Portland Police Review Board Says It's OK For Officers To Lie To Get Someone To Stop Filming Them

from the police-lie dept

The Portland Police Department's Review Board -- a board composed almost completely of police and government officials -- concluded it's OK for a cop to lie about the law to shut down recordings.

Police officers seem to struggle the most when it comes to understanding the rights and protections given to citizens. For years, officers have abused any number of inapplicable laws to arrest citizens who recorded them. When laws and policies were changed in response to court decisions, the abuse of laws continued. The only thing that changed were department policies, which some officers just decided to ignore.

This hasn't always worked out well for officers, who often end up in court with their immunity stripped. Those that don't progress as far as the federal court system, however, are left in the hands of local complaint review boards. Even when the board is more independent than Portland's, board recommendations for punishment are often ignored in favor of minimal or no discipline.

This case, covered by The Oregonian following the release of Police Review Board records, shows an officer knowingly lied about the law and got away with it.

The bureau’s Police Review Board found Sgt. Erin Smith didn’t knowingly violate the police directive on truthfulness.

Not even with the lying?

The sergeant acknowledged he misrepresented the law to get Kerensa to stop videotaping him during a Nov. 30, 2016, demonstration in front of fuel storage facilities in Northwest Portland over the Dakota Access Pipeline.

Smith admitted to falsely telling Kerensa that he didn't have the right to film officers and threatened Kerensa that he could be arrested if he didn’t stop.

So, how does an officer lie without violating a policy directive on "truthfulness?" As it turns out, there are a few convenient exceptions to this directive. First, officers are allowed to use deception for "legitimate law enforcement purposes." But telling someone the law forbade them from filming cops isn't a "legitimate law enforcement purpose."

That's the conclusion Portland PD Police Chief Danielle Outlaw (yes, that's her real name) reached. But she said this was more an issue of performance than a truthfulness violation because the officer admitted to lying about the law. Half-credit, I guess. The officer's direct supervisor was even more charitable.

Smith’s supervisor, Traffic Capt. Stephanie Lourenco, found Smith’s deception was permitted under an exception in the policy that says deception is permitted when “necessary to protect the physical safety’’ of an officer.

Lourenco did not explain how a passive recording threatened the officer's safety. The generous application of the deception exception encourages officers to invoke it any time they lie to citizens to get them to comply with unlawful orders. Good times. Thank god the PD is engaged in some form of oversight. Otherwise, we might be subjected to even stupider rationalizations...

[Board members] argued that Smith didn’t knowingly violate the directive and that “deception’’ is an acceptable de-escalation tactic.

Even assuming this was the sort of situation that necessitated a de-escalation, how does lying to people result in calmer interactions? Feeding a line of bullshit to a citizen who knows it's bullshit isn't going to nudge anything towards a more peaceful resolution. Making it a practice to lie to citizens just because you know multiple exceptions allow you to doesn't do anything to improve officers' relationships with the people they serve.

Fortunately, this exoneration got a second pass from the city's far more independent Citizen Review Committee, which was thoroughly unimpressed with the PRB's logic. Chief Outlaw agreed to take a second look at the case the PRB had refused to act on. But in the end, lying to citizens about their right to record is only worth about one day's pay. Cops willing to spin the Wheel O' Accountability may find it pays off more often than not, especially when the PRB is willing to make almost any excuse for an officer's bad behavior.

Filed Under: 1st amendment, civil liberties, filming police, lies, police, portland, portland police, portland police review board, recording police

Appeals Court Denies Qualified Immunity For Transit Cop Who Arrested A Journalist For Taking Pictures Of EMS Personnel

from the try-to-keep-up-(with-policy-changes) dept

Last year, a federal court offered its sympathies -- but only limited recourse -- to a photographer who suffered a bogus "stop photographing us" arrest at the hands of a Dallas Area Rapid Transit (DART) cop.

Avi Adelman, a freelance journalist, was photographing EMS personnel responding to an apparent overdose. DART officer Stephanie Branch decided this just wouldn't do. She approached Adelman and got between him and the scene he was photographing. The officer then started laying down bullshit about "establishing a perimeter" and how his documentation was violating the HIPAA rights of person being attended to.

(If this crap about "HIPAA violations" sounds familiar, it's because law enforcement officers either don't understand how HIPAA works or they hope the person whose Constitutional rights they're violating doesn't understand how HIPAA works. This was the same excuse used by a Denver cop to detain a journalist who was recording the apparent arrest of a naked mentally-ill person in the middle of a public street. Just in case there are any cops lurking here, HIPAA violations occur when someone releases private medical info to unauthorized parties. It never happens when someone is suffering a medical emergency in a public area.)

Back to the DART case: despite Officer Branch including twenty-three false or inaccurate statements in her account of the arrest, she managed to dodge being directly held responsible for her violation of Adelman's First Amendment rights. Since the Fifth Circuit didn't clearly establish a right to record public servants until 2017, Adelman's 2016 arrest happened too soon for him to use that precedent to pierce Branch's qualified immunity. But Officer Branch was still on the hook for the Fourth Amendment violation. She appealed, but going up a level hasn't changed anything for the officer.

On appeal, the Fifth Circuit has upheld the lower court's decision, preventing Branch from eluding responsibility for violating Adelman's Fourth Amendment rights. Branch claimed she was unaware of the photography policy DART had put in place in 2014, which expressly permitted the actions Adelman was engaged in when Branch decided to arrest him.

But Officer Branch's actions were so obviously unreasonable, another officer and an EMT had this conversation while Branch was hassling the journalist. From the decision [PDF]:

DFR 1 – He was just taking pictures right?
Officer Cannon – Yea[h] that’s why I don’t know why she’s giving him a hard time[.]
DFR-1 – Why is she going crazy?
Officer Cannon – I don’t know[,] that’s going to be on her[.] [H]e can take all the pictures he wants[,] that’s why I’m not getting involved in that. . . .
DFR-1 – He knows he wasn’t doing nothing wrong so. . .
Officer Cannon – I don’t know why she . . . . There was no need for that[.]
DFR-2 – Yea[h] I don’t know where that idea came from but this is . . . because there is freedom of the press[.]

Her own agency came to this conclusion after an internal investigation:

“Adelman was not breaking any laws and would not lead a reasonable person to believe that he was committing a crime or had committed a crime or [was] about to engage in committing a crime. . . . [T]herefore the arrest of Adelman for criminal trespass was not based on sufficient probable cause.”

It also had this to say about Branch's actions:

“The evidence indicates that Officer Branch did violate the DART Administrative Employment Manual and did not refrain from activity which was illegal or could reflect negatively on DART when she made various inconsistent or mistaken statements on her DART Police [I]ncident Report . . . and made the arrest of Avi Adelman for criminal trespass.”

The court points out in a footnote that even if Branch was not present when the 2014 policy permitting photography was instituted, this failure to familiarize herself with DART policies is on her.

Branch asserts that she was reasonable in believing she had authority to order Adelman to leave because she was on sick leave when DART implemented the new Photography Policy that permits the public to take photos on DART property. [Branch was on sick leave from May 2014-January 2016. The policy was enacted June 2014.] The old policy apparently would have prohibited Adelman from being on DART property if he wasn’t using it for “transportation purposes.”

[...]

But Branch’s mistake was not reasonable. She didn’t misinterpret an unclear policy or law; she simply failed to learn about DART’s updated policy. And “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.” Heien, 135 S. Ct. at 539–40.

The case now goes back to the lower court where it seems likely Officer Branch won't be able to talk a jury into siding with her should the litigation reach that point. The established right to photograph public servants came along a little bit too late to help Adelman on his First Amendment claims, but at least he can still go after Branch for her bogus arrest and the night he spent in jail.

Filed Under: avi adelman, civil liberties, dart, ems, free speech, photographing police, qualified immunity, stephanie branch, transit police

New Mexico City Starts Crowdfunding Effort To Pay For Its Stupid Defense Of Constitutional Violations

from the self-righteous-but-not-self-sufficient dept

Is it good for governments to supplement their normal crowdfunding efforts (taxes) with something more voluntary? That's the question posed by this great Legally Weird post, which provides a number of examples of city governments asking citizens to dig a little deeper to pay for government things.

Whether or not they can is an unanswered legal question. No one appears to have challenged any of these efforts on policy grounds. Considering giving is completely voluntary, the efforts are usually harmless and underfunded. Whether or not they should engage in crowdfunding is a much more interesting question, although most answers will probably boil down to whether or not the person answering agrees with what the funds are being raised for.

Government crowdfunding efforts have been initiated to pay for park trash receptacles, to remove a Confederate statue, and to supply a public defenders' office with a much-needed cash infusion. Then there's the case that the Legally Weird post leads with.

The city of Bloomfield, New Mexico is asking citizens to pay its legal fees for it. The crowdfunding effort created by Brad Ellsworth, the city's finance officer, hopes to raise enough money to finish paying the $700,000 the city owes to the ACLU.

When we ask rhetorically why governments pursue highly-dubious litigation using public funds, this is the sort of thing we're talking about. The city came out on the losing end of a lawsuit filed by the ACLU on behalf of two Bloomfield Wiccans who disagreed with the city's placement of a Ten Commandments monument on the city hall lawn.

The city argued the separation of church and state was intact because the monument was paid for and created by private citizens. It even contained a disclaimer to that effect on the monument itself. The case eventually made its way to the Tenth Circuit Appeals Court, which found in favor of the ACLU. The court said that permanent monuments erected on city property are government speech, even if they're privately-funded.

The city countered the monument wasn't permanent. It said those providing the monuments needed to re-apply for prime city hall lawn position every 10 years. The court said there was no meaningful difference between ten years and permanent when the city placed no limit on renewals. The city petitioned the US Supreme Court, but the top court saw no reason to take up the case.

Fortunately, the city's residents didn't have to pay for this litigation. The Alliance Defending Freedom provided the city with pro bono legal services, saving taxpayers a considerable amount of money. But the city lost, and it now owes $700,000 to the ACLU.

Obviously, the city never prepared for this eventuality. The city has until 2021 to pay this debt off and has decided to make its first payment of $233,000 to the ACLU this year, using city budget funds. Its crowdfunding effort asks anyone -- city residents included -- to cough up the remaining $467,000. Its GoFundMe page contains a very self-serving statement that portrays the city as a fierce First Amendment warrior, rather than a participant in a project that violated the Establishment Clause of the Constitution.

In an effort to protect and defend private citizens' First Amendment rights, the City of Bloomfield opposed the ACLU's efforts to remove a former Ten Commandments historical monument from the front lawn at City Hall. The Ten Commandments historical monument sat alongside several historical monuments, including the Declaration of Independence, Bill of Rights, and the Gettysburg Address. With overwhelming public support, the City of Bloomfield opposed the ACLU's efforts by appealing all the way to the Supreme Court of the United States. Unfortunately, the District Court ruled in favor of the ACLU and the City of Bloomfield was ordered to remove the Ten Commandments historical monument, which has since been completed. The Ten Commandments historical monument now resides on property owned by the Bloomfield First Baptist Church.  

An unfortunate result of the City of Bloomfield seeking to defend its private citizens' First Amendment rights is that, because the City of Bloomfield lost the litigation, the City is required to reimburse the attorneys' fees and costs of the ACLU relating to the Ten Commandments litigation. The City owes $467,000.00 in attorneys' fees which must be paid by June 30, 2021. Given the overwhelming public support during the litigation, the City is reaching out to concerned citizens in an effort to help crowd fund the remaining balance owed in attorneys' fees. The City appreciates all of the support private citizens can offer.

To call the response "tepid" would be an insult to room-temperature tap water. More than two weeks into its campaign, the city has only managed to raise $1,775 -- 0.38% of its goal. Comments on the page suggest people aren't happy the city's attempt to stick citizens with the legal bill it racked up, especially after it apparently told residents this lawsuit wouldn't cost them a cent.

Sadly, the residents unwilling to donate to the city's crowdfunding effort will end up paying for this futile, stupid legal battle anyway. When this fails -- and it will -- the remaining balance will be paid off using tax dollars that definitely would be better spent on almost anything else.

Far too many municipalities are willing to use public funds to pursue dubious legal claims -- claims many residents likely don't support. And when they lose, that is added to the public's tab. Bloomfield's idiotic defense of Constitutional violations isn't an anomaly. The only thing that makes it stand out is its use of a crowdfunding platform to pay the legal bill. Otherwise, it's business as usual: the defense of unsupportable positions with the involuntary support of the public.

Filed Under: 1st amendment, bloomfield, civil liberties, crowdfunding, new mexico
Companies: aclu

Federal Court Says The DHS's Terrorist Watchlist Unconstitutionally Deprives Travelers Of Their Rights

from the fix-it-or-ditch-it dept

A federal court [PDF] has just declared the federal government's Terrorist Screening Database (TSDB) unconstitutional. It's not that the government can't maintain a database of travelers it feels are enough of a threat to hassle repeatedly, it's that it can't do this without providing more information to, and better redress options for, those it has placed on this list.

Unlike the "No Fly List," TSDB placement doesn't necessarily prevent those on the list from traveling. It just means they'll be subjected to enhanced screening processes and detentions that can last for hours. Travelers are not informed when they are put on this list. Nor are they told whether or not they are on this list if they ask the government why they're being searched and detained every time they attempt to board a plane or return from a foreign country.

The guidelines for placement on the TSDB are vague. They're also something the government isn't willing to discuss. A nomination can be performed by almost any federal agent for almost any reason. This is how the US government ends up presiding over a so-called terrorist watchlist that contains children as young as four years old.

The sole avenue of redress provided by the government does not work. The DHS's Traveler Redress Inquiry Program was revised after being declared unconstitutional by this same court in 2015. The new version was considered adequate for travelers placed on the more restrictive "No Fly" list. But it isn't adequate for those the government feels are benign enough to be allowed to board planes, but somehow still dangerous enough to be subjected to lengthy interrogations and highly-intrusive searches.

The entire redress process is a black box. The DHS takes the complaint, determines whether or not the person is on the TSDB, and then tells the complainant nothing. Unlike the revamped redress process for the "No Fly" list, possible watchlist members are never told whether or not they're on the watchlist, or whether they're still on it after the government has taken a second look at their nomination.

The government tried to dodge this lawsuit by claiming two things: first, that traveling around the country without being hassled is not a right. Second, it said the plaintiffs had failed to exhaust their non-litigation options, pointing to the very TRIPs process the court has declared unconstitutional. The court points out the plaintiffs are suffering real, ongoing harm due to their placement on this watchlist. That's enough to make the broken redress process the DHS offers unconstitutional.

Coupled with Plaintiffs' movement-related rights are their reputational interests and claims of reputational harm resulting from their placement on the TSDB. A person has certain rights with respect to governmental defamation that alters or extinguishes a right or status previously recognized by state law, known as a "stigma-plus."

[...]

Here, Plaintiffs' reputational interests implicated by their inclusion in the TSDB are substantial because of the extent to which TSDB information is disseminated, both in terms of the numbers of entities who have access to it and the wide range of purposes for which those entities use the information, including purposes far removed from border security or the screening of air travelers. For example, TSDB information is used in the screening of government employees and contractors, for which purpose access to the TSDB is provided to certain large private contractors to screen certain employees, as well as private sector employees with transportation and infrastructure functions.

Additionally, and significantly, the FBI shares an individual's TSDB status with over 18,000 state, local, county, city, university and college, tribal, and federal law enforcement agencies and approximately 533 private entities for law enforcement purposes. These private entities include the police and security forces of private railroads, colleges, universities, hospitals, and prisons, as well as animal welfare organizations; information technology, fingerprint databases, and forensic analysis providers; and private probation and pretrial services. The dissemination of an individual's TSDB status to these entities would reasonably be expected to affect any interaction an individual on the Watchlist has with law enforcement agencies and private entities that use TSDB information to screen individuals they encounter in traffic stops, field interviews, house visits, municipal permit processes, firearm purchases, certain licensing applications, and other scenarios. For example, Plaintiffs might experience in other interactions with law enforcement agencies or affiliated private entities the same kinds of encounters they complain about at the border being surrounded by police, handcuffed in front of their families, and detained for many hours. In short, placement on the TSDB triggers an understandable response by law enforcement in even the most routine encounters with someone on the Watchlist that substantially increases the risk faced by that individual from the encounter.

Given what placement on the list takes away from those on it, the process provided by the DHS to seek redress is not Constitutionally adequate.

DHS TRIP, in its current form, provides no notice concerning whether a person has been included or remains in the TSDB, what criteria was applied in making that determination, or the evidence used to determine a person's TSDB status. Nor does the DHS TRIP process provide the Plaintiffs with an opportunity to rebut the evidence relied upon to assign them TSDB status. Give the consequences that issue out of a person's inclusion on the TSDB, the Court concludes that DHS TRIP, as it currently applies to an inquiry or challenge concerning inclusion on the TSDB, does not provide to a United States citizen a constitutionally adequate remedy under the Due Process Clause.

The DHS will need to fix its redress process. Again. What may have sufficed for the more restrictive "No Fly" list does not come close to being constitutional when it comes to its other, far more expansive, watchlist.

Filed Under: civil liberties, dhs, due process, terrorist screening watchlist, terrorist watchlist, travel, tsdb
Companies: cair

Attorney General William Barr Declares War On The General Public

from the dangerous-man-in-a-dangerous-position dept

President Donald Trump set the tone for his administration as soon as he took office. Less than a week after his inauguration, he issued this statement:

One of the fundamental rights of every American is to live in a safe community. A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.

So far, the administration has failed to end the "dangerous anti-police atmosphere" or turn "living in a safe community" into a fundamental right. Trump may back the blue, but the blue keep making things worse for themselves by refusing to alter their tactics, their "us v. them" attitude, or their routine abuse of the rights of those they're supposed to be serving.

The former Attorney General, Jeff Sessions, wanted to roll back the clock for law enforcement, replacing the minor alterations of years of DOJ/law enforcement agency consent decrees with old school drug warring that shoots first and never asks questions.

Sessions is out and the new boss is in. Attorney General William Barr has already made it clear he believes tech companies should create encryption backdoors for law enforcement. Now, he's declaring war on the general public. His speech to a national police union gathering makes it clear the only people who matter are those wearing badges.

According to Barr, police officers are soldiers in a war zone.

[W]hen police officers leave their precincts every morning, there are no crowds on the highway cheering you. And when you come home at the end of the day after a job well done, there are no ticker tape parades.

One reason for this is that law enforcement is fighting a different type of war. We are fighting an unrelenting, never-ending fight against criminal predators in our society. While there are battles won and lost each day, there is never a final resolution – a final victory is never in sight.

It takes a very special kind of courage to wage this kind of fight – a special kind of commitment; a special kind of self-sacrifice.

This mindset already permeates much of law enforcement. Availing themselves of the military's surplus gear and vehicles, along with repurposed military tech, police officers have treated the neighborhoods they patrol as war zones. Anyone who isn't a cop is an enemy.

These supposed war zones have been getting safer and safer. There are a few outliers, but crime rates have been falling steadily across the nation for nearly 25 years. But you wouldn't know that from talking to cops, especially those that already look like soldiers and treat normal warrant service like a military operation.

William Barr wants a police state. He wants it because he's decided to trust the relentlessly negative propaganda spun by law enforcement, rather than the annual crime reports assembled by his own department. Barr says society is crumbling and it's up to armed men to restore order.

If people lose the values and moral discipline to control themselves, then government would increasingly have to use external force to keep order, and the community would gradually lose its freedom. This is what James Madison was talking about when he said, “We have staked our future on the ability of each of us to govern ourselves.”

We live in an age now when the institutions we have relied on to inculcate values and self-restraint have been under constant assault for over 50 years. As a result, we see about us increased social pathology: boys growing up without fathers; alienated and angry young men; gangs engaged in the most brutal violence; mass shootings; increasing mental illness and suicide among young people; a drug epidemic inflicting casualties beyond what we would sustain in a major war; growing domestic violence; an increase in sexual assaults and child exploitation.

Gang violence is down because crime rates as a whole have declined for two decades straight. Mass shootings are still a relative anomaly. If there is actually a drug epidemic, it seems ridiculous to assume doubling down on things that haven't worked for four straight decades will fix it. The police are ill-equipped -- perhaps deliberately -- to handle interactions with the mentally ill and suicidal. If domestic violence is growing, certainly law enforcement's participation in the problem isn't helping. Law enforcement agencies' inability/unwillingness to take sexual assault cases seriously has certainly contributed to this problem, but even these numbers have fallen, rather than increased.

Everything said here is either a lie or intellectually dishonest. And all of it is being used by Barr to push a narrative where cops are facing overwhelming odds with almost zero support.

Part of the problem is the mouthy citizens who demand officers be held to a higher standard.

Despite the fact that the majority of the American people do support the police, unfortunately, over the past few years, there has been an increasingly vocal minority that regularly attacks the police and advances a narrative that it is the police that are the bad guys rather than the criminals. Whenever there is a confrontation involving the use of force by police, they automatically start screaming for the officers’ scalps, regardless of the facts.

Barr says there's no problem here, other than the increase in police criticism. He even uses a popular idiom to describe what he views as a minimal issue, truncating it the way cops and their supporters always do to make it self-serving, rather than cautionary.

I am not suggesting there are never abuses. As with all human institutions there are sometimes bad apples; and we will deal with that. But these are very much the exceptions, not the rule. If anything, I continue to be amazed at the professionalism of our police officers in the most extreme circumstances.

Bad apples spoil everything in the barrel. They convert exceptions into rules. And, no, the DOJ will not "deal with that." Neither will most law enforcement agencies. Under Sessions, the DOJ stopped investigating civil rights abuses by police departments. With the feds out of the picture, local agencies are even less inclined to police their own.

There will be nothing but compliance, if Bill Barr gets his way. There will be no concerns for long-existing rights or the well-being of anyone police interact with. Why? Because cops are apparently owed respect under this DOJ. They no longer need to earn it.

The anti-police narrative is fanning disrespect for the law. In recent years, we have witnessed increasing toleration of the notion that it is somehow okay to resist the police.  

[...]

We need to get back to basics. We need public voices, in the media and elsewhere, to underscore the need to “Comply first, and, if warranted, complain later.” This will make everyone safe – the police, suspects, and the community at large. And those who resist must be prosecuted for that crime. We must have zero tolerance for resisting police. This will save lives.

This is nauseating. This is bootlicker telling a nation it needs to get busy licking boots. This is Barr telling people their rights are a distant second to efficient policing and speedy arrests.

As for your rights, only one of them may improve. According to Barr, your right to a speedy trial will attach immediately if you kill a cop.

We will be proposing legislation providing that in cases of mass murder, or in cases of murder of a law enforcement officer, there will be a timetable for judicial proceedings that will allow imposition of any death sentence without undue delay. Punishment must be swift and certain.

You get one right and you're presumed guilty until proven innocent.

Finally, Barr wants the American public to view law enforcement officers as gods among men.

One of my messages today is that the American people need to pay close attention to issues of public safety in their communities. As a society we should not take our police officers for granted.

I would like to see the American people gain a renewed appreciation of the noble work done by our police officers in protecting our communities. I would like to see increased recognition that being a police officer is the toughest job in the country, and it is getting tougher. I would like to see a greater commitment to supporting the police.

Barr can't make this happen. But if he can budge the needle a bit, more Americans will view cops as cops view themselves: powerful arbiters of justice that should never be questioned by those who pay their salaries.

This should not be taken lightly. These remarks to members of a powerful police union may seem a bit like playing it up for the home crowd, but Barr's record since he took office shows he has little interest in ensuring the Department of Justice actually lives up to its name. He taking an already-skewed perspective held by many in law enforcement and making it worse. And by his very presence, he's announcing to the nation the DOJ will side with cops in almost every situation, no matter how much abuse they engage in. He has elevated them above the people they serve and that is going to continue to harm the relationship they have with their communities, exacerbating the problems he claims he's going to eliminate.

Filed Under: civil liberties, doj, police, rule of law, william barr

ACLU Asks CBP Why It's Threatening US Citizens With Arrest For Refusing Invasive Device Searches

from the I-assume-'because-fuck-you,-that's-why'-is-the-answer-we'll-be-g dept

Just a reminder this is the sort of thing that is happening at our borders with exponentially-increasing frequency.

The agents proceeded to search my belongings and demanded that I unlock my smartphone and laptop. This was rather concerning for me. My phone and laptop are property of my employer and contain unreleased software and proprietary information. I’ve signed a non-disclosure agreement promising not to give anyone access.

Because I was uncertain about my legal responsibilities to my employer, I asked the agents if I could speak to my employer or an attorney before unlocking my devices. This request seemed to aggravate the customs officers. They informed me that I had no right to speak to an attorney at the border despite being a U.S. citizen, and threatened me that failure to immediately comply with their demand is a violation of federal criminal code 18 USC 111.

Those are the words of Andreas Gal, Apple engineer and outspoken defender of online privacy. Gal is a US citizen, not that you'd know that from the treatment he received from the CBP. Gal also has "Global Entry" status, which provides "expedited clearance for pre-approved, low-risk travelers upon arrival in the United States."

Global Entry is the CBP's version of the TSA's Precheck program. In both cases, the federal government is willing to respect a bit more of your rights in exchange for a lot of personal info and a bit of cash. You can see how well that's working out for Gal, who was told he could not speak to an attorney and would be arrested if he did not allow agents to search his devices. In addition, he was told his Global Entry status would be revoked and was only allowed to exit the CBP's custody by leaving his devices behind so the CBP could search them at its leisure.

The ACLU has lodged a formal complaint [PDF] with the CBP, demanding answers for its refusal to treat an American citizen like an American citizen.

CBP must ensure that its officers comply with the U.S. Constitution. Even at the border, the search of an electronic device is governed by the Fourth Amendment. To satisfy Ninth Circuit and Supreme Court law concerning electronic searches, any such search should be based on a warrant and be limited in scope to information relevant to the agency’s legitimate purpose in conducting the search. The attempted unconstitutional search of Dr. Gal’s devices illustrates that CBP’s policies do not in fact include the requirements necessary to safeguard the constitutional rights of people at the border.

The CBP has been given a lot of latitude to perform extensive searches at the border. But officers still need reasonable suspicion to demand US citizens unlock their devices for examination. Sadly, there's still no warrant requirement at the border, even after the Supreme Court's Riley decision. Multiple courts have held that securing our borders from threats like privacy advocates and Apple engineers is more important than respecting the rights the Founding Fathers said we were guaranteed.

The ACLU's complaint letter suggests another complaint is on its way to a federal court.

There was no basis for Dr. Gal to be detained and interrogated by “TTRT” officers with special training in “counterterrorism response.” Dr. Gal entered the United States as a holder of Global Entry status, available only to “low-risk” individuals. And Dr. Gal has been an entrepreneur, technologist, and public figure for decades. Designating Dr. Gal for interrogation by “TTRT” indicates that Dr. Gal was targeted because of his exercise of his First Amendment rights in expressing viewpoints that may be disfavored by the federal government.

Compounding violations is never a smart move, but courts have handed so much Constitutional slack to border agencies, it will be tough to step over the pile of ignored rights to secure a victory. But every challenge edges us closer to a decision that may finally find the federal government isn't free to ignore rights its supposed to be protecting just because there's a border involved.

(Hat tip to Techdirt Insider Jeffrey Nonken who dropped a link related to this story into our Insider Chat. And a hat tip to all the Insiders in the chat who are always dropping useful and interesting links into the sidebar of this site!)

Filed Under: andreas gal, cbp, civil liberties, device searches, global entry, privacy, rights
Companies: aclu, apple

Deputies Sued After False ALPR Hit Leads To Guns-Out Traffic Stop Of California Privacy Activist

from the too-important-to-implement-cautiously dept

Law enforcement agencies love their automatic license plate readers. ALPRs do what cops physically can't: scan millions of plates a year and run them against a number of shared databases. The systems are black boxes. The public is often given little information about how many plate images databases store or for how long. Law enforcement agencies rarely audit the data, providing zero insight on the number of false positives ALPRs return. Non-hit photos are sometimes held indefinitely, creating databases of people's movements.

All of these negatives are supposed to be outweighed by the fact that cops sometimes catch criminals with ALPRs. How often this happens is anyone's guess. Officials will tout the tech's ability to track down criminals, but these anecdotes are usually only provided when government officials start asking questions about the tech -- questions they should have asked during the approval process.

Getting tagged as a hit by an ALPR is a frightening experience for innocent drivers. The tech tells cops they have a potentially dangerous criminal on their hands and they react accordingly. Drivers are somehow supposed to prove a negative at gunpoint and their inability to do only ratchets up the tension.

A false hit by an ALPR has resulted in a federal lawsuit [PDF]. And the Contra Costa (CA) Sheriff's Department quite possibly found the worst person to pull over because a machine told it to.

As chair of Oakland’s Privacy Advisory Commission, [Brian] Hofer, 41, has railed against what he describes as the seemingly arbitrary use of Automated License Plate Readers -- cameras that ping police and private agencies by matching plate numbers with "vehicles of interest."

So the irony is not lost on him when he said he and his brother, a 23-year-old political science student at UC Berkeley, were detained, sometimes at gunpoint, on Nov. 25 when a license plate reader near the San Pablo Lytton Casino off Interstate Highway 80 alerted police that they were riding in a stolen car.

Out came the guns, attached to officers sure they had caught a car thief. Hofer and his brother were detained at gunpoint while their rental vehicle was searched. Nearly a half-hour passed before any deputy attempted to determine whether the rental vehicle/contract was legit. Compounded errors are always a potential problem, but they reach critical mass quickly when government power attached to deadly force is involved. Here's the backstory to the stop -- a string of system failures that could have resulted in injury or death.

Turns out though, that while the rental car he was driving had indeed been stolen from San Jose in October, either the police or the rental car agency hadn't updated the proper authorities that the white Getaround Kia had been recovered and should therefore be removed from the “hot list” database.

The question isn't necessarily whether or not officers responded to the hot list hit inappropriately. The question is whether this response -- which has the potential to see people not only wrongfully detained, but possibly injured or killed -- is worth the tradeoff. Law enforcement will always say the errors are worth the labor tradeoff when it comes to ALPRs. Citizens held at gunpoint and warrantlessly searched will always disagree with this assessment.

It's up to those policing the police -- city/county/federal authorities -- to make the right call when it comes to ALPRs. Without better data on these devices' potential for error, government officials are literally trading citizens' live and liberty for law enforcement convenience.

Filed Under: alpr, brian hofer, civil liberties, contra costa sheriff's department, license plates, police, privacy

DHS Watchdog Says CBP's Drone Program Is An Insecure, Possibly Rights-Violating Mess

from the your-tax-dollars-thrown-wildly-into-the-air dept

The CBP has drones. How many, it's not really sure. It depends on when you ask. Or how you ask. The EFF's FOIA lawsuit against the agency caused it to suddenly "remember" it had deployed drones 200 more times than it had previously disclosed.

The CBP's drones are a lending library for US law enforcement agencies. An audit of the program found the CBP's drones were more often used by others than by the agency owning them, despite this agency being charged with patrolling thousands of miles of US border -- something that might be aided by some additional eyes in the skies.

But the eyes were worthless. The Inspector General concluded it was an airborne boondoggle. The CBP wasn't malicious, just inept. As the IG saw it, the half-billion slated for drone use would be better spent on more personnel and ground-based surveillance.

Nevertheless, the drones continue to fly. When not straying far from the border to aid inland law enforcement agencies, the agency's unmanned aircraft are still aloft, engaging in surveillance no one can really say for certain is 100% legal. The Inspector General's latest report [PDF] shows the CBP has done very little to ensure its drone deployments are secure or legally-compliant.

CBP has not ensured effective safeguards for surveillance information, such as images and video, collected on and transmitted from its UAS. CBP did not perform a PTA [Privacy Threshold Analysis] for ISR Systems [Intelligence, Surveillance, Reconnaissance] used in the UAS [Unmanned Aircraft Systems] program to collect data because CBP officials were unaware of the requirement to do so. Failure to include ISR Systems in CBP’s information technology inventory enabled system deployment without CBP Privacy Office oversight. Without a privacy assessment, CBP could not determine whether ISR Systems contained data requiring safeguards per privacy laws, regulations, and DHS policy.

This is what's going to have to pass as the "good news" in "good news and bad news." There only appears to be bad news. CBP didn't implement security controls to safeguard its surveillance systems, including a failure to control access to ground control stations housing collected surveillance footage/data. The long string of screw ups listed in this report are the result of serious structural failure.

These information security deficiencies occurred because CBP did not establish an effective program structure, including the leadership, expertise, staff, training, and guidance needed to manage ISR Systems effectively.

This leaves the CBP's drone program susceptible to threats both external and internal. Additionally, the lack of a privacy assessment means the CBP can't say its surveillance doesn't violate civil liberties or local laws. CBP officials seemed to be entirely unaware of the need to perform an impact assessment prior to deployment. But the officials did agree it was someone else's fault they didn't know how to do their job. The IG saw the buck being passed by everyone it spoke to. The final resting place for the oft-passed buck was the outside contractor who set up the ISR system. When in doubt, blame the civilians -- a strategy that makes no sense when you're discussing the lack of compliance with DHS policy and federal regulations.

As the IG sees it, the ISR program operates without authorization or approval. DHS requirements have yet to be met by the CBP, so every one of its hundreds of drone flights have been, at the very least, policy violations.

The CBP also could not provide the IG with a security assessment report for its ISR system, suggesting this has never been done in the program's half-decade-plus of existence. Then there are other system-critical odds and ends the CBP can't seem to get a grip on. Unauthorized media devices/USB drives are being plugged into system-critical hardware. Software patches are delivered irregularly and inconsistently. No one appears to be tasked with monitoring system events on ISR systems and a plethora of outdated software is still in use, which means some system-critical software hasn't been patched in months or years and possibly may never receive another update.

Also described as "inadequate:" personnel management, physical access controls, staffing levels, and systems training.

So far, so government. But this a government agency with access to plenty of funding and advanced tech. It has plenty of tools but uses them poorly. Despite being told its unmanned systems were mostly useless, the CBP continues to pour money on the problems it won't fix, rather than follow the IG's last list of recommendations. It has access to plenty of surveillance tech, but won't provide proper training, perform mandated assessments, or even put together a half-assed organizational chart for its drone operations.

The CBP has shown it can't be trusted with the stuff that's given to it to use in its border patrolling efforts. Sadly though, the response from Congress year after year has been to give it more money and stuff to use poorly, unwisely, and possibly illegally.

Filed Under: 4th amendment, cbp, civil liberties, dhs, drones, inspector general, surveillance

Legislators Pushing A Patriot Act, But For Human Trafficking In The Wake Of FOSTA

from the what-could-possibly-go-wrong dept

When you're looking to expand the government's power, any crisis will do. Following the 9/11 attacks in 2001, legislators told us the terrorists hated us for our freedom. Then they rushed through the Patriot Act, demonstrating how much our own government hates us for our freedoms.

In the name of national security, the government was allowed to engage in warrantless searches (and warrantless wiretapping) as the Fourth Amendment was sacrificed to make way for secure skies and secure borders. More of the same is on tap at the federal level, thanks to another "crisis" -- one mostly manufactured by a number of government officials who want to expand their power in the name of all the trafficked children in the world.

Sex trafficking is the name of the game -- even if the game board seems mostly devoid of players. A number of grandstanders have taken shots at big online services, playing shoot the message board since it's easier to serve Craigslist, Backpage, or whoever than track down actual traffickers.

One of these grandstanders is Rep. Ann Wagner. Wagner has been leading the charge to destroy Section 230 immunity under the pretense of hunting down sex traffickers. Sex traffickers will go on trafficking. They'll just be harder to find. Meanwhile, the web gets worse for everyone as websites become less willing to provide platforms for third-party content.

Wagner has made outrageous claims and pushed hard for outrageous legislation. She was one of the leading forces behind FOSTA. But she's not done yet. As Elizabeth Nolan Brown points out in her excellent article for Reason, Wagner's new bill is another Patriot Act -- but with "human trafficking" standing in for "worldwide terrorism."

Wagner's bill (H.R. 6729)—the deceptively named the "Empowering Financial Institutions to Fight Human Trafficking Act" of 2018—is the latest in a long line of assaults on civil liberties disguised as attacks on the biggest crime panic of the decade, sex trafficking. Wagner alone brought us the SAVE Act in 2015 and FOSTA in 2018, both of which take aim at online anonymity, web publishing, social media, sex workers, and free speech under the guise of saving children from "modern slavery."

Specifically, H.R. 6729 would allow financial institutions, federal regulatory bodies, nonprofit organizations, and law enforcement to share customer bank records between them without running afoul of rules regarding consumer privacy and without opening themselves up to lawsuits. Ostensibly, this would be done "in order to better identify and report potential human trafficking or money laundering activities."

Wagner will strip immunity from websites and serve up immunity to banks. This plan to end sex trafficking isn't being carried out in good faith. Distorted facts, distorted stats, and a whole bunch of made up data is par for the course. So, it makes sense the banks won't have to operate in good faith either.

But these entities need not demonstrate that the "sharing was made on a good faith basis," according to the current text of the bill.

This sounds like legislative encouragement for fishing expeditions -- both by law enforcement and by financial institutions. The Patriot Act's expansion of government power already lowered the bar for law enforcement, allowing it to obtain records without subpoenas or judicial review. This bill expands the Patriot Act's confines past the War on Terror to sweep up anything that could conceivably be imagined as related to human trafficking.

The government has already abused the Patriot Act to investigate strip clubs, as Nolan Brown points out. Dropping the national security pretense will allow government agencies to dig into thousands or millions of additional financial transactions. Anything that looks like overreach will be excused by concern for the children or the supposed wiliness of sex traffickers.

Filed Under: ann wagner, civil liberties, fosta, human trafficking, patriot act, privacy, sex trafficking, surveillance

Ninth Circuit Says No, You Fucking May Not Arrest A Bunch Of Middle School Students To 'Prove A Point'

from the Lack-Of-Respect-(Misdemeanor) dept

The Ninth Circuit Appeals Court has upheld the stripping of immunity from a school resource officer who clearly violated the rights of multiple students, but still felt the need to be told twice by consecutive federal courts.

School is school and kids will get in fights. Some accusations about bullying brought several seventh grade students to the school's office, along with Deputy Luis Ortiz. Ortiz reached the limits of his training and experience extremely quickly when he was unable to determine who was bullying who or why these seventh grade students wouldn't give him the respect he so clearly felt he was owed. So, here's how he made the most (constitutional violations) of a bad situation. From the decision [PDF]:

On October 8, 2013, a group of seventh grade girls (twelve and thirteen year-olds) were handcuffed, arrested, and transported in police vehicles from their middle school campus to the police station. An assistant principal had asked a school resource officer, Sheriff’s Deputy Luis Ortiz, to counsel a group of girls who had been involved in ongoing incidents of bullying and fighting. School officials gathered the girls in a classroom to wait for Deputy Ortiz. The group included both aggressors and victims, and the school did not identify or separate them.

When he arrived on campus, Deputy Ortiz initially intended to verify the information the school had given him and to mediate the conflict. Within minutes, however, Deputy Ortiz concluded that the girls were being unresponsive and disrespectful. He decided to arrest the girls because, as he explained to them, he was not “playing around” and taking them to jail was the easiest way to “prove a point” and “make [them] mature a lot faster.” Deputy Ortiz stated that he did not care “who [was] at fault, who did what” because “it [was] the same, same ticket, same pair of handcuffs.”

Ortiz's decision to arrest a bunch of students to "prove a point" was corroborated by his own recording, which undermines the arguments he raised trying to secure immunity. The court doesn't appear to be pleased it has to handle a case where the defendant is so very clearly in the wrong, but it does what it can to ensure Ortiz will be at least as displeased as the judges are.

There's nothing nice said here about Ortiz's actions and the court sees no reason to hedge its opinion with faint praise for law enforcement in general. At best, it admits handling school situations like these can be complicated, but the complexity of the situation doesn't excuse Ortiz's probable cause-less mass arrest of middle school students.

Deputy Ortiz clearly stated that the justification for the arrests was not the commission of a crime, since he did not “care who is at fault,” nor the school’s special need to maintain campus safety, but rather his own desire to “prove a point” and “make” the students “mature a lot faster.” The arrest of a middle schooler, however, cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect.

[...]

Deputy Ortiz faced a room of seven seated, mostly quiet middle school girls, and only generalized allegations of fighting and conflict amongst them. Even accounting for what Deputy Ortiz perceived to be nonresponsiveness to his questioning, the full-scale arrests of all seven students, without further inquiry, was both excessively intrusive in light of the girls’ young ages and not reasonably related to the school’s expressed need.

As for any questions about whether or not it had been clearly established officers cannot arrest students to "prove a point," the court quickly dispenses with that discussion:

At the time of the students’ arrest, it was clearly established that a police seizure at the behest of school officials must, at a minimum, be “reasonably related to its purpose, and must not be ‘excessively intrusive in light of the age and sex of the student and the nature of the infraction.’” Defendants do not—and indeed, cannot—meaningfully contest Deputy Ortiz’s motivation for the arrests, which he stated multiple times. No reasonable officer could have reasonably believed that the law authorizes the arrest of a group of middle schoolers in order to prove a point.

The court is also unimpressed by the officers' attempt to lie their way into the clear.

Defendants… claim that the students’ behavior in the classroom justified the arrest because there was reason to believe the students would engage in imminent fights. That assertion is belied by the audio record of the encounter, which “quite clearly contradicts the version of the story told by” the officers. The students were mostly silent, only speaking to respond to the questions posed to them. But even taking at face value Deputy Ortiz’s claim that the girls were being disrespectful to him, and whispering among themselves, this conduct in no way rose to the level of probable cause that could have justified their arrests.

In fact, as the court notes, Ortiz never attempted to determine which students were engaged in bullying before arresting them. The three plaintiffs suing him were all victims of the bullying and they were rung up just like the instigators.

There's no ducking the lawsuit. On top of that, Ortiz (and another officer named in the lawsuit) will be facing state claims in addition to the federal civil rights violation allegations. Without a doubt, officers sometimes arrest people simply to "prove a point." But usually they'll do it with a bit more subtlety and try to eliminate any recordings that might undermined their official narrative. Ortiz was so determined to teach a bunch of uncooperative seventh graders a lesson, he completely forgot to make the arrest minimally plausible.

Filed Under: 9th circuit, arrests, bullying, civil liberties, civil rights, luis ortiz, middle school, prove a point, school resource officer