfing of a CI or a less-violent entry when serving the next warrant.
The deaths and injuries caused by drug enforcement aren't in danger of approaching the death and injuries caused by the drug trade, but the former is more disturbing than the latter. While we might expect a certain amount of violence from purveyors of illicit substances, we don't really expect as much from law enforcement. And yet we're seeing it occur on a far too regular basis.
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Posted on Techdirt - 24 July 2015 @ 8:17am
Copyright troll Malibu Media would prefer the many courtrooms it uses as speculative invoicing middlemen to be free of disparaging statements. To that end, it has filed a motion that specifically asks that certain blogs not be brought up nor discussed nor quoted extensively from by the defendant or his counsel. (h/t to Raul)
The Court should preclude Defendant from referring to copyleft blogs for any purpose, including specifically references to fightcopyrightrolls.com and dietrolldie.com. Plaintiff expects Defendant may attempt to reference these blogs at trial in an effort to introduce unsubstantiated allegations against Plaintiff. The blogs target Plaintiff and its counsel with vitriolic hate speech and contain comments that are biased, slanderous, and prejudicial, and should not be referred to at trial for any purpose. “Many internet blogs commenting on this and related cases ignore the rights of copyright owners to sue for infringement, and inappropriately belittle efforts of copyright owners to seek injunctions and damages.” Malibu Media, LLC v. John Does 1, 6, 13, 14, 950 F. Supp. 2d 779, 781 (E.D. Pa. 2013).
Yes, we can't have sites that expose
the immoral and illegal activities of copyright trolls exposing the immoral and illegal activities of copyright trolls, can we? We'll just have to see what the judge has to say about this exclusionary motion. And in support of its allegations about the content of these blogs, Malibu Media cites a friendly footnote from one of its rare wins
[p. 2] -- a derogatory phrase penned by Judge Michael Baylson and co-opted in its entirety by Dallas Buyers Club for use in its threatening letters to alleged infringers
Rather hilariously, Malibu Media uses an infrequently-used term to describe these blogs, in an equally-sad attempt to appear evenhanded.
Plaintiff, Malibu Media, LLC (“Plaintiff”) by and through undersigned counsel, hereby moves for the entry of an order precluding Defendant Michael Harrison (“Defendant”) and his counsel from referring to copyleft blogs at trial for any purpose...
Sensing the court may not be familiar with the concept of "copyleft," it is more fully described in the attached footnote:
“Copyleft” is the polite way of describing an anti-copyright ideology. “Freetards” is the degrading equivalent of “copyright trolls” when used in association with copyright producers.
With this handy guide to the nuances of the copyright debate now on the record, the case can presumably proceed safely. According to Malibu, the blogs that have long tracked its legal efforts have "no probative value" and the mere mention of the forbidden sites may "provoke" jurors into browsing these blogs during their downtime... which obviously won't win Malibu any new
All in all, it's pretty much a vindication of the efforts made by Fight Copyright Trolls
and Die Troll Die
. If these were nothing more than storehouses for hyperbolic statements and woodchipper discussions
, it's highly unlikely Malibu would be attempting to preemptively banish them from court.
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Posted on Techdirt - 23 July 2015 @ 1:57pm
It's extremely difficult to win a defamation suit when the allegedly defamatory statements are THINGS THAT ACTUALLY HAPPENED.
It was, on the surface, a bit ironic. A pro se plaintiff who was mentioned in an article about serial filers of lawsuits sued the article's authors and the newspaper that printed it.
But the New London Day newspaper, reporter Karen Florin, executive editor Timothy Dwyer and Wyatt Kopp, who was interviewed by the newspaper, prevailed when a judge ruled that no one was defamed in an article that focused on the costs incurred by the court system and defendants when low-income plaintiffs whose court fees are waived file dozens of dubious claims.
"After viewing all the revised complaints and evidence in this case, the court cannot identify any statement by Kopp that can be legally construed as defamatory," wrote New London Superior Court Judge Terence Zemetis, who added that "stating that a lawsuit is frivolous is an expression of opinion and is not defamatory."
The plaintiff was Sylvester Traylor, a frequent pro se filer whose legal battles (mostly losing) can be found here
, as well as other places
around the internet
. The article at the nominal center
of this lawsuit
(which was also filed against numerous other parties covering the same proposed bill targeting the abuse of in forma pauperis
[waived fees] filing) didn't make any
Everything Traylor took offense to was the direct result of Traylor's own litigious activities. The article simply cites his multiple filings, as well as judges' reactions to his "protracted legal battles." It even directly quotes court orders
and opinions -- which are far more damning than anything posted at the New London Day.
In July 2012, the Second Circuit Court of Appeals dismissed one of Traylor's filings and warned him that "the continued filing of duplicative, vexatious, or frivolous appeals, mandamus petitions or motions may result in sanctions, including a leave-to-file sanction requiring Traylor to obtain permission from this Court prior to filing further submissions in this Court."
In a November 2012 order dismissing a case Traylor brought against 12 state legislators, court officials and an insurance company, Hartford Superior Court Judge Carl J. Schumann wrote that Traylor's "litigious ferver is perhaps understandable, but it has clearly reached the point of becoming unnecessarily costly, wasteful and fruitless."
In true "vexatious litigant" style, Traylor accused the paper of making "selective and calculated statements to slant the characterization of the plaintiff's legal cases," claiming its failure to cite the three
judgments in his favor was some sort of defamation-by-omission. Even more legally-unsound, Traylor argued that the paper said something it didn't actually say.
[T]hough the article did paint a picture that Traylor's lawsuits were "frivolous," it was clear that it was Kopp—not the newspaper—drawing that conclusion, the judge ruled.
Not that Traylor has anything to worry about. The article he sued over (along with journalists covering the same bill for local TV stations) discussed an attempt to curb serial litigants who "abused" in forma pauperis
privileges granted to indigent filers. The first sought greater legal review prior to allowing cases to advance. The latter suggested litigants could work off their comped filing fees by performing community service. Neither bill went anywhere, so Traylor is free to continue filing "frivolous" lawsuits until informed otherwise by presiding judges.
He's also free to fight speech with speech, which the New London Day allowed him to do by printing his short editorial
against proposed limitations to waived-fee filings. It also contacted him for the January article he sued over, posting his defense of his actions. And none of that was enough to prevent Traylor from filing another lawsuit.
The ultimate defense against defamation accusations is the truth. This will probably be lost on Traylor as it's been lost on far too many serial litigants
. If a person wants to complain (via the courtroom) that they've been misrepresented by "slanted" statements, they should at least have the self-awareness to recognize it's their actions
that are creating this negative perception.
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Posted on Techdirt - 23 July 2015 @ 12:48pm
Documents pertaining to the accidental killing of two men by US drone strikes in Yemen can continue to remain unacknowledged by the agencies guiding the strikes.
A federal judge has ruled the CIA and Defense Department (DOD) do not have to confirm or deny whether they have records on the “factual basis for the killing” of either Samir Khan or Abdulrahman al-Awlaki, who were killed in two separate drone strikes in September and October of 2011.
The heavily-redacted order
does contain some good news, however. The presiding judge ordered the Dept. of Defense and the CIA to turn over FOIAed documents to the ACLU that contain "previously acknowledged facts," thus preventing the Dept. of Justice from turning real life into a bizarre fantasy world
where previously disclosed information can be treated as though it was still locked up in the agency's "TOP SECRET" digital filing cabinet.
But the obvious downside is this: because the government has been given permission to avoid confirming or denying the existence of the documents the ACLU is seeking, the search for more information on accidental deaths and collateral damage will still consist of issuing speculative FOIA requests, which will then result in more lengthy, expensive litigation.
I'm pretty sure the involved agencies believe they can outlast FOIA requesters, especially if they continue to receive mostly-favorable decisions from judges who place more faith in the government and its assertions about national security than in those who view government secrecy with considerably more skepticism. The problem is that the government has the resources to fight long legal battles. Most FOIA requesters do not.
This decision also further insulates the government from the repercussions of its own actions. By allowing the agencies to neither confirm nor deny the existence of these documents, it gives the government permission to deflect further inquiries into the oversight governing drone strikes -- and what it does when it suspects a strike has killed the wrong people.
If one accepts the government’s claims that Khan and Abdulrahman’s deaths were “accidental,” one at least has to believe the government did some kind of review after the strikes once they recognized two US citizens had been killed. This is what the ACLU suspects.
The ACLU and Center for Constitutional Rights have pursued a lawsuit challenging the constitutionality of the strikes, which killed the three US citizens. And, in this lawsuit, the ACLU has challenged the right of the government to keep information related to their deaths secret.
This sort of information is definitely of the "public interest" variety and should be given more heft when weighed against national security concerns. The American public isn't necessarily supportive of this highly-secret program and considering its complete lack of say in the matter, the least it should be given is the opportunity to more closely examine the accountability process.
Instead, the opinion allows the government to redact much of what it can't Glomar into nonexistence with the most abused
FOIA exemption: b(5). Nominally for "deliberative process" documents only, the exemption has expanded to cover almost anything the government doesn't want to (immediately) reveal. About the only way to remove a b(5) exemption is through the courts -- an expensive process with low odds of success.
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Posted on Techdirt - 23 July 2015 @ 10:43am
The legislative sausage-making process is apparently so streamlined that many sausage-makers are barely involved in the process. It's not that they don't want to be. It's that other sausage-makers want their product to be pushed out the door with a minimum of inspection.
Senator Mike Lee posted a video to his Facebook page that contained a rather graphic depiction of expeditious sausage-making. As his printer whirred away behind him, Lee noted that a $47-billion, 1,033-page transportation funding bill was up for a vote. In less than an hour.
If I don't have time to read legislation before voting on it, my default vote is no. We received the highway bill today at 3:06 p.m., and it is over 1,000 pages long. Our first vote on this legislation is scheduled for 4:00 p.m.
The bill -- which failed to obtain the number of votes needed to open debate
-- was a bipartisan effort (led by Barbara Boxer [D] and Mitch McConnell [R]). That's probably the best thing that can be said about it and the legislators behind it. Rather than prove lawmakers can occasionally put aside their differences and actually move forward with the business of legislating, this bill simply signals that both sides of the aisle are willing to resort to bullshit tactics.
The bill arrived at the last minute because the effort itself was last minute. Federal highway aid to states is up against a July 31st expiration deadline. Despite its length, the bill is still far from finished. It takes money from a variety of unrelated programs to fund federal aid for the next three years. The problem is the bill authorizes spending for the next six
years. That's the other reason the bill's champions were hoping to shove this through with a minimum of debate: the bill leaves it up to the next Senate class to figure out where it's going to get the other $45-60 billion it will need to keep the federal aid flowing.
Fortunately, most senators were angered by this last-minute page dump.
Sen. Charles Schumer of New York, the No. 3 Democratic leader, said, "I can't remember a time where I have been asked in all my years in the Congress to vote yes ahead of time on a bill we haven't seen, and there are no amendments" allowed.
Sen. Richard Blumenthal, D-Conn., called the bill "a black hole." He said Democrats have been told changes have been made to auto, trucking and rail safety provisions that were agreed to last week on a party-line vote by the Senate commerce committee, but no details were provided before the vote. Some Democrats have described the provisions as giveaways to industry that would undermine safety.
Schumer is certainly exaggerating. While the very specific facts of this legislative effort may indeed be unique, shoving under-scrutinized bills past legislators is something of a tradition in Washington. PATRIOT Act, anyone? It took until June of 2014 before many lawmakers realized the extent of what they had authorized in 2001. The recording industry pushed through a favorable law change at literally midnight
back in 1999. PoliceStateUSA points out that John Boehner dropped a gun control law
on the floor when only 10 legislators (out of 435) were on hand to vote. Just recently, the aforementioned Mitch McConnell put a "no questions asked" Section 215 reauthorization bill up for a vote
, using his powers as a majority leader to bypass all the hoops the USA Freedom Act was made to jump through.
Anything that might be debated heatedly often arrives at a moment when debate is least likely to occur. Thursday afternoons as legislators are all packing up to return to their homes. Late nights when few lawmakers are left in the building. Or -- like this one -- hundreds of pages of legalese released to voting members shortly before a scheduled vote.
And, in this case, the bill arrives with a bit of extortion attached. Senators who refuse to vote for something they haven't read face the prospect of dealing with angry locals whose federal aid has just expired. Far too often, legislators allow everything to reach the brink of collapse before making a move. There's not a person out there who thinks the best laws are made at the last minute. No one wants poorly-written funding programs that hobble other sectors in a short-sighted attempt to balance the books for the very immediate future. Even if this manages to make it out alive, it still only "fixes" everything for half
of the time period authorized by the bill. So, in three years, there will be another last-minute attempt to secure funding, and it will be any other funding legislators feel is at least temporarily expendable that will be forced to patch up funding holes left by the last Senate session.
Sometimes, the sausage doesn't even get made. Instead, a bunch of random ingredients are shoved into a casing and passed off as a finished product. And it's the public that's forced to "eat" this sausage -- both in terms of the asking price, as well as any nasty side effects consumption of the poorly-made sausage may cause.
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Posted on Techdirt - 23 July 2015 @ 8:28am
Government paranoia about "critical infrastructure" will now be extended to drone photography, if New Jersey's proposed legislation is any indication. While law enforcement agencies are still weighing the Fourth Amendment implications of surveillance drones, some local governments are moving ahead with plans to shortchange the First Amendment.
This new legislation makes it a criminal offense to use a drone to take a photograph of “critical infrastructure.” And what is “critical infrastructure”? Any “asset” whose incapacity—even partial incapacity—would have an impact on the physical or economic security, or public health or safety, of the state. This specifically includes highways, waste treatment facilities, bridges, tunnels, and more.
This proposal would codify something many public employees (especially those in law enforcement/security agencies) already mistakenly believe
: that photography of public structures is illegal
and probably has something to do with terrorism
. Even if the structure is already completely viewable with the naked eye, can be viewed via satellite photography and has been the subject of multiple official
photo releases, people with cameras around certain structures
are considered inherently suspicious. Now, this misguided "security" concern is being extended to eyes in the sky, something the government seems to believe should be in the possession
of government agencies only.
The proposed penalties for violations are fairly severe.
Specifically, this bill makes it a fourth degree crime for a person to use a civilian unmanned aerial vehicle, commonly referred to as a drone, to conduct surveillance of, gather evidence or collect information or data about, or photographically or electronically record any critical infrastructure without the prior written consent of the entity that owns or operates the critical infrastructure. A fourth degree crime is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.
On top of that, the legislation would help the state build a list of "usual suspects."
The bill also prohibits a person from operating a civilian drone unless it is registered with the Division of Aeronautics in the Department of Transportation. In addition, a person is prohibited from operating a civilian drone unless the person maintains liability insurance coverage to insure against loss resulting from liability for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation, or use of the drone. The required minimum coverage is to be in an amount determined by the Commissioner of Banking and Insurance in consultation with the Commissioner of Transportation.
A person who operates a civilian drone without the required registration or insurance is subject to a civil penalty of not less than $1,000 for a first offense and not less than $5,000 for a second or subsequent offense. In addition, for a second or subsequent offense, a person’s civilian drone registration is to be revoked for a period of two years.
So, while law enforcement agencies argue that aerial surveillance has minimal Fourth Amendment impact
because public places have a lowered expectation of privacy, they're also supporting legislation that would grant public structures more protection than a member of the public's fenced-in backyard. Of course, the Fourth Amendment only deals with privacy. This legislative push concerns security
-- something that tends to receive higher priority than Constitutional rights.
Then there's the inherent stupidity of carving out a drone-specific ban. People with regular cameras (or cell phones) will still be able to photograph these structures, as will aerial photographers in planes and helicopters. It's a very specific paranoia -- one limited solely to new tech that's currently subject to very little government control.
And that's really what this is all about. Lawmakers have (civilian) drone fever and the only cure is more
legislation. Those pesky men (and women) and their flying machines are harming the nation's security somehow with their democratization of aerial photography. These legislators obviously feel the only entity that should have full access to the skies and everything below is the government. And if the First Amendment has to suffer some cutbacks, so be it.
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Posted on Techdirt - 22 July 2015 @ 3:19pm
The CIA has been fighting to keep POW/MIA records out of Roger Hall's hands for over a decade. With that FOIA battle finally over, the CIA is now fighting to keep its money out of Roger Hall's hands. Judge Royce Lambert's order sounds a little exasperated with this vexatious defendant.
First, the CIA admits Hall (and Studies Solutions Results) have mostly won. But it then goes on to claim it shouldn't be required to follow this provision of the Freedom of Information Act -- that "substantially prevailing" plaintiffs are entitled to legal fees.
The CIA concedes that the plaintiffs have prevailed on several of their claims and that they are therefore eligible for fees. Opp'n 8. The CIA also "accepts some responsibility for the unnecessarily protracted nature of this litigation" and notes that there is "accordingly no need for the Court to consider whether the plaintiffs are entitled to an award." Furthermore, the CIA does not argue that interim fees are inappropriate or that fees should not be awarded until the conclusion of litigation.
So, what is the CIA's problem? It admits fault but only wants to pay a small fraction of what Hall is seeking. Hall claims a decade's-worth of the CIA's admittedly "unnecessarily protracted" litigation has cost him more than $400,000. The CIA thinks $75,000 is more than fair for screwing him around for 10+ years.
First, the CIA claims Hall's win isn't much of a win, and if he's racked up hundreds of thousands of dollars in legal fees, it's his own fault.
The CIA requests that the Court reduce the requested fees because plaintiffs have achieved only limited success, calling their victory "largely pyrrhic..." The CIA argues that because plaintiffs sought such "extraordinarily broad categories of records," "it was almost inevitable that litigation would ensue."
Judge Lambert points to the court record as being contradictory to the CIA's portrayal of the litigation.
This allegation is, to some extent, in tension with the statement that it "does not dispute that the plaintiffs have substantially prevailed on several of their claims." Indeed, the Court has repeatedly rejected the claim that the FOIA requests were overly broad and unduly burdensome, and now agrees that plaintiffs have achieved significantly more than a victory.
In fact, he points out it's the CIA
that's been racking up loss after loss.
Overall, the Court finds that the plaintiffs in this case have been quite successful in achieving their objective: obtaining documents unlawfully withheld. When this lawsuit was filed, the CIA refused to release the requested records and failed to respond to plaintiffs' request for over a year. After many years of litigation, the CIA has released more than 4,000 documents, quite a substantial success. The Court finds that plaintiffs' actions in diligently pursuing their claims were reasonable -- even those that were ultimately unsuccessful -- and it will not use the benefit of hindsight to scrutinize every one of plaintiffs' actions.
And while the CIA attempted to use a little math to buttress its claims that Hall's litigation has been mostly unsuccessful ("CIA… specifically takes issue with a number of unsuccessful motions filed by the plaintiffs
…"), it didn't bother to apply anything of the sort to its counteroffer on legal fees.
[T]he court finds it troubling that the CIA did not even attempt to analyze how many hours related to such motions, instead stating only that "a fee award up to $75,000 may be appropriate."
Which means the court now has to do the calculations the CIA couldn't be bothered to perform.
The CIA… [provided] no basis from which to determine how much of a reduction would be appropriate and [left] such calculations to the Court. This not only inconveniences the Court, but should the Court produce its own analysis for the first time in a written opinion, the plaintiffs would not have a chance to respond.
And it comes to much, much more than the CIA offered.
Applying the historic Laffey rates to Hall and SSR's total requested hours produces an award of $346,231 after billing 0.8 hours [yes, the CIA argued over 0.8 billable hours -- out of 1,008.7 total] to the clerical rate rather than the attorney rate. Their attorney, James Lesar, agreed that it is appropriate to deduct 15% of the time recorded as a matter of billing judgment, yielding an award of $294,296.40.
In addition to the $294,000, another $120,000 will be going to James Lesar himself, bringing the total award to $414,478.40.
After being presented with these results, the CIA argued that it was simply too much… by citing other cases with lower awards, no matter their relevance to the issue at hand.
The cases the CIA cites in an attempt to show that this award is out of sync with fees awarded in similar cases are not illustrative. Simply listing cases and fee awards is not helpful.
The CIA will now be lifting over $400,000 from taxpayers' wallets to pay for its combative, secretive behavior. Records pertaining to prisoners of war and missing in action soldiers are the very definition of "public interest" documents. Throughout the course of this case, the CIA repeatedly claimed otherwise, claiming that the documents might be of interest to surviving relatives/spouses only. The court disagrees.
Certainly information regarding missing following the Vietnam and Korean Wars is exactly the type of information that interests the public. Disclosure of this information has the potential to shed light on the extent, nature, intensity, and duration of the government's efforts to locate and show the degree to which the CIA has accurately informed the public about its search efforts and the information it possesses. [...] Information regarding POW/MIAs is not only of interest to the public, but hard to come by.
It's the public that's been forced to take part in a pyrrhic victory. More documents have been freed, but it took years of litigation. That bill will be footed by the same public the CIA denies has any interest in the documents. There's more information available now than there was 10 years ago, but every step of the way, the CIA used the public's money to fight against the public's interest. And now it needs another $400,000 from the public to pay back other members of the public.
The servicemen and women whose information the CIA fought to withheld would probably have reminded the public that "freedom isn't free." The payout resulting from this extensive legal fight turns those words into a ghastly parody
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Posted on Techdirt - 21 July 2015 @ 9:29pm
Police misconduct and abuse allegations are always greeted with defensive department statements about "thorough investigations" and "taking allegations seriously." And yet, when it's all said and done, very little has been done to prevent future abuse.
The most common outcome is a temporary reassignment. Sometimes there are suspensions, most of which are simply paid vacations. Even if a cop manages to get fired, his union will step up to try to get him his job back. In some cases, officers are allowed to resign rather than face firing -- a move that ensures vacation, sick time and pensions are paid out.
The public is supposed to take these various levels of wrist-slapping very seriously. And law enforcement officers and agencies are supposed to make sure this illusion of accountability isn't completely shattered. But one former officer of a Canadian police department has just stripped the veneer of respectability coating the law enforcement discipline process.
Back in 2011, Constable Craig Markham did all sorts of things a cop shouldn't do.
On September 28, 2011, the Appellant [Craig Markham] received a text on his personal cell phone from A.S. inquiring about her common law partner, N.C., who had just been arrested and was in police custody facing serious drug related charges. N.C. was an acquaintance of the Appellant.
The Appellant accessed the Service’s internal records system as well as CPIC and searched out information regarding N.C. He then proceeded to the cells where N.C. was being held and had a discussion with him. After leaving N.C., the Appellant phoned a mutual acquaintance of theirs, E.C., and advised him that N.C. had been arrested. The Appellant again accessed the Service’s internal records, copied the synopsis form and the occurrence report pertaining to N.C.’s arrest to his Service email account, and emailed it to his personal email account. The next day the Appellant again accessed the Service’s system to inquire about E.C. and A.S
Markham was fired for passing confidential information to a member of the public. Or, rather, the Waterloo Police Service attempted
to fire him. He appealed the decision, which resulted in three years of paid suspension while he waited for his case to be heard.
Markham was finally, officially fired for these violations early last year after his case was heard. No. Wait. He resigned
because the Waterloo Police Service Board gave him this option.
The Hearing Officer gave the Appellant seven days to resign or he was to be terminated from all employment with the Service. The Appellant sought a lesser penalty.
You would think that being allowed a graceful exit and three years of fully-funded free time would be payment enough. But no, Markham had to rub it in. In what has to be one of the stupidest moves ever performed by a disgraced public servant, Markham sent an email to the department's legal rep gloating about his paid time off
. (via Information Liberation
A former Waterloo Regional Police officer who was suspended with pay for three years sent an email to police thanking them for his continued salary while he sat at home, played golf, travelled and took a course to become a firefighter.
“I am very thankful and fortunate to have received such a nice gift from WRPS over the last three years. You have opened up other doors for me and have paid me to sit back and watch. What a dream come true,” Craig Markham wrote in an email on March 27 addressed to the police service’s solicitor.
Markham made over $90,000 a year pursuing his hobbies while his case was being appealed. He might have gotten away with it if he hadn't felt compelled to apprise his former department of the details of his extended vacation. Unfortunately for him, his audaciously moronic move pissed off his former boss.
Police Chief Bryan Larkin presented the letter to members of the Region of Waterloo Police Services Board at a meeting last week.
“He (Markham) mocks what is supposed to be a fair and judicial system,” Larkin said in an interview.
“It sends a bad message to the community,” Larkin said.
“More importantly, it harms and takes away from the incredible work of the 760 officers who are out there everyday putting their lives at risk.”
Larkin is completely right. And every police department that allows (or is forced to by union contracts) its misbehaving officers to take paid vacations as "punishment" for wrongdoing is making the situation worse. Markham just exposed the system for what it really is: a great way to abuse the public's trust and
get paid for doing nothing.
Unbelievably, Markham is now trying to play the victim.
“I think it’s disgusting that Bryan Larkin released my email,” Markham told the meeting. “He is using me as a scapegoat.”
Whatever Larkin is using Markham for, it's the first thing he's earned in over three years. Markham claims the email was sent in a "moment of frustration," but it's rather difficult to square that with his boasts about using unearned paychecks to travel and play golf -- the total of which approaches $350,000.
But despite his email's jocular recounting of hobbies pursued and unearned money spent, Markham still maintains he's still an upstanding dude
“I’m not the taxpayer bandit,” Markham said. “It’s not like I came in during the middle of the night with a mask on and robbed the taxpayer.”
“It just sounds like I laid on the beach and drank pina coladas for three years.”
As for the first part? No, it's actually worse. Markham robbed taxpayers behind their backs, collecting paychecks he hadn't earned while fighting to reclaim a position he didn't deserve. He abused the public's trust and spent more than three years taking their money in exchange for nothing at all.
As for the last?
I can't think of anyone else to blame for what this "sounds like." If Markham doesn't like being misrepresented by his own
words, maybe he should have chosen them more carefully.
The only silver lining (beyond a possible overhaul of disciplinary policies in Waterloo) is the fact that only the province of Ontario allows its law enforcement officers to collect paychecks while suspended. If Markham had done the same thing anywhere else, he might have actually felt the sting of accountability. But he did it in Waterloo and managed to continue abusing the public's trust even after exiting the field of public service.
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Posted on Techdirt - 21 July 2015 @ 3:14pm
The NYPD doesn't care for transparency. Its relationship with open records requesters ranges from "frosty" to "antagonistic." It even employs its own in-house, completely arbitrary classification system in order to prevent even more of its documents from making their way into the hands of the public.
And, despite policies specifically mandating the preservation of records, NYPD officials are apparently preemptively deleting certain communications to ensure they'll never be made public.
Attorneys for the city have failed to turn over even one email from the files of former Police Commissioner Raymond Kelly or former Chief of Department Joseph Esposito regarding summons activity over the last eight years, attorney Elinor Sutton writes in new filings in Manhattan Federal Court seeking sanctions against the city.
“It is simply not tenable that Commissioner Kelly and Chief Esposito did not — in the entire period of 2007 through the present — write or receive emails using terms” related to the word “summons,” Sutton writes.
Seven years of discussing police business and not once
did Kelly or Esposito use the word "summons," one of the most common terms used when discussing police business. How can this possibly be? Well, when you're looking for evidence that NYPD bosses and supervisors instituted illegal quotas, the word "summons" would figure prominently in responsive documents... if said documents hadn't been memory-holed for the preservation of
the greater good
And it's not just the top two men in the NYPD that have a "summons" hole in their communications. Searches for responsive emails/texts from three other high-ranking NYPD officials came up empty as well.
What Sutton has obtained that points to an unofficial quota system has come from whistleblowers and "other means." Sutton has copies of emails and texts -- sent using NYPD phones/email accounts -- that discuss quota-like "expectations" for officers and reprisals for failing to hit these numbers. But the NYPD's own search for these same documents has found nothing. This either means the NYPD isn't performing thorough searches or it has been destroying incriminating documents. Either way, the NYPD's lack of responsive documents looks very suspicious.
And the city itself is complicit in the "vanishing" of possibly culpatory evidence.
[C]ity lawyers didn’t advise the NYPD to preserve communications related to summonses until 2013 — three years after the suit was filed, Sutton says.
The city won't say much about the lawsuit or its police department's actions, but this contradictory set of sentences says a lot more than the city rep probably intended it to.
In a response filed last week, city attorney Qiana Smith-Williams said the alleged evidence destruction was “short on meritorious claims” and that the sides had not yet “exhausted the possibility of a settlement.”
If you believe the opposition's case is lacking in merit -- and you have an inexhaustible amount of (public) funds to fight it -- why would you be entertaining a settlement? The obvious answer is this: a settlement would allow the city to end the discovery process, maintain its secrecy, allow those involved in the quota scheme to avoid further examination/punishment. Handing out (public) money to the plaintiffs in settlement form also allows the city/NYPD to move on without having to admit wrongdoing. A payout means nothing changes. Quotas will still remain, but steps will be taken to ensure it's better hidden.
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Posted on Techdirt - 21 July 2015 @ 11:39am
You'd think it wouldn't be too hard to vet a DMCA takedown request for false positives, especially when the request only includes 28 URLs. You'd be wrong.
TMG (Germany's Tele Munchen Group, which acts as a European distributor for several motion picture studios) issued a takedown request on behalf of Universal Pictures France, hoping to delist links to a few movies. But its algorithm is obviously flawed.
To start with, it listed our article on the Hacking Team hack under its list of supposedly infringing URLs for the movie "Hacker."
Now, Hacking Team itself announced shortly after the data dump that "law enforcement was involved"
and that orders were being sent out to have their leaked documents and emails removed from the web. Without a doubt, Hacking Team does have law enforcement involved somewhere, but takedown notices from the company itself have yet to arrive. (Third parties seem to be a bit more active
on that front.) And with the documents stashed
around the web
, any takedown requests will be little more than symbolic.
I doubt it's using distant third parties to achieve its takedown goals, but clumsy, automated, Googling, "content protection" companies and rights holders are perfectly capable of inadvertently achieving the same aim.
It appears TMG's search for infringing URLs includes little more than the title, as this same request also targets a Reddit post
that has nothing to do with its "Hacker" movie.
Instead, this links to a twitch.tv account of a gamer allegedly using hacks to get an edge in DotA 2 (Defense of the Ancients 2
). Obviously, this has nothing to do with copyright infringement.
And, for good measure, TMG's efforts on behalf of Furious 7
in the same takedown request targets the movie's IMDb page
. Because why not take down a wholly legitimate page on a wholly legitimate site that not only offers a wealth of information on the movie itself, but also acts as an unpaid promotional platform, what with its ample supply of trailers and links to retailers.
And, yes, some people will point out that most of what is targeted appears to be infringing content (or links to it). But here's the thing. It doesn't take long to vet small requests like these for false positives. At the very least, TMG owes it to the rights holders that pay for these services to issue legitimate takedown requests
. Something like this making its way to Google makes TMG look, at best, clumsy, and at worst, incompetent and censorious. And while it's rarely a concern for rights holders and content protection companies, they also owe it to the rest of the internet to do their best to avoid targeting
legitimate URLs -- especially those that have absolutely nothing to do with the content being "protected" and are, as in the case of IMDb, sites that can actually increase sales.
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Posted on Techdirt - 21 July 2015 @ 8:12am
Self-driving cars are on the way, and in their wake, they'll leave a variety of entities slightly less better off. Insurance companies may be the first to feel the pinch, as less-than-risk-averse drivers are replaced with Electric Grandmothers more than willing to maintain safe speed limits and the proper distance between vehicles. And as goes the car accident, so go other areas of the private sector: personal injury/DUI lawyers, hospitals, body shops, red light camera manufacturers, towing companies, etc.
But the public sector will take the hit as well. "Flow my tears," said the policeman.
Consider the following. This past year, the City of Los Angeles generated $161 million from parking violations. Red light violations have a fee of $490. Californians caught driving under the influence are fined up to $15,649 for a first-offense misdemeanor DUI conviction and up to $22,492 for an under-21 equivalent. Cities in California collect, on average, $40 million annually in towing fees that they divide with towing firms. Simply put, the hundreds of millions of dollars generated from poor driving-related behaviors provide significant funding for transportation infrastructure and maintenance, public schools, judicial salaries, domestic violence advocacy, conservation, and many other public services.
Since California legalized driverless vehicles, Google has logged more than 1.7 million miles during the testing phase and been involved in 11 accidents, none of which were the fault of the driverless vehicle. Tesla, Mercedes, and others are not far behind. It turns out that automated vehicle technology—unlike humans—abides by the law. And that’s bad news for local government revenues. In other words, once driverless cars become mainstream, deep revenue sources acquired from driving-related violations such as speeding tickets and DUIs will decrease greatly.
Someone has to pay for the roads and other government activities, but it won't be drivers. So, as the Brookings Institution report points out, new revenue streams will have to be sought. The obvious suggestion is tax-per-mile billing, but that puts the government right in your vehicle
-- an idea that's not going to gain in popularity any time soon.
While the loss of revenue will have an impact, the picture painted here is skewed. For many years, communities have treated police departments as revenue generators
, rather than crime fighters. This has skewed incentives so badly that some small towns have become nothing more than profitable speed traps
. That's one end of the issue: the pressure (or the willingness) to overpolice minor traffic violations to keep city governments (and the police departments themselves) funded.
But that's only part of it. The situation looks rather dire, especially if one doesn't examine what's not
being said in these paragraphs. As Scott Shackford at Reason points out, the Brookings Institution report does some mighty fine cherry-picking
for its list of potentially-affected government services. Without a doubt, a downturn in revenue will affect good
government programs like public schools and domestic violence programs. But it will also cut back funding for far more dubious government spending.
What an interesting list of government-financed uses they've chosen. Notice they left off "Poorly made third-party database software that will stop working properly in less than three years and that was purchased from somebody belonging to the same frat as the assistant city manager," "police abuse settlements," and "blatant pension spiking."
These "losses" will also be somewhat offset by less tax revenue being spent on
traffic enforcement, accident response units and other related law enforcement activities. This will also mean fewer law enforcement officers will need to be employed, which should further reduce government expeditures.
The problem is that most governments aren't capable of heading off this sort of "threat" to their livelihoods, even with years of advance notice. Trimming back unneeded public sector employees won't happen until years after it's obvious they're no longer needed and will often come accompanied with expensive severance packages. New tax revenue streams won't be explored until they can be put off no longer, and often will just be added on top of existing taxes, rather than replacing those that have slowed to a trickle.
Worse, those most affected by this sort of shift will be the same people most affected by most government tax increases: the poor. The lowest income brackets will be the last to adopt driverless vehicles, leaving them the most exposed to fines for traffic violations (fines that will likely increase
as revenue dwindles), as well as new
costs like per-mile taxation. They're also most likely to see support programs they rely on suffer cuts as traffic enforcement money dries up.
The report somewhat addresses this outcome with a discussion of income inequality and the "disappearance of the middle class." While some of it is accurate and some of it is mostly buzzwords in search of a point, there's no doubt that traffic enforcement revenue will mostly be collected from those who can least afford it. After all, governments have done this for years -- something that helped fuel the outrage and backlash in Ferguson after the shooting of Michael Brown.
Is Brookings actually trying to blame the gap between billionaires and the poor for the racial tension in Ferguson? Which venture capitalist was it who told the Ferguson police to step up fine collection to rake in more money for the city's coffers? Which hedge fund manager invented the bureaucratic court system in Ferguson and other St. Louis County cities designed to wring every last cent from any indigent minority who couldn't afford an attorney? Which Wall Street "fat cat" is adding additional fees to every little fine so that getting pulled over for something as simple as not signaling a turn could end up costing hundreds of dollars for somebody who could end up losing his license and his ability to even work?
While driverless cars hold a great deal of disruption potential, when it's all said and done, governments will remain largely undisrupted. Whatever changes are made in response will arrive well after they're needed and be badly implemented. The same people who suffered in the previous system will find no improvement in the next one. While one would hope the drastic reduction in traffic enforcement would result in better, smarter policing more focused on serious criminal activity, old habits die hard. Cops will just go where the driverless car ain't, rather than trim that area of law enforcement to the minimum required. And cities will cut programs deemed expendable, rather than subject their own spending habits to greater scrutiny.
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Posted on Techdirt - 20 July 2015 @ 9:08pm
The digital era has redefined evidence "staleness." The evidence that law enforcement often claims needs to be grabbed quickly (and, often, violently) to save it from destruction is the same evidence that could conceivably live on forever if never subjected to a concerted destruction effort.
Back in 2012, Judge Posner detailed this shift in inadvertent evidence preservation in the US v. Sevier decision:
“Staleness” is highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but rarely relevant when it is a computer file. Computers and computer equipment are “not the type of evidence that rapidly dissipates or degrades.” United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010). Because of overwriting, it is possible that the deleted file will no longer be recoverable from the computer’s hard drive. And it is also possible that the computer will have been sold or physically destroyed. And the longer the interval between the uploading of the material sought as evidence and the search of the computer, the greater these possibilities. But rarely will they be so probable as to destroy probable cause to believe that a search of the computer will turn up the evidence sought[.]
How long is too long? The answer is entirely open-ended. A recent decision
from a California appeals court says a 23-year gap between the crime and the search warrant doesn't render the evidence "stale."
A reopened "cold case" investigation into the apparent murder of a Los Angeles police officer resulted in the issuance of warrant in 2009 to search the defendant's current possessions, including the computer she didn't own (if she even had one) back in 1986.
The defendant moved to suppress the evidence, but the court said her "staleness" argument didn't apply. (But the "good faith exception" did... [It almost always does
.]) Both warrants were extremely broad.
The first permitted authorities to search appellant’s residence and several vehicles registered to her. It sought electronically and digitally stored material, documents, and records related to the homicide, Rasmussen or Ruetten, including “letters, diaries, journals, writings, newspaper articles, books, correspondence, [or] greeting cards”; photographs of Ruetten and Rasmussen; items that may have belonged to Ruetten or Rasmussen; information identifying persons “who may have associated with or [may] have known” Ruetten, Rasmussen or appellant; medical or dental records tending to establish whether appellant received treatment for injuries after February 24, 1986; “bills, receipts, papers, reports or forms” from 1986 generally; and all .38/.357 caliber firearms in appellant’s possession.
The second warrant, issued by a different magistrate, gave permission to search the “computers, storage media, computer hardware and digital evidence” seized pursuant to the first warrant, including “[email], internet browsing histories, cached information, partially deleted files, records, receipts, screen captures, photographs, logs, [and] printouts.”
The lower court had some issues with the breadth of the warrants, but managed to talk itself out of its queasier feelings.
The court agreed there was a plausible argument for overbreadth in the requests to search for “bills, receipts, paper or reports or forms from 1986” and for the names of all “people who may have associated with” Rasmussen, Ruetten or appellant. The court was “uncomfortable” with the request to search appellant’s computers because they were unlikely to have been in existence at the time of the crime.
It also suggested it had no business telling magistrate judges how to do their jobs.
However, the court concluded that warrants should not be read in a hypertechnical way and that it was up to the issuing magistrates to tell the detective to “‘tighten [the] language’” or “beef it up.”
The defendant argued that there was no "nexus" between the original crime and her current residence, not to mention the fact she had no computer back in 1986, so any search of her current computers was predicated on an unsupported assumption that these would contain evidence related to the 1986 murder.
The appeals court didn't find either argument persuasive. It pointed out that, while both warrants were broad, they were supported by probable cause. And, more importantly, the lack of a "bright line" measurement for "staleness" -- along with the common use of computers as "permanent" storage of copies of physical items -- allowed for this sort of search, despite the length of time elapsed since the initial investigation.
With respect to her contention that her move from one residence to another precluded a finding of a nexus between her current home and the evidence sought, the warrants specifically sought photographs, journals and diaries. A person does not normally discard such items, even after several moves.
That handles the physical "nexus" argument. Here's the court on the digital end of it:
Appellant claims that the warrant was overbroad in granting permission to search her computers, as there was no evidence she owned any of them at the time of the homicide. The fact that she may not have owned those computers at the time of the crime did not preclude the possibility that she had transferred information or records -- particularly photographs -- to computers owned at the time of the search. (Cf. Arkansas Chronicle v. Easley (E.D. Va. 2004) 321 F.Supp.2d 776, 795 [recognizing that photographs and video preserved in computer format are “easily transferrable”]; U.S. v. Christie (10th Cir. 2013) 717 F.3d 1156, 1164 [observing that personal computers often hold “diaries, calendars, files, and correspondence”].)
Now that the near-permanence of digital evidence is ensured by long-lasting storage and even longer-lasting cloud service backups, "staleness" is no longer an issue. But while that may give law enforcement a pass of serve search warrants years after alleged criminal activity occurred, it should also factor into discussions about warrantless searches based on exigent circumstances.
The government argued
in the Riley
case that the omnipresent "threat" of evidence destruction necessitated instant, warrantless access to arrested suspects' cellphones. (This was presented to the court without any supporting evidence that automated wiping or other uncontrollable evidence destruction had occurred with any frequency). But the opposite actually seems closer to reality: whatever is on a cellphone (or someone's computer) will last almost indefinitely unless a person makes active, time-consuming efforts to thwart evidence recovery.
From Posner's 2012 opinion:
When you delete a file, it goes into a “trash” folder, and when you direct the computer to “empty” the trash folder the contents of the folder, including the deleted file, disappear. But the file hasn’t left the computer. The trash folder is a waste paper basket; it has no drainage pipe to the outside. The file seems to have vanished only because the computer has removed it from the user interface and so the user can’t “see” it any more.
Most people never make it past "Empty Recycling." Even though plenty of options exist for common users to ensure deleted files are actually deleted (read: overwritten), Posner points out that "use of such software is surprisingly rare." This coincides with the very low number of incidents where law enforcement has run into the use of automated tools to destroy digital evidence. And yet, the government insisted the possibility
of evidence destruction should allow it to warrantlessly search cellphones and other devices at the time of arrest.
But it really shouldn't get to have it both ways. Either there's a good chance the evidence sought is intact -- and will be for possibly decades to come -- or it's all vanishing before it can get its hands on it, in which case the argument for "staleness" must be addressed in more detail.
Fortunately, the Supreme Court has put an end
to law enforcement's insistence it must have access right now
. That's good news, especially when combined with the unavoidable conclusions courts will reach when dealing with storage options that preserve evidence for years. The government can't be allowed to claim there's no time to get a warrant when it's readily apparent they have all the time in the world.
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