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Posted on Techdirt - 23 September 2020 @ 10:51am

USPS Regrets Its Transparency, Asks FOIA Requester To Remove 1,200 Pages It Forgot To Withhold

from the please-double-check-your-work-for-accuracy dept

The government has fucked up and it thinks citizens are obligated to help it unfuck itself. We're not. Too bad.

Recently, government accountability nonprofit American Oversight obtained nearly 10,000 pages of memos and emails from the United States Postal Service. The documents dealt with the USPS's response to the COVID-19 pandemic. Unlike the USPS's effusive response to this FOIA request, the agency's response to complaints from employees about the danger they were facing was far more tepid.

These documents were shared with the Washington Post, which highlighted the Postal Service's scrapped plan to send every American five masks, as well as the internal turmoil that accompanied the spread of the coronavirus.

Apparently, the USPS had second thoughts about its FOIA response following this unflattering nationwide media coverage. It sent a letter to American Oversight asking it to take down every single one of the 10,000 pages it had given the organization.

If you can't read/see the tweet, it says:

UPDATE: USPS has now requested we pull down the records the agency had previously produced to us under FOIA. We have agreed to remove the records for 24 hours as we wait for USPS to specify which pages it believes should continue to be withheld.

The letter from the USPS said "multiple pages" were meant to be "withheld in full" under unspecified FOIA exemptions. It refused to say which pages were supposed to be withheld. Instead, the USPS demanded the entire set of documents be removed from American Oversight's website. As seen above, AO refused. It only removed pages that hadn't already been reported on by other news agencies and asked the USPS to be a bit more specific about which pages it felt should have been withheld.

The Postal Service responded the next day, saying it needed 1,200 pages redacted. That's the government's latest offer. For now, most of the 10,000 pages remain offline but still in the possession of American Oversight. 462 of those pages can be viewed online at AO's site.

The organization is continuing to work with the USPS to determine whether any more pages should be excised from the documents it received. But American Oversight is under no obligation to remove anything just because the USPS meant to withhold them. There's nothing illegal about possessing documents or other information the government has mistakenly released. This is an unforced error and if anything damaging was inadvertently released, the Postal Service has no one to blame but itself.

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Posted on Free Speech - 22 September 2020 @ 12:29pm

Court Rejects Clearview's First Amendment, Section 230 Immunity Arguments

from the don't-allow-a-bad-company-to-generate-bad-courtroom-precedent-though dept

Back in March, facial recognition tech upstart Clearview was sued by the Vermont Attorney General. The AG alleged Clearview's scraping of sites to harvest photos (and other biometric/personal info) of Vermont residents violated state privacy laws. It also alleged Clearview had mislead residents and customers about the company's intended uses and its success in the law enforcement marketplace.

Clearview's response to the lawsuit was… interesting. It tried to invoke Section 230 immunity, claiming it was nothing more than a host for third-party content. The problem with this argument was it wasn't being sued over the content itself (which wasn't defamatory, etc.) but over its collection of the content, which did not provide Vermont residents with notice their information was being collected and gave them no way to opt out.

The company then hired a prominent (but opportunistic) First Amendment lawyer to argue it had a First Amendment right to collect and disseminate this information, even when its collection efforts routinely violated the terms of service of nearly every site it scraped to obtain photos. This argument was also interesting in its own way, but had the potential to cause complications for plenty of entities not nearly as universally-reviled as Clearview. In some ways, Clearview is the Google of faces, gathering information from all over the web and delivering search results to Clearview users.

The Vermont court has finally weighed in [PDF] on Clearview's arguments. And it doesn't like most of them. (h/t Eric Goldman)

Here's the court's take on the Section 230 argument:

Importantly, the basis for the State’s claims is not merely the photographs provided by third—party individuals and entities, or that Clearview makes those photographs available to its consumers. Instead, the claims are based on the means by which Clearview acquired the photographs, its use of facial recognition technology to allow its users to easily identify random individuals from photographs, and its allegedly deceptive statements regarding its product… This is not simply a case of Clearview republishing offensive photographs provided by someone else, and the State seeking liability because those photographs are offensive. Indeed, whether the photographs themselves are offensive or defamatory is immaterial to the State’s claims.

Instead, the claims here attempt to hold Clearview “accountable for its own unfair or deceptive acts or practices,” such as screen—scraping photographs Without the owners’ consent and in Violation of the source’s terms of service, providing inadequate data security for consumers’ data, applying facial recognition technology to allow others to easily identify persons in the photographs, and making material false or misleading statements about its product.

So, no dismissal based on Section 230 immunity for Clearview. The court then tackles the First Amendment assertions. The court says the First Amendment does not cover the commercial speech targeted by the AG's lawsuit.

The court next observes that at least some of the conduct alleged in Counts and III is largely nonexpressive in nature. The allegations that Clearview provided inadequate data security and exposed consumers’ information to theft, security breaches, and surveillance lack a communicative element. The First Amendment does not protect such conduct.

Whether the software itself is covered by the First Amendment is more difficult to answer.

Because the Clearview app’s raw code is not at issue here as in Corley, the app arguably has no expressive speech component and is more similar to the “entirely mechanical” automatic trading system in Vartuli that “induce[d] action without the intercession of the mind or the will of the recipient.” Vartuli, 228 F.3d at 111. The user simply inputs a photograph of a person, and the app automatically displays other photographs of that person with no further interaction required from the human user. In that sense, the app might not be entitled to any First Amendment protection. Complicating matters, however, is the fact that Clearview’s app is similar to a search engine, and some courts have generally recognized First Amendment protection for search engines, at least to the extent that the display and order of search results involve a degree of editorial discretion.

Whether or not it's actually speech doesn't appear to matter, at least not to this court. It says the "speech" -- protected or not -- can be regulated by the Vermont government. Since the AG isn't suing over the content of the "speech" itself but rather the use of personal information gathered from Vermont residents, the lawsuit against Clearview can continue.

Presumably, the State has no problem with Clearview operating its app so long as the Vermonters depicted in its photograph database have fully consented. The regulation sought by the State here is content-neutral and, accordingly, subject to intermediate scrutiny.

But then the court goes on to say that even if this violates Clearview's First Amendment rights, it barely violates them.

Furthermore, any incidental restriction on speech imposed by the State’s action would not burden substantially more speech than is necessary to further the State’s interest in protecting privacy. The State estimates that the reliefit requests will leave more than 99 percent of Clearview’s database intact.

That's a little more problematic. The court does go on to state that Clearview could avoid this by seeking affirmative consent from Vermont residents. It also says the court would ensure that any regulation proposed by the state would be subjected to further scrutiny to ensure the burden on Clearview is minimal. But that seems unlikely to be true if the court already believes burdensome regulation would only result in a 1% reduction in free speech.

The court also upholds all the deceptive claims allegations. Clearview's marketing has been far from honest. It has touted law enforcement successes that have been directly contradicted by the named law enforcement agencies. It has told people they can ask to be removed from its database, but then says that's only subject to laws that aren't in force in most of the nation. It has also claimed its only for legitimate law enforcement use, but has sold the software to a number of private entities and encouraged law enforcement officers to "run wild" while testing the app using faces of friends and family members. All of these claims survive.

The longer Clearview exists, the more lawsuits it will face. Its collection method -- scraping sites to obtain personal data -- is already problematic. The tech itself remains unproven, having never been tested for accuracy by an independent outside agency. If this is the best it can do in its own defense, it's going to run itself out of money before it secures any favorable precedent.

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Posted on Techdirt - 22 September 2020 @ 3:22am

DOJ Releases Its List Of 'Anarchy' Jurisdictions The President Thinks Should Be Blocked From Receiving Federal Funds

from the Pell-grants-no-longer-offered-to-Anarchy-State-University-students dept

The Trump Administration hasn't met a slope it isn't willing to grease up and go sliding down. There's not much united about the states at the moment and the President's lavish devotion to all things "law and order" is making things worse.

The insertion of federal officers into cities experiencing weeks and months of protests hasn't done much to reduce the adjacent violence that drew them there in the first place. Engaging in Gestapo-esque "disappearing" of protesters -- along with federal officer violence targeting journalists and observers -- has done nothing to return order to cities like Portland, Oregon.

Earlier this month, the Administration issued a memo threatening to cut off federal funding to cities the Administration doesn't like.

My Administration will not allow Federal tax dollars to fund cities that allow themselves to deteriorate into lawless zones. To ensure that Federal funds are neither unduly wasted nor spent in a manner that directly violates our Government’s promise to protect life, liberty, and property, it is imperative that the Federal Government review the use of Federal funds by jurisdictions that permit anarchy, violence, and destruction in America’s cities. It is also critical to ensure that Federal grants are used effectively, to safeguard taxpayer dollars entrusted to the Federal Government for the benefit of the American people.

Suddenly the Administration is very concerned about federal spending. Named in the memo were New York City, Seattle, Portland, and Washington DC. All of these have been targets of Trump's personal attacks via Twitter, where he's claimed the cities are being ruined by "radical left Democrats." The memo is transparently partisan. Nowhere in the memo -- which is directed to the DOJ and the Office of Management and Budget (OMB) -- does Trump call out cities in contested states vital to his reelection. Similar protests and/or law enforcement defunding are occurring in Minneapolis, Minnesota and Kenosha, Wisconsin, but neither city is mentioned in the memo.

The memo -- issued September 2nd -- gave the DOJ two weeks to designate "anarchist" cities unworthy of federal funding. The DOJ has responded, sparing Washington DC, but designating the other three cities mentioned in the memo as "anarchy jurisdictions."

The U.S. Department of Justice today identified the following three jurisdictions that have permitted violence and destruction of property to persist and have refused to undertake reasonable measures to counteract criminal activities: New York City; Portland, Oregon; and Seattle, Washington. The Department of Justice is continuing to work to identify jurisdictions that meet the criteria set out in the President’s Memorandum and will periodically update the list of selected jurisdictions as required therein.

So, what does it take to become an anarchy under Trump? Not much, apparently. Just an unwillingness to maintain the law enforcement status quo. The DOJ considers it "anarchy" to prevent police from "restoring order" or ordering them to abandon areas they lawfully have access to. (This refers to the temporary "autonomous zone" set up in Seattle by protesters.) These stipulations deal with judgment calls by city mayors during periods of intense civil unrest -- unrest prompted by previous police violence, something that's ignored completely by the memo and the DOJ.

But "anarchy" is also something as simple as police reform.

Whether a jurisdiction disempowers or defunds police departments.

Nobody's shutting down police departments. Taking police officers out of schools or routing mental health crisis calls to mental health professionals instead of cops isn't "disempowering." And if the funds aren't being used by law enforcement agencies to cover activities they're no longer being asked to perform, they should be routed to the agencies that are performing them. That's not "defunding." That's just funding.

And if the Attorney General can't find anything on the list to use to designate a city as "anarchist," he can always make something up.

Any other related factors the Attorney General deems appropriate.

So, anything could be used to trigger this review. Possibly even just being located in a state Trump doesn't think he can carry.

Right now, the memo only orders a "review" of existing funding. There are no laws on the books that allow the President to strip federal funding from cities he doesn't think lean right enough or are too mean to cops. Congress controls federal funding, not the Administration.

The slippery slope is, of course, a route to direct federal control of city and state-level policy making. Pass the "wrong" laws and your federal funds could be reduced or eliminated. If Congress somehow finds a way to make this legal by codifying pro-law enforcement requirements, the federal government will be the final arbiter of local lawmaking. This isn't the way it's supposed to work. And the Tenth Amendment is supposed to limit federal interloping like this. Even if a law is passed by Congress to make Trump's defunding plan "lawful," it probably won't be Constitutional. For an administration that leans so heavily on the phrase "rule of law," it sure seems to ignore rules and laws with alarming frequency.

Even if nothing happens past this point, the Administration will still be posting a periodic list of enemy cities and seeking some way to block them from receiving federal funds. And the selection process is transparently partisan, targeting only cities that have pushed back against Trump's heated rhetoric and his "offers" to deploy federal stormtroopers to handle local protests. This is more malignant ugliness from an administration that's served up plenty over the last four years.

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Posted on Techdirt - 21 September 2020 @ 7:54pm

Fourth Circuit Appeals Court Seems Skeptical That Baltimore's Aerial Surveillance System Violates The Fourth Amendment

from the aloft-for-now dept

The legal fight over Baltimore's aerial surveillance system continues. Airplanes armed with powerful cameras fly constantly over the city, allowing law enforcement to view the movements of people and vehicles over a 32-square mile area. The resolution may be high (192 million megapixels) but the area covered reduces people to (nearly) unidentifiable dots on a screen. However, these recordings can be accessed to trace movements of pixels/people as they move to and from suspected crime scenes.

The city isn't paying a dime for these cameras and airplanes. The equipment -- provided by Persistent Surveillance Systems -- is paid for by a private donor. This perhaps explains why the city chose to roll it out with zero public notice back in 2016. After a brief shutdown, it has resumed, with a bit more public involvement. It may be audacious, but it hasn't been all that successful. Reports show the program logged 700 flights but only one arrest.

The ACLU sued, claiming this persistent surveillance of nearly everyone in the city violated the Fourth Amendment. The federal court disagreed, even taking into consideration the ability of the program to engage in persistent tracking of individuals when combined with the PD's cameras on the ground. Despite the word "persistent" being used by the company itself, the program is far from persistent, with darkness preventing recording and inclement weather occasionally grounding spy planes.

There's an appeal underway, but as Louis Krass reports for Baltimore Brew, the ACLU doesn't appear to have found much more sympathy one level up. The ACLU argued the untargeted surveillance system is an unreasonable search. In other words, Baltimore residents would not consider it reasonable to have their public movements surveilled for up to 12 hours a day for six months straight.

Judge J. Harvie Wilkinson disagrees.

“Whose constitutional rights is this violating?” Wilkinson, a Reagan appointee, asked.

“These are simple observations of public movements, and it’s not inside someone’s dwelling, it’s public streets, where someone’s expectancy of privacy is minimal,” he said. “We’re not talking about excessive police force, so is it the right of the pixel whose rights are being violated?”

The judge is right that the expectation of privacy is lower in public areas. But this is too reductive. A pixel isn't just a pixel -- incapable of having its rights violated. It's a person, even if that person can't be clearly identified using these recordings alone. The entire purpose of the aerial surveillance system is to help police identify criminal suspects. And police do this by cross-referencing this footage with surveillance equipment on the ground, which is completely capable of turning a "pixel" into a person.

But Wilkinson isn't the only judge being asked to rule on this. Judge Roger Gregory is far more critical of the government's arguments. The government said there were no Constitutional concerns in tracking the movements of millions of Baltimore "pixels" since the PD was only interested in the "pixels" who may have been near a crime scene. Most of the recordings collected are never used by the Baltimore PD's analysts.

That doesn't make it okay, says Judge Gregory.

Gregory, a Clinton appointee, countered that it is unconstitutional to gather such information in the first place.

“That would turn the Fourth Amendment on its head,” he said. “That’s like invading someone’s home with a camera and taking a photograph of you, then say, ‘It’s no problem because we never developed the film.’”

It seems unlikely the Appeals Court will be any more impressed with the ACLU's arguments. As long as people are still rendered as pixels -- and planes incapable of capturing footage 24 hours a day -- there appears to be very little violation of privacy. If there's no sympathy for the mosaic theory of the Fourth Amendment -- where multiple Constitutional surveillance techniques combine to form an unconstitutional invasion of privacy -- Baltimore residents will still be watched by multiple eyes in the sky.

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Posted on Techdirt - 21 September 2020 @ 3:36pm

Portland Passes Ban On Facial Recognition Use By City Agencies And Private Businesses


Portland, Oregon has now joined parts of Massachusetts and all of California in protecting its residents from the sketchy surveillance method known as "facial recognition." For something that's supposed to recognize faces, it's usually pretty bad at it and gets worse when it has to deal with minorities. Of course, the same can be said about the law enforcement agencies deploying it, which might explain their love of tech that gives them more people to arrest but rarely the probable cause to do so.

Portland's ban is more restrictive than others already in place. It doesn't just affect the local government.

In addition to halting city use of the surveillance technology, the new rule prevents "private entities in places of public accommodation" in Portland from using it, too, referring to businesses that serve the general public — a grocery store or a pizza place, for instance. It does not prevent individuals from setting up facial-recognition technology at home, such as a Google Nest camera that can spot familiar faces, or gadgets that use facial-recognition software for authenticating users, like Apple's Face ID feature for unlocking an iPhone.

This means no one gets to use it but private citizens surveilling their own doorways. Sure, that's going to capture people moving up and down the street, but unlike law enforcement agencies, private citizens can't deprive someone of their freedom just because the tech thought it recognized someone.

The hit to businesses doesn't take effect until 2021. The rest of it starts immediately. Portland is still in the throes of civil unrest -- something that started in late May and shows no sign of letting up, no matter how many federal officers the Administration throws at the "problem." There's the obvious concern facial recognition is being used to identify people engaged in First Amendment activity for reasons unknown to anyone but those deploying the tech. The local cops will be blocked from doing this going forward (if they were ever doing it at all) but it will have no effect on facial recognition deployment by federal officers.

It seems inevitable some business owners will challenge the law. This tech allows internal security to keep an eye out for banned individuals and suspected shoplifters. But private tools don't appear to be any better at identifying people than the tech being sold to government agencies. Allowing private companies to use the tech puts law enforcement only a phone call away. And it can lead to the same results (false positives, bogus arrests) despite being owned and operated by non-government entities. It's a bold move by the city of Portland. But it's probably also a necessary one if you're serious about protecting residents from unproven tech that has the latent ability to destroy lives.

More bans are sure to come, especially now that everything law enforcement-related is under the microscope. Portland has set the ban bar pretty high. Other cities that believe they're serious about keeping their residents safe from surveillance creep now have something to shoot for.

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Posted on Techdirt - 21 September 2020 @ 10:46am

Trump's Campaign Is Engaged In Lawsuits All Over The Country To Try To Make Safe Voting More Difficult

from the self-interest-shouldn't-be-so-blindingly-apparent-y'all dept

Anyone still hoping for an orderly election and, if need be, a peaceful transition of power hasn't been paying attention to much that's happened over the past few months. As the presidential election approaches, everything is still in a disturbing state of flux. Multiple states have failed to flatten the COVID-19 curve, necessitating some walking back of earlier "everything's fine" pronouncements.

The safest way to vote may be from the comfort of your own home. But that option doesn't appeal to President Trump, his campaign, or the Republican National Committee. All have engaged in a lot of unhelpful -- if not actually deadly -- rhetoric against both at-home voting and the general use of any protective measures to prevent the spread of the virus.

It's not like "distance voting" is a novelty. Absentee voting happens all the time. Just because there will be more quasi-absentee votes to count during this election is no reason to believe voters at home will engage in widespread voter fraud. Voter fraud is almost nonexistent. Enough checks are in place to prevent most of it and there's very little evidence anyone has ever engaged in a massive conspiracy to rig a presidential election.

Since the Trump Campaign (and the president himself) don't have facts on their side, they've decided to lawyer up. Voter suppression has always been a thing, but these entities want it blessed by courts, if not actually codified.

President Donald Trump’s campaign and the Republican Party are devoting millions of dollars to wage a state-by-state legal battle against mail-in voting during the coronavirus pandemic, not only suing state officials but also intervening in cases where they aren’t a party to limit how Americans can vote from home.

BuzzFeed News identified at least 11 cases where the Trump campaign has asked judges for permission to intervene to defend state and local policies that voting rights advocates argue will make it harder for people to safely vote during the pandemic. That’s in addition to more than half a dozen lawsuits the campaign has filed with the Republican National Committee contesting efforts by Democratic governors and other state and local officials to expand mail-in voting.

Here are a few of the things Trump's campaign and the RNC are suing about. In one case, his campaign is trying to limit the number of ballot drop boxes available to voters. In another, they're trying to prevent the automatic mailing of ballots or ballot request forms to voters. And these entities aren't limiting themselves to trying to intercede in election-related lawsuits where they aren't a party. They're also suing states directly to prevent expansions of absentee or mail-in voting.

Whatever the reasons Trump's lawyers state in their court filings, the real reason behind this flurry of litigation is the Trump campaign believes more votes means more votes for Joe Biden.

Early data compiled by the United States Elections Project at the University of Florida show that in Florida, Pennsylvania, North Carolina, and Colorado, absentee ballot requests are up compared to previous election cycles, with registered Democrats outnumbering registered Republicans.

So, when Trump says something like this…

“My biggest risk is that we don’t win lawsuits,” Trump said at the time. “We have many lawsuits going all over. And if we don’t win those lawsuits, I think— I think it puts the election at risk.

… he doesn't mean the election is at risk. He means his continued federal employment is at risk.

No one wants a fraudulent election. But that's the least likely outcome of expanded at-home voting. It does no good to argue we shouldn't do it this way because it's never been done this way before. A global pandemic has changed the definition of social interactions, possibly for years to come. Fighting in court to force people to choose between their health and their vote doesn't make election results more authentic. It just makes sure a large number of people won't have their voices heard.

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Posted on Techdirt - 18 September 2020 @ 12:12pm

Federal Court Says Office Of Legal Counsel Must Proactively Release Opinions Covering Interagency Disputes

from the narrow-victory-but-possibly-more-wins-on-the-way dept

The federal government's Office of Legal Counsel (OLC) tells government agencies what they can and can't do under existing law. Its interpretation of these laws may vary significantly from how they've been interpreted by courts. The OLC has been asked to justify everything from warrantless searches to extrajudicial killings. The bespoke law interpretations that justify these actions are then withheld from the public -- often for decades at a time.

The OLC has refused to turn these over to FOIA requesters, citing a number of FOIA exemptions. It does this with older decisions as well -- ones Congress has said must be released to the public. 2016's amendment of the Freedom of Information Act prohibits agencies from withholding "deliberative" records -- which is much of what the OLC produces -- that are over 25 years old. The OLC violated this change in the law immediately, prompting a lawsuit by the Knight Institute that the Institute ultimately won.

But it wasn't the only lawsuit brought against the OLC by the Knight Institute over FOIA violations. The OLC was also sued for violating the "reading-room provision," which obligates agencies to process and release certain documents, even in the absence of a FOIA request for these documents. The OLC has refused to do this. The court said the OLC's refusal to comply was good and lawful, but only for some subsets of its document stash. The litigation continued to determine what was exempt and what was subject to proactive release.

In October 2017, the district court granted the government’s original motion to dismiss but afforded the Campaign for Accountability an opportunity to focus more narrowly on specific categories of OLC opinions. The Knight Institute filed an amended complaint highlighting several categories of OLC opinions — those (i) resolving interagency disputes; (ii) interpreting nondiscretionary legal obligations; (iii) finding particular statutes unconstitutional; and (iv) adjudicating or determining individual rights.

The court has now handed down its ruling [PDF] and it agrees with the Knight Institute and its co-plaintiff, Campaign for Accountability (CfA) on one category of OLC opinions:

[F]or now, the Court finds that CfA’s amended complaint contains a plausible allegation that OLC is required to make its opinions that resolve inter-agency disputes available for “public inspection” under section 552(a)(2) of the FOIA, for the reasons explained above, and that the other categories of OLC opinions identified in the amended complaint do not plausibly violate the FOIA’s reading-room provision.

The court says these documents are likely "final opinions" (which would make sense, since they "resolve disputes") and subject to the proactive release obligations contained in the "reading-room provision." This could prompt a flood of releases. The Knight Institute estimates these resolution opinions make up about a quarter of all opinions sent by the OLC to other agencies.

Then again, it may not result in much of anything. The OLC spent most of the Obama years watching its workload dwindle as agencies became more worried about the possibility of legal opinions being released to FOIA requesters than with ensuring their actions were lawful. OLC opinions dropped from ~30/year at the beginning of Obama's presidency to less than 10/year by 2015. The end result of years of litigation could be a small handful of opinions that won't do much to inform the public about how the OLC interprets existing laws.

But the precedent set here is worth celebrating. An entire category of OLC opinions has been declared subject to proactive release by the Office. And that's a much-needed improvement.

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Posted on Techdirt - 18 September 2020 @ 3:22am

House Passes Election Security Bill That Finally Adds Security Researchers To The Mix

from the still-have-to-suffer-through-this-year's-insecure-election-though dept

Everyone agrees elections should be secure. But hardly anyone in the federal government is doing anything useful about it. The shift to electronic voting has succumbed to regulatory capture which isn't doing anything to ensure the best and most secure products are being deployed. On top of that, it's become a partisan issue at times, resulting in legislators scoring political points rather than making voting and voters more secure.

There may be some good news on the way, although it's unlikely to result in a more secure election in 2020. As Maggie Miller reports for The Hill, political differences have been stowed away for the moment to push an election security bill forward.

The House on Wednesday unanimously passed bipartisan legislation intended to boost research into the security of election infrastructure.

The Election Technology Research Act would establish and fund a Center of Excellence in Election Systems at the National Institute of Standards and Technology (NIST) to test the security and accessibility of voting equipment, along with authorizing NIST and the National Science Foundation to carry out research on further securing voting technology.

The bill [PDF] made its debut last year, but hasn't gone anywhere since February 2020. Now, with an election right around the corner, the bill is finally moving again. This is still pretty last minute, though. The Senate still has to deliver its own version. And it appears to be in no hurry to do that. Earlier this year, the Senate majority blocked three election security bills, adding them to the pile of legislation Senate Majority Leader Mitch McConnell doesn't care for.

Even with bipartisan support, one ranking House member thinks the bill just creates more problems.

Rep. Rodney Davis (R-Ill.), the ranking member of the House Administration Committee, expressed reservations about the legislation on the House floor Wednesday, saying that his panel had not held a markup or hearing on the bill and noting concerns about the legislation potentially undermining work by the Election Assistance Commission.

This may be a legitimate concern, but it could just be political posturing. Recent history shows the head of the EAC did more to undermine the EAC's work than any outside election security efforts.

Brian Newby, the executive director of the Election Assistance Commission, has blocked important work on election security, micromanaged employees’ interactions with partners outside the agency and routinely ignored staff questions, according to former election officials, former federal employees and others who regularly work with the agency.

Newby failed to secure the EAC votes needed to serve another term. He exited the EAC last September, leaving behind a legacy of not giving a damn about election security.

The Election Assistance Commission has ceded its leadership role in providing security training, state and local officials say, forcing them to rely on the help of the U.S. Department of Homeland Security, which lacks the same level of experience in the issues confronting the country’s voting systems.


The election officials assert that the EAC’s executive director, Brian Newby, has blocked the travel of key staffers at the EAC who specialize in cybersecurity, preventing them from attending what training sessions have taken place.

Given this, it's hard to imagine legislation that ropes in the NIST and NSF causing more problems for election security than the Election Assistance Commission has created itself.

Even if this bill lands on the President's desk in time for this year's election, it won't make this one any more secure. The changes won't be implemented immediately and a report on current security measures and processes won't be provided to Congress for another 18 months. But it should make things better going forward, even if it will be off to a slow start. It finally adds actual researchers to the mix, which should hopefully keep this from becoming a political football every 2-4 years.

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Posted on Techdirt - 17 September 2020 @ 3:40pm

Top Court In Massachusetts Says Prosecutors Must Provide Info On Bad Cops To Criminal Defendants

from the finally,-an-obligation-that's-actually-an-obligation dept

Cops lie. Cops lie enough there's a term for it: testilying. Honest prosecutors don't want lying cops on the stand dirtying up their case with their impeachable testimony. Unfortunately, police unions are powerful enough to thwart this small bit of accountability. "Brady lists" are compiled by prosecutors. They contain the names of officers whose track record for telling the truth is so terrible prosecutors don't want to have to rely on their... shall we say... misstatements in court.

Unfortunately, these lists are often closely-guarded secrets. Judges aren't made aware of officers' penchant for lying. Neither are defendants in many cases. But they're called "Brady" lists because they're supposed to be disclosed to defendants. The "Brady" refers to Brady v. Maryland, where it was decided prosecutors are obligated to turn over possibly exculpatory information to defendants to ensure their right to a fair trial. This includes anything that might indicate the cop offering testimony might not be telling the truth.

The Massachusetts Supreme Judicial Court has ruled [PDF] prosecutors have an obligation to inform defendants of officers who have made their "Brady" lists. Two cops who made false statements in a use-of-force report were granted immunity for their testimony in front of a grand jury. The district attorney prosecuting a different criminal case handed this information over to the defendant. The cops challenged this move, claiming their grand jury immunity should have prevented this exculpatory information from being given to the defendant and discussed in open court. (h/t Matthew Segal)

The cops argued there's no constitutional duty to disclose this information (under the US Constitution or the Commonwealth's) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed. The Supreme Judicial Court says that argument is wrong under both Constitutions.

First, prosecutors have more than a constitutional duty to disclose exculpatory information; they also have a broad duty under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose "[a]ny facts of an exculpatory nature." This duty is not limited to information so important that its disclosure would create a reasonable doubt that otherwise would not exist; it includes all information that would "tend to" indicate that the defendant might not be guilty or "tend to" show that a lesser conviction or sentence would be appropriate.


Second, even if prosecutors had only their constitutional obligation to disclose, and not the broad duty under our rules, we would not want prosecutors to withhold exculpatory information if they thought they could do so without crossing the line into a violation of the defendant's right to a fair trial.

The acceptable standard under the Constitution is not "see what you can get away with." This is an obligation, not a nicety to be deployed at the prosecutor's discretion.

A prosecutor should not attempt to determine how much exculpatory information can be withheld without violating a defendant's right to a fair trial. Rather, once the information is determined to be exculpatory, it should be disclosed -- period. And where a prosecutor is uncertain whether information is exculpatory, the prosecutor should err on the side of caution and disclose it.

In this case, the information was definitely of the possibly exculpatory variety. Lying cops who've admitted before a grand jury they falsified reports should definitely be considered impeachable witnesses. Whether or not the information is determined admissible at trial is beside the point.

[T]he ultimate admissibility of the information is not determinative of the prosecutor's Brady obligation to disclose it. Where the information, as here, demonstrates that a potential police witness lied to conceal a fellow officer's unlawful use of excessive force or lied about a defendant's conduct and thereby allowed a false or inflated criminal charge to be prosecuted, disclosing such information may cause defense counsel, or his or her investigator, to probe more deeply into the prior statements and conduct of the officer to determine whether the officer might again have lied to conceal the misconduct of a fellow police officer or to fabricate or exaggerate the criminal conduct of the accused.

The cops also argued their immunity from prosecution during their grand jury testimony should shield them from any adverse consequences. Wrong again, says the court. The immunity only covers prosecution for the admitted crimes. It is not a shield against reputational damage that may result from this information being made public or handed over to defendants.

An immunized witness, like others who are not immunized, may prefer that the testimony not be disseminated by the prosecutor, especially if it would reveal the witness's dirty deeds, but that preference does not affect whether the information is exculpatory or whether it should be furnished to other defendants. Once disclosed, the immunized testimony may be used to impeach the immunized witness, provided that the testimony is not being used against the witness in a criminal or civil prosecution other than for perjury. In sum, a prosecutor's obligation to disclose exculpatory information is the same for immunized testimony as for all other testimony. There is no higher Brady standard applied for a prosecutor to disclose immunized testimony.

The Court wraps this up by laying down the law: this is Brady info and it needs to be disclosed to defendants. The SJC is not fucking around.

[W]e conclude, as did the district attorney, that the prosecutors here have a Brady obligation to disclose the exculpatory information at issue to unrelated criminal defendants in cases where a petitioner is a potential witness or prepared a report in the criminal investigation. That obligation remains even though that information was obtained in grand jury testimony compelled by an immunity order. And the district attorney may fulfill that obligation without prior judicial approval; a judge's order is needed only for issuance of a protective order limiting the dissemination of grand jury information.

More broadly, we conclude that where a prosecutor determines from information in his or her possession that a police officer lied to conceal the unlawful use of excessive force, whether by him or herself or another officer, or lied about a defendant's conduct and thereby allowed a false or inflated criminal charge to be prosecuted, the prosecutor's obligation to disclose exculpatory information requires that the information be disclosed to defense counsel in any criminal case where the officer is a potential witness or prepared a report in the criminal investigation.

That's the standard in Massachusetts. And bad cops are on notice there's pretty much nothing they can do to escape the consequences of their own actions. This is as it should be. Now, if the courts could just make sure prosecutors and police departments are actually compiling Brady lists, we'd be set. At least in this Commonwealth.

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Posted on Techdirt - 17 September 2020 @ 12:18pm

New Bill Calls For An End To PACER Fees, Complete Overhaul Of The Outdated System

from the pass-this-pls dept

The perennial make-PACER-free legislation has arrived. If you're not familiar with PACER, count yourself among the lucky ones. PACER performs an essential task: it provides electronic access to federal court dockets and documents. That's all it does and it barely does it.

PACER charges taxpayers (who've already paid taxes to fund the federal court system) $0.10/page for EVERYTHING. Dockets? $0.10/page. (And that "page" is very loosely defined.) Every document is $0.10/page, as though the court system was running a copier and chewing up expensive toner. So is every search result page, even those that fail to find any responsive results. The user interface would barely have been considered "friendly" 30 years ago, never mind in the year of our lord two thousand twenty. Paying $0.10/page for everything while attempting to navigate an counterintuitive interface draped over something that looks like it's being hosted by Angelfire is no one's idea of a nostalgic good time.

Legislation attempting to make PACER access free was initiated in 2018. And again in 2019. We're still paying for access, thanks to the inability of legislators to get these passed. Maybe this is the year it happens, what with a bunch of courtroom precedent being built up suggesting some illegal use of PACER fees by the US Courts system. We'll see. Here's what's on tap for this year's legislative session:

Representatives Hank Johnson (D-Ga.) and Doug Collins (R-Ga.) are hoping to drastically change all of the above with their bipartisan reform effort, the Open Courts Act (OCA).

The bill would make online access to federal court records free to the public. It also contains language that would effectively improve upon PACER’s current and wildly out-of-date search functionality, increase third-party accessibility to the entire system, and upgrade and maintain the database using modern data standards.

This is a good bill. It aims for something more than just free access. (To be honest, that would at least offset the frustration of subjecting yourself to PACER's hideous charms in an attempt to talk it out of some filings.) Free access is a necessity. At this point, the presumed openness of the court still hides behind a paywall, separating citizens from courtroom documents under the naive theory that it's impossible to give something away if it costs money to produce. (And that assumption ignores the tax dollars already earmarked for running the court system.)

This bill would also drag the PACER system (presumably kicking and screaming) into the future… or at least a much more recent past. The 1995-esque front end would be updated, along with all the other stuff that doesn't work well… which is pretty much everything.

It would be a bit more future-proofed. The bill [PDF] demands transparent coding that will incorporate "non-proprietary, full text searchable, platform-independent" elements. This means documents will finally be searchable by the text they contain, rather than limited to locating documents by finding the right docket and going from there. And this will hopefully fix another problem with PACER: search issues baked into the system by jurisdiction divisions. Each federal court has its own login page and, while it's possible to search all jurisdictions, it's far more likely you'll be dimed to death by useless searches before you find what you need.

But who's going to pay for this, I hear the US Courts system asking? Well, like any other FTP service, it will be mostly supported by whales.

On its own terms, the OCA would take two to three years to modernize the overall CM/ECF so that all court documents are searchable, readily accessible and machine-readable regardless of an end user’s browser setup. During this period, so-called institutional “power users” would still be subject to PACER fees–if they charge over $25,000 annually.

But not forever.

After that, fees would vanish entirely.

Will this be the bill that sticks? Maybe. Courts are finding the PACER system questionable -- not just the barrier it places between the public and court documents, but the uses of the fees as well, very little of which has actually been spent on improving PACER itself. If there's something almost everyone agrees with, it's that PACER sucks. Being asked to pay for the dubious privilege of using a barely working system is the insult piled on top of the $0.10/page injury.

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Posted on Techdirt - 17 September 2020 @ 9:33am

Bill Barr Says DOJ Prosecutors Should Bring Sedition Charges Against Violent Protesters

from the what-even-the-fuck dept

If Attorney General Bill Barr is ever gifted with superlatives, the one that will stick will be "worst."

After presiding over some civil liberties violations under Bush I, Barr has returned to AG work under Trump and seems dead set on making everyone forget his first reign of far-more-limited terror. Barr wants encryption backdoors, the end of Section 230 immunity, and law enforcement officers promoted to the rank of demigod. The public will be expected to absorb the collateral damage.

Bill Barr does know how to deliver a good speech, whether he's preaching to the converted or, in this recent speech, preaching to some developing converts. Speaking to Hillsdale College students during their Constitution Day event, Barr said he's trying to build a kinder, gentler DOJ.

In exercising our prosecutorial discretion, one area in which I think the Department of Justice has some work to do is recalibrating how we interpret criminal statutes.

In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules. In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it.


To be clear, what I am describing is not the Al Capone situation — where you have someone who committed countless crimes and you decide to prosecute him for only the clearest violation that carries a sufficient penalty. I am talking about taking vague statutory language and then applying it to a criminal target in a novel way that is, at a minimum, hardly the clear consequence of the statutory text.

This is definitely something that could use improvement. The DOJ has engaged in plenty of bad-faith, overly-aggressive prosecutions. Almost anything involving the CFAA comes to mind.

But Barr can't lead this reform. He doesn't even really want it. As he was delivering this speech about prosecutorial discretion, news broke detailing the contents of a phone call Barr had with DOJ prosecutors:

Attorney General William Barr expressed frustration with some local and state prosecutors' handling of riot-related crimes, telling top Justice Department prosecutors that he wants them to be aggressive in bringing charges related to protest violence, including exploring using a rarely used sedition law, according to a person familiar with the matter.

This isn't discretion. This is [checks Barr's Constitution Day speech] a "hyper-aggressive extension of criminal law," the "taking" of "vague statutory language and applying it to a criminal target in a novel way." Barr's not going to practice what he preached at Hillsdale College and he doesn't want his prosecutors engaging in restraint either.

Proving sedition is difficult. That's why we haven't historically charged violent protesters with sedition. There are a bunch of other federal and local statutes that capably address acts of violence or vandalism. There's no reason federal prosecutors should start pretending violence or vandalism occuring during/adjacent to anti-police brutality protests is a conspiracy to overthrow the government or "oppose by force" federal laws and statutes. There has only been one successful sedition prosecution in the last 25 years. It seems unlikely using this law to ensure protest-related prosecutions are federal is going to work.

But that's not all. Barr also wanted DOJ prosecutors to find some way to go after Seattle's mayor over her handling of protests in her city.

Attorney General William Barr asked Justice Department prosecutors to explore charging Seattle Mayor Jenny Durkan (D) over a protest zone in the city, The New York Times reported Wednesday.

Barr asked prosecutors in the department's civil rights division to explore charging Durkan during a call with prosecutors last week, the Times reported citing two people briefed on those discussions.

Barr's nice words about dialing back aggressive prosecutions were aimed solely at DOJ prosecutors who have made the mistake of going after Trump or his underlings in the administration. Barr doesn't care about the victims of over-prosecution who don't have connections to the White House. Those people are still on their own and still subject to the whims of prosecutors who have been given free reign to interpret the law for maximum prosecutorial efficiency. Barr said the quiet part loud later in his Hillsdale speech:

Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

On one hand, this is a sickening display of sycophancy. On the other hand, it will save the taxpayers some money. No sense wasting time prosecuting someone Trump's just going to pardon.

Barr's day of awfulness finally came to end with this unbelievably hot take in response to a student's question about COVID-19 lockdowns. There's no way to really brace yourself for his response:

"You know, putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history," Barr said as a round of applause came from the crowd.

The Greatest Intrusion. Well. OK then.

Bill Barr can no longer be satirized. He'd be an unsubtle farce capable of gathering only the cheapest laughs if he wasn't actually in charge of the goddamn Department of Justice. This makes him frightening, rather than pitiable.

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Posted on Free Speech - 17 September 2020 @ 3:32am

Human Rights Organization Issues Press Freedom Alert Over UK Government's Refusal To Speak To Critical Journalists

from the skin-so-thin-these-days dept

The UK government is fine with press freedom as long as the press confines itself to the unwritten guidelines the government uses to restrict it. Publish too many leaked documents? Well, the government will show up and destroy your computer equipment. Report on the wrong stuff? The government will kick you out of Parliament and tell you not to talk about why you've been kicked out. Publish names of people targeted by UK government investigations in the Land of the First Amendment and across the pond from the UK? Expect a UK court to issue a ruling telling you to abide by laws that don't govern the country you're actually publishing in.

The UK government is again stepping on free press toes. And human rights organizations have noticed. Independent journalism outfit Declassified UK was recently told its journalistic services were no longer required… or would at least no longer be respected by the Ministry of Defence.

The UK government has been formally warned for threatening press freedom after it blacklisted a group of investigative journalists and denied them access to information.

The Council of Europe issued the Level 2 "media freedom alert" after Ministry of Defence press officers refused to deal with Declassified UK, a website focusing on foreign and defence policy stories.

As the Independent reports, this aligns the UK government with Russia and Turkey, which received similar alerts recently for, respectively, beating and jailing journalists critical of their governments.

Here's the chain of events that led to the Level 2 alert, as reported by Marcela Kunova of journalism.co.uk.

On 25 August, Declassify UK journalist Phil Miller contacted the MoD’s press office to request a comment about the arrest of Ahmed al Babati, a serving soldier, near Downing Street for protesting the United Kingdom’s involvement in Saudi Arabia’s bombing of Yemen.

Miller was promised information at first but the press office later called him to enquire about the publication’s editorial coverage of the conflict.

"What sort of angle have you taken on the war in Yemen?” the MoD spokesperson asked.


Not long after, Miller received an email telling him that the MoD was not going to send him anything that day, but that he should "submit an FOI [Freedom of Information request] for anything that you require".


When Miller enquired with his contact at the press office, he was told: "My understanding from the office is that we no longer deal with your publication."

Declassified UK feels this blacklisting is the result of its earlier reporting on questionable Ministry of Defence activities, like training Saudi pilots who were involved with bombings of civilians in Yemen.

It's not just the Council of Europe that's noticed the UK government's decision to refuse to respond to journalists it apparently doesn't care for. The International Press Institute has sent a letter to MoD officials criticizing the agency for its actions.

It goes without saying that the exclusion of a media publication by a government ministry due to its investigative reporting would undermine press freedom and set a worrying precedent for other journalists whose job it is to report in the public interest on the British military.

Criticism should be no reason to discriminate against a media publication. In contrast, tough journalism by outlets such as Declassified UK on matters such as the UK’s foreign and military affairs, uncomfortable though it often may be for those in power, is crucial for a transparent and functioning democracy.

The letter also asks for "clarification" on the decision by the MoD's press office. Presumably, no explanation will be provided. If anything, the MoD will just go back to handing out "no comments" to Declassified UK, rather than call any more attention to itself by cutting the independent journalists out of the minimal info loop.

But, for now, the MoD has aligned itself with Russia and Turkey. It may not be demanding the jailing/beating of critics (at least, not out loud), but it's shown it's unwilling to handle criticism like a free world government agency.

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Posted on Techdirt - 15 September 2020 @ 1:42pm

Ninth Circuit Appeals Court May Have Raised The Bar On Notifying Defendants About Secretive Surveillance Techniques


Recently -- perhaps far too recently -- the Ninth Circuit Appeals Court said the bulk phone records collection the NSA engaged in for years was most likely unconstitutional and definitely a violation of the laws authorizing it. The Appeals Court did not go so far as to declare it unconstitutional, finding that the records collected by the government had little bearing on the prosecution of a suspected terrorist. But it did declare it illegal.

Unfortunately, the ruling didn't have much of an effect. The NSA had already abandoned the program, finding it mostly useless and almost impossible to comply with under the restrictions laid down by the USA Freedom Act. Rather than continually violate the new law, the NSA chose to shut it down, ending the bulk collection of phone metadata… at least under this authority.

But there's something in the ruling that may have a much larger ripple effect. Orin Kerr noticed some language in the opinion that suggests the Ninth Circuit is establishing a new notification requirement for criminal prosecutions. For years, the government has all but ignored its duty to inform defendants of the use of FISA-derived evidence against them. The DOJ has considered FISA surveillance so secret and sensitive defendants can't even be told about it. Defendants fight blind, going up against parallel construction and ex parte submissions that keep them in the dark about how the government obtained its evidence.

The language in the Ninth Circuit ruling changes that. It appears to suggest (but possibly not erect, unfortunately) an affirmative duty to inform defendants about surveillance techniques used by the government.

In Moalin, the question was whether defendants had to be notified about a warrantless national security program involving telephone metadata that had been collected about them as part of the investigation. I would have thought the answer is no. Most obviously, there was no search warrant about which to give notice. And beyond that, I would have thought the program under then-existing precedent not to be a search at all.

The Ninth Circuit imagines a different kind of notice requirement, though. Instead of a notice requirement that a warrant was executed, flowing from the warrant itself, this is a notice requirement that appears to be triggered only if and when criminal charges are filed providing notice that evidence about a person was collected using a surveillance practice that may or may not be a search. In effect, it’s a notice to criminal defendants to consider filing a motion to suppress to challenge the investigation and vindicate any Fourth Amendment rights that may or may not have been at stake.

Huge if true. This is the court giving defendants an opportunity to suppress evidence derived from surveillance efforts courts may not (at this point) consider searches under the Fourth Amendment. The Constitutionality may be unsettled, but that shouldn't limit defendants' ability to raise challenges. This is from the opinion:

The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the “fruits” of that evidence—additional evidence to which it led. See Wong Sun, 371 U.S. at 488. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression.

Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are. Indeed, the Supreme Court has recognized that the notice provisions in FISA and the FAA serve precisely that function.

According to the Ninth Circuit, the Fourth Amendment standard of providing notice to defendants also applies to searches that the government (and some courts) have considered to be outside of the Fourth Amendment's reach -- like the acquisition of third-party records and foreigner-targeting surveillance efforts.

The government can still provide notice without giving up its secrecy, which should (hopefully) limit the number of times the government claims national security trumps all other rulings, regulations, precedential decisions, and Constitutional amendments. The government can have its secrecy and its notification, says the court.

Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security, then the court can review the materials bearing on its legality in camera and ex parte.

This would be breaking new ground, especially in cases where the government is using FISA-derived evidence. As Kerr points out, this isn't limited to settled Fourth Amendment precedent. This would allow defendants to challenge evidence derived from techniques and programs courts have yet to address. And this will (hopefully) force courts to confront unsettled Fourth Amendment issues, rather than dismiss them out of hand because no court has previously addressed novel (or secret) surveillance practices.

[N]ot only does it not require a warrant, it doesn’t even seem to require a search. The notice seems to be that evidence was obtained using a surveillance authority. It doesn’t appear to require that this authority is anything that has been understood to involve Fourth Amendment searches or seizures. Rather, the notice is provided so a person can bring a challenge and argue to a court that it’s a search or seizure, and an unreasonable search or seizure at that.

Put another way, this appears to be a Fourth Amendment notice requirement to alert criminal defendants that the government took steps that might constitute a search—but also might turn out not to be a search at all once a court reviews the matter closely. It has faint echoes to me of Miranda v. Arizona, in that it’s a judicially created notice about your rights potentially at stake so that you can take action to vindicate your rights.

If this is what the court is saying, the Ninth Circuit will be handling all sorts of interesting -- and precedent-setting -- cases in the near future. If the government has to be honest about its surveillance techniques, it will no longer be able to dodge Constitutional scrutiny by citing the Third Party Doctrine or claiming national security issues prevent it from informing defendants of the origin of evidence used against them.

This will have the most impact in cases where FISA evidence is in play and the government -- perhaps secure that its national security mantra will encourage the court to aid and abet in obfuscation -- hasn't bothered to engage in parallel construction. On the flipside, government lawyers have probably already parsed this latent threat to unearned secrecy and will be encouraging everyone involved to perform their surveillance in triplicate to prevent the establishment of warrant requirements in cases where reasonable suspicion can't even be met.

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Posted on Techdirt - 15 September 2020 @ 9:34am

Denver Now Routing 911 Calls About Mental Health Issues Away From Cops, Towards Trained Health Professionals

from the saving-lives-by-limiting-state-violence dept

Sending out armed law enforcement officers to handle mental health crises has often been a bad idea. Situations that require compassion, de-escalation, and nuance are far too often greeted with force, more force, and deadly force. Since there's always "excited delirium" to excuse the deaths caused by officers ill-equipped to deal with mental health issues, very little has changed. Until now.

Recently, there has been a nationwide uprising against police brutality and the senseless killing of unarmed citizens by law enforcement officers. Legislators are actively pursuing reform efforts and finally suggesting some things cops just aren't trained to do well should be handled by others who can handle them better. Some police officials believe this is "defunding." But it isn't. It's just taking money being used badly and rerouting it to programs and personnel who are specifically trained to work with people suffering from mental health issues.

A lot of city lawmakers are talking about shifting resources away from the "guys with guns" approach that has seen a great many people in need of health intervention "assisted" to death by police officers. The city of Denver is actually doing something about it. Denver's Support Team Assistance Response (STAR) -- launched four days after George Floyd-related protests began in Denver -- sends out health professionals and paramedics to respond to 911 calls about people behaving erratically.

Since its launch June 1, the STAR van has responded to more than 350 calls, replacing police in matters that don’t threaten public safety and are often connected to unmet mental or physical needs. The goal is to connect people who pose no danger with services and resources while freeing up police to respond to other calls. The team, which is not armed, has not called police for backup, [Carleigh] Sailon said.

This limits the number of interactions involving weapons with the power to maim or kill. This makes it a program that saves lives -- not only because the STAR team gets people the help they need, but because it prevents situations from escalating to the point where jailing or force deployment (or both) seem to be the only options. This new task force is all that much more important since so many Denver residents appear to feel 911 is just a city customer service line.

The team has responded to an indecent exposure call that turned out to be a woman changing clothes in an alley because she was unhoused and had no other private place to go. They’ve been called out to a trespassing call for a man who was setting up a tent near someone’s home. They’ve helped people experiencing suicidal thoughts, people slumped against a fence, people simply acting strange.

The STAR team only handles a small percentage of the city's 911 calls. Most are still handled by law enforcement. But it does free up police resources to handle situations requiring their presence, rather than asking under-trained officers to handle everything residents ask them to handle because they don't know who else to ask.

Police are always talking about working smarter. But they rarely seem to recognize their own shortcomings could be addressed by others who won't take an approach that ends in death, arrest, or injury. They should embrace programs like these that allow them to pursue actual criminals, rather than treating people who are victims of mental illness, homelessness, or suicidal thoughts like criminals because that's how they're trained to treat everyone.

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Posted on Techdirt - 14 September 2020 @ 3:40pm

Minnesota Cops Are Dismantling Criminal Organizations At Less Than $1,000 A Pop

from the oh-wait-i-guess-that-isn't-doing-jackshit-to-the-crime-rate dept

Law enforcement officials love to defend asset forfeiture. While sidestepping the fact that it almost always directly enriches the agency doing the forfeiting, these officials love to claim it's an invaluable tool that helps cops dismantle dangerous criminal organizations.

This is why they fight reporting requirements. No one knows you're just making poor people poorer unless you're required to report all of your forfeitures. Up in Minnesota -- like far too many other places around the country -- law enforcement officers roll Sheriff of Nottingham style. Unfortunately, there's no Robin Hood lurking in the forests patrolled by opportunistic officers.

Here's state auditor Julie Blaha offering her opinion about forfeitures in Minnesota after digging into the data the agencies provided:

“The data shows that when it comes to the impact of forfeitures, the big story is in the small numbers,” Blaha said in a statement. “Those kinds of amounts have a small impact on government systems, but they have a big impact at the individual level.”


“If you are managing a public safety budget, small forfeitures are a minor and unpredictable part of your revenue stream,” Blaha continued. “But if you are a low income person experiencing a forfeiture, those amounts can have a big effect on your life. Having a few hundred dollars seized can mean the difference between making rent or homelessness. Losing that old car can lead to missing work and losing your job.”

The program punishes the poor. Very few law enforcement agencies which rely on forfeiture for their discretionary funds want to tangle with an actually organized criminal organization. Those guys can afford lawyers. Most citizens can't. That's why most seizures are so small they're not worth fighting in court. At the end of the jurisprudence day, citizens may win back their cash or cars, but they'll lose the war, having paid more in court and legal fees than what their property is worth.

Everything adds up to real money if you have enough of it. Here's the ugly truth, straight from the auditor's report [PDF].

523 (12 percent) forfeitures were less than $100.
1,414 (32 percent) forfeitures ranged from $100 to $499.
858 (20 percent) forfeitures ranged from $500 to $999.
1,252 (29 percent) forfeitures ranged from $1,000 to $4,999.
304 (7 percent) forfeitures were equal to or greater than $5,000

Only seven percent targeted amounts that might actually do damage to criminal organizations. 64% of forfeitures targeted less than $1,000.

Here's the list of crimes associated with these seizures, which shows officers are willing to take easy wins and easy cash, rather than actually tangle with criminal enterprises far more harmful and dangerous.

In 2019, DUI-related and controlled substance accounted for 94 percent of the forfeitures. DUI-related forfeitures accounted for 3,654, or 47 percent, of reported forfeitures, while forfeitures involving a controlled substance accounted for 3,611, or 47 percent, of reported forfeitures. The remaining forfeitures involved fleeing (251), prostitution (69), “other” crimes (36), weapons (31), robbery/theft (23), assault (20), and burglary (13). Figure 5 on the following page shows completed forfeitures by type of crime.

Oh thank god. They're dismantling Big Drunk. We won't have to fear the scourge of alcohol/drug consumers for much longer. #Heroes. And if that wasn't enough, the dangerous Sinola Fleeing Cartel is being destroyed bit-by-bit. Abandoned property is so much easier to seize and forfeit than stuff people are still standing next to and stating their claim for.

This is how asset forfeiture works: easy wins predicated on criminal activity that rarely affects anyone besides the person stopped and their property. It all adds up though. For the state of Minnesota, the total was $7.5 million. And what did it accomplish? Did it cripple the non-organized crime of driving under the influence? Did it make it less likely for people to carry their personal stashes of illicit substances? No one dismantled a drug cartel. No one ensured Minnesotans would be subjected to fewer violent crimes. All that happened was cops took stuff that was easy to take and spent the money once it rolled in.

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Posted on Techdirt - 14 September 2020 @ 12:14pm

PayPal Blocks Purchases Of Tardigrade Merchandise For Potentially Violating US Sanctions Laws

from the water-bears-are-the-new-WMDs dept

Moderation at scale is impossible. And yet, you'd still hope we'd get better moderation than this, despite all the problems inherent in policing millions of transactions.

Archie McPhee -- seller of all things weird and wonderful -- recently tried promoting its "tardigrade" line of goods only to find out PayPal users couldn't purchase them. Tardigrades are the official name for microscopic creatures known colloquially as "water bears." Harmless enough, except PayPal blocked the transaction and sent this unhelpful response:

If you can't read/see the tweet and the screenshot, here's what it says:

Just an FYI that @PayPal is currently blocking all transactions containing the word "tardigrade" in the product name or description. We've contacted them and they told us we should just stop using the word tardigrade.

And PayPal's response:

Every transaction that goes through our system, is reviewed by our internal security team. Certain words can trigger our security system. Unfortunately, this cannot be overridden. I would advise you to change the wording on your website to prevent this from happening.

PayPal's size demands the use of automated moderation. But this outcome seems inexplicable. It says the "internal security team" manually reviewed the block… and decided to keep it in place anyway. What's the point of having a "security team" if they can't override the algorithm's decision?

Then there's the question as to why "tardigrade" is blocked in the first place. It's the official name for a particularly hardy micro-animal found all over the world. Early speculation centered on the Scunthorpe Problem, suggesting PayPal blocks transactions involving forms of the word "retarded."

But it appears to be even more ridiculous than that. Tim Ellis at GeekWire received this explanation from PayPal:

A PayPal representative put the blame on the US government’s Office of Foreign Assets Control (OFAC) sanctions, which contain an entry for an industrial supply company called “Tardigrade Limited” located in the country of Cyprus. According to PayPal, the word “tardigrade” triggered a manual review process because their system determined that the payments “may potentially violate US sanction laws."

Customers have a Balkan arms dealer to blame for their inability to purchase tardigrade goods.

Slobodan Tesic (Tesic) was identified in the annex of E.O. 13818 on December 21, 2017. At the time of his designation, Tesic was among the biggest dealers of arms and munitions in the Balkans, spending nearly a decade on the United Nations (UN) Travel Ban List for violating UN sanctions against arms exports to Liberia.


Tesic also utilized Cyprus-based Tardigrade Limited (Tardigrade) to conduct business in third-party countries, particularly Arab and African countries. Tesic has also used his Serbian companies to sign contracts with Tardigrade before selling the goods to a final buyer.

So, "tardigrade" is flagged by the system as indicative of sanctions violations. But there's that term again: "manual review." Is it impossible for reviewers to distinguish between arms sales through third parties and these?

Now, it could be the manual review team didn't want to end up on the wrong side of sanctions and felt safer blocking transactions than possibly allowing an arms dealer to launder money through the sale of adorable water bear products. Or it could be the manual "review" consists of scrolling through a list of flagged items as quickly as possible and hitting the "approve all" button. Whatever it is, it ain't working. And Archie McPhee isn't the first retailer to run into this problem. Two months ago, Two Photon Art noted it had to rename its Tardigrade pin to "Water Bear Enamel Pin" to allow PayPal users to purchase it.

Erring on the side of caution seems like the smart thing to do. But when the term "manual review" accompanies "automated process," you'd think manual reviewers would see these errors for what they are, rather than allow the blocking to continue. It appears PayPal is doing a little more manual review for tardigrade-related purchases now that it's gone a bit viral, with customers experiencing delays rather than being hit with warnings their purchases have violated PayPal policies.

The upshot is stuff like this will only become more common as time goes on. The more pressure that's placed on tech companies to aggressively police content, the greater the chance harmless content will be rendered inaccessible. It's not that companies shouldn't make efforts to keep their sites free of illegal content and whatever the companies would rather not see on their sites, but automated moderation will always create issues like these. And there just aren't enough manual reviewers available to clean up algorithmic mistakes.

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Posted on Techdirt - 11 September 2020 @ 10:45am

Florida Sheriff's Predictive Policing Program Is Protecting Residents From Unkempt Lawns, Missing Mailbox Numbers

from the if-you-can't-the-time-in-perpetuity,-don't-commit-the-crime-even-once dept

Defenders of "predictive policing" claim it's a way to work smarter, not harder. Just round up a bunch of data submitted by cops engaged in biased policing and allow the algorithm to work its magic. The end result isn't smarter policing. It's just more of the same policing we've seen for years that disproportionately targets minorities and those in lower income brackets.

Supposedly, this will allow officers to prevent more criminal activity. The dirty data sends cops into neighborhoods to target everyone who lives there, just because they have the misfortune of living in an area where crime is prevalent. If the software was any "smarter," it would just send cops to prisons where criminal activity is the highest.

The Pasco County Sheriff's Department thinks it's going to drive crime down by engaging in predictive policing. But no one's crippling massive criminal organizations or liberating oppressed communities from the criminal activity that plagues their everyday lives. Instead of smart policing that maximizes limited resources, Pasco County residents are getting this instead:

First the Sheriff’s Office generates lists of people it considers likely to break the law, based on arrest histories, unspecified intelligence and arbitrary decisions by police analysts.

Then it sends deputies to find and interrogate anyone whose name appears, often without probable cause, a search warrant or evidence of a specific crime.

They swarm homes in the middle of the night, waking families and embarrassing people in front of their neighbors. They write tickets for missing mailbox numbers and overgrown grass, saddling residents with court dates and fines. They come again and again, making arrests for any reason they can.

One former deputy described the directive like this: “Make their lives miserable until they move or sue.”

Those are the options given to residents. The Sheriff wants residents to fund their own harassment. If they don't like being hassled by officers, move or sue. Both are costly. Both disrupt people's lives. And it's happening because people live in the "wrong" areas or have committed criminal acts in the past, the latter of which law enforcement isn't willing to forgive or forget long after these residents have repaid their debt to society.

In one case, a 15-year-old boy on probation (and overseen by a probation officer) for stealing motorized bikes was "visited" by deputies 21 times in six months. They went to his mother's employer, his friend's house, and the gym he frequented. Past mistakes are the impetus for months or years of hassling by deputies, thanks to the Sheriff's software.

Since September 2015, the Sheriff’s Office has sent deputies on checks like those more than 12,500 times, dispatch logs show.

The Sheriff's Office says this is a smarter way to fight crime. When deputies fine someone $2,500 for having chickens in their yard or arrest a father because a 17-year-old was spotted smoking cigarettes on his property, it's just better police work all around. The Sheriff's Office has become the county's unofficial Homeowner's Assocation, hassling residents for uncut grass, missing mailbox numbers, and having unpopular pets on the premises. But the Pasco County Sheriff thinks this is a good thing and has the stats to back it up.

The Sheriff’s Office said its program was designed to reduce bias in policing by using objective data. And it provided statistics showing a decline in burglaries, larcenies and auto thefts since the program began in 2011.

Or does it?

But Pasco’s drop in property crimes was similar to the decline in the seven-largest nearby police jurisdictions. Over the same time period, violent crime increased only in Pasco.

All the data generated by the Office's 12,500 hasslings goes back into the system, laying the foundation for the next 12,500 useless insertions of law enforcement into people's lives.

The program utilizes 30 people and runs residents $2.8 million a year. It's headed by a former senior counterterrorism expert. The second-in-command is a former Army intelligence officer. But for all the supposed expertise, it's only country residents being terrorized.

The system assigns points to people to see if they can make the top 100 "offenders" list, which is where the Office focuses its efforts. Points are given to people if they're accused of any criminal act, even if the charges are dropped or they're only considered a suspect. Their scores are enhanced if they appear in police reports, even as a witness or a victim.

Body camera recordings and documents show deputies engaged in "intelligence-led" policing threatening people with arrests and citations if they won't agree to let officers in their homes. They also show efforts targeting teens and people with developmental disabilities, including one "target" who had twice been ruled incompetent to stand trial. Former deputies and officers say not every interaction was recorded or logged. In some cases, deputies would park multiple cars outside of targets' homes for hours at a time or make up to six visits a day to the same residence.

The goal is harassment. And it works. Residents feel harassed. Interactions that began cordially have steadily become more confrontational. This works to the Sheriff's advantage. Provoking anger makes it easier to find something to charge residents with, given the number of statutes that enable "contempt of cop" charges. At least one frequent target moved their family out of the county

All of this targeted harassment hasn't made county residents any safer. They'd enjoy the same reduction in property crime in any other nearby county without having to deal with this massive downside. And, as the stats show, violent crime is lower in nearby counties not subjecting residents to mafioso tactics under the guise of "intelligence-led policing." All the program has really shown is that the Sheriff's Office has an excess of personnel and resources.

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Posted on Techdirt - 11 September 2020 @ 3:31am

Cops And Paramedics Are Still Killing Arrestees By Shooting Them Up With Ketamine

from the i-guess-it's-ok-if-it's-not-on-purpose? dept

Cops -- and the paramedics who listen to their "medical advice" -- are still killing people. A couple of years ago, an investigation by the Minneapolis PD's Office of Police Conduct Review found officers were telling EMS personnel to inject arrestees with ketamine to calm them down. This medical advice followed street-level diagnoses by untrained mental health unprofessionals who've decided the perfect cure for "excited delirium" is a drug with deadly side effects.

People have been "calmed" to death by ketamine injections -- ones pushed by police officers and carried out by complicit paramedics. The cases reviewed by the OPC included potentially dangerous criminals like jaywalkers and disrespecters of law enforcement ("obstruction of justice"). Multiple recordings showed arrestees shot up with ketamine shortly before their hearts stopped or they ceased breathing.

This incredibly dangerous practice of using ketamine to sedate arrestees hasn't slowed down. Instead, it has spread. What was a horrific discovery in Minneapolis is still day-to-day business elsewhere in the country. Cops and paramedics in Colorado are still putting peoples' lives at risk by using ketamine as their go-to sedative.

Police stopped Elijah McClain on the street in suburban Denver last year after deeming the young Black man suspicious. He was thrown into a chokehold, threatened with a dog and stun gun, then subjected to another law enforcement tool before he died: a drug called ketamine.

Paramedics inject it into people like McClain as a sedative, often at the behest of police who believe suspects are out of control. Officially, ketamine is used in emergencies when there’s a safety concern for medical staff or the patient. But it's increasingly found in arrests and has become another flashpoint in the debate over law enforcement policies and brutality against people of color.

An analysis by The Associated Press of policies on ketamine and cases where the drug was used during police encounters uncovered a lack of police training, conflicting medical standards and nonexistent protocols that have resulted in hospitalizations and even deaths.

McClain was killed because paramedics assumed he weighed nearly twice as much as he actually did. They gave him an inadvertent double dose that triggered cardiac arrest. Soon after that, McClain was declared brain dead and removed from life support. McClain was killed for the crime of being suspicious in public (cops were responding to a call about a "suspicious person wearing a ski mask and waving their arms.") And he was killed by the people who were supposed to ensure his health and safety.

After his death, Colorado's health department attempted to investigate law enforcement use of ketamine. That investigation appears to have fallen apart before it could really get started. As the AP report points out, there are no uniform reporting requirements for ketamine deployment -- not at any level of government. State requirements are different from federal requirements. Consequently, there's no cohesive collection of data on this drug's use.

Unfortunately, most government guidelines agree cops can use a particularly worthless term to justify the use of the sedative.

Most states and agencies say ketamine may be administered when someone exhibits “excited delirium” or agitation, which is typically associated with chronic drug abuse, mental illness or both.

Even if "excited delirium" was a mental health condition recognized by a large number of medical and mental health entities and governing bodies (spoiler alert: it isn't), police officers aren't qualified to make diagnoses and recommend sedatives after limited interactions with people they're trying to arrest. But government bodies have already issued this permission slip to cops and they use it as often as they can. It's a diagnosis that rarely comes from anyone but a law enforcement officer or official.

The drug is only safe when deployed in controlled settings by healthcare professionals. Even then, there may be complications due to preexisting conditions. Turning it into a tool of arrest tradecraft eliminates all the expertise and replaces it with expedience. It may not go wrong every time. But it goes wrong often enough -- and with deadly consequences -- that no one should feel comfortable allowing law enforcement and EMS crews to make off-the-cuff decisions about its use.

There were 902 reported instances of Colorado paramedics administering ketamine from 2018 to 2020, and almost 17% had complications, including cardiac arrest and oxygen deprivation, the state health department said.

If it increases the chances of death, everyone involved should steer clear of it. EMS personnel are supposed to be lifesavers, not deathbringers. The same goes for cops. Just because someone's uncooperative doesn't mean they need to be subjected to something that could kill them. That a 17% failure rate hasn't slowed this practice down shows how little cops and their first responder buddies care about the lives of people in handcuffs.

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Posted on Techdirt - 10 September 2020 @ 3:22am

Actual Facts Undercut Media's Narrative That Law Enforcement Task Force Broke Up A Multi-State Sex Trafficking Operation

from the reality-is-way-less-lurid-than-headline-writers-would-like-it-to-be dept

If sex trafficking was actual traffic, people would rarely complain about congestion. It's not that it doesn't happen. It's that it doesn't happen with the frequency claimed by government officials in order to do things like dismantle Section 230 immunity or pursue baseless prosecutions against online ad services.

But it always sounds like an omnipresent threat thanks to far too many news organizations who are apparently unwilling to challenge claims made by officials, much less dig into the details of trafficking stings. Almost without exception, big human/sex trafficking busts end with little to show for them but some standard solicitation arrests and a handful of jailed sex workers of legal age who haven't been "trafficked."

There's a lot of blame to spread around for this turning from small-scale misguided hysteria into the focal point of legislation that harms the immunity granted to website and platform owners. But we can start with media, which hasn't met a sex trafficking story it isn't willing to hype, even when the facts don't jibe with the headlines. Michael Hobbes punches holes in the latest sex trafficking horror story covered nationwide -- one that contains very little horror and almost no sex trafficking.

This is how it landed on people's virtual doorsteps following the government's press release:

“U.S. Marshals Find 39 Missing Children in Georgia During ‘Operation Not Forgotten,’” proclaimed the government’s official press release. Federal agents and local law enforcement, it said, had rescued 26 children, “safely located” 13 more and arrested nine perpetrators, some of whom were charged with sex trafficking.

The facts of the operation weren’t clear (what does “safely located” mean, exactly?), but it didn’t stop media outlets from taking up the story. “Missing Children Rescued in Georgia Sex Trafficking Bust” wrote The Associated Press, a headline dutifully repeated in The New York Times. “39 Missing Children Located in Georgia Sex Trafficking Sting Operation” was People magazine’s version. Few media outlets contributed any original reporting; the vast majority of stories were little more than rewritten versions of the U.S. Marshals Service’s press release.

These credulous takes of the information offered by the US Marshals Service became even hotter once it hit Twitter, with people asking why finding 39 trafficked children wasn't a bigger story. But that's not even what the Marshals' press release said. It only said law enforcement has rescued 26 "endangered" children, found 13 other missing children in "safe" locations, and arrested only nine people. The release mentioned "crimes related to sex trafficking" but did not specify any of the nine had been charged with sex trafficking. It wasn't even a "sex trafficking sting." It was a joint task force operation to find missing children.

The details larger press outlets were unwilling to dig into have been uncovered by Michael Hobbes. Here's what the US Marshals had to say about the operation the media insisted was a sex trafficking sting.

“This was not a designated anti-trafficking operation,” Darby Kirby, a U.S. Marshals Service inspector involved with the operation, told HuffPost. Operation Not Forgotten, the name law enforcement gave the recovery effort, was a collaboration between state and federal authorities to locate 78 “critically missing” children.

The good news is the task force found 65 of the 78 "critically missing" children. Thirty-nine were "recovered," which means they weren't necessarily in danger, but possibly just not living with the custodial parent. The other 26 cases were closed, possibly because the child had already been located by Child Protective Services or had returned home prior to the operation.

As for the sex trafficking that was the focal point of national news stories, it's almost a footnote.

The operation netted only one new charge of sex trafficking against a perpetrator. Of the seven men and two women arrested, three were charged with probation violations, one was charged with unlawful possession of a firearm and two were accused of violating custody arrangements. One person was arrested on a warrant for a previous sex trafficking charge, and two more were arrested on warrants for sex crimes in other states.  

And it wasn't just a rescue operation. Law enforcement was also looking for underage criminal suspects.

It’s also worth noting that the operation was also set up to arrest children, not just rescue them. Katie Byrd, the communications director for the Georgia attorney general’s office, noted that two of the missing kids were suspects in homicide cases, and one was a person of interest in another.  

Plus, 11 of the kids had, in Byrd’s words, “some kind of gang affiliation.” Byrd did not specify how many juveniles were arrested in connection with the operation, but, according to numbers her office provided, it appears that up to seven warrants were issued for underage offenders.

Reporting like this can't really be called "reporting." It should be called "stenography." And when officials were actually asked for comment, they just made things worse. The director of the US Marshals Service -- Donald Washington -- claimed 300 underage girls were lured into trafficking every month… and that's just in the Atlanta area. But the stats from operations like this just don't bear that claim out. In this operation, officials claimed just six of the sixty-five children rescued were considered "trafficked." Keep in mind that a minor that performs sex work on their own is considered "trafficked," even if there's no sex trafficker involved. That's the statutory definition. If Atlanta alone is responsible for 3,600 trafficked minors a year, you'd think an operation that took place in Georgia would have found a lot more trafficking victims.

It's not that minors are never forced into sex work by traffickers. It's that it happens far less frequently than irresponsible headlines (and irresponsible statements by law enforcement officials) would have you believe. The good news is missing children were located. But, sadly, that's not enough to interest people when there's an entire internet full of bad faith arguments, overblown rhetoric, and grandstanding officials.

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Posted on Free Speech - 9 September 2020 @ 3:36pm

French Government To Make Insulting Mayors A Criminal Offense

from the we-love-free-speech-but-[unrolls-growing-list-of-exceptions] dept

French government entities continue to clamp down on speech. Following a terrorist attack on a French satirical newspaper, government leaders vowed to double down on protecting controversial speech. The govenment then fast-tracked several prosecutions under its anti-terrorism laws, which included arresting a comedian for posting some anti-semitic content. It further celebrated its embrace of free speech by arresting a man for mocking the death of three police officers.

A half-decade later, that same commitment to protecting speech no one might object to continues. The country's government passed a terrible hate speech law that would have allowed law enforcement to decide what content was acceptable (and what was arrestable.) Fortunately for its citizens, the country's Constitutional Court decided the law was unlawful and struck down most of it roughly a month later.

But that's not the end of bad speech laws in France. Government officials seem to have an unlimited amount of bad ideas. Some government officials are being hit with far more than objectionable words. Assaults of French mayors continue to occur at the rate of about once a day. Mayors assaulted and unassaulted have asked the French government to do more to protect them from these literal attacks.

The government has responded. And it's not going to make mayors any more popular or make them less likely to be physically attacked.

Any insult targeted at a French mayor will now be treated as contempt - an offence that carries a maximum penalty of community service or a €7,500 fine - France's justice minister has announced.

“Any attack perpetuated against a mayor is an attack perpetuated against the Republic”, warned French Minister of Justice Eric Dupond-Moretti on Wednesday after a ministerial meeting to which local mayor associations were invited, according to BFMTV.

Assault is already a crime, so the government has ways to deal with those who physically attack government officials. This new wrinkle makes being mean to them a crime. The Republic as a whole will feel every insult targeting a town mayor. So will the people uttering the insults. $7,500 fines and/or 280 hours of community service await those who like to fight with their words, rather than their fists.

This may trim down the number of public insults but it's hardly going to make the government any more popular with the governed. If French citizens are physically attacking mayors 300+ times a year, there's something more going on that just a little bit of assholishness that's gotten out of hand. Protecting people from violence is something any government should do. But protecting them from being insulted is something only authoritarians do.

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