Posted on Techdirt - 9 October 2015 @ 6:22pm
A couple of weeks ago, the government petitioned the Fourth Circuit Court of Appeals for an en banc rehearing of its decision finding that the acquisition of historical cell site location information (CSLI) requires a warrant. The government used many of the arguments the dissenting opinions did -- mainly that CSLI should still be considered a "business record" under the Third Party Doctrine.
It argued that while the court had held that cellphone users do not voluntarily convey location data when they use their phones, they also do not affirmatively agree to provide service providers with time, date, number called and length of the phone. These are all just parts of how service providers do business. With this argument, the government hopes to equate the tracking technology of modern cellphones with the simple phone records created by landlines -- the latter of which can be obtained without a warrant.
Obviously, the two types of data are nothing alike. Landlines don't generate location information because they're in a fixed position. Cellphones -- on top of creating location records whenever a call is placed -- also create continuous location data as they hop towers to obtain signals, even while the phone is not in active use.
The defendants in the original case have filed their opposition to the government's request for a rehearing, arguing (naturally) that the court came to the correct decision the first time around.
The panel correctly decided that tracking a person using historical cell site location information (CSLI) for 221 days, without a warrant or probable cause, is dragnet surveillance that the Fourth Amendment prohibits. See United States v. Jones, 132 S. Ct. 945, 952 n.6 (2012). The government is essentially asking this Court to treat cell phones as personal homing beacons, providing it the wherewithal to follow and recreate a person’s every movement. The government seeks to do so without a warrant or probable cause, using the excuse that telecommunications providers also happen to know when and where an individual has gone and is going.
The difference between what the government did here and what George Orwell envisioned is that Big Brother’s constant surveillance through telescreens was stationary. But the surveillance here moves with citizens using a common household device carried in the pockets or purses of almost every American adult. Our Founders crafted the Fourth Amendment to require a warrant based on probable cause before the government could acquire such intimate information about a person. The panel’s conclusion that the government must comply with the warrant requirement before obtaining historical CSLI correctly applies the Fourth Amendment.
More to the point, the filing argues that the government's purported reason for the rehearing request is flawed in and of itself. The government noted the circuits are split
in their opinions of CSLI's Fourth Amendment implications. The government says a rehearing will "resolve" the current circuit split. The defendants point out that a rehearing will do nothing of the sort, no matter how the court resolves its own
differences from its first (divided) opinion. That's up to the nation's highest court to settle, should such a petition be granted.
While it is true that the majority opinion conflicts with decisions from the Fifth and Eleventh Circuits regarding the applicability of Smith and Miller and the third party doctrine, these courts had already split with the Third Circuit. The Eleventh and Fifth Circuits held that individuals have no reasonable expectation of privacy in historical CSLI because, under Smith and Miller, individuals voluntarily disclose their location data to cellular service providers…
These splits existed before the panel’s decision. The panel thoroughly addressed all the different positions in its 134-page opinion. If any further review of this issue should occur, it should be in the Supreme Court, the only forum that can clarify the fractured state of the law. A petition for certiorari is already pending in Davis, which, if granted, would resolve these splits.
The opposition filing also notes that while the government cites several court decisions in support of its Third Party Doctrine-based arguments, it relies on nothing more current than 1979's Smith vs. Maryland
-- the decision that upheld the warrantless acquisition of call routing data via pen register orders. In doing so, it bypasses the most recent Supreme Court decisions on cellphones and warrants: Riley
Riley v. California establishes that individuals have a privacy interest in historical CSLI. 134 S. Ct. 2473, 2490 (2014). Historical CSLI generated by cell phones served as one of the Court’s chief examples of “the privacies of life” included in cell phone metadata. The Court described just how intimate and detailed location data is: “Data on a cell phone can also reveal where a person has been. Historic location information . . . can reconstruct someone’s specific movements down to the minute, not only around town, but within a particular building.” Id. The Court explained the intrusive nature of CSLI tracking by adopting Justice Sotomayor’s concurrence in United States v. Jones, 132 S. Ct. 945, 955 (2012). The unanimous Riley Court thus concluded that monitoring “a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations” infringes upon an individual’s reasonable expectation of a privacy that is protected by the Fourth Amendment.
These findings are echoed in the appeals court's decision, but the US government wants those conclusions rolled back. A patchwork of conflicting opinions on CSLI and the Fourth Amendment won't be resolved until the Supreme Court addresses the issue directly, but until then the government apparently would like to keep its warrantless options open.
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Posted on Techdirt - 9 October 2015 @ 3:28pm
Minnesota law enforcement's last-ditch effort to keep body camera footage out of the hands of the public has failed. Back in February, legislators made the first effort, pushing a bill that would have limited recording requests to the subjects of the recordings. It also included a 90-day destruction period for any footage not part of an ongoing investigation, which would have allowed agencies to destroy damning footage of police misconduct, provided involved subjects hadn't requested a copy within the limited timeframe.
After that effort failed, a coalition of the state's police chiefs petitioned the governor directly, asking for all footage to be declared "classified" until legislators further defined what footage is or isn't responsive to public records requests. Obviously, the hope was to make a second run at severely limiting public access to body cam footage -- and all done in the faux interest of protecting citizens' privacy.
"We're in a little bit of an awkward and precarious spot in law enforcement: More and more people are calling for use of body cameras and their potential benefits," [Maplewood Police Chief Paul] Schnell said Thursday. On the flip side, Schnell contends wide access to data amounts to "window peeping into events that may be highly personal, emotionally traumatizing and not intended for the eyes and ears of others" -- particularly when their interactions with police are in private dwellings.
Given that police seldom seem interested
in adhering to the limits of the Fourth Amendment and its privacy protections, this sudden concern for the privacy of people on the other end of law enforcement interactions is very suspect.
The good news is that this effort has also failed. No footage will be classified
In his rejection letter, [Commissioner Matt] Massman wrote that he could not grant the request, because it would turn private data that is already public under state statutes—such as public arrests, responses or request for police services.
There are still some privacy concerns to be addressed, as Massman points out, but there will be no blanket order issued to prevent the public from requesting body camera footage.
“That decision, however, is not a conclusion that the law adequately addresses the complex and sensitive data circumstances that arise with the use of body cameras.” Massman wrote…
“Minnesota’s data practices are designed to be neutral to technology,” Massman wrote. “The reality is, however, that body cams have the potential to collect substantial amounts of video and audio in private and very sensitive circumstances. Body cam data can include much greater detail than might be contained in a written law enforcement report, such as footage of a private home and personal belongings. Greater statutory clarity regarding how data practices laws should apply to such data would provide essential guidance for all interested stakeholders.”
Hopefully, legislators crafting future bills will remember the general public is an important stakeholder. That was pretty much ignored during their first attempt, which was very much crafted from the law enforcement point of view. Fortunately, the House rejected the proposal and killed the bill. The legislature doesn't reconvene until March of next year, so for the time being, body camera footage is freely available to requesters.
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Posted on Techdirt - 8 October 2015 @ 3:35pm
There are all sorts of proprietary code out there, unavailable for inspection and perfectly capable of sending people to prison, as Slate's Rebecca Wexler reports.
Defendant Martell Chubbs currently faces murder charges for a 1977 cold case in which the only evidence against him is a DNA match by a proprietary computer program. Chubbs, who ran a small home-repair business at the time of his arrest, asked to inspect the software’s source code in order to challenge the accuracy of its results. Chubbs sought to determine whether the code properly implements established scientific procedures for DNA matching and if it operates the way its manufacturer claims. But the manufacturer argued that the defense attorney might steal or duplicate the code and cause the company to lose money. The court denied Chubbs’ request, leaving him free to examine the state’s expert witness but not the tool that the witness relied on.
That's a starkly mercenary stance to take. The "trade secret privilege" invoked here basically states that the company's potential loss of income outweighs a person's potential loss of freedom. It also asks for a level of trust it hasn't earned: that the software is as close to infallible as it needs to be. Cross-examination is next to useless when the software itself can't be examined.
Worse, this closed-off software operates in a field where nearly every previous form of "indisputable" evidence has proven to be severely flawed.
Studies have disputed the scientific validity of pattern matching in bite marks, arson, hair and fiber, shaken baby syndrome diagnoses, ballistics, dog-scent lineups, blood spatter evidence, and fingerprint matching. Massachusetts is struggling to handle the fallout from a crime laboratory technician’s forgery of results that tainted evidence in tens of thousands of criminal cases. And the Innocence Project reports that bad forensic science contributed to the wrongful convictions of 47 percent of exonerees.
Everything tied to securing convictions seems to suffer from pervasive flaws compounded by confirmation bias. For four decades, the DOJ presented hair analysis as an unique identifier on par with fingerprints or DNA when it wasn't
. A 2014 Inspector General's report found the FBI still hadn't gotten around to correcting forensic lab issues it had pointed out nearly 20 years earlier
. This contributed to two decades of "experts" providing testimony that greatly overstated
the results of hair analysis. All of this happened in the FBI's closed system, a place outsiders aren't allowed to examine firsthand.
That's the IRL version. The software version is just as suspect. Computers aren't infallible and the people running them definitely
aren't. If the software cannot be inspected, the statements of expert witnesses should be considered highly dubious. After all, most expert witnesses representing the government have a vested interest in portraying forensic evidence as bulletproof. Without access to forensic software code, no one will ever be able to prove them wrong.
If a piece of software has the ability to deprive a member of the public of their freedom, its code should be open for inspection by the defense. "Trade secrets" should not take precedence over the public's right to defend themselves in court. Even in the highly unlikely event that Chubb's defense team would have copied the code and destroyed the company's future profits, it would still have the ability to seek redress through the court system. After all, that's the line the government uses when it argues for expanded "good faith exceptions" or warrantless searches and seizures: "Hey, if we screw up, you can always sue."
The judicial system is a remedy for wrongs, both criminal and civil. What it shouldn't be is a protective haven where ridiculous assertions like those made here are used to prevent an accused person from learning more about the evidence being used to convict them.
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Posted on Techdirt - 7 October 2015 @ 3:28pm
Despite there being multiple copies of nearly-identical FBI/Stingray non-disclosure agreements in the public domain at this point, the Tacoma (WA) Police Department still refuses to provide FOIA requesters with an unredacted version of its own NDA.
In late 2014, the Tacoma Police Dept. handed Seattle's Phil Mocek a copy of its NDA, which, perhaps unsurprisingly, failed to disclose much about the non-disclosure agreement. The only things left unredacted were the two opening paragraphs of the agreement and the signatures at the end of it. In the middle was a solid wall of black ink.
A year later and nothing has changed. Other Stingray/FBI NDAs have been liberated via public records requests with very little redacted, but the Tacoma PD still won't provide Mocek with an unredacted version of its. So, Mocek has filed a lawsuit against the law enforcement agency.
The complaint, filed Sept. 17 in Pierce County Superior Court by a Seattle advocacy group, contends police and the city’s legal advisers wrongly cite an exemption in state public-records law that protects “specific investigative records.”
“The redacted information is not within this exemption, as it is not intelligence gathered, nor results of intelligence gathering, nor intelligence gathered in a specific case, and is not specific intelligence information,” the lawsuit states.
“The information in the agreement was created before there was any investigation at all conducted with the Stingray equipment, and before any specific intelligence information was gathered with it.”
All good points and all ones that can be easily verified by reading any of the other NDAs acquired by FOIA requesters. (Or just reading the Tacoma PD's in camera
...) There are many reasons the Tacoma PD may not want to make this agreement public -- like the fact that it will drop cases rather than reveal Stingray use -- but none of those are valid reasons for withholding the bulk of the agreement.
The Tacoma PD hasn't singled out Mocek with its over-redaction. The Tacoma News Tribune requested the same document and received the same amount of black toner
If the court finds in favor of Mocek and the Center for Open Policing
(the other plaintiff in the suit), it could cost Tacoma's taxpayers a fair amount of cash.
The lawsuit filed against Tacoma police seeks cash penalties calculated by the number of days — 395 – that passed since Mocek, the Seattle activist, made his original request and later filed suit.
Under state law, courts can levy fines of up to $100 per day for wrongful withholding of records.
That's a lot of money to be shelling out for overly-redacting an agreement that's 99% boilerplate and already publicly-available thanks to other FOIA requests targeting other law enforcement agencies. While it's true the Tacoma PD applied its heavy redaction before the others were made public, it still has yet to release an unredacted version of its agreement..
It could be the black ink adds a layer of foreboding secrecy to the now-commonplace document. This undoubtedly assists the Tacoma PD in projecting its law enforcement mystique -- the same thing it used to keep its Stingray acquisition secret for more than five years. It wasn't until the PD needed to purchase an upgrade to its equipment that it finally was forced to deal with public scrutiny
of its surveillance equipment. This new scrutiny included town legislators, who apparently approved the original purchase without question. Even now, with the PD's subterfuge exposed, legislators still believe the devices are being used to do good things, so why worry too much about all the obfuscation?
With a payout of $40,000 potentially on the line, the city might finally start asking its police force for a little more transparency and accountability.
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Posted on Techdirt - 7 October 2015 @ 2:02pm
The government has done a spectacularly terrible job at protecting sensitive personal information over the past couple of years. Since 2013, the FDA, US Postal Service, Dept. of Veterans Affairs, the IRS and the Office of Personnel Management have all given up personal information. So, it's no surprise the Government Accountability Office's latest report on information security contains little in the way of properly-secured information.
It opens with this depressing graph, showing just how many agencies flunked its information security controls assessment. Keep in mind that it only surveyed 24 agencies.
But what's most concerning about the report (which is full of concerning conclusions) is that, in an era of cyber-everything, the most common "security incidents" have nothing to do with phishing, security holes or any other cyber-related threat. They have to do with people and the mishandling of dead tree byproducts.
Non-cyber incidents are defined by the GAO as:
...a report of PII [personally-identifiable information] spillage or possible mishandling of PII that involves hard copies or printed material as opposed to digital records.
The GAO reports that security incidents have skyrocketed over the past eight years, from 5,500 in 2006 to nearly 70,000 last year.
It also notes that incidents involving personally-identifiable information have increased steadily as well.
[T]he number of information security incidents involving PII reported by federal agencies has more than doubled in recent years, from 10,481 in 2009 to 27,624 in 2014.
It all adds up to something fairly disturbing. Not only are government agencies increasingly under attack from outside forces, but their internal handling of hard-copy PII is getting worse as well -- even if the percentage of non-cyber incidents has declined over the past five years.
And despite the government's increased focus on all things cyber, the first chart makes it clear there has been almost no improvement in information security controls since 2013.
It also appears as though there's only one agency taking the GAO's past recommendations seriously: the Department of Defense.
OMB established a fiscal year 2014 target of 75 percent implementation for strong authentication. In its report on fiscal year 2014 FISMA implementation, OMB indicated that the 24 federal agencies covered by the CFO Act had achieved a combined 72 percent implementation of these requirements, but this number dropped to only 41 percent implementation for the 23 civilian agencies when excluding DOD.
Obviously, overhauling security controls in a large number of agencies is an enormous undertaking. But this low level of implementation is both frightening and
pathetic. The government demands large amounts of personal information from citizens, as well as from its employees and job applicants. There's no opting out. Then it takes this information and provides only the most perfunctory of protections. Government agencies clearly can't be trusted with securing this information, but there's no option other than to submit and hope for the best. It's even more disheartening when you realize that some of these directives that still
haven't been fully complied with have been in place since 2002
The government asks for too much and provides too little in return. Multiple agencies want to be the "ground force" in the cyberwar
. But until the homefront is secured, it seems unwise to deploy elsewhere.
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Posted on Techdirt - 7 October 2015 @ 8:29am
China's plan to control the hearts, minds and internet connections of its citizens continues unimpeded. That's the great thing about authoritarian regimes: rollout of mandatory programs is usually only a problem of logistics, not opposition.
The Chinese government has mandated a rating system for all of its connected citizens. It looks like a credit rating but goes much deeper than just tying a measurement of financial risk to a number. It's a way of defining who someone in terms of the government's desires and aims. And its desires aren't all that honorable.
Everybody is measured by a score between 350 and 950, which is linked to their national identity card. While currently supposedly voluntary, the government has announced that it will be mandatory by 2020...
In addition to measuring your ability to pay, as in the United States, the scores serve as a measure of political compliance. Among the things that will hurt a citizen’s score are posting political opinions without prior permission, or posting information that the regime does not like, such as about the Tiananmen Square massacre that the government carried out to hold on to power, or the Shanghai stock market collapse.
This is where all the government's moves towards greater control
of the internet comes to fruition. To keep "score," the government needs to tie IDs to online activity. Keeping the internet within the government's walls
makes it that much easier. But it's not just online activity that will affect "citizen scores." It's almost every aspect of their lives.
Also used to calculate scores is information about hobbies, lifestyle, and shopping. Buying certain goods will improve your score, while others (such as video games) will lower it.
Chinese citizens who want to remain in the government's good graces will need to balance "negative" purchases with offsetting positive purchases, most likely domestic electronics and appliances.
As disturbing this is, the truly horrific aspect of the "citizen score" is that it can be influenced by friends and family members.
It will hurt your score not only if you do these things, but if any of your friends do them. Imagine the social pressure against disobedience or dissent that this will create.
The Chinese government is introducing a caste system -- one that will result in the shunning of people who can't be bothered to keep their dissenting opinions to themselves… or just enjoy certain leisure activities. Certain people will be considered too harmful to hang out with, thanks to the government's mandatory "citizen score." And with anyone able to check anyone else's "score," the pressure to ostracize low scorers will be greatly magnified.
Most disheartening is the fact that many citizens seem to view higher scores as status symbols.
Sadly, many Chinese appear to be embracing the score as a measure of social worth, with almost 100,000 people bragging about their scores on the Chinese equivalent of Twitter.
The government's program feeds on the natural competitive desires of human beings. There may be no official leaderboard (YET!) but with millions of easily-accessed "citizen scores," anyone can enter this unofficial score-measuring contest. The government obviously realizes this, as it has tied perks to certain score tiers.
Those with higher scores are rewarded with concrete benefits. Those who reach 700, for example, get easy access to a Singapore travel permit, while those who hit 750 get an even more valued visa.
Klout, but for controlling the hearts and minds of a large populace.
And just in case anyone wants to feel superior about China's decision to grade its entire populace on a mandatory curve, let's not forget that employers and loan providers are using applicants' social media interactions
to determine their worthiness -- including who they're friends with and what those
friends are posting to Twitter, Facebook, etc.
The US government may not be calling for a "citizen score," but there have been pushes for a national ID
, and government agencies are certainly using the same hiring "tools" as the private sector when considering job applications. The US government hasn't made many direct assaults on dissent, but it does perform a lot of this same tracking behavior in the interest of national security -- what with the TSA asking for bids
on social media mining software and the DHS suggesting retailers voluntarily report
The Chinese government, however, is sending an implicit message to its citizens with this program: conform or be cast out. The smallest of carrots is dangled and members of the public -- in the interest of maintaining their own high scores -- will act as the stick.
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Posted on Techdirt - 7 October 2015 @ 3:16am
Today's novel legal argument: take a ruling on cell site location info warrant requirements and make it fit the warrantless data haul obtained earlier by submitting only the "quantity" the court has previously OKed.
To get a sense of where we're going with this, here's a bit from the opening paragraphs of the opinion:
The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley's cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant.
The CSLI was sought twice
. This is the first sign that something's not quite right. Historical cell site location information doesn't change. That's the thing about history. And yet, the police obtained it twice
: once with a subpoena (which was wrong) and once with a warrant (the lawful way to do it).
You see, the Massachusetts courts had already created a bright-line (of sorts) for the acquisition of cell site location data. Under the state's interpretation of its Declaration of Rights, cell site location info carries with it a reasonable expectation of privacy. This status demands the use of a warrant. An earlier decision determined that small amounts (up to six hours) of CSLI can be obtained without a warrant, as the limited time period makes acquisition much less analogous to long-term tracking.
The police knew they could only get six hours of CSLI without a warrant, but they had already grabbed two week's worth using only a subpoena. But the officers had an angle…
In this case, however, because the Commonwealth requested two weeks of historical CSLI, a search warrant was required, even though the Commonwealth proposes to use only six hours of the CSLI as evidence at trial.
That's a very opportunistic reading of the court's intentions. If the police were so inclined, they could subpoena a year's worth of CSLI and trim it down to only the most incriminating six hours of data before presenting it in court. Or they could just go fishing with subpoenas, look over the collected data and see if they could match any six hours of it to an investigation or prosecution.
The court points out the flaw in this logic, which, let's face it, the cops knew all along.
It is important to emphasize that, in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person's CSLI is requested, not the time covered by the person's CSLI that the Commonwealth ultimately seeks to use as evidence at trial.
The warrant requirement is for the "asking," not the "telling," to put it elementary school terms.
Fortunately for the police, the twice-obtained CSLI didn't harm their case too much. The defense argued that other evidence -- including statements made to the police -- should be suppressed because it originated from tainted CSLI. The court, however, concludes that a great deal of evidence was obtained independently and that only a few moments from various interviews could be traced back to inferences drawn from the cell site location info.
The court also came to the conclusion that the warrant the police sought well after it already had the subpoenaed CSLI in hand was likely legitimate, rather than just a shoddy attempt to cover up its earlier misdeed. Over the course of several paragraphs, the court lists all of the information gathered by officers prior to their issuing of the subpoena and finds it adds up to probable cause that isn't overly-reliant on the already-acquired CSLI info. The court doesn't offer any speculation as to what actually
happened here, but rather points out that the CSLI was still lawfully-obtained, and anything stemming from the latter acquisition cannot be suppressed.
While this obtain-twice, admit-once method of cell site evidence acquisition didn't pay off for the criminal defendants, it at least provides another citable example of how far law enforcement agencies are willing to go to bypass the mild logistical hiccup that is obtaining a warrant
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Posted on Techdirt - 6 October 2015 @ 4:07pm
The Appeals Court of Kansas has upheld a lower court's decision finding it beyond the reach of a university to expel a student for off-campus behavior.
Beneath this logical conclusion are some not-so-pretty facts. The origin of the lawsuit is a "bad breakup" that resulted in criminal charges for the former boyfriend, Navid Yeasin. (h/t That Anonymous Coward)
In Johnson County during the summer of 2013, an argument occurred between Yeasin and his now ex-girlfriend after he saw messages from another man on her phone. The two drove around arguing and she asked Yeasin to let her out, but he refused. He also refused to return her phone.
She complained to the Johnson County police. Court records show Yeasin was charged with criminal restraint, battery and criminal deprivation of property. To resolve this incident, Yeasin voluntarily entered a no-contact order, meaning he could not contact his ex-girlfriend.
What Yeasin did next did not play a role in this decision, which was ultimately decided on the merits (or lack thereof) of the University of Kansas' interpretation of its own policies. But it does say something about the reach of the school's no-contact order (the school added its own on top of the one handed down by the county court), which was certainly further than it should have been.
“The Judge who entered the order ruled that it was entered by consent with no findings of abuse,” [attorney Terry] Leibold said. “In order to comply with the no-contact order, Navid removed the ex-girlfriend as a follower of his tweets. His Twitter account was private and could only be accessed by his followers.”
Yeasin still used his Twitter account to make disparaging remarks about his ex-girlfriend (referred to simply as "W" throughout the proceedings). But he never directed messages towards her. He tweeted about
her but never used her name. This didn't keep the tweets from being mostly despicable and they certainly were "decoded" by those familiar with both parties, but the university's no-contact order went far enough to make even this indirect non-communication a potential violation. From the ruling
You are hereby informed that this 'no contact' order means that you understand you are prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [W.], her family, her friends or her associates. This also includes a prohibition from interfering with her personal possessions. . . . Moreover, retaliation against persons who may pursue or participate in a University investigation, whether by you directly or by your associates, is a violation of University policy.
On the same day the university opened its investigation into his off-campus actions, Yeasin tweeted:
On the brightside you won't have mutated kids. #goodriddens
After being informed of the university's no-contact order, he tweeted:
Jesus Navid, how is it that you always end up dating the psycho bitches?' #butreallyguys
Over the next few weeks, he tweeted the following:
Oh right, negative boob job. I remember her.
If I could say one thing to you it would probably be "Go fuck yourself you piece of shit." #butseriouslygofuckyourself #crazyassex
Lol, she goes up to my friends and hugs them and then unfriends them on Facebook. #psycho #lolwhat
These tweets were reported to the university. (No reports were made to law enforcement.) The university's Office of Institutional Opportunity and Access (IOA) sent Yeasin an email telling him that even though the tweets didn't mention W's name, they were still a violation of the no-contact order, which was expanded to cover even more potential communications.
Brooks gave Yeasin a second warning that "[g]oing forward, if you make any reference regarding [W.], directly or indirectly, on any type of social media or other communication outlet, you will be immediately referred to the Student Conduct Officer for possible sanctions which may result in expulsion from the University."
Seven hours later, Yeasin tweeted:
lol you're so obsessed with me you gotta creep on me using your friends accounts #crazybitch
Yeasin was summoned by the IOA, where he made conflicting statements about whether or not the tweets referred to W. He also made this concession:
Yeasin told McQueeney that he would not tweet anything that could be perceived as being directed at W. and he recognized doing so was a violation of both the protection order and the no-contact order.
The university moved ahead with its investigation and decided Yeasin's tweets had violated the no-contact order and expelled him, along with banning him from the campus until W. had graduated.
Yeasin then sued the university for kicking him out over incidents that had occurred off-campus, including the original confrontation that had resulted in his arrest. The lower court found in favor of Yeasin.
[G]iven its finding that the University erroneously interpreted the Student Code by applying it to off-campus conduct, the district court found that the University's decision that Yeasin violated Article 22 was not supported by substantial evidence because it failed to establish that Yeasin's conduct occurred on campus or at a university-sponsored event.
The district court ordered that the University readmit Yeasin, reimburse or credit Yeasin for his fall 2013 semester tuition and fees that he paid, and pay the transcript fees. However, the court issued a stay order at the University's request.
The appeals court agrees. It points out that the sections of the student code the university cited to support its expulsion of the student both contain wording that limits the university's discipline to actions taken on campus or during university-sponsored events.
Through every step of the disciplinary proceedings, the University relied on Article 22 of the Student Code as the basis for Yeasin's discipline. But, on appeal, the University cherry-picks a small phrase from Article 20 to argue that it did indeed have the authority to expel Yeasin for his actions in Johnson County during the summer and for his tweets in violation of the no-contact order.
The University asks us to find that the district court should have interpreted the phrase "or as otherwise required by federal, state or local law" found in Article 20 to mean that the University's jurisdiction to discipline a student for violating Article 22.A. extended to a student's off-campus conduct.
If we construed Article 20 as the University wants, we must insert words to the effect "for conduct wherever committed." The phrase then becomes, "or as otherwise required by federal, state, or local law for conduct wherever committed." If that is what the drafters of the Student Code meant, the article could have been written in that fashion.
Following this conclusion, the appeals court affirms the lower court's decision and lifts the stay order. Because the case was limited to school policies, the question of whether Yeasin's speech was protected by the First Amendment (almost definitely) isn't addressed.
While it's hard to conjure up much enthusiasm for an abusive jerk being told he's right by the appeals court, the decision prevents the eruption of negative side effects. For one, Kansas universities will still have to limit their disciplinary efforts to incidents on school property or during school-sponsored events. No one should be in any hurry to allow educational institutions to extend their reach into the private lives (and homes) of their attendees.
On top of that, there's the nature of the tweets themselves. While undeniably unpleasant and misogynistic, they were never aimed directly
at W. Also unaddressed by the court's decision is the breadth of the university's no-contact order, which basically forbade Yeasin from engaging in private disparagement of his ex-girlfriend.
From Yeasin's lawyer:
The tweets made their way back to the ex-girlfriend who told the IOA about the tweets claiming the tweets were in violation of the no-contact order issued by the IOA…The tweets were no different than if Yeasin had complained to his friends about his ex-girlfriend and whatever he said ultimately reached the ex-girlfriend.”
The ruling here makes sense, even as it protects the unsavory actions and words of an apparently terrible person. But it is very much limited to the policies in place at the University of Kansas. The ruling notes that the school could claim jurisdiction over events occuring off-campus, but it apparently hadn't considered that angle until it was in the middle of a lawsuit. Expanding that reach may be the school's perogative, but any attempts it makes to control off-campus speech will only result in addtional lawsuits -- these ones predicated by the First Amendment.
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Posted on Techdirt - 6 October 2015 @ 3:16am
The NYPD's Inspector General has just released a report on the department's use of force and there's nothing in it that's good news. It finds that the problem begins at the top and only gets worse from there.
[T]his Report analyzes and evaluates NYPD’s disciplinary system, including a close review of cases where OIG-NYPD, through independent review, determined that the use of force was not reasonable by any standard and not justified by any exigent circumstances or the need to protect an officer’s or the public’s safety. Historically, NYPD has frequently failed to discipline officers who use force without justification.
This is a failure of management. The report notes that the department's guidelines on force usage are so minimal they're almost nonexistent.
NYPD’s current use-of-force policy is vague and imprecise, providing little guidance to individual officers on what actions constitute force. NYPD’s current use-of-force Patrol Guide procedure, which is barely more than a page of text, is completely silent on what actions constitute “force.” The Patrol Guide likewise prohibits “excessive force” while offering no clarity on what constitutes “excessive force.” Officers are given few clear-cut rules when determining whether their actions constitute force and whether such actions must be reported.
With nothing to go on, officers make up their own rules as they go. And they're seldom punished for their actions. This ties in directly with the lack of guidance. It's kind of hard to punish someone for violating guidelines that don't exist. (When you have little desire to punish officer misconduct at all, the lack of solid force rules makes punishment almost impossible.)
On top of the limited guidance for use of force, the department does not instruct officers to use de-escalation tactics, only making the tiniest nod towards it when bringing in new officers.
NYPD spends only a portion of a four-and-a-half-hour course teaching de-escalation, out of 468 classroom hours—less than one percent of the curriculum. There is currently no Academy course specifically devoted to learning and practicing de-escalation techniques.
Excessive force complaints continue to mount. Officers abuse citizens and nothing happens. The amount of sustained complaints against NYPD officers is little more than a rounding error.
This total of 207 substantiated force allegations is based on the data provided to OIG-NYPD by CCRB. The total number of substantiated force allegations represents approximately 2.0% of the more than 10,000 allegations of force received by CCRB from 2010 to 2014.
The Inspector General found that the department not only had no guidance on use of force but nearly no standardized reporting on use-of-force incidents. In addition, when use-of-force complaints are
substantiated by the CCRB (Civilian Complaint Review Board), NYPD management often delivered less severe disciplinary measures than those recommended by the Board.
And it's not just a few "bad apples." Officers involved in excessive force complaints were often accompanied by other officers who did nothing to rein in their colleagues. (From substantiated excessive force complaints.)
The second officer failed to intervene when the subject officer initially lost his temper and stood several feet away with his hands in his pockets. The second officer remained passive and did nothing to intervene or take control of the situation, even once the complainant was on the ground and the subject officer continued to yell at him.
Throughout the entire encounter, one of the four officers has been standing to the side observing the interaction. This officer does not intervene after the first, second, third, or fourth strike to the complainant’s face, and he does not even move. The officer stands passively, a few feet away, with his thumbs hooked in his belt. Only once the man is on the ground and has been struck a fifth and sixth time does that officer approach, place one hand on the subject officer’s back, and appear to intervene halfheartedly.
And even when complaints are substantiated (in the 2% of cases that actually make it that far), nothing happens. (From substantiated complaints.)
CCRB substantiated the force allegation against the subject officer, but he ultimately received no discipline.
CCRB substantiated the force allegation against the subject officer. The other officers’ force allegations were exonerated by CCRB. At the time of the writing of this Report, no disciplinary decision has been reached in this case, despite the matter being in the NYPD disciplinary process for the past seven months.
CCRB substantiated the force allegation against the subject officer. No other force allegations were made against the other officers. Discipline was not imposed in this case because the statute of limitation expired before CCRB forwarded the case to NYPD for disciplinary disposition.
CCRB substantiated the two force allegations against the subject officer. At the time of the writing of this Report, no disciplinary decision has been reached in this case despite the matter being in the NYPD disciplinary process for the past 20 months.
The OIG recommends a complete overhaul of the NYPD's use-of-force policies, as well as the creation of new incident reporting systems. The problem is that these recommendations are being handed to a police force that clearly has no interest in fixing its problems.
As noted, OIG-NYPD examined 104 substantiated allegations from the initial complaint through investigation, prosecution, and final decision. From these data, OIG-NYPD found that the trends initially observed in the January 2015 Chokehold Report are not an anomaly, but appear to be endemic of a larger dissonance between CCRB and NYPD. In a number of cases, the Department has failed to meet its fundamental obligation to police itself.
The NYPD's culture is rotten. This may be the beginning of a departmental overhaul, but this seems unlikely. The NYPD has weathered plenty of negative reports from oversight, thousands of excessive force complaints
and dozens of civil rights lawsuits
without it appearing to have any impact on the rank-and-file, much less the department's upper management.
What this report does do is provide the public with more data on just how screwed up the NYPD is. This may seem useless on its own, but it fits into the larger scheme of things. Every bit of data, every damning piece of cell phone footage, every substantiated claim -- whether punished or not -- strips a little more the protective paint off the thin blue line.
As Brooklyn criminal-defense attorney Ken Womble
points out at FaultLines, we're winning the "War on Cops,"
even if progress seems minimal.
I have worked in Brooklyn for years, mainly in criminal defense. Brooklyn is, unfortunately, ahead of the curve when it comes to understanding the true nature of policing. Brooklyn juries are receptive to the idea that a cop would plant a gun on a suspect to push a false arrest. They are open to the argument that the word of a cop is worth very little. They understand these things because they have seen NYPD misconduct first hand. When the black woman on your jury has a son that has been arrested repeatedly for merely walking around his own neighborhood, she is going to have a healthy (and realistic) dose of skepticism about the police narrative.
I am optimistic. There is so much wrong with our system but the way we fight that is to open our mouths and tell our stories. That is why the Fault Lines project is so important. Police in this country have remained untouchable because we refuse to touch them. We are witnessing a cultural shift in the way people see cops. The stories of police abuse that are so common to Brooklyn are now common everywhere. With each story, the great American jury pool is turning.
Add the Inspector General's report to the growing pile of evidence that police officers haven't earned the unquestioning deference that has been afforded them for far too long.
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Posted on Techdirt - 5 October 2015 @ 2:44pm
Another bullshit lawsuit seeking to suppress critical speech has resulted in a loss for the plaintiff.
Last year, Dr. Edward Tobinick sued Yale physician Steven Novella over a blog post Novella had written that questioned and criticized Tobinick's off-label use of immune-suppressing drugs to treat… Alzheimer's patients. Here's a short quote from the post at the center of the lawsuit:
The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.
Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.
Tobinick first demanded Novella take the post down. When Novella refused, Tobinick sued him and Yale University. Tobinick didn't allege defamation, as one would expect. (At least, not originally, allegations of libel were added to an amended complaint.) Instead, Tobinick claimed Novella's post was "false advertising" and actionable under trademark law.
There are very few cases where plaintiffs have been successful misusing intellectual property laws to shut down critics. This one is no exception. Back in June, the court granted
Novella's anti-SLAPP motion, striking Tobinick's motions for unfair competition, trade libel and libel per se. All that was left unaddressed was Tobinick's Lanham Act claim.
Now, the court has handed a victory to Novella, granting his motion for summary judgment and ordering the case closed. The court finds no merit
to Tobinick's argument that Novella's critical blog posts were "commercial speech" and therefore actionable under the Lanham Act.
[T]he Court finds that the speech at issue here—that is, the First and Second Articles, published on www.sciencebasedmedicine.org —is not commercial speech. The Articles proposed no commercial transaction, and consequently do not fall within the “core notion” of protected speech. See Bolger, 463 U.S. at 66. Furthermore, the Articles do not fall within the scope of the definition expounded in Central Hudson, “expression related solely to the economic interests of the speaker and its audience.” 447 U.S. at 561. Both articles clearly state their intent to raise public awareness about issues pertaining to Plaintiffs’ treatments.
Thus, the First and Second Articles can only potentially qualify as commercial speech under Bolger. Yet the Articles differ from the pamphlets at issue in Bolger in a number of ways. First, the Articles are not conceded to be advertisements. Second, the only products referenced in the First Article are Plaintiffs’ treatments. To the extent that the Second Article mentions Defendant Novella’s practice, it is in direct response to the instant litigation as opposed to an independent plug for that practice.
The main thrust of Tobinick's Lanham Act argument was that because Novella made money indirectly from the website, it was commercial speech. The court doesn't care for this argument either, and points out that even certain commercial speech is still protected under the First Amendment and not subject to Lanham Act claims.
The third and final factor from Bolger, whether there was an “economic motivation” for the speech, is the primary basis for Plaintiffs’ opposition to summary judgment. Essentially, Plaintiffs contend that the Articles are commercial speech because SGU Productions, a for-profit company controlled by Defendant Novella, earns money by selling advertisements on its website (skepticsguide.net), advertisements in a podcast, memberships, and goods such as t-shirts…
Thus, even if Defendant Novella directly earns money from an organization sponsoring or producing the speech, this alone would not make the speech commercial. Furthermore, the specific evidence elicited in this case regarding SGU does not point to a strong economic motivation for the speech. Although Plaintiffs argue that “[t]he flow of money to Novella . . . is significant, as [Jay] Novella testified to over $200,000 last year,” Jay Novella also testified that, despite this profit, SGU “made no profit after expenses” because “we reinvest the vast majority of the money back into the company when we have a positive cash flow.”
The Court therefore finds that Defendant Novella’s speech in the First and Second Articles does not qualify as commercial speech, such that the Articles can form the basis of a Lanham Act claim.
Once again, we see a plaintiff learning the hard
(and expensive) way that speech that may harm your commercial interests isn't automatically a.) defamatory or b.) a violation of intellectual property laws. Of course, many litigants already know this. They're apparently just hoping the courts don't.
With the granting of the anti-SLAPP motion, it looks like Tobinick will be paying the costs of defending against his bogus lawsuit. But it's not as though people looking to censor critics will be any less willing to engage in Hail Mary-esque lawsuits. Many defendants simply aren't willing to put themselves through the financial and mental pain and suffering that accompanies litigation. Because of this, this string of IP law-abusing legal failures
won't prevent similarly bogus attempts from being made in the future.
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Posted on Techdirt - 5 October 2015 @ 3:49am
After years of not giving a damn and letting the public do its job for it, the FBI is apparently ready to get serious about collecting stats on "police-involved shootings." In a statement released along with the FBI's 2014 Crime Report (tl;dr: most crime down again), FBI director James Comey says the agency will be doing… something… to ensure more comprehensive reporting of citizens killed by police.
[T]o address the ongoing debate about the appropriate use of force by law enforcement, we plan to collect more data about shootings (fatal and nonfatal) between law enforcement and civilians, and to increase reporting overall. Currently, the UCR program collects the number of justifiable homicides reported by police as well as information about the felonious killing and assault of law enforcement officers. These data are available in Crime in the United States and Law Enforcement Officers Killed and Assaulted. As helpful as this information is, however, we need more law enforcement agencies to submit their justifiable homicide data so that we can better understand what is happening across the country. Once we receive this data, we will add a special publication that focuses on law enforcement’s use of force in shooting incidents that will outline facts about what happened, who was involved, the nature of injuries or deaths, and the circumstances behind these incidents. We hope this information will become part of a balanced dialogue in communities and in the media—a dialogue that will help to dispel misperceptions, foster accountability, and promote transparency in how law enforcement personnel relate to the communities they serve.
There's a lot not
to like about this statement.
First off, the FBI is only now
getting around to "addressing the debate," after doing the bare minimum for the past several years. Currently, the data is "collected" via voluntary reports from law enforcement agencies and is limited to justifiable
homicides, and then only those where someone was shot during the commission of a felony. This is why the FBI's yearly totals are, at best, half of what's tallied by private efforts
Comey's statement basically says nothing's going to change. The collection will still be limited to "justifiable" homicides and will still be voluntary. Comey says he wants more law enforcement agencies to submit data, but there's no directive being issued to force the issue.
If anything's going to mobilize a more complete collection of shooting data, it will likely be new legislation. But the only recent effort
towards a more comprehensive database of police-involved killings is languishing in Washington, having gone no further than being assigned
to the Senate Judiciary Committee.
If any expanded reporting does result from Comey's announcement, it will still be heavily-skewed in favor of law enforcement agencies and their use of force. Because it will only contain information on homicides deemed to be justified, the report will not provide any further information on unjustified uses of deadly force. This will do nothing to further the conversation on law enforcement use of force, much less increase the level of trust in the communities they serve.
Comey is correct that continuing to serve up incomplete statistics won't result in positive change. But his statement contains nothing that indicates substantive changes in reporting is on the way. The only difference here is that the FBI is finally acknowledging the public's growing disgruntlement with the nation's law enforcement agencies. But Comey's light touch -- designed not to offend his agency's brothers-in-arms -- suggests the only thing he's willing to throw at the problem is a few extra words.
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Posted on Techdirt - 2 October 2015 @ 4:08pm
Jason Koebel of Vice reports the FAA has missed its deadline to deliver a coherent policy on drone usage.
When Congress passed the FAA Modernization Act in 2012, it gave the agency until September 30, 2015 to fully regulate commercial drones for use in the United States. Well, it's October 1, and we're left with a patchwork of regulatory band-aids, quasi-legal "guidelines," and a small drone rule that still hasn't gone into effect yet.
This should come as no surprise. The FAA seems to be operating from the brainstem
when it comes to regulating private drone use. Its previous rulings have been all over the place. On one hand, it recognizes the problems leaving this completely unregulated would pose. On the other, it seems unable to prevent itself from handing down horribly inconsistent rules.
Even Congress has recognized the FAA is unlikely to come up with a final set of drone rules any time soon.
As early as May 2014, Congress acknowledged that the agency would probably miss this deadline.
In a report published then, lawmakers noted that they were "concerned that the FAA may not be well positioned to manage effectively the introduction of [drones] in the United States" and specifically noted that a missed deadline was likely.
The FAA honestly doesn't seem to know what it wants, at least not in terms of long-term guidance. Its stabs at rulemaking have been mostly on-the-spot determinations, each one
more contradictory than the last. In 2014, it said delivering the game ball for kickoff at a college football game was not permitted, supposedly because it was "commercial use." Then it turned around
and approved drone-mounted cameras for use by movie studios, something entirely commercial.
Here's a quick visual representation of how screwed up the drone rulemaking process is.
As of 2012, the FAA still forbade "commerical use" of drones. Almost two years later, another regulatory agency (the National Transportation Safety Board) pointed out that the FAA had -- nearly three decades earlier -- exempted model planes from its regulatory control. Seeing model planes as analagous to private (i.e., non-government) drones, the NTSB's administrative judge basically said the FAA can't claim control over any and all flying objects. Tacocopters were back in business. At the center of its decision was the fact that the FAA had no active policy on drone use. Its assertions that it should be able to regulate these flights was based on nothing more than the feeling it should be able to do this and an internal memo that had never made its way into the FAA's official policies.
Considering the ubiquity of the technology, it's hugely irresponsible for the FAA to handle this on a case-by-case basis, especially when this process results so often in contradictory rulings. The FAA is correct to err on the side of caution, but it seems unable to see past the dangers drones might pose to other air traffic. In doing so, it has turned its rulemaking process into the worst combination of immobilization and overreactions -- less of a regulatory agency than a catatonic being that responds quickly and violently to certain stimuli. There appears to be little rational thought guiding the process.
While its recent efforts have clarified at least some of the parameters governing private drone use, the rules are still severely limiting. That's its overabundance of caution at work. The FAA certainly doesn't want to be seen as somehow allowing the sort of actions that have given private drone use a public image problem -- like interfering with airborne firefighting operations… or being used as high-flying tools for vandalism.
What is clear is that Congress won't be pushing the FAA towards better rulemaking or holding anyone accountable for its lack of timely rulings. By the time the FAA ever gets around to issuing comprehensive guidelines, they'll already be out of date.
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Posted on Techdirt - 1 October 2015 @ 4:00pm
The Freedom of Information Act does open up the government to closer examination by taxpayers. The ideals of the law are rarely achieved, though. It requires agencies to respond in a reasonable amount of time, but far too often it takes a successful lawsuit to force an agency to give up the documents requested.
FOIA requesters are at the mercy of government agencies. If an agency wishes to punish a particularly tenacious FOIA requester, it can do so by unceremoniously dumping requested documents into the public domain, robbing him of any exclusivity. If an agency wants to wait until media heat dies before releasing incriminating/embarrassing documents, it can string along the requester for months or years without fear of reprisal. It's not that there aren't FOIA staffers who truly want to assist requesters, it's that there are far too many reasons agencies might want to stall the release of documents, if not withhold them altogether.
For instance, FOIAed documents can be withheld to allow government agencies to get out ahead of a negative story.
Two top Army generals recently discussed trying to kill an article in The New York Times on concussions at West Point by withholding information so the Army could encourage competing news organizations to publish a more favorable story, according to an Army document.
During a Sept. 16 meeting at the Pentagon, the Army surgeon general, Lt. Gen. Patricia D. Horoho, recommended to the superintendent at West Point, Lt. Gen. Robert L. Caslen Jr., that the Army delay responding to The Times’s request, according to the document. General Horoho then suggested trying to get The Wall Street Journal or USA Today to publish an article about a more favorable Army study on concussions.
“I recommend you let us publish this article BEFORE you release the FOIA to the NYT reporter,” General Horoho is quoted as saying in the summary, using an acronym for the Freedom of Information Act.
There's not much out there that's uglier than the government burying facts to control a narrative. And, of course, we'd know nothing about it if it weren't for another
FOIA request. The biggest problem with how the Army handled this is that the FOIA side of agencies is supposed to be wholly divorced from its other goals. It should be a politically-agnostic process, with the only considerations being whether or not the requested information can actually be requested. The point of the law is to make the government accountable to the public. The process is never supposed to be subservient to the political/PR desires of government officials.
And yet it is. The officials quoted in the released document are claiming the things they said
don't represent the things they meant
Both generals acknowledged the authenticity of the summary, but said it misrepresented their discussion.
Well, OK then. But accountability is better served by putting the incriminating information in the public's hands and dealing with the consequences, not burying it until after the advance force spin team has had a chance to work its narrative magic.
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Posted on Techdirt - 1 October 2015 @ 2:43pm
Towards the end of 2013, IP-Watch -- along with the Yale Media Freedom and Access Center -- filed a FOIA lawsuit against the USTR for its refusal to release its TPP draft documents. The USTR spent a year ignoring IP-Watch's William New's request before telling him the release of draft agreements would "harm national security."
What trade agreements have to do with "national security" is anyone's guess (especially since the USTR has cloaked the entire TPP proceedings in opacity), but the conclusion being drawn by this refusal is that the USTR feels the public has no right to know about trade agreements that affect the public.
A ruling has finally come down in the FOIA lawsuit and the court has granted the USTR the right to remain opaque.
As government negotiators dig into perhaps the final round of the Trans-Pacific Partnership trade negotiations this week in Atlanta, they may take comfort in knowing that nothing they are doing has to be shared with the public they represent until years after it is over. That’s because a federal district court in Manhattan decided this week, in a closely watched Freedom of Information Act case brought by Intellectual Property Watch, that draft texts of the trade deal can be kept secret.
The very small upside of this decision
is that the court did find some of the USTR's arguments for secrecy suspect. While it did side with the USTR's arguments on the withheld draft agreements, it found the agency did not present credible justification for its use of some FOIA exemptions in regards to requested communications.
First and foremost, USTR’s declarations rely purely on conclusory statements from the agency itself, which simply proclaim that disclosure would complicate USTR’s future efforts. Even the sole piece of evidence meant to represent the views of actual private-sector actors comes from the agency’s declaration, and this too is vague and conclusory…
Critically, none of USTR’s explanations are document-specific, nor even category-specific. They are blanket assertions meant to cover all withholdings made under § 2155(g)(1) and Exemption 4…
[The] USTR’s bare assertions reporting secondhand concerns from the private sector constitute only weak evidence, at best.
The court also noted the USTR's arguments in favor of withholding information under Exemption 4 were undercut by wording in the agency's own policies.
In response to Plaintiffs’ argument that the withheld commercial or financial information is not “confidential” because it has already been shared among all ITAC members, USTR argues only that ITAC members are sworn to secrecy and cannot use information they receive via ITACs outside of those committees. But the obvious reply, absent from USTR’s briefs, is that USTR’s own Operations Manual states that information subject to Exemption 4 withholding will be kept from other ITAC members.
And if the USTR can't keep its own secrecy arguments straight, there's a good chance it has not performed the thorough examination of the contested documents it claimed it had.
As Plaintiffs argue, USTR’s failure to make this simple response raises questions about whether the agency has wrongly withheld information under Exemption 4 that has already been shared with other ITAC members. Finally, although the Court does not question USTR’s good faith in responding to this FOIA request, Plaintiffs are also correct to point out the troubling nature of USTR’s first round of responsive disclosures here, which apparently withheld 149 pages in full and redacted portions of 413 pages improperly, despite sworn declarations attesting to a line-by-line review of all the documents.
That being said, the court still won't be ordering the USTR to release draft TPP documents. The only thing it has done is order the agency to present documents explaining its withholding of certain communications under two FOIA exemptions. The bulk of the trade agreements will remain hidden away from the public -- this time with the court's blessing and thanks to the administration's advocacy on behalf of continued opacity.
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Posted on Techdirt - 1 October 2015 @ 8:28am
They get to wear nice suits, wield guns and hang around the President. They're entrusted with protecting perhaps the most important person in the world. The US Secret Service should only be staffed with the best the nation has to offer. Instead, its recent protective efforts can be generously described as "almost adequate" and it's apparently staffed with an assortment of vindictive children who can't stand the thought of having their shortcomings questioned.
Rep. Jason Chaffetz heads up the House Oversight Committee, which is tasked with investigating allegations that Secret Service agents had spent several hours drinking before (literally) crashing a "suspicious package" party being thrown in their absence on a street near the White House. Almost as soon as the hearings began, Secret Service agents began looking for some way to tear Chaffetz down.
Employees accessed Chaffetz's 2003 application for a Secret Service job starting 18 minutes after the start of a congressional hearing in March about the latest scandal involving drunken behavior by senior agents. Some forwarded the information to others. At least 45 employees viewed the file.
If this internal sharing of personal info were the extent of the wrongdoing, it would still be illegal. The US Privacy Act forbids the disclosure of these records, absent the written permission of the record's subject. Obviously, Chaffetz was never approached by the Secret Service to get his OK for using his job application against him. But this isn't the end of the agency's misconduct.
One week later, Assistant Director Ed Lowery suggested leaking embarrassing information about Chaffetz in retaliation for aggressive investigations by the House Oversight and Government Reform Committee into a series of agency missteps and scandals, the report said. Days later, on April 2, the information about Chaffetz unsuccessfully applying for a job at the Secret Service was published by The Daily Beast, an Internet publication.
"Some information that he might find embarrassing needs to get out. Just to be fair," Lowery wrote March 31 in an email to fellow Assistant Director Faron Paramore.
"Just to be fair." Let's take a look at that statement. Lowery's employees embarrassed themselves
, both in terms of protecting the White House and showing up for work sober. And yet, the "fair" thing to do was to discredit a politician actually performing his
job: the oversight of government agencies.
Lowery says he never ordered anyone to release any information the agency had on Chaffetz. (He just heavily suggested it...) He told the Inspector General that saying the "embarrassing" information "need[ed] to get out" was only a reflection of his anger and frustration. It's not as though anger hasn't been known to push people towards regrettable actions. Obviously, Lowery regrets this now that he's been caught, but claiming "the anger made me do it" doesn't excuse his support of illegal activity being performed by his agency.
DHS head Jeh Johnson officially apologized to Rep. Chaffetz, following it with this consolation prize:
"I am confident that U.S. Secret Service Director Joe Clancy will take appropriate action to hold accountable those who violated any laws or the policies of this department," Johnson said.
This may be true. Clancy was called out of retirement to take over the agency after the previous Secret Service head was booted following the White House security breaches. But it's still the sort of "promise" no one should accept at face value. The government is routinely terrible
at holding its own employees accountable for their actions, and -- recent high-profile disgraces aside -- the Secret Service is no exception.
The attempted use of personal information by agency employees to discredit someone engaged in investigating their wrongdoing is a gross abuse of power. Many government agencies have access to a wealth of personal information, especially for those who have been entrusted with security clearances or have applied for certain federal positions. Just think of what one could do with access to even greater amounts of personal information
Oh but this would never happen with an #NSA database, don't be ridiculous.
Very little stands in the way of agencies abusing
their access and power. This just happens to be one of the times when someone got caught.
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Posted on Techdirt - 1 October 2015 @ 3:19am
ExecSummits, aka Executive Summits, aka CFO Summit, aka HR Summit, aka [Insert Corporate Buzzwords Here] Summit, is suing a former employee/contractor for a number of things -- one of those being defamation.
The lawsuit accuses Michael Healy and Karen Healy (apparently no relation) of absconding with a valuable client list, which they used to build their own "summit" business, G2 Summits. Whether or not this happened remains to be seen, as there's little on the web that details this course of events, other than a comment thread that is apparently the basis for the vague defamation claims scattered about the lawsuit.
In the middle of recitation of various fraud-related allegations, the complaint drops this intriguing hint of things to come:
As recently as September 2, 2015, Defendant MH has contacted clients of Plaintiff in an effort to prevent said clients from attending the September 15, 2015 conference; these efforts have included posting false blogs about Plaintiff on the internet, falsely accusing Plaintiff of having an F rating with the Better Business Bureau, and otherwise slandering Plaintiff and its employees.
"False blogs," eh? Or perhaps it's just Michael Healy's participation in a comment thread attached to a blog post declaring the whole of Michael Price's Executive Summits business model to be on the scammy side.
The claims raised
in Healy's comments suggest he was hired by BizSummits (another arm of the ExecSummits megacorp). Soon afterward, he allegedly discovered the company was pretty much just a front for an email harvesting scheme. So he abandoned ship to start his own company. Whether or not the client list ExecSummits/BizSummits had already obtained went with him remains to be seen, but another rep of BizSummits, Kristin Mathias, also
appears in the same comment threat to offer BizSummits' side of the story
The links provided by Healy
-- as well as those
found through some Googling
-- do indeed suggest there's an unsavory side to the BizSummits business. The post above the verbal fistfight notes the company has secured a number of URLs, all of which seem to serve up similar content, as well as the use of pictures sourced from other sites
or stock photo collections. The author of the post wonders why a business so steeped in the art of business conferences is unable to produce any photos of the dozens of events it supposedly hosts every year.
This post appeared early last year (March 2014). The debate in the comment thread continued well into this month
, abruptly ending with a deleted comment
by Michael Healy on Sept. 14, 2015, three days after ExecSummits filed its lawsuit against him.
Since the first eruption, it appears BizSummits, et al have removed the photos blatantly "borrowed" from other sites… mostly. It still makes use
of stock photos
having nothing to do with the conferences it hosts and still borrows
from other sites
That, in and of itself, does not suggest Healy's assertions are all truthful or defensible. But the complaint against him doesn't exactly say WHAT it finds objectionable about Healy's claims. It only makes vague assertions.
Defendant MH, via written and oral communications, has falsely and maliciously made false charges regarding Plaintiff in reference to its trade and profession that were calculated to injure Plaintiff.
As recently as September 2, 2015, Defendant MH, using Plaintiffs confidential trade secrets, contacted a client of Plaintiff in an effort to defame Plaintiff and in an effort to re-direct this client to Defendant MH.
As a result of Defendant MH's actions, Plaintiff has been damaged in an amount to be proven at trial.
Presumably, this all refers to the contents of this comment thread. Oddly, BizSummits has shown no interest in going after the person behind the Dynamoo blog, which has several posts detailing sketchy actions
by the many faces of BizSummits.
It has, however, brought legal threats against other people who have publicly questioned the legitimacy of its business. Back in 2012, a blogger did some investigating
after receiving spam "invitations" from BizSummits (d/b/a in this particular email as CMO Summits). What she found was a vast network of "summits," none of which seemed to offer a verifiable product. She also uncovered more evidence that BizSummits is actually in the business of selling
email lists -- using email addresses gathered in a rather illegitimate fashion.
This is from a since-archived SpamHaus ROSKO (Register of Known Spam Operations) report
on Michael Price and BizSummits.
Michael Price runs a company selling harvested email lists. They scrape addresses from various sources including websites and then "verify" that their addresses are deliverable by sending out so-called "seminar invitations" or "health warnings".
More research confirming this
If someone complains about this activity online such as in a blog entry, Michael threatens to sue them AND their employer if the blog is not taken down.
"We are getting two to three of these a day as well. The thing we notice is that the email address always has a different name before the @. We sell movie posters, and have noticed that all of these spam emails we have been receiving are addressed to movie stars such as Robert De Niro, so the email address will read rdeniro[at]moviepostersetc.com or Marilyn Monroe, and the email address will be marilynmonroe[at]moviepostersetc.com.
It seems as if some robot is just pulling random names from our site, and creating email addresses for them using our domain as the stem. Unfortunately, our email account is catching all of these emails. The emails are coming from various domains, and don't seem to have any purpose whatsoever, unless they are phishing for valid email addresses and see what bounces back and what sticks."
is available at the Dynamoo blog.
Roughly a year later, Michael Price emailed a legal threat to the blogger
Talia, I am one of the principals at BizSummits and just became aware of your libelous blog about us and our CMO Summit which you refer to as a “scam” and “scammers”. We are certainly not, I am shocked by what you wrote, and I would ask that you immediately take down that libelous post in its entirety or we will have no choice but to take legal action against you personally and YOUR WORKPLACE in the Superior Court of Denver.
The nastiest part of this threat (beyond its baselessness -- as Talia had linked to and provided screenshots of everything she had uncovered) is Price's willingness to sabotage the blogger's employment in order to silence her. Not that it worked. And not that Price ever followed through with his legal threat.
Price threatened another recipient
of his company's solicitation emails back in 2010. He went after blogger Andrew Badera in 2011, similarly threatening Badera's employment
over something written on a non-work-related blog.
Overnight I got a random email, at my WORK address, (new, private, unpublished) from someone (Michael Price, CEOVentures) claiming to own the email/the domain/the organization, that it's not a scam. I replied, asking the guy to take the email to a non-work point of contact. He responds by CALLING me at the office, then follows up with more email saying that I need to retract my statement, send him notice I've done so, or he will file a lawsuit against -- get this -- not just me, but also my new-ish fulltime employer, who of course has nothing to do with this.
So, we have a sense of BizSummits/Michael Price's general response to criticism of its "marketing" tactics.
On the other hand, we have the accusations against Michael Healy, who supposedly ran off with a copy of BizSummits' prospect list, one that possibly was harvested in a less-than-straightforward manner. The question is: what good will it do him? If it's loaded with clients who've already learned to route "summit"-related emails to the Spam folder, it's likely to be of little use to G2 Summits, who will probably be sending plenty of emails of their own.
That doesn't mitigate the alleged damages. Theft of a client list is still theft, no matter how little actual
value the list contains.
The additional problem -- one that really isn't going to be addressed through this litigation -- is that G2 Summits appears to be deploying a few questionable tactics of its own.
G2 Summits borrows a (supposed) testimonial from BizSummits, word-for-word.
There's also the problem with its staff
, which contains an unverifiable employee.
(Reverse image search turns up nothing on either of the non-Healy participants. "Frank" is apparently Frank Netherwood
and his bio checks out. "Maria" is a complete unknown. And you'll have to inspect elements to suss out the image URLs... for reasons only known to the web designers.)
Now, G2 Summits may be completely above board, but there's nothing on the site (or elsewhere) that backs up its event-hosting claims -- like perhaps some photos of the actual events.
As to the defamation claims, Healy did claim to have emails from disgruntled clients of BizSummits seeking refunds for nonexistent events. If so, these will presumably come out in discovery if the case goes that far. This appears to be the first time BizSummits has actually sued anyone despite a history dotted with legal threats to small-scale bloggers. As for the spam techniques investigated by Dynamoo and verified by SpamHaus, BizSummits/ExecSummits' boss claims
these were acts of recently-purchased "partners" and have since been cleaned up. And maybe the spam is truly gone (there don't seem to be any recent complaints), but even if so, the company's remaining "services" aren't impressing many people
Whatever the case may be at the present, it's somewhat interesting that ExecSummits (and its various iterations) would actually follow through with something that might expose any questionable tactics it employs. I would take this to mean it has a pretty solid case against Healy… although the opposite could be quite true. Not every lawsuit filed is a wise one -- something we've definitely seen proven over the years.
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Posted on Techdirt - 30 September 2015 @ 3:49pm
The DEA, like countless other law enforcement agencies across the nation, doesn't take employee misconduct too seriously. Perhaps upper management feels that drug warring is a tough, dangerous job and that any violations of policies/state/federal laws or other impropriety should be met with little more than a short, stern conversation and promises from agents that it won't happen again.
Brad Heath and Meghan Hoyer of USA Today have secured a log of DEA disciplinary actions via a FOIA request. What it shows is a lot of wrongdoing but very little discipline and/or action.
Lawmakers expressed dismay this year that the drug agency had not fired agents who investigators found attended “sex parties” with prostitutes paid with drug cartel money while they were on assignment in Colombia. The Justice Department also opened an inquiry into whether the DEA is able to adequately detect and punish wrongdoing by its agents.
Records from the DEA’s disciplinary files show that was hardly the only instance in which the DEA opted not to fire employees despite apparently serious misconduct.
Of the 50 employees the DEA's Board of Professional Conduct recommended be fired following misconduct investigations opened since 2010, only 13 were actually terminated, the records show. And the drug agency was forced to take some of them back after a federal appeals board intervened.
The DEA's history is littered with dirty deeds: warrantless surveillance
of medical professionals to gain access to patient records, a confidential informant program that runs with almost no oversight
, concerted efforts
to block internal investigations, etc. The document obtained by Heath shows its agents are perfectly capable of doing the wrong thing individually
as well. And in most cases, they'll receive little more than the agency's lowest level of discipline (letters of caution) as punishment.
Recommendations for punishment are handed down by the DEA's Board of Professional Conduct. Its suggestions for suitable discipline are often ignored.
One of the most horrifying recent incidents of severe misconduct by DEA employees was met with the lightest of punishments.
This spring, the Justice Department said it had “serious concerns” about the discipline meted out to six agents who left a handcuffed college student in a holding cell for five days with no food or water. Two of the agents received brief suspensions; four others were given letters of reprimand.
The DEA, of course, has excuses for its unwillingness to mete out appropriate punishments for wrongdoing.
DEA spokesman Joseph Moses said that often happens because it's not until after the Board of Professional Conduct makes its recommendations that employees get to fully present their side of the story. That can prompt human resources officials ultimately to opt for lighter punishment.
And this, from former DEA internal affairs investigator Scott Ando, who apparently believes agent misconduct should be graded on a very generous curve.
"DEA agents should be held to a high standard, but not an unrealistically high standard."
From what's in this document, it appears agents aren't being held to any standard at all. Distribution of drugs and a refusal to cooperate with the resulting internal investigation netted one agent a two-week suspension. Another's DWI arrest resulted in two days without pay. Falsification of records and theft of government funds? Five-day suspension. Failed random drug test? Also a five-day suspension.
That's not a high
standard. That doesn't even meet the standards of the private sector. The last one listed is particularly odious because in most companies, a failed drug test results in immediate termination. At the DEA -- home of the "Drugs Are Bad" brigade -- a failed drug test is one workweek off without pay.
And for those who like their bad news bundled with worse news, Scott Ando -- he of the "high but not too high standard" now heads up Chicago's Independent Police Review Authority
, which investigates police misconduct complaints. Presumably, Chicago cops will be held to Ando's high expectations: a standard where all the slack is pre-cut and "Of A Doubt" is listed prominently under "Employee Benefits."
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Posted on Techdirt - 30 September 2015 @ 1:13pm
There are many proper ways to file a lawsuit. Then there's this one. (h/t Eric Goldman)
This is a case about one of the most powerful corporations in the world, a corporation that maliciously recreated obscene or pornographic sexual content on a personal profile account named "Franco CaraccioliJerkingman" (hereinafter as JERKINGMAN ACCOUNT or "Account"), inside its online digital community (hereinafter as "Website") because in Exhibit 1 (hereinafter as "Admission") Defendant Facebook ADMITS that after Defendant Facebook "REVIEWED" JERKINGMANT ACCOUNT which contained blatant pornographic obscenity, and recklessly "DETERMINED" that it was legitimate lawful content and NOT in violation of its community standards, thus, Defendant Facebook recreated, sponsored, republished, and/or acted as a speaker of the content by deciding to continue displaying it as opposed to deleting it.
Got that? Someone (someone not
named in the suit as a defendant) managed to obtain video/photos of Caraccioli, um, jerking, and uploaded it to a Facebook account under the name of Franco CaraccioliJerkingman. This sounds more like revenge porn than defamation (one of the many causes of action raised in the complaint) and it sounds like Caraccioli might have a legitimate complaint against the original poster
-- possibly even a criminal complaint -- but has chosen to go after Facebook instead.
Nowhere in the suit is the person who actually uploaded the content mentioned. The lawsuit "names" Does 1-10, but they are apparently unknown employees of Facebook.
Defendant is a corporation registered in the California Secretary of State as FACEBOOK, INC., and DOES 1 through 10… are located in their with its primary place of business at 1601 S. California Ave. Palo Alto, CA 94304.
In case that seems a bit unclear (and large chunks of the 38-page filing verge on unintelligible), there's more evidence in the latter pages of the complaint that indicate Caraccioli is only
targeting Facebook and its employees.
At all times mentioned in this complaint, Mr. Caraccioli is informed and believes, and based thereon alleges. that DEFENDANT FACEBOOK, Inc., negligently and carelessly trained and retained its employees including, but not limited to, Does 1 through 10.
DEFENDANT FACEBOOK negligently failed to investigate the background of DEFENDANT FACEBOOK employees including, but not limited to, Does 1 through 10 in order to prevent republication of sexual or otherwise unlawful content in the DEFENDANT FACEBOOK's Website.
So, there's that. The plaintiff holds Facebook solely responsible for content posted by others. He seems to feel that Facebook's refusal to remove the content should undercut its Section 230 protections. He also claims Facebook is a "publisher," a legal strategy that may work elsewhere (like Canada
) but not in the US.
On top of all of this, Caraccioli has filed his lawsuit in the wrong jurisdiction (federal rather than local), something that's pointed out by the judge's order to show cause
. The order points out that the plaintiff has raised ten causes of action, not one of which implicates federal law. The complaint's obsession with Section 230 protections doesn't automatically turn this into a federal case, despite his invocation of a federal statute.
Perhaps in recognition of this deficiency, Plaintiff alleges in the FAC’s jurisdictional statement that “this case involves substantial issues of federal law involving the Communications Decency Act 47 U.S.C. § 230.” See FAC, at ¶ 23. But that allegation, and the discussion of the statute in other areas of the FAC, is still not enough for Plaintiff to satisfy his obligation to establish federal jurisdiction. This is because § 230, which generally works to immunize providers of interactive computer services against liability arising from content created by third parties, is not a claim for relief asserted by Plaintiff. Instead, it is a potential affirmative defense to Plaintiff’s claims, no matter its artful inclusion in the FAC. Affirmative defenses are not proper bases for federal jurisdiction.
That paragraph guts a great deal of Caraccioli's arguments, most of which shouldn't be made by your average pro se petitioner, much less a third-year law student. The complaint recycles arguments when not devolving into the needless convolutions often displayed when complainants mistake complexity and long-windedness for unassailable assertions.
Caraccioli maintains he was made aware of the Jerkingman account when the account sent him a friend request. This invitation was apparently sent to many of Caraccioli's friends and family members as well -- many of whom viewed the page and verbally promised Caraccioli they would report it to Facebook. Facebook reviewed the account's content and took no action, saying that it didn't violate any of its policies.
Caraccioli claims this simply can't be true, because it contained explicit video and photographs. As such, his complaint views Facebook's lack of action as an admission of guilt. Either it didn't actually review the content or it willfully allowed forbidden content to go untouched. (Pages added to the first draft
of Caraccioli's amended complaint show Facebook recommending he "unfriend" or "unfollow" the Jerkingman account if he was unhappy with its posts.)
From there Caraccioli goes everywhere
, but mostly after the Section 230 protections he feels Facebook nullified by not immediately deleting the Jerkingman account.
Now, I'm sure the subject matter of the uploaded videos continues to weigh heavily on Caraccioli's mind, but his repeated assertions about this presumed inapplicability of Section 230 contains some rather… suggestive phrasing. (All spelling errors from the original.)
Taking affirmative steps to review sexually explicit pornographic videos and images and determining that the content is in accordance with or following DEFENDANT FACEBOOK'S "Terms of Service," is at best a conscious, gross negligent, intentional, willful or wonton, or RECKLESS DISREGARD towards DEFENDANT FACEBOOK'S own "Terms of Service" and in violation of the legislative intent thrusting the CDA because children could and did in fact view the sexual obscene content in a place that is not protected or reserved for sexual content.
One should be careful to put as much distance between "thrusting" and "children" as possible when composing paragraphs about the unauthorized posting of masturbatory footage. Other mistakes -- like confusing deliberate or unprovoked action with a takeout staple -- are more easily forgiven.
To sum up multiple pages of identical allegations, Caraccioli asserts that Facebook should have removed the content as soon as it was notified because it was a "per se violation" of its Terms and Services. While other content (say, female nipples
) may be open to debate, there was apparently no questioning what was happening in these videos.
Mr. Caraccioli kindly reminds this court that DEFENDANT FACEBOOK engaged in RECKLESS and MALICIOUS undertakings or steps in "reviewing" actual pornographic content and "determined" it was not obscene, because unless one is blind, pornographic content should be self-evident, especially if the words JERKINGMAN precede it's content.
This is followed by a defamation "cause of action." If the truth is the ultimate defense in the face of defamation allegations, where does that leave actual footage of someone performing a sexual act on themselves -- something openly admitted in the complaint by the plaintiff? Well, according to Caraccioli, some facts are defamatory, especially when they're somehow "false" facts.
The entire JERKINGMAN ACCOUNT was false as it pertains to Mr. Caraccioli in name, imagery, and display and diminished his reputation based on the mock and ridicule he experienced.
Now, Caraccioli may have suffered a diminished reputation, but it wasn't because of false statements. He suffered these actionable injuries because someone made something presumably private public. These are not the same thing. But there will be no letting the wind out of Caraccioli's overfilled sails.
The JERKINGMAN account was libelous on its face because it clearly exposed Mr. Caraccioli to hatred, contempt, ridicule and obloquy. Further, the JERKINGMAN ACCOUNT's content was pertaining to Mr. Caraccioli's privacy and involved extremely sensitive material under a reasonable person standard because any person holds their genitalia as a private part due to is sensitive material.
Again, Caraccioli's phrasing is, unfortunately, a bit too on the nose.
The whole complaint is worth reading, if only as an extremely
comprehensive example of how not
to compose a civil complaint. The sad fact is that this third-year law student felt confident enough in his own legal prowess to act as his own attorney… and then proceeded to file a bloated disasterpiece loaded with misspellings, grammatical errors, severely-flawed legal theories and all in the wrong jurisdiction.
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Posted on Techdirt - 29 September 2015 @ 11:13pm
We've written before about how limited the Fourth Amendment is when applied to drivers and their vehicles. A number of court decisions -- along with continually-reinforced exceptions -- have allowed police to pull over motorists for any reason imaginable. Once they have someone pulled over, it's just a matter of obtaining consent from the driver or, failing that, coming up with a reasonable approximation of probable cause. (Drug dogs are a favorite.) After that, no warrant is needed to search the vehicle, along with the contents of any container found within it.
The "automobile exception" is the federal standard. Not every state has adopted it but a majority of them have. Until recently, New Jersey hadn't. Under its former standard, the motor vehicle exception did not exist. Police officers looking to search a vehicle without a warrant needed to make use of the "exigent circumstances" exception.
To no one's surprise, obtaining warrants was the least popular option. When "exigent circumstances" failed to present themselves, cops would instead try to obtain consent. It sounds like New Jersey's stricter reading of constitutional rights meant officers were less inclined to perform warrantless searches, but this is only an illusion. In striking down this requirement, the New Jersey high court presented a clearer picture of what was actually happening in the absence of a motor vehicle exception.
The New Jersey high court concluded that imposing the added condition of an emergency was impractically strict and led to an unintended surge of highway stops in which police induced drivers to allow them to look through their cars.
Inducement was the primary tactic. The state also offered an expedited warrant request system, but it failed to speed up the process.
[Justice Barry T. Albin] said the state experimented with “telephonic” search warrants in which officers connected with the court remotely through phone conferencing. But the system, he said, failed to live up to its promises and resulted in “unacceptably prolonged roadway stops.”
The state court system tested out the technology in 2012 with a pilot program. In one county where it was tried out, it took an average of 59 minutes for police to get a roadside warrant approved. In another part of the state, it often took as long as two hours.
So, this didn't work. A footnote from the dissenting opinion
indicates why. It's not that the system wasn't fast enough. It's that it was only used when other options had failed.
According to the State, the pilot program “by its very design, reveals why telephonic warrants are not likely to emerge as a viable replacement for the automobile exception.” The State contends that “[a]ll of the participants in the pilot program understood that police officers would continue their post-Pena-Flores practice of requesting motorists to consent to a search” prior to trying to obtain a telephonic warrant.
This "consent first" approach to vehicle searches is what stretched out these stops to nearly an hour, not the telephonic warrant system. But with the Supreme Court's Rodriguez decision
making prolonged traffic stops Constitutionally-unfeasible, this two-step process for effecting a search of a vehicle is no longer an option.
Not that the consent route was any better. The court's decision notes that induced-consent searches have been problematic in the past:
Not long ago, the State Police subjected minority motorists to consent searches on a grossly disproportionate basis because of racial profiling. As a result of the abuse of consent searches, the State Police were placed under the supervision of federal monitors pursuant to a consent decree.
Given the widespread abuse of consent searches, this Court in Carty forbade police officers from making consent-search requests unless they had reasonable and articulable suspicion to believe a vehicle contained contraband or evidence of an offense. Still, that standard does not remove the coercive effect of a search request made to a motorist stopped on the side of a road. We recognized in Carty “the inherently coercive predicament of the driver who is stopped on the highway and faced with the perceived choice of either refusing consent to search and therefore increasing the likelihood of receiving a traffic summons, or giving consent to search in the hope of escaping with only a warning.” Under those and other like circumstances, “it is not a stretch of the imagination to assume that the individual feels compelled to consent.”
Despite these concerns, the court finds the requirement of a warrant to search a stopped motorist's vehicle is too constrictive. It weighs law enforcement's interests against the Fourth Amendment and -- surprise -- finds in favor of law enforcement.
The current approach to roadside searches premised on probable cause -- “get a warrant” -- places significant burdens on law enforcement. On the other side of the ledger, we do not perceive any real benefit to our citizenry by the warrant requirement in such cases -- no discernible advancement of their liberty or privacy interests. When a police officer has probable cause to search a car, is a motorist better off being detained on the side of the road for an hour (with all the accompanying dangers) or having his car towed and impounded at headquarters while the police secure a warrant? Is not the seizure of the car and the motorist’s detention “more intrusive than the actual search itself”?
It's always disheartening to hear a court conclude that, after weighing all factors, there's not enough of a net gain
to civil liberties to prevent further diminishment of Fourth Amendment protections. The court apparently feels motorists would be happier having their rights violated than their car impounded or their traffic stop extended. If this is true, there's no reason for this ruling. Citizens are perfectly capable of weighing these factors and making these decisions themselves. That's exactly
what consent is.
Rather than stay ahead of the curve in terms of Constitutional protections, New Jersey's court has opted to let law enforcement needs take priority over the privacy of its residents.
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Posted on Techdirt - 29 September 2015 @ 4:02pm
Prosecutors hate losing -- so much so that they're willing to color outside the legal lines for a chance at a win. Plenty of prosecutorial misbehavior has been uncovered over the years, most of it tied to the withholding of exonerating evidence.
But they also do other, smaller things. Like this, via FourthAmendment.com.
Police officers went to an apartment building in Clay Center where Parry and his girlfriend lived with their 2-year-old son. A neighbor of Parry's had reported a strong smell of burning marijuana in the building. The officers concluded the smell originated in Parry's residence, so they knocked on the door. Parry and his girlfriend stepped across the threshold to speak with the officers. The woman admitted she had been smoking marijuana earlier in the day during a birthday celebration. The officers requested permission to look in the apartment.
Long story short, consent was denied but the officers searched the apartment anyway, finding drugs and paraphernalia. This evidence was suppressed at Dominic Parry's hearing. This ruling was affirmed on appeal. The prosecutors decided that -- despite two rulings to the contrary -- they really deserved a second chance to put Parry behind bars. So, they gave themselves one.
Four days after the release of the panel decision in Parry I, the State dismissed No. 13CR2 against Parry without prejudice and immediately charged him in Clay County No. 14CR35 with the same offenses. As a practical matter, the complaints in the two cases differ only in their district court identification numbers.
Not only were the complaints the same, but the initial outcome was the same.
Not surprisingly, Parry filed a motion to suppress in No. 14CR35. The district court held another evidentiary hearing. This time the State argued the search of Parry's apartment was proper because exigent circumstances excused the need for a search warrant and even if the search were constitutionally improper, the marijuana and paraphernalia would have been inevitably discovered. The district court found those arguments unpersuasive and again granted Parry's motion to suppress.
And again, the state appealed, leading to the appeals court's disgruntlement at having to address
the same prosecution twice.
The doctrine should apply here even though, technically, this case is not the same case as Parry I. The distinction between the two rests on the slenderest of technicalities. The charges against Parry are the same. The dismissal of the original case was immediately followed by the refiling of those charges in this case—a maneuver the State undertook several days after the adverse ruling from this court in Parry I. The State readily acknowledges the goal of the maneuver to be precisely what the circumstances otherwise indicate. The State wanted a do-over on the issue of the constitutionality of the police search of Parry's residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing.
The state claimed it wanted to explore doctrinal arguments it didn't look at during its first prosecution. The court reminds them that if this sort of thing were permitted, nothing would stop prosecutors for continually refiling charges until the desired result was achieved.
The State has dismissed and refiled criminal charges to evade an appellate decision confirming that Parry's Fourth Amendment rights were violated in a search of his home. The State wants to garner another hearing in the district court to make additional arguments on the issue. Law of the case aims to prevent precisely that sort of repetitive airing of points already decided in the district court and reviewed on appeal. If the doctrine were inapplicable in this situation, the State, in the face of an adverse decision on the merits in this appeal, could again dismiss, refile, and get yet a third opportunity to argue the issue—with no end in sight.
The end result of a finding in favor of the state would lead to widespread abuse, as failed prosecutions could be endlessly revived to address the state's arguer's remorse.
In marshalling their arguments, legal advocates always pick and choose among possible positions, honing the promising ones and jettisoning those that don't seem to be. Having chosen disadvantageously, especially in hindsight, an advocate cannot lay claim to manifest injustice as a result.
The justice system is already riddled with holes. Searches that blow right past Fourth Amendment protections are routinely salvaged through exigent circumstances exceptions, inevitable discovery rulings, nonverbal cues being interpreted by courts as consent and various other loopholes in constitutional coverage. (Beyond that, law enforcement officers are excused for any violations of the Fourth Amendment via the good faith exception, various levels of immunity and a court system still largely deferential to the needs and wants of law enforcers.)
Dropping charges and refiling them just to get another chance to secure a conviction is an obvious abuse of a system that's already severely compromised. That the state actually thought this might work says more about the system itself than the moral turpitude of the prosecutors.
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