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Posted on Techdirt - 17 September 2021 @ 3:53pm

California Legislators Continue To Anger Cops By Introducing Legislation Demanding More Transparency And Accountability

from the GOOD dept

An immense amount of reform has hit cops in California over the last few years.

The state very recently made it possible for public records requesters to obtain records about police misconduct -- something that had been statutorily-shielded for decades. That, of course, made local law enforcement agencies unhappy. They sued. They let the state Attorney General argue against the interests of California residents. They fucked around and found out. And yet, they still pretended they could shred their way through this.

There's more reform on the horizon. If cops didn't like having their misconduct records being made available to the public, they're really not going to like what's coming next. The general public could have access to even more records -- ones that may confirm assumptions about cops and their motivations.

In the two years since a state transparency law went into effect, San Francisco police have released previously secret disciplinary records from dozens of police shootings and a few incidents of police misconduct.

Now the same state lawmaker behind Senate Bill 1421 is pushing new legislation that would expand the scope of disclosable records beyond the current parameters, which only include shootings and proven allegations of dishonesty or sexual assault.

The new legislation, Senate Bill 16 by Sen. Nancy Skinner, D-Berkeley, would also require police to disclose cases involving sustained findings of bias or discrimination and unlawful searches or arrests.

All this bill needs is the governor's signature. That law enforcement failed to have this killed before it could make its way to the governor's desk perhaps indicates their unions and lobbyists are no longer as powerful as they once were. And police officers have no one to blame but themselves for the lack of sympathy displayed by politicians and the public they were supposed to be serving for all these years.

BUT WAIT! THERE'S MORE.

Let's sit back and enjoy the vicarious anguish of government employees who've gotten away with so much for so long. More trouble is on the way for the supposedly small group of "bad apples." (Cop shops love their bad apples, btw.)

Senate Bill 2, authored by Senator Steven Bradford (D-Gardena), would remove some immunity provisions for law enforcement and peace officers, as well as public entities employing them who are being sued because of something they did.

Under the bill, if former officers are convicted of a felony, they can never return to any kind of peace officer position. Although, those who are later found to be innocent, or if their conviction is reversed or expunged, can. Likewise, applicants to law enforcement positions would be disqualified immediately if they are found to have committed crimes against public justice, such as bribery, falsification of records, and perjury, or if they had previously had peace officer certification revoked.

This seems so obvious it shouldn't be controversial. Bad cops shouldn't be allowed to become sign-able free agents if they've violated the law. They're in the law enforcement business. If they can't follow the law, they shouldn't be able to call themselves law enforcement officers.

Of course, there's incoherent opposition.

Opposing lawmakers, as well as many law enforcement organizations, have charged that the bill leaves police officers at the risk of being denounced due to revenge against being the arresting officer, as well as bias concerns on the decertification board due to it being mostly members of the public.

“It is grossly unfair,” said Republican Assemblyman Kelly Seyarto (R-Murrieta) on Friday. “None of the other 46 states [with decertification boards] have a similar composition. None of them are this lopsided.”

I don't even know what "due to revenge against being the arresting officer" is supposed to mean. And the Assemblyman's comments do nothing to clarify the complaints. All it does is amplify the outrage officers are apparently feeling in response to being forced to be both accountable and transparent while collecting paychecks written by the public.

If you can't handle the heat, give up your pensions and GTFO of the kitchen. It's time cops were given as much scrutiny as retail workers. If they can't handle that, they've got plenty of options in the private sector.

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Posted on Free Speech - 17 September 2021 @ 10:57am

Appeals Court Says The First Amendment Protects Minnesota Woman's Right To Be Super-Shitty About Nearby Islamic School

from the and-that's-how-it-goes dept

The First Amendment protects unsympathetic plaintiffs just as much as it does those able to obtain mass support for their arguments. This case, originating from Bloomington, Minnesota, involves someone whose motives seem bigoted but whose actions were clearly covered by the Constitution.

When a new school catering to immigrants moved into the neighborhood, Sally Ness took action. An agreement between the city and the Dar Al-Farooq School allowed students of the school to use a nearby park for recreation. Ness felt the school and its students were violating the terms of the agreement and took to filming students at the park, as well as the traffic flowing to the school to pick up students.

This resulted in harassment accusations from parents of these students, which the Bloomington PD investigated, visiting Ness at her home and, later, telling her to stop filming students because parents and school administrators might be feeling "intimidated" by her actions. The officers told her to "take her pictures" and "move on."

Ness also frequently attended city council meetings to voice her displeasure with the school and its apparent abuse of the public park. After a few meetings, the council amended its harassment law to include something that very specifically targeted Ness' actions.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child's parent or guardian.

Hello, First Amendment violations. This not only outlawed Ness' documentation of park use by school students, but also more "acceptable" recordings of children, like journalistic efforts or capturing evidence of criminal activity by minors.

Ness sued. And the claims she advanced were rebuffed by the federal court handling the case. The court said she had no standing to challenge the amended law, despite the fact the amendment was obviously added to target her documentation of the park. It said the DA had refused to prosecute previous allegations and, apparently, felt this would always be the case, even with the addition of the amendment.

It also said the new law was "content neutral" because it did not target photographers, but rather what they recorded (???).

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral.

But it very obviously targeted the content of Ness' recordings. It forbade her from photographing children, which were always the subject of her recordings, which were supposed to show the school was violating its agreement with the city to provide limited, exclusive use to students for recreation.

As the district court saw it, the ends could not have been achieved without this law, which made it a good law.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Ness appealed. And the Eighth Circuit Appeals Court says [PDF] the lower court is wrong about the ordinance, the First Amendment, and its definition of the legal term "content neutral." (h/t Volokh Conspiracy)

The court says of course this is protected speech. It is information gathering about issues of public interest: the possible violation of agreements with the city by a local school. That the information gatherer appears to be motivated more by bigotry than actual concern about violated contracts (something only aggravated by Ness' decision to bring the American Freedom Law Center on board as her representation) doesn't matter.

Applying the distinction between speech and conduct to this case, we conclude that Ness’s photography and video recording is speech. Ness wants to photograph and record the asserted “non-compliant and overuse of Smith Park” by the Center and Success Academy, and she wants to post those photographs and videos to an internet blog and a Facebook page “in order to inform the public” about the controversy. Thus, her photography and recording is analogous to news gathering. The acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy.

Since this is protected speech, the court needs to determine whether it's narrowly tailored enough to serve the public's interest while still protecting their constitutional rights. The court says this ordinance fails to pass that test.

We may assume that a narrowly tailored ordinance aimed at protecting children from intimidation and exploitation could pass strict scrutiny. The present ordinance, however, is not narrowly tailored to that end as applied to Ness. Ness seeks to photograph and video record a matter of public interest—purported violations of permits issued by the City—and does not intend to harass, intimidate, or exploit children. Ness also advised the City that it was her practice to “block” out the identities of juveniles when she posts images online, and the City produced no evidence to the contrary. Yet her photography and recording is nonetheless proscribed by the ordinance.

The strict scrutiny test fails and so does the city's law, which was clearly written to discourage Ness from engaging in documentation of perceived violations by the school and its students.

We therefore conclude that the ordinance, as applied to Ness’s activity that forms the basis for this lawsuit, is unconstitutional under the First Amendment.

That makes it pretty much unconstitutional for everyone. There are plenty of legitimate reasons for recording children in a park: journalists with kid/park-related stories to cover, suspicion of criminal activity in the park committed by minors, the inadvertent capture of this area by homeowners' security cameras, etc.

Ness' motivations may have been limited to finding literally any reason to NIMBY a school catering to foreign students and their Islamic faith, but that still doesn't justify the city crafting an unconstitutional law to specifically target her protected speech. Protecting speech doesn't mean only protecting speech you like. And now the city knows it can't target Ness in this way without violating the First Amendment. Maybe it will do the smart thing and let Ness tire herself out attempting to prove the non-whites in her neighborhood are violating the terms of their agreement with the city.

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Posted on Techdirt - 17 September 2021 @ 3:36am

Minnesota Troopers Decided Being Sued For Excessive Force Was The Perfect Time To Delete Emails And Text Messages

from the mens-rea-me-this,-motherfuckers dept

How do you reform this?

Minnesota State Troopers engaged in a massive "purge" of emails and text messages shortly after the agency was accused of using excessive force during the protests and riots over the death of George Floyd last summer, according to court testimony filed late Friday.

That's according to KSTP reporting by Ryan Raiche, which appears to have broken the news about this defensive effort by the MSP. It's not just defensive. It's illegal. The records purge appears to have been triggered by lawsuits filed against the agency alleging excessive force during policing of the George Floyd protests.

This is some serious misconduct. This is the people entrusted with making sure the rest of us abide by laws abandoning their duty to be law-abiding themselves.

The purge of communication means troopers may have destroyed potential evidence that could be used against the agency in multiple pending lawsuits regarding its use of force on protestors and journalists following Floyd's murder.

When this is done in a civil case, it's sanctionable. When it's done in a criminal case, it's called obstruction. Well, it's called that when civilians do it. When cops do it, it's possibly excusable, especially if it doesn't run afoul of any precedent.

The Minnesota State Patrol certainly seems to believe this conveniently timed purge of communications that might be made public during litigation is acceptable. According to testimony by Minnesota State Patrol official Joseph Dwyer, the agency did nothing wrong. Everything that happened was just the following of procedure. Defending these actions in court, Major Dwyer said the purge was "standard practice."

But how standard? Major Dwyer had no (satisfactory) answer for this question.

[T]he supervisor acknowledged that practice typically varies from trooper to trooper and does not follow any sort of set schedule.

Sometimes, the MSP deletes email and other communications after a set period of time. Other times it deletes communications after being informed it's being sued. We don't know what the normal deletion schedule is, but we do know what this deletion was in response to, thanks (once again) to the Major's testimony.

Kevin Riach, the ACLU attorney, repeatedly questioned the supervisor about the deletion of emails and possible evidence.

"You just decided, shortly after the George Floyd protests, this would be a good time to clean out my inbox?" he asked.

"That is correct," Dwyer testified.

Looks pretty open-and-shut, your honor. Sanctions all around! One can only assume the deletion was an effort to keep incriminating communications from being used by litigants suing the agency. This isn't speculation. This is the only logical reason a law enforcement agency would start deleting stuff after being served with a lawsuit. And by "logical," I mean that it's an action that would eliminate inculpatory communications. I don't mean "logical" as in the equivalent to common sense.

If I'm the judge handling these cases, sanctions are just the beginning. Default judgments in favor of the plaintiffs would really drive the message home. This is heinous bullshit. Hopefully, the judges handling these cases will punish the Minnesota State Patrol just as enthusiastically as its officers punished peaceful protesters.

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Posted on Techdirt - 16 September 2021 @ 1:34pm

DEA Returns $87,000 It Helped Nevada Law Enforcement Steal From An Ex-Marine

from the 'everything-checks-out,'-they-said-while-they-helped-themselves-to-his-m dept

Another bullshit forfeiture has attracted national press attention. This one has some added bonuses, like local cops stating on (body cam) that the easiest way to get their hands on the seized money would be to ask the feds to come in.

It's the usual stuff: a pretextual stop, a bunch of questions unrelated to the alleged violation, and the theft of a person's money based on nothing more than an officer's speculation about its origin. (alternate link)

The Nevada trooper first told Stephen Lara the highway patrol was educating drivers “about violations they may not realize they’re committing,” and that he’d been pulled over for following a tanker truck too closely. Eventually the trooper admitted having an ulterior purpose: stopping the smuggling of illegal drugs, weapons and currency as they crossed the state.

Lara — a former Marine who says he was on his way to visit his daughters in Northern California — insisted he was doing none of those things, though he readily admitted he had “a lot” of cash in his car. As he stood on the side of the road, police searched the vehicle, pulling nearly $87,000 in a zip-top bag from Lara’s trunk and insisting a drug-sniffing dog had detected something on the cash.

The drug-sniffing dog was wrong, apparently. Or even if it was right, it was detecting something present on almost all cash in circulation: drug residue. No actual drugs were found in Lara's car.

What was found was $87,000 in cash, but $87,000 supported by a stack of receipts from ATMs, showing Lara had pulled this cash from his own accounts. That lined up with Lara's story, which the Highway Patrol didn't even find unbelievable. It also lines up with comments from someone unlikely to burnish the reputation of someone who is (allegedly) $18,000 behind on child support payments. Matt Zapotosky of the Washington Post tracked down Lara's ex-wife, Kimberly Olson, who confirmed his predilection for having lots of cash on hand.

Olsen said she thought Lara might have kept his money out of the bank in part so he would not have to turn it over in child support. But she noted that even when they were married years ago, Lara “just liked to have his cash” and made frequent withdrawals.

She said Lara did not seem to spend an inordinately high amount but liked to “show off” the cash itself, and spend it on his kids. She said she did not think he was a drug trafficker.

Of course, the trooper who pulled Lara over had none of this information. But he did have a stack of ATM receipts that appeared to indicate the source of the funds. Ultimately, none of that mattered. The Highway Patrol wanted the money, so they found a way to get it. Despite one trooper stating he thought Lara was legit, the law enforcement agency sought outside help to make it easier to retain at least a portion of the $87,000.

Video of the stop, recorded on multiple body cameras, shows a trooper and Lara having a genial conversation, with Lara agreeing to be searched. The troopers pull the cash from his trunk and remark that the bills seem to be new. Lara points them to the receipts, which he says prove the money is his.

“As odd as it is, everything lines up,” a trooper says at one point.

In the video, Lara tells the troopers he does not trust banks. At one point, a sergeant on the scene calls someone — apparently a DEA agent — to confirm the forfeiture process.

“It’s too easy to do an adoption,” the sergeant says.

It is too easy. That's one thing that's been obvious for years. States have belatedly realized a lot of forfeiture amounts to little more than state-ordained armed robbery. But restrictions deployed at state level can almost always be bypassed by asking the feds to step in. And forfeiture adoption policies require the federal government to kick back a certain percentage of the take to the locals who initiated the seizure.

So, that's how things went for Lara. Nevada troopers took his cash, called in the DEA, and the DEA initiated the forfeiture. That happened back in February of this year. Lara challenged the seizure. Then he went public with his accusations. And that appears to be what has triggered a belated change of heart by the DEA, six months after it took control of Lara's money.

It was only after Lara got a lawyer, sued and talked with The Washington Post about his ordeal that the government said it would return his money.

But that's not the end of it for the law enforcement agencies involved in this. Lara may be getting his money back but he's not abandoning his litigation. He's trying to secure a ruling blocking the Nevada Highway Patrol from utilizing the federal adoption option to get a cut of cash it might have trouble securing on its own.

Some of the damage has been undone. But let's not forget the government kept Lara's money for six months for no other reason than it was "too easy to do." That's unacceptable.

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Posted on Techdirt - 16 September 2021 @ 10:44am

Federal Court Blocks Enforcement Of Florida's New Anti-Riot Law

from the looks-like-some-old-school-racism-from-here dept

Earlier this year, the Florida state legislature passed a law that turned protesting into a crime by expanding the definition of "riot" to make peaceful protesters culpable for the actions of those actually engaged in rioting. It refused bail to those arrested at protests and the term "aggravated rioting" was expanded enough to cover any gathering of more than nine people that blocked any road.

As soon as the law went into effect, it was deployed against protesters. But only certain protesters. Those involved in Black Lives Matter/anti-police brutality protests were targeted, but Cuban solidarity protesters were not only allowed to block traffic without being arrested, they were actually allowed onto freeway access ramps by police officers.

The law was immediately challenged by a number of groups when it went into effect. The Florida NAACP, Black Lives Matter Alliance Broward, and Dream Defenders sued to have the law blocked and declared unconstitutional. Thanks to a Florida federal court, they have obtained the injunction they were seeking.

The injunction order [PDF], written by Judge Mark Walker, opens with a brief recounting of how riot laws have historically been deployed to assist the government in enforcing segregation and other racists policies.

On May 27, 1956, Wilhelmina Jakes and Carrie Patterson, two Black students from Florida Agricultural and Mechanical University in Tallahassee, boarded a local city bus. They sat in the only available seats, which were in the “whites-only” section. The two women refused to move when ordered to do so, and the bus driver called in the police. Three police cars arrived at the scene and Ms. Jakes and Ms. Patterson were arrested. Their charge—“inciting a riot.” The rest is history.

Five years after the FAMU students’ arrests, nine clergymen arrived at the Tallahassee Airport to test the state’s Jim Crow laws as part of the Freedom Rides of 1961. The clergymen were Black and White men of various faiths, including two rabbis and ordained ministers from several Protestant denominations. Over the course of about 24 hours, they repeatedly rescheduled their outbound flights in an apparent attempt to see if the Tallahassee Airport’s restaurant would serve them as a group. The clergymen had previously been “given protection against violence or other disorder from groups or individuals who resented [their] activities,” but after a day of rescheduled flights, the City had enough of their efforts “to goad the municipality and its restaurant lessee to open the restaurant,” and serve the Black and White men together. Accordingly, the city attorney approached the clergymen at the airport and proclaimed that their assembly “at the municipal Airport of Tallahassee will tend to create a disturbance or incite a riot or disorderly conduct within the City of Tallahassee at its Municipal Airport over which the city had jurisdiction.” The city attorney ordered the clergymen to disperse, but after about ninety seconds and their failure to do so, the city attorney directed the chief of police to arrest them.

While Governor Ron DeSantis and his allies in the state legislature will never admit it, this law was passed to quell protests that largely concern black people and their interests -- one of which is the understandable desire to not be disproportionately targeted by police violence. The law was written as George Floyd-related protests occurred all over the nation. The fact that the new law was not deployed to arrest Cuban solidarity protesters whose actions met the new definition of "aggravated rioting," confirmed the law would only be used to target protesters DeSantis doesn't like.

The court says the plaintiffs have standing to sue. The order spends several pages detailing how these activist groups have curtailed their protest activity by cancelling planned events. The groups have also seen a noticeable drop in participation during the few protests they have engaged in since the law took effect, with many members of these groups stating the fear of being arrested for peaceful protesting has deterred them from attending events.

The only party to respond to the injunction request was the Governor himself. The court notes his submissions of evidence that speech isn't being chilled (which largely consists of printouts of social media posts about upcoming protests) isn't particularly persuasive. And one submission in particular by DeSantis all but confirms this statute was written to target black residents and protesters.

Specifically, Governor DeSantis points to a screenshot of Plaintiff Chainless Change, Inc.’s Facebook post showing a flyer for a “Juneteenth Black Joy Celebration” at Coleman Community Park in West Palm Beach on June 19, 2021. The post notes that “There will be . . . Music, Food, Games, Rental Assistance, Performers, Giveaways, Community Resources, and More,” and includes a photograph of several joyful Black children…

[...]

This Court is perplexed by the Governor’s decision to include this specific Facebook post as evidence that Plaintiffs’ speech is not actually chilled in the manner they assert in their motion. To start, this year marked the first official recognition of Juneteenth National Independence Day as a federal holiday. 5 U.S.C. § 6103(a) (2021). This Court—along with other courts across the country—was closed for the occasion. The Facebook post advertises a community celebration on a federal holiday commemorating the end of slavery in America...\

[...]

Here, the Governor has conflated a community celebration of a federal holiday commemorating the end of slavery with a protest. He does so to argue that Plaintiff Chainless Change’s claimed injury of chilled speech and self-censorship is not to be believed. It should go without saying that a public gathering of Black people celebrating “Black joy” and release from bondage does not automatically equate to a protest—or something that the Governor apparently implies should be chilled by the new riot law if Plaintiff Chainless Change’s claimed injury is to be believed.

Yeah… that looks pretty bad. So does this, which follows a discussion of the plaintiffs' assertions that they have already been targeted by police violence and intimidation during protests prior to the passage of the law.

Not one of the Defendant Sheriffs filed any evidence to dispute Plaintiffs’ version of the facts.

Governor DeSantis argued the court was getting ahead of itself by not allowing state courts to make the first call on the constitutionality of the law and/or its overbreadth. The federal court says this argument is nonsense when crucial civil rights and liberties are on the line.

Here, the chilling effect is particularly pronounced given that the law not only creates a risk of prosecution, but also subjects the person to mandatory time in custody until first appearance. § 870.01(6), Fla. Stat. Given that a vague law does not give a would-be protestor any notice about what the law criminalizes, and that the person may be punished for constitutionally protected activity given the law’s potentially overbroad scope, a reasonable person, as the declarations in this case make clear, would censor his own speech rather than risk arrest and time in jail.

As for the definition of "riot," the court says it's way too vague to be constitutional. It's not that rioting can't be clearly defined. It's that this law has the potential to make peaceful protesters culpable for the actions of rioters in the immediate area. The court starts with this…

This Court… acknowledges the obvious up front; some conduct clearly falls within the definition’s scope. Tossing Molotov cocktails at the police station with 10 of your best friends is clearly rioting. But the Supreme Court has squarely rejected the argument that “a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.”

Before heading on to tell the state of Florida why this law doesn't work.

This is where things fall apart. Although both Governor DeSantis and Sheriff Williams argue that the phrase “willfully participate” is commonly understood, neither party offers an actual definition. Is it enough to stand passively near violence? What if you continue protesting when violence erupts? What if that protest merely involves standing with a sign while others fight around you? Does it depend on whether your sign expresses a message that is pro- or anti-law enforcement? What about filming the violence? What if you are in the process of leaving the disturbance and give a rioter a bottle of water to wash tear gas from their eyes?

Other phrases in the law only add to the confusion:

A “violent public disturbance” raises similar questions. Is a violent public disturbance a peaceful protest that later turns violent? Is it a protest that creates an imminent risk of violence? Do the violent actions of three people render an otherwise peaceful protest of 300 people a violent public disturbance? Does a rowdy group of Proud Boys or anarchists have veto power over peaceful protests under this definition?

A long semantic discussion follows, interrupted by some truly amazing sentence diagrams and the court drily noting the statute appears to be impervious "to any reasonable reading," before the court brings the hammer down.

The problem for Defendants is that, although they repeatedly claim that their preferred reading is crystal clear, they never truly explain why. Simply put, Defendants argue that one can tell that the statute embraces their reading because of the way it is. And it should come as no surprise that Defendants refuse to engage meaningfully with the statute’s text. As demonstrated above, the moment one does, Defendants’ interpretation crumbles.

Defendants’ proposed interpretation strains the rules of construction, grammar, and logic beyond their breaking points, and requires this Court to ignore the plain text of the statute and blithely proclaim that “everyone knows what a riot means,” notwithstanding this new definition that the Florida Legislature enacted.

[...]

In short, Defendants’ preferred construction is neither reasonable nor readily apparent given the plain language of the statute. Instead, it reduces much of the verbiage to surplusage and invites this Court to fill in the blanks that the Florida Legislature left behind.

This part of the law is unconstitutionally vague, the court says. Therefore, the law cannot be enforced, at least under this unreasonable quasi-definition of the term "riot." That being said, the court points out law enforcement can still arrest and prosecute rioters, listing 19 applicable criminal statutes and noting that this list of possible enforcement options does not encompass the entirety of applicable laws.

The state is appealing the injunction, of course. But the injunction remains in place while the appeals process plays out. Governor DeSantis appears to believe the vague, overly-broad law will be enforceable again when this is all over.

DeSantis said during an appearance in New Port Richey that the state will take its case to the Atlanta-based 11th U.S. Circuit Court of Appeals. The governor called the ruling by Walker a “foreordained conclusion” and has said he frequently prevails when appealing Tallahassee judges’ orders.

“I guarantee you we’ll win that on appeal,” DeSantis said.

I'd like to put some money on that. This decision cited plenty of Eleventh Circuit precedent while handing DeSantis a loss, none of which appears to favor the state government and its attempt to revive the state's long tradition of punishing black people for pushing back against racist policies.

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Posted on Techdirt - 16 September 2021 @ 3:24am

The LAPD Is Asking City Residents To Hand Over Social Media Account Info To Feed To Its Unsupervised Monitoring Software

from the badge-sporting-amateur-anglers dept

Documents obtained via public records requests by the Brennan Center reveal the Los Angeles Police Department has made social media part of its everyday business. The LAPD is wholly embracing the 21st century. This doesn't mean its public relations department is making the most of numerous platforms to address citizens' concerns and engage in more transparency.

No, it just means LAPD officers can be just as stalker-ish as disgruntled exes or future employers.

The Los Angeles Police Department authorizes its officers to engage in extensive surveillance of social media without internal monitoring of the nature or effectiveness of the searches, according to the results of a public records request filed by the Brennan Center. (h/t Michael Vario)

And beginning this year, the department is adding a new social media surveillance tool: Media Sonar, which can build detailed profiles on individuals and identify links between them. This acquisition increases opportunities for abuse by expanding officers’ ability to conduct wide-ranging social media surveillance.

The LAPD has been doing this for years, if its "2015 Social Media User Guide" [PDF] is any indication. At that point, the LAPD was already doing plenty of social media monitoring. The guide mentions things like oversight, seeking approval for certain forms of monitoring, and the possibility of First and Fourth Amendment violations.

However, it also mentions the use of fictitious personas to engage in undercover investigations and the use of fictitious personas to engage in fishing expeditions.

The use of a Fictitious Online Persona to engage in investigative activity. Fictitious Online Personas created for the purposes of identifying and examining trends and tactics, developing profiles, or conducting research does not constitute online undercover activity.

That doesn't trouble the LAPD. There are no rules for this. Long-term surveillance of people suspected of nothing utilizing fictitious accounts that might give officers access to non-public posts and messages is something the LAPD performs in an accountability vacuum, constitutional concerns be damned.

That document says no permission is needed and no oversight governs these activities. Other documents obtained by the Brennan Center confirm the LAPD's hands-off approach to long-term social media monitoring -- some which involves officers engaged in subterfuge indistinguishable from the "Online Undercover Activity" more closely governed by rules applying to ongoing investigations.

Despite endowing its officers with broad authority to surveil social media, the LAPD has done little to ensure these powers aren’t abused. According to a letter responding to our records request, it does “not track what (if anything) [its] employees monitor[]” on social media sites and “has not conducted any audits regarding the use of social media.”

Great. So we don't know how much surveillance unrelated to criminal investigations occurs under the LAPD's unwatchful, presumably-closed eye. We also don't know how many times officers have broken what few rules govern their online interactions and passive surveillance. We also don't know whether this always-on monitoring has had any impact on law enforcement activities, like providing new leads or evidence in other criminal cases. And even if it has, the unanswered question remains: why is the LAPD keeping an eye on people it doesn't have any reasonable suspicion are engaged in criminal activity?

Just as worrying is the paperwork filled out by beat cops during "field interviews," which encompass everything from speaking to crime witnesses/victims to whatever city residents the LAPD interacts with during its patrols. Not only are these cards used to keep the LAPD's extremely questionable gang database stocked with alleged gang members, but they encourage officers to ask for information they have no legal reason to demand -- like Social Security Numbers or, as is relevant here, "social media account(s)."

All of this information gets fed into the LAPD's databases and social media monitoring tools, like Media Sonar. It's all called "intelligence," even if it's little more than bait for social media fishing expeditions by cops with the time and the tech to waste on efforts that do little to reduce crime or contribute to ongoing investigations. And this seems to be a uniquely LA thing: the Brennan Center says its review of "field interview" cards (which covers 40 US cities at this point) has yet to uncover any other law enforcement agency seeking to collect information about people's social media accounts.

This doesn't mean no other police departments are trying to collect this information. It just means the LAPD feels this is an acceptable thing to ask people for during field interviews and its reliance on social media monitoring software to do its investigative work for it. The LAPD appears to be doing this simply because no one -- not department officials, internal oversight, external oversight, or judges at any level of the court system -- has told the PD it can't.

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Posted on Techdirt - 15 September 2021 @ 12:10pm

Trump Donor Who Propped Up His $2 Billion Hotel Business With $96 Million In COVID Loans Threatens Website For Publishing Facts And Opinions

from the once-again,-'hurt-feelings'-is-not-an-actionable-claim dept

Being defensive when criticized is a very human trait. It's often the default response. And it's completely understandable. Very few people can suppress the urge to defend themselves -- or engage in retaliation -- when (as Tom Wolfe put it) their ego is stripped of its virginity. Like I said, it's a wholly human response.

But when the target of criticism runs a multibillion-dollar trifecta of companies, kneejerk reactions should be tempered by the better judgment of presumably expensive legal teams who are there to do exactly this: cushion the blows of online criticism and temper the responses of their aggrieved employer.

Monty Bennett -- a Trump donor with $2.2 billion in combined revenue from his hospitality holdings last year -- decided his businesses were small enough to grab some of the "small business" loans the government floated when the hospitality business fell off the cliff during the first few months of the COVID epidemic.

As the coronavirus ravaged the United States, the pseudonymous "Doktor Zoom" wrote a highly critical post for Wonkette about Monty Bennett, the billion-dollar businessman who complained about being able to claim "only" $96 million in relief funds. Combining an amazing blend of resentment and entitlement, Bennett wrote a blog post complaining about the government's alleged unwillingness to foot more of the bill for big business like his.

Meanwhile, Bennett -- the self-proclaimed victim of regulation and small business loan restrictions -- did this:

Bennett's companies brought in a combined revenue of $2.2 billion last year, but because of the Rona Recession, the hotels have furloughed or outright laid off 95 percent of their more than 7,000 employees. It's all so upsetting to Bennett that he's had to console himself with some great big bonuses, plus huge dividends from his preferred stock.

While 7,000 employees went without work, Bennett took home a little over $3 million in salary and bonuses. Sure, it was a huge reduction from his 2019 total of nearly $7 million, but landing on a few million in pre-tax income is far preferable to having no pre-tax income at all, like nearly 100% of his employees.

This hurt Bennett's feelings. And it appears his companies' legal department is either incapable or unwilling to talk Bennett out of making things worse for himself. Legal threats have been issued to Doktor Zoom and Wonkette.

Last week, your beloved Wonkette received a very serious letter accusing us of ALL THE LIBELSLANDER.

[...]

Monty was, apparently, VERY UPSET that we wrote true, mean things about him. SO upset, in fact, that, 16 months after Dok's post, he decided to have Holland & Knight partner Stephen Rasch (aka expensive big-firm lawyer) send us a letter, accusing us of defiling his good name.

If you want to draw attention to how much of a grifter and asshole you are, baseless legal threats over true facts is a great way to do it, as Wonkette's Jamie Lynn Crofts (who happens to also be a 1st Amendment lawyer) points out:

You presumably came to our website at least once, to read all of the mean, true things you complain about in your letter. So you should have at least some concept of Wonkette's tone.

Even without doing a cursory google to see how we might respond to letters such as this, did the words "Streisand Effect" really never once come to mind?

But, again, thank you. Truly. Last week was a very hard week and I was in great need of a little comic relief. And a defamation accusation containing such gems as the Oxford English Dictionary's definition of "sleazy" was exactly what I needed.

The whole letter [PDF] is the kind of blustery bullshit we've covered countless times here at Techdirt. When the facts are against you, release the paper tigers to pound the tables, I guess. The enjoyment lawyer Stephen Rasch may have wrung out of writing these sentences will be the last fun he has if he chooses to continue harassing Wonkette, or decides he and his client might want to have their ass kicked in court.

The article states that Mr. Bennett “exploit[ed] the ‘small’ business loan program” and that his actions were “sleazy as fuck.” According to the Oxford English Dictionary, the word “sleazy” is defined to mean “sordid, corrupt, or immoral.” Mr. Bennett and Ashford neither “exploited” the Paycheck Protection Program (“PPP”) nor acted in a sordid, corrupt, or immoral manner.

Thanks, Doctor Dictionary. I'm sure Wonkette and Doktor Zoom knew what the word "sleazy" meant when they used it. Quoting the dictionary using law firm letterhead doesn't make it any more actionable.

I won't dissect any more of this truly stupid letter, because Wonkette has already done this. Here's the big-money lawyer saying things about defamation:

Wonkette falsely asserts that Ashford constitutes “a single business pretending it's several smaller businesses.” That statement is factually and legally false. Ashford, Inc., Ashford Hospitality Trust, Inc., and Bracmer Hotels and Resorts are separate and legally distinct entities. Additionally, the hotel properties within the Ashford portfolio are owned by entities separate from Ashford.

Here's Wonkette's legal expert, deftly pointing out just how ridiculous this claim is, using the law firm's own words to prove Wonkette's point:

I find it truly fascinating that the letter you sent us refers to Monty's business empire as "the Ashford portfolio," but you would like to make sure we affirmatively note that companies named things like "Ashford, Inc." and "Ashford Hospitality Trust, Inc." are, technically, separately and legally distinct entities.

That's just part of it. The whole threat letter is worth reading for its inadvertent hilarity. The Wonkette response is worth reading in full for its deliberate hilarity, as well as its deliberate humiliation of a lawyer apparently being paid enough to suppress his better judgment. The opinions (like "sleazy") are opinions. The facts delivered by Wonkette are factual. And whatever developments may have happened after the April 2020 post cannot be held against Wonkette, which was reporting on known facts at the time of publication.

Oh! And it appears we were supposed to predict that, at some point after our post was published, Monty would be publicly shamed into returning the PPP loan money and rehiring some people?

[Threat letter] "Further, Ashford subsequently returned all of the PPP loan funds and rehired many furloughed employees."

Can I get your psychic's number? It sounds like you might have a good one. And I am definitely very sure this was all out of the goodness of Monty's heart and had nothing to do with the slew of stories about what a piece of garbage he is. (I'm sorry. That was mean to garbage.)

If anyone needs to retract anything, it's Monty Bennett and his legal reps, who were apparently convinced to act against Bennett's interests by the guy paying their retainer, who I can only assume signs his name "Monty Bennett." But this may be just the sort of stupidity Holland & Knight -- last seen at Techdirt abandoning its defense of First Amendment rights in the face of pressure from Florida governor Ron DeSantis -- enjoys engaging in.

Unfortunately, even extremely stupid lawsuits are a drain on those defending themselves from baseless claims. And it's unclear where the law firm might decide to pursue this lawsuit (it's located in Texas but Wonkette's owner, Commie Girl Industries, is located in Montana), which is yet another reason why a federal anti-SLAPP law is needed to make it easier for everyone involved to utilize the same rules and -- even better -- discourage plaintiffs without actionable claims from draining the resources of entities that never defamed them.

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Posted on Techdirt - 15 September 2021 @ 9:18am

London's Top Cop Says 'Big Tech,' Encryption Are Letting The Terrorists Win

from the applying-excessive-force-to-a-horse's-corpse dept

Dame Cressida Dick -- the former National Policing Lead for Counter-Terrorism -- has had an op-ed published by The Telegraph that leverages the anniversary of the 9/11 attacks to advocate for less privacy and security for routine targets of terrorist attacks: everyday people without powerful government positions.

Writing from her latest official position -- that of Metropolitan Police Commissioner -- Dame Dick says the War on Terror can be won… sort of. (Paywalled but here's an alternate link.)

The future, as ever, is uncertain - as exemplified by the situation in Afghanistan as we wait to see how events there might once again impact on the terrorism landscape. But as I reflect on what has passed since 9/11, I am confident that we continue to develop the exceptional tools and capabilities that will give our counter-terrorism officers the best chance of successfully confronting the threats that will emerge over the next 20 years.

That's just a small part of it. It's headlined by this declaration by the Police Commissioner:

Terrorists seek to divide us -- they won't win

Not so fast, Cressida. Right in the middle of your own op-ed is an admission the terrorists have won, at least using these metrics.

The threat of sophisticated terrorist cells being directed from overseas has been added to by that of the individuals carrying out rudimentary attacks with very little planning or warning. The current focus on encryption by many big tech companies is only serving to make our job to identify and stop these people even harder, if not impossible in some cases.

And there it is: the thing that divides us. Government officials continue to insist that if encryption can be used by terrorists and criminals, then it really shouldn't be accessible to all the non-terrorists who use it to secure their personal information and communications. If the end goal of terrorist attacks is to drive a wedge between the public and their public servants, mission accomplished.

The public would like to have actual security. The government would prefer the illusion of security: a nonexistent form of encryption that only allows good guys to peek in on "secure" communications. And, on the flip side, these officials believe the only people who really "need" encrypted communications are criminals and terrorists since they have the most to hide. If that's the only real market for encryption, then non-terrorists should be happy using insecure communications options because they have nothing to hide and nothing to fear from their governments.

And while we're on the subject of reasoning that's mostly circular, The Telegraph manages to close its own loop by dropping a link in Dame Cressida Dick's op-ed. That link takes you to this article ("Tech giants are making it impossible to stop terrorists, says Dame Cressida Dick"), which opens with this:

Tech giants are making it impossible to identify and stop terrorists carrying out deadly attacks, Dame Cressida Dick warns on the 20th anniversary of the 9/11 atrocity.

The Metropolitan Police Commissioner - who was granted a two-year extension on her contract on Friday - said the introduction of end-to-end encryption, which allows users to message one another in complete secrecy, was giving terrorists an advantage over law enforcement.

Companies such as Facebook have argued that introducing encryption will improve privacy for their customers.

But writing in The Telegraph, Dame Cressida warns that terrorists are exploiting such technological advances to radicalise people and direct attacks around the world.

That last link takes you back to Cressida's op-ed, which contains one paragraph about Big Tech and encryption -- a paragraph that is quoted in its entirety further down the page in this separate article. The op-ed links to the article… which links to the op-ed… which links to the article. It's a neat trick, one that makes one hand clapping sound like applause. One could theoretically spend hours opening each self-referential link, allowing Dick's single argument to become a groundswell movement that gradually consumes every last bit of available RAM (mainly looking at you, Chrome).

And that's as good a metaphor as any for the anti-encryption agitation of officials like the Dame. Like other law enforcement officials who would like to see encryption backdoored if not eliminated completely, the Dame's attacks on encryption appear to operate under the theory that if someone says something often enough, and authoritatively enough, then some people are going to believe these assertions are true.

And at the end of all of this, it must be pointed out that the split between law enforcement officials and security experts continues to increase. But the terrorists didn't cause this split. The War on Terror did. The response to the 9/11 attacks was a power grab by the government, which suddenly had the justification it needed to curtail rights and liberties it often found inconvenient. And now it's Big Government complaining about Big Tech, using terrorism as an excuse to undermine security for everyone.

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Posted on Techdirt - 14 September 2021 @ 2:20pm

Dallas PD Hid Massive Data Deletion For Months From City Officials, District Attorney's Office

from the how-many-terabytes-can-be-swept-under-a-rug? dept

No one does a coverup like a cop shop. When a bunch of data -- including criminal evidence -- was deleted, the Dallas, Texas city council was pretty much the last to know about it.

On March 31, a city IT employee accidentally deleted troves of police data while transferring it to a new server. The deletion could potentially impact prosecutors’ ability to try the corresponding criminal cases. Top city officials including Broadnax and Police Chief Eddie Garcia became aware of the deletion, if not its scale, in April. It’s only in the last two weeks that the City Council and Dallas County District Attorney’s office learned about it.

That update was published by Dallas Magazine on August 19. That means those who did know didn't tell their oversight for nearly four months. Some of this delay is almost explicable. Almost.

The Dallas PD originally thought it could recover the data, so the unexpected data deletion originally didn't seem like a big deal. All the same, it would have made sense to inform the PD's city oversight of the issue, just in case it turned out the data was lost for good.

This lack of communication -- one that also kept the District Attorney's office out of the loop -- led to a city council meeting where the phrases "in hindsight" and "in retrospect" were thrown around by police officials. Hindsight and retrospect are pretty much useless in situations like these. It only prevents them from offering the same excuses the next time it happens. And let's hope it doesn't, because "troves of police data" is an understatement.

City officials discovered an additional 15 terabytes of Dallas police evidence and files from the city secretary’s office were missing during its ongoing audit of a massive erroneous data deletion, according to emails obtained Monday by The Dallas Morning News.

The city also fired an information technology employee Friday in connection with the lost evidence, according to the emails.

The discovery brings the total loss of files, as of Monday, to about 22.5 terabytes. The audit was initiated this month after Dallas County prosecutors learned an information technology employee improperly moved police evidence from a storage cloud to a local server resulting in the permanent loss of about 7.5 terabytes of information in April.

About 14 terabytes have been recovered from the botched data migration. And some of the files lost during the move from cloud storage to physical storage belonged to the city secretary's office, which means this total includes files that didn't come from the Dallas PD.

Despite not knowing the extent of everything lost until just recently, the Dallas Police Chief felt confident enough to claim the lost data did not include evidence about crimes against people. But the Dallas DA -- rightfully -- isn't taking this statement at face value, considering the DA's office was one of the last parties informed about the data loss. Multiple cases are now under review to determine whether they're affected by the terabytes of data that are, so far, unrecoverable.

And that review process means the people tasked with taking criminals off the street are, for the time being, putting accused criminals back on the street.

A murder suspect was released from the Dallas County jail earlier this month because prosecutors said on the day of his trial that they needed more time to make sure his case wasn’t among those impacted. Last week, the Dallas County Public Defender’s Office called for independent audits for 18 murder cases.

While the eye-grabbing part of this story is the botched migration that resulted in the deletion of 23 terabytes, the more concerning aspect is the part that involves the shielding of a data catastrophe until it was impossible to keep it hidden any longer. Mistakes happen, but the decision to exclude the city council and, more disappointingly, the prosecutor's office was deliberate. That shouldn't be excused even if PD officials firmly believed the data deletion was reversible. There was always the chance that it wasn't. People's lives and freedoms are on the line and the DA's office was kept out of the loop. This indicates the Dallas PD felt it was better to bury its 23-terabyte problem, rather than allow people affected by the sudden disappearance of evidence to find out about it.

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Posted on Techdirt - 14 September 2021 @ 10:44am

Apple Patches Up Devices In Response To The Exposure Of Yet Another NSO Group Exploit

from the soon-they-will-make-a-board-with-a-nail-so-big-it-will-destroy-them-all dept

Israeli digital arms merchant NSO Group continues to sell its malware to a wide variety of governments. The governments it sells to, which includes a bunch of notorious human rights abusers, continue to use these exploits to target dissidents, activists, journalists, religious leaders, and political opponents. And the manufacturers of the devices exploited by governments to harm people these governments don't like (NSO says "criminals and terrorists," long-term customers say "eh, whoever") continue to patch things up so these exploits no longer work.

The circle of life continues. No sooner had longtime critic/investigator of NSO Group's exploits and activities -- Citizen Lab -- reported the Bahrain government was using "zero click" exploits to intercept communications and take control of targeted devices then a patch has arrived. Apple, whose devices were compromised using an exploit Citizen Lab has dubbed FORCEDENTRY, has responded to the somewhat surprising and altogether disturbing news that NSO has developed yet another exploit that requires no target interaction at all to deploy.

Apple released a patch Monday against two security vulnerabilities, one of which the Israeli surveillance company NSO Group has exploited, according to researchers.

The updated iOS software patches against a zero-click exploit that uses iMessage to launch malicious code, which in turn allows NSO Group clients to infiltrate targets — including the phone of a Saudi activist in March, researchers at Citizen Lab said.

The backdoor being closed involves a pretty clever trick of the trade. Since links require clicks and images don't, the exploit utilizes a tainted gif to crash Apple's image rendering library, which is then used to launch a second exploit that gives NSO customers control of these devices, allowing them to browse internal storage and eavesdrop on communications.

It's not the first time NSO has developed a zero-click exploit that affects iOS devices. It's just the latest exposed by Citizen Lab's incredible investigation efforts. Thanks to Citizen Lab, more Apple device users around the world are better protected against malicious hackers… working for a company that sells exploits to government agencies. And whatever can be nominally exploited for good (the terrorists and criminals NSO continues to claim its customers target, despite an ever-growing mountain of evidence that says otherwise) can be exploited by governments and malicious hackers who don't even have sketchy "national security" justifications to raise in the defense of their actions.

The arms race continues. It appears marketers of exploits will continue to do what they've always done: maintain over-the-air superiority for as long as possible. And while it may seem this is just part of the counterterrorism game, NSO Group's tacit approval of the targeting of dissidents, journalists, and others who have angered local governments (but have never committed any terrorist or criminal acts) shows it's not willing to stop profiting from the misery of people being hunted and harmed by repressive regimes.

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Posted on Techdirt - 14 September 2021 @ 3:22am

DOJ Says Federal Agents Will Start Wearing Body Cameras

from the beware-the-asterisk-tho dept

At long last, Department of Justice agencies are joining the 21st century. Years after many local law enforcement agencies (with budgets that amount to rounding errors for DOJ components) have adopted body cameras, the DOJ is finally getting into the act.

Today, the Department of Justice announced the launch of the first phase of its Body-Worn Camera Program that requires department law enforcement personnel use body-worn cameras (BWCs) during pre-planned law enforcement operations. Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Phoenix and Detroit Field Divisions began using BWCs today during these pre-planned operations. Over the course of the next several weeks, the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI) and the U.S. Marshals Service (USMS) will begin the first phase of their BWC programs. The department’s plans include a phased implementation of BWCs, and rely upon Congress to secure the necessary funding to equip agents nationwide with BWCs.

Caveats, mfers. Caveats. "Pre-planned operations." Let's hope this makes up the bulk of federal law enforcement's interactions with the general public. This means that while federal agents may be wearing body cameras, they won't be using them to record off-the-cuff convos/searches/seizures/arrests that may come up during day-to-day business.

It's a start. It's a start years after the fact. While local cops were obtaining cameras, the DOJ -- as recently as 2015 -- was saying it would not do business with any cop shops rolling cameras during joint operations.

The obvious solution for cops seeking federal help during investigations would be to uninvite agencies unwilling to roll with rolling cameras. But it probably never worked out this way. Given law enforcement's love of opacity, local cops probably loved having a reason to remove their cameras while doing citizens dirty with their federal partners.

It took another five years before the DOJ agreed to allow federal agents tag along on raids and investigations involving local officers wearing body cameras. Now, less than a year into Attorney General Merrick Garland's leadership, federal agents have been ordered to start wearing body cameras.

Keep these public-facing, super-enthusiastic statements in mind when the lawsuits and investigations start rolling in, accusing federal officers of copying their local level compatriots by "forgetting" to activate cameras or being unable to retrieve recorded footage when demanded by plaintiffs in civil rights lawsuits or defendants in criminal trials.

This sounds like a lot of people being forced to smile at gun camera-point:

“ATF welcomes the use of body worn cameras by our agents,” said Acting Director Marvin G. Richardson of the ATF. “The department’s policy reflects ATF’s commitment to transparency as we work to reduce firearm violence in our communities.”

“The Drug Enforcement Administration is committed to the safety and security of the people we serve, our agents, and task force officers,” said Administrator Anne Milgram of the DEA. “We welcome the addition of body worn cameras and appreciate the enhanced transparency and assurance they provide to the public and to law enforcement officers working hard to keep our communities safe and healthy.”

“The FBI remains committed to meeting the need for transparency,” said FBI Director Christopher Wray. “Phasing in the use of BWCs is another important way for us to meet that need.”

Hahahahahahahahahaaaaaaaaaaaaaaa...

OK.

Let's break this down.

The ATF welcomes no additional "transparency." Never has. Never will. And its efforts to "reduce firearm violence" are pretty much entrapment that targets impoverished minorities who the ATF feels will be much easier to bully into lengthy sentences.

The DEA doesn't care about the people it serves. It only cares about racking up incredibly cheap wins in a war it has been losing since its inception. Elvis Presely was given a Bureau of Narcotics and Dangerous Drugs (the DEA predecessor) badge by Richard M. Nixon. Talk about setting yourself up for failure. The DEA does not keep communities safe and healthy. It cannot pretend otherwise.

And fuck the FBI. "Committed to meeting the need for transparency." Really? It's been almost 1,200 days since the FBI promised to correct its count of encrypted devices in its possession -- a number it had overstated by at least 5,000 devices during its neverending agitation against allowing innocent citizens to protect their devices and communications from outsiders. That's just one refutation of the FBI's allegiance to "transparency. " The rest of it is contained in the agency's litigious refusal to hand over documents in response to public records requests.

The FBI not-so-secretly wishes it was the CIA, if not the NSA itself. It does not care about transparency. And it will accept these cameras begrudgingly, ensuring they're turned off any time agents perform a "custodial interview" or engage in anything it considers to be national security related.

While it's great the DOJ says body cams are go, the actual implementation may be far less underwhelming than the GO TEAM TRANSPARENCY enthusiasm expressed in these public-facing statements. These agencies have operated under the public accountability radar for years. The addition of cameras won't change that much.

But let's not let our cynicism be used against us. They should have these cameras. And when footage goes missing or unrecorded in close cases, the benefit of doubt should be awarded to the non-moving (read: non-prosecutorial) party. If this happens often enough, we might finally see some meaningful deployment of cameras -- one that ensures officers are accountable to the people paying their paychecks.

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Posted on Techdirt - 13 September 2021 @ 8:17pm

Forfeiture Case Shows Cops Don't Even Need Drug Dogs To Alert To Engage In A Warrantless Search

from the EXTREME-SNIFFING-ACTION! dept

Another magical drug dog case has surfaced, showing yet again why cops like having "probable cause on four legs" on hand to turn stops into searches and searches into seizures. This forfeiture motion [PDF] -- highlighted by Brad Heath -- starts with a stop and quickly devolves into ridiculousness.

A drug investigation involving investigators working with ONSET (Ohio Northeast Smuggling Enforcement Team) culminated in the traffic stop of one of the targets, Emmanuel Trujillo Trujillo. Already suspected of drug trafficking, the stop got a whole lot more interesting for officers once some loose cash was spotted.

Deputy Spires approached the pick-up truck and made contact with the driver, Trujillo Trujillo. While speaking with Trujillo Trujillo, Deputy Spires learned that he did not possess a valid driver’s license.

Deputy Spires observed a large amount of United States currency below Trujillo Trujillo’s feet on the floorboard of the pick-up truck and requested assistance from Franklin County, Ohio Sheriff’s Office Canine Unit Deputy Zach Cooper (“Deputy Cooper”) and his canine partner “Indy” to conduct an open-air sniff of the pick-up truck.

Roughly twenty minutes later, the drug dog arrived. And failed to do what the deputies wanted it to do.

Deputy Cooper arrived at the traffic stop at approximately 6:22 p.m. and approached the pick-up truck with canine Indy. Deputy Cooper noticed that Indy showed an extreme change in behavior when sniffing around the passenger side door and its open window. Indy’s sniffing increased as he stayed and intently sniffed the passenger side door area. As the team moved on, Deputy Cooper noted similar behavior from Indy when he approached the tailgate area of the pick-up truck.

There was no alert from Indy. Just a lot of sniffing. But even the lack of an alert wasn't going to keep these officers from searching Trujillo's vehicle. Since the four-legged cop wouldn't give them permission for a search, the deputies decided to give that permission to each other, with Indy's apparently implicit consent.

Deputy Cooper advised Deputy Spires that Indy did not indicate on a pure odor source, but he believed that Indy’s extreme sniffing behavior indicated that a narcotic odor was present within the pick-up truck.

And with that the search was on. The deputies discovered more cash, receipts for cash transfers, some paperwork from a Chase Manhattan account, and a non-contractor 1099 miscellaneous income form showing $27,815 in compensation to Trujillo. The search did not, however, turn up any drugs, despite the extreme sniffing allegedly demonstrated by the drug dog.

The deputies took $19,104 from Trujillo at this stop. From there, they went to Trujillo's storage unit and took another $32,050. Finally, law enforcement -- using information gleaned from this extreme sniffing -- searched Trujillo's house, where officers found even more cash as well as the drugs the deputies assumed they would find during their initial search of the truck.

And, as if to prove the deputies were right to assume the drug dog had meant to give them explicit permission to search the truck for drugs, there's this additional information in the forfeiture motion.

TFO Taylor changed gloves, obtained the bag containing the United States currency seized from the pick-up truck, and opened it. TFO Taylor took a MX908 test strip and wiped it on the rubber bands holding the currency together. TFO Taylor placed this test strip into the MX908 and received a positive result for the trace presence of cocaine.

So what? I'll bet if TFO Taylor borrowed some cash from someone in the HSI (Homeland Security Investigations) office and tested it, he would very likely have rung up another positive result for the trace presence of cocaine. This is an unlisted "feature" of most US currency. A positive test means nothing more than the bill tested has been in circulation.

This is a stop worth challenging. The deputies admitted they did not see an alert from the drug dog before engaging in a search. That means it's also a seizure worth seizing. And it's yet another data point showing cops love drug dogs because their mere presence at a stop can be converted into probable cause. Even better, these "partners" can't offer up testimony that might undercut assertions made by their handlers. Win-win. Apparently, the drug war needs all the wins it can get, even if certain combatants have to obtain them dishonestly.

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Posted on Techdirt - 13 September 2021 @ 3:35pm

Appeals Court Says Police Ballistics Expert Can Be Sued Helping Wrongfully Imprison Two Men For More Than 17 Years

from the New-Haven-PD-just-as-fucking-culpable-for-this-atrocity dept

Judge Alex Kozinski noted back in 2015 there was an "epidemic of Brady violations" occurring during prosecutions in this country. "Brady" refers to the Supreme Court case Brady v. Maryland -- one that established the right for defendants to have access to exculpatory evidence, creating an obligation for prosecutors and law enforcement to produce this evidence during trials.

Obviously, this hasn't been an absolute since this ruling. Prosecutors aren't interested in handing over evidence that undermines their cases. And cops are equally unwilling to produce evidence that undercuts their arrests, narratives, and coerced confessions.

Here's how it works out for defendants, according to Judge Kozinski, while excoriating an appeals court decision that basically blessed Brady violations as long as the government still presented some inculpatory evidence.

It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.

Grim stuff. But it's the way the government continues to play the game. That's highlighted in this recent decision [PDF] by the Second Circuit Court of Appeals. Fortunately, the court sides with the two men wrongly convicted of a robbery and murder. Unfortunately, that decision more than 17 years after the fact.

Here are the allegations:

After each serving more than 17 years in prison for a robbery and murder they did not commit, plaintiffs Vernon Horn and Marquis Jackson brought civil rights actions against the City of New Haven and law enforcement officials under 42 U.S.C. § 1983. As relevant here, plaintiffs alleged that police forensic examiner James Stephenson violated their due process rights under the Fourteenth Amendment by withholding exculpatory ballistics reports in contravention of Brady v. Maryland.

And here's how police investigators developed their case against these two (at the time) teens, based on intuition not too far removed from the Sunday night quarterbacking of "Law & Order" viewers.

On January 23, 1999, Vernon Horn and Marquis Jackson went out on a Saturday night in downtown New Haven. The two teenagers met up with friends at the Alley Cat nightclub and then stopped by Dixwell Deli (the Deli), a 24-hour convenience store, at around 2:45 a.m. After purchasing a few items, they drove back to Jackson’s apartment several blocks away.

Around 3:30 a.m., three masked robbers burst into the Deli and opened fire. The shots hit an employee and a customer, Caprice Hardy, who died shortly thereafter. After stealing a cellphone from a store clerk and trying unsuccessfully to raid the cash register, the robbers fled the scene.

A few minutes after the robbery, Horn walked back to the Deli. This raised the suspicions of the lead detective on the investigation, who believed that perpetrators of homicides tended to return to crime scenes.

The police decided these two were the best fit for the robbery and murder charges. Nothing would dissuade investigators from this predisposition -- not even contradictory evidence. To ensure their preferred theory succeeded in court, the PD almost literally buried all evidence to the contrary.

Numerous pieces of evidence, however, suggested that a group of drug dealers in Bridgeport, Connecticut, not Horn or Jackson, was responsible for the murder-robbery. Call records for the stolen cellphone showed that four out of five calls made after the incident were to the Bridgeport drug dealers or their associates. Because the records did not support the case against Horn and Jackson, NHPD officers suppressed the records for nearly 20 years, hiding them in the basement of a detective’s house.

This is not even the issue being examined here, but let's read that last sentence again.

Because the records did not support the case against Horn and Jackson, NHPD officers suppressed the records for nearly 20 years, hiding them in the basement of a detective’s house.

What even the fuck, he asked professionally. HOLY SHIT.

But that's not even this issue here. The issue here is the supposed "ballistics expert," who also decided to not only bury exculpatory evidence, but whip up new "evidence" that supported the coerced confession the cops had obtained.

Here's how we get to this case. A police investigator with a theory unsupported by evidence sent casings to a forensic expert in hopes of obtaining a report indicating the bullets came from a Beretta linked to the nominal suspects. Unfortunately for him, the ballistics report disproved that speculative theory.

On February 3, 1999, defendant James Stephenson, the assigned firearms examiner, generated a General Rifling Characteristics Report (the 1999 GRC Report) that listed all firearm models that potentially matched the ballistics evidence, using a margin of error of +/- 2 thousandths of an inch. A Beretta handgun was not among the possible matches.

The first report handed to investigators and the prosecution noted the mismatch. This was noticed by the prosecutor preparing for the trial, who saw that the ballistics report didn't match up with assumptions made by police investigators. Rather than entertain the possibility it was the cops who were wrong, the prosecutor assumed it was the ballistics tech who had screwed up.

And, rather than stand by his original findings, the tech reran the test with a higher margin of error to ensure the Beretta cops and prosecutors wanted the murder weapon to be was included as a possible match.

On February 15, 2000, Stephenson generated a second GRC Report (the 2000 GRC Report). This time, using a larger margin of error of +/- 4 thousandths of an inch, the report listed multiple Beretta models as potential matches.

And he might have gotten away with it. But he failed to pass on these reports to the defendant -- not the one that said it wasn't a Beretta, nor the second pass which suddenly said it was a Beretta.

It took nearly twenty years to expose the ballistics examiner's malfeasance:

In 2018, as part of a re-examination of the case by the Connecticut Federal Public Defender’s Office, the NHPD produced the stolen cell phone’s call records and both the 1999 GRC Report and the 2000 GRC Report. After reviewing the belatedly disclosed evidence, the State’s Attorney’s Office successfully moved to vacate the judgments of conviction for both men. In or around April 2018, after serving 17 and 19 years in prison, respectively, Horn and Jackson were released.

These men lost a combined 36 years of their lives. The forensics examiner hasn't lost anything… yet. And yet, he insists he should be allowed to walk away from this lawsuit.

On appeal, Stephenson argues that: (1) he is entitled to qualified immunity because it was not clearly established by 1999 that “firearms examiners” had an obligation under Brady to turn over exculpatory evidence to the prosecutor; and (2) he is entitled to absolute immunity with respect to the 2000 GRC Report because he prepared it at the prosecutor’s direction.

Nope, says the court.

We disagree.

It was clearly established -- for at least seven years at that point -- that a police employee has similar obligations under Brady.

We disagree and conclude that a police forensic examiner, whether an analyst or technician fulfilling any of the roles associated with forensic analysis, in 1999 reasonably would have understood that he or she was required to turn over exculpatory information to the prosecutor.

As the analyst's own testimony pointed out, forensic techs are almost always former cops, at least in New Haven, Connecticut. And if police officers are subject to Brady obligations, it makes no sense to exclude former police officers who still work for the police department.

And there's no absolute immunity for the analyst either. He attempted to argue that the prosecutor's call with questions about the possibility of the murder weapon being a Beretta prompted his subsequent report. But he was never asked to perform another analysis or generate another report. He was only asked a question about the certainty of his conclusions. This means Stephenson can't hide behind the immunity afforded to prosecutors. And that means he will have to continue to defend himself and, hopefully, be held responsible for his role in stealing a combined 36 years of life from two teens.

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Posted on Techdirt - 13 September 2021 @ 11:58am

Officer Claims Sheriff's Office Told Him To Play Copyrighted Music To Shut Down Citizens' Recordings

from the future-is-Denis-Leary's-'Asshole'-on-repeat-forever dept

The new hotness for law enforcement is trying to end the careers of police accountability activists. When approached by people filming them, officers from multiple law enforcement agencies have begun playing the zero-accountability hits, hoping that notoriously litigious artists like Taylor Swift and the Beatles will join forces to keep these recordings from being uploaded to social media sites.

The thought process is so simple a cop could understand it. When someone starts recording or livestreaming, crank up some music in hopes the copyright bots will recognize the track and shut the whole thing down. Even if it can't terminate a livestream, it might terminate a few pesky accounts with enough copyright strikes.

One law enforcement officer straight up admitted to the people filming him that he was playing music in hopes of keeping the video from making it past YouTube's copyright cops, much to the eventual dismay of his fellow officers. The Alameda County Sheriff's Department has learned from this Streisanding, and has since made it official policy to forbid the playing of copyrighted content for the sole purpose of thwarting the recording of officers by members of the public.

Welcome to the flipside. Matthew Gault and Motherboard have uncovered a document written by an officer who deployed the same tactic claiming his employer specifically directed him to engage in this IP-abusing effort.

On February 25, an activist running the YouTube account Accountability Angel attempted to enter the LaSalle County Sheriff's office in Ottawa, Illinois. James Knoblauch blocked her approach, ignored her questions, took out his phone, turned on Blake Shelton’s “Nobody But You,” and cranked up the volume.

According to an incident report obtained by Motherboard via a Freedom of Information Act request, someone told Knoblauch to turn on the music.

The recording of this incident can be seen here. And the report, written by Knoblauch, can be seen here [PDF]. This confirms previous reporting on the incident by Motherboard, which ran under the headline "It Sure Looks Like This Cop Played Country Music to Avoid Being Filmed."

In the video, James Knoblauch, who had been chief of police in nearby Oglesby until he retired (after previously being removed from office) last year, approaches the camera. Angel asks why she is not being allowed into the building with her phone.

But instead of answering, Knoblauch silently reaches into his jacket pocket, pulls out his phone, and starts swiping. Moments later, we hear music playing. He boosts the volume, just in time for us to hear the opening strains of country star Blake Shelton’s “Nobody But You” featuring Gwen Stefani

Here's what the report says [all spelling/grammatical errors in the original]:

Upon arrival, I observed a female, Angel Famer who I've had prior dealings with. At this time, I observed Angel holding up a selfie stick with a cell phone attached to it. It appeared that she was video recording from the vestibule area.

I then entered the vestibule area and stood in front of Angel and advised her that cell phones were not allowed in the building and that she would need to take her cell phone out to her vehicle or rent a locker at the jail.

As I was recently advised, I then turned on some music. At this time Angel became belligerent to me about the music. [...] I continued to stand in the vestibule area in from of her. Angel continued to say I was denying her right and that I was an oath breaker. Angel continued to be belligerent towards me with comments such as, shut your fucking music off and called me "no balls."

So, that's the claim made by James "No Balls" Knoblauch, former Oglesby (Illinois) police chief and current court officer employed by the LaSalle County Sheriff's Office. Did his employer actually tell him to thwart accountability by misusing the intellectual property of others? Knoblauch had better hope so, since it's right there in black and white on an official report. The Sheriff's Office has refused to comment on the incident, which suggests it at least implicitly supports his actions. But it will probably take another set of public records requests to uncover the truth.

Until then, we can assume Knoblauch is aware of similar shitty tactics deployed by cops elsewhere in the country. What he doesn't seem to be aware of is the fact that it hasn't worked yet. All this shows is Knoblauch is like those other officers: someone who thinks the people should continue to cut paychecks for officers who respond to accountability efforts with open hostility.

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Posted on Techdirt - 13 September 2021 @ 3:20am

GAO's Second Report On Facial Recognition Tech Provides More Details On Federal Use Of Clearview's Unvetted AI

from the still-greater-than-zero-agencies,-unfortunately dept

A couple of months ago, the Government Accountability Office completed the first pass of its review of federal use of facial recognition technology. It found a lot to be concerned about, including the fact that agencies were using unproven tech (like Clearview's ethical nightmare of a product) and doing very little to ensure the tech was used responsibly.

Some agencies appeared to have no internal oversight of facial recognition tech use, leading to agencies first telling the GAO no one was using the tech, only to update that answer to "more than 1,000 searches" when they had finished doing their first pass at due diligence.

A more complete report [PDF] has been released by the GAO, which includes answers to several questions asked of federal agencies using the tech. Unfortunately, it confirms that many agencies are bypassing what little internal controls are in place by asking state and local agencies to run searches for them. DHS entities (CBP, ICE) did the most freelancing using downstream (governmentally-speaking) databases and tech.

For whatever reason, CBP and ICE (which have access to their own tech) are using agencies in Ohio, Nebraska, Michigan, Kansas, and Missouri (among others) to run searches for criminal suspects and to "support operations." A whole lot of non-border states are allowing agencies to bypass internal restrictions on use of the tech.

And there's a whole lot of Clearview use. Too much, in fact, considering the number of agencies using this highly questionable product exceeds zero.

The US Air Force says it engaged in an "operational pilot" beginning in June 2020, utilizing Clearview to run searches on biometric information gathered with "mobile biometric devices, including phones."

The Inspector General for the Department of Health and Human Services also apparently used Clearview. The report says the HHS OIG "conducted an evaluation of the system in an attempt to identify unknown subjects of a criminal investigation." Experimentation, but with the added bonus of possibly infringing on an innocent person's life and liberty!

Also on the list are CBP, ICE, and US Secret Service. ICE appears to be the only agency actually purchasing Clearview licenses, spending a total of $214,000 in 2020. The CBP, however, is getting its Clearview for free, utilizing the New York State Intelligence Center's access to run searches. The Secret Service gave Clearview a test drive in 2019 but decided it wasn't worth buying.

The Department of the Interior says it has both stopped and started using Clearview. Under "Accessed commercial FRT [facial recognition technology] system, the DOI claims:

Interior uses Clearview AI to verify the identity of an individual involved in a crime and research information on a person of interest. Interior may submit photos (e.g., surveillance photos) for matching against the Clearview AI’s repository of facial images from open sources. U.S. Park Police reported it stopped using Clearview AI as of June 2020.

But under "New access to commercial FRT system," the DOI states:

Interior reported its U.S. Fish and Wildlife Service began using a trial version of Clearview AI in May 2020, and purchased an annual subscription in June 2020.

The DOI is both a current and former customer, depending on which component you speak to, apparently.

The DOJ is an apparent believer in the power of Clearview, providing access to the ATF, DEA, FBI, and US Marshals Service. But there must be a lot of sharing going on, because the DOJ only purchased $9,000-worth of licenses.

Interestingly, the DOJ also notes it received an upgrade from Axon, which provides body-worn cameras. Axon has apparently added a new feature to its product: "Facial Detection." Unlike facial recognition, the product does not search for faces to run against a biometric database. Instead, the system "reviews footage" to detect faces, which can then be marked for redaction.

This FRT-related expenditure is also interesting, suggesting the DOJ may actually be trying to quantify the effectiveness of body cameras when it comes to deterring officer misconduct.

DOJ reported that it awarded an $836,000 grant to the Police Foundation for the development of techniques to automate analysis of body worn camera audio and video data of police and community interactions. In particular, these techniques could (1) allow an evaluation of officers’ adherence to principles of procedural justice and (2) validate the ratings generated by the automated process using a randomized control trial comparing software ratings of videos to evaluations performed by human raters under conditions of high and low procedural justice.

Finally, there's this unnecessarily coy statement by the IRS about its use of commercial facial recognition systems.

A third-party vendor performed facial recognition searches on behalf of the IRS for domestic law enforcement purposes. Additional details on the search are sensitive.

Whatever. It's probably Clearview. And if it isn't, it probably will be at some point in the near future, given federal agencies' apparent comfort with deploying unproven, unvetted tech during criminal investigations.

The report is probably the most comprehensive account of facial recognition tech by the federal government we have to work with at the moment. It shows there's a lot of it being used, but it hasn't become completely pervasive. Yet. Most agencies use the tech to do nothing more than identify employees and prevent unauthorized access to sensitive areas. Some agencies are digging into the tech itself in hopes of improving it. But far too many are still using a product which has been marketed with false statements and has yet to have its accuracy tested by independent researchers. That's a huge problem, and, while it's not up to the GAO to fix it, the report should at least make legislators aware of an issue that needs to be addressed.

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Posted on Techdirt - 10 September 2021 @ 3:30pm

Cop Who Killed A Suicidal Man Less Than 11 Seconds After Entering His House Convicted Of Murder

from the officers-express-concern-over-disturbing-frequency-of-lightning-strikes dept

It's rare enough to see a law enforcement officer convicted of murder. It's even rarer to see it happen twice in one year.

In June, Minneapolis police officer Derek Chauvin was convicted of murdering George Floyd. Chauvin placed his knee on the neck of the unarmed, unresisting Floyd for more than nine minutes -- and for two minutes after another officer said he couldn't detect a pulse. For this brutal act -- one that prompted months of heated protests around the nation -- Chauvin was sentenced to twenty-two years in prison.

It has happened again. A Huntsville, Alabama police officer has been convicted on murder charges and sentenced to 25 years in prison.

William Ben Darby, the Huntsville police officer convicted of murder for shooting and killing Jeff Parker, was sentenced today to 25 years in prison.

[...]

A Madison County jury on May 7 found Darby guilty of murder for shooting and killing Parker, a 49-year-old man threatening suicide, three years ago.

Officer Darby was not the only officer to respond to the call about the suicidal man. He wasn't even the first to arrive. Officer Genisha Pegues was already there, trying to de-escalate the situation. The suicidal Parker had already told Pegues he had no interest in hurting her. He was holding a gun, but it was pointed at his own head.

Darby arrived, and within 30 seconds had retrieved a shotgun from his cruiser and killed Parker by shooting him in the face. Darby's entire interaction with the suicidal man consisted of him shouting four times for Parker to drop the gun and yelling at Officer Pegues to point her gun at Parker. All of this -- Darby's entry and his murder of Parker -- took only eleven seconds.

In another rarity, one of the witnesses testifying against Darby was Officer Pegues, who had the situation at least partially under control before Officer Darby burst into the house and decided the only way to help the suicidal man was to kill him.

Pegues, testifying for the prosecution, told the jury that she never felt threatened by Parker and that she didn’t need Darby to save her life. She testified that Parker told her he didn’t want to hurt her.

Robert Tuten, Darby’s lead defense attorney, went after Pegues.

Tuten asked whether Pegues put herself and other officers in danger by standing in front of an armed man with her gun pointed down, rather than at Parker.

“Dangerous is the job,” Pegues, who was a police officer for six years, replied. She said tensions rose during the encounter when Darby arrived.

Pegues, who violated one of the many unwritten rules of policing by testifying against a fellow cop, has since left the Huntsville Police Department. She applied for a job with the FBI. She's probably better off anywhere else. The PD's internal investigation cleared Darby of wrongdoing. Obviously, the jury of his peers disagreed with PD's assessment.

And she's probably better off being out of Huntsville altogether. The PD tried to get Darby off the hook. So did the city itself, which decided it would spend taxpayer money defending the cop from criminal charges. The city council passed a resolution to pay up to $75,000 of Darby's legal expenses. And it did this without viewing body cam footage of the shooting, despite the fact the city had access to the recordings.

Two powerful figures backed Darby throughout the case.

Huntsville Mayor Tommy Battle and Police Chief Mark McMurray say Officer William Darby did nothing wrong and isn't a murderer.

And continued to support the officer even after Darby was convicted.

Mayor Tommy Battle and Police Chief Mark McMurray even questioned the guilty verdict after the trial.

Once again, they're at odds with a jury that decided the officer did do something wrong and handed down a conviction that says he's a murderer.

And even after the conviction and sentencing, the city continued to support Darby, at least indirectly. The city refused to release footage of the shooting, despite these recordings being entered as evidence in a trial that had reached its conclusion. Journalists from several news outlets (led by AL.com) had to get a court order to obtain copies of the recordings.

AL.com has published the recordings. This is what the jury saw: a cop enter a house and decide -- within 11 seconds -- to kill someone who posed only a threat to himself. The jury also saw another cop already on the scene, one that felt this situation needed to be handled with care and concern, rather than with bullets and violence. Her decision was overridden by Officer Darby, who had had no interaction with the suicidal man other than shouting at him.

Officer Darby didn't spend much time mulling things over before deciding to shoot a fellow human being in the face with a shotgun. He'll have plenty of time to think about it now.

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Posted on Techdirt - 10 September 2021 @ 1:29pm

ProtonMail Turned Over French Activist's IP Address To Law Enforcement Following A Request From Swiss Authorities

from the vet-your-secure-providers,-folks dept

ProtonMail has long advertised itself as a particularly privacy-conscious email service. The free end-to-end encrypted email service promises more privacy and security than many of its competitors. But there are limits. ProtonMail operates out of Switzerland, making it subject to that country's laws (which, to be fair, are hardly draconian). It also (at least temporarily) retains a certain amount of information about users' emails -- metadata that can be used to verify accounts in the case of a lost password.

And while email between ProtonMail accounts is encrypted, the same protection isn't applied to emails between services, like communications sent to or from ProtonMail from other email services. This is an understandable limitation, which is why many seeking secure communications have moved to encrypted messaging services, rather than email offerings that collect metadata about communications.

These inherent weaknesses have been exploited by French law enforcement to obtain information about a French activist -- something it achieved with the assistance of Swiss authorities.

ProtonMail, a hosted email service with a focus on end-to-end encrypted communications, has been facing criticism after a police report showed that French authorities managed to obtain the IP address of a French activist who was using the online service. The company has communicated widely about the incident, stating that it doesn’t log IP addresses by default and it only complies with local regulation — in that case Swiss law. While ProtonMail didn’t cooperate with French authorities, French police sent a request to Swiss police via Europol to force the company to obtain the IP address of one of its users.

ProtonMail wasn't able to hand over much information due to its refusal to gather much information about its users. But it did hand over some, which made it clear that ProtonMail not only collects some email metadata, but will actively collect more metadata if forced to do so by local law. French law may not apply to the Swiss-based email company, but Swiss law certainly does.

Proton's founder, Andy Yen, offered up this explanation, which said local law supersedes the privacy ProtonMail claims it offers its users.

Proton must comply with Swiss law. As soon as a crime is committed, privacy protections can be suspended and we're required by Swiss law to answer requests from Swiss authorities.

And that's how foreign governments can extract information from an encrypted email service that gives users the impression that it's capable of protecting even the limited information it collects from nosy officials. The message going forward, however, is that ProtonMail is subject to the laws of multiple countries in the European Union and will comply with Europol orders if issued/forwarded by Swiss authorities.

As Karl Bode (hey, I know that guy!) points out in his article for Motherboard, there are two problems here. The first is that what's advertised appears to exceed what ProtonMail can actually guarantee its users. The other problem is the communication method itself, which generates a lot of information that other communication methods don't, creating a metadata paper trail that can be scooped up/gathered in bulk by law enforcement and intelligence agencies.

While ProtonMail does take some steps to protect user privacy better than other email service providers, the fact remains that email is inherently a protocol that requires a lot of information to be shared between parties, and is notoriously difficult to encrypt.

[...]

Ultimately, many of the security and privacy weaknesses are not necessarily ProtonMail's fault but are weaknesses with email itself. Security experts have pointed out that for highly sensitive communications, email is almost never the best option.

These unavoidable facts -- along with its cooperation with French and Swiss authorities -- have led ProtonMail to revise its claims about user data. It no longer claims it does not collect personal information to create accounts or log IP information "by default."

It now says simply:

ProtonMail is email that respects privacy and puts people (not advertisers) first. Your data belongs to you, and our encryption ensures that.

Well, except for when your data is subject to Swiss government demands for data, either directly or by proxy. User beware is the rule going forward now that this successful metadata grab has been exposed.

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Posted on Techdirt - 10 September 2021 @ 3:34am

Police Department Caught Falsifying Evidence Logs Used In Trial Of PD Employee Who Was Caught Falsifying Evidence Logs

from the Ouroboros-PD-is-proud-to-serve-the-residents-of-Miami-Beach! dept

The Miami Beach Police Department is so full of what we colloquially call "bad actors" that it can't even make its way through a criminal trial of one of its employees without implicating even more employees. Proper evidence handling? Chain of custody? These are things the Miami Beach PD can't be bothered to concern itself with.

The case against former Miami Beach crime-scene technician Jason Bruder boiled down to this: He was supposed to transfer evidence from a cabinet to the police property room. He didn’t. So to cover up his sloppiness, prosecutors alleged, he later made entries in a police log to make it appear as if he’d actually moved the evidence.

On the plus side, no evidence was lost. And, so far, the Miami Beach PD claims the sloppiness didn't affect any criminal cases or undermine any convictions. But the PD can't be trusted.

[T]he case took a twist Wednesday when it was noticed that copies of key evidence logs, shown to jurors by prosecutors, appeared to have been altered by other members of the Miami Beach Police Department.

That was enough to cast at least one trial in doubt -- that of technician Jason Bruder. The judge declared a mistrial and the State Attorney's Office wants answers from the Miami Beach PD.

But what kind of answers is it expecting? Straight answers? The Gang That Can't Keep The Chain Of Custody Straight isn't exactly the source I'd go to if I wanted honest, unaltered answers. Internal Affairs is supposedly all over this now, but it seems like IA should have been in control of these logs long before this, considering the tech was charged (with nine misdemeanors) all the back in 2018.

Three years later, he's getting a second chance to convince a jury he committed no crimes. At the very least, he'll be able to demonstrate he's no worse than his co-workers. If the Miami Beach PD handles this right, the tech will be joined by other officers who've been criminally-charged and fired.

But who expects the Miami Beach PD to handle this correctly or even competently? It seems the better solution would be to let anyone other than the PD perform the investigation. Officers appear to have no qualms about falsifying evidence. And the PD appears to have little interest in performing internal oversight.

So, if evidence is whatever the PD says it is, hundreds of criminal convictions should be questioned. It should be on the PD to demonstrate it has not falsified evidence or evidence logs. If public safety is threatened by the release of possibly wrongfully convicted people, that's on the PD as well. It can't serve and protect if it can't do the little -- but very crucial -- things needed to ensure justice is served.

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Posted on Techdirt - 9 September 2021 @ 5:46pm

Body Cam Video Shows Cop Killing A Harmless Dog Within 15 Seconds Of Arriving At The Scene

from the 'fast-moving-situation'-means-more-than-a-cop-shooting-quick dept

I don't often write about cops killing dogs. It's not that it's a rarity. It actually happens all the time.

Laurel Matthews, a supervisory program specialist with the Department of Justice's Community Oriented Policing Services (DOJ COPS) office, says it's an awful lot. She calls fatal police vs. dogs encounters an "epidemic" and estimates that 25 to 30 pet dogs are killed each day by law enforcement officers.

Cops kill dogs at an alarming rate. And it remains alarming, despite the increased possibility of them encountering actually dangerous dogs. True, cops are often the first to respond to calls about stray dogs. But they also put themselves in danger by wandering into fenced areas meant to keep dogs contained when pursuing suspects or just meandering around in hopes of finding something that justifies their intrusion.

More than half of our federal court districts have held that killing or wounding a family pet is a "seizure" under the Fourth Amendment. Nonetheless, this behavior persists, with cops seemingly willing to shoot any animal that heads towards them, even when propelled by nothing more than their innate friendliness and curiosity.

Being trigger-happy in the presence of animals can have more serious consequences. Cops have wounded and killed human beings while trying to shoot dogs that had the temerity to ignore shouted orders.

A recent lawsuit [PDF] has highlighted another senseless killing of a family pet by a cop. (While multiple outlets covered this lawsuit, Law and Crime actually posted the complaint, which is why we're linking to that site.)

According to the lawsuit, Wendy Love and Jay Hamm had stopped in the parking lot of a vacant business to do some work on a second-hand ice machine and give their three dogs a chance to stretch. The business had no name on the front and all the windows were covered. There were no other people or vehicles in the lot.

However, the business owner was apparently monitoring still-live CCTV cameras. He called the Loveland (CO) police department, asking them to send someone out to remove them from the premises, claiming he was concerned the couple was going to tamper with his locked dumpster. The couple was parked nowhere near the apparently-sacred dumpster nor did they approach it at any time, something admitted by the business owner during his call to dispatch.

Officer Mathew Grashorn was the first to arrive. Within 13 seconds, he had exited his vehicle and mortally wounded the couple's 14-month-old dog.

There's body cam video of the shooting.

It happens so fast it's entirely contained in the camera's 30-second rolling buffer, hence the initial lack of sound. What happens in these 15 seconds is the officer's arrival, which is followed almost immediately by the officer brandishing his weapon. It's unclear which threat justified this action. Was it the people hanging out in a vacant parking lot? Or was it the happy dog approaching him at a medium lope? Whatever it was, it resulted in the dog being shot by the officer. And those shots resulted in the dog dying, euthanized four days later because of the severity of the wounds.

There's something incredibly eerie about the recording. The violence is silent. That disturbing silence is finally interrupted by the distressed shouts of Wendy Love, the first of which is rendered soundless by the body cam's built-in recording features.

This probably won't have much legal relevance, but it's still worth pointing out: the couple accuses the city of fostering this shoot-first behavior in Loveland police officers by continually stressing the importance of protecting local businesses. As the lawsuit notes, this "business-first" mentality has resulted in other acts of police violence. (There are recordings of these incidents as well.)

On June 26, 2020, Walmart suffered no loss when dementia-sufferer and 73-year-old woman Karen Garner walked out of the store without paying for $13.88 of items. When confronted, she gave the items back and attempted to pay for them. Walmart refused and instead called LPD to deal with it. LPD sent multiple officers, including Sergeant Metzler, to locate and tackle Ms. Garner, causing her to suffer a broken and dislocated shoulder. The multiple officers involved did this knowing that Walmart hadn’t suffered any loss. They did it pursuant to the aforementioned policy of making large, demonstrative showings of allegiance to Loveland businesses.

On July 20, 2020, Target contacted Loveland PD to deal with a man (Keenan Stuckey) suffering from mental health issues in their parking lot, requesting that they arrest or remove him even though he was breaking no laws and bothering nobody. Loveland PD sent six officers there in minutes, and they promptly brutalized the man with batons, kicking him, punching him, and doing a pile-driver type of jump atop his lifeless body.

The lawsuit also notes the Loveland PD's internal investigation cleared the officer of any wrongdoing, claiming he reasonably feared for his safety. But if the officer was fearful, he didn't show it (other than the immediate use of his weapon). He could have retreated to the safety of the car he had just exited. He could have stepped behind his still-open door. He could have used any less-lethal weapon to subdue the animal. But he chose to kill.

As if this isn't enough to show just how dangerous law enforcement officers can be, there's this:

Loveland sergeants and officers next discussed together concern that Ms. Love and Mr. Hamm had mentioned sharing what had happened with the media. Sergeant Metzler told Officer Grashorn that “since [Hamm’s] saying he’s going to go to the press, we better scratch him a ticket for something.”

The officers decided they would claim that Herkimer [the dog shot by the officer] had attacked Officer Grashorn. They did in fact tell this lie over and over again. They told this lie to Larimer County Animal Control and to the veterinarians attempting to treat Herkimer.

[...]

This lie was also at the foundation of the Defendant officers’ decision to give Mr. Hamm a ticket for having a “dangerous dog,” a charge that the Larimer County District Attorney’s office later dismissed as not having any basis in fact.

It's not enough that officers can kill people (or their pets) with near impunity. They also have the power to punish people for having their pets killed by an officer. In this case, it appears this was done to get out ahead of the pet owner's attempt to tell his story via social media. With the only recording being in police possession, the "our word against theirs" would have ensured the cops' narrative -- the one about an unsecured, "dangerous" dog -- would receive the most air time and been immediately granted the most credibility.

That's an absurd amount of power. And it comes with so very little accountability. The lawsuit -- even with the seemingly-damning recording -- is still a longshot. And the couple doesn't get to use tax dollars to move their allegations forward. It's coming out of their own pockets while the city gets to defend itself and its officers using unlimited funds provided by Loveland residents. And even if the officer is found to be at fault, he'll likely be indemnified, meaning it won't cost him anything either. The city will just take that judgment money from taxpayers as well.

The whole thing was recorded. There can be no claims that something is being "taken out of context." It shows everything the cop did, which was respond to a possible trespass call with deadly force -- all within 15 seconds of arriving on the scene. The danger was entirely imagined. And it was justified by retconning the encounter with the issuing of a "dangerous animal" citation. It's ugly enough that a pet was killed for no justifiable reason. Attempting to punish the pet owner for witnessing an unjustified act of violence is disgusting.

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Posted on Techdirt - 9 September 2021 @ 1:41pm

Sixth Circuit Reaffirms It's A Fourth Amendment Violation To Chalk Car Tires For Parking Enforcement Purposes

from the folks,-this-is-why-they-play-the-games dept

Two years ago, the Sixth Circuit Court of Appeals surprised the city of Saginaw, Michigan by finding the process of marking car tires with chalk for parking enforcement violated the Fourth Amendment. The city certainly didn't expect multiple ticketholder Alison Taylor's lawsuit to make it this far. And it certainly didn't expect the Appeals Court to reverse the district court's decision that no Fourth Amendment violation had taken place.

Contrary to expectations, the Appeals Court ruled in 2019 that chalking tires certainly appeared to violate the Fourth Amendment. And the city was unable to successfully argue otherwise. Relying on the Supreme Court's Jones decision, the Appeals Court said the city unreasonably "trespassed" on the private property of residents (that being their cars) to apply the chalk mark -- property still protected by the Fourth Amendment against unreasonable searches despite being parked on public streets.

The argument that this temporary intrusion was excused by the community caretaking function of law enforcement also failed. The court pointed out engaging in revenue-generating enforcement efforts did nothing to take care of the community and the initial trespass occurred when vehicles were still parked legally, giving the government no reasonable suspicion to engage in this intrusion.

That wasn't necessarily a win for Alison Taylor, who decided to sue after she'd amassed fifteen parking tickets. It went back down to the lower court for some fact-finding, giving the city another chance to raise arguments that might allow it to continue utilizing this parking enforcement method.

Well, the case has returned to Sixth Circuit Appeals Court, and the court's conclusions haven't changed. The city raised a new argument during the case's return to the lower level and the Appeals Court [PDF] doesn't like this one either.

This time around, the city argues chalking is actually an administrative search -- yet another warrant exception the government has at its disposal. But if it's an administrative search (as the city argues), it's still an unreasonable search because it eliminates one crucial aspect of these searches: the opportunity for the search target to ascertain compliance with the law before being subjected to this warrantless search.

Generally, when a search is conducted for an administrative purpose and pursuant to a regulatory scheme—such as inspecting a home for compliance with a municipal housing code— the government may justify a warrantless search by showing that it met “reasonable legislative or administrative standards.” This is assessed by “balancing the need to search against the invasion which the search entails.” But it is not a free-for-all for civil officers; among other requirements, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” This prerequisite removes the City’s practice from the usual administrative-search case, see id.; Liberty Coins LLC, 880 F.3d at 281–82, as there is no such opportunity (which the City does not contest).

Having failed with this definition, the government proposes another: parking on public streets is a "closely-regulated industry" that gives city employees the authority to perform warrantless searches. This argument is even worse, says the Sixth Circuit.

[U]nlike the closely regulated industries of liquor sales, firearm dealing, mining, or automobile junkyards identified by the Supreme Court, municipal parking plainly does not “pose[] a clear and significant risk to the public welfare.” That automobiles are regulated and involved in parking is inconsequential because the exception applies to industries, not objects. So, for example, a state’s statutory scheme authorizing a warrantless inspection of an automobile junkyard resulting in the search of a Ford Mustang may be permissible, but it does not apply to the search of the same convertible parked on a city street.

The city also tried to compare this form of parking enforcement with border crossings and DUI checkpoints -- places where Fourth Amendment rights are presumed to be waived, if not ignored completely, to allow the government to serve its "special needs" (border security, public safety). Even the city seems to have a hard time buying its own argument.

We see no special need here, which defendants concede by admitting that “Ms. Hoskins’s job was not impacted in any respect if she did not chalk tires.” And common-sense commands this conclusion; for nearly as long as automobiles have parked along city streets, municipalities have found ways to enforce parking regulations without implicating the Fourth Amendment. Thus, tire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.

However, the court does allow the parking enforcement officer (the "Ms. Hoskins" mentioned above) qualified immunity for the warrantless trespasses on Alison Taylor's property. Unsurprisingly, the Appeals Court says the officer could not have possibly gathered from almost nonexistent precedent that this was a rights violation. In fact, the only precedent the Appeals Court can find is the Jones decision, which concerns a GPS device and impermissible trespass onto a person's property. That case also involved law enforcement and a parked car, but it's completely understandable that a parking enforcement officer wouldn't equate this decision with the heretofore unchallenged practice of chalking tires.

So, the city will have to find another way to engage in parking enforcement. This may mean the installation of plate readers and surveillance cameras. Or there might be a simpler solution -- one that cities have used for years with few problems or constitutional violations. The court even includes a link in its decision to inform the city of its options.

See, e.g., Amanda Erickson, A Brief History of the Parking Meter, Bloomberg CityLab (April 3, 2012), available at https://www.bloomberg.com/news/articles/2012-04-03/a-brief-history-of-the-parking-meter (last visited Aug. 9, 2021).

Like the last one, this decision is published, which means it's precedent. So, if chalking is in use elsewhere in the circuit (and it almost definitely is), it's a constitutional violation. But, given the fact it's unlikely many drivers will challenge being chalked, it's probably a pretty safe way for city governments to violate rights en masse.

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