Boston PD Finally Confirms It Has A Stingray Device In Its Possession

from the so-many-months,-so-few-disclosures dept

The Boston Police Department has been fighting two FOIA requests -- one from Mike Katz-Lacabe and one from Shawn Musgrave -- for months. We covered Katz-Lacabe's battle back in June. In that one, the BPD denied the release of documents related to Stingray devices on the questionable grounds that they were covered under the "investigative materials" exemption.

The information you have requested is exempt from disclosure by MGL c. 4s. 7(26)(f) and (n). Disclosure of the information contained in these documents would not be in the public interest and would prejudice the possibility of effective law enforcement. More specifically, the protection of such investigatory materials and reports is essential to ensure that the Department can continue to effectively monitor and control criminal activity and thus protect the safety of private citizens.

Whatever the BPD might have imagined about the documents' release "prejudicing the possibility of effective law enforcement," it certainly had no basis to claim the public had no interest in the contents of the withheld documents.

To date, it is still withholding the fiscal and policy documents Katz-Lacabe requested. It has, however, as Shawn Musgrave reports for the New England Center for Investigative Reporting, finally handed over its non-disclosure agreement with the FBI.

Boston police have confirmed that they deploy devices capable of secretly locating cell phones in real time, a controversial practice that critics say impinges on the public's privacy and constitutional rights.

Former Boston police commissioner Edward Davis signed an agreement with the FBI in 2013 to obtain the cell phone tracking systems, documents released to a privacy activist yesterday in response to a public records request reveal.

This is the first official confirmation that BPD is one of dozens of law enforcement agencies nationwide that deploy the controversial technology.

The agreement is one we've seen before in the hands of other law enforcement agencies, containing the FBI's instructions that all public records requests must be submitted to it first ("to prevent disclosure") and that cases should be dropped if the exposure of Stingray technology/capabilities seems inevitable. The document is signed by the police commissioner, a handful of detectives and a member of the Massachusetts State Police, who apparently also has access to the device.

That last signature seemingly makes this statement made last year by the state police technically correct.

In June 2014, the Massachusetts State Police told the ACLU of Massachusetts that it does not own any cell site simulators.

"Own?" No. But it still has one it can use.

Katz-Lacabe received the long-disputed document November 6th. Musgrave has yet to receive a response to his similar request, which dates back to April of this year. And neither requester has received the fiscal and policy documents they've asked for, so unanswered questions remain about the process used to procure the cell tower spoofer as well as the BPD's rules governing its use.

Filed Under: boston, police, stingray

City Of Boston Left License Plate Data Unprotected And Unencrypted

from the the-city-invites-you-to-perform-vanity-searches-on-its-ALPR-servers dept

If you want a rough estimate on how much respect law enforcement agencies (and the contractors they hire) have for your personal information, all you have to do is take a look at how well they protect the vast amount of data they slurp up.

Investigative reporter Kenneth Lipp has been digging up documents and data left unguarded by government contractors for several months now. While researching the use of ALPRs (Automatic License Plate Readers) in Boston, Lipp came across a publicly-accessible database of plate scans and motor vehicle records. The problem is: it wasn't supposed to be publicly-accessible.

Prior to two weeks ago, when this reporter alerted authorities that they had exposed critical data, anyone online was able to freely access a City of Boston automated license plate reader (ALPR) system and to download dozens of sensitive files, including hundreds of thousands of motor vehicle records dating back to 2012. If someone saw your shiny car and wanted to rob your equally nice house, for example, they could use your parking permit number to obtain your address. All they had to do was find the server’s URL.

This data wasn't being housed by Boston law enforcement. Instead, it was in the hands of its contractor, Genetec, which owns the popular ALPR brand, AutoVu. As Lipp points out, the city of Boston's first ALPR deployments were no big secret. The camera system was mounted on the roofs of Transportation Department vans along with sodium lights. The surveillance was no secret, but the data collected certainly was -- which was why it was left in the hands of a private corporation.

ALPRs were eventually noticed by watchdogs, and in 2004 spurred a public records request, which was denied by the BTD [Boston Transportation Department] on the grounds that the database was privately owned and “on loan” from AutoVu.

Ten years later, the city is still putting its faith (and its un-FOIA-able records) in Genetec. Not that Genetec deserves it. When Lipp pointed out its unguarded portal, it denied any responsibility for its carelessness.

Reached by email for this story, the company’s Vice President of Marketing and Product Management Andrew Elvish wrote that the server in question was a “location used by a customer to transfer data to be used in a parking or law enforcement patrol car, equipped with a Genetec system.” The data, Elvish added, was “not gathered by a Genetec AutoVu ALPR system … [which is] automatically encrypted.”

Lipp investigated further and found that the server was actually run by a Xerox subsidiary. Two hours after being notified of the security hole, the company closed it.

This would normally be the end of the story. But it goes on from there. What was uncovered during Lipp's foray into a supposedly secured and encrypted server points to further dishonesty, going beyond Genetec's disowning of a database it has (or had) direct access to.

As the ACLU's Kade Crockford points out, autogenerated notifications found on the server point to Boston law enforcement continuing to utilize a program it had previously told the public it would be abandoning.

I was surprised to discover these records because in 2013, in the wake of local reporter Shawn Musgrave's expose on privacy and civil liberties problems with the department’s license plate reader program, the Boston Police told the public that it was scrapping the program altogether. The Xerox records suggest scrapping isn’t at all what occurred. Indeed, the automated emails from BTD’s license plate reader program to the Boston Police, left on the Xerox server for anyone to download at will, appear to have started at around the same time the cops told the public they’d stopped using license plate readers. That's to say, instead of scrapping the program as the police told the public they would, BPD appears to have bootstrapped their license plate reader program from BTD data.

The government may claim license plate data has no expectation of privacy (unless you ask for it…) but people hardly expect their records to be exposed to the public at large. And they certainly don't expect them to be accessible from the web and stored in plaintext. Even if the public is willing to accept the portrayal of plate/location data as nothing more than the digital equivalent of human eyeballs on public streets, it will be far less likely to forgive the government's apparent disinterest in ensuring these records received even a minimal level of protection.

Filed Under: alpr, boston, license plate data, license plates, privacy, security
Companies: autovu, genetec

Boston Police Commissioner Wants Cameras Further Away From Cops, Criminal Charges For Not Assisting Officers

from the Accountability-Free-Zones dept

Earlier this year, Texas legislator Jason Villalba attempted to shortchange the First Amendment in the name of "officer safety" by making it illegal to film police officers from within a 25-foot, constantly-moving radius. His proposed law was greeted with criticism (and death threats, according to Villalba) and was consequently discarded because it was a terrible, arbitrary law that had only the briefest of flirtations with reality and logic.

For one thing, the law would have prompted officers to split their attention between the job at hand (whatever crime they were responding to/investigating) and Villalba's directive. Of course, officers could easily choose not to enforce this bad law, but far too many officers have been filmed leaving crime scenes just to hassle citizens with cameras. And the instant the officer started closing the gap between him and the photographer, a law would have been violated in letter, if not in spirit. Villalba is a staunch supporter of law enforcement agencies and his proposal was just an attempt to give officers a little less accountability.

So, despite this bill being ridiculed out of existence, hopes springs eternal in those who feel the public is the worst of their problems. Boston's police commissioner is now asking for the same accountability halo for his officers.

Boston police Commissioner William B. Evans is calling for laws to regulate the proliferation of cellphone-toting citizens and so-called cop watchers dedicated to recording potential police misconduct — a trend that has given rise to new challenges and risks for officers at crime scenes.

“If we can get legislation that protects both sides, I’m all for it,” Evans told the Herald late last week. “Should you be up in a police officer’s face and agitating them? Absolutely not. Because we’ve seen it through all these demonstrations. It interferes sometimes with us (being) able to look at the crowd and focus on what our mission is.”

Evans is wholly disingenuous throughout the course of this article. He first tries to spin this as a problem caused by citizens. His claim that people are "agitating" officers by getting "up in their faces" may be minimally true, but it's far more common to see police officers walking up to people filming them and getting in their faces. Generally, citizens filming police activities don't approach cops. It's almost always the other way around. So, if there's an issue here, it should be addressed with officers first, who seem far too willing to abandon the "mission" just to shut down recordings.

“But when you’re just out there for the very reason of, you know, trying to get a gotcha moment, that’s irritating to us,” Evans said, pointing to instances on July 4 and following the March shooting of officer John T. Moynihan, when police were met by a group of vocal video-takers at the edge of the scene.

This sort of argument has been raised before to defend actions taken against photographers. It's the law enforcement equivalent of the childhood go-to complaint, "He started it!" If officers would simply focus on their jobs rather than citizens and their cameras, there would be fewer "gotcha moments." Nothing about enforcing the law translates to "taking the bait." Every officer that shows restraint in the face of someone hoping for a "gotcha moment" will come out of the incident victorious. It will be the photographer who looks ridiculous, rather than the other way around. If Evans is using this as justification for a protective, camera-free space around cops, he's basically admitting his officers have self-control issues and cannot handle being "irritated."

Evans goes even further than Villalba, however, when he starts advocating for arresting citizens who don't leap in the moment they sense an officer might have lost the upper hand in an altercation.

“During the altercation, as officers struggled to subdue the suspect, they noted that they were being videotaped by the large crowd that had gathered,” officers wrote in their report. “In need of help, officers asked members of the crowd and a security guard for help. No help was offered.”

Evans said that should never happen. “I’d also like to see some legislation that if a cop is on the ground struggling with someone, like he was the other night and everybody is videotaping, someone should be held accountable for not stepping up and helping them,” he said.

It would seem that paying out settlements for police misconduct isn't financially damaging enough. Now, Evans wants to open his department and the city of Boston up to additional lawsuits for injuries sustained by citizens providing mandatory assistance to struggling cops. And what happens if the responding member of the public takes it too far and provides some additional excessive force of their own? The subdued suspect may look at police officers and their immunity and decide it's much easier to sue a citizen who isn't protected by this legal shield.

While I understand his frustration that the public seems more interested in watching than helping, the public is usually similarly unhelpful when other citizens are receiving a beatdown. And the larger the crowd, the less likely it is that anyone's going to put their own lives/health on the line for someone else. Evans says "someone" should be held responsible in situations like this, while discussing a "crowd." But who? Any random person? All of them? The security guard? If people are going to have their preference to remain uninvolved in altercations criminalized, so should officers who refuse to show the same deference to the public -- either by responding to every perceived threat with acts of violence or by pointing out that "protect and serve" isn't actually part of any police department's policies or credo.

Evans' low-key pitch for legislation on these issues shows he truly believes police officers deserve more rights than citizens. He believes cops should work in an irritant-free environment with the knowledge that the general public will put itself in harm's way to save a public servant.

Filed Under: assisting officers, boston, filming police, photographs, photography, police

Boston Police Hiding Administrative Stingray Docs Behind 'Investigatory Materials' Exemption

from the we're-not-gonna-talk-about-Stingray...-in-fact,-we're-gonna-leave-her-ri dept

More Stingray secrecy. MuckRock has been tangling with Boston's police department for several months over the release of Stingray-related documents. So far, the BPD has managed to keep these out of MuckRock's hands.

The first response it offered when denying Mike Katz-Lacabe's request was filled with boilerplate and nearly nonsensical legalese.

The information you have requested is exempt from disclosure by MGL c. 4s. 7(26)(f) and (n). Disclosure of the information contained in these documents would not be in the public interest and would prejudice the possibility of effective law enforcement. More specifically, the protection of such investigatory materials and reports is essential to ensure that the Department can continue to effectively monitor and control criminal activity and thus protect the safety of private citizens.

There's a healthy debate to be had about whether Stingray surveillance is in "the public interest," but that debate necessarily includes the public, and the denial of this request cuts the public out of the loop. Arbitrarily deciding whether or not a document is in the "public interest" shouldn't be left entirely in the hands of the agency seeking to withhold information -- any "prejudicing" of "possibly effective law enforcement" notwithstanding.

MuckRock appealed this decision. The state stepped in and told the Boston PD that it couldn't just issue boilerplate without explanation in response to these requests.

Your response states that the Department is withholding the responsive records because disclosure would not be in the public interest and would prejudice the possibility of effective law enforcement. You also state that withholding such information is essential to ensure that the Department can continue to effectively monitor criminal activity. However, this response does not explain how these requested records pertain to an ongoing investigation, confidential investigative techniques, or witness statements and also fails to demonstrate how disclosure of these particular records would prejudice investigative efforts as required by Exemption (f). With regard to Exemption (n), this response merely cites the exemption and does not address the security-related rationale needed to justify withholding records under this exemption.

As a result, the Department has failed to satisfy its burden of proving with specificity why the responsive records may be withheld in their entirety under Exemption (f) and Exemption (n). The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O(a). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and Regulations.

Accordingly, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Katz-Lacabe with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days, provide to Mr. Katz-Lacabe a written explanation, with specificity, how a particular exemption applies to each record.

Well, the Boston PD has fulfilled the letter of the state's order, and has provided Mike Katz-Lacabe with a more verbose answer, albeit one that is completely unchanged in terms of results. No documents will be released but, hey, at least the explanation runs an additional half-page!

More specifically, disclosing the existence of and capabilities provided by the type of equipment/technology referenced in your request would reveal sensitive technological capabilities possessed by the Department, and other members of the law enforcement community, and may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement. This would not only potentially endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal investigations. Additionally, the information contained within the requested documents could be used to construct a map or directory of jurisdictions that possess the investigative capabilities, thereby providing further information for potential suspects that could be used to evade detection.

Through public disclosures, the use of this technology will be rendered essentially useless for future investigations. In order to ensure that such and any information related to its functions, operation and use, is protected from potential compromise it is not subject to disclosure as a public record.

As MuckRock's Shawn Musgrave points out, the BPD has dropped its unexplained (n) exception ("likely to jeopardize public safety") in response to the state's clarification orders, but it still is claiming the documents sought are "investigatory materials," even though they really aren't.

Mr. Katz-Lacabe has already filed a subsequent appeal to the state. He contends that his request for fiscal documents and non-disclosure agreements — which all state and local law enforcement agencies are required to sign with the FBI prior to acquiring cell phone tracking devices — do not qualify as investigatory materials.

And they aren't. The FBI issues a slightly-tweaked boilerplate itself -- the NDAs it forces local law enforcement agencies to sign. Fiscal documents reveal little about capabilities and, depending on the extent of the redactions -- very little about what, if any, equipment is in the possession of these agencies. None of the requested documents come anywhere close to providing specifics about past or ongoing deployments.

The BPD's extreme reluctance to release these documents could very well trace back to the non-disclosure agreement it won't release. It may also be concerned that fulfilling this request could result in the release of actual investigatory materials by mistake -- a concern many agencies share after FOIA requests have resulted in "oversharing" by inexperienced FOIA response staff. No matter what the rationale for the full non-disclosure, the BPD's reliance on these exemptions for these specific documents is clearly bogus.

Filed Under: boston, foia, investigatory materials, stingrays

Every Kill A 'Good' Kill: How Police And The Media Cooperate To Disparage The Dead

from the 'past-performance-ALWAYS-indicative-of-this-thing-that-just-now-happened' dept

Cops kill a lot of people. Depending on who's counting, they've already killed between 385 and 470 people this year. This isn't to say that some of these killings weren't justified, but when details begin leaking out about the those killed, the amount of force in relation to the threat posed is often questionable.

Because no PD wants to look like the home of trigger-happy thugs, the media spin begins almost before the "suspect" has expired. Usaamah Abdullah Rahim, shot by Boston cops, was instantly memorialized by law enforcement and a compliant press with the following:

"allegedly radicalized by ISIS social media"

"may have been planning to attack police"

"preparing to launch an ISIS-inspired attack"

"wielding a machete"

"under 24-hour surveillance by the FBI Joint Terrorism Task Force"

The "machete" turned out to be just a knife, albeit a "military-style black knife," because black knives are inherently more evil and dangerous than those in any other color. #blackknivesmatter

What appeared to be a mishandling of a potentially-dangerous situation is now a fully-justified kill of a terrorist. Everyone is just supposed to take these claims at face value, despite the assertions raising more questions than they actually answer.

If Rahim was so dangerous, why didn’t the constant surveillance result in any charges? If — as the media spent all day claiming — he was on the verge of executing a horrific terror attack, why didn’t law enforcement agents have an arrest warrant or even search warrant? What was their intention in approaching him this way? Were they wearing uniforms, and — supposedly believing he was an ISIS operative eager to kill police — did they do anything to make him feel threatened?

Notably, none of the media outlets regurgitating police assertions bothered to probe the issues raised by these statements.

This, unfortunately, is all too common. Disparaging the dead is the national pastime, in terms of police-press relations.

A suicidal man wielding a knife is shot in his bed by police officers responding to a call to a non-emergency line at a local hospital -- in which his girlfriend stated he was threatening to hurt himself. Completely unprompted, this is what police had to say to the victim's mother:

Denise said [Detective Mike] Smith then told her about “this new trend in law enforcement now—it’s called suicide by cop.” She said Smith explained “suicide by cop” is when suicidal people provoke the police in an effort to end their own lives.

She said Smith wouldn’t tell her family where or how many times their son was shot.

Just like that, the dead man was posthumously awarded the department's "He Was Asking For It" award. Further details on the shooting were withheld, because a bloodstained bed with bulletholes in it hardly portrays the shooting victim as a "threat."

Akai Gurley, shot in the stairwell of a New York City apartment complex, was committing no crime when he was shot. Rather, the officer who shot him was patrolling the stairwells with his gun out and needed little more than a startling noise to justify opening fire. What did the media lead with?

Gurley has 24 prior arrests on his record, police said.

As if that mattered. The officer didn't recognize Gurley and assume he was looking for number 25. The officer couldn't even see who he was shooting at, because the stairwell was unlit. The unprompted rap sheet delivery by police sources was CYA in the form of presumed guilt.

When a Ferguson police officer shot an unarmed Michael Brown, the press led with what it had been fed: Brown had participated in a "strong arm robbery" (which was actually just shoplifting combined with an altercation with the owner). When an NYPD officer choked Eric Garner to death, the airwaves filled with mentions of his previous arrest record (for minor things like selling untaxed cigarettes) and even extended so far as to implicate the person who recorded the incident, who had "previous arrests" and the coincidental misfortune of a post-recording arrest for possession of a handgun.

Feast your eyes on this aggressive spin attempt:


But the (lack of a) devil is in the details. The sentence under the headline implying the takedown of a dangerous, police-targeting thug shows the "history" wouldn't even fill the unused space on a detective's business card.

The man killed by Pasco Police Tuesday evening had a past run-in with officers that resulted in an assault conviction.

A past run-in. Singular. Hardly a "history."

Can you possibly smear a 12-year-old who was shot to death within seconds of a patrol car arriving on the "scene?" You can certainly try.

Tamir Rice's father has a history of violence against women.

Relevant how?

People from across the region have been asking whether Rice grew up around violence. The Northeast Ohio Media Group investigated the backgrounds of the parents and found the mother and father both have violent pasts.

[Police and police supporters] from across the region have been [trying to spin this shooting of a 12-year-old]. The Northeast Ohio Media Group [has obliged them].

We're already skeptical of FBI claims that someone is "involved" in terrorist activities or has been "radicalized." The FBI has no one to blame for this perception but itself. The recent shooting that quickly turned an armed male into a terrorist on the prowl, operating at the behest of ISIS, is another in a long line of post-shooting justification attempts. In most cases, the officers involved know little to nothing about the person they've just killed. But that changes swiftly when an incident turns deadly. Suddenly, there's a killing to defend and every public record and every law enforcement database must be scoured to find that "justification." Somehow, a past conviction becomes current guilt, even if the victim was doing nothing illegal at the time and did little to justify the use of deadly force.

Sometimes -- very, very rarely -- there are exceptions. A Madison, Wisconsin cop shot an unarmed man during an "altercation." The police chief refused to play the "smear the victim" game.

The police chief refused to comment on Robinson’s criminal history or run-ins with police.

“I could but I choose not to,” he said at a press conference Saturday.

“I frankly think it is, for our purposes today, wholly inappropriate and I am not going to blemish anyone’s character, particularly someone's as young as his.”

This was backed up by the mayor of Madison.

Madison Mayor Paul Soglin, who said he met with Robinson’s family the night of the shooting, said officials aren’t going to put the teen on trial.

“That’s not what this is about. What this is about is finding out exactly what happened that night and to determine, then, responsibility,” he told CNN’s “AC360.” “We know that he was not armed, and as far as the police chief and I are concerned … the fact that Tony was involved in any kind of transgression in the past has nothing to do with this present tragedy.”

Unfortunately, the media refused to join the police chief and mayor on the high ground.

As much as Koval and Soglin conducted themselves admirably, the media is so bound to the gutter that it couldn’t bear the idea of not throwing dirt on the body.

"Wisconsin Circuit Court documents indicate Robinson pleaded guilty in December to an armed robbery that occurred last April."

Because the cops refused to smear Robinson, the media had to do its own dirty work and dig up whatever nastiness “court documents” might offer. And if CNN’s smear isn’t bad enough, try ABC’s:

"Inside, Kenny found Tony Robinson, a 19-year-old who had previously pleaded guilty to armed robbery charges in 2014."

They could have described Tony Robinson as “a 19-year-old who was loved by his family, who saved kittens from a tree, who had a lovely smile and joy for life, who appeared to have had an unforeseeable psychotic breakdown,” but no. Instead, they described him as a guy who was guilty of armed robbery charges.

Even if law enforcement officials bite their tongues when faced with the opportunity to clear themselves and disparage victims, media outlets can't seem to help themselves. Too many media outlets ingratiate themselves with local law enforcement -- not only by rebroadcasting questionable assertions, but by digging up any potentially damning fact that law enforcement left untouched.

Filed Under: boston, coverage, deaths, killing, police, usaamah abdullah rahim

Boston City Employees Barred From Hating On Olympics; Mayor Says Free Speech Still Intact

from the bwah? dept

The Olympics: an every other year experiment in curtailing the rights of its hosts while draining those hosts of as much money as possible. It's apparently gotten so bad that essentially nobody actually wants to host the olympic games. Those still relentlessly putting in bids to bring on this multi-nation quagmire of garbage probably don't care all that much that the IOC and its smaller sub-parts are money-grubbing, number-trademarking, viewer-hating megalomaniacs that quite possibly lack what we refer to as souls and may or may not be fully-manufactured Hitler-clones. But if they do care about those things, they better not say so, according to what is apparently boiler-plate legal language in Boston's agreement with the USOC.

Nobody who lives in Boston actually wants the city to win its bid for the 2024 Olympic games. And yet, in a joinder agreement between the city and the United States Olympic Committee, mayor Marty Walsh has signed a contract that forbids city employees from speaking negatively about the bid, the IOC, or the Olympic games. It's a great day for free speech in the cradle of liberty.

Boston, home of the Boston Massacre and the tea party revolt, the city from whence the USS Constitution launched, the home of both President John Adams', has decided to suspend their employees' free speech rights in favor of hosting a corporate sporting event packed with more authoritarian bullshit than your average Middle East dictatorship. Let that sink in for a moment.

Or, if you're like Boston's Mayor, Marty Walsh, just dust that crap off your shoulder cuz it's no big deal, yo.

"Mayor Walsh is not looking to limit the free speech of his employees and, as residents of Boston, he fully supports them participating in the community process. This was standard boilerplate language for the Joinder Agreement with the USOC that all applicant cities have historically signed. The Mayor looks forward to the first citywide community meeting that will be held next week."

The Mayor has also claimed that there would absolutely be no punishment for city workers who decided to express their feelings about the Olympics being a big bucket of money-sucking dogshit, but contracts are contracts, so they may not be inclined to test Walsh's honesty on that point. So I'll do it for them. The Olympics sucks. Just read it in a Boston accent.

Filed Under: boston, free speech, gag order, marty walsh, olympics
Companies: ioc

IP Sanity: Boston Strong Trademark Applications Denied

from the strength-in-numbers dept

With all of the trademark insanity we see here at Techdirt, it can occasionally seem like the USPTO doesn't ever render a good decision on whether or not to approve a mark. With that in mind, I occasionally like to highlight when trademark law -- one of the few IP laws that seems to get as much right as wrong -- is done correctly. Take, for instance, the case of the apparently zillions of organizations that attempted to trademark "Boston Strong" in the wake of the bombing of the marathon last year.

The Boston Beer Company, makers of Samuel Adams, was among many that had applied for the "Boston Strong" trademark. The USPTO, in a moment of uncommon clarity, denied it on the grounds that the phrase was both a poor representation of a brand and also had moved into the common lexicon surrounding the tragedy.

“It has resulted in a Facebook website; is used by the Boston Red Sox baseball club; appears on shoelace medallions; was the name of a concert in support of the marathon bombing victims; is the title of a planned movie about the marathon bombing; and appears emblazoned across the front of t-shirts provided by numerous different entities,” the decision said. “The use of the slogan is so widespread with respect to the marathon bombing as well as other uses, that its use has become ‘ubiquitous.' The applied-for mark merely conveys an informational social, political, religious, or similar kind of message; it does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others.”

While many of the companies in question were looking to apply the attempted trademark to some wonderful endeavors (Boston Beer Company, for instance, donated proceeds to support victims and their families), denying the mark doesn't stop any of that, it simply stops anyone from locking up what has become a common term of support for the city and victims of the bombing. It actually would have been interesting, had the mark been approved, to see how the charitable organization LiveStrong, famous for its affiliation with horrible-person Lance Armstrong, would have responded. That, however, didn't occur.

The larger point is that while we live in a world of permission culture and language-lock-ups via IP laws, we still see moments of clarity. There's simply no way a "Boston Strong" trademark would have served any public interest, and to lock that phrase up, even for charitable purposes, would have been a poor decision. The USPTO got this one right.

Filed Under: boston, boston strong, trademark, uspto
Companies: boston beer company

Boston PD Drops Ridiculous Felony Charges Against Carlos Miller And Taylor Hardy

from the the-power-of-public-shaming dept

As we recently covered, First Amendment activist/photographer Carlos Miller was facing felony charges for witness intimidation after posting the public phone number of the Boston Police Department's public relations officer on his website and encouraging readers to call and try to get wiretapping charges dropped against Taylor Hard, another PINAC photographer.

Apparently, the BPD didn't care for the deluge of calls and Detective Moore took it upon himself to make contacting the department's public relations number a crime. Miller responded by posting all of this publicly and hired a Boston-area lawyer to represent him at the hearing.

Miller finally has some good news to report.

The Boston Police Department agreed to withdraw the felony complaints against myself and PINAC associate Taylor Hardy on the condition that readers stop flooding their phone lines with calls demanding that they withdraw the complaints.

As if I would have any say in that.

But to paraphrase my attorney: Please. Stop. Calling. They get the message.

Here's his lawyer's statement:

“I am happy we were able to resolve this to Carlos’ and Taylor’s satisfaction, with criminal charge applications dropped by BPD, so that Carlos and Taylor can continue their work fighting for lawfulness, openness and transparency in police work across the country. Going forward they will not let up on their vigorous defense of citizen freedom. They understand that the law in Massachusetts is that they have to tell people if they are recording a conversation, and they have assured BPD that they will always announce that they are recording when asking for recorded comments, which has always been their practice.”

The Boston PD also had a few other requests. It also asked that Taylor Hardy remove his video of his conversation with the public relations officer (something he had already done) as well as asking that anyone recording phone calls with Boston public officials inform them that they are recording, something PINAC has always done.

Between the heat generated by the story's spread through the media and Miller's retention of one of the best lawyers in Boston, the ridiculous "witness intimidation" charges never even made it to the hearing.

Only hours after we had retained Duncan, he received a call from a police attorney asking to mediate, which is why Thursday’s hearing was postponed.

And as the attorneys mediated, the call floods continued, and the media exposure increased.

And there was pretty much nothing left for them to do but to lay their fiddle down because they knew they had been beat.

The BPD doesn't come out of this looking good. But it also doesn't come out this looking chastened either. All appearances indicate Detective Moore would have followed through with his witness intimidation charges and was only forced to relent in the face of mounting criticism. This suggests that whatever lessons were learned here will swiftly be forgotten when a citizen without such robust backing attempts to record police officers and other public officials. Officers might be more hesitant to simply shut down photographers knowing the info might make its way back to PINAC and places beyond, but the number of concessions the PD asked for before dropping the charges shows it's still trying to hold onto as much power as possible.

The letter from the Boston PD's legal counsel is even more troubling in its implication.

"As we discussed, I have notified the court that the probable cause hearing regarding the application for criminal complaints against Mr. Miller and Mr. Hardy is no longer necessary as the parties have reached a mutually agreeable resolution."

This letter gives no indication that the BPD felt that the witness intimidation charges were bogus. All this says is that the BPD will drop bogus charges when faced with large amounts of public criticism and a solid lawyer. There's nothing anywhere that suggests Det. Moore is rolling back his claims that contacting the public relations numbers isn't a crime. Instead, it looks as though Moore will still be able to selectively decide which phone calls are fine and which are "witness intimidation" and that the BPD will attempt to prosecute those not fortunate enough to generate media heat or secure a good lawyer.

PINAC's win does create some breathing room for citizen photographers, but the only thing that will be holding BPD officers back from bringing wiretapping charges will be the underlying threat of public humiliation, rather than legal precedents like the 2011 Glik decision.

Filed Under: boston, carlos miller, eavesdropping, police, taylor hardy, wiretapping

Boston Police Department Claims Contacting Its Public Affairs Number Is A Criminal Act

from the well-thank-fuck-these-people-are-in-charge-of-'enforcing-laws' dept

Most long-term Techdirt readers will be familiar with Carlos Miller, the man behind the Photography Is Not A Crime blog (usually shorthanded to simply "PINAC"). Miller, along with several other citizen photographers, have challenged local law enforcement officials repeatedly on their baseless claims that recording them is a crime.

Miller himself has been repeatedly arrested, harassed and charged with various dubious misdemeanors in an effort to curb his First Amendment rights. Now, Miller is being charged with something much more serious, thanks to the Boston Police Department's uncontrollable urge to silence critics and shutdown photographers.

Ken White at Popehat has this handy summary of the events leading up to the BPD's decision to charge Miller with "witness intimidation," a felony that carries with it a possible 10-year sentence.

The story begins typically for Photography Is Not A Crime with a story about a Boston Police Department sergeant thuggishly assaulting a photographer recording a traffic stop. A PINAC fan and journalism student named Taylor Hardy called the Boston PD's Bureau of Public Information on its public line to ask about the story. Hardy spoke with Angelene Richardson, a spokesperson for the Boston Police Department who provides information to the media and public. When Hardy published a recording of that call, the Boston Police Department arranged for him to be charged with wiretapping. Hardy claims that he informed Richardson that he was recording the call (though he did not successfully record that part of the conversation), apparently Richardson claims that he did not.

Boston's PD has received a lot of PINAC attention lately thanks to its officers' insistence on ignoring the outcome of the 2011 Glik decision, which saw the city pay out $170,000 to a citizen after the police wrongfully arrested him for violating the state's wiretapping statutes by recording them in public. The decision sent a message to citizens and citizen photographers, but apparently that message has yet to reach the ears of the city's police officers.

Now, as to the more problematic issue as to whether or not Hardy informed the BPD's public relations person that the conversation would be recorded (Massachusetts is a two-party consent state), it ultimately shouldn't matter.

A public relations person, whose sole purpose is to interact with the public, should assume that each and every conversation it has with citizens and journalists is being recorded -- especially the latter. There's no "expectation of privacy" inherent to public relations. Also, as Miller points out, the BPD is likely recording the calls on its end (the detective charging Miller has threatened to do the same to other callers, meaning someone's gathering info in Boston) which would make the two-party question moot.

After being informed that the BPD was pursuing Hardy on wiretapping charges, Carlos Miller posted the following to PINAC.

Maybe we can call or email Richardson to persuade her to drop the charges against Hardy considering she should assume all her conversations with reporters are on the record unless otherwise stated. Her listed number is (617) 343-4520.

Maybe we can build up an entire collection of recorded conversations with her. After informing her, of course.

The BPD's response to this action -- Miller posting a publicly available contact number (something Miller has done dozens of times previously without issue) -- was to charge him with a felony.

[T]hat led to Detective Moore filing a criminal complaint against me for witness intimidation, which I received Friday and is posted below, claiming that I caused Richardson all kinds of pain and grief because I posted her publicly available work contact info on my blog.

He also threatened to charge any readers who called her, making me think that perhaps the Boston Police Department is recording all incoming calls because how else would they gather the evidence to charge my readers for witness intimidation?

Ken White says there's some intimidation happening here alright, but not the way the BPD imagines it.

Indeed — an act of intimidation is involved. But it's an act of intimidation by the BPD, which is sending a clear message about how it will handle citizen dissent.

What an accomplishment: the Boston Police Department has discovered a way to make it a crime for citizens to contact the person it designates to talk to citizens.

The BPD has managed to dig itself a colossal hole in a very short period of time and it looks as if it has no interest in relinquishing its many shovels. Ordering someone from Miami (where Miller lives) to face charges in Boston over something so legally specious as declaring the posting of publicly available numbers to be "witness intimidation" is a prime example of how far some police officers will go to avoid having to admit they screwed up.

The Boston cops featured in PINAC's multiple stories all share the same attitude -- the law is whatever they declare it is, judicial decisions and the Constitution be damned. And when forced to confront the fact that they have it completely wrong, they simply ratchet up their intimidation tactics.

Defending yourself against clearly bogus charges isn't cheap. Carlos Miller has set up an Indiegogo campaign to pay for his legal representation. He's only seeking $2,200 ($2k for the lawyer plus $200 for indiegogo fees). Two bits of good news: 1) he's cleared that with several hours left to go and 2) he seems to have found himself an excellent attorney.

David Duncan, a partner at [Zalkind Duncan & Bernstein LLP], will take on both Taylor Hardy’s case of illegal wiretapping and my case for witness intimidation for that price, which is much lower than he would normally charge for two felony cases.

He was referred to us by my friends at the Digital Media Law Project, which is a site every one of you should become familiar with because it contains a wealth of legal information regarding media law, which in this day and age, applies to every single one of us who uses the internet…

$2,000 is good start but expenses could increase significantly if Duncan is unable to get the case tossed.

But Duncan doesn’t come cheap. Most good attorneys don’t. He is charging $2,000 to attend the hearing on our behalf. Then he will charge $6,000 to attend three hearings after that if it does continue.

And that might not even include the actual trial, if it comes down to that. Nor does it include travel expenses.

Now, some people can find Carlos Miller's tactics to be a bit on the aggressive side. But even those who find he somehow crosses the line in his pursuit of strengthening the First Amendment rights of American citizens have to find the above ridiculous, at the very least. This all began with BPD officers intimidating a photographer using false claims that his actions were illegal. Now, due to the BPD's insistence on compounding its errors, a blogger in Florida is facing felony witness intimidation charges in Massachusetts.

The longer this bizarrely wrongheaded crusade against the First Amendment continues, the longer the Boston Police Dept. will have to deal with irate citizens from all over the nation contacting its public phone numbers to complain about its intimidating actions. A simple apology and an offer to drop charges would have done wonders for the PD several days ago, but now, it's far too late. Detective Moore's actions -- basically declaring that contacting BPD's public numbers is a criminal act -- have put him and those involved in a position that only allows them to actively make things worse. The bells have been rung and no amount of additional LEO blustering will un-ring them.

Filed Under: boston, carlos miller, civil liberties, police, public relations, taylor hardy, wiretapping, witness intimidation

Aereo Wins Yet Another Ruling Over TV Networks

from the in-a-different-circuit dept

Aereo, the company that provides remote access to over-the-air TV via a series of antennas, has won yet another legal battle against television stations. As you may recall, there are a series of lawsuits by the TV networks against Aereo (and a weak competitor called FilmOn). Aereo was designed quite carefully to remain within the (somewhat insane) rules of copyright law, and so far that's been clear as it's won all of the cases against it so far. In the 2nd circuit (in NY) Aereo won at both the district court and appeals court levels. Just this week it's been noted that the broadcasters are likely to appeal to the Supreme Court.

But the NY fight is hardly the only one. Aereo was also sued in Boston by the Hearst Corporation (and, just this week, it was also sued in Utah). In the Massachusetts case, Aereo sought to have the case transferred to New York, noting that it was basically the same case it had won on in NY. And, like in all the other cases, Hearst Corporation, who owns some broadcast networks, argued for an injunction barring Aereo from operating. Today a judge denied both of those requests, noting that while the law is anything but clear, Aereo's interpretation of it makes much more sense.

In short, while the Transmit Clause is not a model of clarity, the Court finds at this juncture that Aereo presents the more plausible interpretation. As such, Hearst has not persuaded the Court that it is likely to succeed on the merits of its public performance claim.

Also, as in the NY rulings, the court here has found little evidence of irreparable harm if Aereo is left to remain in service:

While the prospect of harm is real, Hearst has not shown that WCVB will suffer the “full magnitude” of the claimed harm before the Court disposes of the case on the merits. Instead, it seems more likely that the harm will take several years to materialize....

Next, Hearst has not made a convincing showing that WCVB will be irreparably harmed in its ability to generate advertising revenue. Hearst’s claim that WCVB will not be able to measure viewers who access its programming through Aereo is simply not true. Nielsen, one of the main organizations tracking viewership for such purposes, announced in February, 2013, that it is beginning to include online viewership in its viewership totals.

Similarly, Hearst’s claim that Aereo’s services threaten its prospects of profiting from putting its programs online does not meet the standard for irreparable harm because WCVB’s plans to put programming online are insufficiently developed.

As with the recent rulings against the networks concerning Dish's AutoHopper commercial skipping technology, it's good to see more courts recognizing how to properly apply the irreparable harm standard.

Of course, as we've noted, Aereo's copycat, FilmOn, from wacky, publicity-seeking billionaire Alki David, which was put together sloppily in a weak attempt to copy Aereo, but without the same level of careful consideration of the complex situation in copyright law, keeps losing in court. The broadcasters (except for that case in Utah) seem a lot more focused on racking up more victories against FilmOn/Alki David, but that's actually why I think the judge's denial of Aereo's attempt to move this case to NY is a good thing. Having multiple good rulings that protect this kind of innovation in different circuits is a helpful thing.

Filed Under: boston, copyright, irreparable harm, massachusetts, retransmission, tv networks
Companies: aereo, hearst