Posted on Techdirt - 29 June 2015 @ 2:41pm
Here's something you see all too rarely -- not because the government's civil asset forfeiture programs aren't routinely abused -- but because it's a good way to spend lots of money fighting a losing battle.
Vu Do, owner of two nail salons in New York City, is trying to retrieve nearly $44,000 -- his life savings which he had put together over twenty years -- taken from him by the DEA at the JFK airport. The complaint points out that Do has run two legitimate businesses in NYC for several years, and not once has he been arrested or even charged for violations of controlled substances laws.
Nevertheless, the DEA took all of Do's money under the assumption that he's involved in the drug business, despite being more than willing to let him go without even a citation. Do had planned to take his money to California to help his financially-struggling siblings out, but ran into the DEA first.
Then there's this:
The Plaintiff did not know that it was a violation of Federal regulations to carry cash in excess of $5,000 at the time of the seizure.
There's a good reason for not knowing this. There is no
federal regulation prohibiting citizens from walking around (or boarding planes) with any amount of cash. Asset forfeiture laws make this practice unwise
, but nothing in federal law says Do was forbidden from boarding a plane with his $44,000.
There are reporting requirements
for any amount over $10,000 in cash traveling in
of the country, but nothing says travelers can't go from state-to-state with their own money. They don't even have to report it. They will, obviously, experience more scrutiny from the TSA, but it's not illegal to do what this salon owner did.
So, why is this in here? It could be that Do performed his own research and came to the wrong conclusions. But that doesn't explain why his legal representation didn't point this out to him or remove it from the complaint. My guess is it's either an oversight (by his lawyer) or him just repeating what a TSA/DEA agent told him en route to the seizure of his money.
The DEA can easily bleed Do dry, or at the very least make it a break even scenario. Trying to get the government to return seized property is about as straightforward as engaging in quantum mechanics with a headful of acid. (Or firing a teacher
in New York City.) This chart, part of the Heritage Foundation's new PDF
discussing the many abuses of civil asset forfeiture, shows exactly how much work -- and how much can go wrong in the process -- it takes to get your stolen property back. (via Reason
) [click through for a larger version]
According to this chart, Do has no shot at reclaiming his money. He had a certain amount of time to challenge this seizure (until April 30, according to the DEA's administrative seizure notice
) and his June 17 lawsuit falls well outside that time limit. Not being "timely" is pretty much an instant loss.
If so, that's 20 years worth of savings headed towards ensuring the DEA has the funding to keep seizing cash
from travelers. Despite its best efforts, an actual drug trafficker will occasionally stumble into the agency's sticky grasp, inadvertently legitimizing the whole crooked program. I can't imagine the DEA looks forward to encounters with actual criminals, seeing as it involves arrests and a whole bunch of additional paperwork. Cash is king. And as long as asset forfeiture programs remain in effect, government agencies will prefer the easy busts of "guilty" money
over the more legitimate effort of removing criminals from the streets.
Read More | 36 Comments | Leave a Comment..
Posted on Techdirt - 29 June 2015 @ 3:54am
The thing about transparency is that it's not just about what you reveal. It's also about what you choose to keep hidden. In the ongoing docket for the government's 2015 bulk records requests, there appears to be a missing document.
BR 15-75 (BR = "business records," "15" = 2015) -- the government's request to have 180 days' worth of "business [records] as usual" collections before the limitations of the USA Freedom Act kick in -- is present. So is the opinion addressing the repercussions of the passage of USA Freedom, which is denoted as "BR 15-77, BR 15-78." But where -- and what -- is BR 15-76?
Patrick Toomey at Just Security has a theory:
It’s hard to be certain, but it’s likely that BR 15-76 is an application to restart the phantom CIA bulk financial records program or another undisclosed bulk collection program. Beginning in late 2013, multiple outlets reported on the CIA’s bulk collection of Americans’ international money transfer records from companies like Western Union and Moneygram. Other outlets stated at the time that the CIA program overlapped significantly with efforts to collect “financial transaction data” by both the NSA and the Treasury Department. And according to the New York Times, beyond the CIA program, several officials “said more than one other bulk collection program has yet to come to light.”
If Toomey is correct, I wonder how long said "undisclosed program" will remain undisclosed. Others have come to light over the years, including the DEA's concurrent collection of domestic phone records, something it apparently ditched to give the DOJ only "one" bulk records collection to defend publicly.
Previous to the post-Snowden era of begrudging transparency, omissions are no longer going to go unnoticed. In the discussion of the BR 15-77,78 opinion, it was noted that no order was attached
, meaning the government has presumably not yet received a go-ahead from the court on phone metadata. Ever since the Office of the Director of National Intelligence engaged Transparency Mode, the FISA Court has regularly delivered orders and opinions on the NSA's bulk collection activities. While some orders have been shortly delayed, there's never been a complete omission, nor this long of a gap between expiration of a previous order and a reinstatement of the collection request.
Now that the FISC is playing along with the new transparency, omissions of any sort are simply unacceptable. As Toomey states, if this missing paperwork is related to another bulk records collection (possibly one authorized under pre-Patriot Act stipulations), it's not acceptable that the government has chosen to withhold it from the public. The public doesn't have less
right to know about the harvesting of its records simply because said program hasn't been forced out into the open yet.
12 Comments | Leave a Comment..
Posted on Techdirt - 26 June 2015 @ 1:36pm
The Intercept has just released an interesting document from its Snowden stash: an unredacted damage assessment of the New York Times' 2005 exposure of the NSA's warrantless wiretapping program -- a program that saw the agency monitoring the emails and phone calls of US citizens.
It's not that the government hasn't made damage assessments public before. It just does it very, very rarely and mostly for self-serving reasons. The most recent publications of damage assessments were in response to the Snowden leaks. The released assessments were heavily-redacted and made plenty of unfounded assertions about the damage done to the national security infrastructure by the leaks.
This 2005 damage assessment was never released. It was purely an internal document. Thanks to it being part of Snowden's package of leaked documents, it can be read without the sort of excessive redaction the government deploys when discussing even the most inane (or obvious) aspects of national security.
Such was the internal distress at the possible exposure of this surveillance program that the government managed to delay its publication for a year. Despite its successful pushback, the assessment here is no different that the assessment of the Snowden leaks. In other words, mostly speculation backed by very little support.
The memo gives a general explanation of what terrorists might do in reaction to the information revealed. It was “likely” that terrorists would stop using phones in favor of mail or courier, and use encryption and code words. They could also plant false information, knowing the U.S. government was listening. But the leaked program had not “been noted in adversary communications,” according to the memo. It gave no specific examples of investigations or targets that had or might be impacted by the revelations.
Once you get past the obvious suggestion that terrorists will adapt communication methods in light of presumably-unknown information, you get to more detailed discussion of the NYT article itself. The assessment breaks down every statement of fact in the article and provides its corresponding level of classification.
(TS//SI//STLW//NF//OC) "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity."
(TS//SI//STL WIINF//OC) (NSA) "monitored the international telephone calls (communications to the U.S.) and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years … to track possible "dirty numbers" linked to Al Qaeda..."
(TS//SI//STLW//NF//OC) "NSA eavesdrops (under this program) without warrants on up to 500 people in the United States at any given time." ... the number monitored ... may have reached ... the thousands"
(S//SI) "Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored (by NSA) at one time."
Oddly, the government considers the most obvious possible outcome of the exposure of this program (that terrorists would alter communications in light of this info) to be "classified."
(C) (The article) would alert would-be terrorists (inside the United States) that they might be under scrutiny.
If there was a battle for American hearts and minds to be fought in the wake of this publication, you'd think the agency would want this conclusion made public (preferably with some supporting evidence), rather than bury it with other classified documents.
Nearly a decade down the road, the government has yet to offer any solid proof that the New York Times' article resulted in compromised capabilities or surveillance programs.
“To this day we’ve never seen any evidence — despite all the claims they made to keep us from publishing — that it did any tangible damage to national security. This is further confirmation of that,” [New York Times writer Eric] Lichtblau told The Intercept.
In fact, the only clear response to the publication of this leaked info didn't take the form of altered collection techniques or additional terrorist attacks. It took the form of a full-blown DOJ investigation, involving 25 FBI agents and five prosecutors. This too, resulted in a whole lot of nothing
The leak and the response to it indicates the government was more worried about US citizens
, rather than its foreign adversaries, finding out about what it was up to.
Read More | 18 Comments | Leave a Comment..
Posted on Techdirt - 26 June 2015 @ 10:33am
The UK's short-lived, awkward relationship with its Freedom of Information law appears to winding its way towards an acrimonious divorce. Not fully implemented until 2005 and disowned by its co-creator (former PM Tony Blair) in his memoirs only five years later, it has apparently now reached the point of irreconcilable differences: those being the public's interest in what their representatives are doing and their representatives' extreme disinterest in sharing their
feelings emails and documents.
Not that it ever was a fully-functioning Freedom of Information law (it was pre-sabotaged by automated email deletion programs before it ever went into effect), but it was at least somthing. But, sadly, it appears the UK government's "embrace" of transparency is every bit as sincere and warm-hearted as its embrace of free speech.
Michael Gove, the justice secretary, is considering making it more difficult to procure information from government bodies, including allowing officials to count “thinking time” when calculating how much it costs to retrieve information. One plan is to make it easier for ministers to veto publication of certain documents… Another is to change the way the cost of finding information is calculated so that officials can more readily turn down requests.
The first aspect would hand final veto power over to acting prime ministers. This is viewed by Gove and others as "needed" because the government was unable to prevent Prince Charles' correspondence from being released to The Guardian. As is almost always the case with contested open records requests, some embarrassment resulted from the publication of the released documents -- which showed that member of royalty pushing his personal perspective on issues like defense spending… or homeopathy... on a variety of legislators.
The second aspect is more related to Michael Gove's own FOI problems. Gove has previously been investigated for using personal email accounts to conduct official business. The 90-day automatic email destruction policy the UK government instituted is somewhat helpful in keeping the public uninformed, but what if someone wants to retain these official records longer for personal
reasons, but doesn't feel particularly compelled to share them with FOI requesters? Well, that's where the discussion of fees comes into play.
Currently, citizens can request anything as long as the costs incurred by government bodies doesn't exceed £600. Considering many files are stored electronically, can be easily searched and resulting documents sent
electronically, costs of fulfilling requests continue to decrease. So, Gove and others are suggesting a couple of changes: lowering the £600 cutoff point and/or padding invoices. The latter would see such intangibles as "considering" potential document releases billed at an hourly rate. Redaction efforts would also be billed.
If these changes are put into effect, FOI releases will slow to a trickle and some requests will meet with an almost un-challengable refusal, thanks to executive veto power. David Cameron promised a "complete revolution in transparency" during his term. Depending on your opinion of Cameron, this is either the antithesis of his goal, or exactly what he had in mind.
11 Comments | Leave a Comment..
Posted on Techdirt - 26 June 2015 @ 6:07am
Lest it be left behind by other countries bullied into submission by US trade agreements, the Canadian government has now expanded copyright terms for recording artists from 50 years to 70 years. (It was previously passed, but has now received the Official Royal Assent.) While not as obnoxiously long as the terms afforded to songwriters (life plus 50 years… which will probably be life plus 70 before too long…), it's still a needless expansion that does little for living artists while carving another 20-year hole in the public domain.
While one would expect a less-than-balanced perspective from a trade-focused entity, Billboard's "coverage" of the ruling sounds like it was written by the recording industry itself.
Two months after the Conservative government’s Economic Action Plan 2015 for Canada included its intention to amend the Copyright Act from 50 years to 70 years, the bill has been given royal assent and is now law. That ensures that songwriters will enjoy copyright royalties from early works well into their senior years.
Now songs such as Buffy Sainte-Marie’s "Universal Soldier" -- released 50 years ago this August -- are no longer in danger of entering the public domain.
Yes, it's the much-dreaded "public domain," which has repeatedly traveled several decades back in time to destroy nascent creative efforts. This "severely limited" time frame only extends to sound recordings. Songwriters and composers will continue to be rewarded for their creative efforts for 50 years after they're no longer able to cash royalty checks BECAUSE THEY'RE DEAD.
Music Canada -- the RIAA of The North -- applauds this decision.
In extending the term of copyright in recorded music, Prime Minister Harper and the Government of Canada have demonstrated a real understanding of music’s importance to the Canadian economy. Thank you. We are thrilled to see Canada brought in line with the international standard of 70 years.
Except it's not really a "standard." "Standards" tend to be a bit more static. This "standard" keeps edging up periodically, mainly because of Mickey Mouse, the best unofficial lobbyist the recording and motion picture industries have ever had. It's only a "standard" because the US has kowtowed to the entertainment industry and then passed this bullying along to other countries, using secretive trade agreements and both carrot and stick. A "standard" of $500 weekly protection payments, as "agreed upon" by baseball-bat wielding thugs offering oblique threats would be similarly as "legitimate" as this supposed "international standard."
As Billboard goes on to note, national treasures like Anne Murray, Gordon Lightfoot, Leonard Cohen and Neil Young would have faced the ghastly prospect of (their labels) being unable to exploit recordings from more than fifty years ago without this two-decade protection bump. Well, they likely would have continued to see royalties (life+50), but Music Canada's main patrons, not so much.
This is a win for record labels. It does next to nothing for the names listed above, other than ensure another twenty years of repackaged, decades-old songs -- not exactly the sort of "creative effort" people imagine when they talk about the advantages of copyright protection. All this does is give certain corporations the ability to wring a few more dollars out of recordings made more than 50 years ago. It will have zero impact on creative efforts going forward.
62 Comments | Leave a Comment..
Posted on Techdirt - 26 June 2015 @ 4:08am
As the French government feigned shock and indignation at revelations that a spy agency would spy on world leaders, it went ahead and continued pushing its new surveillance bill through the legislature.
Yet also today, the lower house of France’s legislature, the National Assembly, passed a sweeping surveillance law. The law provides a new framework for the country’s intelligence agencies to expand their surveillance activities. Opponents of the law were quick to mock the government for vigorously protesting being surveilled by one of the country’s closest allies while passing a law that gives its own intelligence services vast powers with what its opponents regard as little oversight. But for those who support the new law, the new revelations of NSA spying showed the urgent need to update the tools available to France’s spies.
This is the hypocrisy inherent
to all countries housing intelligence agencies (which is, pretty much, ALL countries). Government leaders express indignation that their spy partners would use their powers to spy on them, while the agencies under their purview do exactly the same thing. On top of that, concern is rarely expressed about their own citizens, whose data and communications are being swept up not only by foreign intelligence agencies but also by domestic surveillance programs.
That's the thing that will
happen. France will widen its (already-expanded
) surveillance net because a) government
and b) the Charlie Hebdo
massacre. Never let an attack on free speech prevent you from introducing your own chilling effect. And never let a tragedy go to waste. These are hallmark government moves, easily understandable when you realize most governments prize power expansions above all else.
This is the thing that won't happen
France should respond to the U.S.’s “contempt” for its allies by giving Edward Snowden asylum, the leftist French daily newspaper Libération declared on Thursday.
France would send “a clear and useful message to Washington, by granting this bold whistleblower the asylum to which he is entitled,” editor Laurent Joffrin wrote (translated from the French) in an angry editorial titled “Un seul geste” — or “A single gesture.”
While Snowden has applied to several countries for asylum (presumably France is one of them), it's doubtful the French government will follow through with a suggestion from an "angry, leftist" newspaper. As much as it claims to be righteously angered by the latest revelations, it is likely in no hurry to strain its "Five Eyes" relationship with a powerful ally. (It will, however, continue to antagonize
American tech companies with protectionist trade laws and batshit-crazy court decisions
…) If the French government actually issues an asylum invitation to Snowden, I'll order a proper chapeau from some non-Amazonian online retailer and eat it.
18 Comments | Leave a Comment..
Posted on Techdirt - 25 June 2015 @ 8:07am
If you want to know how misguided this lawsuit it, just read the subheadline:
IN a South Australian-first, internet giant Google is being sued by an Adelaide academic who claims she has been defamed by a US-based website it links to.
Do you see the problem here? Health researcher Janice Duffy is obviously intelligent, but she's been trying to hold Google responsible for Ripoff Report's actions for nearly six years now
, draining what's left of her savings and leaving her to crowdfund
her self-represented last stand against Google in the South Australian Supreme Court.
What she claims has happened as a result of the allegedly defamatory posts at Ripoff Reports is genuinely awful.
Dr Duffy said she had been unemployed since she was forced to leave her SA Health position in 2010 after her colleagues learnt of the false claims about her on the website, and she believed she had not been able to find work since because of it.
She said that she had since suffered intense depression and often contemplated suicide because of the situation, but was determined to have Google remove the links and seek compensation through the court action.
But her assertions take a turn for the quixotic when she mentions other options considered and discarded.
Dr Duffy said the website [Ripoff Report] charges people up to $10,000 per page to remove offending material, but she could not afford this as she had spent all of her savings and superannuation fighting Google in court.
I would never encourage someone to cave to borderline extortionate demands -- and Ripoff Reports is far from the paragon of online virtue -- but if she had the money at her disposal and spent it all targeting the company that returns search results
, rather than the company hosting the material or, better yet, the person who wrote the posts, it's tough to be wholly sympathetic.
But she's going to keep fighting, sunk cost fallacy
be damned. What little she does have going for her in this quest to make Google pay for its refusal to delist allegedly defamatory content without a court order is her native country's rather dubious
court decisions and the lack of Section 230-esque protections, which brings the prospect of winning within the realm of imagination.
On her personal blog
, she posits this rhetorical question:
I still cannot figure out why Google would pay three law firms, two barristers and a QC literally hundreds of thousands of dollars rather then just remove the links to the defamtory content. That is all I wanted, for them to be removed. And yet, here I am almost 6 years and a couple of dozen removal notifications later facing a trial.
The answer, of course, is that this case -- while deeply personal to Dr. Duffy -- isn't just about her
. Ceding this ground would allow others less suitably injured to use Google as their own personal reputation management firm. It would allow copyright holders to provide even flimsier justifications for link delisting. And it would open Google up to several similar lawsuits from parties who find it easier to target Google for alleged slights, rather than the authors of defamatory posts. This is why Google's fighting so hard and this is why it really shouldn't be fighting this battle at all.
In its defence, Google claims its activities do not render it “a publisher at all, or in the alternative, the publisher of the matters complained of’’.
The legitimate target(s) of a defamation suit include:
1. The person who uttered the defamatory statements.
All else is simply pray-and-spray litigation. Different laws in different countries will raise or lower
the effectiveness of this praying/spraying, and certain countries are willing to overlook logic
simply to bash large American companies, but in terms of legitimate
lawsuits, the only party that should be listed as a defendant is the defamer. There are discovery routes towards discovering the true identities of anonymous/pseudonymous parties. And yes, this option will increase expenditures. But targeting the biggest, most publicly available names -- no matter how distantly "involved" -- isn't exactly a money saver either, as Janice Duffy has discovered.
26 Comments | Leave a Comment..
Posted on Techdirt - 25 June 2015 @ 4:01am
Loads of politicians continue to skirt the requirements of open records laws by using personal email accounts to handle official business. Others simply implement voluntary/poorly defined data retention policies that ensure nothing of interest will be handed over to the public. Given a short enough retention period, any request can be stonewalled until the autodestruct has rendered responsive files unavailable.
This is what the UK government is doing. Tony Blair, the prime minister behind the implementation of the UK's Freedom of Information laws, has publicly lamented ever inviting the public into the conversation. It now appears they'll still be mostly excluded from any email correspondence. (via slashdot)
Weeks before Tony Blair’s Freedom of Information (FOI) act first came into force, Downing Street adopted a policy of automatically deleting emails more than three months old, resulting in a system described by those who worked under it as ‘dysfunctional’. Campaigners have described the timing of the IT policy as ‘not a coincidence’.
Any emails retained past this point have to be saved by the recipient. The deletion system works so efficiently and thoroughly that some government employees thought they'd been issued faulty devices
One former permanent secretary told the newspaper that he thought there were problems with his BlackBerry when he noticed his emails kept disappearing.
The public might call this system opacity at its finest. But it's apparently not all that popular with those on the inside, either. It's one thing to be on the outside and attempting to peer in with a stack of FOI requests. It's quite another when government employees often experience email-induced early-onset dementia. The "90 Days or it's Deleted!" policy has been referred to as "extremely frustrating," especially when no one's able to verify what was agreed upon in meetings held only three months ago.
On top of 10 Downing Street's disappearing act, there's a concerted effort by other staffers and lawmakers to keep emails out of the public's hands. Some delete theirs almost immediately after reading. Others avoid discussing anything "interesting" in official emails.
The problem obviously traces back to Blair's hesitant implementation of the law. A promise of new openness was immediately undercut by a deliberate email retention policy change. When the leadership openly regrets and resents new avenues of accountability, the rank-and-file will only be more than happy to follow. In his memoirs, Blair called the FOI law a "weapon" in the hands of "journalists," showing just how deep-seated the government's disdain for openness actually is.
There's not a government on the planet that welcomes the scrutiny of the public. Fortunately, some legislators have recognized this as an unhealthy attitude. The battle over the freedom of information didn't end with FOI laws. It was only the beginning. The UK government -- like ours -- still has plenty of "weapons" of its own to deploy in the interest of opacity. Destruction of "retention" policies, easily-abused exemptions, stonewalling, disingenuous search efforts, exorbitant fulfillment fees -- all of these are the tools the government uses to remain in its natural vampiric state of living off the income of others while recoiling from the sunlight.
9 Comments | Leave a Comment..
Posted on Techdirt - 25 June 2015 @ 12:59am
No one seriously believed it was just US law enforcement agencies using repurposed war gear to track cellphone users, did they?
An investigation by the British news channel Sky News claims to have found evidence of fake cellphone towers operating in London and elsewhere that acts similarly to devices known as IMSI catchers, the most famous of which is manufactured under the brand name StingRay.
The results of Sky News' GDMK Cryptophone-enabled cell tower wardriving can be found in this file
, which supposedly uncovered more than 20 cell tower imposters in London alone in a three-week period. We've still got the UK beat on nomenclature, though. IMSI catchers are pretty much always referred to as "stingrays
" (actually a product name trademarked by manufacturer Harris Corporation). Due to the lack of official acknowledgement or FOA-ed documents, we're stuck with the clunky "ICT hardware," as produced by manufacturer Datong.*
*Time to crowdsource a better British nickname. We honestly can't be using "ICT hardware" in the future when further details inevitably leak out. You'd think the Brits would already have this handled, considering the split development of the language (American/English) has necessitated a need for an English-to-English dictionary at this point.
Here's what officials don't
have to say about the Sky News revelations, which follows on the heels of previous investigations by The Guardian
and the Times of London
. The only thing on record -- outside of the inevitable refusal to confirm or deny -- is this statement, which implies the public's right to know what law enforcement is up to falls far, far behind law enforcement's need to bust bad guys.
“We’re not going to talk about it,” Met official Bernard Hogan-Howe told Sky News when asked for comment. “The only people who benefit [from a comment] are the other side, and I see no reason in giving away that sort of thing."
Of course. And then there's this "reassurance," which only states that whatever the police are doing with these devices, it's certainly not as bad as the worst case scenarios envisioned by the most overactively-imaginative.
“If people imagine that we’ve got the resources to do as much intrusion as they worry about, I would reassure them that’s impossible,” Hogan-Howe added without providing any evidence to support his claim.
But that's OK, because what we do
know about IMSI catchers should be scary enough. They force phones
to the "dumbest" connection -- 2G -- to better facilitate the interception of calls and texts. They indiscriminately hoover up all call data in the area and can often disrupt normal phone service. Their exisitence is routinely hidden
from courts, judges and criminal defendants. And they've been deployed thousands of times by hundreds of law enforcement agencies without a warrant
These are all reason the public should be made aware of the purchase and use of these devices. But because usage isn't as "intrusive" as Hogan-Howe fails to specify it could
be, British citizens are apparently supposed to believe everything is perfectly fine.
19 Comments | Leave a Comment..
Posted on Techdirt - 24 June 2015 @ 2:44pm
Pawn shops -- like scrap metal dealers and junkyards -- are "closely regulated" businesses. What this means is they are compelled to track acquisition information and make it available for law enforcement to view without a warrant. The nexus of these businesses to criminal activity is undeniable. But that doesn't necessarily mean everything law enforcement demands, it gets. Some demands exceed the diminished Fourth Amendment protections afforded to these businesses.
The "closely regulated" language comes from the US Supreme Court. In a decision affecting a New York junkyard owner, the Supreme Court found that:
A business owner's expectation of privacy in commercial property is attenuated with respect to commercial property employed in a "closely regulated" industry. Where the owner's privacy interests are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises, if it meets certain criteria, is reasonable within the meaning of the Fourth Amendment.
A decision in the New York Supreme Court (People v. Keta
) seemingly went against the US Supreme Court's precedent. It narrowed the broad exceptions to the Fourth Amendment somewhat, with the presiding judge (Vito J. Titone) noting
"Our responsibility in the judicial branch is not to respond to these temporary crises or to shape the law so as to advance the goals of law enforcement, but rather to stand as a fixed citadel for Constitutional rights."
But "advancing the goals of law enforcement" still seems to be the goal. Officers are free to inspect acquisition records without a warrant, as well as seize stolen goods in plain sight, but most other actions (including searches of safes, etc.) still require additional paperwork.
In order to expedite police inspections of pawnbrokers, New York legislators passed a law making it even easier for law enforcement check in on "closely regulated" businesses
RCNY §21-03(a) and (b), §21-04(a) and (c), §21-07(a)-(f), and § 21-08, promulgated as a result of Local Law No. 149 require pawnbrokers and dealers in second-hand merchandise to create electronic transaction records and upload the same to a web-based electronic transfer service designated by the NYPD known as Leads Online, who then makes those records available to the NYPD.
Because this law compels (sort of…) the upload of information to a database that can be accessed at will by law enforcement and other entities, it does not conform
to the standards set by the NY Supreme Court's Keta
[T]he foregoing statutes fail to prescribe limits for the review of the records required to be disclosed and, in fact, in requiring the daily disclosure of those records seem to vest with the NYPD the unbridled discretion which even the court in Glenwood TV, Inc., would invalidate a statute authorizing warrantless searches (103 AD2d, 322, 330).
Specifically, at this stage, it is hard to fathom how the foregoing statutes - bereft of any standards on the frequency of searches, setting virtually no limit on how said searches will be conducted and thus, conferring unfettered discretion upon the defendants suffer from the very afflictions the court in Keta held afflicted VTL § 415-a(5) - can, in light of their facial unconstitutionality born by this record, be constitutionally applied.
The court mentions the "means to an end
" approach the NYPD is rather fond of. Simply having on-demand, warrantless access to on-site inspection of "closely regulated" businesses' records wasn't enough. It wanted to enjoy the same privileges without leaving the office. Now, these "inspections" -- along with others permitted under the same set of statutes -- have been halted until further notice
This compelled database of acquisition information is the centerpiece of another lawsuit
against the city and the NYPD. It appears from the allegations made in this suit that the NYPD expresses a certain irritation
with those that don't opt-in to the online database. (The law
requires creation and storage of electronic records, but does not actually mandate the use of Leads Online by affected businesses, stating only that "such electronic record may include real-time sharing or accessing of such records in an electronic format and/or through use of an internet website designated by the police commissioner
Plaintiff here alleges that Defendants have “effectively singled out Gem from other pawnbrokers and secondhand dealers and have done so with malice and bad faith.” (Am. Compl. ¶ 152.) Plaintiff further alleges that pawn brokers who choose not to use Leads Online are subject to additional onsite inspections for “administrative purposes,” and that Plaintiff has experienced continual visits to its stores, warrantless searches, holds on jewelry, criminal summonses and over all harassment. (Id. ¶¶ 36–133.) Defendants raise no argument as to this element of Plaintiff’s selective enforcement equal protection claim, instead relying on the fact that the NYPD is permitted to perform administrative inspections. The Court finds that Plaintiff’s detailed description in its Amended Complaint of the actions taken beyond mere administrative inspections, including various in-store visits from the NYPD, statements made to Gem employees, subsequent requests for jewelry holds, and the seven misdemeanor summons received, (see id.), are adequate to demonstrate at the pleadings stage a malicious or bad faith intent to injure Plaintiff. The Court therefore finds that Plaintiff has stated a plausible claim for violation of the Equal Protection Clause and Defendants’ motion to dismiss is, therefore, denied.
This lawsuit was filed before Local Law 149 was passed and enacted, suggesting there was a pre-legislation push by the NYPD to move these records to an online database. As of this point, the lawsuit is still ongoing
, having survived the city's motion to dismiss.
cited in the lawsuit don't specify anything more than the sort of records to be maintained. In accordance with the new law, these records are to be maintained electronically, but nothing specifically mandates the use of an online database.
As the court sees it here, this demand to participate in the online collection of these records -- which can be perused at the sole discretion of law enforcement officers and others with access to the database -- falls dangerously close to being a "general warrant." Compelled production of records during periodic inspections and/or suspicion of illegal activity is one thing. Providing at-will "inspections" with no corresponding guidelines turns "close regulation" into a prime fishing spot for law enforcement, who will no longer be participating in periodic inspections and searches, but rather trolling databases simply because they have unfettered access to the information.
Obviously, this has its parallel in the recent incident involving Motel 6's faxing
of guest information to local law enforcement nightly. Motels and hotels are businesses that are subject to routine inspection of collected records, but nothing about this sort of regulation demands proactive measures on the part of the businesses involved, other than the collection and maintenance of the required records. The rest is dependent on law enforcement not abusing these privileges, which wander outside the protections of the Fourth Amendment -- supposedly in the "public interest," i.e. fighting crime.
The necessary limitations -- and there are only a few -- are subverted by instantly-accessed, central collections of this information. The Supreme Court may have lowered the Fourth Amendment standards for these businesses, but New York's highest court stills sees at least a minimal amount of privacy implications in this sort of regulation. These are in place to help law enforcement combat theft, but these noble ends are not a justification for "by any means necessary" approaches.
Read More | 3 Comments | Leave a Comment..
Posted on Techdirt - 24 June 2015 @ 12:38pm
National security apparently means "securing" the nation at the expense of citizens' security. New Snowden documents published by The Intercept show massive amounts of dicking around in the coding of popular anti-virus software by the NSA and GCHQ. The list of antivirus products not affected would be much, much shorter than a list of those that have been.
Much of what listed here involves the NSA and GCHQ monitoring threats reported to these antivirus makers (by intercepting email messages, naturally), obviously in hopes of finding something temporarily exploitable. But in other cases, the efforts went much, much deeper. The GCHQ obtained a warrant
to reverse engineer Kapersky products because it felt the company's software was "obstructing" its hacking attempts.
“Personal security products such as the Russian anti-virus software Kaspersky continue to pose a challenge to GCHQ’s CNE [Computer Network Exploitation] capability and SRE is essential in order to be able to exploit such software and to prevent detection of our activities,” the warrant renewal request said. “Examination of Kaspersky and other such products continues.” The warrant renewal request also states that GCHQ reverse engineers anti-virus programs to assess their fitness for use by government agencies.
Not only did the GCHQ seek permission to tear apart a legitimate security product for its own ends, but it also asked for an exception to UK copyright law in order to do so.
GCHQ’s success as an intelligence agency is founded on technical knowledge and creativity. In particular this may involve modifying commercially available software to enable interception, decryption and other related tasks, or “reverse engineering” software (this means to convert it from machine readable code into the original format, which is then comprehensible to a person). These actions, and others necessary to understand how the software works, may represent an infringement of copyright. The interference may also be contrary to, or inconsistent with, the provisions of any licensing agreement between GCHQ and the owners of the rights in the software.
Recognizing this could potentially cause a problem if its efforts were discovered, GCHQ explicitly asked that it be granted permission to engage in copyright infringement in the name of national security.
There is a risk that in the unlikely event of a challenge by the copyright owner or licensor, the Courts would, in the absence of a legal authorisation, hold that such activity was unlawful and amounted to a copyright infringement or breach of contract. The purpose of this warrant is to provide authorisation for all continuing activities which involve interference with copyright or licensed software, but which cannot be said to fall within any other specific authorisation held by GCHQ and which are done without the permission of the owner.
In other words, GCHQ doesn't have specific authorization to violate copyrights or licensing agreements, but for this particular effort, the warrant would act as a blanket permission slip to engage in this illegal activity. And, in doing so, it stretched an intelligence law to cover its violation of intellectual property laws
GCHQ obtained a warrant for reverse engineering under a section of British intelligence law that does not explicitly authorize — and had apparently never been used to authorize — the sort of copyright infringement GCHQ believed was necessary to conduct such activity.
The spy agency instead relied on the Intelligence Services Commissioner to let it use a law pertaining only to property and “wireless telegraphy,” a law that had never been applied to intellectual property, according to GCHQ’s own warrant renewal application. Eric King, deputy director of U.K. surveillance watchdog Privacy International said, after being shown documents related to the warrant, “The secret reinterpretation of powers, in entirely novel ways, that have not been tested in adversarial court processes, is everything that is wrong with how GCHQ is using their legal powers.”
On top of that, the type of warrant it obtained was only to be used for foreign surveillance, but supporting documentation notes GCHQ would also be performing its reverse engineering to support "police operations" and the domestically-focused National Technical Assistance Centre.
When it comes to national security efforts, laws just don't apply, it would appear. The NSA and GCHQ's efforts are completely indistinguishable from those of cybercriminals. While these agencies may have "good" on their side -- at least in terms of not wishing specific harm to non-targets -- the end result is the same: a less secure computing world.
Read More | 36 Comments | Leave a Comment..
Posted on Techdirt - 24 June 2015 @ 6:01am
Canada's civil liberties-trampling anti-terrorism law (C-51) only recently passed, but authorities have been nothing if not proactive in combating the threat posed by radicalized citizens. Co-opting US law enforcement's belief that supportive words = 'material support,' the Royal Canadian Mounted Police (RCMP) raided the home of an "extremist," arresting him and seizing a bunch of his computer equipment.
Harun Abdurahman, known as Aaron Driver to his father, apparently came under surveillance after expressing his "extreme views" during an interview with a Canadian newspaper. His father, a career member of the Canadian Armed Forces, seems somewhat dismayed by his government's actions.
"They told me he was on the watch list. He was considered a radical extremist and 'we hope he doesn't go to terrorist,'" said the man's father in an exclusive interview with CBC News in March. The CBC is not identifying the father.
"Here you've got your national security force, if you will, monitoring your child," he said. "How would you react to something like that? I didn't know what to say."
Driver/Abdurahman may be C-51's first test case/victim, even though his surveillance and arrest occurred before
the law was passed. But if the aftermath of this arrest is any indication, Canadians who articulate "extreme" views have a lot more reasons to fear their government than their government has reason to fear them.
After spending a week in jail, Driver has been released. He has not
been charged, but federal authorities are treating him as though he just served a lengthy prison sentence for an incredibly heinous crime. There are 25 stipulations attached to his release (once again, not charged with any crime
) which will severely limit Driver's ability to live anything approaching a normal life
Here are just a few of the restrictions imposed by authorities:
- Wear an electronic monitoring device around the clock.
- Take part in "religious counselling" and forward the counsellor's name to RCMP.
- Follow an overnight curfew (from 9 p.m. to 6 a.m. daily) and stay at his home in Winnipeg's Charleswood neighbourhood. The home was raided earlier this month.
- Surrender any passports he has and not apply for any passport from Canada or any other country.
- Not possess any desktop, laptop or tablet computer. Any cellphone he has must be approved by RCMP, and the phone number must be submitted to police.
- Provide passwords and access to his cellphone at the RCMP's request, with "such requests not to exceed two times per month."
- Stay away from social media websites, including Facebook, Twitter, Kik, Surespot and Telegram encrypted chat.
- Have "no contact or communication directly or indirectly with any member of ISIS, ISIL, Islamic State of Iraq and Syria and Al Qaida in Iraq." He must also not possess anything bearing the logos or names of any of those groups.
The government believes these are reasonable restrictions to place on a person who has not been charged with nor convicted of any criminal activity. Federal prosecutor Ian Mahon sees these stipulations -- which are far more severe than those that convicted criminals face -- as nothing more than an appropriate level of quid pro quo.
"If he is willing to enter into certain conditions, then there's no reason to keep him in custody," Mahon told CBC News on Monday.
How about "if he hasn't been charged with any crimes, then there's no reason to keep him in custody?" That's sort of how criminal custody works. Apparently, plenty of exceptions will be made for someone deemed dangerous enough to justify a raid involving several officers loaded in tactical gear and the seizure of electronics, but not dangerous enough to be charged and put on trial. This is the Canadian government aggressively chilling speech it doesn't like and nothing more.
And for all the supposed danger Driver posed, the police didn't seem to exercise much care during its weeks of surveillance.
Neighbours say undercover officers have been watching the home in the city's southwestern neighbourhood of Charleswood for months.
If the RCMP truly believed this was a dangerous individual, it would have done better obscuring its presence. But all it was looking for was an excuse to bust someone for the nonexistent crime of supporting unpopular views. It openly surveilled a Canadian citizen, held him for a week without charge and then only agreed to release the uncharged
Driver if he would agree to further round-the-clock scrutiny from authorities so concerned about his online comments, they couldn't even find anything to charge him with.
70 Comments | Leave a Comment..
Posted on Techdirt - 24 June 2015 @ 3:58am
More potential copyright insanity from the European Union. Some positive moves have been made, but they often seem to be offset by extremely awful ideas. Photographing public structures could soon become copyright infringement. At this point, there's no unified "freedom of panorama" across European countries. Some recognize this as a right inherent to citizens. Others feel any photographic reproductions of structures in public spaces are a violation of the creators' rights. (via Boing Boing)
A more logical approach to unification was proposed first in a copyright reform report written by Pirate Party representative Julia Reda.
The [copyright reform] report had originally suggested that the current disparity in laws on freedom of panorama across Europe (see map) be harmonised by proposing a unified standard allowing images of works that are permanently located in public places.
Perhaps feeling that anyone who self-identifies as a "pirate" is likely untrustworthy, the EU Parliament's Legal Affairs Committee has rewritten this proposal, going in the opposite direction.
16. Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them
Instead of defaulting for the more logical assessment that only very limited protections can be extended to buildings and other structures fully visible to the public and erected in publicly-accessible areas, the Committee has extended "permission culture
" to include objects not normally considered to be inaccessible to the public by camera/drawing/etc. because they're accessible to the public in all other respects.
Rather than allowing people to take and publish their own photographs of buildings and monuments in public places—as celebrated in the annual Wiki Loves Monuments campaign, as well as many many books with author-supplied photographs—full permissions, clearances, royalties, and/or use of authorised images would be required for videos, photographs, paintings or drawings with any potential commercial use. (Wikipedia does not accept images unless they can be re-used for any purpose.)
This would end a long-standing tradition in many countries that the skyline and the public scene should belong to everybody; in the UK and Ireland, for example, this goes all the way back to the Copyright Act 1911, [which first set down copyright exceptions in statute law, and is currently reflected in section 62 of the UK Copyright Designs and Patents Act 1988, and section 93 of the Irish Copyright and Related Rights Act 2000.
The status of existing books published without such clearances would become unclear; most Wikipedia images depicting public art would be lost; and it would become very much more difficult and more expensive to publish future books comprehensively illustrating architecture and public art (or even artists' sketchbooks depicting them).
You can already see the effects of the legal disparity in regards to the "right of panorama" in effect at Wikipedia. Its page for the Atomium
, a structure created by André Waterkeyn for the 1958 World's Fair in Brussels, contains a censored image, thanks to Belgium's copyright laws.
Waterkeyn's family, aided by royalty collection agency SABAM, has pursued "unauthorized" photographs of the outdoor structure. Despite its actions, there are plenty of images of the Atomium floating around the internet. But you won't find one on its Wikipedia page. The next commercial use of depictions of this outdoor structure won't be happening until 2076, if EU's copyright laws aren't unified into something less completely ridiculous.
It's not just limited to Europe, although that's where the next battle is taking place. This same sort of copyright overreach can be witnessed in photos submitted to Wikimedia Commons which have been edited due to complaints from entities residing in countries without "freedom of panorama" protections. More requests for deletion/editing are cataloged here.
It will be about three months before the EU begins debating the proposed copyright reforms. Those living in the countries possibly affected by a "unified" ruling in favor of this clause are encouraged to contact their representatives.
If you're an EU citizen, for maximum impact please contact each of your local MEPs and ask them to communicate your concern to the MEP responsible for co-ordinating their group position on the matter—in the UK, for example, this would be Sajjad Karim (on-side?) for the Conservatives, or Mary Honeyball (wobbly?) for Labour—and ask them to ask the coordinating MEP to confirm that the group will be seeking to remove this clause as it currently stands from the report, and defend the full right to make use of photographs taken in public places, in this case the existing UK law. In this way you'll get the chance to learn what the group's detailed current position is (which you may then find you need to work to persuade your own MEP away from). The coordinating MEP will also thus be made aware of the full range of concerns being expressed to the group, and may be more likely to answer a request forwarded by a fellow MEP than a direct approach.
45 Comments | Leave a Comment..
Posted on Techdirt - 23 June 2015 @ 2:47pm
More government malfeasance is being alleged in the all-over-but-the-Genius-Bar-employment prosecution of whistleblower Thomas Drake. Documents directly related to his whistleblowing efforts -- ones that would possibly have helped him fight the administration's efforts to punish him for supposedly-protected activities -- were allegedly destroyed by the Department of Defense.
Two government watchdog agencies are investigating whether the Pentagon inspector general destroyed evidence improperly during the high-profile leak investigation of former National Security Agency senior official Thomas Drake.
“DOD OIG’s handling of documents . . . is within the scope of an ongoing inquiry by the Office of Special Counsel (OSC),” Raymond Hulser, the chief of the Justice Department’s Public Integrity Section, wrote to U.S. Magistrate Judge Stephanie Gallagher in a letter dated June 11. “In the event that OSC finds evidence of criminal conduct during the course of its work, it will refer that evidence to the Department of Justice for appropriate action.”
Succinctly put, the "proper channels" for whistleblowing were used by Thomas Drake, who was prosecuted under the Espionage Act. The missing files are related to his attempt to utilize those proper channels. Obviously, following procedures can't really be considered "espionage." The government's case against Drake fell apart
, resulting in Drake pleading guilty
to a single "unauthorized computer use" charge. But the case went on long enough that it drained Drake's personal savings and his revoked security clearance pretty much barred him from further government employment, leading to his current position as an employee of an Apple store
The government’s handling of documents first became an issue during the evidence-gathering stage of Drake’s prosecution, when his criminal defense lawyers sought records related to his whistleblower cooperation with the Pentagon inspector general’s office in order to defend him.
At the time, the Justice Department told the judge that most of the “hard copy documents” related to the Pentagon inspector general’s office audit that Drake had cooperated with couldn’t be provided to the defense because they’d been destroyed “pursuant to a standard document destruction policy.”
Drake’s current lawyers, who didn’t represent him in the criminal case, told the court in a letter in April that they learned otherwise while representing Drake in his recent whistleblower claim against the NSA.
Drake’s lawyers wrote that the Pentagon inspector general’s office destroyed the documents “outside of normal policy and to impede . . . the criminal case.”
Even if these documents do somehow materialize, there's not much they can do other than vindicate Drake's actions. It won't rebuild his personal finances or return him to his former government position. In fact, even if evidence of wrongdoing is uncovered, it's likely to result in no meaningful actions. The court itself can't do much more than refer the findings to the Department of Justice, which has already noted that it is looking into these allegations. But to what end? Proof of deliberate destruction of evidence is the sort thing routinely wrist-slapped by the DOJ and the administration, both of which will probably allow the DOD to investigate itself and offer various plans to prevent future malfeasance, should it somehow manage not to clear itself
of any wrongdoing.
If evidence of document destruction comes to light, the only practical purpose it will serve is to further illustrate how rigged
the "justice" card game is -- what with prosecutors playing with incomplete, marked decks provided to them by "victims" of government whistleblowing.
14 Comments | Leave a Comment..
Posted on Techdirt - 22 June 2015 @ 9:02pm
The FISA Court has released its opinion on the interim Section 215 collection activities. The government argued that it was owed six months of uninterrupted, plain vanilla Patriot Act collections, as provided for in the USA Freedom Act. While the new law significantly alters the NSA's collection methods, it was given 180 days to transition to an off-site "collection," housed by telcos and responsive only to targeted searches.
But a few points were still unclear. First, Section 215 did actually expire on May 31st. Only the passage of the USA Freedom Act prevented it from going completely dead, and even so, it's no longer a bulk collection. Second, the Second Circuit Court found the collection was illegal under current law. This finding has very limited jurisdiction, of course, and the appeals court has no control over the FISA Court. The FISC can consider this opinion (and it has), but the question of the legality of this bulk collection is still mostly unsettled.
Third, the USA Freedom Act provides for the appointment of five people to argue on behalf of the public and potential surveillance targets. The new order tackles this new stipulation… sort of. First of all, however, the FISA Court has the unenviable task of sorting out the numerous conflicts caused by the sunset of Section 215, and its almost immediate sunrise in mutated form, thanks to the provisions of the passed-at-the-last-minute USA Freedom Act.
Julian Sanchez at Just Security points out the FISC had a couple of options when interpreting the new law, the old law and various other legal questions.
Since reading USA Freedom as amending the post-sunset law would result in legal gibberish, in other words, the FISC reads the law as doing what Congress very obviously intended for it to do, not what a hyper-literal evil genie might read it as doing.
The opinion appears to authorize old-school Section 215 bulk collecting during the 180-day winddown
. [As pointed out by Julian Sanchez
, the opinion "pointedly" does not
authorize this. What it does is provide for the collection as amended by the USA Freedom Act
, which obviously isn't the same thing, and isn't how the government has interpreted
the 180-day transition period.) What's more interesting is the order's discussion of the brand new advocates that will finally bring an adversarial presence to the court. Sanchez notes the FISC could have simply ignored this stipulation until after
the 6-month temporary reauthorization was completed and USA Freedom's version of Section 215 kicked in. But it didn't. However, that doesn't exactly mean it's welcoming the additional arguments and scrutiny. In this opinion, the FISC rubberstamps itself
First, it understatedly notes that things are all kinds of screwed up at the moment.
Although the statutory framework is somewhat tangled, the choice before the court is actually very clear and stark: as described below, it can apply well-established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all of its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts.
Having issued its mildly derogatory assessment of Schrödinger's Bulk Collection, the FISA Court moves on to declare that, despite the multiple legal entanglements and legislative changes, this particular request is so straightforward -- and its precedent sufficiently clear -- there's no need to ask a second opinion.
Under the circumstances, it does not appear that the assistance of an amicus curiae would materially assist the court in making that decision. The court therefore finds that it is "not appropriate" to appoint an amicus curiae in this matter, within the meaning of 50 U.S.C. §1803(i)(2)(A).
This would, of course, be the statute cited by the Second Circuit Court as not
allowing for the bulk collection of records, but whatever. In this particular case, the FISA Court's assessment is likely correct. If it's expected to see this tangled mess the way legislators intended, rather than as a "hyper-literal evil genie," the government is free to collect bulk records for the next six months while transitioning to the new process. Anyone arguing on behalf of the public will just have to wait until the USA Freedom version goes into effect and attack any deficiencies then. As for the appeals court decision, it has very little bearing now that the Section 215 program is on the way to retirement. The passage of USA Freedom now provides for the legal authority needed to continue this collection, which will no longer be in bulk and much more likely to adhere to the Section 1803 provisions.
Sanchez points out an interesting omission -- if it is an omission -- that possibly indicates the government won't even be performing its long-running bulk collection for the next six months. As he notes, no additional order authorizing normal bulk collection has been issued. In the wake of the Snowden leaks, the FISA Court has been pretty punctual with the public release
of authorization orders, but there's no order attached to this
Because the FISC has declined to take the 180-day escape hatch, and because they cannot plausibly invoke the “no brainer” exception, the court does intend to appoint an amicus to brief the question of whether bulk collection can continue during the six month transition window. Since it will take time to find an appropriate party, and there’s no indication of any further bulk order being issued as yet, it seems reasonable to infer that, at present, the bulk program remains suspended. Alternatively, the FISC may have issued a temporary order authorizing resumption of bulk collection for some quite short period, without an opinion, while it looks for an amicus and takes time to consider their arguments. If they had in fact already issued an opinion and order reauthorizing bulk collection, after all, it would be quite strange to have issued a memorandum opinion dealing only with this narrow question, rather than bundling them all together.
If so, this would be the first time since 2009
that the bulk collection has been suspended for any length of time, which is significant on its own.
Read More | 7 Comments | Leave a Comment..
Posted on Techdirt - 22 June 2015 @ 1:40pm
Mississippi drug warriors had their eye on nearly $300,000 in "forfeited" funds but threw it all away by issuing one of the most deficient search warrants ever. It's not that it was loaded with errors or questionable probable cause assertions. It's that it omitted perhaps the single most important element of a search warrant -- the location being searched.
Appellant Mississippi Bureau of Narcotics (hereinafter “the State”) had a search warrant signed and executed at the home of Bobby Ray Canada and Beverly Turman. Section one of the search warrant, denoting the location for the search to be executed, was completely blank. The State collected, among other things, $293,720 from the home, and the State then filed a civil forfeiture action. Canada and Turman filed a summary judgment motion, arguing that the search warrant was blank and void, and therefore, the search violated their Fourth Amendment Rights. The trial judge granted the summary judgment motion. The State appealed. We hold the summary judgment motion to be well taken and affirm.
The State didn't deny that its officer had served a warrant with a blank space where the location to be searched should have been. But it claimed it had supporting documentation that made this omission irrelevant.
The State responded, arguing that the proceedings should be stayed because the affidavit and the underlying facts and circumstances sheet, listing the location of the search, were sealed by the State for other investigations, and they were needed to show the validity of the search warrant in the instant case. The State alleged that Judge Brown had seen and signed the affidavit and the underlying facts and circumstances sheet when he signed the search warrant. After the search warrant was signed – but before the search warrant was executed – both documents were sealed.
So the State briefly unsealed the documents to show the trial judge that, yes, the warrant was clearly and significantly deficient, but look, we wrote down the location in other places. The trial judge remained unimpressed by the officer's inability to fill out a search warrant properly. Summary judgement was granted and the State appealed, arguing that the warrant was still valid (really?) and even if it wasn't, the "good faith" exception applied.
The State’s argument hinges on the incorporation of the affidavit and the underlying facts and circumstances sheet. Yet the record before the Court contains neither the affidavit nor the underlying facts and circumstances sheet. In effect, the State has asked us to make a ruling on something that has not even been presented to us.
Despite the State's failure to produce these documents, the appeals court still entertained the government's argument. Even while pretending to have the relevant information in front of it, the court still found the government's arguments weak and unappealing.
Based on a plain reading of both the Mississippi and United States Constitutions, the State’s case fails; the warrant is void and unenforceable on its face. 5 ¶11. Further, in Miller v. State, 93 So. 2 (Miss. 1922), the Court faced a similar issue where one section of a search warrant was completely blank. In Miller, the search warrant was blank as to the name of the person to be searched and the place to be searched at the time of its execution. Id. at 2. After the warrant was executed, the proper person and place was filled in on the warrant. The Court held that “[a] blank warrant or a blank affidavit amounts to nothing."
As to the so-called "technical error" that resulted in the lack of a very important search warrant element, the court finds that the very malleable "good faith"
exception cannot be stretched to cover this omission.
A warrant with a blank section cannot even rise to the level of “failing to particularize” a place. It is clearly, facially defective, and the whole premise of the good faith exception would be negated if we were to find the exception applies. Thus, we hold that the good faith exception does not apply, and the instant issue is, therefore, moot.
The Fourth Amendment wasn't erected to be an irritant to law enforcement and a criminal's best friend. It was put in place to protect citizens from government officials and employees who hold vastly more power than those whose lives they intrude on in the course of their duties. Walking around with a warrant that doesn't specify where or what is to be searched is no better than simply demanding random homeowners open their doors and allow the police to root around in their belongings. That's simply not allowed. If the government wants to breach the privacy of someone's house, it needs the proper paperwork. This clearly wasn't proper and this officer's omission -- although likely not intentional -- gave the warrant no more power than a random page torn from a notebook.
In doing so, the State just "lost" nearly $300,000. Given the state of asset forfeiture
, it would be clearly erroneous to equate large amounts of cash with guilt, despite our government's proclivity for doing exactly that. The perverted incentives of asset forfeiture programs may have led to this glaring omission, as the drug task force named in the filing appears to have rushed through filling out its warrant in its haste to crack open a private residence and avail itself of the sweet, sweet cash it expected to find waiting inside.
Read More | 32 Comments | Leave a Comment..
Posted on Techdirt - 22 June 2015 @ 12:42pm
Concerns over pervasive surveillance are often shrugged off with "ends justify the means" rationalizing. If it's effective, it must be worth doing. But as more information on domestic surveillance programs surfaces, we're finding out that not only are they intrusive, but they're also mostly useless.
TrapWire -- software produced by Stratfor and used by security and law enforcement agencies around the world -- utilizes facial and pattern recognition technology to analyze CCTV footage for "pre-attack patterns," meshing this information with other law enforcement databases, including online submissions from citizens reporting "suspicious behavior."
The Texas Department of Public Safety utilizes TrapWire and has touted its success to multiple entities over the past several months.
According to an email from [Texas DPS spokesman Tom] Vinger to DMN columnist Dave Lieber, TrapWire in Texas “has resulted in, 21 patterns identified (12 with connections outside Texas); 44 arrests made; 36 investigations launched; 14 sent to a Joint Terrorism Task Force, ICE, other federal agencies.”
The 44 arrests claim is also part of an email to the agency’s lobbyists from Robert Bodisch, deputy director of Homeland Security & Services at DPS, which was reported by Lieber/DMN Watchdog in a May report.
But when faced with FOIA requests for data backing up this claim, the DPS was unable to find anything to corroborate its public assertions.
The Texas Department of Public Safety has backed off its statement that the citizen monitoring program TrapWire has resulted in 44 arrests after a Texas Watchdog inquiry, the second time since May the department has publicly misrepresented the agency’s accomplishments.
Instead, the department could not directly link a single arrest by the DPS to the program.
Despite this being repeated to journalists and lobbyists, the DPS is now claiming its "44 arrests" claim was just an honest mistake.
“In attempting to answer a question in good faith, there was an internal miscommunication that led to misinterpretation of the arrest data set — and as a result, the arrest number was not properly qualified,” DPS spokesman Tom Vinger said in a Thursday email to Texas Watchdog. “We are unable to state that the arrest is directly linked to a specific suspicious activity report.”
Even in bogus public statements, a law enforcement agency wants the benefit of the "good faith" exception. It still wants people to believe TrapWire is a beneficial law enforcement tool, despite the lack of evidence. Vinger's "clarification" isn't the only non-apology the DPS has to offer for its misleading claims. It also has this bit of hedging, which only serves to portray TrapWire as being as integral to law enforcement investigations as, say, a local police blotter.
The Thursday statement admitted there were no arrest records, but rather the “arrest number illustrates that individuals who have been arrested due to a criminal act were also reported in the TrapWire program.”
So, expensive software and multiple databases managed to result in some arrests. Or, rather, attempted to garner post facto credit for criminals that had already been arrested. As a nexus for law enforcement leads, TrapWire -- at least in the hands of the Texas DPS -- appears to be no more useful than a phone book, another "database" where arrested individuals might be listed.
15 Comments | Leave a Comment..
Posted on Techdirt - 22 June 2015 @ 11:38am
A smallish victory for Fourth Amendment protections comes today as the Supreme Court has struck down a Los Angeles ordinance that allowed police warrantless, on-demand access to hotel/motel guest records. This win is very limited, and the court's discussion of the issue at hand pertains solely to the Los Angeles statute and doesn't address the potential unconstitutionality of other, similar records sweeps granted by the Third Party Doctrine. Nor does it address the potential Fourth Amendment violations inherent to "pervasive regulation" of certain businesses -- like the records legally required to be collected and handed over on demand to law enforcement by entities like pawn shops, junk yards and firearms dealers.
The 5-4 decision focuses on the specifics of the Los Angeles statute, and it's those specifics that are problematic. The court finds that merely accessing these records without a warrant isn't necessarily unconstitutional, but rather that any demand for records cannot be challenged and that any challenging party can be fined or jailed.
The questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review.
Because there is no reasonable avenue to challenge these searches, business owners are really only given one option: comply. This has the potential to lead to abusive behavior.
A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara, 387 U. S., at 533 (holding that “broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty”). Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril.
In the end, there's no warrant requirement. All that's needed is for the city's statute to provide an avenue for searches to be challenged. The court suggests administrative subpoenas but notes that it could take any form that similarly allows business owners to challenge the records search before
the search occurs and helps prevent police from using the statute as a "pretext for harassment."
The dissent, written by Justice Scalia, claims that even this very narrow decision is too expansive. Scalia argues that the new requirement places an undue burden on law enforcement officers by potentially forcing them to obtain ex parte search warrants for every
motel they visit, simply because they won't know in advance which owners will challenge the search. In a city with over 2,000 hotels, the dissent sees this as unreasonable and untenable.
The prevailing opinion refers to the dissent's fears as "overblown," stating that a vast majority of businesses will still be compliant with law enforcement requests. In both Scalia's and the government's eyes, any alteration of the existing statute can only lead to a majority of motel owners refusing instant access to registry information, but this narrow view turns rare exceptions into the rule and fails to consider the numerous options still available to law enforcement to perform unchallenged searches.
The decision doesn't demand warrants or subpoenas for every motel registry check. It only orders these measures be in place for when they are needed, giving business owners the chance to challenge warrantless searches without facing jail time or fines. This is more consistent with the Fourth Amendment, and it still provides the LAPD plenty of leeway to perform motel spot checks without worrying about extra paperwork. It's a small, extremely narrow win for the Fourth Amendment rights of Los Angeles motel owners, but beyond that, it's of very limited use elsewhere.
Read More | 15 Comments | Leave a Comment..
Posted on Techdirt - 22 June 2015 @ 9:18am
It wasn't until late 2014 before the UK government finally (officially) allowed its citizens to make personal copies of their purchased music and movies. It was an uphill battle against copyright-reliant industries to bring the UK in line with exceptions available in other European countries. The recording industry threatened to fight this new exception in court, because of course it did.
So, it sued. And it got its way. It somehow convinced the UK High Court that people making copies of music they've purchased causes the industry harm. The resulting opinion is so lacking in logic and so thoroughly divorced from reality that the EFF is actually somewhat impressed by the audacity of the industry's arguments, as well as the court's willingness to follow them to these irrational ends.
Whilst accepting that the Copyright Directive does not require “that sellers must be able to extract the very last gram of value from the copyright,” the court found that the personal copying exception might have resulted in some loss of sales (for example, some hypothetical consumer might have refrained from buying an extra copy of their favorite CD for their car, in reliance on the new exception), and that the government had failed to present any evidence that these lost sales were zero or minimal.
This decision is so bad, that it isn't even wrong. Not because we think that the government did produce the economic evidence that the court was looking for, but because the fact the government should even be required to produce that sort of evidence before allowing users to make personal copies of purchased works shows how completely detached copyright law has become from the real world.
The fact that the industry can claim -- with a straight face -- that the private copies somehow cut record labels out of additional income is so ridiculous it veers into the realm of the bizarre. It continues to feel it should retain all rights to purchased products, even up to the point that it can deny people who have paid money for its products the option of making backup copies or format shifting it from physical-to-digital, or from device-to-device.
That a self-interested industry would claim this -- in the face of all reasonable logic -- isn't surprising. That a court would buy what the industry's selling is a bit more disconcerting. Both have drifted in the unintentional satire that is (most) of European copyright law, with the High Court following the overly-restrictive nature of EU court decisions -- ones that include ongoing (and increasing) "you must be a pirate
" levies on devices and media.
The worst thing about this decision
is that the court looked at the industry's malignantly overgrown sense of entitlement and said, "Yes. These are perfectly rational demands. Let's make sure no iteration of its products ever occurs without compensation -- despite
having been paid for once already."
Demanding that each such lawfully-made copy be somehow carved into its own sliver of value, and ensuring that rightholders have been afforded the maximum opportunity to extract rents from that value, is nonsense on every level: it is administratively unworkable, acts as a barrier to fair use and innovation, and has no justifiable legal or moral basis as a matter of copyright policy.
Any arguments that copyright law -- at least the industry's interpretation of it -- has any basis in reality can be dismissed. The original purpose of copyright has been buried and the new purpose -- to provide as many endless revenue streams as possible -- is urinating on its grave.
Products these industries don't even make (CDs, hard drives, memory cards, etc.) have levies added to somehow offset piracy -- apparently the only purpose these items exist, according to the rationale behind these demands. Customers purchasing movies and music are similarly treated as thieves in order to ensure repeated sales across multiple formats, stripping them of any "rights" they might enjoy after spending their own money.
The EFF conjectures that maybe that UK copyright law's abysmal nadir is what's needed to get some real
copyright reform kickstarted.
[P]erhaps a stupid decision like this is just what is needed to turn the temperature up a notch, and place more British users on the offensive. After years of lobbying for a free personal copying exception, its loss at the hands of the music industry clearly outlines the incursions that unbalanced copyright law makes upon users' freedom to make reasonable, private (and public) uses of copyright works. It's high time to bring European copyright law back into line with reality.
Reality isn't something the industry has much familiarity with. Its battles with technological advances have been mostly futile but increasingly tenacious. It will take any inch a government will give it, even if it means screwing its own customers over in the process. And it fights these battles like a doddering but vindictive patriarch, holding tight to its dwindling power even as its assertions are increasingly dotted with demented ravings.
Read More | 69 Comments | Leave a Comment..
Posted on Techdirt - 22 June 2015 @ 8:03am
Why is it that many efforts made "for the children" are so stupid most tweens could point out the obvious flaws? Back during the discussion of the UK's now-implemented ISP porn filtration system, Rhoda Grant of the Scottish Parliament wondered why the internet couldn't be handled the same way as television, where all the naughty "programming" isn't allowed to take to the airwaves until past the nationally-accepted bedtime.
“If there’s a watershed on the TV then why isn’t there one for the internet?”
The children are right to laugh at you
Cutting through the mocking laughter comes the German government, armed with a law that has its origin in more captive content (movies -- the kind shown in theaters) and attempting to apply it to the internet (ebook sales)
Heise.de and Boersenblatt reported on Friday and Thursday that the Jugendschutzbehörde (Youth Protection Authority) has handed down a new ruling which extended Germany's Youth Media Protection Law to include ebooks.
As a result of a lawsuit (legal complaint?) over the German erotica ebook Schlauchgelüste (Pantyhose Cravings), the regulators have decided that ebook retailers in Germany can now only sell adult ebooks between 10 pm and 6 am local time (4 pm and midnight, eastern US).
behind this baffling proclamation states it is intended to protect children from coming to harm via "advertising or teleshopping." It was written in 2002, and was no less stupid in its belief that it could somehow force online retailers to take certain items off the "shelves" for two-thirds of the day. It's only receiving attention now because the Youth Protection Authority trying to hammer it into place over bits of the internet.
As Nate Hoffelder points out, the law's origins date back further to a point when such an action was both a.) not thoroughly ridiculous and b.) could mostly be enforced.
Boersenblatt says that the 10 pm to 6 am window originally came from restrictions on adult cinema (where it made sense), but I still don't understand what the regulators were thinking in applying that rule to the internet. Do they really believe that the adult internet, including porn sites, pirate sites, video sites, etc, is going to be turned off for 16 hours a day?
How will this work in practice? With lots of regulation, meddling, filtering and other stuff that won't actually keep the determined from accessing the porny ebooks they're looking for. Retailers selling ebooks in Germany (hello, Amazon!, etc.) will have to figure out what "youth-endangering" means, apply it to their existing ebook stock, and "wall off" those titles behind some sort of filtering system until 10 pm (local time) every night. Or else.*
*Unspecified legal action.
In other words, it won't work. And I wouldn't expect this application of the law to last for very long once larger internet retailers begin pointing out the amazing amount of unworkable flaws in this half-baked "plan" to save German kids from electronic erotica. I think the children this is supposed
to protect will find that, when given the choice between hurtling a few governmental roadblocks for the opportunity to pay
for written erotica and just, say, going almost anywhere else on the internet to get the same sort of stuff for free, they'll do the latter. And no one will be saved, Youth Protection Authority or no. But the YPA gets to say it tried, and I guess that's all that matters. It will just have to live with the mocking laughter.
40 Comments | Leave a Comment..
More posts from Capitalist Lion Tamer >>