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Posted on Techdirt - 10 February 2021 @ 9:31am

Latest Anti-Accountability Move By Cops Involves Playing Music While Being Recorded In Hopes Of Triggering Copyright Takedowns

from the twist-I-did-not-see-coming dept

Cops tend to dislike being recorded. They don't care much for their own recording devices. They routinely disable equipment or conveniently "forget" to activate body cameras.

And they dislike the recording devices everyone carries with them at all times: cellphones. Cellphone ubiquity means it's almost impossible for cops to prevent an incident or interaction from being recorded. Add these devices to the steadily-increasing deployment of internet-connected security cameras and there's really nowhere to hide anymore.

Simply shutting down recordings or arresting citizens for pointing cameras at them is a very risky option. There's tons of case law on the books that says recording public officials is protected First Amendment activity. So, cops are getting creative. Some of the less creative efforts include shining bright flashlights at people holding cameras in hopes of ruining any footage collected. Sometimes officers just stand directly in front of people who are recording to block their view of searches or arrests taking place. Often the excuse is "crowd control," when it's actually just an attempt at narrative control.

Now, here's the latest twist: cops have figured out a way to prevent recordings from being streamed or uploaded to social media services or video platforms like YouTube. Believe it or not, it involves a particularly pernicious abuse of intellectual property protections.

Sennett Devermont was at the [Beverly Hills police] department to file a form to obtain body camera footage from an incident in which he received a ticket he felt was unfair. Devermont also happens to be a well-known LA area activist, who regularly live-streams protests and interactions with the police to his more than 300,000 followers on Instagram.

So, he streamed this visit as well—and that’s when things got weird.

In a video posted on his Instagram account, we see a mostly cordial conversation between Devermont and BHPD Sgt. Billy Fair turn a corner when Fair becomes upset that Devermont is live-streaming the interaction, including showing work contact information for another officer. Fair asks how many people are watching, to which Devermont replies, “Enough.”

Fair then stops answering questions, pulls out his phone, and starts silently swiping around—and that’s when the ska music starts playing.

Fair boosts the volume, and continues staring at his phone. For nearly a full minute, Fair is silent, and only starts speaking after we’re a good way through Sublime’s “Santeria.”

That's the angle: copyright infringement. By loading up someone else's recording with copyrighted music, officers like this one can nuke a livestream as it's happening or, at the very least, get the user loaded up on copyright strikes once the AI has scanned the recording. (If they really wanted to be evil, the officer could also file a bogus DMCA notice targeting the recording.)

Sure, it's not guaranteed to destroy a recording, but it's a great way to ruin one even if the copyright bots don't decide it's infringement. As Dexter Thomas points out at Vice, Instagram's rules allow for incidental music that happens to be in a video, rather than the primary purpose of the video. But that allowance isn't available on all platforms, so cops like this jerk are more than happy to roll the IP dice and hope for the best. And there's no guarantee the AI running copyright patrol on Instagram won't decide a cop's personal jukebox outweighs the non-infringement surrounding it.

This isn't the only time this has happened to Devermont. Another officer pulled out the IP big guns during an interaction with him.

By the time Devermont is close enough to speak to him, the officer’s phone is already blasting “In My Life” by the Beatles — a group whose rightsholders have notoriously sued Apple numerous times.

Now that this is in the news, we can expect it to pop up elsewhere. There are a lot of officers out there not nearly as creative as these two Beverly Hills cops, but who will be willing to follow the bad example they're setting. If nothing else, it will ruin recordings by filling them with the tinny tone of cellphone-blasted tunes. At worst, it will lead to a cascade of copyright strikes that will see these cop accountability activists banished from popular platforms.

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Posted on Techdirt - 9 February 2021 @ 3:29am

Canadian Privacy Commission Says Clearview's App Is Illegal, Tells It To Pack Its Things And Leave

from the pics-and-GTFO dept

Clearview has screwed with the wrong people. The reprehensible facial recognition AI company that sells access to its database of scraped photos and personal info managed to raise the ire of some of the most restrained and polite people in the world, as Kashmir Hill reports for the New York Times.

The facial recognition app Clearview AI is not welcome in Canada and the company that developed it should delete Canadians’ faces from its database, the country’s privacy commissioner said on Wednesday.

“What Clearview does is mass surveillance, and it is illegal,” Commissioner Daniel Therrien said at a news conference. He forcefully denounced the company as putting all of society “continually in a police lineup.”

Clearview does appear to violate Canadian privacy laws, which require consent before using personal data. This was the impetus for a yearlong investigation of Clearview by Canadian privacy commissioners. The company claimed its offering was legal because it only utilized publicly available data scraped from dozens of social media sites. The commission disagreed.

“Information collected from public websites, such as social media or professional profiles, and then used for an unrelated purpose, does not fall under the ‘publicly available’ exception,” according to the report.

Clearview is going to court over this determination, saying it does nothing Google doesn't do and yet Google is still allowed to operate in Canada. Fair point, I guess, but Google doesn't appear to be selling government agencies access to billions of pieces of personal info for them to paw through at their leisure.

And Canadian law enforcement agencies are using Clearview to do just that. The commission noted that "thousands of searches" have been performed by dozens of agencies, including the Royal Canadian Mounted Police. Of course, this doesn't appear to be making Clearview much money. Only one agency actually paid for access. The rest of the "thousands" of searches were performed using trial accounts -- the ones Clearview encourages to "go wild" testing the AI by running it on pictures of friends, families, and anyone else they've got a picture of.

Clearview has already stopped selling access to the Canadian market, but that's not going to fix things. Clearview can control who it provides access to but it's going to have a much more difficult time determining who's in its database. If the illegality finding holds up, Clearview will need to delete information pertaining to Canadian residents. Finding Canadians in a database with billions of data points is something Clearview's AI can't handle, especially since it's much more difficult to determine whose information belongs to who when you've thrown it all into a big pile that's only expected to deliver matches to uploaded photos.

In the meantime, Clearview is offering Canadians the chance to opt out. All they have to do to be removed from Clearview's database is provide the company with personal information it may not have already collected. And then Canadians are asked to trust a company that's acted extremely carelessly and obnoxiously to follow through with its end of the bargain, rather than just add this new information to its existing stash.

For now, Clearview is merely facing the anger of Canadian regulators. There's really no legal force behind the commission's damnation. Not at the moment. But it could change in the future and it would make sense for Clearview to walk away from the mostly untapped Canadian market before it generates laws and legal precedent that would act as a blueprint for bans/removals in other countries.

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Posted on Techdirt - 8 February 2021 @ 7:59pm

Appeals Court Tells Lying Cop No 'Reasonable' Officer Would Think It's OK To Tear Gas Journalists For Performing Journalism

from the pretty-much-as-clearly-established-as-something-can-get dept

For some reason, we, the people, keep having to shell out cash to employ a lot of unreasonable law enforcement officers.

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.

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Posted on Techdirt - 8 February 2021 @ 1:32pm

Amazon Transparency Report Indicates Its Multiple IoT Devices Are Juicy Targets For Law Enforcement


Never forget the IoT device you invite into your home may become the state's witness. That's one of the unfortunate conclusions that can be drawn from Amazon's latest transparency report.

Amazon has its own digital assistant, Alexa. On top of that, it has its acquisitions. One of its more notable gets is Ring. Ring is most famous for its doorbells -- something that seems innocuous until you examine the attached camera and the company's 2,000 partnerships with law enforcement agencies.

Ring is in the business of selling cameras. That the doorbell may alert you to people on your doorstep is incidental. Cameras on the inside. Cameras on the outside. All in the name of "security." And it's only as secure as the people pitching them to consumers. Ring's lax security efforts have led to harassment and swatting, the latter of which tends to end up with people dead.

Malicious dipshits have been using credentials harvested from multitudinous breaches to harass people with Ring cameras. The worst of these involve false reports to law enforcement about activity requiring armed response. That no one has ended up dead is a miracle, rather than an indicator of law enforcement restraint.

Ring wants you to hand over footage to law enforcement agencies. That's why it partners with agencies to hand out cameras for free and instructs officers how to obtain footage without a warrant. That's also why it stays ahead in the PR game, handling press releases and public statements it feels law enforcement officials are too clumsy to handle on their own.

And gather footage law enforcement does, as Zack Whittaker reports for TechCrunch. Omnipresent IoT devices give law enforcement plenty of recordings and other information -- with or without the consent of device owners and with or without the warrants they would normally need.

Amazon said it processed 27,664 government demands for user data in the last six months of 2020, up from 3,222 data demands in the first six months of the year, an increase of close to 800%. That user data includes shopping searches and data from its Echo, Fire and Ring devices.

While it's good to see warrants were involved in a majority of these cases, the unfortunate fact is a lot of this isn't considered protected under the Fourth Amendment and can be obtained with nothing more than a subpoena. Third party data isn't -- for the most part -- shielded by the Constitution.

The silver lining is that someone is likely to challenge warrantless acquisition of footage or data. The third party doctrine isn't as immutable as it used to be and federal courts have been interpreting the Supreme Court's Carpenter decision (which dealt with long-term tracking via cell site location info) to cover more than the justices originally envisioned when they handed down their ruling.

Even so, consumers should be aware that their internet-connected devices are generating a wealth of information about their habits, movements, and the people they associate with. And a lot of it can be had without judicial oversight. These devices are useful but they're also low-level informants. And anyone who invites Ring or Alexa into their home needs to be aware of their downsides and weigh that against the security or convenience they gain from having an always-on, internet-connected snitch. Those who feel they have nothing to hide may be unpleasantly surprised in the future.

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Posted on Techdirt - 5 February 2021 @ 12:12pm

Smartmatic Sues Two Trump Lawyers And Three Fox News Hosts For $2.7 Billion-Worth Of Defamation

from the putting-a-price-tag-on-months-of-dipshittery dept

Another day, another multi-billion dollar defamation lawsuit. And like the other lawsuits filed over frothy falsehoods that emerged from the spittle-flecked lips of Trump lawyers and supporters, this one also targets people who definitely should have known better than to engage in the speech they did.

Smartmatic -- a voting tech company whose name was dragged into the mud by a number of Fox News personalities and Trump legal team members -- is suing three Fox News hosts and two lawyers. Media members and lawyers should definitely know how to stay away from engaging in alleged libel. But everyone sued here (Rudy Giuliani, Sidney Powell, Lou Dobbs, Maria Bartiromo, and Jeanine Pirro) abandoned their better instincts to wallow in the lowest-common-denominator toxicity that exemplified Trump's response to losing a national election.

And Smartmatic had hardly anything to do with the national election. While Dominion Voting Systems -- another post-election libel litigant -- is in use in nearly half the nation, Smartmatic's software was used in one single county in the US during the 2020 election.

But conspiracy theorists gotta theorize. So this group of morons in hurry to curry favor with Trump amplified a bizarre claim that Smartmatic was a tool of deceased Venezuelan dictator Hugo Chavez. In reality, Smartmatic is an American company founded by two Venezuelans. Its software was used by the Venezuelan government, but there's absolutely no evidence the company itself engaged in any voter fraud, vote switching, or anything other illegal behavior Hugo Chavez's government participated in.

The company's 285-page(!) lawsuit [PDF] lays down the facts. A lot of the lawsuit's runtime is given over to recounting the lies told by the two Trump lawyers and three Fox News hosts. Because the lying has been pretty much nonstop since last November, the filing is necessarily lengthy. Much of it highlights statements that were delivered by the defendants that made it clear they were stating facts, rather than simply offering their opinion on perceived election irregularities.

It also points out a long list of facts that would have been verifiable if any of the defendants had felt the slightest inkling to engage in the truth for a change.

Smartmatic’s election technology and software were not widely used in the 2020 U.S. election. They were only used in Los Angeles County.  

Smartmatic’s election technology and software were not used by Dominion during the 2020 U.S. election. The companies are competitors.  

Smartmatic’s election technology and software were not used to steal the 2020 U.S. election. Nor could they have been, given that Smartmatic’s role was limited to Los Angeles County.  

Smartmatic’s election technology and software did not send votes to foreign countries for tabulation and manipulation during the 2020 U.S. election. The votes were tabulated in Los Angeles County.  

Smartmatic’s election technology and software were not compromised and hacked during the 2020 U.S. election. No one has identified a shred of evidence that there were cyber-security issues in Los Angeles County.  

Smartmatic has not been banned from being used in U.S. elections. Other election technology companies may have been banned but not Smartmatic.  

Smartmatic is not a Venezuelan company and was not founded and funded by corrupt dictators from socialist and communist countries. Smartmatic USA Corp is based in Florida, and its parent company is based in the United Kingdom. No dictators – corrupt or otherwise, from communist/socialist countries or otherwise – were involved in founding or funding the company. Smartmatic’s election technology and software were not designed to rig and fix elections.

Smartmatic’s election technology and software were designed for security, reliability, and auditability. No after-the-fact audit has ever found that Smartmatic’s technology or software were used to rig, fix, or steal an election.

At the end of all of this, there's a $2.7 billion damage demand. This is mostly performative and Smartmatic still has an uphill battle. Truth is the best defense against libel claims but none of these defendants have that option. But they can still bat away this lawsuit by showing the court no one really takes them seriously as pontificators or legal advisors. Admitting they're nothing more than idiots in the entertainment business might be tough on their egos but it's far less expensive than being forced to admit they knew they were lying or, at best, unwilling to vet any of these wild-ass claims before airing them publicly.

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Posted on Techdirt - 5 February 2021 @ 9:34am

Court Says Lawsuit Over CBP Searches Performed 90 Miles From The Border Can Proceed

from the prepare-to-be-discovered,-CBP-officers! dept

An ongoing federal lawsuit is challenging the CBP's decision to turn supposed border control efforts into easy drug busts for local cops.

A New Hampshire man is challenging the checkpoints set up by the CBP nearly 100 miles from any border in New Hampshire. The CBP apparently decided to spend a couple of years camped out on I-93 (from 2017 to 2019), 90 miles away from the nearest border.

The 90 mile marker is significant. Anything within 100 miles of a US border is still considered a "border" (even if it's an international airport located further than 100 miles inland from any natural border). Inside this Constitutional gray area, rights are malleable. In many cases, they're almost nonexistent. But the challenge raised here addresses what the CBP is doing and how it has nothing to do with any border protection or customs efforts.

Jesse Drewniak has sued the CBP, along with an agent and supervisor, for an apparently unlawful search that resulted in a small amount of hash oil being recovered from his car and, more significantly, some criminal charges from local prosecutors.

Drewniak's case cites a New Hampshire court's decision [PDF] that found in favor of another person caught in the CBP's inland dragnet. As cars waited to be cleared by CBP officers, other officers ran dogs around their cars. Alerts resulted in searches. And these searches often resulted in drug cases handed over to local law enforcement.

As the New Hampshire court points out, this violates New Hampshire's constitutional protections. And it has nothing to do with the CBP's stated reasons for setting up a checkpoint 90 miles from the Canadian border. Here's what happened at the inland checkpoint in 2018, which was apparently the CBP's standard M.O. for the two years the checkpoint remained active.

The defendants' vehicles were searched by the CBP at the secondary processing area resulting in discovery of illegal controlled substances. That contraband was then turned over to the WPD, which resulted in these prosecutions. None of these searches or seizures was sanctioned by a warrant. As a result of these searches, forty-four individuals, including the defendants in these cases, were charged with possession of small amounts of controlled substances - mostly marijuana.

But this was not why the checkpoint was set up. The CBP claimed it was to find individuals smuggling in Canadians (??!?!?).

The CBP agents testified that the primary purpose of the searches at the checkpoints was to discover human beings that had entered or remained in the United States illegally.

But that's not what the CBP spent its time doing. And that's not what it told local law enforcement when it first erected its checkpoint. Instead, it collaborated with law enforcement to set it up with easy drug busts and excuses for warrantless searches.

They were aware of the fact that the United States Attorney would not prosecute individuals for small amounts of drugs even before they set up the checkpoints. They then reached out to State law enforcement to ascertain whether they would prosecute the drug charges. From the facts of the instant cases it is patently clear that the primary purpose of WPD being present at the checkpoint in August to accept the illegal drugs confiscated by the CBP searches in order to prosecute the defendants on state drug charges. CPB Officer Labaff testified that the WPD, "was there to take the marijuana that was seized." It also appears that there were times when the WPD actually seized the contraband from the defendant's vehicle. Officer Labaff testified that if a local law enforcement officer was not able to take possession of the confiscated illegal drugs that evidence would have been transported to a federal processing center with no criminal charges filed. In addition to taking possession of the evidence the WPD performed other functions such as traffic control or supervision of the detainees. The Court finds that the State and federal authorities were absolutely working in collaboration with each other. The CBP agent in charge of the checkpoint operations, Paul F. Kuhn, wrote to the Woodstock Chief of Police, Ryan Oleson, "Without you folks we would have been hamstrung."

As the court noted then, this is impermissible. Federal agencies aren't supposed to abuse their constitutional exceptions to discover evidence local law enforcement wouldn't be able to obtain without violating rights. The CBP has almost no restrictions when it comes to searches within the "Constitution-free" zone. However, any similar suspicionless searches by local law enforcement would result in Fourth Amendment violations. For the CBP to run drug dogs around cars (supposedly to search for smuggled individuals) and turn over any "alerts" to local cops is basically laundering rights violations to give locals "clean" searches and seizures. The court says this is the "reverse silver platter" (the opposite of the "silver platter" therory: i.e., someone agreeing to search every computer they repair and turn over anything suspicious to law enforcement so investigators can avoid warrant requirements by abusing the "private search" exception). In this case, the CBP used border search exceptions to discover drug violations that locals then acted on.

The CBP knew this was wrong. The Supreme Court itself said otherwise.

In City of Indianapolis v. Edmund, the United States Supreme Court argued that the primary purpose of a motor vehicle checkpoint cannot be the random detection of criminal activity such as drug detection.

That's why CBP agents talked to local cops first and secured their cooperation. This greased the constitutional violation wheel. And things took off from there.

The New Hampshire court called the CBP out on its bullshit.

The testimony of the CBP officers revealed that there were numerous, "non-productive alerts," by the dogs at the checkpoints which extended the duration of the stops for those individuals but resulted in no evidence of a crime being found. The primary purpose of detecting illegal aliens could have, in most cases, been accomplished by a mere visual inspection of the interior of the vehicle and a brief interrogation of its occupant(s ). If those measures then resulted in a reasonable articulable suspicion of criminal activity then the dog searches would have been warranted. In fact, the testimony of the CBP officers revealed that no "concealed humans" were found.

And any time the CBP claims it's setting up an inland checkpoint to search for smuggled humans (especially near the northern border), everyone should know it's bullshit.

CBP Officer Qualter testified that he has never located a "concealed human" in a motor vehicle in his seventeen years of service.

The court found in favor of the drug defendant, ruling the CBP's use of drug dogs to find violations for the locals to prosecute was illegal under New Hampshire law, if not under the US Constitution itself. That ruling -- handed down last August -- has paid off. The current federal lawsuit moves forward. And the CBP is forbidden from engaging in this unconstitutional bullshit until the federal court has a chance to examine the merits of the case.

Officer Qualter wants the court to forbid discovery in this case, presumably because he's failed to discover a single concealed human no matter how many unlawful checkpoints he's worked at. His argument -- what there is of it -- says his attempt to raise a qualified immunity defense might be harmed if the plaintiff was able to discover further facts about his work with the CBP.

LOL. Maybe so. But the court points out [PDF] lots of precedent saying discovery is allowable in these cases. Qualified immunity might be a shield against accountability but it's not an all-purpose tool that can be wielded to disrupt the normal progress of litigation. While it does offer a quick escape from some lawsuits, it's not something that can be used to escape further examination of facts when warranted. Qualter's motion has been denied, along with his presumption he'd be able to press the QI eject button prior to the plaintiff's request for more (presumably damning) information on Qaulter's CBP work. The order is denied

The CBP can continue to abuse its power to protect the border. But it shouldn't be blowing tax dollars on helping local law enforcement dodge constitutional protections. That's what it appears to have been doing in New Hampshire. And if it's doing it there, it's doing it elsewhere.

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Posted on Techdirt - 3 February 2021 @ 1:44pm

Federal Court Orders Destruction Of Illegally-Obtained Sex Trafficking Sting Recordings

from the no-sex-traffickers-were-harmed-during-the-course-of-this-investigation dept

The expiring breaths of a sensationalistic failure are emanating from a Florida sex trafficking investigation's soon-to-be corpse. A massive sting operation -- built on surreptitious recordings of massage parlor employees and their customers -- ended with nothing more than a bunch of solicitation charges. The alleged massive sex trafficking operation was actually just a bunch of consensual activity, with massage parlor employees free to come and go as they pleased.

It still made headlines, mainly because New England Patriots owner Robert Kraft was one of those caught on camera. But nearly every attempted prosecution has been thwarted by the actions of law enforcement officers, whose recordings illegally intruded into private spaces, violating the Fourth Amendment. The Appeals Court of Florida tossed the allegedly incriminating recordings, finding them unconstitutional.

For some reason, the agencies that made the surreptitious, illegal recordings are still holding onto them. The state attorney's office has allowed the retention of the videos, claiming they might be useful to plaintiffs suing law enforcement officers and agencies over violated rights.

On the face of it, this seems like a reasonable assertion. There is at least one federal lawsuit involving this sting operation underway. But the state attorney -- David Aronberg -- thinks immunity (qualified or absolute) will allow him and several law enforcement agencies to escape unscathed. Until that happens, Aronberg wants the recordings to remain intact until this litigation concludes, claiming his office can't "legally or ethically" order the destruction of potential evidence against him.

But his arguments aren't working. As Elizabeth Nolan Brown reports for Reason, a federal judge has ruled against the state attorney.

In his January 22 order, Ruiz granted John Doe's motion to compel destruction of the massage room video. Ruiz ruled that the defendants "shall destroy the videos unlawfully obtained through the surveillance of the Orchids of Asia Day Spa […] from January 18, 2019 to January 22, 2019, including any body camera footage obtained during associated traffic stops as well as any copies thereof."

The motion to compel destruction was unopposed, and Ruiz noted that the destruction is "pursuant to the terms of the parties' settlement agreement."

So, let's sort this all out. The state attorney claimed the footage needed to be retained because these plaintiffs might want to use it as evidence in their lawsuit. But the plaintiffs actually wanted the footage destroyed and had to get the court to order the destruction the state attorney claimed wasn't "legal or ethical."

Retaining the footage plaintiffs wanted destroyed was, at the very least, unethical. And this order makes any further retention illegal. It would have seemed apparent destruction was the right way to go unless the plaintiffs requested otherwise, given that the state appeals court ruled last year that the recordings were illegally obtained and could not be used as evidence in the state's prosecutions.

This about wraps up this sordid little law enforcement escapade. And another sex trafficking sting resulting in the arrest of zero sex traffickers is par for the course for law enforcement agencies which appear to be looking for any excuse to engage in titillating wastes of taxpayers' time and money.

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Posted on Techdirt - 2 February 2021 @ 3:37pm

After Years Of Ignoring Abuse At A Women's Prison, Department Of Corrections Suspends Nearly Three Dozen Employees

from the ohhhhh-you-mean-the-thugs-and-rapists-not-currently-serving-time dept

How does something horrific become an epidemic? Well, if you ignore any problem long enough, it's pretty much guaranteed to get worse.

Early last year, the DOJ released its report [PDF] on New Jersey's Edna Mahan Correctional Facility. The facility houses around 400 female inmates and is overseen by a little over 400 employees. Years of complaints from inmates prompted the DOJ to open an investigation in 2018. It found a pattern of rights violations, pointing out that five corrections officers had been convicted of sexual abuse charges from October 2016 to November 2019, including these three:

In May 2018, an Edna Mahan correction officer was found guilty of five counts of sexually abusing prisoners. According to the sentencing judge, the “pervasive culture” at Edna Mahan allowed this correction officer to abuse his “position of authority to indulge in [his] own sexual stimulation.”

In July 2018, another Edna Mahan correction officer pled guilty to three counts of official misconduct after he admitted sexually abusing three separate prisoners.

In January 2019, another correction officer pled guilty to official misconduct charges after admitting that he repeatedly sexually abused two Edna Mahan prisoners over a period of several years. In sentencing him, the New Jersey court concluded that the officer had “sexually assaulted a vulnerable population.”

That's only the tip of this iceberg. The Wikipedia page for the corrections facility lists seventeen instances of corrections officers being convicted, charged, or fired for sexual misconduct, rape, or sexual assault. The list dates back to 1994, showing this to be an ongoing problem that the New Jersey Department of Corrections has yet to bring under control.

This failure to address the problem made it systemic. Here's the conclusion reached by the DOJ following its two-year investigation:

The Department’s investigation has uncovered facts that provide reasonable cause to conclude that Edna Mahan (1) fails to protect women prisoners from sexual abuse by staff in violation of the Eighth Amendment; and (2) exposes women prisoners to substantial risk of serious harm from sexual abuse in violation of the Eighth Amendment. Systemic failures in Edna Mahan’s policies and practices discourage reporting of sexual abuse; do not provide an adequate response to and investigations of allegations of prisoner sexual abuse; and result in inadequate supervision that provides opportunities for further sexual abuse.

The details in the report are extremely disturbing.

Substantiated incidents of staff sexual abuse of prisoners at Edna Mahan are varied and disturbing. Some staff abused prisoners through unwanted and coerced “sexual contact” or “sexual penetration.” In other instances, prisoners were forced to perform fellatio on or touch the “intimate body part” of staff. In still other instances, staff required prisoners to undress or masturbate in their cells—or even engage in sexual acts with other prisoners—while staff watched. In at least one instance, a correction officer forced a prisoner to keep watch as he sexually abused her to prevent detection of his crimes.

And it gets worse:

Similarly, numerous prisoners report that, during unnecessarily close contact with male correction officers, some correction officers “rub” or “press themselves” – that is, their clothed genitals – against prisoners. Others report being strip searched with several other women at the same time or while male correction officers watched. In one instance, a prisoner reported that a male officer watched as she inserted a tampon. In another instance, it was reported that a group of officers had “viewing parties” of a prisoner with mental illness on suicide watch who believed she was a male and would follow officers’ instructions to dance and show her “penis” while undressed.

Much worse:

Correction officers and staff at Edna Mahan routinely refer to prisoners as “bitches,” “hoes,” “assholes,” “dyke,” “stripper,” “faggot-assed bitch,” “motherfuckers,” and “whores.” They graphically comment on prisoners’ physical appearance or remark about their perceived sexual inclinations and histories.

Prisoners reporting sexual abuse by corrections officers were retaliated against, sent to solitary confinement after being shackled and placed on a Body Orifice Security Scanner, supposedly to check for evidence of assault. (Even if true, these examinations could be performed without shackling prisoners to a chair and subjecting them to a device that searches for hidden contraband, rather than evidence of rape.) Additional privileges were also stripped from those reporting assaults by officers, with some of them losing personal possessions or work opportunities.

In addition, the reporting system was inadequate to handle complaints. And investigations by the prison were deliberately less than thorough, resulting in unearned exonerations and abandoned cases.

Almost a year after the release of this damning report, the trickle of disciplined corrections officers has become a deluge. Following these horrifying allegations, heads have finally begun to roll en masse.

One woman, Ajila Nelson, told NJ.com that officers at the Edna Mahan Correctional Facility on Jan. 11 handcuffed her and others, before punching, kicking, stripping and dragging her to a shower, after which she says an unidentified male officer got on top of her and groped and sexually assaulted her.

And there's more:

Prisoners have told family members and advocates that at least three women at the Edna Mahan Correctional Facility were hurt by officers Jan. 11, including one inmate who now has a broken eye socket and a transgender woman beaten so badly she cannot walk and is now in a wheelchair.

That got the attention of state lawmakers. And with their attention engaged, the NJ Department of Corrections finally decided -- almost a year after the DOJ released its report -- to start taking the problem seriously.

Thirty-one staff members at the Edna Mahan Correctional Facility, New Jersey’s only women’s state prison, have been suspended following reports of inmate abuse by prison guards.

The New York Times reports 22 guards, nine supervisors and the prison’s top administrator have all been suspended. The New Jersey attorney general’s office has opened an investigation into the matter and the State Assembly announced it will be holding hearings to look into the accounts of abuse.

The prison that refused to properly investigate itself is now under two new microscopes. And it has responded by suspending 7 percent of its staff. That's huge. And there will likely be more names added to the list before these concurrent investigations are concluded.

As a nation, we claim to believe in justice: the payment of debt for wrongs against society. But what we're really doing is handing human beings to people who don't believe those in their charge are anything more than receptacles for abuse. It's not enough to take their freedom away. They must also be stripped of their humanity and agency. And when crime goes down we applaud the improvement. But the criminal acts that occur in prisons and jails go ignored because it's easier to believe whatever happens to incarcerated citizens is something they're obligated to endure.

It's this attitude that allows behavior like this to fester and expand until it can no longer be ignored. Edna Mahan isn't an anomaly. It's just the way things are. Most of it flies under the radar. Every so often, the ugliness pokes its head out of the ground and it's no longer able to be ignored. The NJ Department of Corrections had years to address this and it chose not to. That it's doing it now is better than nothing. But any agency that gives a damn about the people it's overseeing would have dumped these abusers and enablers years ago -- not just when faced with a bunch of bad press and government investigations.

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Posted on Techdirt - 2 February 2021 @ 10:45am

Federal Court Tosses Constitutional Challenge Of FOSTA Brought By The Only Person The Feds Have Used FOSTA Against

from the badly-written,-randomly-enforced dept

Another constitutional challenge to FOSTA has failed, at least for the time being. The bill no one in law enforcement thought would actually help combat sex trafficking became law in early 2018. Since then, it has had zero effect on sex trafficking. And the impetus for its creation -- the prosecution of Backpage execs -- proceeded right along without the law in place.

FOSTA's constitutionality has been challenged before. Last summer, the DC Court of Appeals revived a challenge after the plaintiffs were shot down at the district level. The Appeals Court said the law was littered with broad language that could be construed to target legal actions and behavior. It particularly had a problem with the terms "promote" and "facilitate" when used in conjunction with the law's sex trafficking language.

Andrews has established an Article III injury-in-fact because she has alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Her alleged conduct is “arguably affected with a constitutional interest,” because Andrews’ intended future conduct involves speech. Andrews operates a website that allows sex workers to share information. Her conduct is “arguably proscribed” by FOSTA because it is a crime to own, manage, or operate an “interactive computer service[]” with the intent to “promote or facilitate the prostitution of another person,” 18 U.S.C. § 2421A(a). FOSTA does not define “promote” or “facilitate,” nor does it specify what constitutes “prostitution,” a term undefined by federal law. Nor are these terms limited by a string of adjacent verbs (such as advertises, distributes, or solicits) that would convey “a transactional connotation” that might narrow the statute’s reach.

Not narrow enough, said the Appeals Court. Unfortunately, a federal court in Texas has come to the opposite conclusion about the same terms. (via Eric Goldman)

Its decision says the terms "promote" and "facilitate" are narrow enough to limit collateral damage to free speech and other protected activity. This challenge was filed by Wilhan Martono -- the operator of CityXGuide, someone the DOJ finally used FOSTA against more than two years after it was signed into law.

The Texas court says the language is narrow, targeting only the facilitation of the prostituting of someone else. It does not target prostitution in general. That being said, sex workers who moved to CityXGuide after the shutdown of Backpage were nonetheless collateral damage, even if the law is supposedly in place to punish sex trafficking, not consensual sex work.

Here's the court's rationale for its Constitutional call:

In this case, "promotes" and "facilitates" are not two terms of many in a list. However, these two terms do not stand alone and without context. FOSTA specifically criminalizes owning, managing, or operating a computer service with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person.

Most importantly, FOSTA connects both promotion and facilitation to the prostitution of another person. FOSTA does not obviously criminalize speech promoting prostitution generally. Instead, it prohibits an individual from committing certain acts with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person. In this context the word "facilitates" is most clearly read as referring to conduct that aids or assists in the prostitution of another person. Thus, the use of the word "facilitates" in FOSTA does not appear substantially to restrict protected speech relative to the scope of the law's plainly legitimate application.

Then the court goes further, equating the hosting of ads for sex work with the act of pimping.

FOSTA explicitly prohibits individuals from performing certain acts with the intent to promote prostitution of another person. It does not prohibit promoting prostitution more generally. In this context, "promotes" can most reasonably be interpreted as "to pander" or "pimp" as the Government suggests.

Even the government didn't argue Martono was engaged in the act of pimping. There are no charges related to that. Instead, his prosecution rests on FOSTA and the "facilitate/promote" language that Martono (unsuccessfully) challenged.

On more logical footing, the court finds the terms "jurisdiction" and "prostitution" adequately defined. But it still says the broad terms that turn hosting into pimping don't threaten protected speech or other legal activities. And since Martono's indictment hinges on FOSTA, the indictment is also good and legal.

The Court holds here that FOSTA is neither unconstitutionally vague nor overbroad. Further, the Court determines that the indictment against Martono was sufficient. Because FOSTA is not unconstitutionally vague or overbroad and the indictment against Martono is sufficient, the Court denies Martono's motion to dismiss.

Martono is sure to appeal this. But he'll be doing it in a circuit that tends to sympathize with law enforcement and isn't exactly known as the bastion of free speech. If it's taken up by the Fifth Circuit, perhaps the Appeals Court will find the DC Appeals Court's reasoning persuasive. Until then, FOSTA is still technically Constitutional. And it will continue to never be used to round up actual sex traffickers.

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Posted on Techdirt - 2 February 2021 @ 3:33am

Texas Immigration Lawyer Sues DHS, CBP Over Seizure And Search Of His Work Phone

from the most-likely-place-to-find-plenty-of-privileged-information dept

A Texas immigration lawyer is suing the DHS and CBP over one of its infamous border device searches. His attempt to keep the federal government from accessing privileged attorney-client communications was rebuffed by CBP officers who decided they'd just keep his phone until they were able to access the contents. This is especially problematic considering the lawyer, Adam Malik, is representing clients currently engaged in lawsuits and other legal actions against or involving both the DHS and CBP. (via ABA Journal)

Another troubling aspect of this case is that Malik had already proved his non-terrorist bona fides to the federal government well before CBP officers decided he was in need of some enhanced screening. From the lawsuit [PDF]:

To facilitate his extensive travel, Mr. Malik applied for and received membership in CBP’s Global Entry Trusted Traveler Program (“Global Entry”). DHS approved him for Global Entry on or about November 2014 and approved his renewal in 2019.

To receive membership in Global Entry, Mr. Malik passed a layer of extremely thorough security checks conducted by DHS. Mr. Malik passed a DHS conducted background check against criminal, law enforcement, customs, immigration, agriculture, and terrorist indices, a process that includes fingerprinting. He also passed an in-person interview with a DHS security officer.

Despite being a government-ordained "Trusted Traveler," Malik was detained upon his return from a trip to Costa Rica. During his trip, he had communicated with clients using his law firm issued iPhone. The CBP officers told Malik he had been "randomly selected" for an "eligibility review." Once they had him detained, they questioned him about his personal life, family, and immigration history.

More worryingly, they questioned him about his legal practice and clients, demanding to know who he was representing and which cases he had handled. Obviously, this involved plenty of litigation work involving the same agency now questioning him. Malik refused to answer those questions. That made the CBP unhappy, leading to the incident at the center of this lawsuit.

During interrogation, Officer Sullivan displayed anger to Mr. Malik when Mr. Malik would not reveal Privileged Information. In response to Mr. Malik’s assertion of privilege, Officer Sullivan asked Mr. Malik to place the iPhone on the table. Mr. Malik placed the iPhone on the table.

Officer Sullivan asked Mr. Malik to unlock the iPhone so that the digital contents could be inspected.

Mr. Malik explained to Officer Sullivan that the iPhone contains extensive Privileged Information and allows for the accessing of Privileged Information that is stored remotely. Mr. Malik told Officer Sullivan that he cannot consent to the search of the iPhone.

Texas bar rules prohibit divulging privileged information. Not that it mattered to the CBP officer, who took everything a disturbing step further.

In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network.

Neither Officer Sullivan nor any other employee of Defendants asked Mr. Malik to disable connectivity of the iPhone to the internet or to any network. Had Officer Sullivan or any employee of Defendants offered to permit Mr. Malik to place the iPhone in airplane mode upon or after seizure of the iPhone, Mr. Malik would have done so immediately.

As the lawsuit notes, the CBP is given broad discretion on device searches. It can perform basic or in-depth searches of phones without a warrant and with nothing more than reasonable suspicion evidence of a crime may be found on the devices. It also has some national security powers which give it even more leeway. However, there's nothing reasonably suspicious about someone denying access to privileged communications, especially when doing so means they're abiding by their legal obligations as an attorney, rather than shirking them to avoid further border control nastiness from federal officers with too much power and too little oversight.

Despite all this leeway, Malik says the CBP still violated its very permissive directives. It did not attempt to disconnect the phone from any network, which would have allowed it access to data in motion, rather than just data at rest. It did not make any effort to restrict its search to non-privileged information by use of a filter team. Instead, it seized Malik's phone and searched its contents with it connected to the internet and without the aid of anything that would have steered it clear of information it had no business seeing. According to the lawsuit, the CBP is still in possession of the phone, nearly a month after it seized it.

As evidence of the illegal search, Malik states that he received a request for a verification code from FLYP (a call, text, and voicemail app) one day after he was forced to leave his phone in the CBP's possession. This indicated the phone was still connected to the internet and the CBP had unlocked the device.

Two weeks after seizing the phone, the CBP finally got around to getting a filter team together. It sent an email to Malik demanding a list of clients and their contact info. Supposedly this was to identify who his clients were so the CBP wouldn't access those communications. But, as Malik points out, he is forbidden from providing that information. Not only that, but identifying current and future litigants would compromise them and make them more susceptible to adverse actions by agencies opposing them or targeted by litigation.

Plaintiffs are prohibited from identifying such names because the identification for most, if not all the individuals, are connected inextricably with the privileged and confidential purpose for which the clients sought legal advice.

Part of the Privileged Information contained on the iPhone and on the remote servers is identifiable only by a telephone number of the client. Telephone numbers of the clients are privileged and confidential and will lead to exposure of Privileged Information.

Filter team protocols suck when searches are performed by defendants in lawsuits filed by the lawyer whose phone they've seized.

CBP’s proposed filter team as implemented and as articulated in the Directive, creates the appearance of and potential for improprieties. The Directive authorizes CBP officers to rummage through attorney-client communications. The use of the filter team in these circumstances will chill the free flow of information between clients and lawyers.

Malik asserts a number of First and Fourth Amendment violations. The seizure and search of communications and other information protected by the First Amendment ("expressive content, associational information, and private information") without reasonable suspicion of criminal activity is just one of the problems. The same lack of suspicion carries over the Fourth Amendment, which guards against "unreasonable" searches, no matter what their context.

In addition to findings in favor of his Constitutional claims, Malik is also asking for an independent team to be involved in the search of information on the iPhone and to be given the right to challenge any search that may result in privileged communications being accessed by the government. He also wants CBP blocked from searching the phone until his demands are met and a Special Master put in place to oversee the search. Finally, he asks for a permanent injunction blocking the government from searching the phone at all, which, if granted, would make the intermediate demands unnecessary.

From these allegations, it appears the CBP retaliated against the lawyer because he refused to break his code of ethics. And it appears CBP officers were willing to violate long-held ethics itself if this "Trusted Traveler" wouldn't do it for them. This is the unsurprising side effect of giving border control agencies almost complete control over travelers and their possessions. When there are few restraints, very few will act with restraint. Hopefully a lawsuit like this will start nudging our borders back into Constitutional territory.

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Posted on Techdirt - 1 February 2021 @ 8:06pm

Six More Houston Cops Involved In Deadly Drug Raid Are Now Facing Criminal Charges

from the looks-like-'judged-by-12'-it-is dept

We still haven't seen an end to the fallout resulting from a botched (and bogus) drug raid in Houston that ended with two residents killed by police officers. It also ended with five officers wounded -- one of them paralyzed. The raid was predicated on false statements made by Officer Gerald Goines, who secured permission from a judge to perform a no-knock raid, claiming the residents were armed and selling heroin.

While guns were recovered, no heroin was. Indeed, no evidence of drug dealing was recovered -- just personal amounts of marijuana and cocaine. The informant that supposedly made the heroin buy never existed and the supposed result of this controlled buy was actually heroin pulled from an officer's squad car. All of Goines' lies led to two deaths and five injured officers. Goines is currently facing a slew of charges, including two counts of felony murder.

Other participants in the raid are facing charges as well. KHOU reports six more Houston PD officers have been indicted for their involvement in the raid or for other criminal acts they engaged in while working in the department's narcotics unit.

On Monday, a Harris County grand jury indicted another officer for murder and five others for engaging in criminal activity.

The six officers indicted Monday are in addition to the six officers who have already been indicted.

Felix Gallegos, the officer charged with murder, fired the shot that killed Dennis Tuttle, according to court documents.

That's 12 officers, all under indictment, and all involved in the drug raid. Following the ill-fated raid, the Houston PD investigated its own narcotics unit, "discovering" that it had been given free rein for years. Paperwork routinely went unreviewed and unapproved. And that's when there was any case-related paperwork to be found. In some cases, no warrants were filed. In others, supporting documents were missing. Multiple discrepancies in evidence and expense reporting were also uncovered. This hands-off approach is directly responsible for the travesty the Houston PD calls a "narcotics unit."

And it's this hands-off approach that's led to the charges facing five of these recently indicted officers -- all accused of falsifying records to obtain pay for overtime hours they apparently didn't work. Some of this has been going on for a long time, which means the resulting sentences will be longer, too. Three officers are facing hefty felony charges for this time theft, ones that carry with them a maximum sentence of life in prison:

Oscar Pardo – (HPD) Engaging in Organized Criminal Activity, to wit: Aggregate Theft by a Public Servant ($30,000 or more but less than $150,000) and Tampering with a Governmental Record (1st degree)

Cedell Lovings – (Status Unclear) Engaging in Organized Criminal Activity, to wit: Aggregate Theft by a Public Servant ($30,000 or more but less than $150,000) and Tampering with a Governmental Record (1st degree)

Nadeem Ashraf – (HPD) Engaging in Organized Criminal Activity, to wit: Aggregate Theft by a Public Servant ($30,000 or more but less than $150,000) and Tampering with a Governmental Record (1st degree)

Two more officers -- Clemente Reyna and Thomas Wood -- have had identical theft charges added to the charges they're already facing for their participation in the drug raid.

And another two officers are facing lesser theft charges, but ones that still carry potential 20-year sentences. Five of these officers retired as soon as it became clear they might face criminal charges. The other seven are apparently still employed, though that will likely change now that they're under indictment.

There was a lot of trust to go around in the Houston Police Department. Not a lot of verification, though. It took the senseless killing of two harmless Houston residents to force the PD to take a look at what its officers were doing. And it's probably going to take several criminal trials to force the PD to actually care about officer accountability so it doesn't get to the point of felony murder charges and hundreds of thousands of dollars of illegally obtained paychecks before the PD can be bothered to police its own.

This isn't the final postscript on this horrific incident. There will certainly be more to come, what with a dozen officers facing the possibility of a trial and the PD forced to provide what will certainly be damning information in response to discovery requests.

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Posted on Techdirt - 1 February 2021 @ 1:41pm

Dominion Sues Rudy Giuliani For $1.3 Billion Over False Statements About Its Voting Systems

from the enjoy-your-self-inflicted-shitshow,-Rudy dept

During the runup to the presidential election, through the election, past the election, past the Electoral College vote, past the states' certification of votes, multiple recounts and investigations, all the way up until VP Mike Pence was due to certify the vote, Donald Trump and his squad of sycophants claimed -- without evidence -- the election was fraudulent.

These claims -- buttressed by public statements, heated tweets, and multiple baseless lawsuits -- lit a fuse that triggered a January 6th explosion when Trump supporters stormed the Capitol building in a futile attempt to overturn the results of the presidential election.

Roughly a week after the insurrection, Dominion Voting Systems -- accused of being a tool of the corrupt Venezuelan government -- sued one of the more batshit extensions of Trump's legal army, Sidney Powell. The defamation suit accused Powell of lying about pretty much everything related to Dominion.

Unfortunately for Dominion, it is a public figure so it's going to have to prove deliberately false statements were made by people who knew the claims were false when they made them. Powell might be able to walk away from this suit, despite all of her false statements. Some were made in court which makes those claims immune from lawsuits. But others were made in public and those might end up costing her some money. Truth is the absolute defense to immunity but being a living, breathing caricature who embraces every galaxy brain conspiracy theory that floats by in the internet flotsam is also a defense. And that defense is "no one takes me seriously so it's unlikely any reasonable people took my wild-ass lying claims about Dominion seriously either." If Alex Jones can use it, so can Sidney Powell.

Dominion's next target is Rudy Giuliani, someone who echoed a bunch of Powell's wild claims and continued to do so as the Trump campaign (and other pro-Trumpers) lost lawsuit after lawsuit attempting to overturn election results.

Giuliani's escapades as Trump's legal rep have made it possible for him to make the same claim in his defense: that he's so devoid of credibility no reasonable person would take his claims seriously. But Dominion's lawsuit [PDF] makes a good case for a finding of actual malice by pointing out certain actions taken (or not taken) by Giuliani that strongly suggest he knew his public anti-Dominion statements were false.

The opening paragraph spells it out succinctly:

During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign "doesn't plead fraud" and that "this is not a fraud case." Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations were false, he and his allies manufactured and disseminated the "Big Lie," which foreseeably went viral and deceived millions of people into believing that Dominion has stolen their votes and fixed the election.

The lawsuit runs 107 pages, but that's the crux of it. Giuliani made a lot of false public statements about Dominion, but he refused to make those claims in court. When lawsuits were filed, Giuliani wasn't about to turn his press conference ravings into sworn statements. That's a pretty solid indicator Giuliani had his doubts about some of the things he was saying publicly about Dominion. But it didn't stop him from saying these things publicly. It didn't stop him from making an alleged $20,000/day as Trump's legal rep. And it didn't stop him from shilling products on his podcasts and YouTube videos, where he repeated his false claims.

And there's a strong argument for damages. Almost anything Trump, Giuliani, and other pro-Trump litigators said about stolen elections and Dominion's involvement went viral. Dominion's reputation has certainly been harmed. There's a whole subset of Americans out there who fervently believe Dominion voting machines run on software developed by a company allegedly run by deceased dictator Hugo Chavez -- software apparently created solely for the purpose of stealing votes and elections. No part of this allegation is true and Dominion uses no software created by this company. But thousands -- if not millions -- of people still believe this, even though no evidence has surfaced to back these claims.

And, despite this lack of evidence, Giuliani has refused to retract any of his false claims. If Dominion can surmount the "actual malice" bar in this case, the former New York mayor (and current MAGA madman) could be out of a whole lot of his $20k/day money. Dominion is asking for $1.3 billion in damages. It will certainly not be awarded this amount even if it wins, but the damages will still be sizable and it may be able to recover its legal fees on top of it.

This isn't a slam dunk case but it's still going to be very difficult for Giuliani to get this one dismissed. A man who beclowned himself for Trump and his base is going to have a hard time talking himself out of this one.

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Posted on Techdirt - 1 February 2021 @ 10:44am

Michigan State Police Officials Are Dodging Public Records Obligations By Using Encrypted Messaging Apps

from the it's-not-the-encryption,-it's-the-message-destruction dept

There have been some very vocal calls for encryption backdoors by the heads of certain law enforcement agencies. And those making the most noise imply every other law enforcement agency that isn't clamoring for worse security supports the clamoring loudmouths demanding mandated backdoors.

Maybe these other agencies do agree with "going dark" proselytizers like Chris Wray and Cy Vance. Maybe these agencies that never speak out are the silent majority. Then again, maybe they recognize the tradeoff for what it is and find other ways to obtain the evidence they need. But one thing is clear, cops are fans of encryption if it benefits them.

Admissions made in a lawsuit brought by a fired Michigan State Police inspector show police officials have been using an encrypted messaging app with a self-destruct feature to engage in official business.

Top officials at the Michigan State Police have been using text messaging encryption devices that can put their internal communications out of the reach of the Freedom of Information Act and legal discovery, according to admissions the MSP made in a civil lawsuit.

Among those who have downloaded the "end-to-end" encryption applications onto their state-issued phones are a lieutenant-colonel, two majors and two first lieutenants, according to court records obtained by the Free Press.

Former inspector Michael Hahn sued the Michigan State Police after he was allegedly fired in retaliation for his vocal opposition to "unlawful racial and gender hiring and promotion preference." Hahn's lawyer, James Fett, suspected something was amiss when his discovery request for text messages from officials involved in Hahn's firing returned hardly any messages. The meager output was at odds with the four-month investigation of Hahn involving numerous MSP officials that occurred prior to his dismissal.

After a motion to compel, the Michigan State Police admitted its officials were using an encrypted app with self-destructing messages that leaves no permanent record on officials' phones or MSP servers.

Fett asked the MSP to admit that Gasper, Hinkley, Lt. Col. Kyle Bowman, Maj. Emmitt McGowan, Maj. Beth Clark, 1st Lt. Brody Boucher, and 1st Lt. Jason Nemecek had each downloaded and used an instant messaging application with end-to-end encryption on their state-issued cellphones.

Assistant Attorney General Mark Donnelly, who is representing the state defendants in the lawsuit, admitted in an Oct. 29 response, obtained by the Free Press, that was true for each of the officials named. But in a corrected filing Thursday, Donnelly said use of the encryption app on state phones was not true for Gasper or Hinkley, though it was true for the others.

The app being used appears to be Signal, according to the fired MSP inspector bringing the lawsuit. Hahn noted that lots of MSP officials' names disappeared from the app after the Detroit Free Press began asking MSP officials to comment on the filing.

While encryption is a great way to protect sensitive communications from malicious hackers and criminals, it's not so great when it's being used to shield public servants from transparency and accountability. By all means, these communications should be encrypted. But they should also be archived and stored somewhere the MSP can retrieve them when sought by public records requesters or court orders. This storage should also be encrypted.

Encryption isn't the problem here. It's the sidestepping of obligations to the public -- something that, in this case, happens to involve encryption. And if this is going to get sorted out, it's probably going to take litigation and nosy journalists to get it done. Because it looks like the department in charge of defining the contours and limits of official communications isn't up to the task.

The Michigan Department of Technology Management and Budget can restrict or forbid use of messaging services that don't create permanent records of official communications. It hasn't. And its conflicting statement to the Detroit Free Press seems to imply it permits the use of self-destructing messages by state employees who are required to preserve their official communications.

Asked whether state employees are permitted to install end-to-end encryption applications on their state-issued phones, Caleb Buhs, a spokesman for DTMB, said that would be allowed only "if the application is for legitimate state business."

Which is fine, but…

Buhs was then asked to give examples of what the Whitmer administration would consider "legitimate state business" that would leave no record of official communications between state employees. He did not respond.

Well, that clears nothing up. Perhaps this will motivate the DTMB to come up with some coherent guidelines and retention mandates. Or perhaps the Department will just find a better spokesperson.

Whatever the end result of this lawsuit, the immediate payoff is confirmation public officials are violating laws and blowing off their obligations to the public. Perhaps some public good will come of this outing of willful destruction of public records, but given the number of times similar things have happened at all levels of government, it's difficult to greet this revelation with optimism, rather than cynicism.

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Posted on Techdirt - 29 January 2021 @ 3:34am

Police Chief Demands Holes In Encryption Because Some Cops Decided To Participate In The DC Insurrection

from the sure,-make-this-all-about-us-when-it's-really-just-about-you dept

As more evidence comes to light showing a disturbing amount of law enforcement participation in the January 6th attack on the Capitol, police departments around the nation are finally being forced to face something they've ignored for far too long.

The law enforcement officers who participated in the insurrection attacked officers attempting to defend the building, or, at the very least, did nothing to discourage the lawless actions occurring all around them. The officers that went to DC and engaged in a riot aren't an anomaly. They've been part of law enforcement for as long as law enforcement has existed: bigots with a penchant for violence and a thirst for power.

These officers are finally beginning to be rooted out, but only because they did things no one can ignore. Hundreds of participants produced hundreds of recordings, turning their own celebration of their attempted election-thwarting into the evidence needed to identify them and charge them with federal crimes. Posts made to social media platforms provided more evidence, tying incriminating statements to location data to place off-duty cops on the scene.

Now that agencies are finally confronting their in-house white supremacist/militia problem, they're asking for everyone to be made less secure so they can handle the problem that's been hiding in plain sight for years.

Houston Police Chief Art Acevedo -- who presides over an agency with more than its share of bad cops -- was asked what officials like himself are doing to confront this problem. In response, Chief Acevedo asked for Congress to do him -- and other law enforcement agencies -- a favor:

Acevedo... said anonymous online platforms on the “dark web” are making such [internal] investigations impossible, even for departments with sufficient resources. He expects the move away from public platforms like Facebook and Twitter to grow rapidly in response to the FBI arrests of those who rioted at the Capitol.

This month, Acevedo was asked by the House Oversight and Reform Committee to explain what actions police chiefs are taking, and responded by asking for help. For years, law enforcement officials have asked for passage of a federal law that would require such platforms to have a “back door” that law enforcement can access if they have “a legitimate investigative need and a court order” to gain entry.

Then he blamed social media platforms for his own inability to police his police, calling them out as the real lawbreakers here:

“Congress’s failure to act has enabled industry giants to flaunt the law and operate with impunity,” Acevedo wrote in response.

First off, if the bad cops are shifting to "dark web" platforms in response to their own opsec failures during the January 6th riot, mandating backdoors that affect "industry giants" isn't going to make it any easier to track down cops who've moved on to "darker" web services.

Second, law enforcement agencies' continuous failure to hold officers accountable or to perform rigorous background checks should not be used as leverage to make services and devices less secure for millions of Americans. Citizens have already had to watch their tax dollars pay the salaries of brutal thugs whose loyalty to each other often supersedes their sworn duties as public servants. They don't need to be punished further just so it's a little easier for cops to perform the occasional internal investigation.

Finally, the encryption offered by device makers and communications platforms also protects cops -- not just from accountability, as Acevedo implies here -- but from malicious hackers and criminals who would love access to cops' devices, communications, and sensitive files. A backdoor for bad cops is a backdoor for good cops -- and a backdoor that strips a layer of security away from everyone who uses these devices and services.

The ugliness that permeates law enforcement needs to be rooted out. But the security of millions of Americans shouldn't be weakened just because those policing the police haven't done much of this policing for decades. They've had open access to evidence for years and rarely used it. Now that their sins are too big to ignore until the next news cycle hits shouldn't be the impetus for backdoor mandates.

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Posted on Techdirt - 28 January 2021 @ 3:22am

Papers Please Has Something To Tell You About The 'No Fly' List And It's Going To Make You Sad

from the more-Douglas-Adams-than-George-Orwell-tbh dept

How does someone end up on the federal government's "no-fly" list? You'd think the shorter, less-convoluted question would be how one avoids ending up on this list. Unfortunately, the answer to either question is a convoluted mess -- one complicated unnecessarily by the number of federal agencies that think they should have a say in who lives and who flies.

Papers Please has attempted to explain the no-fly list and its parameters. And it has kind of failed, albeit through no fault of its own. The interconnectedness of government things -- the wheels of which were greased with countless pieces of post-9/11 legislation, memoranda of understanding, data-sharing agreements, and the insistence of numerous agencies that they, too, were important cogs in the War on Terror Machinery -- has made this almost impossible to parse.

Behold your tax dollars at work preventing you from flying:

If you can't see the embed, here's an annotated PDF version.

There were demands -- some made by the incoming President's people -- that participants in the Red Hat Insurrection should be added to the no-fly list. Bad idea. The no-fly list has been abused for years and it's not getting any better. Courts may be coming around to the fact that arbitrary federal-level decisions with almost zero recourse isn't what America's all about, but if change is coming, it will be slow, expensive, and stymied constantly by invocations of the "national security" mantra.

Here are some of the facts. The FBI has used the no-fly list as leverage to turn Muslims into informants so it can more easily score empty net goals against supposed "terrorists" too poor to buy terrorist supplies and too mentally incompetent to formulate an attack plan, much less draft their own statement of ISIS allegiance.

The feds' belated focus on domestic extremists doesn't excuse years of projecting a presumption of guilt on Muslims just because some extremists decided to fly planes into buildings. But the presumption of guilt continues -- encompassing pretty much any American who desires to board a plane.

Airlines aren't much without passengers. So it's in their best interest to sell as many tickets as possible and board as many people as possible. Their default assumption is everyone's good to fly unless proven otherwise. The government has taken an opposing stance, presuming everyone guilty of latent terrorism.

[F]ly/no-fly decision-making by airlines differs from that of the U.S. government in two major ways.

First, for an airline the default is generally “Yes”, whereas for the U.S. government, as discussed above, it has been “No” since at least 2008. If you have a ticket, you look more or less alive and human, your clothing covers your “naughty bits”, and you don’t break any rules (more on that below), the airline will generally let you on the plane. You don’t (usually) have to prove that you aren’t a terrorist.

This creates friction -- something exacerbated by the TSA, which operates under its own rules and has been granted considerable discretion to ground passengers and/or subject them to multiple levels of increasingly invasive screening.

If no flags fly, passengers can attempt to board a plane. But airlines are also given a lot of discretion about whom to serve -- something most private companies enjoy.

Second, airline procedures generally involve a greater degree of human discretion and judgement on how to interpret and apply the fly/no-fly criteria. Airlines would say that this allows flexibility (sometimes good) but it also allows arbitrariness (bad). For better or worse, whether you are allowed to fly can depend on a gate agent’s temper and mood.

International flights further complicate matters by adding new laws and agencies to the mix. Considering what's going on behind the scenes, it's a miracle airlines have been able to fill planes with passengers over the last decade.

As noted earlier, placement on a no-fly list is almost impossible to challenge. The government -- mainly the DHS -- has argued no-fly list status isn't something anyone's entitled to litigate. The placement occurs without court involvement. So, the DHS apparently feels the exclusion of court review during placement demands exclusion of court review after placement. Since there's very little court intercession, US agencies have continued to add people to no-fly lists for almost no reason at all.

Challenging no-fly status is incredibly expensive. A couple of court cases have managed to poke some holes in the government's arbitrary groundings. But it takes deep pockets to take a lawsuit far enough that high-level courts express their concerns about the constitutionality of no-fly lists.

Only one no-fly case has gone to trial, resulting in something of a Pyrric victory: After eight years of litigation, Dr. Rahinah Ibrahim found out that she was put on the no-fly list because the FBI agent who interviewed her as part of his mosque-watching assignment misunderstood how to fill out the blacklist and watchlist “nomination” form. Dr. Ibrahim’s name was taken off that list. But her U.S. visa was revoked (despite the fact that her children were born in the U.S. and are U.S. citizens), and she hasn’t been able to return to the U.S.

Dr. Ibrahim’s pro bono lawyers incurred almost $4 million in expenses to overcome what the 9th Circuit Court of Appeals described as “scorched earth” and “bad faith” litigation tactics by the government. It took the lawyers another seven years to get paid, (finally, last month, fifteen years after they started working on the case) after the government appealed the fee award all the way to the Supreme Court.

Other cases have bubbled up to this level, but have yet to secure courtroom victories. The expenses incurred in these long-running legal battles are likely on par with this effort -- one that took seven years (and more litigation) to get repaid.

All of this leads to the current situation, where irresponsible lawmakers are leveraging unprecedented actions and political animus to call for a federal level fucking of Americans who did stupid stuff and will -- in many cases -- end up facing federal charges.

We find it especially ironic that calls to deploy measures like extrajudicial no-fly orders are being made by politicians who profess to be those most committed to the rule of law. The current no-fly system, as should be apparent from the description above, is the antitheses of the rule of law, and epitomizes the lawlessness of the DHS in particular.

Does everyone convicted of a crime belong on the no-fly list? If so, for how long after their conviction? What about people suspected or accused of crimes? And why shouldn’t these decisions be made by judges?

Why should we focus on air travel, anyway? Surely those who came to Washington by air were less likely to have brought firearms or explosives than those who came by car.

The no-fly list should not be an all-purpose weapon to be deployed against anyone who's acted irresponsibly and/or criminally. The no-fly list probably shouldn't be used at all against anyone, but if it is going to remain active, it should only target known terrorists the government can definitively show would endanger the nation if they were allowed to fly. The list should be short and targeted. Instead, it's become a catchall for everyone the government is unsure of, as well as a receptacle for Muslims the government failed to turn into informants. Adding alleged domestic terrorists to the list is unwise, as most of those raiding the Capitol committed crimes of opportunity, rather than premeditated acts of terror.

Papers Please has made an admirable attempt to explain the no-fly list and how it operates. But much of its underlying legal rationale remains obscured, buried by national security invocations and unjustified claims that explaining the system would somehow allow people to avoid it. It's an unavoidable -- and mostly unchallengeable -- part of American life at this point. And it's never going to get better if opportunistic politicians continue to believe it's something necessary to secure the nation against all threats domestic and foreign.

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Posted on Techdirt - 27 January 2021 @ 9:27am

Facebook's Post-Insurrection Purge Catches A Bunch Of Left Wing Accounts In Its AI Net

from the fine-deleted-accounts-on-both-sides dept

Facebook has often been accused of having an anti-conservative bias. But its efforts to clean up its platform following the January 6th attack on the Capitol building indicate it just has an ongoing (and probably unsolvable) moderation problem.

Shortly after the DC riot, it announced it would be removing content containing certain slogans (like "stop the steal") as an "emergency measure" to stop the spread of misinformation or encourage similar election-based attacks on other government buildings.

It's not clear what other switches were flipped during this post-riot moderation effort, but it appears groups diametrically opposed to Trump and his views were swept up in the purge.

Facebook said it had mistakenly removed a number of far-left political accounts, citing an “automation error”, triggering uproar from socialists who accused the social media platform of censorship.

Last week, the social media company took down a cluster of groups, pages and individuals involved in socialist politics without explanation. These included the Socialist Workers party and its student wing, the Socialist Worker Student Society in the UK, as well as the International Youth and Students for Social Equality chapter at the University of Michigan and the page of Genevieve Leigh, national secretary of the IYSSE in the US.

Moderation is tough even when it's only hundreds of posts. Facebook is struggling to stay on top of billions of daily posts while also answering to dozens of governments and thousands of competing concerns about content. Moderation without automation isn't optional. And that's how things like this happen.

Granted, it's a less than satisfying explanation for what went wrong. It doesn't give anyone any assurance it won't happen again. And it's pretty much guaranteed to happen again because it's already happened before. Activists associated with the Socialist Workers Party saw their accounts suspended and content deleted following another Facebook moderation effort that took place in early December 2020.

Facebook has disabled the accounts of over 45 left wing activists and 15 Facebook pages in Britain. The individuals and pages are all socialist and left wing political activists and organisations who campaign against racism and climate change, and in solidarity with Palestine.

Facebook has given no reason for disabling the accounts, and has not given any genuine way of appealing what has happened.

The SWP was left to guess why these accounts and pages were targeted. One theory is that Facebook moderation was purging the site of pro-Palestinian content, which sometimes is linked to bigotry or terrorist activity. Or it could be the new AI was wary of any political postings dealing with sensitive subjects and began nuking content somewhat indiscriminately.

Or it could be part of a purge that began last August, when Facebook expanded its internal list of "Dangerous Individuals and Organizations." Anything viewed by AI as "promoting violence" was fair game, even if context might have shown some targeted posts and groups were actually decrying violence and outing "dangerous" individuals/organizations. During that enforcement effort, Facebook took down left-wing pages, including some attempting to out white supremacists and neo-Nazis.

This probably was an automation error. And the automation will continue to improve. But if the automation isn't backstopped by human moderators and usable options to challenge content removal, things like this will continue to happen, and on an increasingly larger scale.

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Posted on Techdirt - 27 January 2021 @ 3:42am

Parole Violator Who Raided Senate Building Sold Out By The GPS Unit Attached To Him For Previous Parole Violations

from the GOP-might-not-be-attracting-the-best-and-brightest dept

Here's the latest stupid way pro-Trump rioters are getting arrested for their participation in the Little Insurrection That Couldn't. Surprisingly, the inauguration went off without a hitch, but no one could have seen that coming a couple of weeks ago, when Trump fans raided the Senate building in an attempt to prevent election results from being certified.

Opsec was the last thing on many invaders' minds. Providing great content for Parler followers or whatever seemed to be more important. The fierce opposition to wearing masks for health reasons carried over to a reluctance to wear masks for "committing federal crimes" reasons. Plenty of public posts to various social media services have made it exceedingly easy for investigators to track down perpetrators without having to leave their desks.

I hesitate to call this the peak of January 6th related stupidity. There's always a chance this will be topped. But this is just gobsmackingly idiotic. As we're all painfully aware, cellphones generate a ton of useful (to investigators) location data that can track movements and tie people to criminal activities.

It's one thing to forget your cellphone is an omnipresent snitch. It's quite another to forget you're wearing a device specifically designed to deliver your current location data to law enforcement. May I introduce to this fucking guy:

Bryan Betancur is one of dozens of people that have been arrested in the wake of the insurrection at the Capitol. He was arrested on Sunday, and is expected to make his first court appearance in D.C. on Monday afternoon.

A screenshot of Betancur's Instagram account allegedly shows him outside the U.S. Capitol on Jan. 6 flashing a sign linked to white supremacist groups.

Screenshots are good. Precise location data is better. And Betancur delivered that to investigators in a way few others involved in the half-assed insurrection have. Behold this galaxy brain at work.

Investigators say their case relies in part on location data produced by the GPS unit that the man was wearing for a prior offense.

Someone who committed some crimes and committed another crime by violating his parole decided to commit more crimes -- all while wearing something that was supposed to encourage him to commit fewer crimes by informing law enforcement of his whereabouts at all times.

And, while Betancur originally admitted he had been in the Capitol and was on the receiving end of tear gas dispensed by Capitol police, he walked some of those statements back when questioned further. Unfortunately, he couldn't walk back his previous footsteps inside the Capitol building, which means he too will likely be facing charges beyond (yet another) parole violation.

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Posted on Techdirt - 26 January 2021 @ 8:05pm

NYPD Still Blowing The Public's Money To Keep The Public From Seeing The NYPD's Misconduct Records

from the less-they-know-the-better-they'll-be-served...-or-whatever dept

The NYPD is still spending taxpayers' money to prevent taxpayers from accessing police misconduct records. The latest fight over these records was prompted by the New York legislature, which repealed the law that allowed the NYPD to deny the public access to this information last summer.

Since then, the NYPD and other first responder agencies have been attempting to litigate their way back to opacity. New York law enforcement agencies -- represented by their unions -- secured a temporary injunction blocking the release of these records last fall, setting the stage for even more expenditure of public funds to argue for the further screwing of the public these agencies are supposed to be serving.

Additional litigation was prompted by Mayor Bill de Blasio's unsealing of disciplinary records in response to the law's repeal. NYPD officers and city firefighters filed their own suit following ProPublica's publication of the unsealed records. The NYPD's union was able to secure an injunction prior to this publication, but it was completely nullified by ProPublica's reporting, which put everything it had obtained from the CCRB (Civilian Complaint Review Board) -- which has its own copies of NYPD misconduct files -- online in a searchable database.

This transparency genie can't be put back into the bottle, but that isn't stopping the litigants from trying to obtain a judicial order demanding this impossibility. US District Court Judge Katherine Polk acknowledged last year any order she might issue would be unable to "reach backwards in time" and reverse the publication of this info.

The unions are back in court, claiming the release of this info by the CCRB (and its subsequent publication) has created a danger that can only be addressed with a history-erasing court order.

Anthony Coles, an attorney at DLA Piper representing the unions, told the panel of judges Tuesday that police officers received “chilling threats” made to officers at the time the records release was first announced.

Even if true, there's nothing the court can do about it now. And, as the court points out, it was up to the plaintiffs to argue this point effectively prior to asking the court for yet another restraining order.

U.S. Circuit Judge Raymond Lohier faulted the unions, however, for failing to get specific in support of their claim that the repeal of the records-sealing law in the New York Constitution created irrevocable harm.

“As I understand it, there’s nothing in the record that indicates that the unions were able to come up with anything,” Lohier said.

Vague post-facto complaints aren't going to move the dial. But the unions -- and the public employees they represent -- are apparently hoping hysterical rhetoric delivered inside and outside the court might. But there's some encouraging pushback, led by police reformers, who point out the hypocrisy of cops claiming negative information hurts them while simultaneously dragging every victim of police violence through the mud in hopes of exonerating cops for killing or maiming citizens.

Here's Tiffany R. Wright of Communities United for Police Reform speaking up about the NYPD's pattern and practice of besmirching its victims:

Negative information about people killed by police has been allowed to circulate “in the public square,” she continued, while disciplinary records have not been public, making for a “one-sided, unfair” conversation.

That's the way things have been for far too long. Only recently -- and only with the repeal of a law that allowed cops to shield themselves from public scrutiny -- has the balance of power started to shift. But never mind the courtroom hysterics: the NYPD (and other NY public agencies) still wield most of the power. This shift towards accountability isn't seismic. But hopefully it's more than incremental. It appears these agencies will do everything in their power to prevent it from shifting any further. And they'll be spending the public's money to do it.

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Posted on Techdirt - 26 January 2021 @ 10:49am

California Appeals Court Says Section 230 Immunizes Twitter From Banned User's Lawsuit

from the being-shown-the-exit-is-not-a-breach-of-contract dept

Back in 2019, a California court tossed a lawsuit brought by a self-described feminist who had her Twitter account banned following some posts targeting transgender people. Meghan Murphy tweeted enlightening things like "men aren't women tho" and "how are transwomen not men?" She also "deadnamed" transsexuals, identifying them using their former gender/names, something Twitter's rules explicitly prohibit.

The court didn't care much for Murphy's proposed class action lawsuit, pointing out that Twitter is free to remove users and content for any and all reasons, even reasons it hadn't yet added to its official list of rules. (The deadname prohibition came after Murphy's account was permanently suspended.) This may seem unfair, but that's the rules people agree to when using a platform provided by others.

Beyond that, there's Section 230, which shields Twitter from exactly these kinds of lawsuits. The court pointed out Twitter's editorial decisions (i.e., the removing of her account and its content) do not remove the platform's Section 230 protections. In fact -- contrary to inexplicably popular belief -- Section 230 of the CDA expressly provides for good faith moderation efforts and does not limit them to removing only illegal or illicit content.

The court tossed the lawsuit and Murphy appealed. Murphy's second pass doesn't go any better than her first. And, again, it's Section 230 that's instrumental to this second dismissal. From the decision [PDF]:

Under section 230, interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. Because each of Murphy’s causes of action seek to hold Twitter liable for its editorial decisions to block content she and others created from appearing on its platform, we conclude Murphy’s suit is barred by the broad immunity conferred by the CDA.

The court notes Murphy's attempt to route around Section 230 by claiming this is about broken contracts (the numerous changes made to Twitter's Rules over the years, as well as its promise of 30-day notice prior to permanent suspension of accounts). The court also notes it's not going to entertain a bunch of not-so-clever bullshit clearly intended to keep the court from discussing Section 230 immunity.

Murphy takes issue with both the second and third prongs of the section 230 test as they relate to her claims. She contends section 230(c)(1) cannot apply in this case because the “only information at issue is Twitter’s own promises,” not “ ‘information provided by another content provider,’ ” and because she seeks to treat Twitter not as a publisher of information provided by others, but as a promisor or party to a contract.


In assessing whether a claim treats a provider as a publisher or speaker of user-generated content, however, courts focus not on the name of the cause of action, but whether the plaintiff’s claim requires the court to treat the defendant as the publisher or speaker of information created by another. (Barnes, supra, 570 F.3d at pp. 1101–1102; Cross, supra, 14 Cal.App.5th at p. 207.) This test prevents plaintiffs from avoiding the broad immunity of section 230 through the “ ‘ “creative” pleading’ of barred claims” or using “litigation strategy . . . to accomplish indirectly what Congress has clearly forbidden them to achieve directly.”

In a footnote, the court points out that it sees through Murphy's attempted workaround because, well, it's so transparent. If there was a serious breach of contract, there'd be some cognizable injury to be addressed. There's nothing of the sort in Murphy's allegations.

Although Murphy also points to the allegations that Twitter failed to give her 30 days’ notice of the changes to the Hateful Conduct Policy and that Twitter applied its new policy retroactively as breaches of clear and well-defined promises, the gravamen of each of her causes of action concerns Twitter’s editorial decisions not to publish content—as reflected by the fact that she alleges no specific injury from the alleged notice and retroactivity violations but complains instead of the harm caused by Twitter’s ban on her and others’ free speech rights.

And precedent backs the application of Section 230 to this case -- which actually deals with Twitter's removal of a user's account and content, rather than a breach of contract. Twitter made no promises it would keep users and their accounts alive unless specific things happened. Instead, it retained its right to refuse service to users, just like pretty much any other private business in the nation.

Here, Murphy’s allegations that Twitter “enforced its Hateful Conduct Policy in a discriminatory and targeted manner” against Murphy and others by removing her tweets and suspending her account amount to attacks on Twitter’s interpretation and enforcement of its own general policies rather than breach of a specific promise.

Twitter has no contractual obligation to continue to do business with Meghan Murphy. And its decision to end this relationship is immunized from legal liability by Section 230 of the CDA. Murphy's case is dismissed for the second time and Twitter will be allowed to recover its legal costs for defending itself from this bad faith lawsuit. Murphy can always try this again in federal court, but she's not going to get any further doing that. She's only going to keep blowing her own money on bad litigation.

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Posted on Techdirt - 26 January 2021 @ 9:35am

Former US Ambassador Sues Apple Because Telegram Users Are Making Him Feel Scared [Update]

from the yeah-i-don't-know-either dept

Here's an interesting lawsuit, brought to you by some familiar names. And by "interesting," I mean "exceedingly stupid."

The lawsuit [PDF] was filed by "Ambassador Marc Ginsberg." Ginsberg last served as an ambassador in 1998. And yet, that title is being used to name him as the plaintiff. The defendant is Apple. In the mix (but not a defendant) is Telegram, a popular and often controversial messaging app that has served as a mouthpiece for alt-right personalities and others who have been banned from more mainstream social media services.

Ginsberg also runs the Coalition for A Safer Web (the co-plaintiff in this lawsuit), a non-profit whose mission is "inter alia, to promote new public/private partnerships to facilitate the expeditious removal of extremist and terrorist incitement and instruction content from social media platforms." The executive team at CSW includes Dr. Demetrick Pennie, a former Dallas Police sergeant and, according to the site, "leading CDA 230 expert."

Here's some of Dr. Pennie's 230 expertise at work:

In January, Dallas Police Sergeant Demetrick Pennie sued [PDF] Twitter, Google, and Facebook, claiming they were directly responsible for "radicalizing" Micah Johnson, who shot and killed five police officers in Dallas, Texas. According to Pennie, the social media companies actively allowed and encouraged terrorist use of their platforms to spread their message and attract participants.

Pennie's lawsuit was tossed because the court could find nothing linking terrorist organization Hamas to the Dallas shooter, despite Pennie's baseless proclamations otherwise. And his lawsuit was so off-base -- suing social media companies over the shooting of cops by a Dallas resident -- the court couldn't even be bothered to address the Section 230 ramifications. Pennie was represented in this case by Keith Altman of Excolo Law (often in conjunction with 1-800-LAW-FIRM), who has filed dozens of similarly stupid lawsuits trying to hold social media companies directly responsible for the violent acts of terrorists.

"Ambassador" Marc Ginsberg is suing Apple because of content Telegram users post. I'm not even kidding. And he's being represented by ex-Excolo litigator Keith Altman, who has moved on to Lento Law Group. But he's apparently still doing the same kind of litigation: suing the wrong parties over things other people are doing or have done.

The lawsuit features two plaintiffs (Ginsberg, Coalition for a Safer Web) because CSW employs Ginsberg and provides him with an iPhone. Apple is the defendant because it has refused to remove Telegram from its app store. The lawsuit is full of relevant facts and evidence, like this:

Currently, Defendant Apple sells the iPad Mini 5 for $399+, the 2020 iPad is $329+, the 2020 iPad Air is $599+, the 12.9-inch iPad Pro is $999+, the 11- inch iPad Pro is $799+, the 12.9-inch iPad Pro is $799, and the 11-inch iPad Pro is $649+.

And this:

Defendant Apple sells the Series 3 Apple Watch for a starting price of $199, the Apple Watch SE S5 for a starting price of $279, and an Apple Watch Series 6 for a starting price of $399.

Ginsberg claims the Telegram app violates Apple's developer guidelines and California's hate speech law and should be removed from the app store. Because Apple hasn't removed the app, it has been downloaded and used by people who engage in anti-Semitic speech. (Ginsberg is Jewish.) Because Telegram refuses to remove this content, it somehow leaks into Ginsberg's life through the app store -- even if Ginsberg has never downloaded the app or engaged with its users.

Defendant breached their duty by continuing to host Telegram on the App Store despite Defendant’s knowledge that Telegram was being used to incite violence including violence against African Americans and Jews.

Ambassador Ginsberg is a Jewish person whose professional work requires he maintain a presence in the public eye.

As a result of this Anti-Semitic campaign that was coordinated on the Telegram app, Ambassador Ginsberg is forced to live in apprehension of religiously motivated violence being perpetrated against him.

Ambassador Ginsberg’s fear of religious violence has caused him substantial emotional harm including depression and anxiety.

All of this may be true. But suing Apple over distressing content carried on Telegram isn't going to work. Apple doesn't have a duty to remove anything from its app store that may cause distress to anyone. If anyone's responsible for the racist content being spread on Telegram, it's the people posting it. That targeted harassment is possibly being aided by a chat app is concerning, but Apple isn't culpable for the actions of users of an app it allows customers to download and use.

And conclusory arguments like this aren't going to convince a judge otherwise.

If was foreseeable to Apple that by allowing Telegram to continue to be available on the App Store that Apple’s conduct could lead to fear of violence by individuals, such as Ambassador Ginsberg.

By failing to remove Telegram from the Apple App Store, Defendant has proximately caused Ambassador Ginsberg’s emotional distress.

Plaintiff Ambassador Ginsberg has suffered injuries in an amount that exceeds $75,000.

The arguments get even worse. Ginsberg claims Apple deceived him into purchasing an iPhone by promising to enforce its app store restrictions -- restrictions Ginsberg claims are violated by Telegram remaining available. But Telegram appears to comply with Apple's rules for apps relying on third-party content because Telegram allows users to block accounts/content, report violations/abusive accounts, and provides contact info for users seeking to have questions and concerns addressed.

Somehow, Telegram's continued presence in the app store has rendered Ginsberg's phone nearly useless.

Defendant’s failure to enforce their own guidelines against Telegram has caused Ambassador Ginsberg and CSW to suffer economic loss by being deprived of a key benefit of the purchase and use of the Apple iPhone XR.

I don't see how this makes it past a motion to dismiss. Ginsberg has a problem with Telegram users' content. So he's suing… Apple. Even assuming Apple is wrong to allow Telegram in its app store, Telegram is multi-platform. It has an Android app and a desktop version. The racist conspiracies Ginsberg believes are targeting him and causing him verifiable, recoupable harm could have originated on other platforms. Suing Apple into submission isn't going to stop the behavior that's bothering Ginsberg. It's only going to enrich Ginsberg.

And that appears to be the whole point of this lawsuit: to hit the biggest target with the broadest allegations and hope for a quick settlement. There's nothing in here that carries any legal weight or explains why Apple should be held responsible for the racist content that has (allegedly) caused Ginsberg distress.

UPDATE: Ginsberg has now sued Google for the same thing, claiming Google isn't protecting him from Telegram users' content by allowing it to remain in the Google Play store. That covers another outlet for Telegram, but once again, suing Google isn't going to stop Telegram users from posting anti-Semitic content or otherwise making Ginsberg feel unsafe.

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