Over in the UK, the government wants people to shut up. So, the Home Office has crafted a bill that would do exactly that: criminalize the "noise" protesters make. The bill would amend the 1986's Public Order Act to make it a crime to do the one thing demonstrations and protests are supposed to do: draw the public's attention. Here's Ian Dunt, writing for Politics.co.uk.

On Tuesday, the Home Office published the police, crime, sentencing and courts bill. It covers a wide range of areas, from sentencing to digital information. But it has a specific section on the policing of protests. And the function of this section is simple: It aims to silence them.

This isn't a metaphorical silencing. It's a literal silencing. The 1986 law forbids protests that threaten serious damage or disruption. These amendments add "noise" to the list of aspects that allow the government to intervene or shut down demonstrations.

If the noise of the protest “may result in serious disruption to the activities of an organisation” – for instance by distracting employees in a nearby office, then the police can impose restrictions. It goes without saying that this applies to almost any protest at all around parliament, the whole purpose of which is to get the attention of politicians. It can therefore cause “serious disruption” of an organisation.

It also applies to passers-by. If the noise of the protest could have “a relevant impact on persons in the vicinity of the procession”, the police can impose restrictions. The standard for this threshold is very low indeed: If the police believe that just one person nearby could be caused “serious unease, alarm or distress”, they can impose restrictions.

Unease and alarm are often byproducts of even peaceful protests. It's something commonly suffered by those targeted by the targets of demonstrations. Their unease is the point, because without it, it's pretty hard to compel change.

With this amendment, anyone could complain about the "noise" made by protesters and prompt a law enforcement response. Law enforcement can also use any imagined level of noise as impetus for shutting down protests under the presumption that stopping a protest before it gets "too" loud is just proactive police work.

It's SHUT UP: the law. The entire point of protests is to draw attention to and disrupt the status quo. This bill makes it illegal to hold an effective protest. And that appears to be the way the Home Office wants it. As Dunt points out, Home Secretary Priti Patel has been openly critical of many different protests, calling Extinction Rebellion protesters "eco-terrorists" and saying Black Lives Matter protests are not "the right way" to protest.

This is a gag order on dissent. Every government would love to have one. And it looks like the UK may be the next to criminalize complaints by the public it's apparently failing to serve properly.

Despite attempting to identify herself as a member of the press, Sahouri was hit with a tear gas canister, pepper sprayed, and arrested for "failure to disperse." According to Des Moines police, Sahouri wasn't wearing any press credentials, something that has been acknowledged by both Sahouri and her editor at the Register.

However, it's also not clear at this point that any order to disperse had been given, making anyone -- much less a journalist -- subject to arrest for not immediately leaving the area. The lack of press credentials could be a problem, but it's also being argued Sahouri was known by officers and should have been recognized as someone covering the protest, rather than participating in it. Journalists generally aren't subject to orders to disperse.

Her newspaper issued this statement in its editorial against her prosecution:

Journalists cover protests to serve as the eyes and ears of the public, to ensure free speech and assembly rights are upheld and to seek out the truth of what unfolds, whether a protest is peaceful or violent and whether law enforcement’s response is viewed as proportional or excessive.

And this clash of press freedom vs. riot control isn't limited to Iowa. It's been happening all over the nation. Journalists have been targeted with riot control weapons as well as arrested for covering protests. And there are similar cases all around the nation, as the Register points out:

The U.S. Press Freedom Tracker has documented an alarming increase in arrests and detainment of journalists in 2020: at least 126, compared to nine in all of 2019. Most of them, like Sahouri’s, happened at protests as Americans took to the streets to demand change from their government, after the deaths of George Floyd and other Black Americans at the hands of police, and preceding and following the tumultuous November election.

Prosecutors believe they're doing nothing wrong, even though testimony at the trial appears to show Sahouri was moving away from police officers and the area they were seeking to control when she was arrested. This is the defensive statement issued by the prosecutor's office:

“We strongly disagree with how this matter has been characterized and will do our talking in the courtroom, which is the proper place to deal with this case."

The talking in the courtroom has begun. And there's already at least one troublesome detail. The officer performing the arrest could have presented an almost-indisputable record of the incident, but chose not to.

First, there's the footage that's actually available, which would appear to show the journalist moving away from police -- something that suggests she was exiting the area in response to an order to disperse.

Sahouri and Robnett can be seen coming around the corner shortly before police, but the camera angle does not show the spot where they were actually arrested.

Then there's the arresting officer, Luke Wilson, who -- despite being engaged in crowd control efforts -- decided none of it was worth documenting.

Wilson did not activate his camera for the arrest, and although it is possible to retrieve video after the fact, it was not done in time to save the footage from being overwritten. Wilson says he thought he activated the camera when he disembarked from a police vehicle, but didn't notice in the resulting chaos that it was not on.

Seems like something you'd want to verify before entering a chaotic scene that implicates any number of Constitutional rights and criminal acts. But the officer claims it was so chaotic he couldn't be bothered to expend the second or two needed to ensure his body camera was on. Even if we believe Wilson's lack of recording was accidental, it shows officers aren't following body camera protocol and will still choose to verify recording status only when it's convenient to them.

Then there's the police department itself. Its officers entered the scene broadcasting conflicting instructions:

Squad car public address systems can be heard in the background telling people to "disperse" and also "protest peacefully."

So, it can't be argued by the PD that a clear order to disperse had been given. If Sahouri wasn't engaged in violent acts or non-peaceful protesting -- something that's not only unlikely given her position as a journalist, but also according to the footage available -- the officers had no justification for this arrest. You can't tell people to do both but only choose to arrest those that followed one of the two orders: peaceful protesters.

This case isn't over yet. It will go before a jury. The facts don't look good for the Des Moines PD, which not only arrested a journalist, but did so despite her following at least one of the conflicting orders being issued by officers.

It might be a stretch to say there's been a concerted effort by law enforcement to target journalists during these protests. But it's undeniable that some officers and agencies have deliberately gone after journalists merely for documenting crowd control efforts. No one willing to engage in unjustified force wants to have their actions documented. And when that's the mindset, even those thoroughly protected by the First Amendment are considered enemies of the state.

Over the years, qualified immunity has morphed from a limited protection for officers to allow them to make split-second decisions in dangerous situations to a blanket excuse for rights violations. Thanks mainly to the US Supreme Court, qualified immunity now shields officers from large numbers of legitimate accusations of rights violations. SCOTUS has shifted the emphasis to judicial precedent, rather than any discussion of the alleged violations brought before federal court judges. As long as law enforcement personnel violate rights in new ways that aren't covered by existing precedent, the officers are allowed to dodge lawsuits, juries, and fact-finding.

The Supreme Court has made it easier for lower courts to dodge questions about rights violations -- and, in turn, prevent them from establishing new precedent -- by forcing them to defer to a limited test that only involves established precedent and a very limited examination of the facts of the case. Only recently has the Supreme Court realized it may have had this wrong. Two remands to the Fifth Circuit Court of Appeals (the circuit most protective of cops) in the past few months indicate the nation's top court now feels the lower courts have followed its damaging instructions too closely.

So, there may be hope going forward. But it will be slow in arriving and still somewhat limited by the Supreme Court's precedential blanket instructions on QI cases. Nonetheless, there is hope.

What may be faster-acting is some federal legislation. Far too often, courts defer to legislators who seemingly have zero interest in deterring the wreckage qualified immunity has wrought. Asking politicians to go head-to-head with some of their most powerful supporters is kind of a non-starter. But if it's legislation courts are demanding, at least a few legislators are willing to give it to them.

The last effort to eliminate qualified immunity died quietly, even as cities continued to burn. The effort has been renewed by a bipartisan group of legislators who have seen immunity and the damage done and refuse to offer their tacit blessing of this accountability escape hatch by doing nothing. Akela Lacy has more details for The Intercept:

Rep. Ayanna Pressley and Sens. Ed Markey and Elizabeth Warren, Democrats of Massachusetts, are introducing a bill to fully end qualified immunity, a legal doctrine that protects police and law enforcement officials from civil liability in cases where they are accused of violating someone's constitutional rights.

The "Ending Qualified Immunity Act" [PDF] would do exactly that, building on Rep. Justin Amash's attempt to terminate this bullshit last year, when the irons were hot and setting fire to precinct houses. The bill notes law enforcement has been on the wrong side of history since the Ku Klux Klan Act of 1871. Since then, law enforcement hasn't bothered to correct its course. It engages in biased policing pretty much all the time and sinks its funding into efforts that reinforce its foregone (and often bigoted) conclusions.

As the bill points out, qualified immunity actually subverts the intention of federal legislators. It was created solely by a single court with no deferral to legislators who had already expressed their intent through this legislation, which created a cause of action for citizens whose rights had been violated.

This doctrine of qualified immunity has severely limited the ability of many plaintiffs to recover damages under section 1983 when their rights have been violated by State and local officials. As a result, the intent of Congress in passing the law has been frustrated, and Americans’ rights secured by the Constitution have not been appropriately protected.

In short, screw qualified immunity. It undercuts the Constitution as well as legislative intent. With this bill, QI would no longer be considered a defense to allegations of rights violations.

It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or Federal laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

This doesn't prevent cops from escaping civil rights lawsuits. They still can. But they can't do it with a motion to dismiss prior to any fact-finding. Instead, they'll have to deal with lawsuits like most civilians have to: by bringing their own evidence and waiting for a judge to rule on the merits. In some cases, this will mean going to trial. And going to trial should never be considered a failure of the system. That's supposed to be the desired outcome. Instead, we've been given years of cops pressing the eject button and simply nodding along as allegations remain unaddressed, even when the courts are still supposed to assume plaintiffs' allegations are true.

This won't be the litigation apocalypse cops will claim it to be. Instead, it will put them on the same playing field the rest of us have to work with. Government employees should be holding themselves to higher standards. This bill only demands law enforcement officers abide by the same rules governing non-cop-related litigation.

To be fair, I'll list Tennessee's positives first. Within the last year, a court struck down a law that forbade the use of entertaining hyperbole by political candidates, and legislators finally passed an anti-SLAPP law with teeth -- the latter of which should head off bullshit like someone suing a reporter for things someone else said.

On the other hand, legislators continue to ignore its position as a backwater state in terms of internet access. And legislators are still doing extremely stupid things, like asking federal legislators to bypass the First Amendment and Supreme Court precedent to jail people for burning the flag.

Here's the latest broadside against constitutional rights and common sense, via pretty much every member of Tennessee's Republican leadership. Let's go direct to the source of this hideousness, who provides the question this legislative bullshit begs:

If you can't see the tweet, Tennessee-located First Amendment warrior Daniel Horwitz asks:

"Hey Alexa, how do you lose judgment on the pleadings?"

Here's what Tennessee Republicans are demanding [PDF]:

In light of recent news reports, we want to address the issue of our student athletes kneeling during the National Anthem prior to sports competitions. The National Anthem is a symbol of pride for America. It lifts our spirits toward the ideals upon which our great country was founded: that all are created equal and endowed by their Creator with certain unalienable rights including life, liberty, and the pursuit of happiness. Written during the Battle of Baltimore, the National Anthem represents not only the freedoms we enjoy as Americans but the ultimate sacrifice paid by many in order for us to enjoy those freedoms.

One of those "freedoms" would be the freedom to criticize their government, their nation, the things it stands for, etc. But whatever.

During athletic competitions, our student athletes represent not only themselves, but also our universities and all the citizens of this state, many of whom view this form of protest as offensive and disrespectful the very thing our National Anthem represents.

Shorter Tennessee reps: we will allow the hecklers to veto this freedom.

While we recognize our student athletes may express their own views on a variety of issues in their personal time, we do not condone any form of protest that could be viewed as disrespectful to our nation or flag while they are representing our state universities. When they don the jersey of a Tennessee university, they step out of their personal roles and into the roles of an ambassador for our state. We expect all those who walk onto the field of play to show respect for our National Anthem.

This is an expectation you can't demand. Even if they refuse to kneel, you can't make them "respect" the National Anthem. Respect is earned. It can't be mandated.

To address this issue, we encourage each of you to adopt policies within your respective athletic departments to prohibit any such actions moving forward. We view this as a teachable moment in which administrators may listen to concem from students but also exercise leadership in stating unequivocally what the National Anthem means to this nation and explain proper times, places, and manners for expressing protest. While we work together to make Tennessee a better place for all our citizens, let's not focus on what divides us but on what unites us which is being an American.

Ah. A "teachable moment." In this context, it means "teaching" students who are upset with the status quo to suck it up and get it up any time the flag appears and its theme music starts playing. It means ignoring responses that don't align with Team USA jingoism in order to "unite" everyone under the state Republicans' idea of what's acceptable behavior by student-athletes.

And it's clear that any time people like this refer to "divisiveness," they're only concerned that people don't share their views, rather than seeking a way to engage honestly with people whose viewpoints differ from theirs. The nation may be divided, but it can only be united under this plan, which would force everyone to revere the flag the way these ass-hats would prefer they do.

Nice work, reps. How did you say you like your mockery? Relentless? Good. Let the shit hit your fans, you insufferable losers.

That being said, this won't necessarily be an easy thing to prevent. The government stepping in to tell student-athletes how they can behave is on the wrong side of the Constitution, considering these universities are publicly funded.

On the other hand, courts have given some leeway to schools to add additional rights restrictions to extracurricular activities, which means they may be allowed to tell students how to behave during sportsball games, even if they can't restrict their speech elsewhere. Sports participation is voluntary and generally comes with strings attached.

But Horwitz isn't wrong. This certainly won't be an easy case for the government to win if this flag-molesting, masturbatorial fantasy becomes a reality. Criticism of the government tends to receive the most First Amendment protection and taking a knee during the anthem cannot possibly be seen as anything other than criticism.

Of course, the universities are free to politely decline this ridiculous request. But it would be so much better if they'd send a message of their own stating that they respect their students' rights far more than they respect pandering to the worst aspect of state politicians' voter bases.

Documents obtained by the EFF and shared with The Intercept show law enforcement used footage from Ring doorbell cameras -- cameras some people have obtained for free from Ring's thousands of law enforcement "partners" -- to hunt down people protesting police violence.

The documents show the Los Angeles Police Department sent requests to Los Angeles residents asking them for footage recorded by their cameras. But the LAPD did not specify what sort of footage it was looking for. The task force making the request was charged with investigating crimes committed "during protests and demonstrations."

This information was vaguely conveyed to Ring owners in the area. The requests didn't even bother to specify whether the "incident" the LAPD was investigating could even have been captured by the doorbell cameras targeted by this request.

"The LAPD ‘Safe L.A. Task Force’ is asking for your help,” reads the message, from detective Gerry Chamberlain. “During recent protests, individuals were injured & property was looted, damaged, and destroyed. In an effort to identify those responsible, we are asking you to submit copies of any video(s) you may have for [redacted].” The request appears to have made no mention of what exactly the LAPD was pursuing; no crime, proven or alleged, is described in the unredacted portion of the request, only that the police wanted footage of an unspecified “incident” related to a protest. The redacted portion of the request does not appear to contain any substantive further description.

This was not the only message sent. The documents show the LAPD made additional requests following other demonstrations, in essence asking Los Angeles residents to rat out people engaged (for the most part) in peaceful protests. The task force wasn't asking for any info about specific crimes, but rather anything that showed people doing stuff that (again, for the most part) was protected by the First Amendment.

And there wasn't a lot of criminal activity. At least, not so much the LAPD should have felt comfortable sending out blanket requests for footage from cameras owned by private citizens.

In October, the Los Angeles Times cited LAPD data showing that the “vast majority” of the city’s Black Lives Matter rallies, part of a national wave of outraged mobilization following the police killing of Floyd, were peaceful, with only “between 6% and 7%” of protests resulting in any violence, including violence perpetrated by the LAPD itself.

But Ring has made aggressive inroads with thousands of law enforcement "partners." And it has provided them with instructions for requests like these -- ones that evade warrant or subpoena requirements.

On the plus side, the requests make any handover of footage completely voluntary. Bear in mind that law enforcement "requests" for footage are perceived by citizens as being far less voluntary than law enforcement perceives them to be. But the bottom line is these are requests, not demands. Even so, the LAPD would rather not answer questions about its mass emails or their efficiency rate.

And that's a problem Ring doesn't have an answer for. Indeed, it's an answer Ring doesn't even appear to care about. Ring likes cops. The people actually buying and/or deploying its cameras appear to be far down the list of things Ring cares about. As far as Ring is concerned, the market it has cornered is little more than an extension of existing government surveillance networks. If it did care about its users, it would have done more to protect them from malicious hackers and law enforcement officers who can't be bothered to boilerplate up a warrant affidavit.

Even if you decide the First Amendment question isn't settled enough to give Los Angeles residents pause when handing over footage to cops, the mutual appreciation society formed by Ring and law enforcement cuts private citizens out of the equation. It turns their cameras into cop cameras.

Sure, people may retain control of the devices and ignore emailed requests for footage, but Ring is doing all it can to erase the line between public and private. It allows law enforcement agencies to give cameras to citizens, increasing the chance the recipients of these freebies will be receptive law enforcement requests. It gives cops a portal that shows them where cameras are located, giving the government information it wouldn't have under other circumstances. Finally, Ring inserts itself into the PR process, giving itself final approval on press statements from law enforcement that involve its products, allowing it to craft a more self-serving narrative.

There's no indication this effort was limited to areas where criminal activity during protests was suspected. Instead, the portal provided by Ring made it possible for the LAPD to ask for private citizens' inadvertent recordings of protected speech. This is secondhand surveillance. And its encroachment into our everyday lives should be greeted with suspicion. This is an opportunistic approach to law enforcement, one that embraces mission creep.

We've already seen some federal courts respond to violent law enforcement responses to the mere presence of journalists and legal observers during protests. The targeting of non-participants by law enforcement has been met with injunctions and harsh words for the officers participating in these attacks.

Much of what's been covered here deals with months of ongoing protests in Portland, Oregon and violent responses by federal officers. But this appeals court ruling (via Mike Scarcella) shows the problem isn't confined to the Northwest or federal law enforcement. Cops are attacking journalists in other cities as they try to do nothing more than cover highly newsworthy events.

And the problem isn't new either. This case [PDF], handled by the Eighth Circuit Court of Appeals, deals with an attack on three Al Jazeera reporters covering protests in Ferguson, Missouri following the killing of Michael Brown.

Local law enforcement officers may not have been wearing cameras, but the journalists brought their own. The events that transpired were captured in the course of their attempted coverage of Ferguson protests. Fortunately, this footage exists. The version of events offered by the sued deputy is a lie. Here's what was captured by Al Jazeera cameras:

The SWAT Team approached the reporters as they prepared the live broadcast, a block and a half from the street where most of the protests occurred. Their video shows a calm scene. An unidentified officer begins shooting rubber bullets at them. They yell, identifying themselves as reporters. Anderson then deploys a single canister of CS gas (also known as “tear-gas”). It lands in front of the reporters. They move away from the camera, but can be heard talking in the background. An unidentified person walks past the camera. Other people stop in front of it. The police do not fire at them. One reporter re-appears in front of the camera, is shot at, and leaves. Another person walks past the camera (possibly the same unidentified person as before). A second group poses in front of the camera, thinking they are on CNN. They talk to the camera for over two minutes.

Minutes later, police deploy another canister of tear-gas at men standing on the corner, several feet from the camera. Over a speaker, the SWAT Team appears to ask the reporters to “turn the spotlight off.” SWAT Team members then lay down the lights and turn the camera lens toward the ground. The reporters re-appear. After speaking to the officers, they pack their equipment and leave.

As the court notes, this narrative (the one captured by cameras) is "disputed." But it's only "disputed" because Deputy Michael Anderson (the defendant) would prefer to use an alternate history to exonerate himself.

Anderson claims the reporters were told to disperse and turn off the lights but refused. He also claims he saw projectiles launched from the area of the bright lights. He says he had difficulty seeing what was going on. He believes there was an imminent threat to safety. He stresses that his sergeant ordered him to deploy the tear-gas.

Submitted in support of this narrative is Anderson's sworn declaration that everything he said is true, even when nothing on record supports his version of the incident.

Before the SWAT Team arrived, the reporters counter that their location was a calm scene. The videos support this. None records any orders to disperse. They also do not show any projectiles thrown from the reporters’ area. They do not show orders to turn off the light before Anderson deployed the tear-gas.

The court doesn't call Anderson a liar. It might have, if other questions had been presented. It's limited to determining whether or not Deputy Anderson should be awarded qualified immunity. Once this returns to the lower court, Anderson will get another chance to prove he's not lying. It seems unlikely he'll be able to, but he is definitely going back to the lower court and is definitely going to have to defend himself against at least one allegation.

The Appeals Court says Anderson's actions clearly violated the reporters' First Amendment rights. No qualified immunity on this count.

The videos confirm the reporters’ version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas. Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. See Duncan, 687 F.3d at 957. Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas.

Even if the court were inclined to believe Anderson's apparent bullshit, he still wouldn't be granted qualified immunity.

Anderson is not entitled to qualified immunity even if his sergeant told him to deploy the tear-gas. Anderson cites the Heartland case for the proposition that §1983 “does not sanction tort by association.” Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 806 (8th Cir. 2010). True, but nothing in Heartland says that a government official is immune if a superior instructs him to engage in unconstitutional conduct. Instead, Heartland says that defendants must be individually involved in the unconstitutional act to be liable under §1983. Id. See also White, 865 F.3d at 1076 (“[A] plaintiff must be able to prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’ ”), quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, it is undisputed Anderson was involved. He is the one who deployed the teargas at the reporters.

The deputy argued the reporters weren't engaged in First Amendment activity. Instead, they were ignoring a dispersal order. Again, the court points to the recording which shows no dispersal order being given during the entirety of the incident. Even if one had been, there's no reason to assume a dispersal order requires reporters to leave the scene. Reporters reporting on newsworthy events are not engaged in unlawful activity.

The deputy also argued the plaintiffs were required to provide proof of his motive -- his alleged desire to retaliate against the reporters for engaging in protected activities. Wrong again, says the court. There's enough doubt in here a jury should examine it.

To support its conclusion that the reporters had alleged enough about causation to survive summary judgment, the district court noted that the videos show a peaceful scene interrupted by Anderson’s tear-gassing of the reporters, but not others. Quraishi, 2019 WL 2423321, at *7 (“The raw footage from Al Jazeera, however, showed that numerous people came into the area where the reporters were standing, but only the reporters were shot at and tear gassed.”). The reporters were singled out—other people were in their immediate area but only the reporters were tear-gassed at the scene. (Minutes later, men were tear-gassed several feet from the camera.) Anderson’s motive is not “so free from doubt as to justify taking it from the jury.”

And, again, the court highlights the video that shows a chain of events that contradicts Anderson's claims.

The district court’s summary judgment facts are not based on allegations of actions by unknown individuals. They come from videos showing Anderson deploying the tear-gas. As noted, the district court does not have to rely solely on Anderson’s account of events to discern what motivated him.

It is clearly established that firing tear gas at journalists to prevent them from covering newsworthy events is a violation of their rights, the Appeals Court says, rattling off a list of ten previous decisions reaching the same conclusion. Any assumption otherwise is unreasonable.

A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible.

Deputy Anderson is headed back to the district court to face the reporters' First Amendment allegations, as well as state-level excessive force claims. (The Appeals Court grants qualified immunity on the Fourth Amendment claims, noting that being tear-gassed is not a "seizure" as there is no detention or other form of police custody.) And it would seem he's destined to lose. His version of the events isn't supported by anything tangible. The other side has plenty of footage showing things didn't happen the way Deputy Anderson apparently wishes they would have happened. This isn't a "factual dispute." This is a recording contradicting a law enforcement officer's lies. Hopefully, the district court will further highlight this, shall we say, "disparity" upon his return.

And as that mad dash to tighten its grip before a new American administration takes office continues, Beijing appears to be starting the process of censoring the internet in Hong Kong as well. In a move likely designed to make this all look reasonable, the first reports revolve around a website used to post information about Hong Kong police.

Hong Kong’s biggest mobile telecom companies appear to have severed access to a website that listed the personal information of police officers, setting off fears that the authorities may use a new national security law to adopt censorship tactics widely used in mainland China.

Users attempting to access the site, called HKChronicles, on their mobile devices first noticed the disruption on Wednesday evening, according to the site’s owner, Naomi Chan, an 18-year-old high school student. Disruption came without any warning or explanation, she said.

Now, I can write the comments from some of you here to save you the trouble: if this is a site dedicated to doxxing police officers, how is blocking it unreasonable? Your desire to write that comment is almost certainly precisely why this site is the first to have gotten the mainland censorship treatment. But that's entirely besides the point.

Instead, frame it in your mind this way: a site that had previously been accessible by Hong Kong citizens no longer is as a result of the desires of mainland China. In other words, don't get lost in the details, just realize that this is likely the start of a trend. I don't think anyone really wants to suggest in the comments that Beijing will censor this site and stop there, do they? I hope not, because nobody thinks this is anything other than the first domino to fall on its way to internet censorship.

The disruption raised the prospect that the city, long a bastion of online freedom, could begin to fall under the shadow of the tight censorship system that separates mainland Chinese internet from the rest of the online world. On Hong Kong social media, many people worried that the authorities could eventually bring the city’s overall access to the open internet to an end.

“Their talking point has been the national security law will only target a small group of people,” said Lokman Tsui, an assistant professor at the Chinese University of Hong Kong who specializes in online communication.  “In practice it hasn’t been limited to a small group of people,” Mr. Tsui said. “My concern is that internet censorship similarly won’t be limited to a small group of websites.”

It's worth noting that, for now, the method for censorship is different than the mainland's Great Firewall, but the end result is the same. I suppose the questions that remain are just how much more action Beijing is going to take prior to January 20th and what the Biden administration intends to do about any of this once it is in office.

A bill passed through the general assembly that would have made this act a crime.

One of its most controversial elements was Article 24, which sought to criminalise the publication of images of on-duty police officers with the intent of harming their “physical or psychological integrity”.

Under the article, offenders faced sentences of up to a year in jail and fines of 45,000 euros ($53,760) for sharing images of police officers.

This sounds like an effort to prevent doxxing but, given the breadth of the language in the proposed law, it could be read to forbid recording any officer who felt they might be harmed by their actions being documented. And it could be argued (with varying degrees of success) that any publication of images/recording depicting officers in any way they didn't explicitly approve of is "harmful."

And the proposal couldn't have come at a worse time. French law enforcement is facing additional scrutiny after a recording of officers beating a black man surfaced online.

Paris's top prosecutor has called for four police officers under investigation over the beating of a black music producer to face charges and for three of them to remain in detention as the probe continues.

[...]

The three officers suspected of carrying out the beating should remain in custody, he said, while a fourth, who arrived on the scene later and set off a tear gas canister, should be freed under conditions.

With this flame still burning, French legislators tossed this accelerant on the fire. No more documenting police activity because natsec. The citizens responded to this attempted shielding of bad cops as the French often do: with massive protests and a bit of violence.

Tens of thousands of critics of a proposed security law that would restrict the filming of police officers protested across France on Saturday, and officers in Paris who were advised to behave responsibly during the demonstrations repeatedly fired tear gas to disperse rowdy protesters who set fire to France’s central bank and threw paving stones.

Faced with consecutive protests (the one over the beating that rolled into the one over the proposed law), French legislators are backtracking.

France’s national assembly on Monday dropped a key provision of a controversial bill that would have curtailed the right to film police officers during their work.

Christophe Castaner, the head of President Emmanuel Macron’s ruling LREM party, told journalists that the bill will be scrapped and rewritten, with a new version going before parliament.

For the time being, filming the police in France is still legal, even if an officer argues they've been harmed by being observed. Unfortunately, the proposal isn't completely dead. Article 24 will be revamped but it won't be until early next year. Right now, the bill is too hot to touch. A couple of months in the cooler -- and the onset of cooler weather -- might temper both protesters and belatedly irate lawmakers. If so, it could reappear mostly unchanged, especially if legislators feel the security of the nation is more important than law enforcement accountability.

Posts on the Facebook accounts of Ted Hui, Eddie Chu and Raymond Chan said they were arrested in relation to the incidents in the legislature’s main chamber. The trio separately disrupted legislative meetings by splashing pungent liquids and other items on two occasions.

Hong Kong police said in a statement that they arrested three former lawmakers on charges of contempt in the legislature and intent to cause harm to others. Police did not identify them by name.

The information offered up by Beijing is made to make all of this sound like it is arresting lawmakers for putting other legislators in danger. Given the source, that accusation should be taken with a grain of salt. For example, Chi-Fung (Ted) Hui's antics in disrupting the legislature were very much about the disruption and nothing to do with putting anyone in danger. For Christ's sake, the "weapon" for his intent to cause harm to others appears to be some rotted plant material.

On 28 May 2020, Hui disrupted the second reading of the National Anthem Bill in the Legislative Council by dropping a container containing rotten plant matter inside the chamber. A fellow lawmaker was taken to hospital after being exposed to the smell. On 4 June 2020, Hui and two other lawmakers, Eddie Chu and Raymond Chan, were alleged with hindering the business of the Legislative Council and violating the Powers and Privileges Ordinance, with Hui having dropped foul smelling liquid during the LegCo session on that day.

For this, apparently, Hui is under arrest. But what should really be striking you about all of this is the complete absence of international pushback generally and the dereliction of American leadership in promoting democracy specifically. Our government is all but absent on the international stage at the moment, with the gears of government mostly churning out a plan for COVID-19 vaccination while senior leadership is focused on promoting nonsense conspiracy theories over an election it lost and otherwise sulking.

It appears that China views the remaining few weeks of the current administration as its window for the takeover of Hong Kong. And, given the absence of leadership at the present, it's not hard to see why. The only remaining question is just what the state of affairs in Hong Kong will be when Joe Biden is sworn in as President.

The pictures and videos of the couple waving guns around dangerously at protestors got lots of attention, and they were indicted last month -- though Missouri's governor has indicated that he would pardon the couple if convicted. The McCloskeys have leaned into their newfound national fame, and even spoke at the Republican National Convention this past summer.

In late September, the couple was confronted by more protestors as they left a printshop. As they went to leave, Mark McCloskey handed one of the protestors what they were apparently picking up at the shop: Christmas cards with one of the famous photos of themselves and pointing their guns at protestors, captioned as "Patty & Mark McCloskey v. The Mob."

The main photo that was taken was taken by UPI photographer William Greenblatt, and a few weeks ago, UPI announced that it was "looking into" the issue. Then, last week, it came out that Greenblatt had decided to send the couple a bill for $1,500 for their use of the photo.

The letter reads:

Dear Mr. and Mrs. McCloskey:

My name is William Greenblatt, a photographer with United Press International here in St. Louis.

It has been brought to my attention that one of my images of you during the June 28, 2020 event at your home, is now serving as a Christmas card.

I did not grant permission for this to be used in this manner. Downloading images to use as needed is clearly a violation of the National Copyright Act.

I am in the business of selling images. I do not give them away for free.

Enclosed you will find an invoice for $1500.00, a normal charge for an image such as yours. Al Watkins suggested I send this invoice to you.

Thank you in advance for your understanding of this matter.

This actually set off a bit of a debate here at Techdirt over whether or not the use by the McCloskeys was fair use. We remain somewhat divided on this. As Cathy Gellis has pointed out, fair use should allow a family to, say, clip a photograph of their child doing something cool in the newspaper and use it as part of their holiday greetings cards. However, news organizations do actually tend to license their photos, so I think there's a decent argument that this wouldn't survive the four factors fair use test. It doesn't seem particularly transformative. It uses the entirety of the work. It's not for commercial use but (unfortunately!) that's not that big a deal in the fair use analysis. And, photographers and news organizations regularly do license their works for promotional materials, so there's a decent argument to be made that it could diminish the market (though, admittedly, it's not entirely clear how large a market there is for this particular photograph). It does not appear that Greenblatt consulted a lawyer in sending this (calling it "the National Copyright Act" sort of gives that away).

McCloskey did not seem interested in paying. Instead, he posted the letter to Facebook, claiming that the photographer "stole a photo of us."

This made my day: the photographer that trespassed into my neighborhood and stole a photo of us has sent us a bill!!!!!
Now be nice and don't bother him, but what chutzpah.

Things then escalated last week, when the McCloskeys filed a stunningly stupid lawsuit against Greenblatt, his personal LLC, UPI, and Redbubble* (lawsuit first highlighted by WTHR).

The crux of the lawsuit goes back to McCloskey's Facebook post about how Greenblatt "trespassed" and "stole" a photo of them. The McCloskeys have long claimed that all of the protestors trespassed on their property after going through the gate. While it does seem notable that St. Louis prosecutors chose not to prosecute any of the protesters for trespassing, some have argued that since it was a private street, the protesters (and anyone with them) were were trespassing. The McCloskeys are arguing that it's common law trespassing:

At all relevant times hereto, Defendant Greenblatt acted intentionally and unreasonably when Defendant Greenblatt entered and remained upon the land legally owned in whole or in part by Plaintiffs, in flagrant disregard for posted “no trespassing” signs, and despite Plaintiffs’ repeated requests for Defendant Greenblatt to leave the premises.

This is... not a very strong argument. The protestors were passing through on the way to the mayor's home, and Greenblatt was a journalist covering the protests.

But the really ridiculous part is the damages demand:

WHEREFORE, Plaintiffs pray for judgment against Defendants Greenblatt and UPI, in a fair and reasonable sum in excess of $25,000.00, which is just, fair, and adequate under the circumstances, costs and fees expended herein, for an order transfering ownership of the Photo and any other media captured while trespassing depicting Plaintiffs to Plaintiffs, and for such further and other relief as the Court deems just and appropriate.

Even criminal trespass comes with a maximum fine of $500. Demanding $25,000 and the copyright in the photo is insane.

From there, they make a publicity rights argument. For many years we've discussed the massive problems with basically all publicity rights laws, which were originally designed to prevent companies from using the image of someone to imply endorsement of a product. They've often been stretched in ridiculous ways, but this may be the dumbest attempt: to argue that a journalist's photograph of you doing something very, very newsworthy is a violation of your publicity rights. In Missouri, publicity rights are also not by statute, but under common law, with a 3 pronged standard: (1) the defendant used the plaintiff’s identity; (2) without consent; and (3) "with the intent to obtain a commercial advantage." That standard alone raises some 1st Amendment concerns (as many publicity rights laws do), but there is no fucking way that a journalist taking a photo of a newsworthy event meets the criteria here.

This is a blatant SLAPP suit.

Next up, they argue this is an "invasion of privacy." This is utter bullshit. They argue that the photo has brought them "shame, humiliations, and garden-variety severe emotional distress" and has harmed their careers:

Plaintiffs are prominent attorneys who handle cases throughout the State of Missouri. Plaintiffs have devoted a tremendous amount of time and effort developing their careers and the goodwill, reputation, and brand associated with being an officer of the court. Such efforts have created considerable commercial value in their name, image, identity, and persona.

In the time since the trespassers’ entrance onto Plaintiffs’ private property, Plaintiffs have obtained significant national recognition and fame, as evidenced by being repeatedly featured on both the national and international news. In addition, Plaintiffs have received death threats and have been subject to additional trespassers protesting on their property, all resulting in shame, humiliation, and garden-variety severe emotional distress.

Defendants’ unauthorized use of Plaintiffs’ names, images, identities, and personas in connection with the Photo and other works depicting Plaintiffs is a violation and misappropriation of Plaintiffs’ names and likenesses. Defendants misappropriated Plaintiffs’ names, images, likenesses, identities, and personas by using the Photo in a manner that resulted in an intrusion upon Plaintiffs’ private self-esteem and dignity, which have now been irreparably harmed.

You want to know the evidence that disproves literally all of that? The fact that they put the image on their own fucking Christmas cards. How do you argue that the image destroyed their self-esteem and careers, while then gloating about it on their Christmas cards? Also, it's not the photo that brought them any shame and humiliations -- it was their own actions.

Again, this is a vexatious, garbage SLAPP suit, which appears mostly designed to punish the photographer for sending them that bill. Unfortunately, Missouri has a very limited anti-SLAPP law which may not apply in this case. One hopes that a judge correctly sees this lawsuit for what it is.

* Redbubble is a print-on-demand marketplace. I'll admit that it's not entirely clear why Redbubble is a defendant here, other than it being mentioned that this image is for sale on various products on Redbubble's site (so perhaps the McCloskey's bizarrely think they needed to include it here to get over that 3rd prong of the publicity rights claim). As a disclaimer, though I will note that I have acted as an expert witness on behalf of Redbubble in a few lawsuits, and because of this will not comment on Redbubble's role in the lawsuit. This post focuses on the photographer, Greenblatt and the arguments against him.

The pseudonymous cop sued a number of entities, including "Black Lives Matter," a Twitter hashtag, and activist DeRay Mckesson. His claims against the social movement and the social media sorting mechanic didn't survive. But the Fifth Circuit Court felt it was plausible -- under Louisiana state law -- that Mckesson was somehow responsible for the injuries sustained by the cop.

According to the court, Mckesson should have known that leading protesters onto a highway would "provoke" a "confrontation" with law enforcement. Being aware of this potential provocation was enough for the court to revive Officer John Doe's idiotic attempt to hold Mckesson personally responsible for an act of violence committed by another person.

That ridiculousness has now been undone by the Supreme Court. The nation's top court rolls back [PDF] the Fifth Circuit's inexplicable resurrection of the cop's misguided claims and sends it back down the judicial food chain. Allowing this decision to stand would do damage to the First Amendment and invite similarly misguided lawsuits from plaintiffs like this one -- people seeking to bleed the biggest litigation target, rather than the person who perpetrated the injurious act.

The Supreme Court says the Fifth Circuit was right to recognize the issue, but was less correct in its handling of it.

As the Fifth Circuit recognized at the outset, Louisiana law generally imposes no “‘duty to protect others from the criminal activities of third persons.’” But the panel majority held that a jury could plausibly find that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” onto the highway. 945 F. 3d, at 827. The dissent would have demanded something more—a “special relationship” between Mckesson and Officer Doe—before recognizing such a duty under Louisiana law.

It goes back to the courts, but not the Fifth Circuit. This one is being shipped to the Louisiana state Supreme Court, which needs to clarify the law -- and the alleged duty supposedly owed by Mckesson.

The Louisiana Supreme Court, to be sure, may announce the same duty as the Fifth Circuit. But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.

This isn't a win for Mckesson yet. But it most likely will end up that way. Reading the law the way the Fifth Circuit seemed inclined to would turn First Amendment-protected expression -- like Mckesson's attendance and participation in a protest -- into an enabler of frivolous lawsuits that would introduce a chilling effect on protests and demonstrations. Allowing random people to be sued for actions perpetrated by violent outliers would dissuade a great number of people from exercising their First Amendment rights. Hopefully, the state Supreme Court will recognize the collateral damage allowing these claims to continue would produce.

If you think it's weird a free world government would be obsessed with tracking down people fighting fascism, you're not alone. Seems like the time and effort would be better utilized to neutralize the threat posed by homegrown extremists, many of whom align themselves with white supremacist movements. But this is what this Administration is diverting resources to, even when available evidence suggests the antifa movement isn't filled with dangerous individuals.

More evidence suggests the government might want to focus on another loose assortment of anti-government individuals: the so-called "Boogaloo Bois." If antifa is a collective in the loosest definition of the word, the Boogaloo Bois are similarly unstructured. Small groups exist but there's no organizational head to bring down or nationwide structure to dismantle. While the president complains about "violent" BLM/antifa protesters, real violence is being perpetrated by actual anarchists Trump has never criticized publicly.

In the wake of protests following the May 25 killing of George Floyd, a member of the Boogaloo Bois opened fire on the Minneapolis Police Third Precinct with an AK-47-style gun and screamed “Justice for Floyd” as he ran away, according to a federal complaint made public Friday.

[...]

Ivan Harrison Hunter, a 26-year-old from Boerne, Texas, is charged with one count of interstate travel to incite a riot for his alleged role in ramping up violence during the protests in Minneapolis on May 27 and 28. According to charges, Hunter, wearing a skull mask and tactical gear, shot 13 rounds at the south Minneapolis police headquarters while people were inside. He also looted and helped set the building ablaze, according to the complaint, which was filed Monday under seal.

Hunter's public social media posts helped bring him down. So did posts from other members of the group Hunter associated himself with, including Steven Carillo, who shot and killed a federal officer in Oakland, California and a sheriff's deputy in Santa Cruz. Hunter apparently traveled all the way from Texas to open fire on a police precinct and help set it on fire.

And, as if everything happening with protests and various self-invited interlopers wasn't confusing enough, this particular Boogaloo Bois unit managed to mix domestic and international terrorism into a completely incomprehensible blend.

Two members of the Boogaloo Bois, including one from Minnesota, have been indicted on federal charges of attempting to provide material support to Hamas, a designated foreign terrorist organization, the U.S. Justice Department announced Friday.

And this is apparently all it takes to talk a Boogaloo Boi into believing you work for a foreign terrorist organization.

In June, the FBI began receiving information about Teeter, Solomon and other Boogaloo Bois from a confidential source that the Bois believed to be a member of the terrorist organization Hamas. The source, a paid informant, had a Middle Eastern accent.

This isn't going to stop Trump and Bill Barr from continuing their hunt for an antifa kingpin. There's really no difference between the two, as far as Trump is concerned. Anti-THIS government is indistinguishable from anti-ALL government when you're THIS government. But one "group" tends to be composed of white guys with guns wearing Hawaiian shirts while the other is a very loose affiliation of what Trump considers to be "leftists." And it will always be the "leftists" that are considered more dangerous, even when its actual anarchists killing cops.

Their arrival was met with their addition to an ongoing lawsuit against law enforcement seeking an injunction banning cops of all types from assaulting or dispersing journalists and legal observers. The plaintiffs secured an injunction. They also secured an agreement from local police to stop treating those reporting and observing protests as protesters, exempting them from dispersal orders and forbidding them from being targeted with crowd control measures, such as tear gas and rubber bullets.

The federal interlopers gave zero fucks. They were added to the injunction but immediately violated it. The feds' excuse? Sometimes protesters and rioters disguised themselves as press to avoid being dispersed and/or assaulted. The district court pointed out the local police had made no such accusations and appeared capable of controlling crowds without violating their agreement.

The federal agencies appealed. In August, the Ninth Circuit Court of Appeals stayed the injunction. A short opinion stated the federal government had shown evidence it would suffer "irreparable harm" if officers weren't allowed to assault members of the press and other non-protesters. The emergency stay of the district court's injunction was granted.

The Appeals Court has now fully addressed the government's arguments and reversed its stance. The federal defendants are no longer exempt from the injunction forbidding them from assaulting journalists.

The government made three arguments in favor of assaulting journalists and observers. First, it argued journalists would not be deprived of Constitutional rights if assaulted or otherwise removed from areas where protests are taking place. It also argued that observing or recording protests (as observers or journalists) was not protected by the First Amendment -- not when dispersal orders have been given. Finally, it argued federal officers were not targeting journalists and observers for being journalists and observers, so any OC spray/bullets headed in their direction were just part of solid, proven crowd control efforts. This last argument was made despite recordings being submitted to the court that showed federal officers appearing to deliberately target journalists with pepper spray and other forms of force.

The Appeals Court [PDF] says a lot of what the government is asserting simply isn't true. There's ample evidence showing federal officers deliberately targeted journalists and observers.

The district court’s preliminary injunction included twelve pages solely dedicated to factual findings that describe in detail dozens of instances in which the Federal Defendants beat plaintiffs with batons, shot them with impact munitions, and pepper sprayed them. The court’s findings were supported by nineteen declarations and video and photographic evidence. The Federal Defendants do not argue that any of the district court’s findings are clearly erroneous, and we conclude the findings are amply supported.

As of the time the preliminary injunction was entered, the district court found that the Federal Defendants had engaged in a pattern of conduct that had persisted for weeks and was ongoing. After reviewing plaintiffs’ declarations, photos, and video clips, the district court found that many victims had been standing on public streets, sidewalks, and parks, well away from protestors, and were not engaged in unlawful activity when they were shot, tear gassed, shoved, or pepper sprayed by the Federal Defendants. Unlike Lyons, the district court found that some journalists and legal observers monitoring the protests had been injured by the Federal Defendants more than once.

The plaintiffs' arguments clearly aren't speculative. Actual harm has been shown. And, given the fact federal officers did this repeatedly despite the district court's injunction, there's every reason to believe they will continue to do so.

The court also points out the government's claims that its officers' actions against journalists were not retaliatory is clearly bullshit. The Appeals Court says federal officers engaged in retaliatory actions repeatedly. Referring to evidence submitted to the district court, the Appeals Court highlights four acts of retaliation by federal officers.

On July 29, plaintiff Brian Conley was wearing a photographer’s vest marked “PRESS,” a helmet marked “PRESS,” and was carrying a large camera with an attached LED light and telephoto lens. After reviewing video footage submitted by plaintiffs, the district court found that Conley was filming a line of federal officers moving down the street pepper spraying peaceful protesters—including spraying a woman in the face at point blank range who was on her knees in the middle of the street with her hands up—when, without warning, a federal officer pepper sprayed Conley at point blank range.

On the night of July 19, Jungho Kim, a photojournalist, was wearing a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” on the front and rear. The district court found that Kim was standing alone, about 30 feet from federal agents, taking photographs, when suddenly and without warning, Kim was shot in the chest, just below his heart with a less-lethal munition. A photograph submitted with Kim’s declaration shows that he was shot where the word “PRESS” was printed on his vest.

On the night of July 26, Daniel Hollis, a videographer, was wearing a press pass and a helmet marked “PRESS” in bright orange tape, and carrying a large, professional video-recording camera. Hollis was filming a group of federal agents massed outside the federal courthouse. “Almost immediately,” the federal agents shot at him, striking him just left of his groin. He turned and began to run away, but was shot again in the lower back.

On July 27, Amy Katz, a photojournalist, was wearing a hat and tank top marked “PRESS” and carrying a camera with a telephoto lens while covering the protests. Katz was photographing a federal agent who pushed a man down a flight of stairs while arresting him. Another federal agent physically blocked Katz and tried to stop her from photographing the arrest. Katz stepped to the side to continue photographing the arrest, and the federal agent physically shoved her away.

That's only four incidents. The district court listed at least forty-five similar instances -- all of which occurred after the government had been hit with an injunction banning it from engaging in this behavior. The lower court also stated it was "clear" there were more instances that weren't detailed in its decision.

The Appeals Court says the press has the same right to access the general public does. It can record officers' actions from public streets and sidewalks. The press certainly does not have less access than protesters, which was the government's argument. The Appeals Court says dispersing the press from these areas is not essential to protecting the government's interests.

And the government's interests -- as far as Portland goes -- are very limited. The government gives the court no reason why its task of defending federal property requires it to remove press and observers from public areas away from this property or deliberately target press with crowd control weapons.

Finally, the Appeals Court again notes local law enforcement had no problem abiding by the restraining order, even though its jurisdiction covered far more than federal buildings. Every argument the government raised in defense of it assaulting journalists is undercut by the agreement struck between press members and the Portland Police. The feds should have no problem abiding by the injunction, the Appeals Court says.

By its terms, the preliminary injunction the district court entered against the Federal Defendants addresses each of the reasons the Federal Defendants advanced to argue that it was impossible to tailor their dispersal orders. As to the contention that journalists or legal observers might interfere with federal law enforcement if not required to disperse, the preliminary injunction expressly prohibits journalists and legal observers from impeding, blocking, or otherwise interferingwith the lawful conduct of the Federal Defendants. The preliminary injunction leaves the Federal Defendants free to make arrests if there is probable cause to believe a crime has been committed, even if the perpetrator is dressed as a journalist or legal observer. The preliminary injunction also provides that the Federal Defendants will not be liable for violating the injunction if journalists or legal observers remain in the area after a dispersal order is issued, and are incidentally exposed to crowd-control devices. Finally, though the Federal Defendants argued that large and unique identifying markings on their uniforms could inhibit their ability to carry out their duties, the district court concluded they did not support this claim.

The stay is lifted. The injunction secured three months ago is back in effect. If recent history is any indication of future performance, it will soon be violated by federal agents still in Portland. But if they do violate it deliberately, they won't be given the benefit of a doubt. Qualified immunity will not apply.

Trump's new favorite enemy-of-America is "antifa." The president seems to believe antifa is a hierarchical organization capable of being crippled by intelligence gathering, strategic arrests, and the occasional extrajudicial killing. He's wrong about this as well. But that's not stopping the DHS and its protest-centered task forces from doing everything they can to prove some massive anti-facist conspiracy exists. This includes flying in FBI analysts and their tech to "exploit" data taken from arrestees' phones in hopes of finding some link between ongoing protests and Big Leftist.

All the money being spent in hopes of toppling an idea and prosecuting federal crimes isn't really accomplishing either of those tasks. As the AP reports, the feds aren't having any luck massaging Trump's antifa fever dreams into coherent shape. Nor are they really finding much federal crime to prosecute.

President Donald Trump portrays the hundreds of people arrested nationwide in protests against racial injustice as violent urban left-wing radicals. But an Associated Press review of thousands of pages of court documents tell a different story.

Very few of those charged appear to be affiliated with highly organized extremist groups, and many are young suburban adults from the very neighborhoods Trump vows to protect from the violence in his reelection push to win support from the suburbs.

[...]

In thousands of pages of court documents, the only apparent mention of antifa is in a Boston case in which authorities said a FBI Gang Task Force member was investigating “suspected ANTIFA activity associated with the protests” when a man fired at him and other officers. Authorities have not claimed that the man accused of firing the shots is a member of antifa.

Some of those arrested by federal officers are more profa than antifa.

John Malcolm Bareswill, angry that a local Black church held a prayer vigil for George Floyd, called the church and threatened to burn it to the ground, using racial slurs in a phone call overheard by children, prosecutors said. Bareswill, 63, of Virginia Beach, faces 10 years in prison after pleading guilty to making a telephonic threat.

Two Missouri militia members who authorities say traveled to Kenosha, Wisconsin, to see Trump’s visit in the wake of the police shooting of Jacob Blake were arrested at a hotel in September with a cache of guns, according to court documents. An attorney for one of the men, Michael Karmo, said he is “charged criminally for conduct that many Americans would consider patriotic,” as authorities have alleged his motive was to assist overwhelmed law enforcement.

There have been more than 300 arrests since this Trump-propelled charade began, but the feds are really stretching of the term "federal crime" to keep federal prosecutors in the mix. Arson (or attempted arson) isn't normally a federal charge but that makes up about a quarter of the fed's caseload. This allows the federal government to pursue sentences far harsher than those levied by states. In one case, the government's lawyers argued the attempted torching of a cop car required federal charges because the police car was "used in interstate commerce."

There's also a lot of miscellaneous garbage being treated as federal crime. Nearly a third of the cases deal with things like disorderly conduct, impeding a federal officer, failing to obey lawful orders, and obstructing law enforcement. There are more serious tangents to these charges (assaulting an officer, rioting) but these are often handy ways to bring criminal charges against people who fail to show officers the respect they feel they're owed. And "assaulting" an officer can mean something as harmless as pulling away from one when they try to grab you.

This zealousness to find an antifa link -- and keep cases federal for maximum vindictiveness -- has resulted in tragic absurdity.

A top federal prosecutor appointed by President Donald Trump held a news conference this week to announce that the “outstanding investigative work” of federal and state law enforcement officers had resulted in a federal felony charge against a 29-year-old bassist in an anarcho-punk band over a bag of weed.

An investigation was triggered after someone reported the bassist's staged photos of him carrying a mock molotov cocktail. These were supposed to be promo shots for his band, but he released them after the George Floyd killing. Law enforcement raided Justin Coffman's home in June. All they uncovered were a couple of legal guns, the fake molotov, and 24 grams of marijuana. Coffman was interrogated by the FBI after the raid. The agent questioning didn't seem too concerned officers had found a personal use amount of pot in the home. But the agent was very interested in Coffman's political beliefs. The FBI ultimately let the locals handle it. He was originally charged only with possession.

But the feds came back, apparently intent on making this anarcho-punk an example. The government brought federal gun charges against Coffman because it's illegal to own guns when you're a drug user. Those charges didn't stick but the state's creative "hoax device" charge did. That didn't stop the president from congratulating law enforcement for managing to turn nothing into some handy "we're taking apart antifa" propaganda.

This is your tax dollars working overtime to satisfy the cravings of an uninformed president content to traffic in conspiracy theories. And it's a handy way to deter future protests against police brutality. But it does nothing to make the country safer or serve the people paying for it.

Documents leaked to Ken Klippenstein indicated the federal presence in Portland was more interested in finding evidence of some sort of Antifa hierarchy than sticking to the directive. FBI forensic analysts and their tech had been scrambled to Oregon to dig into phones taken from protesters and arrestees in hopes of finding some sort of organizational structure for them to attack.

This immediately raised questions about the Constitutionality of these device extractions. There's a warrant requirement in place for phone searches incident to arrests and it's not clear whether this requirement is being followed. For that matter, cloning phones belonging to detainees not necessarily suspected of criminal activity (with or without a warrant) seems like an unjustified abuse of the powers granted to law enforcement.

Emails obtained by the New York Times indicate that's exactly what's happening. A special deployment of FBI agents was sent to Portland specifically to aid in the extraction of information from protesters' phones.

The FBI’s Washington, D.C., headquarters sent agents from its “Fly Team,” an elite counterterrorism unit, to Portland this summer during the second weekend in July. Their task was to interview arrested protesters and carry out the “initial exploitation of phones, or other communication devices,” according to FBI emails obtained through a public records request. It is unclear whether the Fly Team operation extended either past that weekend or beyond Portland, but the emails suggest that the FBI has been using counterterrorism tools and powers to map left-wing protest networks just months before an election whose result is likely to be delayed, if not challenged.

The Fly Teams have been in existence since shortly after the 9/11 attacks in 2001. But until now, they've mainly been foreign-focused -- either operating in other countries or targeting foreign terrorists. This breaks some new ground in a disturbing way: counterterrorist activity targeting US citizens, some of which have engaged in nothing more than exercising their First Amendment rights.

The emails also suggest federal law enforcement is working around warrant requirements by exploiting one particular exception:

In one of the replies to [Special Agent] Chamberlin’s email, a colleague in the Portland bureau notes that the Fly Team’s “defintion [sic] of exigency will be different from ours.”

The emails [PDF] detail an incident that might be used to stretch the definition of "exigent" to cover any detained protester. A man arrested for shining laser lights into officers' eyes was found to be carrying weapons and explosives. He consented to a search of his phone, which led to a search of his home and criminal charges. If agents can talk themselves into believing any arrestee or detainee poses a threat, phones are going to be searched without warrants in the hopes a court will grant the government the benefit of a doubt if the search is challenged.

There's nothing in the emails that says the FBI is adhering to the Fourth Amendment. There's nothing in there that says it isn't, either. But you generally don't memorialize Constitutional violations in communications that can be obtained with public records requests.

As the New York Times notes, it's unclear under what authority the FBI is acting if it's treating domestic protests like domestic terrorism. But the Constitution may not be much of an obstacle thanks to actions taken by President Ronald Reagan nearly four decades ago.

Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US.

We'll know more as more information leaks out or searches are challenged in court. But even if the FBI is following the law, the law gives it a lot of leeway to engage in acts it probably shouldn't, even if it legally can.

The feds immediately made things worse, resulting in a restraining order being sought after federal officers refused to stop attacking journalists, lawyers, and observers present at the protests. The DHS also began compiling "intelligence reports" on journalists covering the Portland protests, as well as other journalists who had published leaks about the federal response in Oregon.

Information obtained by Ken Klippenstein for The Nation shows the DHS and other federal agencies acting like they were headed to a war with foreign combatants, rather than limiting themselves to protecting federal buildings in Portland.

A current DHS official described a colleague with expertise in electronic surveillance who was being deployed to Portland. But for what purpose? “Extracting information from protester’s phones,” the DHS official said. While in Portland, an interagency task force involving DHS and the Justice Department used a sophisticated cell phone cloning attack—the details of which remain classified—to intercept protesters’ phone communications, according to two former intelligence officers familiar with the matter.

Cell phone cloning involves stealing a phone’s unique identifiers and copying them to another device in order to intercept the communications received by the original device. The former intelligence officials described it as part of a “Low Level Voice Intercept” operation, declining to go into further detail—one of them citing the sensitive nature of the surveillance tool and the other an ongoing leak investigation within I&A [Intelligence & Analysis].

If this is accurate, there are some obvious First and Fourth Amendment issues here. Targeting protesters engaged in protected speech is already wrong, but seeking to intercept their communications is something that requires a whole lot of probable cause. Wiretapping requirements are more stringent (or at least, they're supposed to be) than they are for other types of searches because of the obvious subversion of privacy expectations.

Beyond that, engaging in sophisticated cloning attacks is not "Low Level Voice Intercept." This term -- at least when used by the US military -- simply means scanning airwaves to find radio and mobile transmissions. Once located, they can be listened to. This generally refers to radio chatter, not the cloning of phones to eavesdrop on private communications between individuals.

This suggests the use of Stingray device to snag device identifiers and (possibly) engage in call interception. Stingray devices are capable of intercepting communications, but we've never seen one used that way domestically. It may not have happened here either, but it certainly would have helped identify devices and locate surveillance targets. The DHS has a warrant requirement for Stingray deployment, but there's no mention of warrants in this article. Some exceptions apply, but the DHS would still need a pen register order and that would also require a judge's okay.

That this was used domestically to possibly spy on people engaged in peaceful protests is concerning. That it was used to try to find evidence to back President Trump and AG Bill Barr's ridiculous assertions that "anitfa" is an organized terrorist group is even worse. And if this is indeed what happened, it seems unlikely federal officers (which may have included "volunteers" from the DEA) had the probable cause necessary to snoop on private communications.

Even former spies are uncomfortable with the tactics used here.

The former intelligence officers agreed that the Low Level Voice Intercept operation had been conducted on the ground, was far more invasive than aerial surveillance, and involved equipment that I&A did not have access to.

“[There were] at least two federal agencies and there was some spooky shit going on,” one former intelligence officer said of the Portland operation.

It's still unclear what the DHS actually did here. The article refers to the same actions as both "intercepting communications" and "extracting information." Undoubtedly, there's some "spooky shit" going on, but none of the former officials were present for whatever spookiness the DHS engaged in. The DHS has Stingrays and could have used them illegally. But it seems more likely it sent out an expert to help federal agents pull information from devices seized from protesters. The "cloning" discussed most likely refers to cloning the device's contents, rather than the device itself. This is common when phones are seized by law enforcement. Again, a warrant is required but the cloning often occurs before the warrant is sought to ensure law enforcement has access to it.

Then there's this, which suggests a DOJ component brought in a phone-cracking device (GrayKey, Cellebrite, etc.) to make it easier to extract device contents.

A current DHS official described how a colleague who was being deployed to Portland had alluded to using the Drug Enforcement Agency (DEA), part of the Justice Department, for the purposes of accessing protesters’ phones. “He said he needed some sort of ‘special key’ in order to …He said that DEA has that capability and vaguely alluded to possibly borrowing or using one from another agency once he got to Portland.”

If the DHS actually engaged in the interception of cellphone communications, it would be breaking new domestic surveillance ground. But it seems more likely it accessed a bunch of devices' contents and made copies of the data. Until more information surfaces, it's probably safe to assume federal agencies weren't listening in on private communications.

Following the shooting of a black man by Kenosha, Wisconsin police officers, the city erupted in protests and riots. For no apparent reason, a bunch of self-described militias and their members decided they could protect the city from rioters. Organizing on Facebook, the "Kenosha Guard" group members decided they could be a law unto themselves and decided to strap up and show up, informing the local PD they had 3,000 "RSVPs" representing a bunch of willing and possibly able "militia" and/or "boogaloo" boys locked-and-loaded.

Somehow, Antioch, Illinois resident Kyle Rittenhouse was able to talk his mom into driving him and his guns into the heart of the civil unrest. The 17-year-old shot three protesters, killing two of them during an altercation. Rittenhouse then walked past Kenosha cops back to his mom's car and went home. He turned himself in to Illinois law enforcement and is now facing multiple charges, including first-degree intentional homicide.

Facebook's involvement is limited to the pages and groups it hosted. The "Kenosha Guard" page and its call for violence against protesters was reported nearly 400 times. Facebook refused to take it down. At one point, it claimed it had removed it but that statement was later shown to be false. The "call to arms" post had been removed voluntarily by its creator, Kevin Mathewson, shortly after the shooting in Kenosha. (Mathewson and Rittenhouse are also being sued.) Facebook CEO Mark Zuckerberg later called this failure to remove the reported page an "operational mistake."

When tragedies happen, lawsuits follow. But just because obvious and ample damage has been inflicted on the plaintiffs (the lead plaintiff's boyfriend was killed by Kyle Rittenhouse) doesn't mean there's recourse available, unfortunately. Arguing that Facebook is liable for violence perpetrated by so-called "Kenosha Guard" members (and remember, Rittenhouse was not a member of this Facebook group) is a non-starter. Section 230 shields Facebook from being held responsible for third-party content and its failure to remove a page users complained about isn't evidence of negligence. (And the decision to list the "Boogaloo Bois" as a defendant is every bit as ridiculous as one cop's attempt to sue "Black Lives Matter" and a Twitter hashtag.)

But those are the arguments being made in this lawsuit [PDF].

With regard to Defendant Facebook, there were over 400 reports of the violent rhetoric taking place on the Kenosha Guard event page, establishing Facebook had ample knowledge of the conspiracy. Removing this page from its platform would have greatly aided in preventing the organization and popularization of the militias. Perhaps, if Facebook had taken down the page in accordance with its policies, Rittenhouse would never have traveled to Kenosha. Nonetheless, Facebook neglected to prevent the furtherance of the conspiracy, in violation of its duties enumerated in 42 U.S.C. § 1986.

"Perhaps" is not a great legal argument -- not when you're trying to hold a content platform liable for the actions of site users who may or may not have actually been involved with the militia presence in Kenosha. Not only that, there still seems to be no link between Kyle Rittenhouse and the oft-reported "Kenosha Guard" page or its "Call to Arms" event.

This same theory is pursued under state law, where it might be a little more likely to survive a motion to dismiss.

In violation of Wisc. Stat. § 895.045 and the common law standard set forth in Wisconsin case law, Facebook breached its duty to stop the violent and terroristic threats that were made using its tools and platform. A duty consists of “the obligation of due care to refrain from any act which will cause foreseeable harm to others . . . . A defendant’s duty is established when it can be said that it was foreseeable that [the] act or omission to act may cause harm to someone.” Coffey v. Milwaukee, 74 Wis. 2d 526, 536 (1976) (internal citations omitted).

[...]

But for Facebook’s failure to respond to the complaints about the Kenosha Guard’s call to Arms and the co-conspirators’ violent rhetoric, the Kenosha Guard would not have been able to amplify its message and summon armed, untrained militia members to assault and terrorize Plaintiffs. As a result of this inaction, Facebook is liable for the harm its negligence caused.

This still requires the plaintiffs to prove Facebook was at least as negligent as those who actually posted violent rhetoric or engaged in violent acts or intimidation because of what they read on the "Kenosha Guard" page. But even a very charitable reading of the law would place most of the liability on those who engaged in the "call to arms" and those who responded.

Social media services have been sued under a variety of legal theories in hopes of holding them accountable for violent actions taken by their users. In almost every case, the social media services have prevailed. For better or worse, the legal obligations of platforms are minimal. Clearly illegal content must be removed. Everything else is at the platforms' discretion. Good faith moderation and bad faith moderation efforts are the same in the eyes of the law and the law -- primarily Section 230 of the CDA -- says platforms can't be sued because some users asked people to bring guns to a protest. And it can't be sued when one user does what's requested and kills someone.

This isn't to say Facebook should have ignored the posting more than 400 times. It's just saying there's a lot of legal distance to travel between Facebook being terrible at moderation and Facebook being responsible for a bunch of white dudes with guns doing stupid and harmful things.

And, if you just read the nonsense that the originating proposal put out there, and had no idea how Section 230, the internet, the 1st Amendment or the 4th Amendment works, it might sound like a good idea. Except that what the proposal says is utter nonsense, disconnected from reality.

This resolution states that the League of California Cities should urge Congress to amend Section 230 of the federal Communications Decency Act of 1996 (CDA) to limit the immunity provided to online platforms where their forums enable criminal activity to be promoted.

Ultimately, the policy objectives proposed under this resolution, if enacted, would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity.

Except that Section 230 already says there's no immunity for platforms if they enable federal criminal activity. So this is a made up concern. Second, if you changed 230 in the manner they want, they're simply wrong that it "would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity." Because every major social media platform already has such a program. The problem is not that they don't have incentives. The problem is that not everyone will ever agree on what the "right" moderation is.

Incredibly, the proposal handwaves away the idea that putting more liability on internet websites might lead to more censorship:

While there is certainly an argument to substantiate concerns around censorship, the use of social media as a tool for organizing violence is equally disturbing.

Tomato, tomahto.

Also, the proposal seems to blame violence that broke out at various protests this summer... on social media, claiming that's why 230 must change.

Although the majority of protests were peaceful, some demonstrations in cities escalated into riots, looting, and street skirmishes with police. While much of the nation’s focus has been on addressing police misconduct, police brutality, and systemic racism, some have used demonstrators’ peaceful protests on these topics as opportunities to loot and/or vandalize businesses, almost exclusively under the guise of the “Black Lives Matter” movement. It has been uncovered that these “flash robs” were coordinated through the use of social media. The spontaneity and speed of the attacks enabled by social media make it challenging for the police to stop these criminal events as they are occurring, let alone prevent them from commencing altogether.

As these events started occurring across the country, investigators quickly began combing through Facebook, Twitter, and Instagram seeking to identify potentially violent extremists, looters, and vandals and finding ways to charge them after — and in some cases before — they sow chaos. While this technique has alarmed civil liberties advocates, who argue the strategy could negatively impact online speech, law enforcement officials claim it aligns with investigation strategies employed in the past.

So, let me get this straight. First, we should blame social media -- and not police brutality and militarization -- for the cases where violence has broken out at a few protests. And the way to deal with violence organized on social media is to... hold the social media platforms liable rather than those that engaged in or encouraged the violence? Are these people for real?

Also, the full proposal goes way beyond what is described regarding violence at protests. This is what it says:

1. Online platforms must establish and implement a reasonable program to identify and take down content which solicits criminal activity; and
2. Online platforms must provide to law enforcement information which will assist in the identification and apprehension of persons who use the services of the platform to solicit and to engage in criminal activity; and
3. An online platform that willfully or negligently fails in either of these duties is not immune from enforcement of state and local laws which impose criminal or civil liability for such failure.

The second prong has nothing to do with Section 230 and raises significant 4th Amendment concerns about when a website should have to hand over private information on someone without any warrant or judicial review. That should be frightening to everyone.

This entire proposal is horrifically authoritarian, and is questionable on both 1st and 4th Amendment grounds, but a bunch of cities are signing onto it because the proposal is extremely misleading about how the internet works, how Section 230 works, and what this all means. While I'm not sure that Congress really gives a shit what the League of California Cities has to say about Section 230, it's yet another way in which people from all over the place are attacking the law that made the internet, because they're mad that people they don't like are doing stuff they don't like.

Thankfully, at least one California city has rejected the proposal. Last night the city of Hayward rejected the proposal, despite it getting support from the local police chief and the city attorney who, I'm told, used the totally bogus "fire in a crowded theater" line, suggesting that was the law of the land (it's not) and other wrong and misleading cliches, including "freedom of speech isn't free." Thankfully, some on the city council (and the mayor) seemed to recognize that this was a dangerous, half-baked proposal and voted it down. I hope other cities do the same.

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

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

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

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

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

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

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

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

Whether a jurisdiction disempowers or defunds police departments.

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

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

Any other related factors the Attorney General deems appropriate.

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

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

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

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

Aside from being harmful, there's increasing evidence that this kind of censorship simply doesn't work. A recent study in the International Journal of Communications took a closer look at what happened to protest movements in African countries when governments attempted massive censorship of the internet, and it found that while there wasn't evidence that such shutdowns drove greater unrest, there also was no evidence such behavior thwarted protests:

"For example, a social media blackout in Ethiopia in December 2017 “completely failed” to suppress protests caused by ethnic tensions in part of the country, the authors wrote. There was actually a surge in clashes during the shutdown itself. The study used data on the locations of protests and whether they were considered violent or not, but the researchers didn’t have access to detailed information on the number of demonstrators present or what form their online activity had taken prior to the internet shutdown or social media blackout.

Experts have been quick to note such censorship doesn't magically thwart the underlying grievances driving the protests, and creative protesters are likely to develop tools to bypass internet lockdowns anyway. In Belarus and countless other areas users most frequently simply migrate to VPNs to dodge the watchful eye of governments and their private sector allies like Sandvine (which, you'll recall, played a starring role in the early days of the net neutrality fights here in the States).

At the end of the day, experts are clear that internet crackdowns are the last resort of cowardly authoritarians, whose last option is to try and drive further unrest in the hopes it somehow plays into their hands:

"It’s often as a “last resort tactic” says Joss Wright, senior research fellow at the Oxford Internet Institute. But the strategy is also a crude one, he adds, noting that it can result in the spread of rumours and misinformation through other channels—with unpredictable consequences. Rydzak agrees: “It’s about creating an atmosphere of fear and uncertainty.” As a blunt demonstration of power, he adds, shutdowns may heighten the overall sense of chaos in a country or locality, creating a fluid situation that authorities may hope ultimately plays into their hands."

Except, again, there's no indication that's actually a successful tactic.

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

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

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

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

[...]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Greatest Intrusion. Well. OK then.

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

Supposedly sent to protect federal buildings targeted by Portland protesters, the DHS task force -- composed of CBP, ICE, and FPS officers -- rolled into Portland Gestapo-style, sending out unidentified officers to toss people into unmarked vehicles, spiriting them away to undisclosed locations to be subjected to detainment and interrogations that were never documented.

The DHS task force redefined riot police to include rioting federal police. Officers attacked press and legal observers with the same enthusiasm they attacked protesters with. Local journalists sued, obtaining a restraining order against federal agents… one the federal agents immediately violated.

Another lawsuit has been filed, this one accusing the DHS task force of violating the rights of protesters. The ACLU -- along with a number of other plaintiffs (including the "Black Millennial Movement") claims federal officers are deploying excessive force and engaging in unlawful detainments of participants in the ongoing Portland protests.

The complaint [PDF] opens up with a nice little dig at the Administration's unwillingness to properly staff its departments, reminding the court (and readers) the DHS still doesn't have a legally appointed director.

As part of a federal mission known as “Operation Diligent Valor,” spurred by President Donald J. Trump and directed by the purported Acting Director of the United States Department of Homeland Security (“DHS”) Chad Wolf, the federal government deployed more than a hundred federal law enforcement officers or agents employed by a variety of federal agencies in an alleged effort to “quell” the protests, which were occurring near the Mark O. Hatfield Federal Courthouse (the “Hatfield Courthouse”) in the center of Portland.

As befits an administration that likes the concept of "rule of law" as long as no one applies it to the administration, the DHS task force began violating laws and rights as soon as it set foot in Oregon.

Such federal law enforcement officials, heavily armed and clad in military-type camouflage or dark uniforms, indiscriminately used violent tactics on lawful protesters, including shooting them in the head and body with impact munitions and pepper balls, spraying them directly in the face with pepper spray, shoving them to the ground, hitting and beating them with batons, firing massive clouds of tear gas at them, and, in some instances, arresting and detaining them without any lawful basis.

All pretty unlawful. And that's if you accept the assumption that the DHS has the legal authority to perform duties normally performed by local law enforcement. And there's no reason you should accept that because [taps link discussing Chad Wolf's illegitimately obtained position].

“Operation Diligent Valor” was not legally authorized. Pursuant to 40 U.S.C. § 1315(a), the Acting Secretary of DHS has limited statutory authority to designate DHS employees to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government . . . and the persons on the property.” Defendant Wolf, however, had no such authority because he was not properly designated and serving as the Acting Secretary of DHS under the requirements of the Homeland Security Act of 2002, 6 U.S.C. § 113(g), and the Federal Vacancies Reform Act., 5 U.S.C. § 3348. As a result, he had (and still has) no authority whatsoever under 40 U.S.C. § 1315 and his designation of DHS officers pursuant to “Operation Diligent Valor” was null and void.

If the court chooses to believe Chad Wolf was legitimately appointed, this won't change much.

[E]ven assuming “Operation Diligent Valor” had been properly authorized, the DHS officers conducting the operation exceeded their limited powers under 40 U.S.C. § 1315, which does not allow making warrantless arrests or taking actions such as detaining individuals or suppressing protests in locations that are away from, or not required to protect, federal property.

The officers brought in to settle things down riled them up instead. They shot protesters in the face with "less lethal" munitions, flooded the streets with tear gas whether or not the situation demanded extreme crowd control, expanded their "perimeter" far past the federal buildings they were supposed to protect, and snatched people off the streets (and, sometimes, right out of their vehicles).

The DHS task force also ignored local politicians' demands they leave the city and allow the Portland Police to handle ongoing protests. An agreement was reached between the Trump administration and the governor of Oregon for federal officers to leave downtown Portland. They didn't.

DHS confirmed that although federal officers had not interfered with peaceful protesters during the preceding days, “[t]here has been no reduction in federal presence; federal law enforcement officers remain in Portland at augmented levels.” “[T]he increased federal presence in Portland will remain until [DHS] is certain that federal property is safe.”

[...]

On August 7, 2020, OPB also reported that federal officials speaking off the record said that some of the forces might be drawn down, depending on how the weekend went, but an elevated force would likely remain in Portland through the November election.

Here's a sampling of the abuse suffered by Portland protesters under the purported command of Chad Wolf's DHS:

Federal officials were clearing nonviolent protesters in SW Third Avenue immediately in front of the Hatfield Courthouse, some 15 to 20 yards away from where Mr. Smiff was standing. Mr. Smiff was approximately 10 feet away from any other protesters. When Mr. Smiff looked down at his phone to send a tweet, he was shot in the right side of his face with an indelible hard-cap paintball, just below the line of his helmet and just above a face mask he was wearing.

[...]

On July 24, 2020, she was personally subjected to such unlawful tactics when she had a tear gas cannister hurled into her head, causing a three-inch gash to her forehead that ultimately required 11 stitches. Ms. Denison had come to the protests that evening as a member of the Wall of Moms, an unincorporated association with a mission to support Black Lives Matter, and to protect protesters supporting Black Lives Matter from being subject to excessive use of force by the federal government.

[...]

Mr. David then attempted to ask the officers what they were doing and why they were not honoring their oath to support the Constitution. The officers did not verbally respond or instruct Mr. David to move, but one of the officers trained his firearm on Mr. David’s chest and then lowered it, after which another officer plowed into Mr. David to knock him back.

Mr. David stumbled backwards in the street to recover his balance. Two federal officers then approached Mr. David, one after the other, and struck him with their batons while one of them deployed a canister of chemical irritant spray directly into Mr. David’s face. Mr. David was able to knock the cannister away in self-defense only to have another officer approach and spray him in the face again.

[...]

A flash-bang grenade then went off at Mr. McNulty’s feet, and the area began to fill with tear gas, which was blowing towards Mr. McNulty. To escape from the tear gas, Mr. McNulty moved through the intersection of Main Street and SW Third Avenue, crossing in front of the federal officers. As he crossed the intersection, his eyes and face began to burn. The federal officers then shot Mr. McNulty four times: three times with rubber bullets and one time with a pepper ball. He was given no warning and was not disobeying any orders or engaging in any violence before he was shot.

Mr. McNulty was bleeding, in considerable pain, and unable to move easily. He sought out volunteer medics who could assist him. The medics provided Mr. McNulty with short-term treatment and sent him to a hospital emergency room. At the emergency room, Mr. McNulty learned that one of the munitions that struck him in the back had not only gone through his clothes, but pierced his skin, fat layer, and at least one layer of muscle. The wound was severe enough that Mr. McNulty had to have a CT scan to confirm that it had not punctured his peritoneal cavity.

The ACLU and other plaintiffs are asking the court to find federal officers violated the rights of protesters by subjecting them to excessive force and curtailing their ability to protest peacefully. The ACLU is also wants the court to compel the release of records related to the unlawful arrest of one of the plaintiffs, which includes anything accessed by officers on the phone they seized during his arrest.

The federal government's interlopment in Portland has been 100% ugly. And it's been encouraged by the Commander-in-Chief, someone who appears to feel the "rule of law" should be applied rapidly and harshly against those questioning decades of abuse at the hands of law enforcement.

Not that granting the restraining order did much to prevent federal officers from beating journalists with batons, spraying them with pepper spray, or making sure they weren't left out of any tear gassings. The plaintiffs were soon back in court seeking sanctions against federal violators of the order. The DHS said it couldn't identify any of the officers and stated it had punished no one for violating the order. This prompted the judge to add more stipulations to the order, including the wearing of identification numbers by officers engaging in riot control.

Unfortunately for journalists and legal observers, the restraining order is no longer in place. It was rolled back by the Appeals Court in a very short order [PDF] with the court finding that a blanket order protecting journalists and observers from being assaulted makes things too tough for federal cops. (via Courthouse News)

Based on our preliminary review, appellants have made a strong showing of likely success on the merits that the district court’s injunction exempting “Journalists” and “Legal Observers” from generally applicable dispersal orders is without adequate legal basis. Given the order’s breadth and lack of clarity, particularly in its non-exclusive indicia of who qualifies as “Journalists” and “Legal Observers,” appellants have also demonstrated that, in the absence of a stay, the order will cause irreparable harm to law enforcement efforts and personnel.

DHS personnel will still have to comply with the stipulation of the now dead restraining order requiring them to ID themselves:

This order does not disturb the portion of the district court’s August 20, 2020 order directing the parties to confer regarding identifying markings…

The equally short dissent disagrees. The restraining order has been in place for more than a month at this point and the federal task force hasn't found itself unable to engage in crowd control and riot suppression efforts.

In light of the deferential review accorded to the district court’s factual finding at this stage, the district court’s extensive factual findings with respect to journalists and legal observers, including the finding that the injunction would not impair law enforcement operations to protect federal property and personnel, and the fact that a temporary restraining order has been in place since July 23, 2020, the government has failed to meet its burden to demonstrate either an emergency or irreparable harm to support an immediate administrative stay.

This will be appealed. And it may end up being something the Supreme Court will feel like addressing. There's a question that needs to be answered since the future will contain plenty of protests and plenty of people covering them. This was how the district court judge explained it in an earlier hearing:

Simon initially said at a hearing Tuesday that the question of whether journalists have different rights under the First Amendment than those of protesters, who legally must leave an area after a riot has been declared, was likely to end up before the U.S. Supreme Court.

But Judge Simon took a pass on that question in his decision -- the one now rejected by the Appeals Court.

Someday, a court may need to decide whether the First Amendment protects journalists and authorized legal observers, as distinct from the public generally, from having to comply with an otherwise lawful order to disperse from city streets when journalists and legal observers seek to observe, document, and report the conduct of law enforcement personnel; but today is not that day.

With this rejection by the Appeals Court, that "someday" may be much closer than it was a little more than a week ago, when journalists and observers were still shielded from being assaulted by federal officers. The gloves are off now and federal agents are free to treat them like the rest of the crowd when deploying force.

The problem: the app is a security and privacy mess, and the company has known since April, yet it's still marketing the app as great for protesters.

A new research study, first spotted by Ars Technica, found that the app suffers from numerous vulnerabilities that could actually put protesters at risk:

"Though it is advertised as “safe” and “private” and its creators claimed it was secured by end-to-end encryption, none of aforementioned use cases can be considered as taking place in adversarial environments such as situations of civil unrest where attempts to subvert the application’s security are not merely possible, but to be expected, and where such attacks can have harsh consequences for its users. Despite this, the Bridgefy developers advertise the app for such scenarios and media reports suggest the application is indeed relied upon."

More specifically, the researchers reverse engineered the app and found they could create attacks allowing them to decrypt and read direct messages, "de-anonymize" users, impersonate users, track a target's movement, subject users to man in the middle attacks making it possible to change message content, and even shut down the network:

"Moreover, we utilise compression to undermine the advertised resilience of Bridgefy: using a single message “zip bomb” we can completely disable the mesh network, since clients will forward any payload before parsing it which then causes them to hang until a reinstallation of the application. Overall, we conclude that using Bridgefy represents a significant risk to participants of protests."

Much of the problems stem from the fact that Bridgefy provides no means of cryptographic authentication, instead relying on a userID transmitted in plaintext. Users can then obtain this data while in local transit over the air, opening the door to impersonation and all manner of additional attacks.

The company was advised of the myriad of problems with its app back in April. And while it says it's taking steps to address many of them (including revamping the system internals to utilize the Signal protocol), and making it a little bit more clear to users that the app does not feature true end-to-end encryption, the company continues to advertise the idea it's a great tool for protesters. From Ars:

"But the company continues to send mixed messages. The App Store and Play Store promotions mentioned earlier give the impression Bridgefy can be trusted to keep messages private, even though it has been clear to the company since April that they can’t. Tweets that continue to refer to mass protests and welcome activists using the app are another example."

Belated responses, no responses, or hostile responses to security researchers is common in the United States, where we like to talk a lot about privacy and security protection in marketing and speeches, but not practice it. So while it's good Bridgefy acknowledged the flaws and even thanked the researchers in a statement, the company's decision to continue marketing the app as perfect for protesters is actively exposing those users to surveillance, arrest, and potentially worse.

The first major problem created by the Court has been discussed here quite frequently. Qualified immunity was created by the Supreme Court in 1967 as a way to excuse rash decisions by law enforcement if undertaken in "good faith." Since then, it has only gotten worse. Fifteen years later, the Supreme Court added another factor: a violation of rights must be "clearly established" as a violation before a public servant can be held accountable for violating the right. Further decisions moved courts away from determining whether or not a rights violation took place, relying instead on steadily-decreasing precedent showing this violation was "clearly established."

The Supreme Court continues to dodge qualified immunity cases that might make it rethink the leeway it has granted to abusive cops. Plenty of people have taken note of this, including federal court judges.

But that's not the only way the general public is being screwed by SCOTUS. As Kia Rahnama points out for Politico, the right to freely assemble -- long-considered an integral part of the First Amendment -- continues to be narrowed by the nation's top court. As violence against demonstrators increases in response to ongoing protests over abusive policing (enabled by qualified immunity's mission creep), those participating in the violence feel pretty secure in the fact they'll never have to answer for the rights violations.

For more than 30 years, the Supreme Court has failed to take up a freedom-of-assembly case. As a result, this fundamental constitutional right is in sore need of an update, such as a ruling that would protect protesters from the unduly harsh police response that has become all too common as a response to demonstrations in recent years.

It's not that freedom of assembly is novel -- something newly-constructed by court rulings. It's been around since the creation of the Constitution. The founders recognized the fact a group of aligned people had more chance of effecting change than separate individuals. But, as Rahnama points out, the Supreme Court has not taken up a case involving freedom of assembly in more than fifty years, allowing this right to be subject to decisions more than century old that limited speech in favor of protecting companies from their employees.

The Supreme Court shirked this responsibility first by holding that the right to assembly did not protect anything like the right to protest in the streets, beginning with a formative ruling in 1886. At the time, labor unrest and revolt were widespread, and many state governments were passing laws aimed at preventing potential insurrections by workers’ organizations.

The court said that if groups of people wanted to seek redress for their grievances, they were welcome to form political groups or engage in lobbying. The right to protest went from "established" to "only in some cases."

It's not that the court doesn't recognize the chilling effect created by government actions taken against speech and speakers they don't care for. It does. But it has refused to apply this theory to excessive force and overbearing crowd control tactics that are far more violent than they need to be.

The courts’ failure to update Americans’ understanding of the freedom of assembly has given law enforcement free rein to deploy strategies that increasingly have the potential to deter future participation in protests. This is nowhere more evident than in the type of the cases that make their way to the courts. Whereas 10 years ago the courts had to decide whether NYPD’s use of mounted police that frequently stepped on protesters’ feet was objectionable (they decided that it was not), today they hear cases about armies of special forces equipped with riot gear, chemical weapons and other top-level military-grade weaponry. Every step of this transformation in policing crowds has been fueled by the courts’ refusal to rein in the proclivity for an increasingly stronger show of force.

The fewer cases the court is willing to hear, the less precedent there is preventing law enforcement from engaging in violence against protesters, whether it's the indiscriminate use of tear gas or the direct targeting of protesters with "non-lethal" munitions that still have the capability to seriously injure.

The court has spent years refusing to rein this in. The end result of its inactivity is being observed around the nation as protests are greeted with paramilitary shows of force. By the time the court gets around to addressing this, it will be too late for those on the receiving end of this violence. No right to be free from tear-gassing and rubber bullets will have been clearly established.