Court Tells Government It Can't Hide Behind Its Third-Party DNA Analysis Vendor To Withhold Evidence

from the time-to-play-fair,-g-men dept

The government says we have no right to access information about its law enforcement "means and methods." To give these secrets away is to instigate a criminal apocalypse.

That's the argument the government has made to protect everything from sketchy confidential informant testimony to Stingray devices. Even when the public has a pretty good idea about what's going on, the government still argues the public can't be trusted. Stingrays aren't a big secret anymore. And confidential informants are only trustworthy until the government decides they aren't and starts feeding them to the criminal justice system.

The government has obligations to the public. Court cases have a presumption of openness -- what happens there can be accessed by everyone. To dodge this, the government seals cases and demands ex parte hearings that cut the defense side out of the equation.

The government also avails itself of a number of private contractors. The government is big enough it can't do everything by itself. And it doesn't hurt that its contracts with private companies help keep some of its questionable activities out of the public eye.

Ask a private company to do your dirty work and you can fend off judges and presumptions of transparency. Add law enforcement "means and methods" arguments to claims about trade secrets and you can wield the private sector against the public for as long as possible.

For the most part this process works. Every so often a federal judge kicks back, prompting everyone involved to come up with better arguments as to why defendants shouldn't be allowed to take a deep look at the evidence being used against them.

Government agencies have ditched cases when defendants have asked about cell tower spoofers or forensic software used to generate evidence against them. But they only do this when courts have decided the people whose life and liberty are at stake deserve answers.

If a court doesn't act to intercede, the government will continue to wield the private sector against the public sector. In cases where proprietary software is involved, the government will allow private companies to assert that giving defendants a chance at a fair trial would undercut the contractors' ability to turn a profit.

When these private entities intercede, they're asking the courts to declare it's more important for these companies to remain viable than allow Americans to fully exercise their rights.

Fortunately, courts haven't always been sympathetic to the arguments the government has raised on behalf of its private contractors. One of the more frequent private intercessors have been DNA companies who argue that revealing their algorithms would cause the collapse of the private DNA-sequencing industry… starting with those who have aided the government the most.

Not true, says at least one federal court. In at least one case involving DNA evidence, a federal court has said hiding behind trade secrets and confidentiality agreements doesn't serve the public. If the government wants to use evidence derived from proprietary software, it had better be ready to share that software with the person it's accusing of criminal acts.

The EFF's intercession into another case involving DNA software and government/private sector secrecy has paid off for the defendant. The basic tenets of due process say criminal defendants must have access to the evidence used against them. Private contractors like Cybergenetics -- which is hoping to shield its "trade secrets" -- are subject to the same discovery rules that affect the government.

A short ruling [PDF] issued by a Pennsylvania federal court says private contractors working with the government are obligated to hand over information to criminal defendants.

The court resists the government's resistance:

The Government resists disclosure of the source code on grounds that Cybergenetics considers it a trade secret, and that disclosure is not necessary. The Court has considered the present record, including the amicus submission made on Defendant’s behalf and Dr. Perlin’s declaration. Here, there can be no dispute that the DNA evidence is central to the case against Defendant.

And if it's central, it must be disclosed:

Based on all applicable factors and considerations previously identified in my January 21 Order, Paragraph 5)2c of the Amended Subpoena Schedule, attached as Exhibit 2 to Docket No. 73, will not be quashed.

There are some limitations -- like the possible deployment of a protective order that will shield this info (at least temporarily) from public view. But the overriding presumption is transparency. If the government wants to use evidence derived from a private company's DNA analysis, it has an obligation to let the defendant examine it. The company's concerns about its proprietary calculations ultimately makes no difference. If it wants to work with the government, it needs to be prepared to hand over this info to criminal defendants.

We'll have to see where it goes from here, but this ruling makes it clear private contractors are considered public when they choose to do business with public agencies. To rule otherwise is to allow the government to have its evidence and hide it too. That's not how America works.

Filed Under: dna, due process, evidence

More Bad Ideas: Congressional Rep Suggests Participants In The Attack On The Capitol Building Be Added To The No-Fly List

from the we-need-less-of-this,-not-more dept

Proving that 2020 wasn't done with us yet, January 6, 2021 added a new horror to the long list of things that showed "may you live in interesting times" is a curse, rather than a blessing. Urged on by the guy less than ten days away from being escorted from the premises by security and his favorite legal advocate -- one that advocated for "trial by combat" over the election results -- Trump supporters invaded Washington, DC, hoping to somehow nullify the election through intimidation and violence.

This violent debacle (and it was violent -- five people dead and two explosive devices recovered) has resulted in a lot of backlash. The most immediate backlash will be felt by some of the red-hatted crowd that broke into the Capitol building in hopes of preventing election certification. An executive order signed by Trump -- one targeting "violent, left-wing extremists" -- will instead be used to enhance the prison sentences of violent, right-wing extremists. Perhaps the worst president in history will exit the office with his supporters feeling the brunt of this incredible self-own. MAGA, indeed.

But it's back to business as usual, now that things have settled down. An attack on the election process has resulted in calls for action. And calls for action prompted by singular events with almost no chance of being repeated almost always result in things being made worse for millions of citizens who did nothing more than watch in horror as events unfolded.

The 9/11 attacks resulted in an expansion of the surveillance state. The tragic attack was leveraged to take power away from the people and give it to their government instead. The same thing appears to be happening now, with President-elect Joe Biden demanding a War on (Domestic) Terrorism. And other legislators are demanding more be done now, ignoring the dire repercussions of their demands in favor of inflicting pain on people who didn't vote for them. (h/t Sam Mintz)

Flight attendants felt disturbed by the presence of Capitol Hill invaders on flights out of DC. This is fine. And, as private companies, airlines can certainly refuse to allow certain people to board their planes. But this private objection is being made public, courtesy of Rep. Bennie G. Thompson, the Chairman of the Homeland Security Committee. He wants these private complaints to become public by adding alleged "insurrectionists" to the incredibly expansive no-fly lists maintained by the federal government.

Given the heinous domestic terrorist attack on the U.S. Capitol yesterday, I am urging the Transportation Security Administration and the Federal Bureau of Investigation to use their authorities to add the names of all identified individuals involved in the attack to the federal No-Fly List and keep them off planes. This should include all individuals identified as having entered the Capitol building—an intrusion which threatened the safety of Members of Congress and staff and served as an attack on our Nation.

We already saw reports of ‘unruly mobs’ in the air on the way to Washington, D.C. It does not take much imagination to envision how they might act out on their way out of D.C. if allowed to fly unfettered. This is an action that TSA and the FBI, by law, are able to take but, to my knowledge, have not yet taken. Alleged perpetrators of a domestic terrorist attack who have been identified by the FBI should be held accountable.

Lots to unpack here.

First, the TSA should not be given any permission to do anything, given that it's done almost nothing with the vast amount of leeway it's already been granted.

Second, no-fly lists are an unconstitutional mess. Even given the massive amount of deference judges grant to "national security" arguments, courts remain unconvinced that forbidding someone from flying (and then refusing to even acknowledge this fact, much less given them a chance to challenge this determination) isn't a violation of their rights.

Adding a bunch of people to the no-fly list isn't a good idea, especially when the government has plenty of power to deal with the perpetrators of this Capitol Hill invasion without deciding they're no longer allowed to board airplanes. As Rep. Thompson says, perpetrators should be held accountable. There are plenty of laws on the books -- and one recent executive order -- that will help federal prosecutors achieve this goal. Banning perps from flying doesn't change anything about the prosecutorial matrix.

And if someone can be identified and added to a no-fly list, chances are they can be identified, arrested, and prosecuted. So the watchlist is just punitive damage with almost zero recourse. Let the law take its course. Leave the no-fly list out of it. If airlines want to refuse to serve suspects facing prosecution for the Capitol raid, they can do so. The government doesn't need to be involved. Federal agencies can BOLO suspects without putting them on a watchlist that severely curtails their ability to travel. And that's all it should do at this point, since we're supposed to presume innocence before determining guilt.

Filed Under: bad ideas, bennie thompson, due process, insurrection, no fly list, riots, tsa

Appeals Court Says ICE Detainees Should Be Able To See A Judge In 48 Hours, Just Like Criminal Suspects

from the Fourth-for-everyone,-including-those-ICE-feels-have-no-rights dept

The Fourth Amendment says law enforcement needs probable cause to effect an arrest. Further probable cause is needed -- as determined by a neutral judge -- to continue holding this person. This isn't even controversial. It has been established law for years. And yet, when ICE goes hunting for people it wants to deport, the Fourth Amendment just kind of vanishes. This happens even when ICE is wrong, and the person officers want to eject from the country is actually a US citizen.

It seems awful to have to describe this recent Ninth Circuit Court of Appeals as "upending" the Fourth Amendment status quo. It really isn't. It simply affirms what's far too often been ignored by ICE and other border security agencies.

Here are the facts leading up to this lawsuit, as recounted in the court's decision [PDF]:

Gerardo Gonzalez is a United States citizen. He has never been removable from the United States. The United States Immigration and Customs Enforcement (ICE), however, came to a different conclusion in December 2012. After Gonzalez was booked on state law criminal charges by the Los Angeles Police Department (LAPD), an ICE agent ran his name through electronic databases, an automated procedure that ICE uses to determine whether an individual is a removable noncitizen. Because one database flagged Gonzalez’s birthplace as being in Mexico, and the agent could not find records showing that Gonzalez had lawfully entered the United States, the agent determined that Gonzalez was removable from the United States. ICE issued an immigration detainer, requesting that the Los Angeles Sheriff’s Department (LASD) detain Gonzalez for up to an additional five days in the Los Angeles County Jail after when he was entitled to release from custody on state criminal charges so that ICE could take him into its custody.

This situation used to be even worse. Prior to December 2012, ICE didn't even need probable cause to issue a detainer. So, even if people were free to go, that freedom to go could be removed if ICE had done nothing more than initiated an investigation into whether the person targeted by a detainer was actually removable. Thanks to some litigation, ICE began requiring probable cause. But that probable cause was limited to an officer's "belief" that a person was removable. Because one database said Gonzalez's birthplace was Mexico and the officer could find no records of legal entry, Gonzalez was held for another five days after he was prepared to post bail for the state criminal charges. Here's how this worked out for Gonzalez:

On December 31, 2012, ICE issued the immigration detainer against him. Although the detainer had no effect on Gonzalez’s custody when lodged due to a then-applicable parole hold, Gonzalez became eligible for release on bail from LASD custody on state criminal charges in May 2013 when the hold expired. He attempted to post bail with the assistance of his girlfriend, who went to a bondsman. The bondsman informed her that Gonzalez was subject to an immigration detainer. The detainer requested that LASD keep him in custody for up to five additional days after his release from custody on state criminal charges. The detainer, however, prevented him from posting bail. Even if he posted the $95,000 bail as he had intended to do, Gonzalez would remain in custody. Indeed, it was LASD policy to comply with all ICE detainers.

ICE dropped the detained when Gonzalez sued, presumably in hopes of getting him to drop the lawsuit. It didn't happen. And now there's precedent on the books that says ICE can't do this sort of thing in future.

The lower court said ICE can't rely solely on the database used in this case to make probable cause determinations. The database is too inaccurate to be relied on, according to the district court.

In finding for Plaintiffs on this Database Claim, the district court concluded that the databases are unreliable for determining probable cause of removability, and thus the Government violates the Fourth Amendment by issuing detainers based solely on searches of the databases.

The Ninth Circuit says the district court didn't do enough fact-finding to make this determination. However, the Appeals Court does reach this conclusion, which has the potential to vastly alter the way ICE enforces detainers. Without probable cause, ICE can't hold people more than 48 hours on a detainer or, as in this case, five days past the point the person was due to be released by local law enforcement. Detainees should be treated the same as arrestees and given their day before the judge as soon as possible.

[T]he panel concluded that, because the Fourth Amendment requires probable cause to seize or detain an individual for a civil immigration offense, it follows that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify continued detention pursuant to an immigration detainer.

Thanks to Trump, our immigration courts are already overloaded. And again, thanks to Trump, ICE keeps loading them up even more by going after anyone it believes is subject to removal, rather than concentrating on the "dangerous" immigrants this Administration claims infest our nation. If ICE can't get them before a judge within 48 hours, they should be free to go, just like anyone arrested on actual criminal charges.

It hardly makes sense for the Fourth Amendment to be less effective for people detained on civil violations. The Ninth Circuit Appeals Court has corrected that error and its reach covers a whole lot of border territory.

Filed Under: 4th amendment, 9th circuit, dhs, due process, gerardo gonzalez, ice, probable cause

Ninth Circuit Appeals Court May Have Raised The Bar On Notifying Defendants About Secretive Surveillance Techniques

from the PARALLEL-CONSTRUCTION-INTENSIFIES dept

Recently -- perhaps far too recently -- the Ninth Circuit Appeals Court said the bulk phone records collection the NSA engaged in for years was most likely unconstitutional and definitely a violation of the laws authorizing it. The Appeals Court did not go so far as to declare it unconstitutional, finding that the records collected by the government had little bearing on the prosecution of a suspected terrorist. But it did declare it illegal.

Unfortunately, the ruling didn't have much of an effect. The NSA had already abandoned the program, finding it mostly useless and almost impossible to comply with under the restrictions laid down by the USA Freedom Act. Rather than continually violate the new law, the NSA chose to shut it down, ending the bulk collection of phone metadata… at least under this authority.

But there's something in the ruling that may have a much larger ripple effect. Orin Kerr noticed some language in the opinion that suggests the Ninth Circuit is establishing a new notification requirement for criminal prosecutions. For years, the government has all but ignored its duty to inform defendants of the use of FISA-derived evidence against them. The DOJ has considered FISA surveillance so secret and sensitive defendants can't even be told about it. Defendants fight blind, going up against parallel construction and ex parte submissions that keep them in the dark about how the government obtained its evidence.

The language in the Ninth Circuit ruling changes that. It appears to suggest (but possibly not erect, unfortunately) an affirmative duty to inform defendants about surveillance techniques used by the government.

In Moalin, the question was whether defendants had to be notified about a warrantless national security program involving telephone metadata that had been collected about them as part of the investigation. I would have thought the answer is no. Most obviously, there was no search warrant about which to give notice. And beyond that, I would have thought the program under then-existing precedent not to be a search at all.

The Ninth Circuit imagines a different kind of notice requirement, though. Instead of a notice requirement that a warrant was executed, flowing from the warrant itself, this is a notice requirement that appears to be triggered only if and when criminal charges are filed providing notice that evidence about a person was collected using a surveillance practice that may or may not be a search. In effect, it’s a notice to criminal defendants to consider filing a motion to suppress to challenge the investigation and vindicate any Fourth Amendment rights that may or may not have been at stake.

Huge if true. This is the court giving defendants an opportunity to suppress evidence derived from surveillance efforts courts may not (at this point) consider searches under the Fourth Amendment. The Constitutionality may be unsettled, but that shouldn't limit defendants' ability to raise challenges. This is from the opinion:

The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the “fruits” of that evidence—additional evidence to which it led. See Wong Sun, 371 U.S. at 488. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression.

Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are. Indeed, the Supreme Court has recognized that the notice provisions in FISA and the FAA serve precisely that function.

According to the Ninth Circuit, the Fourth Amendment standard of providing notice to defendants also applies to searches that the government (and some courts) have considered to be outside of the Fourth Amendment's reach -- like the acquisition of third-party records and foreigner-targeting surveillance efforts.

The government can still provide notice without giving up its secrecy, which should (hopefully) limit the number of times the government claims national security trumps all other rulings, regulations, precedential decisions, and Constitutional amendments. The government can have its secrecy and its notification, says the court.

Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security, then the court can review the materials bearing on its legality in camera and ex parte.

This would be breaking new ground, especially in cases where the government is using FISA-derived evidence. As Kerr points out, this isn't limited to settled Fourth Amendment precedent. This would allow defendants to challenge evidence derived from techniques and programs courts have yet to address. And this will (hopefully) force courts to confront unsettled Fourth Amendment issues, rather than dismiss them out of hand because no court has previously addressed novel (or secret) surveillance practices.

[N]ot only does it not require a warrant, it doesn’t even seem to require a search. The notice seems to be that evidence was obtained using a surveillance authority. It doesn’t appear to require that this authority is anything that has been understood to involve Fourth Amendment searches or seizures. Rather, the notice is provided so a person can bring a challenge and argue to a court that it’s a search or seizure, and an unreasonable search or seizure at that.

Put another way, this appears to be a Fourth Amendment notice requirement to alert criminal defendants that the government took steps that might constitute a search—but also might turn out not to be a search at all once a court reviews the matter closely. It has faint echoes to me of Miranda v. Arizona, in that it’s a judicially created notice about your rights potentially at stake so that you can take action to vindicate your rights.

If this is what the court is saying, the Ninth Circuit will be handling all sorts of interesting -- and precedent-setting -- cases in the near future. If the government has to be honest about its surveillance techniques, it will no longer be able to dodge Constitutional scrutiny by citing the Third Party Doctrine or claiming national security issues prevent it from informing defendants of the origin of evidence used against them.

This will have the most impact in cases where FISA evidence is in play and the government -- perhaps secure that its national security mantra will encourage the court to aid and abet in obfuscation -- hasn't bothered to engage in parallel construction. On the flipside, government lawyers have probably already parsed this latent threat to unearned secrecy and will be encouraging everyone involved to perform their surveillance in triplicate to prevent the establishment of warrant requirements in cases where reasonable suspicion can't even be met.

Filed Under: 9th circuit, criminal, due process, intelligence community, parallel construction, surveillance

Appeals Court Says Not Allowing Federal Officers To Pepper Spray Journalists Makes Law Enforcement Too Difficult

from the protecting-the-right-to-be-tear-gassed dept

The Ninth Circuit Appeals Court has just stripped away the protections granted to journalists and legal observers covering ongoing protests in Portland, Oregon. After journalists secured an agreement from local police to stop assaulting journalists and make them exempt from dispersal orders, the DHS's ad hoc riot control force (composed of CBP, ICE, and Federal Protective Services) showed up and started tossing people into unmarked vans and assaulting pretty much everyone, no matter what credentials they displayed. Shortly after that, a federal court in Oregon granted a restraining order forbidding federal agents from attacking journalists and observers.

Not that granting the restraining order did much to prevent federal officers from beating journalists with batons, spraying them with pepper spray, or making sure they weren't left out of any tear gassings. The plaintiffs were soon back in court seeking sanctions against federal violators of the order. The DHS said it couldn't identify any of the officers and stated it had punished no one for violating the order. This prompted the judge to add more stipulations to the order, including the wearing of identification numbers by officers engaging in riot control.

Unfortunately for journalists and legal observers, the restraining order is no longer in place. It was rolled back by the Appeals Court in a very short order [PDF] with the court finding that a blanket order protecting journalists and observers from being assaulted makes things too tough for federal cops. (via Courthouse News)

Based on our preliminary review, appellants have made a strong showing of likely success on the merits that the district court’s injunction exempting “Journalists” and “Legal Observers” from generally applicable dispersal orders is without adequate legal basis. Given the order’s breadth and lack of clarity, particularly in its non-exclusive indicia of who qualifies as “Journalists” and “Legal Observers,” appellants have also demonstrated that, in the absence of a stay, the order will cause irreparable harm to law enforcement efforts and personnel.

DHS personnel will still have to comply with the stipulation of the now dead restraining order requiring them to ID themselves:

This order does not disturb the portion of the district court’s August 20, 2020 order directing the parties to confer regarding identifying markings…

The equally short dissent disagrees. The restraining order has been in place for more than a month at this point and the federal task force hasn't found itself unable to engage in crowd control and riot suppression efforts.

In light of the deferential review accorded to the district court’s factual finding at this stage, the district court’s extensive factual findings with respect to journalists and legal observers, including the finding that the injunction would not impair law enforcement operations to protect federal property and personnel, and the fact that a temporary restraining order has been in place since July 23, 2020, the government has failed to meet its burden to demonstrate either an emergency or irreparable harm to support an immediate administrative stay.

This will be appealed. And it may end up being something the Supreme Court will feel like addressing. There's a question that needs to be answered since the future will contain plenty of protests and plenty of people covering them. This was how the district court judge explained it in an earlier hearing:

Simon initially said at a hearing Tuesday that the question of whether journalists have different rights under the First Amendment than those of protesters, who legally must leave an area after a riot has been declared, was likely to end up before the U.S. Supreme Court.

But Judge Simon took a pass on that question in his decision -- the one now rejected by the Appeals Court.

Someday, a court may need to decide whether the First Amendment protects journalists and authorized legal observers, as distinct from the public generally, from having to comply with an otherwise lawful order to disperse from city streets when journalists and legal observers seek to observe, document, and report the conduct of law enforcement personnel; but today is not that day.

With this rejection by the Appeals Court, that "someday" may be much closer than it was a little more than a week ago, when journalists and observers were still shielded from being assaulted by federal officers. The gloves are off now and federal agents are free to treat them like the rest of the crowd when deploying force.

Filed Under: 9th circuit, dhs, due process, journalists, portland, protests, restraining order

So Now We Needed Another Ridiculous Executive Order About TikTok That Goes Beyond The President's Authority?

from the come-on-now dept

A week after issuing his first ridiculous executive order about TikTok, barring any transactions involving the company if it is still owned by ByteDance, President Trump decided he needed to issue a second executive order about TikTok, this one more directly ordering ByteDance to sell it. The authority used in this one is different. The first one was using the IEEPA, which is what Trump has used to claim "national security" reasons for imposing tariffs on China without Congressional approval. This time he's using 50 USC 4565, which allows the US treasury to block certain mergers, acquisitions and takeovers that might impact national security.

Except, here Trump is using that in reverse. ByteDance bought Musical.ly (and made it TikTok) two years ago. Trump didn't raise a peep at the time. To turn around now, two years later, and pretend that he can order the deal unwound is just silly.

Even if you don't trust ByteDance/TikTok, you should be absolutely concerned about this for multiple reasons: it's a clear and blatant abuse of power by the President. Allowing any President to just declare a foreign-owned company a problem and try to force it to sell to an American company is going to cause all sorts of long-term problems for the US. What's to stop foreign governments from doing the same to us? China is probably just itching to do something similar in retaliation. Second, to reach back two years and try to unwind a merger at this point based on this flimsy legal theory is just crazy as well. It's clear that this is nothing more than vindictiveness on the part of the President.

If there are real security issues with TikTok, then there should be due process. There should be investigations and evidence. Not just a childish, narcissistic President suddenly declaring that an entire company must be sold.

Filed Under: china, donald trump, due process, executive order, merger review, retaliation
Companies: bytedance, tiktok

Appeals Court Again Says That The White House Can't Just Remove A Press Pass Because It Didn't Like A Reporter Mocking Seb Gorka

from the not-how-it-works dept

Last summer we explained why it was a clear 1st Amendment and 5th Amendment violation for the White House to remove Playboy reporter Brian Karem's press pass, with no warning, after he got into a small verbal tiff with former White House employee Seb Gorka. Lots of Trump supporting people, who seem wholly ignorant of how the Constitution actually works, were very mad at us for reporting on that, and insisted that it was somehow obvious that the White House could revoke a press pass like that, even in retaliation for a reporter's statements. And yet, just as we predicted, the district court quickly ruled that the White House needed to restore Karem's pass.

Now, nearly a year later, the DC Appeals court has affirmed that decision and made it quite clear that the White House's removal of Karem's pass was unconstitutional. The full ruling is worth reading, and, as with the district court, focuses more on the 5th Amendment due process problems, rather than the 1st Amendment retaliation problems. And just to respond to the same comment that came up multiple times in our comments, no, no one is saying that the White House has to automatically let anyone in to press events. Instead, as the court explains, if the White House is opening up an event to the press, it cannot bar people for "arbitrary" reasons (or for any reasons that violate the 1st Amendment, regarding retaliation for speech).

We began by emphasizing that Sherrill’s claim “[wa]s not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.” Id. at 129. But given that “the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom” and given that “[t]hese press facilities are perceived as being open to all bona fide Washington-based journalists,” we held that “the protection afforded newsgathering under the first amendment . . . requires that this access not be denied arbitrarily or for less than compelling reasons.” Id. at 129 (internal citations omitted). Moreover, “the interest of a bona fide Washington correspondent in obtaining a White House press pass” is not only “protected by the first amendment” but also “undoubtedly qualifies as [a] liberty [interest] which may not be denied without due process of law under the fifth amendment.”

After reciting the details of the verbal encounter between Karem and Gorka, the court notes delves into the 5th Amendment due process problems with Karem's suspension:

Applying that test, we think Karem’s due process claim is likely to succeed because, on this record, nothing put him on notice of “the magnitude of the sanction”—a month-long loss of his White House access, an eon in today’s news business—that the White House “might impose” for his purportedly unprofessional conduct at the non-press-conference event. Gore, 517 U.S. at 574. True, the Acosta Letter set forth “rules governing future press conferences,” but in that very same letter, the White House expressly declined to adopt “specific provisions for journalist conduct in the open (non-press room) areas of the White House” “in the hope that professional journalistic norms” would “suffice to regulate conduct in those places.” Acosta Letter 1, J.A. 693 (emphasis added). What’s more, although the White House made clear that “failure to abide by” the newly articulated press-conference rules “may result in suspension or revocation of the journalist’s hard pass,” it declined to adopt analogous sanctions for unprofessional conduct at non-press-conference events. Id. Instead, the White House stated that “[i]f unprofessional behavior occur[red] in those settings,” then it would “reconsider this decision”—that is, the lack of formally articulated standards and sanctions—not that it would suspend journalists’ hard passes.

Even assuming the Acosta Letter provided Karem some notice of behavioral expectations “in the open . . . areas of the White House,” id., it failed to put him on notice of “the magnitude of the sanction that [the White House] might impose” for his purported failure to heed any such expectations, Gore, 517 U.S. at 574. To the extent Karem’s “irreverent, caustic” attempts at humor (to use the district court’s language) crossed some line in the White House’s view, those transgressions were at least arguably similar to previous journalistic misbehavior that elicited no punishment at all, let alone a month’s exile. Karem, 404 F. Supp. 3d at 215. In the context of a White House press corps described as an “unruly mob,” id. at 214 (internal quotation marks omitted), Karem’s behavior was not so outrageous as to bring into fair contemplation the unprecedented sanction visited on him.

The White House’s arguments to the contrary are without merit.

In rejecting each of the White House's arguments, the appeals court even calls one such argument "absurd."

Finally, raising the specter of the absurd, the White House argues that it cannot be the case that “the Press Secretary would be powerless to take action even were a reporter to ‘moon’ the President, shout racial epithets at a foreign dignitary, or sexually harass another member of the press corps.” Appellants’ Reply Br. 4. But just as “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,” Hoffman Estates, 455 U.S. at 495, the White House cannot defend the thirty-day suspension here on the ground that some other, egregious conduct might justify the same sanction. And even if the White House could impose that sanction for such egregious conduct consistent with due process, Karem’s behavior as reflected in the preliminary injunction record fell below that threshold. Notions of professionalism are, after all, context-dependent. Cf. Strickland v. Washington, 466 U.S. 668, 693 (1984) (“[A]n act or omission that is unprofessional in one case may be sound or even brilliant in another.”). “[W]ithin the context of such an unruly event” as the Summit, “where jocular insults had been flying from all directions,” Karem, 404 F. Supp. 3d at 215–16, Karem’s statements were not so egregious as to justify suspending his hard pass for thirty days without prior notice.

Of course, the White House was still able to keep Karem suspended for 18 days before the original decision came down, and even this alone might be intimidating to the White House press corps, which was undoubtedly the key reason behind this in the first place.

Filed Under: 1st amendment, 5th amendment, brian karem, due process, press pass, seb gorka

Italian Public Prosecutor Says Project Gutenberg's Collection Of Public Domain Books Must Be Blocked For Copyright Infringement

from the protecting-the-copyright-of-dante? dept

Back in 2013, we made clear our concerns with the Italian communications watchdog AGCOM setting up new administrative copyright enforcement powers that would allow them to simply up and declare sites to be infringing, at which point ISPs would be ordered to block websites. Soon after that Italy's public prosecutor seemed to decided that part of his job was also to order websites blocked based solely on the public prosecutor's say so.

In the latest such order from the Public Prosecutor's office declaring a list of sites to be infringing, apparently Italy has decided that the famous and wonderful Project Gutenberg website, which is a repository of public domain books, must be blocked. I don't know about the other 27 sites listed in the order, but Project Gutenberg is no piracy site. Yet here it is at number 25 on the list:

They even go to the trouble of looking up the whois info. You would think that maybe someone would recognize that a site founded in 1996 maybe is not a giant piracy site:

The Italian Library Association is asking what the fuck is going on (translation via Google Translate):

As everyone knows, Project Gutenberg promotes the widest dissemination and knowledge of the registered cultural memory. For years it has been hosted by large universities that made their servers available, before becoming an autonomous organization, one of the main of this type and inspiring model for many other similar ones (such as the Manutius Project in Italy), mainly supported by work. of many volunteers. We reiterate that it is one of the most qualified projects on the net, with a large amount of documents accessible for free in compliance with the US Copyright Act, because it is in the USA that it is based: they are works in the public domain, out of rights because they have always been public domain (such as the Bible) or because the maximum terms of duration of copyright have passed.

Seeing the Gutenberg Project linked to a whole series of domains that contain pirated editorial materials for commercial purposes causes bewilderment and disapproval in the world of libraries.

It appears that neither the Italian Public Prosecutor nor the Court even attempted to contact Project Gutenberg which only found out about it after a visitor to the site in Italy made them aware of it:

And, if you want to understand how this happened -- which also might raise some huge questions about how the public prosecutor's office works -- it appears that they were monitoring some Telegram private channels, and saw someone there link to some pirate sites and link to Project Gutenberg, and rather than, you know, investigate, they just decided to ban the entire list. Pretty incredible that they'd look up the whois, but apparently not check out the actual website. Because of copyright, apparently, they must censor all.

Filed Under: censorship, copyright, culture, due process, italy, public domain, site blocking, takedowns
Companies: project gutenberg

DOJ Says Coronavirus Emergency Justifies Indefinite Detention Of Arrested People

from the not-enough-dystopian-hellscape,-say-Justice-reps dept

With the administration no longer able to ignore the threat posed by the coronavirus, it's decided to secure some additional powers for itself while the nation's defenses are low. As Betsy Woodruff Swan reports for Politico, the DOJ is seeking to add "indefinite detention" to its list of criminal justice perks as courtrooms around the nation undergo significant operational restrictions.

The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the novel coronavirus spreads throughout the United States.

Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted. POLITICO also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.

The DOJ has refused to comment on this power grab. Not all of it is unusual. Plenty of cases already in progress are going to be delayed because of restrictions on courts meant to stem the flow of the virus. But this goes beyond cases that are already underway. This would affect people who've only been accused of criminal acts and have yet to receive even a single day in court.

The proposal would also grant those top judges broad authority to pause court proceedings during emergencies. It would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings,” according to draft legislative language the department shared with Congress.

Judges already have some power to control proceedings during emergencies, but this asks judges to treat cases where only an arrest has occurred as events that can be strung out indefinitely. With so many lives already disrupted by the shutdown of businesses and services, putting an accused person's life in indefinite limbo is only going to cause more harm to a population that is already suffering plenty of it.

Fortunately, this has already been shot down by members of Congress. And it's not just along party lines. Riley Beggin reports for Vox that the rejection of the DOJ's power move is bipartisan.

Legal experts and politicians on both sides of the aisle quickly condemned the request. Sen. Mike Lee (R-UT) tweeted “OVER MY DEAD BODY;” Democratic Senate Minority Leader Chuck Schumer (NY) wrote, “Two Words: Hell No;” and Democratic New York Rep. Alexandria Ocasio-Cortez tweeted “Absolutely not” — a sentiment Sen. Rand Paul’s (R-KY) chief strategist, Doug Stafford, agreed with.

This isn't quite the same thing as being shot down in the halls of Congress itself, so there's still a small chance the DOJ will get its way. But this doesn't bode well for its opportunistic move, which seems more punitive than useful, especially when putting more people behind bars increases the odds of the virus spreading. Quarantine is almost impossible in jails and prisons, and even if you don't care about accused criminals, the people staffing jails aren't able to perform their duties without mingling with a possibly infected population.

The DOJ is also asking for a prosecution pause button while court proceedings are on hold, allowing it to bypass the statute of limitations for cases originating during this national emergency. It would give the DOJ at least a two-year pass, covering both current cases and any developing within a year of the "end" of the national emergency. There's nothing wrong with asking for this, since doing otherwise would basically give criminals a free pass for federal crimes committed during the national emergency. But it does suggest it's far more than the economy that's going to be disrupted for months (or years) to come.

If there's anything positive in this last request, it's that it may result in better prosecutorial discretion. With manpower limited and courts mostly closed for business, the DOJ will have to pick and choose which cases it wants to pursue. This will hopefully lead to less effort wasted prosecuting people for things like lying to feds or being talked into being terrorists by FBI informants.

Filed Under: congress, covid-19, doj, due process, indefinite detention

Court Tells Man $172 Red Light Camera Ticket Is Actually Less Than $100 And Can't Be Challenged In Court

from the you-see,-once-you-subtract-all-the-other-money-you're-obligated-to-pay... dept

Adding to the body of evidence showing that the use of traffic cameras is purely about revenue generation is this report from The Newspaper, which points out (yet again) how these systems are designed to eliminate due process and hasten the collection of fines and fees.

In this case, part of the designed due process elimination was already in place before the red light cameras went up. Certain citations are designed to be unable to be challenged, and this one -- a red light infraction pinned on the wrong person -- is one of them.

Recipients of red light camera tickets in Delaware cannot challenge the citation in court because the $172 fine is worth less than $100 by the reckoning of the Delaware Superior Court. Judge Abigail M. LeGrow last month denied the appeal of Stanley C. Lowicki, whose car was photographed by a red light camera while allegedly traveling through a red light at the intersection of Route 72 at Kenmore Drive on May 18, 2017.

Because he was not actually behind the wheel at the time of the alleged infraction, Lowicki challenged the citation before the local Justice of the Peace Court. The justice of the peace was not interested in his arguments and imposed the full $172 fine, which Lowicki appealed to the Court of Common Pleas. That court declined to consider the case since it is only able to hear appeals for "civil penalties" that exceed $100.

If you're wondering how $172 can be less than $100, the Common Pleas courts is happy to explain it to you. In upholding the Justice of the Peace Court's decision, the Common Pleas court performs the sort of math you usually see deployed by Hollywood studio accountants. From the decision [PDF]... no, wait a second. Let's hang back a minute and savor this judicial turn of phrase:

On May 18, 2017, a car Stanley C. Lowicki owned was captured by a traffic camera disobeying a red light on Route 72 at Kenmore Drive.

Great. The traffic lights are sentient. So are the cars. Bring on Skynet etc.

OK. Here's the court's breakdown the $172 fine, which is pertinent to its finding that $172 is less than $100 and, therefore, incapable of being challenged.

At the conclusion of the hearing, the JP Court found Mr. Lowicki responsible for the violation and ordered him to pay $172.50, consisting of the following amounts:

Fine Amount: $75.00
Court Costs: $25.00
Court Security Fee: $10.00
Transportation Trust Fund: $37.50
State Police Fund: $7.50
Local Law Enforcement Fund: $7.50
Ambulance Fund: $10.00

To challenge a fine, it must be over $100. Breaking down all the fees attached to the actual "fine" shows most of the assessed fine isn't actually the fine, but a bunch of handouts to everyone involved in the scheme (except ambulances, I guess…). This keeps the supposed real "fine" under the $100 mark, which makes it unassailable in court. Drivers (or non-drivers, as it is in this case) can hope to talk the local JP into dropping the fine (and its costly appendages) but that option is rarely successful.

Lowicki argued that this breakdown of "funds" that are inseparable from the "fine" is some bullshit. He's correct. But it's the state's bullshit and it pretty clearly seems to be constructed this way to maximize revenue while reducing the state's exposure to courtroom challenges.

The court agrees with the State and its fund-packing.

The term “civil penalty” in Section 4101(d)(12) corresponds to the amount of the fine assessed by the JP Court, which falls within the “civil or administrative assessment” referenced in Section 4101(d)(3). Section 4101(d)(12) specifies that any late fees assessed under subsection (d)(3) also will be considered part of the civil penalty for determining whether there is a right to appeal. By specifically referring to only one of the amounts contained in subsection (d)(3), the legislature made clear that the other costs and fees imposed were not included within the “civil penalty.” Section 4101(d)(3) refers to those amounts as costs and fees, not assessments or penalties.

And, just like that, $172 becomes less than $100 and tickets from red light cameras become nigh invincible. There is no recourse in Delaware and Stanley Lowicki's only option appears to be [checks notes] obtaining a more obedient vehicle.

Filed Under: abigail legrow, bureaucracy, delaware, due process, fees, red light cameras, stanley lowicki