DOJ Lets Cops Know SESTA/FOSTA Is For Shutting Down Websites, Not Busting Sex Traffickers

from the work-dumber,-not-harder dept

SESTA/FOSTA was pushed through with the fiction it would be used to target sex traffickers. This obviously was never its intent. It faced pushback from the DOJ and law enforcement agencies because pushing traffickers off mainstream sites would make it much more difficult to track them down. The law was really written for one reason: to take down Backpage and its owners, who had survived numerous similar attempts in the past. The DOJ managed to do this without SESTA, which was still waiting for presidential approval when the feds hits the site's principal executives with a 93-count indictment.

The law is in force and all it's doing is hurting efforts to track down sex traffickers and harming sex workers whose protections were already minimal. Sex traffickers, however, don't appear to be bothered by the new law. But that's because the law wasn't written to target sex traffickers, as a top DOJ official made clear at a law enforcement conference on child exploitation. Acting Assistant Attorney General John P. Cronan's comments make it clear SESTA/FOSTA won't be used to dismantle criminal organizations and rescue victims of sex traffickers. It's there to give the government easy wins over websites while sex traffickers continue unmolested.

In April, Backpage.com – the internet’s leading forum to advertise child prostitution – was seized and shut down, thanks to the collective action by CEOS and our federal and state partners. The Backpage website was a criminal haven where sex traffickers marketed their young victims. The Backpage takedown – and the contemporaneous arrests of individuals allegedly responsible for administering the site – struck a monumental blow against child sex traffickers.

But other sites inevitably will seek to fill the void left by Backpage, and we must be vigilant in bringing those criminals to justice as well. With the recent passage of the SESTA-FOSTA legislation, state and local prosecutors are now positioned to more effectively prosecute criminals that host online sex trafficking markets that victimize our children.

"Criminals" that "host sex trafficking markets." That's the target. That's any website that might be used by actual sex traffickers to engage in actual sex trafficking. There's no dedicated web service for sex trafficking -- at least not out in the open where Section 230 immunity used to matter. This is all about taking down websites for hosting any content perceived as sex trafficking-related. It wasn't enough to hang Backpage and its execs. The government will be scanning sites for this content and then targeting the website for content posted by third parties it seems mostly uninterested in pursuing.

Hosts of third-party content are usually easy to find. The actual third parties are far more difficult to track down. Intermediary liability is back. Section 230 is no longer an effective defense. The edges have been trimmed back and the government knows it can rack up easy wins over web hosts and slowly start destroying the web under the facade of saving sex trafficking victims. The DOJ knew this law would make it harder to track down traffickers. But it also knows the law allows it to target websites instead. And here it is touting the law it fought against to a conference full of law enforcement officials, letting them know targeting websites will give them wins and accolades and far fewer headaches than tracking down the individuals actually engaged in illegal activity.

Filed Under: doj, fosta, intermediary liability, jeff sessions, john cronan, sesta, sex trafficking, shutting down websites

FBI Hoovered Up Two Years Of A Journalist's Phone And Email Records To Hunt Down A Leaker

from the sorry,-citizens,-we-have-an-omelette-to-make dept

The New York Times reports the FBI has crossed a line it's generally hesitant to cross. An investigation into classified info leaks by a Senate Intelligence Committee aide involved the seizure of two year's worth of a New York Times reporter's phone and email records.

The former aide, James A. Wolfe, 57, was charged with lying repeatedly to investigators about his contacts with three reporters. According to the authorities, Mr. Wolfe made false statements to the F.B.I. about providing two of them with sensitive information related to the committee’s work. He denied to investigators that he ever gave classified material to journalists, the indictment said.

[...]

Mr. Wolfe’s case led to the first known instance of the Justice Department going after a reporter’s data under President Trump. The seizure was disclosed in a letter to the Times reporter, Ali Watkins, who had been in a three-year relationship with Mr. Wolfe. The seizure suggested that prosecutors under the Trump administration will continue the aggressive tactics employed under President Barack Obama.

The war on unofficial transparency continues -- this time ensnaring a reporter. The indictment [PDF] shows Wolfe was in regular contact with four unnamed reporters and the classified info leaked apparently related to the investigation of Carter Page. (The indictment refers only to MALE-1.).

Despite all the dots connected by the Justice Dept. after hoovering up email and phone records of four reporters, none of the charges brought against Wolfe involved mishandling classified info. All three charges listed are for lying to the FBI, not exposing secret info. While the info obtained may have been necessary to prove Wolfe lied to investigators, it does seem like a serious breach first amendment boundaries for nothing but vanilla "lied to the feds" charges. Those charges are mostly there for the government to punish people when it thinks it can't nail down more serious charges.

And it is a breach of expected norms, if not a reliable indicator of how many civil liberties the government is willing to doormat to hunt down leakers and whistleblowers.

Under Justice Department regulations, investigators must clear additional hurdles before they can seek business records that could reveal a reporter’s confidential sources, such as phone and email records. In particular, the rules require the government to have “made all reasonable attempts to obtain the information from alternative, non-media sources” before investigators may target a reporter’s information.

In addition, the rules generally require the Justice Department to notify reporters first to allow them to negotiate over the scope of their demand for information and potentially challenge it in court. The rules permit the attorney general to make an exception to that practice if he “determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”

It's not clear all these steps were followed. But there are a whole lot of exceptions available to the FBI to bypass these steps meant to protect the First Amendment. No one seems to have been notified beforehand, and it was far more than call/email metadata that was obtained. The indictment cites the content of encrypted messages -- suggesting yet another area where the FBI's "going dark" rhetoric is overblown.

After the story was published, WOLFE congratulated REPORTER #3, using Signal, stating "Good job!" and "I'm glad you got the scoop." REPORTER #3 wrote back, using Signal,"Thank you. [MALE-l] isn't pleased, but wouldn't deny that the subpoena was served."

Going after reporters' records may become standard operating procedure. The Obama Administration prosecuted more leakers and whistleblowers than all previous presidents combined. This administration appears ready to dwarf Obama's numbers.

Attorney General Jeff Sessions said last year that the Justice Department was pursuing about three times as many leak investigations as were open at the end of the Obama administration.

If the DOJ isn't going to give the First Amendment a wide berth, it's not going to be much friendlier to the rest of them -- like the Fourth. Aggressive pursuit of leakers -- and the attendant collection of reporters' communications/data -- will continue. The DOJ may have guidelines meant to limit investigators from obtaining journalists' records, but they're not much practical use when they can be waived to preserve the "integrity of the investigation."

Filed Under: 4th amendment, doj, fbi, first amendment, investigations, james wolfe, jeff sessions, journalists, leaks, whistleblowers

DOJ, FBI Issuing Corrections To Statements, Testimony Containing Bogus Uncracked Device Numbers

from the cleanup-on-aisle-7800 dept

The FBI's push for encryption backdoors relied on ever-skyrocketing numbers of uncracked devices the agency's best and brightest just couldn't seem to access. "Look!" DOJ and FBI officials said, pointing lawmakers at charts showing an explosion in the number of locked devices over the last couple of years. Unsustainable, it seemed to say. But it was all a lie. Not a deliberate lie, maybe, but a lie nonetheless. A convenient misrepresentation of the problem caused by a software error.

How does an agency with the technical capabilities the FBI has miscount physical items? Apparently, you let software do the counting and hope for the best.

“The FBI’s initial assessment is that programming errors resulted in significant over-counting of mobile devices reported,’’ the FBI said in a statement Tuesday. The bureau said the problem stemmed from the use of three distinct databases that led to repeated counting of phones. Tests of the methodology conducted in April 2016 failed to detect the flaw, according to people familiar with the work.

This inflated the count from somewhere between 1,000-2,000 to nearly 8,000. That was the number used by Director Christopher Wray and AG Jeff Sessions in testimony to Congress and speeches to law enforcement. That was the center of the narrative: a number that kept growing exponentially with no end in sight.

You'd think the agency would track devices better, what with officials constantly claiming each and every phone was "tied to a threat to the American people." Something that important shouldn't be carelessly handled. But the phones "tied to threats" were overcounted, suggesting a severe problem in the FBI's tracking system that might make it difficult to figure out which "threats" each phone is "tied" to if and when it ever gets around to cracking the devices.

Now, the DOJ is in damage control mode. Robyn Greene was the first to notice the corrections made to officials' statements using the FBI's bullshit ~8,000 number. Edits to AG Sessions' recent comments at a law enforcement conference have replaced this:

Last year the FBI was unable to access investigation-related content on more than 7,700 devices…

With this:

Last year the FBI was unable to access investigation-related content on more than ** devices…

The footnote reads:

** Due to an error in the FBI's methodology, an earlier version of this speech incorrectly stated that the FBI had been unable to access 7,800 devices. The correct number will be substantially lower.

The FBI's been doing a bit of cleanup at its own site. Here's one from May 3, 2017 that has since been corrected.

In just the first half of this fiscal year, the FBI was unable to access the content of more than 3,000* mobile devices...

The FBI's footnote is far more concise and vague.

* Due to an error in methodology, this number is incorrect. A review is ongoing to determine an updated number.

It helpfully doesn't mention the FBI screwed up its own count. Nor does it state the new estimate will be "substantially lower." Cowards.

Here's another one, from September 27, 2017:

In the first 10 months of this fiscal year, the FBI was unable to access the content of more than 6,000* mobile devices…

How did this jump -- 3,000 phones in five months -- escape notice? As of November 2016, the number was only around 880 devices. Then it jumped to 3,000 six months later. Then it doubled to 6,000 in less than five months. By the end of that fiscal year four months later, the FBI had supposedly added another 1,775 uncrackable devices.

In fiscal year 2017, we were unable to access the content of 7,775* devices…

Even if the count had been accurate (which it wasn't), the numbers were delivered dishonestly. What appears to be a cumulative total of all devices the FBI had collected over the years is presented in testimony as being the total number of devices the FBI couldn't unlock during a single fiscal year. This vastly misconstrues the severity of the issue and while FBI officials may have been unaware the FBI's software was delivering bogus counts, it didn't stop them from overstating the problem by presenting historical cumulative numbers as a single year's total.

Whatever number the FBI finally delivers will be decidedly underwhelming. Considering it still hasn't provided Congress with details of its attempts to access supposedly uncrackable devices, the FBI has managed to decimate its own forces in the new War on Encryption. It overplayed its hand -- perhaps inadvertently -- and weakened its argument severely. Something this important to the FBI was handled carelessly -- not because the FBI doesn't really want weakened encryption, but because the FBI will not do anything to weaken its anti-encryption position. It never bothered to check the phone count because the number given to officials was sufficiently impressive. That mattered far more than accuracy or honesty. "Fidelity, Bravery, Integrity" my ass.

Filed Under: chris wray, corrections, doj, encrypted phones, errors, fbi, going dark, jeff sessions

The Attorney General Thinks Police Having To Follow The Constitution Leads To Violent Crime Increases

from the it's-not-just-him-unfortunately dept

Attorney General Jeff Sessions is an old-school law and order man. He wants asset forfeiture returned to its former glory -- no longer questioned by all and sundry for its ability to enrich law enforcement agencies without making much of a dent in criminal activity. He wants drug sellers jailed for as long as possible, suggesting the last time he read a policy paper was sometime during the mid-1980s. And he thinks people questioning law enforcement efforts should be ashamed of themselves, what with the dangers faced occasionally by officers whose workplace can't even crack the Top 10 Deadliest Jobs in America list.

Sessions goes where he's wanted when he speaks, ensuring he'll receive applause and accolades, rather than a bunch of "wtfs?" when he delivers bullshit like this:

I believe one of my highest duties is to call attention to your successes, and to encourage our fellow citizens to support you in your difficult and dangerous work.

But what has made times difficult recently for law enforcement is that—by the end of the previous administration—many of you came to believe that some of the political leadership of this country had abandoned you. Some radicals and politicians began to unfairly malign and blame police as a whole for the crimes and unacceptable deeds of a few. Amazing— their message seemed to be that the police were the problem, not the criminals. They wanted the ACLU to determine police policies, and that was enforced by a federal court order. They said police were violent while homicides in America increased by a total of 20% in 2015 and 2016, the largest jump since 1968. Law Professor Paul Cassell and economics Professor Richard Fowles established that in Chicago, homicide jumped 58% after the ACLU settlement ended proven and constitutional policing.

This was delivered to the National Association of Police Organizations -- a union of police unions -- so there was no one present to question the veracity of this statement, nor push back against its loaded, implicit assertions. No one would expect any more (or any less!) of an organization of organizations which are largely responsible for the general state of disrepair that passes for policing these days.

Law enforcement has never been abandoned. Even when the criticism rains down from the federal government, it's always hedged with phrases implying the problem is a few officers, rather than the culture itself. If all it takes is an incremental increase in accountability to make officers feel "abandoned," they're far too sensitive to be holding positions of public power.

Second, Sessions shows he doesn't care about police misconduct or public accountability by maligning those who demand accountability as "radicals." This suggests Sessions is more interested in a docile nation than upholding his duties as Attorney General, which (used to) include investigating and prosecuting officers who abuse their power.

Finally, his portrayal of the rise in violence in Chicago as the direct result of a consent decree is both dishonest and ugly. The consent decree dealt with the Chicago PD's stop-and-frisk tactics. The PD agreed to revamp its policies after a 2015 report by the ACLU found the program disproportionately targeted black residents. In other words, Sessions is claiming requiring cops to behave Constitutionally results in increased criminal activity.

That would be bad enough on its own, but there's not one single thing Sessions can point at to back up this claim -- not even the report itself. Correlation isn't causation and there's ample evidence a consent decree that requires Constitutional policing does not lead to increased crime. We have apples-to-apples comparisons that disprove this ridiculous theory.

The NYPD was forced to drastically alter its stop-and-frisk program for the same reasons (targeting minorities). Crime went down, despite then-mayor Michael Bloomberg's promise of a criminal apocalypse. That's only one example. Salvador Rizzo of the Washington Post has several more.

Philadelphia has been working under a settlement agreement on stop-and-frisk practices like Chicago’s since 2011, and its homicide rate fell for several years afterward before rising again in 2016 and 2017 (albeit at much lower rates than in Chicago).

Seattle has been under a consent decree that includes stop-and-frisk provisions since 2012, and its yearly homicide rate has been mostly steady, hovering between 19 and 27, in the following years.

In Newark, N.J., a consent decree imposing requirements for stop-and-frisk practices, among other provisions, was adopted in 2016. The city reported 72 homicides in 2017, a 25 percent drop, although nonfatal shootings increased.

“The consent decree was signed and the monitor appointed in the spring and summer of 2016, and Newark continues to have the lowest crime in 50 years since then,” said Paul J. Fishman, the former U.S. attorney for New Jersey, who implemented the consent decree.

Sessions is correct in terms of quoting the report's findings. But the findings cannot possibly be correct. Even if the stats are right, the rationale is wrong. Fewer police stops may lead to increased crime, but connecting the two is far from a foregone conclusion. And yet, there it is, in a still-unreleased report that provides ammo for supporters of unconstitutional policing.

Even the authors of the report find it difficult to make this conclusion stick. To do so means throwing out other contradictory evidence, which is exactly what appears to have happened.

Cassell and Fowles called New York City an “anomaly” and wrote that it had a much lower rate of homicides committed with firearms than Chicago, “a small number of guns and gun crimes (relative to Chicago and many other cities),” and a police force that is about 25 percent larger than Chicago’s on a per-capita basis.

The other "anomalies" (Philadelphia, Seattle, Newark, etc.) were ignored. The DOJ itself -- which Sessions heads -- did not arrive at this conclusion either. Its report on increased violence suggests a few factors, none of which are the consent decree governing police stops.

“Over the year-plus since release of that video, and while we have been conducting this investigation, Chicago experienced a surge in shootings and homicides,” the DOJ report says. “The reasons for this spike are broadly debated and inarguably complex. But on two points there is little debate. First, for decades, certain neighborhoods on Chicago’s South and West Sides have been disproportionately ravaged by gun violence. Those same neighborhoods have borne the brunt of the recent surge of violence. And second, for Chicago to find solutions — short- and long-term — for making those neighborhoods safe, it is imperative that the City rebuild trust between CPD and the people it serves, particularly in these communities.”

While Chicago may be grabbing headlines with its high number of homicides, several other US cities have experienced higher spikes in the violent crime rate -- Ft. Worth, Houston, Memphis, and Baltimore have seen far more significant increases than Chicago's. But no one is claiming these spikes are due to ACLU meddling, consent decrees, or the actions of "radicals" opposed to abusive policing. Nope, it's just AG Sessions cherry-picking a single report with anomalous "findings" -- one that refers to data that doesn't agree with its theory as "anomalous." Speaking in front of cops makes it that much easier to peddle bullshit. But that doesn't change the fact it's still bullshit, no matter how much uncritical applause is offered in return.

Filed Under: 4th amendment, chicago, jeff sessions, police, police brutality, police misconduct, stop-and-frisk
Companies: napo, national association of police organizations

A Bunch Of Politicians Who Complain About Trump's Authoritarian Tendencies Just Gave Him 6 Years To Warrantlessly Spy On Americans

from the because-reasons dept

As was widely expected after Tuesday's close vote on cloture, the Senate officially voted to renew (in a somewhat expanded way) Section 702 of the FISA Amendments Act by a vote of 65 to 34. That also means a few of those who voted against cloture switched over and voted for the program, including Senators Ted Cruz and Chuck Schumer. President Trump will almost certainly sign the bill shortly, despite confusing basically everyone last week by tweeting out complaints about the program, despite his White House vehemently supporting it.

Trump's confusion isn't all that surprising. What is surprising is just how many people who have been complaining and warning about Trump made this possible. In the House, vocal Trump critics including Nancy Pelosi, Adam Schiff and Eric Swalwell were among those who voted for this bill which, again, gives the FBI the power to spy on Americans without warrants via the collection of content (not metadata) swept up by the NSA. While defenders of the program keep insisting the program cannot be used to "target" Americans, they leave out that a ridiculous amount of American content is swept up into this collection, which can then be sifted through without a warrant, including a huge amount of communications of Americans.

Over on the Senate side, things were even more ridiculous. Senator Jeff Flake voted for cloture, helping to end (the already non-existing) debate on such surveillance, and blocking any amendments. And then, the very next morning, went on the Senate floor to slam the President, compare him to Stalin, and warn that our democracy may not survive. Again, this was mere hours after Senator Flake voted to give more surveillance powers to the President he was about to compare to Stalin.

Or how about Dianne Feinstein? It may be no surprise that Feinstein voted to continue and expand surveillance -- she has a long history of doing exactly that. But just about an hour before voting for cloture, Feinstein herself introduced an amendment that would have required a warrant to search the corpus of data collected under 702. And then she voted to block that amendment from even being voted on. Let me repeat that, because it's just that insane: Feinstein introduced an amendment to the 702 renewal, that would have required a warrant to sniff through the data... and then voted against allowing that amendment to be heard and voted on. Within an hour or so. And, since cloture needed 60 votes and just squeezed through with those 60 votes... Feinstein could have changed the debate herself. But chose not to.

Or how about Senator Claire McCaskill. She was the final vote for cloture and took over an hour after the vote was called to actually reach the floor. She was the actual deciding vote, as, if she voted against it, the cloture vote would have had only 59 yaes, and the debate would have continued, and amendments proposed. Trump has been loudly denouncing McCaskill for months as she's facing a tough reelection campaign. And her response was to deny any further debate or amendments and to vote to give Trump more surveillance powers.

These are not the only ones. Many vocal critics of the President just handed him much greater power to warrantlessly spy on Americans -- something the President (in a confused way) complained about concerning what he believed (incorrectly) was illegal spying on his own campaign.

Zack Whittaker at ZDnet has also compiled a list of elected officials who had put out earlier statements promising to reform surveillance... only to then vote for this program. It includes both Swalwell and Feinstein mentioned above, but many others as well.

Over at Lawfare, a site that has long defended basically every aspect of the surveillance state, reliable surveillance defenders Jack Goldsmith and Susan Hennessey tried to defend the paradox of not trusting Trump, but giving him the ability to warrantlessly spy on Americans. The crux of it is basically... "we don't trust Trump, but there are good people in the intelligence and law enforcement communities and they'd never abuse these powers."

More broadly, one of the underappreciated developments in the post-Snowden-revelations era is the absence of credible allegations of political or venal use of 702 authorities. In essence, the public evidence confirms that the problems that used to bedevil secret electronic surveillance through the Hoover/Nixon era—namely, senior political figures deploying intelligence agencies and tools for inappropriate, abusive political purposes—have been resolved by a robust legal regime of oversight and reporting. When Sen. Elizabeth Warren points to the surveillance abuses directed at Martin Luther King Jr. to argue against 702, she actually highlights the opposite point: the massive transparency, both voluntary and involuntary, over the past few years about how Section 702 operates shows that it has not been abused for domestic political spying and implies that the 40 years of post-Hoover legal reforms are largely a success (though not without hiccups). The fact that President Trump has not focused his abusive energies on intelligence collection is a testament to the efficacy of the legal and cultural constraints on electronic surveillance.

Not surprisingly, Marcy Wheeler rips these claims to shreds in a response on her own blog, noting that beyond factual errors in the piece, it more or less ignores the FBI's role in all of this. Even if we grant the (incorrect) claim that the NSA doesn't abuse this data, that's not at all clear on the FBI side -- especially when the FBI refuses to provide any details at all:

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

Furthermore, Wheeler notes that Hennessey and Goldsmith completely ignore how this gives Attorney General Jeff Sessions incredible unreviewable power to make use of this warrantless data for criminal prosecutions, hiding where he got the information from.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

And, now, it appears that (unless Fox News somehow intervenes again) the President will sign this bill. EFF has put out an open letter about how awful this is, and how it intends to fight this in court. But, this was a major missed opportunity, and what's most incredible and disappointing is how many people who complain about Trump's authoritarian tendencies were central to making it possible.

Filed Under: adam schiff, backdoor searches, dianne feinstein, eric swalwell, fbi, fisa, jeff sessions, nancy pelosi, nsa, section 702, surveillance

DOJ Finally Drops Case Against Protester Who Laughed During Jeff Sessions' Confirmation Hearing

from the laughs;-lasts dept

A small bit of good news from our lol-worthy Justice Department: federal prosecutors have decided they're no longer interested in jailing someone for laughing at the Attorney General. That isn't the entirety of the story (or the dropped charges, for that matter), so here's a little background.

Back in January, Desiree Fairooz attended Jeff Sessions' confirmation hearing. Statements made by a legislator provoked an unfortunate response from this pink-hatted attendee.

Fairooz, a retired children's librarian and demonstrator affiliated with the organization Code Pink, let out a laugh during a Senate hearing back in January after Sen. Richard Shelby (R-Ala.) said Sessions had a “clear and well-documented” record of “treating all Americans equally under the law.” (Sessions had faced strong opposition from civil rights organizations and was rejected as a federal judge in the 1980s over concerns about his past comments on race.)

This very slight blow to Senate hearing decorum could have been ignored. Perhaps Fairooz could have been approached quietly and asked to keep her amusement to herself. Instead, a rookie Capitol police officer decided to arrest Fairooz. This led to a verbal altercation with Fairooz loudly protesting her removal from the hearing.

She was convicted in July by a jury -- but supposedly not because she laughed out loud.

Desiree Fairooz, an activist associated with the organization Code Pink, was found guilty on two counts: one for engaging in “disorderly or disruptive conduct” with the intent to disrupt congressional proceedings and a separate count for parading, demonstrating or picketing.

Several jurors who spoke with HuffPost after the verdict emphasized that they were focused on Fairooz’s actions after a rookie Capitol Police officer approached Fairooz when she laughed at Sen. Richard Shelby’s (R-Ala.) claim…

The jurors made this assertion post-conviction but the government appeared to believe laughter was enough of a crime in and of itself to justify pursuing a conviction. The judge disagreed.

[A] judge tossed out the jury’s conviction in July, finding that prosecutors had improperly argued during the trial that “laughter is enough, standing alone,” to merit a conviction. D.C. Superior Court Chief Judge Robert Morin said he found it “disconcerting” that the government had explicitly argued during the trial that laughter in and of itself was enough for a guilty verdict.

But there was still more prosecuting to be done, apparently. Fairooz rejected the government's offer of a plea deal, which would have required her to plead guilty to laughing at a legislator and/or disrupting the proceedings. So the government decided it would take another swing at securing a conviction. Maybe this was just a ploy to push Fairooz into an unforced error -- accepting the previously-rejected plea deal. Whatever the case, the government has now decided it's through trying to prosecute laughter.

Justice Department prosecutors have dropped their case against a woman who laughed at now-Attorney General Jeff Sessions during his confirmation hearing. Desiree Fairooz was scheduled to face trial for a second time next week, but a DOJ prosecutor entered a nolle prosequi filing in the case on Monday indicating the department is dismissing the charges.

The DOJ is wise to do this. It has plenty of other ways to waste taxpayer dollars that won't so closely resemble punishing free speech. (Uh... scratch that last part.) It also would have had an uphill battle arguing its case in front a judge who already determined Fairooz's laughter couldn't be used as part of the prosecution's case. And if the laughter couldn't be used to justify the officer's arrest and removal of Fairooz, then it would be extremely difficult to claim the ensuing disruption was itself a criminal act. The hasty decision of a rookie Capitol cop pretty much defeats that line of reasoning by tainting the arrest itself. With nowhere else to go and faced with an arrestee unwilling to cave, the DOJ has decided to exit this debacle as gracefully as possible.

Filed Under: desiree fairooz, doj, jeff sessions, laughter, protestor

Desperate To Stop Leaks, The Trump Administration Considers Moving From Bad Ideas To Worse Ones

from the do-you-consent-to-the-use-of-sodium-pentothal? dept

The Trump Administration is so frustrated by constant leaks, it's willing to try anything to stop them. Apparently, this may one day involve questionable tech with an extremely-spotty track record. Attorney General Jeff Sessions has an idea -- a bad one -- to address the ongoing White House leakstravaganza.

Sessions' idea is to do a one-time, one-issue, polygraph test of everyone on the NSC staff. Interrogators would sit down with every single NSC staffer (there's more than 100 of them), and ask them, individually, what they know about the leaks of transcripts of the president's phone calls with foreign leaders. Sessions suspects those leaks came from within the NSC, and thinks that a polygraph test — at the very least — would scare them out of leaking again.

Sessions' spitball may never come to fruition but it does indicate the White House is still no closer to uncovering the source(s) of these leaks. This also indicates the AG is willing to alienate NSC staffers with mandatory tests predicated on nothing more than Sessions' belief the leaks came from within the NSC.

On top of that, there's the dubious deterrent effect of deploying machinery whose results should be taken with a shaker of salt. The machines can be beat. Research and "How To" literature bear this out, although the federal government does what it can to prevent the spread of the latter. False positives are a problem as well. Ringing up staffers for leaking just because a machine said yes isn't going to stop the leaks or put investigators any closer to catching the real culprit(s).

But this is the way things go when the federal government is in charge. It relies heavily on polygraph tests when vetting applicants for agencies like the Customs and Border Protection. And it continues to deploy these tests even when applicants have admitted to activities or relationships that would disqualify them from federal employment.

Chances are Sessions' polygraph idea will likely remain just an idea. It could be the multiple discussions Sessions is engaging in are all part of his leak deterrence plan -- to have the threat of mandatory lie detector tests hovering in midair for the rest of tenure. Even so, it's a desperation move that shows the White House can't contain the leaks, much less hope to stop them. Suggestions like the one made by Sessions are just going to turn more staffers against the administration, which means more leaks, rather than less, over the course of this administration's lifetime.

Filed Under: jeff sessions, leaks, lie detector, national security, polygraph

House Passes Amendment Rolling Back Jeff Sessions' Civil Asset Forfeiture Expansion

from the LOAD-LAST-SAVE? dept

Trump's pick for attorney general unsurprisingly holds the same ideals as his boss. He also holds the same misconceptions and misplaced nostalgia for tough-on-crime policing that went out of vogue as soon as it became apparent it wasn't doing anything but filling up prisons.

Attorney General Jeff Sessions has been going hot and heavy on a 1980s-esque law enforcement policy revival. He booted the DOJ off the civil rights beat, telling states and cities to solve their own police misconduct problems -- something they were clearly unwilling to do on their own, hence the DOJ's intercession. He told cops they're getting back their access to war gear, rolling back the Obama administration's minimal 1033 program reforms.

He's been touting tougher policing and tougher sentencing, using a false narrative of a country under siege by drug dealers and criminal border-jumpers. In a time of historic lows -- both in violent criminal activity and violence towards police officers -- AG Sessions is acting like a street corner preacher, promising an impending apocalypse to anyone who will listen.

Sessions is also peeling away federal reforms to asset forfeiture. He's opened the federal safety valve for civil forfeitures, allowing local PDs to dodge state laws limiting the amount of property they can take from uncharged citizens.

Given the makeup of Congress, one would assume Sessions' ongoing effort to raise US law enforcement to "a law unto itself" level would ride on rails, at least up until midterm elections. Instead, Sessions is facing a literal House divided -- not against itself exactly -- but against him.

In a stunning move, the House of Representatives on Tuesday approved an amendment to the Make America Secure and Prosperous Appropriations Act that will roll back Attorney General Jeff Sessions’s expansion of asset forfeiture.

Amendment number 126 was sponsored by a bipartisan group of nine members, led by Michigan Republican Rep. Justin Amash. He was joined by Democratic Reps. Ro Khanna of California; Washington state’s Pramila Jayapal, a rising progressive star; and Hawaii’s Tulsi Gabbard.

If this passes the Senate untouched, the amendment will roll things back to 2015 -- once again prohibiting federal adoption of local forfeitures. It would make state and local agencies play by the rules set for them by their legislatures, rather than allow them to bypass protections put in place to discourage abuse of programs loaded with the most perverted of incentives.

Filed Under: asset forfeiture, civil asset forfeiture, congress, house, jeff sessions

AG Sessions, DOJ Ask Congressional Leaders For A Clean, Forever Re-Authorization Of Section 702

from the also:-mandate-that-people-like-us dept

The DOJ and Attorney General Jeff Sessions have offered up their official plea for a clean reauthorization of Section 702 surveillance powers. These are due to expire at the end of the year, but so far there's been no concerted effort to subject it to greater restrictions -- at least nothing as cohesive as the opposition to Section 215 renewal that began shortly after the Snowden leaks started.

Unlike Section 215 phone records collections, the Section 702 collections at least appear to be somewhat useful in harvesting communications relevant to national security efforts. But these collections should be subjected to even greater scrutiny because of what they contain: communications. While the NSA may have ended its supremely vague "about" email collection program (which harvested emails talking about targets/keywords, along with those to and from actual targets), it appears to only have done so because it couldn't make it stop harvesting US persons' communications.

But none of that is mentioned in the Attorney General's letter to Congressional leaders. Instead, the request asks not only for a "clean" reauthorization, but a "forever" one as well.

We are writing to urge that the Congress promptly reauthorize, in clean and permanent form, Title VII of the Foreign Intelligence Surveillance Act (FISA), enacted by the FISA Amendments Act of 2008 (FAA), which is set to sunset at the end of this year.

Title VII of FISA allows the Intelligence Community, under a robust regime of oversight by all three branches of Government, to collect vital information about international terrorists, cyber actors, individuals and entities engaged in the proliferation of weapons of mass destruction and other important foreign intelligence targets located outside the United States. Reauthorizing this critical authority is the top legislative priority of the Department of Justice and the Intelligence Community. As publicly reported by the Privacy and Civil Liberties Oversight Board, information collected under one particular section of FAA, Section 702, produces significant foreign intelligence that is vital to protect the nation against international terrorism and other threats.

Whether or not the collections produce useful intel is beside the point. Congress very definitely should not remove the periodic renewal period for surveillance powers. Doing so would subject the powers to even less oversight. A periodic review period allows Congress to take recent events into account when determining how much surveillance power the government should have going forward. It also permits examination by fresh sets of eyes, some of which won't have been fully assimilated into the "national security above all else" way of thinking.

The reasons Congress shouldn't grant a clean, in-perpetuity re-auth are the very reasons Sessions wants Congress to never examine Section 702 collections again. The DOJ refers to a "comprehensive regime of oversight" in its letter, but that phrase greatly overstates the quality of surveillance oversight that's been provided over the past 15 years.

Given the administration's view -- along with the views of most of the party in power -- Sessions may get what he wants. If nothing else, he's relatively assured of walking away with a clean reauthorization -- barring the leak of any damning NATSEC documents between now and the end of the year. It may turn out the only reform effort put in place will be the NSA's voluntary ditching of the "about" collection.

Filed Under: jeff sessions, nsa, section 702, surveillance

Multiple Legislators Looking To Neutralize AG Sessions' Rollback Of Federal Forfeiture Reforms

from the spike-strips-in-Sessions'-driveway dept

Jolly new Attorney General Jeff Sessions can't wait to put the screws to all those Americans who didn't have the sense to seek employment as law enforcement officers. Sessions wants harsher drug sentencing, less oversight, and the revival of programs abandoned in the 80s and 90s after they proved to have zero effect on rising crime rates.

Sessions, with the support of the Trump Administration, is rolling back the last administration's minor reforms to the 1033 program, which allowed local law enforcement agencies to obtain MRAPs, assault rifles, grenade launchers… whatever it took to defend the annual Mule Day Parade from terrorist attacks. Fun fact: these same items are apparently crucial components of flood rescue efforts in Houston, TX. [Cue shooting star and the words "The More You Know," soon to be riddled with bullet holes for startling MRAP-riding 1033 recipients with their sudden appearance…]

Asset forfeiture is coming back, too. Sessions has opened the federal loophole closed by his predecessor, allowing local agencies to give the finger to legislators and the people they serve as they bypass local reform efforts and cash in on other people's property. Sessions appeared to be this close to visible arousal when discussing the return of the Federal Forfeiture Loophole during a law enforcement conference in Alabama.

"I love that program," Sessions said. "We had so much fun doing that, taking drug dealers' money and passing it out to people trying to put drug dealers in jail. What's wrong with that?"

It's a rhetorical question, but only because Sessions is completely uninterested in the answer. What's wrong with civil asset forfeiture could fill several publications (and has!) but there's no talking to a man who's paid to revel in his deliberate ignorance. Putting people in jail is a concept wholly divorced from civil asset forfeiture, which is why it's been abused so often and so thoroughly. Once law enforcement was freed from the burden of actual proof, anything found anywhere near anyone possessing any amount of drugs was fair game for opportunistic officers. (Note: drug possession is completely optional! A dog can tell cops to take stuff, even if there are no drugs present. And you can't cross-examine a dog to see if it actually smelled drugs or just wanted to make its uniformed human happy.)

Sideloading forfeitures through the federal adoption program allows cops to bypass forfeiture efforts in several states. That would include those which have established a conviction requirement, basically eliminating civil asset forfeiture altogether. Unfortunately for Sessions, there are still a few troublemakers on Capitol Hill hoping to undercut the improper advances made by the new AG towards Americans' personal property. Civil rights watchdog FreedomWorks has compiled a list of amendments to the DOJ appropriations bill that would suck the fun right out of taking money from people just because.

Amendment 46 to Division C: Submitted by Rep. Tim Walberg (R-Mich.), this amendment would prohibit the use of funds from being used to carry out Attorney General Sessions' directive. The problem with this amendment is there were some minor positive aspects to the otherwise terrible directive, such setting a minimum value of $10,000 before seized property or cash can be adopted, requiring more proof of criminal activity, and doubling the time required for the property owner to receive notice of their rights. Because the amendment would prohibit funding for the directive, it would prevent the positive reforms from being implemented.

[...]

Amendment 70 to Division C: Submitted by Rep. Justin Amash (R-Mich.), this amendment would prohibit funds from being used to facilitate adoptive seizures of property or cash. The amendment references the directive from the previous administration, but it's tailored to address the specific activity, adoptive seizures, for prohibition. Presumably, it would leave the minor positive reforms in Attorney General Sessions' directive in place.

Amendment 87 to Division C: Submitted by Rep. Darrell Issa (R-Calif.), the amendment would reduce the appropriation for the Justice Department's Assets Forfeiture Fund by $10 million and increases funding by the same amount to the Debbie Smith DNA Backlog Grant Program, which deals with forensic kits in cases of sexual assault. The merits of the DNA program notwithstanding, the amendment doesn't directly address Attorney General Sessions' directive.

Amendment 127 to Division C: Submitted by Rep. Warren Davidson (R-Ohio), the amendment would prohibit the use of funds appropriated from being used for adoptive seizures. It's similar to Rep. Amash's amendment, but it isn't directly tied to a specific directive or order.

Unfortunately, the attachment of amendments to a "must-pass" bill doesn't guarantee any of the riders will make it past preliminary discussions. If they were allowed to make it out for a vote, FreedomWorks posits they have a good chance of passing. Given the support they might gather if allowed into the wild, these amendments likely have a slim chance of becoming anything more than excess weight to be shed in favor of more powerful lawmakers' pet boondoggles and President-pleasing riders.

But there's still a small chance Sessions' love affair with legalized theft will be broken up by interloping Congressmen. And that would be a joy to behold: AG Sessions having to turn away law enforcement agencies desperate to have the shaky seizures legitimized by federal adoption procedures… and Sessions having the power -- but not the funds -- to do it.

Filed Under: asset forfeiture, civil asset forfeiture, doj, jeff sessions