Prosecutors Have Pulled Data From More Than 100 Phones Seized From Inauguration Day Protesters

from the collect-it-all,-sort-it-out-later dept

Fri, Mar 24th 2017 9:08am — Tim Cushing

More than 100 phones taken from arrested Inauguration Day protesters have had their data exfiltrated, apparently in hopes of pinpointing perpetrators of damage and additional (but unarrested) suspects. As Buzzfeed reports, the unusual investigative step doesn't appear to have been hampered by device encryption.

Prosecutors are extracting data from more than 100 locked cell phones seized during arrests in downtown Washington, DC, on President Trump’s Inauguration Day, according to court papers prosecutors filed on Wednesday.

Prosecutors said they had search warrants to pull data from the phones, which were taken from individuals arrested on Inauguration Day, including some who were not indicted. All of the phones were locked, according to the government, “which requires more time-sensitive efforts to try to obtain the data.” But the filing appeared to indicate that they were successful in accessing information on the phones.

Presumably, prosecutors are looking for communications and photos that will nail down charges against protesters who directly caused $100,000 worth of damage. (Or maybe they're just looking for paystubs?) Another clue can be found in the Motion for Protective Order [PDF] filed by the US prosecutor before turning over the data to defendants' lawyers.

The police were able to arrest approximately 230 of the rioters that day; all of them were charged with violating DC. Code 22-1322 (Rioting or inciting to riot). However, many other rioters evaded arrest by forcibly charging police officers and fleeing.

It looks like the government prosecutor isn't satisfied with the 214 indictments it already has. Cell phones of "unindicted arrestees" have also been searched. Unusually, the data collected isn't being separated. Instead, defense attorneys will have all the access prosecutors have: a full dump of everything and the responsibility to sort out what is or isn't relevant to their case.

According to the filings on Wednesday, the government plans to produce the information it collects from the seized phones to the defendants by way of an electronic database that would be made available to defense counsel. The extracted data includes irrelevant personal information, prosecutors said, so they’re seeking an order from the court that would prohibit defense lawyers from copying or sharing information unless it’s relevant to defend their client.

The cell phone searches sound sketchy, especially when law enforcement has apparently acquired 100 cell phone-sized warrants or, worse, one warrant to search them all. The cell phones searches aren't the government's only bulk operation. Prosecutors are also hoping to prosecute in bulk, dividing the 200+ indictees into four categories for faster processing. One of the defense lawyers involved is fighting this move, pointing out the Constitution takes precedence over the government's convenience.

Christopher Mutimer, a defense lawyer representing one of the defendants, told BuzzFeed News by email on Wednesday that he would oppose efforts by the government to hold joint trials.

“These cases should be tried individually in a manner that protects each individual defendant’s constitutional rights,” Mutimer said. “Not in groupings that make the trials most convenient for the government. Grouping individuals for trial creates a danger of wrongful convictions based on guilt by association.”

Other constitutional inconveniences will have to wait as well. The presiding judge hasn't granted the data dump court order yet but has told arrestees any unconstitutional searches will have to be sorted out during their trials, not prior to prosecution. Expect statements of expertise from law enforcement officers where the word "drug dealer" has been replaced with "protester" to explain the likelihood of finding evidence of ~~drug dealing~~ felony rioting on more than 100 seized and searched cell phones.

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Filed Under: arrests, exfiltrated, inauguration, investigation, phones

50 Comments

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Reader Comments

The First Word

“

Prosecutors are also hoping to prosecute in bulk, dividing the 200+ indictees into four categories for faster processing.

It's like the reverse of a corporation.

The point of a corporation is to diffuse risk across the investors. Today that includes legal risk. No individual faces a penalty when HSBC gets caught knowingly money laundering for criminal organizations or helping Iran and North Korea circumvent nuclear-weapons sanctions. Instead the company pays a fine equivalent to a month's profit.

The bulk trials do the reverse. Someone commits vandalism. Police cordon off the area and arrest everyone in it. Instead of diffusing risk, they diffuse innocence. It doesn't matter that few if any of those charged were actually guilty. A lack of evidence connecting an individual to a crime no longer matters. Reasonable doubt no longer applies. Someone committed a crime, so everyone is guilty.

Corporations are people. And now, individuals are not.

—Roger Strong

”

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TechDescartes (profile), 24 Mar 2017 @ 8:19am

LOTR Warrant

The cell phone searches sound sketchy, especially when law enforcement has apparently acquired 100 cell phone-sized warrants or, worse, one warrant to search them all.

If they were trying to establish probable cause to search each arrestee's residence to find and search a phone, I would agree that one "Lord of the Rings" warrant to search them all would be a problem. But in this case, these phones were all in the alleged rioters' possession at the scene of the crime. The probable cause for the search likely is the same across all of the phones: they could have been used to coordinate the riot.

This isn't a "whatever devices we might happen to find at the location" warrant, as in the Lancaster, California case.
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Anonymous Coward, 24 Mar 2017 @ 9:45am

That was supposed the basic strategic tactic of the Black Block: for everyone to be dressed in black and have their faces covered, so that the minority that actually engaged in destructive rioting could blend in with and be indistinguishable from the larger number who protested lawfully.

However, such tactics never work in a 'police state' or military occupation, in which case anyone who even remotely fits the profile will be treated as guilty until proven otherwise.
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Anonymous Coward, 24 Mar 2017 @ 9:57am

Look at videos. These thugs were too well organized. It was staged.
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Wyrm (profile), 24 Mar 2017 @ 10:00am

"one warrant to search them all."
... And in the database bind then.
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Roger Strong (profile), 24 Mar 2017 @ 10:13am

We're familiar with this in Canada. At the 2010 G20 summit in Toronto, "230 rioters" would mean "one or more vandals plus all the innocent bystanders in the area when police cordoned it off." It was the same in Washington.

At the 2007 North American leaders summit in Montebello, Quebec, it was undercover police carrying rocks and trying to provoke a riot. They were identified because they were still wearing very distinctive police footwear.

This is why they want bulk trials.
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Anonymous Coward, 24 Mar 2017 @ 10:21am

I think someone mentioned it here before, but it would be interesting if someone rigged up their device to act like a USB killer.

https://www.usbkill.com/
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Anonymous Coward, 24 Mar 2017 @ 10:23am

Re:
>It was staged
To what end?
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Anonymous Coward, 24 Mar 2017 @ 10:28am

Re:
And with software to analyze them!

http://gangscope.com/

Replace the word "gang" with any organized group of your choosing.
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AC, 24 Mar 2017 @ 10:30am

Re: LOTR Warrant
One Warrant to find them?
One Warrant to Search them?
No.
One Warrant to to bring them all, and in the Darkness Bind Them.
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Anonymous Coward, 24 Mar 2017 @ 10:40am

Re: Re:
"Riots"

A dozen or so professionally masked thugs arrive all at once, act very efficiently to generate photo ops, and then move on queue to another street block. Too good to be true.
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AEIO_ (profile), 24 Mar 2017 @ 11:01am

Re:
"[those] actually engaged in destructive rioting could blend in with and be indistinguishable from the larger number who protested lawfully."

Ahhh, I was going to gripe about this ("destructive rioting"? WTH?) but then I remembered about the Boston Tea Party.

Still, "No Taxation Without Representation" isn't quite the same as "Not My President" (Read: I don't like the results of the election and I'm going to do something about it AFTER THE FACT.)
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Roger Strong (profile), 24 Mar 2017 @ 11:09am

Prosecutors are also hoping to prosecute in bulk, dividing the 200+ indictees into four categories for faster processing.

It's like the reverse of a corporation.

The point of a corporation is to diffuse risk across the investors. Today that includes legal risk. No individual faces a penalty when HSBC gets caught knowingly money laundering for criminal organizations or helping Iran and North Korea circumvent nuclear-weapons sanctions. Instead the company pays a fine equivalent to a month's profit.

The bulk trials do the reverse. Someone commits vandalism. Police cordon off the area and arrest everyone in it. Instead of diffusing risk, they diffuse innocence. It doesn't matter that few if any of those charged were actually guilty. A lack of evidence connecting an individual to a crime no longer matters. Reasonable doubt no longer applies. Someone committed a crime, so everyone is guilty.

Corporations are people. And now, individuals are not.
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I.T. Guy, 24 Mar 2017 @ 11:27am

Re: Re: Re:
I thought the same thing watching it. All this supposed rage but their actions seem almost mechanical. Some comical.
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Roger Strong (profile), 24 Mar 2017 @ 11:29am

Re: Re:
One nitpick: It wasn't "No Taxation Without Representation"; those taxes were long gone.

But then the tax on tea was dropped too. Which made legally imported tea cheaper. Which in turn was putting smugglers of Dutch tea - like John Hancock - out of business. Which is why the tea was thrown in the harbor rather than "liberated."

The Boston Tea Party was a protest against *lower* taxes. One of the things that's always confused me about the modern Tea Party.
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I.T. Guy, 24 Mar 2017 @ 11:30am

Re:
I remember that.
https://www.youtube.com/watch?v=St1-WTc1kow
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That One Guy (profile), 24 Mar 2017 @ 11:49am

Such concern
The extracted data includes irrelevant personal information, prosecutors said, so they’re seeking an order from the court that would prohibit defense lawyers from copying or sharing information unless it’s relevant to defend their client.

Not mentioned: Any steps taken to keep the police from looking through that 'irrelevant personal information', but hey, I'm sure they're being very careful to narrow the scope of their searches and immediately deleting any data unrelated to the investigations that they stumble upon on accident during their narrow searches.

As for the bulk trials, if the judge gives that abomination of the legal system a pass they might as well resign on the spot and just let the prosecution hand out convictions as desired, because allowing something like that will have indicated that they don't give a damn about even the most basic tenants of the legal system, 'Innocent until proven guilty in a court of law', where the prosecution has to demonstrate guilt of the accused, not just guilt of the group the accused might have been lumped into.
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Anonymous Coward, 24 Mar 2017 @ 3:44pm

Re: Such concern
just let the prosecution hand out convictions as desired

They don't now?

They threaten to prosecute for crimes that will get you 1,000 years in solatary, or cop to a 2 year conviction via a plea deal from a segment of society that:

1a. Normally doesn't have enough money to eat regularly or live in a nice neighborhood, let alone retain a competent lawyer

1b. Miranda council that is pressured to get their clients to accept a plea deal and avoid trial
1. Usually has no idea how bad the US "justice" system is already.
2. be a defendant with a jury pool that has been proven to think "Well, if he wasn't guilty, he wouldn't be here."
After which they will be embroiled in a "justice" system that in many states is designed (via being outsourced to private industry) that has absolutely no interest or ability to "reform" those that are in need of it, with a financial interest in making sure they never complete their prison sentences (continuing revenue).

In a lot of ways, it would be more honest to actually let the DA simply hand out convictions. At least that way most would have proof to go with the lack of doubt that the system really is rigged against them.
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Bergman (profile), 24 Mar 2017 @ 5:06pm

Re: Re: LOTR Warrant
One Warrant to Search them all, one Warrant to find them, one Warrant to bring them all and in the Darkness, bind them.

In the land of D.C. where the feds lie...
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Bergman (profile), 24 Mar 2017 @ 5:10pm

Re:
Blending into an innocent crowd doesn't work so well when the government doesn't care if they have the right warm body in a cell, just that they have A warm body in the cell.

And when they're willing to fill a hundred cells with innocent warm bodies in hopes one of them will be the right warm body, such tactics will backfire. I'd say hilariously backfire, but it's not funny at all to the other 99 people.
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Bergman (profile), 24 Mar 2017 @ 5:11pm

Re: Re:
Police?
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Bergman (profile), 24 Mar 2017 @ 5:12pm

Re:
Wouldn't be too hard to do, though you wouldn't be able to actually make calls on it.
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Anonymous Coward, 24 Mar 2017 @ 5:54pm

I'll be first in line to admit having zero sympathy for these retards, but group prosecution is absolutely without exception a travesty of justice. Someone should be shot for trying that shit, and it ain't the defendants.
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Anonymous Coward, 25 Mar 2017 @ 1:53am

Re: Re:
Whether the tactic would be considered to have backfired depends on who organized the violence. Any violence works against the protesters, and US law enforcement has dirty hands when it comes to encouraging law breaking.
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eltee, 25 Mar 2017 @ 10:55am

violent protests
A couple stiff sentences handed down to persons convicted of vandalism and assault would change the entire picture
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Buck Wheaton, 25 Mar 2017 @ 10:58am

Since these protesters are socialists and in other venues would be demanding more government, it seems they don't really like more government when it is imposed upon them like they want to impose upon everyone else.
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Mike, 25 Mar 2017 @ 11:13am

They riot, they burn, they loot, they assault people and vandalize property.

And now they're bed wetting because the government isnt playing "fair".

Screw 'em.
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Dorzak, 25 Mar 2017 @ 11:17am

Re:
Kind of like this meme - http://libertyupward.com/wp-content/uploads/2015/02/wants-more-government.jpg
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Countertop, 25 Mar 2017 @ 11:20am

Re: they are all guilty
Regardless of whether they committed violence or vandalism, if the coordinated and communicated beforehand to dress the same so violence could occur then they are all guilty of conspiracy.
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Big Bill, 25 Mar 2017 @ 11:59am

RICO and Conspiracy
Now that they have the phones, they can sift through the cell phone records and see who traveled together in buses and cars to get to DC, where they stayed the night before the inauguration, where their staging areas were, how and where they infiltrated the parade route and reassembled, etc.

They can fetch their text messages and emails to see how the planning was done and how they updated each other on their changing location and numbers.

When little white Suzy Creamcheese from Boston weeps and says, "I just came to DC to see the event", they can show who she traveled with, who she texted, how her team moved together through the DC streets and who was walking side-by-side with her.

Slam dunk RICO and conspiracy charges.

George Soros had better update his "democracy building" kiddies with cell phone instructions, quick!
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Roger Strong (profile), 25 Mar 2017 @ 12:35pm

Re: violent protests
Only when convicting those who actually committed those crimes. Too bad that's not what prosecutors are trying to do.

Bulk trials are about punishing peaceful protesters by grouping them in with a much smaller number of violent ones.
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Roger Strong (profile), 25 Mar 2017 @ 12:44pm

Re:
Trump rallies had their share of racist and violent incidents. Should we attribute that to all Trump supporters too?

When John Franklin McGraw sucker-punched another man at a Trump rally, should police have cordoned off the area and arrested everyone there too, charged them all, and held a bulk trial?

Would you have applauded the government not playing "fair" there too?
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Roger Strong (profile), 25 Mar 2017 @ 12:47pm

Re: RICO and Conspiracy
Don't forget police riding in on unicorns and Trump building the perfect healthcare system, just to make your fantasy complete.
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Michael Reed, 25 Mar 2017 @ 1:11pm

The rioters were employing standard leftist tactics from the '60s. Create a target rich environment in order to overload the cops and the courts. Most perps are usually set free out of sheer exhaustion or exasperation. Not so much this time. I've read elsewhere about perps complaining bitterly how promises from organizers that they would skate proved false.
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Roger Strong (profile), 25 Mar 2017 @ 3:04pm

Re:
I hear they were using tunnels just like the Viet Cong at Củ Chi.

/s
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Anonymous Coward, 25 Mar 2017 @ 5:46pm

Better not allow my 5 year old to march or protest.So much for freedom of speech!
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K, 25 Mar 2017 @ 6:05pm

Re:
So basically, you're saying that all of the protestors knew in advance that violence and destruction of property would occur, and dressed uniformly in such a way as to provide violent rioters with a means of escape, and in your mind, they are 'lawful protestors'?

Is accessory not in your vocabulary?
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That One Guy (profile), 25 Mar 2017 @ 6:51pm

Mr. White, if you would...
IT'S NOT RICO, DAMMIT.
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Aludra, 25 Mar 2017 @ 7:55pm

Re: LOTR Warrant

If they were trying to establish probable cause to search each arrestee's residence to find and search a phone, I would agree that one "Lord of the Rings" warrant to search them all would be a problem.

Heh, I somehow doubt that.

But in this case, these phones were all in the alleged rioters' possession at the scene of the crime.

I didn't realize that being in downtown Washington, DC, on President Trump’s Inauguration Day was enough to loose your fourth amendment rights. I guess it might depend on what you look like.
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Aludra, 25 Mar 2017 @ 7:59pm

Re:

Look at videos. These thugs were too well organized. It was staged.

You mean like police agent provocateurs?
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nerd bert (profile), 26 Mar 2017 @ 12:04am

Re: Re: LOTR Warrant
Please read the article, it states:

More than 100 phones taken from arrested Inauguration Day protesters have had their data exfiltrated...

It's not merely being in downtown DC, it's being arrested for being involved in an act that is being criminally prosecuted. If you were arrested at the scene of a burglary would you expect your phone to be searched? I sure would.

As I guy who works on chips, I'll say this: unless your passcode is actually a passphrase and a long one at that, even perfect encryption software won't protect you if the phone is in my possession. Give me access to the hardware and I can almost certainly bring some industry standard tools to bear and read the data off the chips. (Yes, Apple does blow the JTAG fuse, but I can rebuild it and read all the data off the memory chips with some fancy but standard machines, just as an example.) Not that given the state of software today that I'd expect you'd need to go to those lengths, but they are available if you don't have a software crack in your back pocket and you have deep (government) pockets.
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The Wanderer (profile), 26 Mar 2017 @ 2:43am

Re:
The more power you have, the greater should be your obligation to "play fair".

Breaking or subverting the rules is only acceptable for the "little guy".

An action taken by the "little guy" can have significantly different character, and thus acceptability, from the exact same action taken by the mighty behemoth - and all the more so when the mighty behemoth takes actions not even available to the little guy.

(This is part of why many of Microsoft's tactics, at least historically, have been a problem; Microsoft continued, and possibly continues, to see themselves as the little guy trying to get ahead rather than as the 800-pound gorilla abusing its power.)
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Anonymous Coward, 26 Mar 2017 @ 3:29am

Re: Re: Re: LOTR Warrant
And the police never make a mistake in arresting someone which would be revealed if they had to show probable cause for a search warrant.
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Roger Strong (profile), 26 Mar 2017 @ 10:59am

Re: Re: Re: LOTR Warrant

It's not merely being in downtown DC, it's being arrested for being involved in an act that is being criminally prosecuted.

It's not "for being involved in." It's "for being in the same area as."
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Anonymouse, 27 Mar 2017 @ 9:09am

Re: Re: Re: Re: LOTR Warrant
No, you are involved if a riot breaks out and you don't leave the area. The Federal definition of a riot is:

A public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.18 U.S.C. § 2102.

So being a part of the crowd when violence breaks out and staying with the crowd makes you subject to criminal arrest.

You have the right to peaceably assemble. You do not have the right be a part of a violent assembly even if you are acting peacefully.
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Roger Strong (profile), 27 Mar 2017 @ 10:18am

Re: Re: Re: Re: Re: LOTR Warrant
Your quoted definition doesn't say that merely being in the area makes you a rioter. Being one of the three or more people committing damage, sure. But not a non-participant.

Police "kettling" often prevents the peaceful protesters from leaving the area. Also bystanders just going about their business without being part of the peaceful protest, let alone any vandalism.

Think about it: The Tea Party announces a Washington rally weeks ahead of time. They spend a small fortune organizing it. Tens of thousands of people take time off work and travel to attend.

Should one person (three at most) be able to stop the whole thing on the spot with a act of vandalism? Force everyone to leave the area or be arrested for rioting?
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The Wanderer (profile), 28 Mar 2017 @ 4:33am

Re: Re: Re: Re: Re: Re: LOTR Warrant
The quoted definition doesn't seem to say anything about "three or more people committing damage"; it says "one or more persons part of an assemblage of three or more persons", but only the "one or more" needs to be committing or threatening "an act or acts of violence" in order for the resulting public disturbance to qualify as a riot.

However, it also doesn't seem to say anything about the other persons in the assemblage being subject to arrest. (Or, indeed, even about the persons committing the act(s) being so subject.) This seems to be purely a definition of an event, saying nothing about consequences of falling within that definition, or about participating in that event.
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Wendy Cockcroft, 28 Mar 2017 @ 5:58am

Re: Re: Re:
That's interesting... but not what I was taught. Have you a citation for this, please? If you're right, my history teacher was wrong and America as we know it today was created by filthy pirates!!

So yeah, I'd like to know your source for that because... daayyyyum!!
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Wendy Cockcroft, 28 Mar 2017 @ 6:00am

Re:
Say what, now? Remember, people, "socialist" means "boogeyman." That's what statements like this mean. Scapegoat: anti-Trump protesters.

http://on-t-internet.blogspot.co.uk/2016/05/fear-my-boogeyman-politics-of.html
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Wendy Cockcroft, 28 Mar 2017 @ 6:02am

Re:
You won't regurgitate what the right wing press says? You must be a liberal socialist! /s
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TechDescartes (profile), 30 Mar 2017 @ 11:51am

Re: Re: Re: Re:

But then the tax on tea was dropped too.

No, it wasn't. The Tea Act remained in effect in the colonies. The reason the taxes were "lower" was because they effectively were "prepaid".

The Boston Tea Party was a protest against any taxes imposed by Parliament in the absence of colonial representation. The "lower" taxes (i.e., prepaid taxes) were a trick by the British to get the colonists to concede that Parliament had the authority to levy taxes in the first place.

Now, did tea smugglers and competitors of the British East India Company join in for their own competitive reasons? Yes. But without the primary cause of opposing all taxation by Parliament without representation, the Boston Tea Party never happens.

P.S. Wendy, keep in mind that Roger is from Canada. They use different history books.
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