Biden Administration Intervenes In Donald Trump's Silly Lawsuit Against Twitter To Defend Section 230

from the good-for-them dept

As you'll recall, a few months ago, former President Donald Trump sued Facebook, Twitter, and YouTube claiming that his own government violated the 1st Amendment... because those three private companies kicked him off their services for violating their policies. Yes, the premise of the lawsuit is that while he was president, the actions of three private companies somehow proved that the government (which he ran) was violating his rights. The lawsuits are nonsense and they have not gone well for Trump at all. Part of the (very) ridiculous argument is that Section 230 is unconstitutional.

The lawsuit against Twitter was recently transferred from Florida (where Trump filed it) to the Northern District of California (where Twitter wanted it), and now the Justice Department has said it will be entering the case specifically to defend the constitutionality of Section 230.

The United States is entitled to intervene in this action under the Federal Rules of Civil Procedure and by statute. Rule 5.1(c) permits the Attorney General to intervene in an action where, as here, the constitutionality of a federal statute is challenged. See Fed. R. Civ. P. 5.1(c). Rule 24 further permits a non-party to intervene when the non-party “is given an unconditional right to intervene by a federal statute.” Fed. R. Civ. P. 24(a)(1). The United States has an unconditional statutory right to intervene “[i]n any action . . . wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question[.]” 28 U.S.C. § 2403(a). In such an action, “the court . . . shall permit the United States to intervene . . . for argument on the question of constitutionality.” Id. Here, Plaintiffs have “drawn in question” the constitutionality of 47 U.S.C. § 230(c), and the United States has an unconditional right to intervene to defend the statute.

This is, of course, slightly interesting, because President Biden himself has called for "revoking" Section 230 and the DOJ has an unfortunate recent history of terrible ideas around Section 230. So, there was at least some fear that perhaps they wouldn't bother to defend the law.

Still, the DOJ likely realizes what a horrible precedent such a case could present, even if it doesn't fully agree with the law, so it's good to see them step in and defend the law. That said, it's hard to believe that any judge would actually take the ridiculous claims in the lawsuit seriously.

Filed Under: content moderation, doj, donald trump, section 230
Companies: twitter

Yes, Even If You Think Project Veritas Are A Bunch Of Malicious Grifters, FBI Raid Is Concerning

from the press-freedom-matters dept

I am no fan of Project Veritas. They appear to be a group of malicious grifters, deliberately distorting things, presenting them out of context to fit (or make) a narrative. Even so (or perhaps, especially so), we should be extremely concerned about the FBI's recent raid on Project Veritas' founder James O'Keefe and two of his colleagues.

The FBI and DOJ say they're investigating the apparent theft of a diary belonging to Joe Biden's daughter, Ashley, which later ended up in Project Veritas' hands. But, as we've discussed for many years, there are serious 1st Amendment questions involved when the government is raiding the homes of journalists and seizing their computers, phones, and other records. I'm assuming that some of you are going to say that this shouldn't matter because O'Keefe and Veritas aren't "real journalists," and we'll get to that argument later. But the simple fact is that after many years (and multiple administrations lead by both parties) in which the DOJ felt free to collect journalist records, earlier this year, we were told that the DOJ was finally going to no longer sweep up journalist records (though even then it noted that didn't apply in cases where the journalists themselves were targets of a criminal investigation -- as was the case here).

However, unless there's really strong evidence indicating that Project Veritas was involved in the actual theft of the diary, if the organization was merely the recipient of that diary, then these raids raise many, many concerns about violations of press freedoms and the use of law enforcement to intimidate the press.

Many others seem to be similarly concerned, as this is raising a lot of alarm bells for those who work on press freedom issues:

“This is just beyond belief,” said University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press. “I’m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.”

The ACLU is also quite concerned:

“Project Veritas has engaged in disgraceful deceptions, and reasonable observers might not consider their activities to be journalism at all. Nevertheless, the precedent set in this case could have serious consequences for press freedom. Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures. We urge the court to appoint a special master to ensure that law enforcement officers review only those materials that were lawfully seized and that are directly relevant to a legitimate criminal investigation.”

The Committee to Protect Journalists is equally worried:

“While we do not endorse some of the tactics Project Veritas employs, the FBI’s recent raids on the organization’s founder and his associates represent a concerning overreach by law enforcement,” said CPJ U.S. and Canada Program Coordinator Katherine Jacobsen. “The government must provide a clear link between members of Project Veritas and alleged criminal activity before searching their homes for information about source material. Conducting raids without this kind of link sets a dangerous precedent that could allow law enforcement to search and confiscate reporters’ unpublished source material in vague attempts to identify whistleblowers.”

But, yes, as mentioned earlier, I'm sure some people are saying that Project Veritas and James O'Keefe aren't "real" journalists. And, I'm certainly sympathetic to the idea that O'Keefe makes a mockery of actual journalism with his out of context and extremely misleading releases. But, part of having a "freedom of the press" means not allowing the government to determine who is and who is not press. Because that power alone creates massive limits on a free press. If the government can unilaterally decide that certain organizations are not "really" journalists, then that enables them to punish any news organization they want. Think how a Trump administration might use that power against the NY Times or CNN.

It's okay to call out Project Veritas for their ridiculous and misleading reporting. You can personally believe that they are doing dangerous work. But the government cannot unilaterally declare them not to be press in order to raid homes and seize notes -- because if they can, they can do that to any journalist.

Another bit of pushback I heard on this was that mere "receipt of stolen goods" is, itself, a crime, and that somehow makes it okay to raid O'Keefe and his colleagues. Again, though, that would set a hugely dangerous precedent. Remember, the Nixon administration went after the NY Times and the Washington Post for receiving the Pentagon Papers from Daniel Ellsberg. Tons of whistleblowers and leakers hand over documents to journalists that they have no legal right to copy or take (and they may face legal consequences in doing so). But the media who receives those works should not be subject to raids and intimidation from the government. Even if they're a bunch of ridiculous grifters intent on publishing utter nonsense.

Filed Under: 1st amendment, ashley biden, doj, fbi, free speech, james o'keefe, journalism, raids, reporting, source protection
Companies: project veritas

Fifth Circuit Says Man Can't Sue Federal Agencies For Allegedly Targeting Him After He Refused To Be An FBI Informant

from the hard-to-prove-anything-that-can't-be-confirmed-or-denied dept

The secrecy surrounding all things national security-related continues to thwart lawsuits alleging rights violations. The Fifth Circuit Court of Appeals has just dumped a complaint brought by Abdulaziz Ghedi, a naturalized American citizen who takes frequent trips to Somalia, the country he was born in. According to Ghedi's complaint, rejecting the advances of one federal agency has subjected him to continuous hassling by a number of other federal agencies.

The Appeals Court decision [PDF] opens with a paragraph that telegraphs the futility of Ghedi's effort, as well as the ongoing string of indignities the government has decided to inflict on people who just want to travel.

Abdulaziz Ghedi is an international businessman who regularly jets across the globe. Frequent travelers, however, are not always trusted travelers. In recent years, Ghedi has had repeated run-ins with one of America’s most beloved institutions: modern airport security.

The general indignities were replaced with seemingly more personal indignities when Ghedi decided he wasn't interested in working part-time for the feds.

Ghedi complains that ever since he refused to be an informant for the Federal Bureau of Investigation a decade ago, he has been placed on a watchlist, leading to “extreme burdens and hardship while traveling.”

This isn't a novel complaint. This has happened to plenty of immigrants and US citizens who visit countries the federal government finds interesting. Many, many Muslims have been approached by the FBI to work as informants. And many have reported their traveling experiences got noticeably worse when they refused to do so.

Without moving past a motion to dismiss, there can be no discovery. And national security concerns means there isn't going to be much to discover, even if a plaintiff survives a first round of filings.

Unsurprisingly, the Government refuses to confirm or deny anything.

That put Ghedi in the crosshairs of "a byzantine structure featuring an alphabet soup of federal agencies," as the court puts it. The DHS oversees everything. Day-to-day hassling is handled by the TSA (domestic travelers) and the CBP (international travelers). Ghedi saw more of one (CBP) than the other, but the TSA still handles screening of passengers and luggage, so he saw plenty of both.

The refusal to join the FBI as a paid informant apparently led to all of the following:

• an inability to print a boarding pass at home, requiring him to interact with ticketing agents “for an average of at least one hour, when government officials often appear and question” him;

• an SSSS designation on his boarding passes;

• TSA searches of his belongings, “with the searches usually lasting at least an hour”;

• TSA pat downs when departing the U.S. and CBP pat downs when returning to the U.S.;

• encounters with federal officers when boarding and deboarding planes;

• questioning and searches by CBP officers “for an average of two to three hours” after returning from international travel;

• CBP confiscation of his laptop and cellphone “for up to three weeks”;

• being taken off an airplane two times after boarding; and

• being detained for seven hours by DHS and CBP officials in Buffalo, New York in May 2012 and being detained in Dubai for two hours in March 2019.

Ghedi approached the DHS through its court-mandated redress program to inquire about his status twice -- once in 2012 and again in 2019. In both cases, the DHS refused to confirm or deny anything about his travel status or his placement on any watchlists that might result in enhanced screening and extended conversations with federal agents every time he flew.

Ghedi sued the heads of all the agencies involved, alleging rights violations stemming from his refusal to become an informant and his apparent placement on some watchlist operated by these agencies.

Ghedi brings two Fourth Amendment claims. The first alleges that the heads of the DHS, TSA, and CBP violated his Fourth Amendment rights through “prolonged detentions,” and “numerous invasive, warrantless patdown searches” lacking probable cause. The second alleges that the heads of the DHS, TSA, and CBP also violated his Fourth Amendment rights through their agents conducting “warrantless searches of his cell phones without probable cause.” The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures.”

The district court said he had no standing to sue. The Fifth Circuit says he does. But standing to sue doesn't matter if you sue the wrong people. The Appeals Court says there's a plausible injury alleged here, but it wasn't perpetrated by the named defendants.

Even though we hold that Ghedi has plausibly alleged an injury in fact, he still must satisfy standing’s second prong—that his injury is fairly traceable to these Defendants. Here Ghedi’s Fourth Amendment claims falter. That is because Ghedi bases his Fourth Amendment claims on TSA and CBP agents’ searching him and seizing his electronics. He argues these searches and seizures are atypical actions, even for people on the Selectee List. Yet instead of suing these agents directly, Ghedi has brought his Fourth Amendment claims against the heads of DHS, TSA, and CBP. Ghedi does not allege that any of these officials personally conducted or directed the searches or seizures he has experienced. And his allegations that his experiences are atypical cut against an inference that these agents are following official policy.

Not only that, but the court says Ghedi has never been prevented from traveling. At worst, traveling has become a constant hassle, marked by hours-long delays, unexplained device seizures, and plenty of unwanted conversations with federal agents. But ultimately Ghedi got where he was going and I guess that's good enough.

Ghedi never alleges that he was prevented from ultimately getting to his final destination. At most, these allegations lead to a reasonable inference that the Government has inconvenienced Ghedi. But they do not plausibly allege a deprivation of Ghedi’s right to travel.

There are some rights the court will recognize but this isn't one of them.

In short, Ghedi has no right to hassle-free travel. In the Supreme Court’s view, international travel is a “freedom” subject to “reasonable governmental regulation.” And when it comes to reasonable governmental regulation, our sister circuits have held that Government-caused inconveniences during international travel do not deprive a traveler’s right to travel.

And, putting the final nail in Ghedi's litigation coffin, the Appeals Court says the government's secrets may harm individuals but they can't harm their reputation… because they're secret.

As we noted at the outset, Ghedi’s status on the Selectee List is a Government secret. Simply put, secrets are not stigmas. The very harm that a stigma inflicts comes from its public nature. Ghedi pleaded no facts to support that the Government has ever published his status—one way or the other—on the Selectee List. His assertions that the Government has attached the “stigmatizing label of ‘suspected terrorist’” and “harm[ed] . . . his reputation” are legal conclusions, not factual allegations.

That's how it goes for litigants trying to sue over rights violations perpetrated by agencies engaged in the business of national security. Allegations are tough to verify because the government refuses to confirm, deny, or even discuss a great deal of its national security work in court. Ghedi could always try this lawsuit again, perhaps armed with FOIA'ed documents pertaining to his travels and the many agencies that make it difficult for him. But that's as unlikely to result in clarifying information for the same reason: national security.

Heads, the government wins. Tails, the plaintiff loses. Ghedi is still free to pursue lawsuits against the individual agents who hassled him, took his stuff, and tried to coerce him into becoming an informant, but given the national security implications and the ongoing existence of qualified immunity, it's just as likely he'd lose that suit as well.

Filed Under: 5th circuit, abdulaziz ghedi, civil rights, dhs, doj, fbi, informants, somalia

Court Documents Show The FBI Used A Whole Lot Of Geofence Warrants To Track Down January 6th Insurrectionists

from the easier-to-do-when-most-people-are-in-an-area-illegally dept

The new hotness for law enforcement isn't all that new. But it is still very hot, a better way to amass a list of suspects when you don't have any particular suspect in mind. Aiding and abetting in the new bulk collection is Google, which has a collection of location info plenty of law enforcement agencies find useful.

There's very little governing this collection or its access by government agencies. Most seem to be relying on the Third Party Doctrine to save their searches, which may use warrants but do not use probable cause beyond the probability that Google houses the location data they're seeking.

Law enforcement agencies at both the local and federal levels have availed themselves of this data, using "geofences" to contain the location data sought by so-called "reverse warrants." Once they have the data points, investigators try to determine who the most likely suspect(s) is. That becomes a bigger problem when the area contained in the geofence contains hundreds or thousands of people who did not commit the crime being investigated.

These warrants have been used to seek suspects in incidents ranging from arson to... um... protesting police violence. They've also been used to track down suspects alleged to have raided the US Capitol building on January 6, 2021 -- the day some Trump supporters decided (with the support of several prominent Republicans, including the recently de-elected president) that they could change the outcome of a national election if they committed a bunch of federal crimes.

Plenty of those suspects outed themselves on social media. For everyone else, there's reverse warrants, as reported by Wired. (h/t Michael Vario)

Court documents suggest the FBI has been using controversial geofence search warrants at a scale not publicly seen before, collecting account information and location data on hundreds of devices inside the US Capitol during a deadly invasion by a right-wing mob on January 6.

While Google receives over 10,000 geofence warrants for location data in the US a year, those covering the Capitol breach appear to have been particularly productive, apparently enabling the FBI to build a large, searchable database in its hunt for the rioters.

Well, the documents do more than "suggest." The underlying warrants are likely still sealed, so some conjecture is involved. But other stuff has leaked out around the redactions and the sealing, showing the FBI was issuing warrants even while the attempted insurrection was still underway. The feds can move fast when needed, apparently. This is from a criminal complaint related to Mitchell Vukich -- one Capitol raider who not only tweeted he was inside the Capitol while still apparently in the Capitol ("I was one of the first 15 people in the #Capitol. Wild stuff. Be safe out there."), but was caught on several security cameras as he made his way through the building and seemingly ran off with some government documents.

According to records obtained through a search warrant which was served on Google, on January 6, 2021, in and around the time of the incident, a mobile device associated with mitchellvukich66@gmail.com was present at and in the interior of the U.S. Capitol on January 6, 2021.

However you may feel about the Asshat Revolution of January 6th, this isn't an ideal -- or even an acceptable -- way to conduct an investigation. Reverse warrants make everyone in the area a criminal suspect. Probable cause doesn't exist. It does in terms of Google: there's a highly probable chance the company has location data captured in areas under investigation. But law enforcement asks for all of it and works backwards to find suspects. Once it does that, it has probable cause to seek identifying information. But this method inverts the accepted (under the Fourth Amendment) formula for performing searches.

And, since the search warrant (as well as the results of the search) are still secret, we can only assume the FBI acted in good faith. It may not have.

“What might have happened is that the FBI got the anonymized data and just got straight back in touch with Google and said we suspect 90 percent of these people, so give us their IDs,” says Matthew Tokson, a law professor and Fourth Amendment expert at the University of Utah. “Or it may have been an atypical warrant where they said to Google: Give us not only the numbers but the account names, because we think we have probable cause on the bulk of them.”

And that's the concern law enforcement can keep from being addressed by asking for (and receiving) permission to seal warrant affidavits and discussions of this investigative technique, even though the technique is known and understood and already widely discussed in the public arena.

Suspects who think they can beat these warrants actually can't. A lot of that can be traced back to Google, which has never been completely honest about its location data harvesting. Some of that can be pinned on the suspects, who fail to understand that a factory reset only affects data stored on that device.

[C]ourt documents say that Jeffrey Register deleted photographs of his time in the Capitol and even claimed to have factory-reset his phone in the days after the breach to obscure his tracks. It was already too late; the FBI appears to have identified him from the Google geofence data in January…

That's the kind of thing that happens when you're cosplaying insurrection, OPSEC is an afterthought. For the people hunting you down, however, finding and acquiring reams of culpatory data is the thing they get paid to do. Getting high on your own supply of confirmation bias can have consequences, especially when it involves the impromptu violation of federal laws.

But at the end of all this is the skyrocketing use of reverse warrants to identify criminal suspects. That it has only resulted in a few false arrests is a miracle, not an endorsement of the investigative technique. While there has been occasional pushback against inverting the constitutional status quo, the large number of geofence warrants served to Google every year suggest law enforcement isn't too worried about losing access to a powerful tool that takes full advantage of private companies' apparently unslakable thirst for personal data.

Filed Under: 4th amendment, doj, fbi, geofence warrants, january 6th

There May Be A New Boss At The DOJ, But The Government Still Loves Its Indefinite Gag Orders

from the inalienable-right-to-STFU dept

Despite the DOJ recently drawing heat for its targeting of journalists during internal leak investigations, a lot still hasn't changed about the way demands for data are handled by the feds. Over the past couple of decades, the DOJ and its components have been asking for and obtaining data from service providers, utilizing subpoenas and National Security Letters that come with indefinite gag orders attached.

These orders swear recipients like Microsoft and Google to secrecy, forbidding them from notifying targeted customers and users. (Even Techdirt has been hit with one.) Unlike regular search warrants, where the target is made aware of the rummaging by the physical presence of law enforcement officers, warrants, subpoenas, and NSLs allow the government to go about its rummaging unnoticed.

Reforms to surveillance powers by the USA Freedom Act have at least forced the government to perform periodic reviews of ongoing gag orders. It has also given companies a way to challenge gag orders and demands for data, but that's only useful if the companies have some idea who is being targeted. As this report on the ongoing abuse of gag orders by Jay Greene and Drew Harwell for the Washington Post points out, it's not always clear who the government is seeking information about. (Alternative link here.)

[T]ech company officials said it is often difficult to tell which orders are worth fighting. The orders are often vague — sometimes just email addresses — and the owner of the account isn’t always obvious.

Microsoft provided two secrecy orders to The Post with the names of the customers redacted. Each is only about four paragraphs long and declares that notifying the customer about the existence of the data request could lead to evidence tampering or flight from prosecution.

Neither order offers any support for those claims, or any details to indicate why secrecy is necessary. Microsoft complied with both orders and notified customers of the seizure only after the orders expired.

Even with those limitations, some companies are doing what they can to push back on these unreasonable restrictions.

Microsoft said it generally complies with secrecy orders because it is legally required to do so. At Google, director of law enforcement and information security Richard Salgado said the company will challenge nondisclosure orders if there are “external signals” that the orders lack merit.

But those are the exceptions, not the rule. Nearly 70% of the 62,000 government requests Facebook received during the last six months of 2020 came with gag orders attached. Microsoft receives far fewer requests, but still sees 7-10 requests with gag orders per day. Add in Google and Apple and the number of requests easily tops 100,000 per year. If Facebook is an outlier, it's still probably safe to assume nearly half of those come with gag orders. That's a lot of secrecy and it's absolutely certain all of it isn't justified.

The government claims the courts keep it honest, but given the dearth of challenges, it's a claim the feds can make only because the pushback is so limited. And it's deliberately limited. If a judge clears it, recipients have to assume the secrecy is warranted.

But agencies like the FBI issue their own paperwork and gag orders that don't require any judicial oversight. NSLs begin and end inside agencies, reliant only on whatever internal oversight there is to ensure these aren't abused. And history shows they are abused -- something the FBI turns to when its demands for information or data are rejected by the judicial oversight the DOJ claims keeps its vast power in check.

Even when targets are finally notified, they aren't given all the information. The Washington Post article details a former Defense Department contractor (Ryan Lackey) who was informed the government demanded data from Facebook, a platform he has used regularly for the last 15 years. Even though he was told the government sought his data, he was unable to find out what the government sought and for what time period. And that notification arrived nearly two years after Facebook had handed over his data.

The government won't answer any questions about it. Neither will Facebook, which suggested he get a lawyer.

After receiving the March email, Lackey asked Facebook what information it had handed over and what time frame the request covered. In an emailed response reviewed by The Post, the tech giant wrote that it couldn’t give him “legal advice” and suggested that he “consult with an attorney.”

Lackey said he has been left with “low-level anxiety” and lots of unanswered questions.

“I’m not opposed to helping law enforcement with a legitimate investigation,” he said. “But if it’s a civil liberties violation or a fishing expedition, I don’t want to help them in that.”

Legislative efforts continue to rein in these powers and limit demands for indefinite secrecy. But the feds are fond of these 9/11-enabled powers and in no hurry to see them restricted. Claims about public safety and national security tend to be all that's needed to convince certain legislators that the government's business should continue as usual. Those pushing back have limited information to work with, thanks to years of deference in service to the never-ending War on Terror.

This shouldn't be considered business as usual in a free country where citizens have inalienable rights that are supposed to protect them against unchecked snooping by the government, as well as grant them the ability to challenge unjustified demands for their possessions and papers. But a handful of wars engaged in by the government against its citizens (Terror, Drugs) have reduced these rights to privileges only very occasionally recognized by the agencies engaging in unwarranted seizures and only slightly more occasionally recognized by the courts, which have largely shrugged off their obligations to keep the government in check.

Filed Under: 1st amendment, doj, fbi, gag orders, journalism, national security letters, nsls
Companies: google, microsoft

Following Nationwide Police Brutality Protests, DOJ Steps Up To Issue Incremental Updates To Its Chokehold/No-Knock Warrant Policies

from the goodish-news,-everyone! dept

The Department of Justice is the nominal leader of US law enforcement, even if it really only has direct control of federal officers. That being said, it would have been nice to see the DOJ take the lead on law enforcement issues, rather than gently coast into the police reform driveway late in the proverbial night to add itself to the bottom of the list of reform efforts springing up all over the nation in response to, you guessed it, violence committed by police officers.

Chokeholds have been controversial for forever, but even more so in recent years, as police officers across the nation have killed people they were just supposed to be arresting, using techniques most police departments claim (often after the fact) they've banned for years. The DOJ has never banned chokeholds previously, and it's apparently not going to start now.

The new guidance [PDF] doesn't seem like much of an improvement over the old guidance, which was released more than 17 years ago. The old one said that the DOJ has had a "long-standing policy" that limits use of deadly force to situations where officers have a "reasonable belief" the arrestee "poses an imminent danger of death or serious physical injury to the officer or to another person." This is the same standard that governs almost all use of force by officers all over the nation and it really hasn't stopped them from deploying deadly force unreasonably in situations that could have benefitted from de-escalation and restraint.

The revamped guidance doesn't change much, if anything, about the threat calculus officers must perform before deciding to kill someone by choking them to death.

Given the inherent dangerousness of chokeholds and carotid restraints, and based on feedback from our law enforcement components on these techniques, Department law enforcement agents and correctional officers are hereby prohibited from using a chokehold or a carotid restraint unless that standard of necessity for use of deadly force is satisfied. Accordingly, Department law enforcement components will revise their policies to reflect this guidance prohibiting the use of chokeholds or carotid restraints by Department law enforcement agents and correctional officers, including federal task force officers, unless deadly force is authorized.

It's unclear how deadly force will be "authorized" in mid-arrest, but those are the new rules, which will be buttressed by that old law enforcement standby that's done almost nothing to eliminate excessive force deployments: additional training.

The DOJ also has thoughts about no-knock warrants. These have been portrayed as a necessary abridgement of knock-and-announce warrant service protocol that is supposed to prevent targets from escaping, evidence from being destroyed, and, most importantly, officers from being killed. In practice, however, no-knock warrants have needlessly escalated violence during warrant service, giving officers the excuse they need to greet anything unexpected (and it's all unexpected when you go crashing through someone's door) with a hail of bullets. It also provokes residents to open fire on officers, often mistaking them for criminals attempting to break into their homes.

The DOJ's new guidance basically reiterates what it has always said: that federal officers need compelling reasons to seek no-knock warrants. But the reasons aren't all that compelling, seeing as they're the standard reasons plenty of cops have boilerplated into warrant requests along with claims about danger to officers or evidence destruction no court can possibly verify. In most cases, their requests are approved and officers head off to engage in literal death and destruction with the nominal blessing of whatever magistrate the affidavit was handed to.

Here are the new stipulations the DOJ imaginatively calls "limits."

First, an agent may seek judicial authorization to conduct a "no knock" entry only if that agent has reasonable grounds to believe at the time the warrant is sought that knocking and announcing the agent' s presence would create an imminent threat of physical violence to the agent and/or another person. Prior to seeking judicial authorization for a "no knock" entry, an agent must first obtain approval from both the Criminal Chief Of The relevant U.S. Attorney's Office (or a Deputy Chief in a Main Justice litigating component) and an Assistant Special Agent in Charge or Chief Deputy Marshal in the district. Once judicial authorization is obtained, agents may proceed without "knocking and announcing" their presence unless they learn of facts that negate the circumstances that justified this exception to the "knock and announce" rule.

There are a couple of good things in here, despite the expected deference to officers and their "reasonable grounds to believe." The fact that officers must now seek internal approval before passing on the boilerplate to a magistrate judge might deter officers from compiling deficient affidavits or think twice about not portraying normal warrant service as the federal cop equivalent of rushing the trenches. And it's nice touch that federal cops are asked to dial back the no-knock bum rush if information comes to light indicating the planned warrant service won't be as threatening as previously believed, but it's hard to believe any officer is going to switch back to knock-and-announce when they already have judicial (and supervisory) permission to go in guns blazing.

The new policy also gives officers an opportunity to bypass internal controls and judicial permission.

Second, if an agent did not anticipate the need for a "no knock" entry at the time the warrant was sought, the agent may conduct a "no knock" entry only if exigent circumstances arise at the scene such that knocking and announcing the agent's presence would create an imminent threat of physical violence to the agent and/or another person.

So, if federal officers don't get the warrant they want, they can change it on the fly. The DOJ only asks that they justify the switcheroo after the fact by speaking to higher-ups like the Special Agent in Charge and provide written notice of the at-the-doorstep-audible to the US Attorney's office and/or "relevant Assistant Attorney General."

Here's the better policy change: no-knocks are for officer safety only. No more setting toddlers on fire just because officers think someone inside might be trying to flush a few kilos down the toilet.

Because this policy limits "no knock" entries to instances where there is an imminent threat of physical violence, it is narrower than what is permitted by law - for example, agents must "knock and announce" even when they have reason to believe that doing so could result in the destruction of evidence. In setting the policy this way, the Department is limiting the use of higher-risk "no knock" entries to only those instances where physical safety is at stake at the time of entry.

There is an exception, of course. And for the stupidest, laziest, most predictable reason.

Should an exceptional circumstance arise (e.g., in a national security matter) where no imminent threat of physical violence is present but an agent believes the evidence is so significant, and the risk of its destruction so pronounced, that a "no knock" entry is warranted, judicial authorization for a "no knock" warrant can be sought…

There's a better caveat attached to that. This exception would have to be pre-approved by the US Attorney's office, so it doesn't fall under the exigent circumstances exception listed above.

The good news is the DOJ is thinking about these issues and attempting to address them. The bad news is this barely addresses anything. At best, it prevents federal officers from engaging in violent raids of people's homes solely because they think some evidence might be destroyed. At worst, the changes are so incremental officers arriving via time machine from George W. Bush's first term wouldn't feel particularly out of place. If this is the example the DOJ is setting for local law enforcement agencies around the nation, they'll be more than happy to go back to (deadly) business as usual.

Filed Under: chokeholds, doj, guidance, no knock warrants, police, police brutality

FBI Sat On Ransomware Decryption Key For Weeks As Victims Lost Millions Of Dollars

from the is-this-one-of-those-'greater-good'-things-I-don't-understand-becaus dept

The vulnerability equities process meets the FBI's natural tendency to find and hoard illegal things until it's done using them. And no one walks away from it unscathed. Welcome to the cyberwar, collateral damage!

If an agency like the NSA comes across an exploit or unpatched security flaw, it's supposed to notify affected tech companies so they can fix the problem to protect their customers and users. That's the vulnerability equities process in theory. In practice, the NSA (and others) weigh the potential usefulness of the exploit versus the damage it might cause if it's not fixed and make a disclosure decision. The NSA claims in public statements it's very proactive about disclosing discovered exploits. The facts say something different.

Then there's the FBI, which has engaged in criminal acts to further investigations. Perhaps most famously, the FBI took control of a dark web child porn server and ran it for a few weeks so it could deploy its malware (Network Investigative Technique, according to the FBI) to users of the site. Not only did it continue to distribute child porn during this time, but it reportedly optimized the system to maximize its malware distribution.

The trend continues. As Ellen Nakashima and Rachel Lerman report for the Washington Post (alternative link here), the FBI could have stopped a massive ransomware attack but decided it would be better if it just sat on what it knew and watched things develop.

The FBI refrained for almost three weeks from helping to unlock the computers of hundreds of businesses and institutions hobbled by a major ransomware attack this summer, even though the bureau had secretly obtained the digital key needed to do so, according to several current and former U.S. officials.

The key was obtained through access to the servers of the Russia-based criminal gang behind the July attack. Deploying it immediately could have helped the victims, including schools and hospitals, avoid what analysts estimate was millions of dollars in recovery costs.

The worse news is it wasn't just the FBI, which is already known for running criminal enterprises while engaging in investigations. The report says this refusal to release the key was a joint agreement with "other agencies," all of which apparently felt the nation (and the rest of the world) would be better served by the FBI keeping the key to itself while it tried to hunt down the criminals behind the ransomware attack.

And it turned out to be totally worth it!

The planned takedown never occurred because in mid-July REvil’s platform went offline — without U.S. government intervention — and the hackers disappeared before the FBI had a chance to execute its plan, according to the current and former officials.

FBI Director Chris Wray, testifying before Congress, said the tradeoff was necessary because it could help prevent future attacks (unproven) and time was needed to develop a tool that would help those hit by the ransomware.

"These are complex . . . decisions, designed to create maximum impact, and that takes time in going against adversaries where we have to marshal resources not just around the country but all over the world.”

He also suggested that “testing and validating” the decryption key contributed to the delay.

I, too, would testify before Congress that things were complex and time-consuming, especially when the end result was the bad guys getting away while victims remained victims. I would, however, perhaps consider not belaboring the "it will be long and hard" point when the private sector has demonstrated that it actually won't be that long, and possibly not even all that hard.

Emsisoft, however, was able to act quickly. It extracted the key from what the FBI provided Kaseya, created a new decryptor and tested it — all within 10 minutes, according to Fabian Wosar, Emsisoft chief technology officer. The process was speedy because the firm was familiar with REvil’s ransomware. “If we had to go from scratch,” Wosar said, “it would have taken about four hours.”

The FBI took three weeks to turn over the key to the first of many victims. During that time, it apparently failed to accomplish what Emisisoft developed in 10 minutes, as well as failing to catch any of the perpetrators. Faced with this not-so-subtle undercutting of its "we really were just trying to save the world" narrative, the FBI -- via its parent organization -- has decided to shut the fuck up.

The Justice Department and White House declined to comment.

Sure, the FBI could still be pursuing some leads, but the timing of REvil's disappearance and the FBI's release of the key to one of ransomware victims suggests the FBI only decided to release because it was no longer of any use to the investigation. It may still possess some limited use to those whose data is still locked up, but pretty much every victim has moved on and attempted to recover from the incident. The cost -- as is detailed in the Washington Post report -- is in the hundreds of millions. Some victims are still trying to recover. Others are back in business, but only after losing millions to downtime.

Who pays for this? Well, the victims do. And taxpayers will too, if the government decides to compensate some of the companies victimized by ransomware and victimized again by the FBI. The FBI, however, will hardly feel a thing, since the going rate for temporary chagrin is a rounding error in the agency's reputational damage column.

Filed Under: decryption, doj, fbi, ransomware, revil, vep, vulnerabilities, vulnerabilities equities process

DOJ Now Investigating Florida Sheriff's Office For Using A Federal Grant To Fund Its 'Predictive Policing' Harassment Programs

from the claw-it-back dept

The Pasco County (FL) Sheriff's Office believes in "intelligence-led policing." This is its formal slang for harassing residents until (in the office's own words) "they sue or move." The Sheriff's Office turns anyone with a criminal background into a suspect-for-life. Deputies visit residences and residents on the "intelligence-led" shit list multiple times a month, demanding answers to questions they have no business asking. When residents fail to comply, nuisance (in every sense of the word) citations are issued for things like uncut grass or missing mailbox numbers.

It doesn't really matter whether the Sheriff's Office believes its own PR bullshit. It is fully engaged in harassing as many residents as possible. That's why it's allowed its so-called predictive policing program to infiltrate local schools, subjecting minors (and their families) to the same harassment previously limited to adults with criminal records. Almost anything can trigger unwelcome interactions with the office's deputies, including slipping grades, missed school days, or simply being the victim of, or witness to domestic violence.

Local schools are apparently fine with this. They've been sharing student records with the Sheriff's Office. And the Sheriff's Office has been sharing this info with officers. Both of these actions appear to violate federal and local student privacy laws. Not that the Sheriff's Office cares. It says it has done nothing wrong -- only availed itself of records shared with it (unlawfully) by schools.

The exposure of these programs by the Tampa Bay Times has led to multiple investigations and accusations of lawbreaking. One of these investigations involves the federal government, which makes it clear it's not just the locals that find the Sheriff's Office's programs abhorrent. The Department of Education opened an investigation in April to determine whether the in-school "intelligence-led policing" violated federal student privacy laws.

There's a new federal investigation underway. The Department of Justice wants to know what the fuck is going on in Pasco County, Florida. (h/t WarOnPrivacy)

The U.S. Department of Justice is conducting an “intensive review” of the Pasco Sheriff’s Office’s latest intelligence program, federal officials said this week.

The Justice Department sent a letter to the Sheriff’s Office on Aug. 6 — two weeks after the Tampa Bay Times reported that the Sheriff’s Office had promised increased police scrutiny for people whose criminal histories included violent crimes and drug offenses.

The Justice Department’s letter raised concerns about the methodology used to identify targets, communications with the community and the “insufficient” coordination with relevant law enforcement agencies.

The DOJ's interest no doubt has something to do with the Tampa Bay Times' incredible reporting. But it also wants to know why it gave the Sheriff's Office $700,000 if it was just going to use it to violate the terms of the Bureau of Justice Assistance grant.

This is from the DOJ's letter [PDF] to the Pasco County Sheriff's Office:

Agencies that receive SPI funding are expected to engage members of their communities as allies in reducing violence, ensure transparency in their crime reduction approaches whenever feasible, and establish innovative and effective working relationships with citizens and community leaders to gain support for their proposed policing initiatives. Trust, and building trust, is at the core of SPI funding.

But:

PCSO recently circulated the attached letter to individuals regarding a PCSO-run program (the “PCSO program”), which claimed to be “in cooperation with the Department of Justice’s Strategies for Policing Innovation Initiative.” However, the letter does not adequately depict the dedicated training and technical resources under SPI provided by the Department, nor does it adequately describe the requirements for greater community engagement required for SPI’s success.

And:

We also have concerns regarding the methodology used to identify individuals for inclusion in the PCSO program; the name of the program; communications about the program; the lack of involvement and communication with the greater community about the program; and the insufficient coordination with relevant law enforcement stakeholder groups. These shortcomings have the unfortunate consequence of eroding trust in the community, rather than building trust. Given this, and given the goals of SPI, BJA will undertake an immediate assessment of the activities funded under this grant award.

Brace for some federal damnation. Also, brace for opening up the Pasco County coffers to… um… cough up the $700,000 misused by the Sheriff's Office to (and I will quote here) "erode trust in the community."

The Sheriff's Office has responded [PDF]. And it claims it is completely baffled that the DOJ would think its BS predictive policing/targeted harassment program would undermine trust in the community it's supposed to be serving. Instead, it says it followed the instructions given to it by the Trump DOJ.

The Pasco Sheriff's Office (PSO) is in receipt of your correspondence dated August 6, 2021 re- garding the Smart Policing Initiative grant awarded to PSO in 2018. After careful review of the letter, we are left confused as to the origins of the concerns and intentions expressed by the Bureau of Justice Assistance (BJA). Over the last two years, PSO has been working hand-in-hand with the subject matter experts (SMES)' assigned by BIA to implement this grant. In fulfilling the conditions of the grant, PSO actively collaborates with the BJA-assigned SMEs as well as the University of South Florida (USF) in research partnership and follows all guidance and directives they provide. The written feedback provided by these SMEs included phrases such as “excellent job!” and “the messaging was delivered well,” and referenced the “fantastic partnerships” PSO established with the SPI project. Yet for reasons unknown to PSO, your letter directly contradicts the guidance we have been provided over the last two years.

No doubt the current DOJ (headed by Merrick Garland) takes a different view of community-oriented policing than the DOJ led by Jeff Sessions and Bill Barr did. If there's any confusion, it's due to the DOJ reining in its focus on civil rights violations under Donald Trump and its reemergence post Trump as an agency that will at least engage in investigations of problematic law enforcement agencies, even if it's not that great at delivering sustainable results.

Too bad. Meet the new boss, not quite the same as the old boss. Flow my tears, the sheriff who didn't want to comprehend the new paradigm said:

We were excited to work with BJA on this innovative, research-driven initiative, and we are extremely disappointed by this abrupt change in direction.

That's weird. I thought law enforcement officers are trained experts on reacting to fast-moving situations. But maybe that only refers to the indiscriminate deployment of excessive and/or deadly force. Maybe the only ways cops can embrace change is with chokeholds and bullets.

Sure, it doesn't help that the DOJ sent contradictory messages to the Pasco County Sheriff's Office. But as Pasco County Sheriff Chris Nocco surely is aware (being that his position is an elected position), the rules can change when the regime changes. The previous administration may have felt the public was the problem and shows of force by armed government employees was the solution. But the current administration doesn't feel that way. And it has every right to ask why the Pasco County Sheriff's Office spent nearly a million dollars in federal money alienating the community and harassing their kids.

Filed Under: doe, doj, florida, pasco county, pasco county sheriff's office, predictive policing, privacy, schools, surveillance

Mistrial Declared In Backpage Founders' Trial; After DOJ Ignores Judge's Rules Regarding What It Could Present

from the poisoning-the-well dept

As we noted recently, the trial of Backpage's founders finally started after years of legal wrangling. However, the judge has already declared a mistrial after the DOJ, in typical DOJ fashion, tried to ignore the judge's warnings against focusing too specifically on the specifics of sex trafficking alleged to have occurred on the site. Specifically, prosecutors repeatedly referred to child sex trafficking, despite the fact that there are no sex trafficking charges in the case (let alone child sex trafficking):

U.S. District Judge Susan Brnovich said that the cumulative effect of the child sex trafficking references made by prosecutors in opening statements and by witnesses for the government “is something that I can’t overlook and will not overlook.”

Before the trial, the judge concluded she would allow evidence showing that people were trafficked using the site, but would not allow prosecutors to linger on the details of the abuse suffered by victims.

“It seemed the government abused that leeway,” Brnovich said. The judge said one government witness testified about being raped more than once, which raises a “whole new emotional response from people.”

This is the thing that always seems to happen with Backpage. People insist that if they just demonstrate some of the (very real and very terrible) examples of bad stuff that happened, in part, via the platform, they don't have to meet the burden of actually proving the crime at issue happened. We've seen that repeatedly -- including in the comments to our last post about Backpage and in years of coverage about the company. People highlight bad (really awful) stuff that happened because people abused the platform, and then assume they can just skip all of the important steps regarding pinning the liability on the company (and its founders).

It's depressing, if not surprising, that it was apparently the DOJ's plan to try the same strategy in court, and it's good to see the judge put a stop to it.

Filed Under: doj, james larkin, michael lacey, mistrial
Companies: backpage