Posted on Techdirt - 25 November 2015 @ 6:19pm
The Sixth Circuit Court of Appeals is preparing for an en banc hearing on whether there is a privacy interest inherent in mugshots, or whether they are simply public records that can be obtained with an FOIA request.
For the most part, mugshots have been considered public records. This has led to a shady mugshot-posting cottage industry, as well as an equally-shady mugshot-removal cottage industry.
Whatever success these businesses enjoy is mostly due to a flaw in public perception. Despite the nation's justice system being built on the presumption of innocence, a large percentage of the population views "arrested and charged" as being no different than "found guilty." (Federal law enforcement databases -- used for background checks -- reinforce this perception by entering arrested persons' info when booking, but routinely failing to remove it when charges are dropped or the person is found innocent.)
Despite these flaws, there is a public interest in arrest and booking information, not necessarily because the public deserves to know every detail of every mundane arrest, but because findings to the contrary lend themselves to the burial of information that is definitely in the public's interest, like information pertaining to the alleged criminal acts of their public servants.
The information under dispute in this case involves a federal law enforcement agency and the indictment of three local law enforcement officers.
The opinion by a three-judge panel of the 6th U.S. Circuit Court of Appeals ends a years-long battle led by the Detroit Free Press. The paper sued the Justice Department in 2013 after the Marshals Service denied a reporter’s request for booking photos of Detroit-area police officers indicted on federal charges.
The appeals court found there were privacy concerns yet to be addressed in the public release of booking photos and information, but ultimately upheld the lower court's ruling ordering the DOJ to release the photos to the Detroit Free Press.
The en banc hearing will apparently consider these deeper issues. The presiding judge noted that a person's "visage" (as it pertains to a mugshot) is not simply a neutral bit of information. It is, in the public's mind, an expression of guilt.
The DOJ argued on behalf of the people its agencies arrest, noting the bizarre fact that a person's privacy interests actually increase the "guiltier" they get
DOJ attorney Frank admitted at the hearing that the existing delineation mystified him.
"A person innocent before the law has no privacy interest [in a mug shot release], but someone convicted and serving time has a privacy interest," Frank said. "I can't wrap my head around that."
Citing rulings from sister circuits that run counter to the Sixth Circuit's process, Frank explained that "all we are asking is for the court to find the privacy interest in mug shots is greater than non-trivial."
As nice as it is to hear the DOJ express these concerns, its ultimate goal is to obtain the final say on the release of booking photos
via a wholly internal process.
U.S. Circuit Judge David McKeague questioned the application of such a test, which would, in theory, balance an individual's right to privacy against a public interest in obtaining the pictures.
Frank explained that an individual at the Justice Department would review each request for information to determine if there was a public interest in releasing the mug shots.
McKeague pressed the attorney: "The presumption is that [requesters] don't get the pictures, correct?"
Frank agreed, but was quick to point out that in most cases, "there is no public interest."
On the other side, the Detroit Free Press, through its lawyer, Herschel Fink, is arguing that the presumption that these records are public should remain intact. The paper is looking for a broader decision that will settle issues related to other government agencies, rather than leaving it limited to one wing of the DOJ and the arrests it performs.
Fink meanwhile contended that the current system is a perfect application of "checks and balances," and also provides the individual with the "right to be forgotten" after court proceedings have concluded.
Fink also suggests the Sixth Circuit shouldn't "kowtow" to contrary decisions reached by other circuits.
Fink's involvement in this case isn't surprising, considering he has represented the Detroit Free Press for twenty-two years. However, Fink has proven he'll advocate for the First Amendment and the freedom of information only when it's most convenient for him.
In this case, he's pursuing his employer's interest in obtaining booking information for its journalistic endeavours. But roughly a year ago, he was arguing against
the release of law enforcement-related information -- specifically, a list of Oakley, Michigan's (pop. 300) 100 "pay-to-play" police officers. Fink is one of Oakley's police officers and he stepped up to prevent the list
from being made public, citing bullshit "terrorism" concerns.
In the undated email, Fink cited an Oct. 13 bulletin by the FBI and Department of Homeland Security that ISIS had called for attacks against law enforcement and government workers.
"To release identifying information about law enforcement personnel under such circumstances would not only result in damages against the Village, and everyone involved in such a release, it would likely be considered as having been done with malice, opening the door to punitive damages," wrote Fink.
So, Fink may be fighting for the release of other people's information but is much less willing to permit the release of his own. On the other side, the DOJ wants to consolidate its FOIA refusal powers. In the middle, there's a presumption of guilt that's nothing more than a common misperception, but often results in very real complications for those whose information has been released. Siding with members of the public who have been tarnished by this guilt-by-association also means siding with an agency seeking yet another way to withhold public records from the public. Siding with the Detroit Free Press means rubbing elbows with Herschel Fink's hypocritical stance and allowing a whole host of dubious "entrepreneurs" to use public perception against private citizens to extract fees for the removal of booking info.
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Posted on Techdirt - 25 November 2015 @ 1:50pm
Many members of the public believe the internet is subject to a completely different set of laws when it comes to defamation. Fortunately, sanity (mostly) continues to reign when courts apply REAL laws to newfangled message delivery systems. There are exceptions, of course. An Australian court recently declared Google to be the "publisher" of defamatory content posted by other people at other websites, but returned in search results. A Canadian court found a blogger personally liable for republishing defamatory statements made by others.
Fortunately, very few courts have found simply linking to defamatory content to be an act of defamation. In fact, the exception to the rule was, of all things, a bankruptcy court, which decided sending someone an email with links to defamatory content could be considered defamation.
Eric Goldman has the details on yet another case to add to the "linking ≠ defamation" body of caselaw.
Another court has ruled that linking to defamatory content isn’t a defamatory republication of the content. I just blogged on a similar result in Life Designs Ranch, Inc. v. Sommer. The only twist here is that the person posted the link to Facebook and then “liked” their own post. Putting aside the social faux pas of liking your own post, the “liking” does not affect the defamation analysis.
That's the crux of the lawsuit, as far as it pertains to social media platforms and their encouragement of "sharing" possibly defamatory content. (And, I guess, baby pictures and Minion-featuring quasi-memes
...) The defendant's self-fist-bump of "liking" her own status update didn't suddenly turn the posted material from "just a thing I'm throwing out there" to "defamatory content I heartily endorse."
There appears to have been several issues with the defamation claims
made by the plaintiffs, including naming additional defendants after the statute of limitations had expired and a failed argument that one of the plaintiffs was a "private citizen," despite the allegedly defamatory material clearly discussing his former position as an elected official.
[I]n view of his unquestionably public role in the relevant community of Emmaus, Slozer must also be deemed a public figure for purposes of a defamation analysis in the circumstance at issue in this case. This conclusion is further compelled by the fact that the statements at issue here are directly connected to, and concerned with, criticisms of Slozer’s record in his elected position in Emmaus municipal government. Although it cannot be said that one categorically renounces a private life in all respects upon taking public office, it is but a truism to acknowledge that public actions by a public servant remain of legitimate public concern even after an official leaves office. And where such an official continues to participate vocally in public affairs, he may not so easily dissociate himself from his role as a “public figure.” On the present facts, there is, therefore, no question that in the relevant community of Emmaus, Plaintiff Slozer maintained the status of public figure during the 2011 campaign season for the purposes of defamation law.
And, while the court did find that the linking (and "liking") was not defamatory, it also found the original content to be merely statements of opinion, rather than libelous.
Although hardly a lofty exposition of the issues evidently at the forefront of the campaign -- much less a shining example of political pamphleteering worthy of the heritage bestowed by Paine and his erudite cohort of Founding Fathers -- the statements about Donches and Slozer are nevertheless not capable of defamatory meaning as a matter of law. Properly viewed in the context in which they appear, the references to Donches’ and Slozer’s psychological traits would fairly be received by the intended audience as nothing more than opinionated assessments of a political opponent’s character and motivation.
Finally, the linking itself:
We also conclude that Appellee Holzhafer’s posting a link to the allegedly defamatory website with a “like” designation on her Facebook page, is not a republication of the content of the website sufficient to support a separate cause of action for defamation against her.
Side note: as someone who was recently referred to as "Tim Cushings" and "Tim Lushing" by Patrick Zarrelli and the Ft. Lauderdale police officer who had the misfortune of fielding the reputation mismanagement superstar's decidedly non-criminal "criminal complaint
," I feel for the defendant whose linking/ liking was just officially declared non-defamatory. [Truth be told, Techdirt contributor Tim "Darknight" Geithner
and site founder Mike Reznick
don't exactly have it easy, either.]
This footnote appears on the first page of the opinion:
Ms. Holtzhafer noted in her motion for summary judgment that her name had been misspelled as “Holzhafer” throughout the proceedings. Because the rest of the record retains the “Holzhafer” spelling, we have done the same for the sake of consistency.
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Posted on Techdirt - 24 November 2015 @ 3:24pm
Earlier this month, Brad Heath and Brett Kelman of USA Today reported that the DEA was running a massive amount of wiretap applications through a single judge in Riverside County, California. Judge Helios Hernandez has signed off on five times as many wiretap warrants as any other judge in the United States.
The DEA, being a federal agency, is supposed to be running its wiretap warrant applications past federal judges, rather than county judges, but has seemingly found itself a very willing participant in its southern California surveillance dragnet.
The DOJ isn't particularly thrilled with the DEA's warrant funneling. A handful of unnamed federal proecutors stated the agency had been previously warned that its use of a local court meant there was little chance the DOJ would offer its blessing for prosecution at the federal level. Notably, the DOJ legal staff wasn't concerned enough about the potential illegality of the DEA's actions to stop it from routing everything through Hernandez's courtroom. They were only irritated enough to tell the DEA to keep its tainted evidence out of federal courts.
So, a federal agency has already been exposed as participating in likely illegal activity related to one of the most intrusive surveillance options it has at its disposal. Now, Heath and Kelman are back with more bad news from Riverside. It's not just the feds. It's also the locals.
Prosecutors in the Los Angeles suburb responsible for a huge share of the nation’s wiretaps almost certainly violated federal law when they authorized widespread eavesdropping that police used to make more than 300 arrests and seize millions of dollars in cash and drugs throughout the USA.
The violations could undermine the legality of as many as 738 wiretaps approved in Riverside County, Calif., since the middle of 2013, an investigation by USA TODAY and The Desert Sun, based on interviews and court records, has found. Prosecutors reported that those taps, often conducted by federal drug investigators, intercepted phone calls and text messages by more than 52,000 people.
This 4th Amendment-violating joint task force involved local cops, federal agents and a very complicit District Attorney's office. As Heath and Kelman explain, changes made to federal law in the 1960s (and upheld by the Supreme Court in 1974
) as a response to the exposure of the FBI's secret surveillance of civil rights leaders require the government to obtain authorization from the presiding DA before heading to court with a wiretap warrant request.
However, in Riverside County, home to 20% of the nation's
approved wiretap warrants, this approval process was frequently delegated to the DA's underlings. Former DA Paul Zellerbach -- who presided over the massive increase in Riverside County wiretap applications -- rarely performed this task himself.
Despite a federal court ruling that only the district attorney himself should usually approve wiretaps, Zellerbach said in two interviews over the past month that he could not recall having reviewed or personally authorized any of the county’s wiretap applications and said he was unaware of the details of the requests. Instead, he said, he delegated that job to one of his assistants.
“I didn’t have time to review all of those,” Zellerbach said. “No way.”
A 2013 Ninth Circuit Appeals Court decision
says Zellerbach (and other DAs) can
delegate this authority, but only when the District Attorney isn't physically available ("absent") and designates someone to act in their place. For Zellerbach, this exception was the rule. His delegation of the approval process often occurred while he was present in his office, as Heath and Kelman discovered.
[R]ecords show Riverside prosecutors routinely requested wiretaps on days when he was working. Federal court records show prosecutors applied for five wiretaps Feb. 18, 2014, for example, when Zellerbach appeared at a news conference to talk about metal thefts. The next week, prosecutors applied for nine more wiretaps on a day when Zellerbach’s office posted a photo on Twitter of him meeting with a delegation of Chinese officials in his office conference room. In each case, reports by the federal court administrative office list [Assistant DA Jeffrey] Van Wagenen, not Zellerbach, as the person who approved the surveillance.
Not only has the DEA been acquiring wiretap warrants in a way that makes the cases too toxic for the DOJ to pursue in federal court, but the apparently illegality of the District Attorney's actions should make the cases toxic anywhere
. Any evidence obtained directly or indirectly from the wiretaps could easily be suppressed. The fact that so many warrants lead back to a single judge and a single DA's office means defendants shouldn't have too much trouble determining whether this apparently illegal surveillance helped build a case against them.
The DOJ may be unwilling to do anything more than publicly (but anonymously) express its disgruntlement, but at least the district attorney's office is in new hands. The new DA (Mike Hestrin) has aligned his officer's wiretap policy with the 9th Circuit Court's ruling. He has said, however, that he will defend his predecessor's wiretap orders if they are challenged in court.
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Posted on Techdirt - 24 November 2015 @ 6:11am
The Institute for Justice has released its latest report on asset forfeiture. Despite some recent legislative attempts to add a much-needed conviction requirement to the seizure of property, most of the country still allows law enforcement to proceed under the assumption that money, vehicles and houses are "guilty," even if those they take this property from are, for all intents and purposes, innocent.
The absence of this key factor has resulted in decades of nationwide abuse. The IJ's updated chart ranking states' asset forfeiture policies on an A-F scale shows only one A rating: New Mexico. The state's recent passage of significant asset forfeiture reform is the only highlight in the report. The rest of the nation continues on its path of underachievement, preferring to defer to law enforcement's best judgment on how to fight the Drug War. (While also occasionally used to target fraud and organized crime, forfeiture programs are now mostly deployed to take money from people/vehicles that smell like marijuana.)
The largest amount of resistance
to asset forfeiture reform efforts come from the agencies that benefit most from the liquidation of seized property.
The highest grades correspond directly to states where local agencies have the least to gain from seized assets. Unsurprisingly, removing the incentive to simply take
money/property has resulted in less abuse of forfeiture programs.
But these (few) speed bumps have done next to nothing to slow the asset forfeiture machine. It's been on a downhill roll since the late 80s, resulting in $12.6 seized at the federal level from 1989 to 2010. Since 2010, though, the year-to-year increases have been exponential. In 2014 alone
, US Attorneys "forfeited" $4.5 billion. This dollar amount now places federal law enforcement at the top of the list of of "People Who Take Stuff That Belongs To Others."
According to the FBI, the total amount of goods stolen by criminals in 2014 burglary offenses suffered an estimated $3.9 billion in property losses. This means that the police are now taking more assets than the criminals.
Of course, there are several legitimate (i.e., tied to convictions) forfeitures included in that amount, whereas no burglary can ever be considered "legitimate." And, as the DOJ points out, some recent sizable seizures have produced gaudy forfeiture numbers
A Justice Department spokesman pointed out that big cases, like the $1.7 billion Bernie Madoff judgment and a $1.2 billion case associated with Toyota, have led to large deposits to forfeiture funds in a single year.
So, there are mitigating factors in this law enforcement-to-criminals comparison, but that doesn't mean asset forfeiture programs are largely "right" or free from abuse. The federal government has argued it has the right to seize even "untainted" funds
and a majority of cash seizures -- especially at the local level -- don't rise to "drug kingpin" levels. As was noted, when Washington, DC moved forward
with asset forfeiture reform, its local police force more resembled pathetic stickup men than the dismantlers of drug empires.
In addition, the bill sets other limits. Vehicles may not be seized unless "clear and convincing evidence" exists that they were used in the commission of a crime. Cash amounts under $1,000 would be presumed "innocent," i.e., not subject to forfeiture. This stipulation cuts to the heart of the DC PD's abuse of asset forfeiture -- more than half of its $5.5 million in cash seizures were for less than $141, with over 1,000 of the 12,000 seizures being for less than $20.
Further watering down the comparison is this depressing fact: in asset forfeiture, the government (both local and federal) tends to place the burden of proof on the former owners of seized property. Arrested burglars, however, are given the Constitutional benefit of a doubt (presumed innocent) when they
end up in court.
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Posted on Techdirt - 24 November 2015 @ 3:05am
The Pentagon's 1033 program is a case study in unintended consequences. The idea -- put military equipment back into service rather than simply scrapping it -- has some merit. The actual deployment has been a nightmare.
The Dept. of Defense wondered who could possibly make use of military weapons, armor and vehicles, and came to an almost-logical conclusion. Law enforcement agencies became the military's little brother, taking ownership of cheap/free hand-me-downs and putting them to use in the War at Home.
Of course, a militaristic mindset evolved to match the acquired gear. Police departments became armies and citizens, combatants. Worse, the program was badly mismanaged and subject to very little oversight. The DoD had no idea how much equipment it had dispensed and the agencies on the receiving end weren't much better at tracking their own inventories.
Shawn Musgrave has obtained two mostly-depressing spreadsheets from the Dept. of Defense listing law enforcement agencies which are currently suspended from the program, or have been in the past. He sent this "expedited request" during the Ferguson fallout, during which the DOJ itself expressed concern about the military aura the local PD projected. Not that the Pentagon's Defense Logistics Agency cared about the timeliness of its response. 14 months after issuing his "please hurry" request, the DLA has finally responded.
The lists contain plenty of suspensions for lost weapons, which possibly means military-grade weapons are in the hands of private citizens. The lists also contain intriguing redactions and a few moments of WTF-ness.
For instance, an Arkansas county coroner's office is participating in the program for reasons unknown. It could be that it only used the program to obtain harmless office equipment, but if so, it seems these sorts of acquisitions -- no matter how badly handled or poorly inventoried -- would not result in a suspension. The question of why it was suspended remains unanswered.
Reason can not be released at this per State Coordinators request.
And the state of North Carolina appears to have gone rogue. Among the many agencies listed as "terminated" by the DLA is the state's Parks and Recreation department.
North Dakota is possibly headed for a bloodbath, seeing as its Highway Patrol has misplaced a street gang's-worth of weapons.
DURING PCR ON JULY 23, 2013, 159 WEAPONS WERE UNABLE TO BE ACCOUNTED FOR BY A SIGNED CUSTODY RECEIPT
And one wonders how this sort of situation arises, considering the logistics required to make it happen in the first place. (Richland County Sheriff's Office, South Carolina)
Misappropriation of aircraft
of agencies no longer suspended from the program isn't exactly heartening. The Searcy (AR) Police Dept. is back in the DLA's good graces despite the ATF serving a search warrant for its (former) police chief.
And we discover that the Richland County Sheriff's Office isn't the only South Carolina agency to abuse 1033 aircraft.
Many of those on the "Unsuspended" list have never recovered weapons they reported as lost or stolen, but have been designated by the Office of the Inspector General as "cold cases." Once the trail goes dead, so does the suspension, apparently.
In other oddities, it appears the entire state of Montana took a year off from performing required 1033 inventories and the nation's biggest, baddest police force -- the NYPD -- faced (briefly) the threat of termination for reasons not detailed in the responsive documents.
So, in other words, it's business as usual for the 1033 program. Even those "responsibly" partaking in the program are loading up with military gear which they then deploy against
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Posted on Techdirt - 23 November 2015 @ 3:33pm
Earlier this year, a police officer and the ACLU performed a "strange bedfellows" act in hopes of overturning Indiana's Bureau of Motor Vehicle's rejection of the officer's vanity license plate request. Rodney Vawter, a rare law enforcement officer capable of enjoying a laugh at his own expense (literally/figuratively), applied for a plate reading "01NK." The BMV gave it to him. Three years later, it changed its mind, claiming the plate was now "offensive."
Vawter took the BMV to court, claiming the agency's denial of his plate infringed on his free speech. The BMV countered that it could pretty much do whatever it wanted, right up until a district court judge called its scattershot approval process ('BIBLE4ME" - OK. "UNHOLY" - rejected, etc.) unconstitutional. The BMV, rather than adjust its process, simply stopped issuing plates until the issue could be fully resolved.
The state's Supreme Court has delivered the final word on the BMV's actions. It's bad news for Vawter, who won't be getting his "01NK" plate back. (h/t Free Thought Project)
The court found that, while speech is indeed at the center of this case, it's the government's speech that's being regulated, not citizens'. And the government can regulate its own speech however it wants.
Indiana's personalized license plates are government speech. The Bureau of Motor Vehicles, therefore, does not violate the First or Fourteenth Amendments in denying an application for a PLP or revoking a previously issued PLP. Furthermore, Due Process Clause protections do not apply because vehicle owners do not have a property interest in their personalized license plates.
In arriving at this conclusion, the court made a number of supporting determinations, some more solid than others. Most curiously, it stated the limited "message" space on a license plate provides a forum too "limited" for protected speech.
Furthermore, the nature of Indiana's PLPs is not compatible with expressive activity. Because PLPs are small and contain a maximum of eight characters, they cannot realistically promote meaningful discourse, communication, and debate.
(And yet, "Fuck the draft" is only 12 characters [with spaces removed] and was recognized as protected speech by the Supreme Court of the United States. Eight letters isn't "discourse," but twelve is?)
It also found that government-issued plates are still government speech, even if individuals obtain plates with their own "messages" on them. While most people recognize the fact that a state agency issues license plates, they associate the messages on vanity plates to be representative of the person driving the car, rather than the entity that printed the plate. The court shrugs this off by saying it's not its
fault if observers jump to the wrong "speech" conclusion.
PLPs do not cease to be government speech simply because some observers may fail to recognize that PLP alphanumeric combinations are government issued and approved speech in every instance. [...] The alphanumeric combination, regardless of its content, is government speech specifically identifying a single vehicle.
So, the BMV's highly-inconsistent approval process is once again "Constitutional," but only because it's the government regulating its "own" speech, even if there's a private citizen's personal request somewhere in the middle of all the regulation. No "01NK" plate for Officer Vawter and no plates for other members of the public whose requests somehow "offend" the sensibilities of the BMV office drone processing the paperwork.
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Posted on Techdirt - 23 November 2015 @ 12:45pm
Once upon a time, a DC district court judge found the NSA's bulk phone metadata collection to be a violation of the Fourth Amendment. Wailing, gnashing of teeth and a round of appeals ensued.
Nearly two years later, this judge (Richard Leon) reiterated his position after the appeals court overturned his decision. Judge Leon again issued an injunction preventing the NSA from collecting the phone records of two of the plaintiffs. This too was almost immediately stayed following the government's swift appeal.
One of the plaintiffs not included in Leon's injunction was Larry Klayman. Klayman petitioned the appeals court for an en banc rehearing of its decision to stay Leon's order. The court has turned him down. But rather than simply turn Klayman down with a single paragraph noting the denial of his request, Judge Brett Kavanaugh took it upon himself to pen a full-throated defense of the NSA's bulk metadata collection.
I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment. Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court’s injunction against the Government’s program.
The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.
Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty. [...] The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.
Kavanaugh makes these assertions about "special needs" and claims the government's metadata program is instrumental in preventing terrorist attacks, despite no intelligence official ever having presented evidence
that supports this assertion.
While it isn't unusual to see judges align themselves with the government's "special needs" in cases where counterterrorism efforts are implicated, it's a bit strange to see a judge step up, unbidden, to tell a plaintiff that, in no uncertain terms, as long as he's wearing the robe, no one's going to be questioning the constitutionality of the NSA's national security efforts.
But why would Kavanaugh feel so compelled to defend dragnet surveillance efforts, especially one that's becoming much less of a dragnet in the near future? Marcy Wheeler has the answer
Kavanaugh, of course, served as a White House lawyer and as Staff Secretary during the period when George Bush kept self-authorizing such a dragnet.
[A]s people cite from this language in the future, they should remember that of all the judges who reviewed this decision, only Kavanaugh had this kind of personal tie to the dragnet. And only Kavanaugh saw fit to weigh in.
Klayman, along with other plaintiffs and Judge Richard Leon, have questioned the asserted "cuteness" of Kavanaugh's baby. And Kavanaugh apparently is not about to let that slide. So, we get an en banc denial with several paragraphs of Kavanaugh's surveillance state boosterism needlessly attached.
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Posted on Techdirt - 23 November 2015 @ 9:39am
At long last, it looks as though the law will finally get its (wo)man. Fourteen months after a Dawson County (GA) deputy arrested citizen journalist Nydia Tisdale for filming a political rally at a local pumpkin farm, Sheriff Billy Carlisle is patting himself on the back for turning a potential civil liberties violation into a ham sandwich.
The indictment handed down by a Dawson County Grand Jury shows Nydia Pinzon Tisdale, 52, is now facing a third charge in connection with her Aug. 23, 2014 arrest.
Initially booked on felony obstruction of officer and misdemeanor criminal trespass charges, authorities have also added misdemeanor obstruction of officer to the counts against her.
"I'm proud to see this case being presented to the grand jury and allowing our court system to work as it was designed," said Dawson County Sheriff Billy Carlisle. "I appreciate the citizens who sat on this grand jury, listening to all the evidence and bringing forth a true bill.
"I look forward to this case working its way on through our courts and hopefully, at the end, we will have a guilty verdict from a jury of our peers."
I imagine Carlisle is hoping for a jury of his
peers, rather than, say, a jury of the accused's peers. Jim Galloway at AJC.com points out the timing of this indictment seems rather fortuitous.
One has to wonder if the timely – timeless? — indictment might have something to do with the fact that Tisdale has served notice that she intends to file a $550,000 lawsuit against the Dawson County Sheriff’s Office and Dawson County Board of Commissioners.
An audio recording of the arrest can be heard at FetchYourNews.com
, along with still photos of the arrest captured by Brian Pritchard, whose documentation of the political rally received no additional attention from local law enforcement.
The attention paid to Tisdale's recording appears to stem from earlier efforts local politicians made to keep her and her camera away from their gatherings.
In 2012, the mayor of Cumming, Ga., had tossed Tisdale from a city council meeting – for pointing her camera at the proceedings.
[Attorney General Sam] Olens had taken up for the 51-year-old journalist. Two days earlier, the attorney general told her, a judge had signed an order that leveled a $12,000 fine at the city and mayor for violating the state’s open meetings law.
Not only was the city fined by a judge, but it also handed over a $200,000 settlement
to Tisdale for violating her First Amendment rights. Attorney General Sam Olens was instrumental in pursuing the lawsuit against the city government.
Obviously, a little antagonism goes a long way. The arrest at Burt's Pumpkin Farm was deemed justified because it occurred on private property. Supposedly the owner had told Tisdale to stop filming the rally. (No explanation has been forthcoming as to why another journalist was allowed to shoot photographs and otherwise record the event). This is the sort of request a person can make on private property, but a rather strange one to make on private property that is also somewhat of a tourist attraction and is, for all intents and purposes, open to the public. On top of that, the political rally was also open to the public, but not, apparently, a certain citizen journalist carrying a video camera.
Both the request that Tisdale stop filming and law enforcement's actions were highly questionable. FetchYourNews states that the request only came after
one of the rally speakers said something that he might have wanted to pass by unrecorded
With Tisdale’s camera rolling, Hudgens started making his campaign stump speech. When talking about Democratic Candidate for U.S. Senate Michelle Nunn, referring to the Chamber of Commerce debate between Perdue and Nunn, Hudgens said listening to Nunn, “I thought I was going to absolutely puke.”
Hudgens looked at Tisdale and said, “I don’t know why you’re video taping?”
According to FetchYourNews, Dawson GOP Chair Clint Bearden asked Tisdale to stop recording and leave. Farm owner Johnny Burt's statement to Dawson News in response to the grand jury indictment claims he
was the one who asked Tisdale to stop recording. The FYN report says all of the involved parties disappeared in one of Burt's barns along with the now-arrested Tisdale to discuss what should be done.
Given the disparity between the eyewitness report and Johnny Burt's statements, it appears the discussion may have included who
should be put down on the report as requesting Tisdale to stop recording. Considering everyone else involved would have been acting as representatives of the government (and with no claim to the private property), it would obviously make the most sense (legally) to have the request come from the farm owner.
Despite Tisdale's vocal protests and screaming (as she was arrested), only one person speaking at the rally made any comment about the highly visible arrest of a citizen carrying a camera: District Attorney Sam Olens.
“Let me be possibly politically incorrect here for a second. If we stand for anything as a party what are we afraid of with the lady having a camera filming us? What are we saying here that shouldn’t be on film? What message are we sending? Cause it’s private property they shouldn’t be filming? What is the harm? The harm that this poses is far greater than her filming us. What are we hiding? If we are telling you why we are running and what we stand for, what are we hiding?”
Then, as he pointed in the direction from where Tisdale was drug away he continued:
“There is no reason for that, that is not right”.
lawsuit apparently claims First, Fourth and Fourteenth Amendment violations
Also asserted is violation of Tisdale’s rights under the First, Fourth and Fourteenth Amendments to the U.S. Constitution by retaliating against her (Tisdale) for exercising her right to freedom of speech and freedom of the press, as well as by falsely arresting her and using excessive force against her.
While the Fourth and Fourteenth determinations will largely come down to Deputy Hooten's actions, the First Amendment claims will be tough to make stick, considering the incident occurred on private property. Even though her removal was inconsistent (another photographer was never asked to stop or leave) and had a retaliatory appearance, private property owners are given a lot of leeway when it comes to handling guests and visitors on their property. The rally was apparently advertised as an event open to the public, but that sort of invitation doesn't turn private land into a public area.
While Deputy Hooten was off duty when he effected the arrest, this fact does little to decrease the power of his position. Law enforcement personnel still have the power to arrest and detain people, even while off the clock. The alleged retaliation probably can't be proven, especially if
the landowner asked for her to be removed after she refused to stop filming. It might be that it never occurred to Johnny Burt to kick her out before being prompted to do so by public officials, but that will be a tough sell in court -- especially if Burt maintains he was the one who demanded that Tisdale stop filming and leave the property.
If nothing else, the timing of the grand jury's indictment is conspicuous in its proximity to the announced lawsuit. It's been more than year since Tisdale's arrest at Burt's Farm, but only six weeks since the lawsuit's announcement. And, during the intervening months, prosecutors -- apparently guided by outgoing Sheriff Carlisle -- have added another charge to Tisdale's potential rap sheet.
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Posted on Techdirt - 23 November 2015 @ 8:20am
Whatever the facts are behind the supposed feud between former Adams State University (CO) faculty member Danny Ledonne and the school, this one -- which leads off an "open letter" from ASU Police Chief Paul Grohowski to "campus staff, students and faculty" -- isn't relevant. At all. (h/t to Techdirt reader wereisjessicahyde)
I want to take this opportunity to bring an issue of concern and public safety to the attention of our campus community; specifically the recent issuance of a trespass warning to Mr. Daniele "Danny" Ledonne. I also want to bring some clarity and factual basis to the recent disinformation spread on several social media sites by Ledonne.
Fact: Mr. Ledonne created a post-Columbine video game that recreates the horror of the Columbine HS shooting massacre.
Ledonne is the person behind the infamous game Super Columbine Massacre RPG!
, which allowed players to reenact the Columbine High School shooting using the mechanics of mid-90s Japanese role-playing games. Ledonne also produced a documentary
about the controversy surrounding the game's release. A decade-old game that deglamorized the mystique surrounding the perpetrators of a particularly horrific act should bear no reflection on that person's "threat level."
Chief Grohowski tried to head off the discussion of Ledonne's employment-related disagreements with the school by preying on fear and ignorance. Ledonne's rebuttal
points out ASU was familiar with his past creative works when it hired him. He also points out Grohowski is doing little more than exposing his own
fear and ignorance by leading off his letter with this particular fact.
It is obvious that Mr. Grohowski has never played the game or watched the documentary, or any of the many academic publications that have examined my work.
ASU was fully aware of this when I was hired and have given me strong evaluations for four years. No mention was ever made and no concern was ever brought to my attention in this regard. In addition, ASU Theatre produced "Bang, Bang, You're Dead" by William Mastrosimone in February of 2012 – a play that examines the very same topic as my videogame. Could anyone involved in this production be construed as a "threat to campus safety" for the same reasons? What about someone who published a book, wrote an article, or produced a film about a school shooting? What if a faculty member wrote a violent short story or maybe just an erotic novel under a pseudonym? Would that person be the next potential "threat to campus safety" by the same reasoning? This is a grave threat to freedom of expression and to academic freedom.
Ledonne's blog post offers a point-by-point rebuttal of every claim made by Grohowski, who claims Ledonne has been harassing members of the school president's family on Facebook. Ledonne disputes this, claiming he has been subject to unprovoked contact and legal threats by one of the family members.
Grohowski has banned Ledonne from the ASU campus, despite there being no formal or criminal complaints against him. Because Columbine.
In this post-Columbine, hypersensitive world of mass shootings and violence on college campus' nationwide, it is my duty to balance the free speech and individual rights against the public safety of the many. As your Chief of Police it is my duty to assure the sense of safety, security and comfort to all who attend and work here at Adams State University. Although, Mr. Ledonne's behavior has not yet breached the realm of violation of our laws, my recommendation to ban him from campus is sound, rational and errs on the side of public safety.
Well, at least he got the "hypersensitive" thing right. Grohowski apparently believes that if you make a game about a mass shooting, you may be headed down the road to participating in one. As Ledonne pointed out above, the chief's actions single out a single
form of creative expression as being somehow more inherently indicative of the creator's mental proclivities than books, films, etc. about the same subject matter.
Again, what information we do have is pretty much limited to two conflicting narratives
. But only one of them contains a completely irrelevant "fact" -- one that's being used to justify banning a person from a university's campus for "public safety" reasons. This isn't conscientious policing. This is simply a case of a particularly myopic law enforcement official attempting to climb on a moral panic
bandwagon that has long since blown town.
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Posted on Techdirt - 23 November 2015 @ 6:14am
New documents obtained by Charlie Savage of the New York Times (as the result of a FOIA lawsuit) show that the NSA may have killed off its bulk collection of US persons' emails back in 2011, but it quickly found another way to obtain these -- a way that circumvented restrictions on domestic collections.
While that particular secret program stopped, newly disclosed documents show that the N.S.A. had found a way to create a functional equivalent. The shift has permitted the agency to continue analyzing social links revealed by Americans’ email patterns, but without collecting the data in bulk from American telecommunications companies — and with less oversight by the Foreign Intelligence Surveillance Court.
The new document
is an Inspector General's report detailing the NSA's failure to follow the restrictions laid down
by FISC Judge John Bates in his October 3, 2011 opinion. Bates felt the collection of US persons' email content in this fashion amounted to an illegal wiretap. This would be the same collection the NSA defended
(before it was given more power to collect domestic data without a warrant by the 2008 FISA Amendments Act) in the FISA court by claiming an email address was the same thing as a "facility," because email addresses "facilitate" communications.
So, the reassurances -- offered in response to the Snowden leaks -- that the program had been shut down are essentially meaningless. The NSA halted a particular collection method
, but did not
halt the collection of domestic emails.
The report explained that there were two other legal ways to get such data. One was the collection of bulk data that had been gathered in other countries, where the N.S.A.’s activities are largely not subject to regulation by the Foreign Intelligence Surveillance Act and oversight by the intelligence court. Because of the way the Internet operates, domestic data is often found on fiber optic cables abroad.
As Marcy Wheeler points out, the killing of one domestic email collection and initiation of another meant some NSA personnel were very busy during the 2011 holiday season
Given the length of the redacted date (it is one character longer than “9 December 2011”), we can say with some confidence that Keith Alexander approved the end and destruction of the dragnet between November 10 and 30 — during the same period the government was considering appealing Bates’ ruling, close to the day — November 22 — NSA submitted a motion arguing that Section 1809(a)(2)’s wiretapping rules don’t apply to it, and the day, a week later, it told John Bates it could not segregate the pre-October 31 dragnet data from post October 31 dragnet data.
Think how busy a time this already was for the legal and tech people, given the scramble to keep upstream 702 approved! And yet, at precisely the same time, they decided they should nuke the dragnet, and nuke it immediately, before the existing dragnet order expired, creating another headache for the legal and tech people. My apologies to the people who missed Thanksgiving dinner in 2011 dealing with both these headaches at once.
Not only did NSA nuke the dragnet, but they did it quickly. As I said, it appears Alexander approved nuking it November 10 or later. By December 9, it was gone.
As she goes on to detail, the program the Inspector General was looking for was indeed gone. But the collection itself wasn't. As far as the IG could tell, the NSA was mostly in compliance. The IG's report, however, notes its powers to assess the collection, storage and access to email data and content are very limited. As Wheeler puts it, the NSA "ate" its homework before the IG had a chance to assess its compliance.
As to the the intake side,those folks started destroying the dragnet before the IG could come by and check their before status:
"However, S3 had completed its purge before we had the opportunity to observe. As a result we were able to review the [data acquisition database] purge procedures only for reasonableness; we were not able to do the before and after comparisons that we did for the TD systems and databases disclosed to us."
Poof! All gone, before the IG can even come over and take a look at what they actually had.
Importantly, the IG stresses that his team doesn’t have a way of proving the dragnet isn’t hidden somewhere in NSA’s servers.
"It is important to note that we lack the necessary system accesses and technical resources to search NSA’s networks to independently verify that only the disclosed repositories stored PR/TT metadata."
The Inspector General's office appears to have been steered to its conclusion by the NSA, which dumped the data from the places it expected the IG to look ("disclosed repositories") and utilized a new collection method that wasn't subject to FISA court restrictions or nearly as much IG oversight.
So, the NSA's statements about shutting down the email program in 2011 are technically correct. It was shut down. The NSA, however, simply chose to siphon as much domestic data from its overseas collections as possible to ensure it never really had to end its warrantless collection of US persons' emails.
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Posted on Techdirt - 23 November 2015 @ 3:10am
A New South Wales cop is finally facing punishment for illegally accessing a Facebook account to perform illegal surveillance, but it took a trip to court to make it happen.
A private Facebook account belonging to Rhys Liam Halvey (under the name "Rhys Brown") was surveilled by NSW Police Senior Constable Daniel Moss after it came to his attention that it contained "derogatory" posts. Moss used someone else's login information to access the closed account (likely one of Brown's "friends") and see what was being posted. This began in late 2013 and continued until March of 2014 when a "string" of "derogatory" posts appeared.
The content of the supposedly derogatory posts is laughable and far from what anyone but the most small-minded police force would view as "criminal."
They featured a NSW Police infringement notice together with photographs of several serving officers, taken in a Sydney street setting.
One image carried a large sum of cash and words to the effect of: "Here's my $25,000 for your $101 fine." Another image depicted Miley Cyrus "twerking" in front of an officer.
Nevertheless, the posts did
result in charges against Halvey, who has never admitted ownership of the surveilled "Rhys Brown" account.
Rhys Liam Halvey was arrested and charged with three counts of using a carriage service to offend police and a further three counts of publishing an indecent article.
Despite having no legal authority to perform this surveillance, the NSW police force supported Moss's actions. Statements were entered by one of the "highest ranking police officers in the state," and when cautioned by a judge for their illegal activity, police supervisors doubled down on protecting Moss from the consequences of his actions.
Not only did they offer two sworn affidavits in support of his actions, they also claimed that any further public discussion of the methods used by Moss to perform his illegal surveillance would be "injurious" to the "public interest."
The judge was not impressed.
In ordering costs against police, Magistrate Brown described the conduct as "reprehensible" and the charges as "trivial."
"There is no difference to the police trespassing on a Facebook page for four months and my steaming open my neighbour's mail in the hope of one day finding something, anything, to report to police."
The state's rights advocacy agency also questioned the tactics used and the apparent willingness of senior law enforcement officials to support abusive behavior by constables under their supervision.
NSW Council of Civil Liberties president Stephen Blanks said public confidence in the police was being "undermined" by an inability to acknowledge the occasions when "it does the wrong thing."
"How deep in police culture is this willingness to break the law?" he asked. "Even after they have been caught out, it would appear no adverse consequences are going to be suffered by those responsible because the illegal actions are supported by police at the most senior level."
Still, the NSW Police managed to have the last word… by preventing anything further from being said. When the judge refused to indulge their request to keep discussions of Moss's surveillance methods from entering the public record, the law enforcement agency withdrew the case and handed over $14,429 in costs to Halvey... and then walked away from the mess promising to investigate actions it had known about since November of 2013.
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Posted on Techdirt - 20 November 2015 @ 6:34pm
The ACLU has released three more state-specific versions of its "Mobile Justice" app. The app, which sends audio and video recordings directly to the ACLU's servers to preserve them in case of any law enforcement "interruptions", is now available in Maryland, Minnesota and Virginia.
This time around, the panic surrounding the apps seems to have subsided somewhat. Back in 2012, the release of a New Jersey-based app for recording police encounters resulted in a California police department's speculation that the app's ability to notify other users would lead to officer-endangering "flash mobs."
Perhaps the inevitability of being recorded has finally sunk in. There's no shortage of footage of police interactions available and the addition of the ACLU's app isn't going to cause a spike in citizen recordings. With many photo and video apps already synced to cloud storage, attempts to delete incriminating footage will be unsuccessful in many cases.
For the most part, law enforcement representatives and officials are greeting the new releases with shrugs, if not open acceptance.
In Virginia, sane comments greeted the ACLU's announcement.
“I certainly don’t have a problem with it,” said Chesterfield County Police Chief Thierry Dupuis. “The vast majority of our police officers do a great job. If for some reason we have an officer that isn’t, we want to know about it,” said Dupuy.
But Dupuis says if you are going to use the app, record positive police interactions too, and don’t leave anything out.
“If you’re going to film, include the entire video,” said Dupuis.
In Maryland, where Baltimore law enforcement officials are blaming
the city's climbing murder rate on the "Ferguson Effect
," reactions are still mostly positive
"Maryland state troopers are held to a high standard of accountability for their actions in the performance of their duties. Our troopers understand the importance of video and welcome the opportunity to display their professionalism during interactions with the citizens we serve," Maryland State Police spokesman Greg Shipley said.
Baltimore County police released a statement, saying: "The Baltimore County Police Department respects citizens' right to record. Citizens record us every day. This application does not change our practices."
Another Maryland law enforcement agency actually welcomed the additional accountability the app could bring
47 ABC showed the app to Wicomico County Sheriff Mike Lewis and he doesn't see a problem with it at all.
Sheriff Lewis continues, “Anything I can do better professionalize the Wicomico County Sheriff Office and our profession, I'm all for it. I don't want rogue police officers working for me.”
Minnesota law enforcement officials, however, seem to be pulling their talking points from 2012's "flash mob" memo. Well, more specifically, certain
officials are taking issue with the ACLU's app. The regular police -- as in law enforcement agencies and not
law enforcement officers' putative representatives -- seem to have no problem with the new app
The Minneapolis police department wouldn’t comment on the specifics of the app, but spokesman John Elder said in a statement that officers are already accustomed to working under surveillance from cell phones and public or private cameras. He also noted that the city is in the process of rolling out a police body cam program, expected to begin early next year, which will provide more visual evidence of how police interact with the public.
It's the police unions
that view the ACLU's "Mobile Justice" app as a threat to officers.
“If you create a crowd, it is possible that the crowd could turn on an officer,” said Andy Skoogman, spokesman for the Minnesota Chiefs of Police Association. “The mere presence of the crowd could easily make the officer feel intimidated which can quickly increase the tension of the interaction. We have seen such a scenario play out many times.”
Yes, it's the old "flash mob" argument. The app only notifies other users of the app who happen to be in the same area, and the ACLU's app isn't exactly Candy Crush. Chances of the app producing an antagonistic crowd of any size are slim-to-none. Chances of a police interaction in a public area resulting in a crowd not entirely aligned with law enforcement remains at nearly 100%. So, officers should be used to dealing with antagonistic crowds as it's routinely part of the job. That the union would preemptively excuse an "intimidated" officer's reactions is telling.
But it gets even dumber. Another police union spokesman echoed
Skoogman's ridiculous assertion.
“It will almost certainly create public safety issues,” said St. Paul Police Federation President David Titus, in a statement. “Encouraging people to flock to an unsecure and possibly dangerous police incident is not responsible or logical. … The ACLU app may require a larger police presence to de-escalate some situations, an outcome neither law enforcement nor the community desire.”
Once again, it's highly unlikely the app will draw a crowd larger than any such public scene would. But the St. Paul Police Federation isn't limiting itself to these paranoid theories. It's contemplating asking the courts to block the app
The Saint Paul police officers union is looking into whether legal action is possible against the American Civil Liberties Union for a new smartphone app that notifies subscribers of in-progress police actions, so they can witness whether civil rights are being violated.
I'm going to hazard a guess that, while any
legal action is theoretically possible, very few of them have a chance at successfully preventing the distribution of the app. The app records video and uploads it to a server -- something countless other cellphone camera apps do already. Cellphones are also communication devices, which means any of them could be used to notify others of an ongoing situation. Other social media apps have a far greater reach than the ACLU's app, which limits notifications only to those with the app installed on their phones, and provides the users with the option to limit notifications to only certain people, like close friends or family members.
At the heart of the matter is the recording of police officers performing their public duties, something most courts have agreed is protected First Amendment activity. It's going to be tough to convince a judge that any fears for officer safety or the privacy bystanders, witnesses, etc. trumps the Constitution. Not that this will necessarily stop the union from blowing its members' money on ridiculous lawsuits. Hopefully, if it does choose to pursue litigation, its members will realize the union really doesn't speak for them and is only interested in walling off law enforcement from the public and ensuring its worst members don't lose their positions or power.
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Posted on Techdirt - 20 November 2015 @ 3:30pm
As we've covered before, the DOJ supports the idea of body cameras for local law enforcement agencies. It has set aside over $20 million a year in funding to help these agencies out. But it has no love for body cameras within its own agencies. There are no body cam requirements in place for FBI, DEA, ATF or the US Marshals Service.
In fact, if you're a member of a law enforcement agency which does have mandated body cams, you're no longer welcome to play in the big boys. (Subscription required. For everyone else, here's a way to get around the Wall Street Journal's pay sieve.)
[T]he department is telling some of its agents they cannot work with officers using such cameras as part of joint task forces, according to people familiar with the discussions.
At a meeting of Marshals supervisors several weeks ago in Colorado, Assistant Director Derrick Driscoll announced that the agency wouldn’t allow any local law-enforcement officers wearing body cameras to serve on Marshals task forces, according to several people who attended the meeting.
Do as we say, not as we do? The DOJ has an excuse for that. Currently, it has no guidelines in place for the use of body cameras. It wants other law enforcement agencies to get right on that, but seems to be in no particular hurry to equip its own personnel, much less even move towards getting the process underway.
A Justice Department spokesman said the agency “is looking into this issue and has been consulting with the law enforcement components” within the department.
I would imagine its "components" would rather not have additional accountability pinned to their chests, but it's not as though the DOJ hasn't had several months to carry out its "consulting." It can't stay abreast of small law enforcement agencies in terms of body cameras despite its access to far more money and power.
The only conceivable reason for this stasis is a lack of desire to move in the direction of additional accountability. More evidence of this reluctance can be found in nonsensical statements made to the Wall Street Journal.
Jon Adler, president of the nonprofit Federal Law Enforcement Officers Association, said there are good reasons to keep parts of the Marshals’ work out of the public eye. Witnesses and informants could be inadvertently exposed, he said, and fugitives could learn the Marshals’ tactics and how to evade them.
Ah, the old "expose police methods" excuse. Wonderful. This has been used to keep everything from Stingray surveillance
to police department budgets
secret. The manhunters would become the hunted… or at least the easily-evaded if body cameras were activated during the apprehension of a suspect. Secret methods like physical force, lots of shouting and handcuffs would be exposed by body camera footage. Adler's a bit more on point when discussing witnesses and informants, but even so, video can still be "redacted." That technology has been with up since the debut of COPS over 25 years ago.
Adler's next contention is even worse.
“The Marshals hunt down and apprehend the most despicable and violent people. When you engage in that type of mission, it wasn’t intended to be pretty and it won’t be pretty,” Mr. Adler said. “We don’t want the great work the Marshals Service does to devolve into bad reality TV or a sequence of bad YouTube videos.
Blame the media/internet indirectly. Because incidents are far more nuanced (supposedly) than the average YouTube viewer could possibly comprehend, let's just keep the Marshals camera-free. This sounds suspiciously like FBI Director James Comey's "Ferguson Effect" copsplaining
. The fact that cameras exist makes it harder for police officers to do their job, what with the dangers posed by outside observation.
If local agencies are sporting body cams, so can the feds. There's no reason they should be excepted from this tool of accountability. If anything, the DOJ should be leading by example, rather than saying they're only a good idea for everyone else
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Posted on Techdirt - 18 November 2015 @ 3:28pm
The World Intellectual Property Organization (WIPO) has actually used its powers for good, stopping an Indonesian citizen from spreading malware while taking the name of the EFF in vain.
The Electronic Frontier Foundation's website is eff.org. The squatted-on domain was electronicfrontierfoundation.org. As the real EFF vigorously fights against exactly the sort of thing being distributed by the fake site (spyware and malware), it had a legitimate complaint against the cybersquatter that went far deeper than mere trademark-related confusion.
The disputed domain name was registered on August 4, 2015.
On August 13, 2015, the Complainant was informed that the disputed domain name was being used to confuse consumers by redirecting them to the Complainant’s official website only after surreptitiously installing malicious software on the computers of unsuspecting visitors. According to an affidavit of a Staff Technologist of the Complainant, the malicious code exploited a known vulnerability in the computer programming language Java, by disabling Java security settings which allows it to execute arbitrary Java code without having to ask for the user’s permission.
The incident was reported in the media, for instance in an article published on August 28, 2015 on the website of Ars Technica under the title “Fake EFF site serving espionage malware was likely active for 3+ weeks”.
The EFF's complaint against the cybersquatter also pointed out that the URL was being used in bad faith, implanting computers with keyloggers and being used as a backdrop for a spear phishing campaign.
The Complainant contends that these facts strongly suggest that the disputed domain name was registered for the purpose of supporting a phishing campaign, i.e. an attempt to discover sensitive information such as usernames, passwords or personal details, by confusing consumers into believing that the attacker, to whom information is actually being provided, is in fact a different, trustworthy entity to whom consumers desire to provide information.
WIPO found that the EFF's complaint satisfied multiple prongs of its domain name dispute resolution process. The trademark on the name itself dates back to 1993 and the use of the bogus site to deliver malware payloads added up to "bad faith" use.
The domain has been taken from Shawanda Kirlin of Bali, Indonesia, and given to the EFF for its own use. This will kill off one arm of a sophisticated malware campaign
with possible ties to the Russian government and prevent further abuse of internet users looking for information on privacy and security.
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Posted on Techdirt - 18 November 2015 @ 2:03pm
Is there an expectation of privacy in public spaces? Generally speaking, there isn't. But that doesn't mean it doesn't exist at all. Private conversations in public places are still afforded a limited expectation of privacy by the "Wiretap Act" -- a law prompted by the widespread warrantless use of recording devices, along with the Supreme Court's Katz decision, which found attaching a recording device to the outside of a public phone booth required the use of a warrant.
We may get to see just how far the courts are willing to extend the expectation of privacy in public places, thanks to the discovery of recording devices outside of a US courthouse. (h/t Declan McCullagh)
According to court papers filed Friday, federal agents placed secret recording devices in at least three locations around the entrance to the San Mateo County courthouse in Redwood City without first getting judicial approval.
The courthouse bugs were used in 2009 and 2010 to investigate bid-rigging at public foreclosure auctions. Their existence surfaced in a motion from defense lawyers for a group of five real estate investors accused of colluding to deflate prices at the auctions, which were held on the courthouse steps.
The defense lawyers, led by Latham & Watkins partners Daniel Wall and Ashley Bauer, are asking U.S. District Judge Charles Breyer to suppress more than 200 hours of recorded conversations and all evidence gained from them. They maintain that their clients had a reasonable expectation of privacy when they gathered to speak in hushed voices away from other auction participants.
The bugs were planted by the FBI in hopes of capturing bid-rigging discussions. The lawyers for the five defendants claim the recordings are illegal. Even though they did take place in a public area, the Katz
decision and the Wiretap Act require the use of warrants fpr surreptitious recordings. As the Supreme Court saw it back in 1967, the defendant's actions turned a "public" conversation into a private one: namely, closing the door to the phone booth.
The lawyers here are hoping the use of "hushed tones" will be found to be roughly equivalent to shutting a phone booth door.
Here, the Government targeted conversations that an informant and an undercover agent with full access to the public place were apparently unable to overhear. The evidence will show that Defendants often took affirmative steps to create a zone of privacy for their communications, such as moving away from others, standing close together, covering their mouths, and speaking in low volumes.
The FBI's interception of these conversations was performed without warrants. In fact, the interception apparently was performed with hardly any paperwork at all. The approval for the recording devices came solely from FBI and DOJ attorneys and the resulting recordings ran for hours, without minimization or documentation.
Agents activated the listening devices on at least 31 occasions between December 22, 2009 and September 15, 2010. Bauer Decl., Ex. D. Generally, the recording devices were activated more than an hour before the auctions began, and they would run for a period of time after the auctions had concluded. Some of the devices intercepted every communication that occurred in their vicinity over a period of more than five hours. Id. For example, the Government recorded individuals having private conversations on their cellphones in an area away from the auctions.
Although the target was certain bidders at property auctions, the FBI swept up everything simply because leaving the mics on was simpler than restricting recordings only to the suspects in the case. A supporting document
submitted by the defense details conversations unrelated to the investigation that were not only recorded by the FBI, but stored indefinitely in unminimized form.
The government has already argued that the warrantless recordings were legal as they were used to compile evidence of fraudulent behavior. It also implied probable cause existed for the deployment of surreptitious recording devices. What it omits from its defense of the FBI's actions is that probable cause normally leads to the generation of warrants, not mini-surveillance dragnets that capture more irrelevant conversations than applicable ones.
If the court finds the FBI's actions lawful, it will serve notice that any public area is no place to hold a private conversation, even if the participants make every effort to ensure their relative privacy. This would be at odds with previous court decisions. As the opening paragraphs of the filing point out, it has been previously noted by a US district court that leaving our own homes does not immediately open us up to unlimited government surveillance.
Wesley v. WISN Division-Hearst Corp., 806 F. Supp. 812, 814 (E.D. Wis. 1992) (“[W]e do not have to assume that as soon as we leave our homes we enter an Orwellian world of ubiquitous hidden microphones.”
Merely being in public is not proxy consent for surreptitious recording. The government is arguing that it is, or at least that the lowered expectation of privacy means the FBI shouldn't have to go outside of its own legal counsel to seek permission to eavesdrop -- not just on suspected criminals, but whoever else happens to be in the wrong place at the wrong time.
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Posted on Techdirt - 18 November 2015 @ 12:46pm
Manhattan DA Cyrus Vance may not know what the fuck he's talking about when he discusses encryption, the internet and other tech-related issues. But that's certainly not going to keep him from talking about them.
A just-published "white paper" from the Manhattan DA's office (h/t Matthew Green) offers up all sorts of stupidity in its attempt to justify anti-encryption legislation.
It starts with lofty ideals…
This Report is intended to:
1) Summarize the smartphone encryption debate for those unfamiliar with the issue;
2) Explain the importance of evidence stored on smartphones to public safety;
3) Dispel certain misconceptions that many privacy advocates hold about law enforcement’s position related to encryption, including the myth that we support a “backdoor” or government-held “key;”
4) Encourage an open discussion with technology companies, privacy advocates, and lawmakers; and
5) Propose a solution that protects privacy and safety.
… before throwing most of these out completely, starting with the "open discussion" with the affected stakeholders.
Vance's office doesn't want to burden the nation's tech companies with "golden keys
" or "good guy-only" backdoors. The paper admits such a "solution" would be complicated and expensive. (But not impossible
His solution? Something that doesn't burden tech companies, but simply leaves their customers unprotected. No backdoors will be needed because there will be nowhere to install one.
The federal legislation would provide in substance that any smartphone manufactured, leased, or sold in the U.S. must be able to be unlocked, or its data accessed, by the operating system designer. Compliance with such a statute would not require new technology or costly adjustments. It would require, simply, that designers and makers of operating systems not design or build them to be impregnable to lawful governmental searches.
That's the big idea: a ban on encryption, presented disingenously as "Not A Ban." For all the paper's supposed "discussion" of the issues and contemplation of concerns expressed by companies and their customers, this is the DA's office's brilliant cure-all: federal legislation that would prevent companies from deploying encryption -- at least not without holding onto a set of keys for government use.
Offered in support of these arguments are the horrendous laws being contemplated/passed in other countries like the UK
. If they can do it, we can do it! Vance's office argues any resulting harm to human rights civil liberties will be minimal. Undiscussed is the resulting harm to innocent users whose phones' contents are no longer encrypted.
The paper also discusses various workarounds that have been suggested, like accessing the unencrypted contents of cloud storage services connected to users' phones. The DA's office says that just isn't good enough. For one thing, not every user utilizes the cloud services offered by Google and Apple. The office's argument against seeking other routes to communications and data is astoundingly terrible.
[S]martphone users are not required to set up a cloud account or back up to the cloud, and therefore, many device users will not have data stored in the cloud. Even minimally sophisticated wrongdoers who use their devices to perpetrate crimes and who have cloud accounts will likely take the relatively simple steps necessary to avoid backing up those devices, or data of interest, to the cloud. In most instances, only one or two selections must be made in the device’s settings to turn off the back-up function or to remove certain types of content from the back up.
There's a huge problem with this paragraph. It makes the assertion that criminals are more likely to avoid utilizing cloud backup services while simultaneously noting that this process is entirely optional
and will not be used by most people. Using this logic, an average user may also be a "minimally sophisticated wrongdoer," at least as far as law enforcement can tell from what it finds stored in the cloud.
The underlying point is that lots of data and communications still reside within the phone itself and law enforcement will not be able to access this without Apple or Google leaving a door open for it.
The office does further damage to its own arguments for banning encryption by highlighting a string of successful prosecutions utilizing evidence recovered from cell phones. It uses this list to highlight the amount of "probative evidence" obtained from cell phones while simultaneously (and inadvertently) pointing out that law enforcement really hasn't been stymied by encryption, despite Vance's FUD-filled imaginations to the contrary.
And, finally, let's take a look at one more bogus analogy made by Vance's office, in which he tries to equate phones with houses.
The Fourth Amendment dictates that search warrants may be issued only when a judge finds probable cause to believe that a crime has been committed and that evidence or proceeds of the crime might be found on the device to be searched. The warrant requirement has been described by the Supreme Court as “[t]he bulwark of Fourth Amendment protection,” and there is no reason to believe that it cannot continue to serve in that role, whether the object that is to be searched is an iPhone or a home.
In fact, what makes full-disk encryption schemes remarkable is that they provide greater protection to one’s phone than one has in one’s home, which, of course, has always been afforded the highest level of privacy protection by courts. Apple and Google should not be able to alter this constitutional balance unilaterally. Every home can be entered with a search warrant. The same should be true of devices.
A more honest analogy would compare phones to computers
, which is basically what they are. While a warrant may give cops access to someone's computer -- allowing them to seize it -- it does not
guarantee they'll be able to access its contents. Vance wants to compare opening a phone to opening a door, but it's not a true comparison. If people could make their houses as impregnable as their phones and computers, some very likely would -- and not just the theoretical "minimally sophisticated criminals." A house that cops can't get into is a house criminals
can't get into. But there's no way to encrypt a door or window.
The paper tries to portray this as somehow making phones more private
than houses in terms of the Fourth Amendment. But encrypted phones have nothing to do with a heightened expectation of privacy. Encryption makes phones more secure
than houses, not more private
than houses. The Fourth Amendment considerations aren't being shifted. It's only the level of instant access that's being changed. Vance's office -- being part of the law enforcement community -- should welcome efforts that make citizens more secure. Instead, all it's doing is bitching loudly and disingenously about all the power it imagines encryption will strip away from it.
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Posted on Techdirt - 17 November 2015 @ 11:31pm
Citizens don't care much for red light/traffic cameras. These revenue generators do little more than turn moving (or parked) vehicles into ATMs for the governments that deploy them. Obviously, local governments love them. They love them so much they're willing to overlook badly-broken systems, crooked manufacturers and increases in vehicle collisions.
Sometimes the citizens win the fight against red light cameras. That's when the government's hate for the little people really shows through. Late last year, residents of St. Charles, Missouri, showed Redflex the door by voting for a ban on camera-based traffic enforcement.
In St. Charles, Missouri, it was the county council, not a petition, that put the question of a photo ticketing ban on the ballot. County Councilman Joe Brazil came up with the measure as a means of reining in automated ticketing in St. Peters. Len Pagano, the town's mayor, insisted it violates "local control" to allow voters to decide such an issue. They did decide by a margin of 72.6 percent that the cameras should be banned.
It's unclear if Pagano's relationship with traffic enforcement camera manufacturer Redflex
is as close as his predecessor's was. The former mayor, Shawn Brown, was sentenced to 18 months in prison
for soliciting a bribe from the traffic camera company -- threatening to withhold approval until it paid him off. Redflex's hands were clean in this
incident (not so much in other cases
Pagano hasn't been tied to any financial malfeasance. That doesn't necessarily make him a friend of the common man, though. Shortly before this measure went up for public vote, Pagano told constituents he would spend their money to prevent them from enacting the ban they clearly desired
"There is the strong potential for litigation," Pagano warned in a letter to County Councilman Joe Brazil, the amendment's sponsor.
The constituents of St. Charles County have been handed a victory by the court
"You may be raising serious constitutional questions that may take several years and potentially hundreds of thousands of dollars in legal fees to answer."
Pagano said his city "and other interested parties at the local and state level and in the private sector" will carefully scrutinize any actions taken by the county that "restrict municipalities' roles and responsibilities."
-- something that will slightly lessen the sting of having to fight a taxpayer-funded opponent just to be granted the ban taxpayers had already overwhelmingly declared they wanted.
The cameras will not return to St. Peters after Judge Pelikan decided that counties in Missouri do indeed have the power under the state constitution to regulate "any and all services and functions of any municipality" through the county charter.
"Plaintiffs incorrectly contend the charter amendment invades the province of general legislation involving public policy of the state as a whole, contending the public policy of the state of Missouri delegate directly and exclusively to the cities the authority to control traffic on municipal streets, including, as applicable here, the authority to use 'red light cameras' and other 'traffic control devices," Judge Pelikan ruled. "The county relies on its police power in conjunction with the police power of the municipalities to enact its charter amendment to serve the public good. The acts contemplated by the charter amendment are squarely within the powers granted to the county and the municipalities and are therefore valid and enforceable."
In essence, the government claimed the public couldn't tell it what to do through the use of charter amendments. The court says it can indeed
do this and that the use of charter amendments to force the government to give the people what they actually
want is perfectly constitutional. The public gets a win, but nothing is more bittersweet than the last sentence of the order
, which ultimately means nothing in this context. A single party is footing the court costs for both sides, even if the wording in the order makes the situation seem far more equitable.
Each party shall bear its own costs.
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Posted on Techdirt - 17 November 2015 @ 3:30pm
It looks like a few law enforcement agencies might be doing some judge-shopping in the future. Magistrate judge Iain D. Johnston has announced -- via an order in a (mostly) sealed drug investigation case -- that agencies will no longer be able to come to him to get their Stingray-related orders rubber stamped.
His order points out that there's still hardly any information in the public domain about Harris Corporation's cell-site simulators, and even less so in terms of legal precedent.
[T]he manufacturer of cell-site simulators (a company called the Harris Corporation) is extremely protective about information regarding its device. In fact, Harris is so protective that it has been widely reported that prosecutors are negotiating plea deals far below what they could obtain so as to not disclose cell-site simulator information.
So where is one, including a federal judge, able to learn about cell-site simulators? A judge can ask a requesting Assistant United States Attorney or a federal agent, but they are tight lipped about the device, too; in all likelihood because of the NDAs…
The Court could attempt to learn about the device on the Internet. See Stingray Phone Tracker, http://en.wikipedia.org/wiki/Stingray_phone_tracker (last visited October 19, 2015). But most reasonable people know to be highly skeptical about what they read on the Internet, particularly in Wikipedia posts… [These] articles often rely on secondary source material, including the possibly untrustworthy Internet websites.
Unfortunately, the one place where a person will be unable to find much discussion of cell-site simulators is case law. In the Matter of the Application of the United States of America for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, 890 F. Supp. 2d 747, 752 (S.D. Tex. 2012) (“Regardless of what it is called, there is scant case law addressing the equipment.”). And even case law that discusses stingrays refers to newspaper reports as authority on these devices.
Judge Johnston recommends magistrates at least read the DOJ's own guidelines
for electronic surveillance. Unfortunately, this document is a decade old and portions of it have been overwritten by the DOJ's recent guidance
on the use of Stingray devices. But it's better than nothing. And "nothing" has been the goal of both law enforcement and law enforcement agencies over the past several years -- something that has been achieved in large part thanks to the FBI putting its own NDA
between Stingray-related information and courts, defendants and, in some cases, prosecutors.
Using what little information he's been able to gather, Johnston has produced a set of ground rules for Stingray warrant applications. There are Constitutional issues raised by the use of Stingray devices, which collect device information (including location) even when the phone part of the phone isn't in active use.
As Johnston points out, agencies using these devices routinely collect and store information on thousands of non-suspects, thanks to the catch-it-all nature of cell-site simulators. Like anything else Stingray-related, these agencies show little interest in discussing how this non-hit information is handled. Because of this, Johnston says the following guidelines will need to be followed if law enforcement agencies want him to sign off on cell-site simulator warrants.
When a cell-site simulator is used, the Court will impose three requirements: the first relates to the manner in which the device is used; the second relates to the destruction of innocent third parties’ data; and the third explicitly prohibits the use of innocent third parties’ data.
When using these devices, law enforcement agencies must make every reasonable effort to limit the amount of information gathered from innocent third parties. As an example, Johnston says pursuing a suspect may find police parked in front of a full stadium. If this is the case, the Stingray device should not
be deployed as the ratio of non-hit data would be astronomical. As he points out, any reasonable law enforcement agency would prefer not to dig through tons of irrelevant data to find the devices they're actually looking for.
This leads directly to the second requirement: the destruction of innocent third party data. Johnston won't allow agencies to sit on data for the 90 days or six months they're accustomed to (see also: the very few guidelines
issued for the use of automatic license plate readers by law enforcement).
[L]aw enforcement officers must immediately destroy all data other than the data identifying the cell phone used by the target. The destruction must occur within forty-eight hours after the data is captured. The forty-eight hour time frame is designed to have some consistency with other Fourth Amendment principles…
And it's not enough for agencies simply to claim
they will destroy non-relevant data within 48 hours. They also must deliver to the court confirmation that the destruction of non-hit data has been completed.
Finally, Johnston's rules forbid the use of non-hit data for any other reason, heading off potential Stingray fishing expeditions by law enforcement agencies.
[L]aw enforcement officers are prohibited from using any data acquired beyond that necessary to determine the cell phone information of the target. A cellsite simulator is simply too powerful of a device to be used and the information captured by it too vast to allow its use without specific authorization from a fully informed court.
The order notes that this applies to any federal agency working with local law enforcement. The FBI, DEA and US Marshals all must comply with Johnston's stipulations, so any local agency looking to work around the new rules can't send in a federal rep with a warrant request, or vice versa.
If Johnston's court becomes a place law enforcement agencies avoid, their actions will make it clear they have little respect for the Fourth Amendment and would rather use power surveillance tools indiscriminately and without additional oversight.
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Posted on Techdirt - 16 November 2015 @ 12:43pm
This could be fun.
Last February, DEA agents took $11,000 from college student Charles Clarke. The funds were to be used to continue his education. The DEA, however, had other plans for the money.
Deciding that Clarke's one-way ticket, odor of marijuana smoke and the inability to instantly prove all of the $11,000 was obtained legitimately, the DEA seized it. Good thing it did, considering there were 13 law enforcement agencies expecting a percentage of the take.
Clarke was initially charged with assault because he struggled to prevent DEA agents from separating him from the cash he says he spent five years saving. That charge was dropped. No other charges were brought. No contraband or weapons were found on his person.
In asset forfeiture cases, those whose property has been seized by the government must challenge the seizure and provide proof of its legitimate origin. All the government has to do to keep the money is wait the challenge out. In a large percentage of cases, the seizure is never contested. The government has unlimited resources. Those challenging forfeitures do not. In fact, they have even less to work with, thanks to the government's prior actions, and fighting seizures can be incredibly expensive.
Fortunately for Clarke, a judge has flipped the script.
Clarke’s lawyers asked for documents from the government with the intent to prove there are constitutional problems with the practice and that it gives police a profit-driven motive to seize property and funds.
The U.S. attorneys were not able to give all the documents to Clarke’s team and so they took the issue up with Judge Bertelsman. He decide to split the case into two parts:
First; the U.S. attorneys have to prove they have grounds to keep Clarke’s money. I.e., they have to prove that Clarke made the money from drug dealing.
Second; if the government proves the money came from drugs, Clarke’s team will have to argue against the issue of civil asset forfeiture itself. I.e., arguing that the practice is profit-driven or worse.
The burden of proof has been shifted back to where it always should have been, especially when seizures continue without accompanying criminal charges. The government can no longer simply claim Clarke's ticket, odor and lack of receipts are indicative of illegal activity. It has been ordered to show its work. This will be difficult because, given the lack of charges against Clarke, it most likely has nothing to present to the judge in the way of evidence.
If it somehow manages to round up some evidence proving its "guilty money" theory, it's still not in the clear. It will then have to defend the idea of civil asset forfeiture if Clarke's lawyers sufficiently demonstrate to the court the program's nasty side effects.
But it's the first part that's the most important. Given the fact that government agencies can seize property without securing convictions, orders like this one force the government to come up with better evidence than "one-way ticket" or "marijuana odor." The DEA must now find some way to connect the money it took to criminal activity, something agencies that participate in forfeiture programs don't have much experience in doing.
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Posted on Techdirt - 13 November 2015 @ 3:33pm
The Supreme Court is taking a swing at the Sixth Amendment and it looks like it may be worse off by the time the court's finished with it.
At the center of the case is Sila Luis, who was indicted in 2012 of defrauding Medicare to the tune of $45 million. She has yet to be convicted of any crime, but the case has moved all the way to the Supreme Court because of pre-trial actions by the US government.
Apparently, the millions of dollars Luis allegedly siphoned from Medicare is long gone. So, the government has seized her lawfully-acquired assets ahead of the trial in order to guarantee it can collect fines and damages should it secure a conviction.
The problem is obvious: with all of her assets frozen, Luis cannot seek the best representation she can afford. She can only avail herself of legal representation willing to work for free or in hopes of her assets being released to her if she's acquitted.
This is a problem for anyone who's had their assets seized by the government. Challenging a forfeiture is difficult enough without the added hurdle of financing it with restricted means. The government, of course, doesn't see any problem with seizing funds before obtaining a conviction. (Convictions in asset forfeiture cases are somewhat of a rarity, and in almost every state, the lack of a conviction is no impediment to seizing whatever property the government speculates could be tied to illegal activity.)
In asset forfeiture, it's the property that's considered "guilty." In this particular case, the government doesn't even dispute the legitimacy of the funds it's taken from Luis. Instead, it claims it has the right to seize funds ahead of a conviction as a sort of down payment on expected fines and damages.
The oral arguments in front of the Supreme Court don't bode well for people in Luis's position. This summation of the justices' responses to her legal rep comes from Amy Howe of the renowned SCOTUSblog.
Justices of all ideological stripes appeared unconvinced. Justice Elena Kagan told Srebnick that there is a “powerful intuition” to his argument, but “it seems that the distinction you’re making is one the Court explicitly rejected in” its 1989 ruling. Your case, she continued, “doesn’t seem to present any different circumstances.” Roberts was also skeptical, telling Srebnick that, “if you can freeze tainted assets without running afoul of the Sixth Amendment, I don’t understand why you can’t freeze untainted assets.”
Justice Samuel Alito seemed to agree. He asserted that, “as a matter of economics and common sense,” “money is fungible.” He described a hypothetical in which twin brothers rob a bank and steal $10,000, which they divide between the two of them. They also each receive $5,000 as a birthday present from a rich uncle. The first twin spends all of his money from the robbery but saves the birthday money, while the second one spends all of his birthday money but saves the money from the robbery. Under Luis’s position, Alito emphasized, the first brother could use his money to hire a lawyer, but the second one couldn’t. “What sense does that make?” Alito asked. Justice Anthony Kennedy chimed in, telling Srebnick: “The law that you want this Court to say is ‘spend the bank robbery money first.’”
The Court's fear appears to be that if they agree with Luis's argument, criminals will make sure they divest themselves of their ill-gotten gains before being arraigned. While this might be the case, the Court perhaps gives too much credit to the innate wiliness of criminals. Our nation's prisons are full. Some of that can be traced to overzealous prosecution, the Drug War and a billion pages of obscure federal regulation. But some of that is due to the fact that many criminals are opportunists and, as such, are not particularly good at the whole "delayed gratification" thing.
But that's really neither here nor there. The key to the defense's argument is that the Sixth Amendment supposedly grants Americans the right to the "assistance of counsel." This would include availing themselves of the best representation they can afford. The government stacks the deck
by stripping certain defendants of their wealth before pursuing a conviction. But as the justices see it, the alternative is to let criminals spend "bad" money first and work toward beating the rap with their "good" money.
The justices didn't completely side with the government, however. Justice Breyer, in particular, felt the government's angle was just as questionable as Luis's interpretation.
Now let's try it with the facts here. If a defendant has some money, which maybe he will have to pay in a fine, what we'll do is we'll take all his money away before he's been convicted beyond a reasonable doubt. Okay. That's the difference in the propositions.
And I'm saying it's pretty hard for me to think in a country which says that before he's convicted, you have to release him on bail except in unusual circumstances, that nonetheless, you can take all his money away so he can't hire a lawyer.
The government countered Breyer's point by arguing that the specifics of this
alleged crime led to a lawful seizure under clearly-defined statutes passed by Congress. Justice Kennedy, however, points out the specifics aren't really all that specific.
But what is it that confines your rationale to a specific area? It seems to me that if the government prevails in this case, every State in the union, every locality could say that in the event of assault and battery, malicious mischief, drunk -- an accident caused by drunk driving, any crime involving a bodily injury, that the government is entitled to restrain disposition of assets that might be used for medical care, for pain and suffering. And this would, in effect, prevent the private bar from -- from practicing law unless it did so on a contingent basis.
As the justices remind the government -- and as is pointed out by the defense -- the 1989 Supreme Court decision referenced constantly through the oral arguments (US v. Monsanto
[not that one
]) clearly specified that the government could seize tainted
funds pre-trial. No such permission was given for untainted funds.
While the government has admitted the funds it's seized are untainted, it also argues they are "fungible." The government says it's difficult to separate clean money from dirty money, and even if it could, leaving untainted assets laying around would just encourage defendants to stick it to The Man by loading up on high-priced lawyers.
After all, Justice Breyer, this is basically a zero-sum game. Either there will be money available at the end of the case for the victims or the money will have been spent on lawyers.
The Supreme Court, at this point, seems unwilling to call an end to pre-conviction seizures -- even of untainted funds. It apparently realizes the downside of siding with the government: the abuse of pre-trial asset seizures that could result in less-than-effective representation for accused parties. But it appears more inclined to allow the government to deal from the bottom of the deck on occasion, rather than accept the possibility that a few accused criminals may use this Sixth Amendment "loophole" to dodge fines and damages resulting from convictions.
While the Supreme Court has made a few nods towards the Fourth Amendment in recent months, it still has shown quite a bit of deference to the law enforcement point of view. The wins of Riley
(warrants for cell phone searches) and Rodriguez
(no prolongment of traffic stops for fishing expeditions) must be balanced against Heien
(cops can use any "reasonable" justification for a traffic stop, even nonexistent laws) and Mullenix v. Luna
(immunity in officer-involved-shooting upheld). Beneath the challenges to the government's arguments, there's a distinct undercurrent that hints at the Supreme Court's willingness to let one innocent person be deprived of their right to counsel, rather than let thousands of criminals use "guilty" money to "purchase" their innocence.
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