Hacked Data Obtained By The Intercept Highlights Wholesale Spying On Inmate, Attorney Privileged Communications

from the institutional-apathy dept

A few months ago the FCC voted to crack down on the ripping off of inmates and their families by prison telecom companies, which for decades now have charged upwards of $14 per minute for services that cost little to nothing to provide. At the time, prison telecom companies like Securus complained hysterically about the FCC's decision, CEO Richard Smith declaring the new price caps would have a "devastating effect" on its business, potentially ending its participation in "services and continuing inmate related programs."

According to a massive new trove of data obtained by the Intercept, one of the "services" Securus was apparently providing was of the wholesale spying variety. Hacker-obtained data examined by The Intercept includes 70 million records of phone calls (and recordings of the phone calls themselves), placed by prisoners in at least 37 different states over a two-and-a-half year period. Of particular note are the estimated 14,000 recordings of privileged conversations between inmates and their lawyers:

"This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that’s certainly something to be concerned about,” said David Fathi, director of the ACLU’s National Prison Project. “A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not."

Securus alone provides telecom services and "secure" storage of communications for 2,200 prisons around the United States, processing a million or so calls each day. Securus and other such companies serve a relatively captive and unregulated market, where prisons are paid upwards of $460 million annually in "concession fees" (read: kickbacks) to win exclusive telecom-related prison contracts. Part of Securus' pitch to prisons is that it will offer cutting edge secure storage for these communications, though the Intercept notes this latest hack wasn't the first.

Prisoners obviously don't expect the full historical right to privacy; indeed Securus makes sure to include a message warning inmates that "this call is from a correctional facility and may be monitored and recorded" at the beginning of each call. Waivers of rights and the monitoring and securing of phone communications was originally pushed as a way to prevent riots, witness tampering and generally secure the prison back in the 90s. But as the Intercept points out, that doesn't make the long-term storage of this data any less problematic, and securing the facility certainly shouldn't include recording secure communications between inmates and their lawyers. A behavior, it should be noted, Securus itself claimed it didn't do:

"A review of contracts and proposals completed by Securus in a handful of states reflects the company’s understanding of this right. In a 2011 bid to provide phone service to inmates in Missouri’s state prisons, Securus promised that each “call will be recorded and monitored, with the exception of privileged calls.” But the database provided to The Intercept shows that over 12,000 recordings of inmate-attorney communications, placed to attorneys in Missouri, were collected, stored, and ultimately hacked."

The Intercept's findings are particularly problematic for Securus, since the company is the target of a federal civil rights suit filed in Texas in 2014. That suit, by the Austin Lawyers Guild and a prisoners' advocacy group, alleges that Securus had been recording privileged conversations, and that intrusion into this communications (and the prosecutors' failure to disclose this information during discovery) undermines the legal ability to defend them. This despite Securus contracts explicitly stating that phone calls "to telephone numbers known to belong [to] attorneys are NOT recorded," and that "if any call to an attorney is inadvertently recorded, the recording is destroyed as soon as it is discovered." Or not.

The Intercept's latest findings not only stumble into yet another expansion of our wholesale surveillance state, but exemplify the kind of apathy about the prison industrial complex that allowed Securus to aggressively rip off inmates and families in the first place. "They're in prison so they deserve it" is a common refrain from the apathetic to the rights trampling of the guilty, the innocent, and the millions of Americans serving massive prison sentences for relatively innocuous marijuana offenses. On a positive note the Intercept's latest leak was courtesy of The Intercept's Tor-enabled SecureDrop platform, another sign we're (hopefully) moving past the Assange middleman era into one where the traditional media -- with a little help -- actually does its job.

Filed Under: attorney-client privilege, jails, phone calls, prisons, privacy, recordings
Companies: securus

Body Cameras Are Everywhere, But Recordings Remain Locked Up Tight

from the thin-blue-line-more-resembles-a-moat dept

All over the nation, police departments are deploying body cameras. But there's no guarantee the public will have any access to the footage. As Kimberly Kindy and Julie Tate of the Washington Post report, the ultimate goals of greater accountability and transparency are routinely being thwarted by law enforcement agencies.

While individual police departments are adopting rules on the local level, police chiefs and unions are lobbying state officials to enshrine favorable policies into law. In 36 states and the District this year, lawmakers introduced legislation to create statewide rules governing the use of body cameras, often with the goal of increasing transparency.

Of 138 bills, 20 were enacted, The Post found. Eight of those expanded the use of body cameras. However, 10 set up legal roadblocks to public access in states such as Florida, South Carolina and Texas. And most died after police chiefs and unions mounted fierce campaigns against them.

Footage is routinely being withheld by these agencies, even when state laws indicate the recordings should be treated as public records. Guidelines governing the recording of incidents are frequently being ignored. When an officer ends a life, recordings of these events are almost nonexistent.

Nationwide, police have shot and killed 760 people since January, according to a Washington Post database tracking every fatal shooting. Of those, The Post has found 49 incidents captured by body camera, or about 6 percent.

In the few cases where footage has been released to the public, it has often been heavily-edited before being handed over. Other footage is simply withheld in full. There's still one group that has unlimited access to body cam footage, even while friends and family of their shooting victims don't.

[V]irtually all of the 36 departments involved in those shootings have permitted their officers to view the videos before giving statements to investigators.

If a cop kills someone, the only person guaranteed to see the unedited footage (if any exists) is that cop. Everyone else is locked out by police-friendly legislation and/or easily-abusable public records exemptions.

And again, these efforts mounted by law enforcement agencies to shield their personnel from accountability are routinely portrayed as beneficial to the general public.

“If you have a kid who drank too much on his 21st birthday and the police are called, do you really want video of that kid, sick and throwing up, to be on YouTube for the rest of his life?” said Richard Beary, president of the International Association of Chiefs of Police and chief of the University of Central Florida’s police force.

I guarantee you that if an agency thought dumping this video into the public domain would somehow be beneficial, this footage would be released and posted to YouTube for the rest of this person's life. There would be no discussion of "privacy," and the agency would be sure to remind everyone that public incidents in public places carry no expectation of privacy.

Law enforcement officers have very little respect for the people on the other side of the blue line. This is why the Fourth Amendment is treated as subservient to law enforcement's needs and wants. This is why they make sure a victim's full rap sheet makes its way to journalists within minutes of a police-involved shooting. This is why they treat minors as adults just so they can apply harsher punishments for "sexting." This is why they'll publish lists of every person's name found in the Contacts list of a suspected prostitute's phone. This is why they invite news crews to SWAT raids.

But now that the use of body cameras increases the risk that one of their own could be embarrassed for the rest of their life by these recordings, these officials have suddenly developed a concern for the privacy of citizens. The only thing transparent here is how self-serving these disingenuous statements are.

Filed Under: body cameras, privacy, recordings, transparency

California Cops Seize Recordings Of Questionable Arrest, Claim They Have The 'Right' To Do So

from the some-evidence-we-keep,-others-we-delete dept

Photography Is Not A Crime again reports on police acting like they have the right to confiscate people's cameras and phones in order to "secure" recordings of apparent police misconduct.

Police in Northern California beat and tased a mentally ill man before siccing a dog on him, then turning on citizens who recorded the incident, confiscating cell phones and in one case, ordering a witness to delete his footage.

But one video survived anyway, slightly longer than two minutes, where a cop from the Antioch Police Department can be heard saying he wants cameras confiscated right before the video stops.

The video is shot at a distance that makes it unclear as to how much damage is being done, although you can hear the meaty sound of someone being struck several times, as well as the nearly nonstop barking of the police dog and crackling bursts of Taser fire. Being filmed vertically doesn't help, although I'm generally of the opinion that simply collecting footage that wouldn't normally be captured is always useful and whatever makes the person filming most comfortable (seeing as it's generally a very uncomfortable situation) is the method they should use. The recording also shows the arrival of more officers, as though the nearly invisible civilian at the bottom of the cop pile (which begins with 5 officers and a police dog) was on the verge of escaping the whole time.

Towards the end of a video, an officer pulls his squad car directly in front of the "scene" in an obvious attempt to limit the amount of onlookers with damning recordings. Shortly after that (and after the video ends), the cops started attempting to seize "evidence."

A second witness ABC7 News spoke to says officers began confiscating cellphones from anyone who shot video of the incident. An officer asked for his cellphone after he shot video and the witness said, “Then he took my phone anyway because I didn’t want no problems. He emailed the incident to his phone.

The first witness said, “They didn’t take no for an answer apparently because they pulled one lady out of her vehicle to get it, and she wouldn’t give it up and they were about to arrest her and finally they let her go because I believe she gave it up.”

However, a third witness told ABC7 News he was ordered to erase his video. So he did. He said, “They were being kind of controlling, like demanding, ‘erase your phone’ and they were trying to take people’s phones away.”

No surprises here. Excessive force deployed, followed by a roundup of "witnesses," which actually means recording equipment and not human beings. The police have no right to do this, but in far too many cases, they assume the public either doesn't know this, or can easily be intimidated into complying with the unlawful request.

Here's the absolute bullshit the police department handed over in defense of its ad hoc phone confiscation:

Antioch police told ABC7 News in a statement, “If a person is not willing to turn it over voluntarily, an officer can sometimes seize the device containing the video. The police would have to get a search warrant to retrieve the video from the device.”

As Carlos Miller points out, this is completely wrong and has been wrong for a few years now. Guidelines from the Department of Justice passed down in 2012 state the exact opposite. Police can ask for compliance, but they need to be extremely careful in how they ask.

A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings and the types of circumstances that do—and do not—provide exigent circumstances to seize recording devices, the permissible length of such a seizure, and the prohibition against warrantless searches once a device has been seized. Policies should include language to ensure that consent is not coerced, implicitly or explicitly…

[...]

Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”

Cops tend to claim that footage of police misconduct is "evidence" in order to justify warrantless cellphone seizures. It may very well be, but it's the sort of evidence they want to hide, rather than the sort of evidence they'd like to retain. Note that the above officers ordered people to "delete" recordings, something they wouldn't do if the recordings held actual evidence of a crime (or at least, a crime not committed by uniformed officers). Either way, crime or no crime, the police can't just start seizing phones as "evidence." The DOJ guidelines go on to say:

The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct.The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice.

So, cops know -- or should know -- they can't do this. And I firmly believe most of them know this. The problem is that they just don't care. The quickest "fix" is swift seizures of recordings using baseless arrest threats and other forms of intimidation. It's an instinctual closing of ranks. Once the requisite dozen or so officers needed to affect an arrest had been met, one of the officers originally in the one-sided melee stands back and says he wants "that cellphone and that cellphone." Well, he can't have them. Not legally. And yet, officers apparently got what they wanted -- rather than what they could legally obtain -- in the end.

Filed Under: antioch, antioch police department, arrest, california, police, recordings, seized

NYPD Officer Chokes Man To Death; Cops Blame Cellphone Recordings And People 'Feeling They Have More Rights'

from the OBEY dept

In the wake of Eric Garner's death via cop chokehold, the NYPD is coming under all sorts of additional scrutiny. This is in addition to the appointed oversight ordered by Judge Scheindlin after finding that elements of its infamous stop-and-frisk program were unconstitutional. Scott Greenfield has a very stark recounting of the incident, as well as a recording of Eric Garner's last moments. (Here's additional footage, which includes the officer who applied the lethal chokehold waving at the camera, as well as several officers gamely pretending Garner is simply passed out.)

The unexpected happened when the official medical examiner's report failed to find that the 400-lb Garner (who is heard repeatedly telling officers he can't breathe) had simply dropped dead of a heart attack or pre-existing health conditions -- something that supposedly would have happened with or without a cop applying direct pressure to his windpipe. Instead, the report contained a word rarely found in examinations following in-custody deaths: homicide.

The largest union within the NYPD -- the Patrolmen's Benevolent Association -- couldn't have been expecting that. But PBA president Pat Lynch still managed to find something spinnable about the entire situation, greatly aided by the convenient arrest of the cameraman on weapons charges.

The New York City Patrolmen’s Benevolent Association, the largest union representing NYPD officers, said in a statement that it was “criminals like Mr. Orta who carry illegal firearms who stand to benefit the most by demonizing the good work of police officers.”

It wobbles horribly, but it still spins. Here's Scott Greenfield:

Come on, you have to be impressed by the statement. The problem is no longer [Officer] Pantaleo killing Garner, but “criminals like Mr. Orta who carry illegal firearms who stand to benefit the most by demonizing the good work of police officers.” This is poetry. This is genius. It was all about criminals demonizing cops, not cops killing people.

As nearly impossible as it is to "demonize" someone with an unaltered recording of their actions, Lynch found a way to at least attempt to flip the narrative. Orta is a criminal. Pantaleo is a police officer. Lynch's statement asks the public to choose a side. Do you want to side with criminals, or do you want to let bygones be bygones (including the occasional homicide) and side with New York's finest?

It may well be the reddest of herrings, the most irrelevant of questions, but it will be the focus of the attack on the video necessary to show how Police Officer Pantaleo killed Garner. And no doubt Lynch took a deep breath upon learning of Orta’s arrest, and how his tenure as PBA president was again secure by the opportunity to show that “police officers routinely risk their lives for the benefit of the community,” and so the least we can do in return is forgive them the occasional killing.

But it's not just criminals the police (and their supporters) are looking to, well, demonize in hopes of steering the narrative. It's everyone. Everyone who doesn't wear NYPD blue. (via The Honest Courtesan)

Under the misleading* headline "Why assaults on the NYPD are on the rise," the New York Post gathers the following quotes from NYPD officers, ranging from obnoxiously self-centered to truly heinous.

* How many people have been booked for assault for simply touching an officer or worse, being on the receiving end of a beating?

Assaults on police officers are up 4 percent this year compared with last year — a disturbing new trend that’s part of an emerging disrespect for authority on the street, cops and experts told The Post.

Disrespect, like respect, is earned. You can earn respect, or you can squander it. Disrespect doesn't arise on its own. If "authority" doesn't like this, it has ways of changing this. Unfortunately, it means making difficult changes and dealing with ingrained attitudes and prejudices.

“The biggest thing is that you’re going to see more cops get hurt, and that’s the sad part,” said one Manhattan cop, blaming it on the decreased use of “stop, question and frisk...”

This may be partially right but for the wrong reasons. When the NYPD could stop nearly anyone for no reason at all, it had basically ordained harassment and intimidation. With this gone, fewer people are going to keep their heads down and eyes averted and simply allow the police to shove them up against the nearest wall or bend them over the nearest squad car hood.

So, who's to blame for this rise in assaults? It's the citizens themselves, apparently. It's their fault that it's hard (or slightly harder) to be a New York cop these days.

“The streets are absolutely more dangerous for other people, too,” said the officer, adding the rise of cellphone videography is also problematic, since suspects “want to put on a show for the camera.”

(And cops don't want to be watched...) So, First Amendment-protected activity is part of the problem. What else?

“People feel they have more rights and they can’t be stopped. There is no respect,” said a Brooklyn cop, who recalled a recent arrest of an armed man who used the crackdown on stop-and-frisk as a reason to resist arrest. “People feel like they know the law better than we do.”

Too many rights for citizens. Also a problem. (And there's the demand for unearned respect again...) Maybe people don't know the law better than NYPD officers, but they can't go above the law, as officers do when they deal out excessive force, tell people to stop recording, hassle people for walking while black, or book people on bullshit charges simply because they don't like their attitude. All in all, the imbalance of power has hardly shifted. But to hear these cops tell it, you'd think the city was a half-step away from mob rule, with officers holed up in well-fortified precinct houses. All the NYPD is receiving is pushback it hasn't felt in years. And it's killing them. (Not literally, of course...)

Ideally, what can citizens do to ensure the (im)balance of power returns to normal?

Well, one Manhattan cop, using the citizen killed by an NYPD officer (homicide, remember?) as an example, says this is how citizens should behave when approached by police.

“Obviously, he resisted, and he could have avoided all of that by just going through the process,” another Manhattan cop said. “Everybody likes to point fingers, but no one wants the fingers pointed at them. If people think they are being treated unfairly, they should sue the city after they go through the process instead of resisting.”

"All of that" being shorthand for "choked to death by a police officer." New Yorkers should just submit to any form of police harassment and go through "the process," something that could easily give them a criminal record when they haven't truly performed a criminal act and then spend their time, money and energy fighting in the city's courts to have their grievances addressed and their good names restored.

This police officer is actually saying that people should just deal with cop bullshit and sue later. The only "right" you possess is the option to file a civil lawsuit. Cops, on the other hand, should be given free rein to act as they please, and when the lawsuit finally arrives, possibly be held accountable for their actions if the court somehow manages to find the officer(s) in question don't qualify for full or limited immunity.

A much better idea would be for the NYPD to make massive efforts to restore the trust and respect it has destroyed under Ray Kelly's "leadership." If you want respect, GO AND EARN IT. Demanding full compliance is something autocrats do, not public servants. You've forgotten who you actually work for. You don't work for the NYPD. YOU WORK FOR THE PUBLIC.

If the NYPD can't get that straightened out, then it needs to learn how to take a punch. It's certainly delivered enough of them. Every police department asks for patience while they investigate their own wrongdoing, but every cop starts swinging and/or shooting when someone takes a shot at one of their own. An officer kills a citizen and suddenly cops start fretting about the "antagonistic" behavior of the public. Have one cop simply think he hears gunfire possibly aimed in his direction and the wrath of an entire department will focus in that person's direction -- and it won't stop until every officer's gun is empty.

If the NYPD is feeling a bit more apprehensive about its interactions with the public after the death of Eric Garner, so be it. It's all earned. Maybe now they'll have the slightest empathy for the countless citizens who lived with this feeling day in and day out during the decade-plus run of stop-and-frisk.

Filed Under: choking, eric garner, nypd, phone, recordings, weapons

NSA Is Recording Every Phone Call... In The Bahamas?!?

from the dammit,-we-said-terrorists,-not-tourists! dept

So, back in March, the Washington Post published a report about the NSA's MYSTIC program, where it was recording all phone calls from an unnamed country. The Washington Post chose not to reveal that country, leading many folks to assume that it was going to be a country like Afghanistan, Pakistan or Iraq. Would you believe... that it was actually the Bahamas? Ryan Devereaux, Glenn Greenwald and Laura Poitras have the long and detailed story over at The Intercept, revealing the SOMALGET program, a part of MYSTIC, which recorded every phone call from the Bahamas, not for terrorism, but to be able to hand over information about illegal drugs to the DEA.

According to documents provided by NSA whistleblower Edward Snowden, the surveillance is part of a top-secret system – code-named SOMALGET – that was implemented without the knowledge or consent of the Bahamian government. Instead, the agency appears to have used access legally obtained in cooperation with the U.S. Drug Enforcement Administration to open a backdoor to the country's cellular telephone network, enabling it to covertly record and store the "full-take audio" of every mobile call made to, from and within the Bahamas – and to replay those calls for up to a month.

Other countries being targeted under MYSTIC, as revealed by the Intercept: Mexico, the Philippines and Kenya. There is also one other, unnamed, country that the US is recording all calls for, but even The Intercept won't reveal that one (noting: "specific, credible concerns that doing so could lead to increased violence"). Either way, this has resulted in plenty of people pointing out that "tourists" and "terrorists" are not the same thing -- while noting that tourism is 60% of GDP in the Bahamas, with 85% of those tourists come from the US. Others have pointed out that, perhaps, the use of the Bahamas was just a convenient testbed where most people wouldn't notice, and where the information could easily be useful for the NSA's partners at the DEA. Though, on that front, Julian Sanchez points out that one of the reasons the NSA got in trouble back in the 1970s with the Church Committee, was because the government used the NSA to evade limits on domestic wiretaps for illegal drugs.

As the report notes, the purpose of SOMALGET seems to have nothing to do with stopping terrorism, but is entirely about helping the DEA in its drug war efforts. And, of course, that also explains how the US was able to set this up. Basically, the DEA has a good relationship with the government in the Bahamas, and when it needed to set up phone taps, it appears that the Bahamas more or less let them bring in their own contractors to set up the phone taps. And, rather than just set it up to tap some individuals, the NSA swooped in and helped those "contractors" tap the entire phone network because... "collect it all." Note how the "cover name" for the MYSTIC access provider is blacked out here: The report further highlights that the DEA is one of the world's largest intelligence agencies, and often has greater access in a variety of countries, because those countries don't view it as "an intelligence agency" but rather as a drug fighting force. That has helped the NSA piggyback on the DEA for access in multiple countries.

Also, of interest, is the fact that, while the Bahamas is considered a popular place for money laundering and financial institutions to hide taxes, the NSA doesn't seem even remotely interested in that kind of law breaking. Because why bother taking on real crimes when you can focus on busting pot dealers: Somehow, this kind of stuff doesn't make me feel any safer, as the NSA and its defenders insist. It makes me feel the opposite.

Filed Under: all calls, bahamas, dea, drug war, kenya, mexico, mystic, nsa, parallel construction, philippines, recordings, surveillance

Five Illinois Cops Are Caught Lying On The Stand When Defense Produces A Recording Contradicting Their Testimony

from the liars-apparently-still-trustworthy-enough-to-run-a-desk dept

Cops lie. Citizens know this. Defense attorneys know this. Prosecutors know this. Most importantly, judges know this. But rarely does it have any effect on the outcome of the case at hand. But in what has been described as a "Perry Mason moment," five Illinois police officers were caught lying on the stand. (h/t to Trevor Debus)

A seemingly routine suppression hearing in a suburban Chicago courthouse last month took an unexpected dramatic turn when video from a police car was introduced that disproved the testimony of five police officers.

They had said Joseph Sperling was arrested after officers who pulled him over in a traffic stop smelled marijuana, searched the vehicle and found nearly a pound in a backpack lying on the back seat of his car. But the Glenview police video showed the search occurred only after Sperling was taken from his car, frisked and handcuffed, reports the Chicago Tribune (sub. req.).

I suppose once the film rolled, there was little the judge could do but address it. It's one thing for a cop to lie in the courtroom and have it discovered months, weeks or even years later. It's quite another when the testimony is rebutted by video evidence during the same hearing.

"All the officers lied on the stand today," said [Judge Catherine] Haberkorn, who herself is a former prosecutor, at the March 31 hearing. "So there is strong evidence it was conspiracy to lie in this case, for everyone to come up with the same lie."

The officers, currently on desk duty, apparently did conspire to lie about the specifics of the search, at least according to the lawsuit filed by the arrestee shortly after this suppression hearing went sideways.

Joseph Sperling says in his suit that Chicago police asked Glenview officers at the scene of his arrest last June to turn off their squad car dashcams. At least one Glenview officer didn't, resulting in video footage that persuaded a Cook County Circuit Court judge to grant a motion to suppress seized evidence, because police testimony contradicted what the camera showed.

This case has obviously provoked quite a bit of discussion as to how often cops lie and what the final arbiters -- the judges -- do when they take this knowledge into consideration. The answers, unfortunately, are depressing. Even if these temporary desk jockeys manage to retain their jobs, one would think their days as credible witnesses are over. Nothing could be farther from the truth.

Scott Greenfield talks about one judge he heard discuss why he kept on pushing defendants into the maw of the prison system, even while knowing those on the law enforcement side weren't necessarily any better when it came to truth-telling.

After a cocktail or two, Harold talked about how his experience as a judge changed him. Case after case, defendant after defendant, victim after victim, made it all a blur. Sure, cops lied. Everybody knew cops lied. Everybody knew cops lied in every case. That was the game. It was their job to put the bad guy away, and the way to win the game was to speak the magic words that the system accepted as necessary…

What was he supposed to do, Harold asked? They may not all be guilty, but they all were guilty. No one could pluck out the one in a hundred who didn’t deserve to be there, and he wasn’t going to cut everyone free because he couldn’t tell who was who. […] He had a job to do, to keep the cattle moving toward the slaughter. Harold could be a rather charming guy, personally. As a judge, he was utterly despicable.

Judge Richard Kopf, prompted by Greenfield's post, offered his own thoughts as to why he finds cops credible witnesses, despite loads of evidence otherwise. It's a bracing read and admirably soul-baring, but it's not going to make anyone feel any better about their odds against a lying law enforcement officer. While he makes several points that indicate he's still more careful in his selection process than the Judge Harold mentioned above, he does make the following indictment of his own beliefs and behavior.

I am a shitty judge of credibility. Truly, I am. See here for what happened when I believed a defendant and it blew up in my face with an editorial cartoon and the whole nine yards. Thus, when forced to judge between a cop and a defendant it is safer to believe the cop than the defendant particularly if a judge cares about his or her reputation. While pleading the subconscious in mitigation, there was a period of time when I really thought I might make it to the Circuit if I were a good little boy. See what happened to Judge Baer when he “screwed” up.

Will Baude at the Volokh Conspiracy, who originally questioned whether these five cops would be unable to offer believable testimony in the future, gathered some notable comments from Judge Kopf's post that lend credence to the belief that everyone in the courtroom knows cops lie, but there's very little anyone's actually willing to do about it, partly because the system destroys judges who refuse to play along.

Lorin Duckman, a former New York judge, noted how the system lends itself to accommodating lying cops, if only to keep the system moving at the pace that pleases most of those involved.

It’s not just about the trials. Jurors don’t want to sit, don’t understand the instructions and cannot consider what the sentence should be. They cannot tell if a person is lying or not and tend to believe those who look like them or wear badges, despite instructions to the contrary. It’s not about did the accused did it or didn’t do it, most of the time. It’s about the penalties, the sentences, and the lack of a future when one tries to put a life together after doing time. It’s about judges who need to move calendars, jailers and bailiffs, court reporters and clerks who depend on a steady stream of defendants for their livelihood ...

But Duckman also points out that judges have their own livelihoods to consider, and speaking aloud about the fact that cops lie on the stand tends to short-circuit their futures.

[M]ost of all it’s the Judges who sit silently, listening to the bartering, accepting the stories for fear that they will be removed if they question, dismiss or offer justice. Break my hear[t], they did.

A comment I made, “cops lie all the time,” was introduced as evidence at my removal hearing and served as the basis for finding me biased. I couldn’t have been the only judge who believed that, could I?

The system is broken all the way up and all the way down. These five cops were very possibly only called out because it was unavoidable. Their punishment for being caught perjuring themselves has been desk duty, something that may seem tedious compared to pulling people over and illegally searching their vehicles, but can hardly be considered a true punishment. It's not as though the facts are disputed. The cops are being "investigated" after lying in court in front of a judge and several witnesses. There's literally nothing to "investigate."

This is just two police departments (Glenview and Chicago) buying time until they can weigh possible punishments and outcomes. As few judges are willing to confront the fact that cops lie with the same frequency as other human beings, just as few PDs are willing to terminate officers (partly due to pushback from officers' unions), no matter the wrongdoing.

But before all hope is destroyed, another judge (Alabama's Judge Joseph Johnson) commenting at Kopf's blog noted the status quo is changing, at least in his courtroom.

Yesterday I met with our new police chief (city of 250,000) I I told him I was getting tired of not having video or audio recordings of defendants statements. I said I felt juries disbelieved the rendition by the officer (especially a narcotics officer). I added, I was not sure I was going to believe another citizen consented to the search of his vehicle unless I had a written signed consent to search (which they have). The Chief looked like I had kicked his dog. I said “Hey, the jurors expect this in this age of technology.” We will see.

Looking at this and another set of isolated incidents -- the pushback by two judges against overly-broad search warrants -- gives a modicum of hope that law enforcement will be finally forced to play by the rules that have been existent since shortly after the founding of this nation. It's too little, far too late and it's marked by outliers rather than exceptions to the rule. But at least it's something. And the more the public is informed about the routine abuse of civil liberties by law enforcement, the less those tasked with handling the intersection of cops and civilians will be able to ignore the reality of the situation and blithely (and blindly) believe badges denote a more trustworthy class of human.

Filed Under: illinois, lies, police, recordings

Illinois Supreme Court Overturns Insane Recording Laws

from the i-hear-you dept

When it comes to insane bans on recording police and public officials, the granddaddy of them all has always been Illinois' eavesdropping law, which made it a federal crime to surreptitiously record any public official, even if they were amongst the public while performing their duties. The law was abused with such disregard for the Bill of Rights that court after court ruled the law unconstitutional. Those cases primarily dealt with the recording of law enforcement while performing their duties, something which ought to be a national right, given the ubiquity of cameras that are recording public citizens.

But now the Illinois Supreme Court has gone further, extending the overturning of the law such that it's no longer just law enforcement that is free to be recorded.

Today's decision(PDF) extends that analysis to other public officials as well as private citizens when they do not have a reasonable expectation of privacy. The justices note that the eavesdropping ban "criminalizes a wide range of innocent conduct," including "the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others. None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute's scope is simply too broad."

It's an immensely satisfying decision that turns the country's most draconian anti-recording law on its head. Illinois politics being what they are, there may be no place in the country that needs recordings of public officials more than this state I call home. Attempts to criminalize such recordings in a way that went so far beyond privacy concerns were clearly an attempt to keep the local population at bay while corruption and illegality raged on. More impressively, the court specifically weighed the public's free speech rights against any concerns by public officials and found for the common citizen.

Because the eavesdropping ban "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy," the court concludes, "it does not survive intermediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the first amendment."

And so you can now record interactions with the folks whose salary you pay via taxes in the Land of Lincoln. Frankly, for a state known for corrupt public "servants", this has been a long time coming.

Filed Under: eavesdropping, illinois, police, recordings

NSA Has Capability To Record And Store ALL Foreign Phone Calls In Certain Countries

from the collect-it-all! dept

The latest scoop from Barton Gellman, reporting for the Washington Post on documents Ed Snowden leaked, highlights an NSA program known as MYSTIC, with some snazzy clipart... and the ability to retrieve all recordings of phone calls in certain (non-US) countries going back at least 30 days. Apparently, this is a relatively new capability -- the program launched in 2009 and reached "full capacity" in 2011.

In the initial deployment, collection systems are recording “every single” conversation nationwide, storing billions of them in a 30-day rolling buffer that clears the oldest calls as new ones arrive, according to a classified summary.

The call buffer opens a door “into the past,” the summary says, enabling users to “retrieve audio of interest that was not tasked at the time of the original call.” Analysts listen to only a fraction of 1 percent of the calls, but the absolute numbers are high. Each month, they send millions of voice clippings, or “cuts,” for processing and long-term storage.

While the Washington Post agreed not to reveal what countries MYSTIC is operational in, it's difficult to see how the NSA could do this without assistance (knowing or unknowing) from the various telcos in the targeted countries. And, of course, once this effort is online, the NSA just wants to keep expanding it:

Some of the documents provided by Snowden suggest that high-volume eavesdropping may soon be extended to other countries, if it has not been already. The RETRO tool was built three years ago as a “unique one-off capability,” but last year’s secret intelligence budget named five more countries for which the MYSTIC program provides “comprehensive metadata access and content,” with a sixth expected to be in place by last October.

Basically, once the NSA has the ability to snoop on everyone's phone calls, it only wants to do more of that. And more and more. As Gellman's report notes, this seems to (once again) contradict claims by US officials, including President Obama, that "the United States is not spying on ordinary people who don’t threaten our national security... and that we take their privacy concerns into account." Of course, that all depends on how you define "spying." In the "collect it all" world of the NSA, merely collecting that data isn't considered "spying."

This program also helps to explain why the NSA has been so focused on getting that massive data center online in Bluffdale, Utah. There had been talk that the NSA had too much data to store and analyze effectively, but prior leaks didn't seem to involve enough data to really cause a problem. However, storing the audio of 30 days of every phone call in a half a dozen (or more!) countries could certainly add up quite quickly. And, indeed, that's what the documents suggest. Another document notes that this project "has long since reached the point where it was collecting and sending home far more than the bandwidth could handle." Hence: Utah.

And, of course, having full audio of all phone calls can lead to all sorts of detailed information, including information on Americans (who, remember, the NSA isn't supposed to spy on):

Highly classified briefings cite examples in which the tool offered high-stakes intelligence that would not have existed under traditional surveillance programs in which subjects were identified for targeting in advance. Unlike most of the government’s public claims about the value of controversial programs, the briefings supply names, dates, locations and fragments of intercepted calls in convincing detail.

Present and former U.S. officials, speaking on the condition of anonymity to provide context for a classified program, acknowledged that large numbers of conversations involving Americans would be gathered from the country where RETRO operates.

The NSA does not attempt to filter out their calls, defining them as communications “acquired incidentally as a result of collection directed against appropriate foreign intelligence targets.”

At this point, these kinds of leaks aren't that surprising, but this does confirm some people's suspicions about the NSA's capabilities -- and the continuing mission creep as it gets more and more powerful in what information it can collect and store.

Filed Under: mystic, nsa, phones, privacy, recordings, retro, surveillance

MN Judge Refuses To Throw Out Case Against Citizen Recording Police, EMS

from the one-step-forward,-two-steps-back dept

Back in January, I wrote about an exceptionally odd case in Minnesota in which a private citizen had his recording device liberated from his person by police after he recorded them patting down a bloodied man before putting him in an ambulance. What made it odd wasn’t what the police did initially, as that happens far too often these days, but in that Andrew Henderson was then charged with disorderly conduct and obstruction, with the paperwork describing what he’d done as a HIPAA violation. In case your common-sense-o-meter isn’t functioning today, that claim is bullshit, since HIPAA covers actions by healthcare providers in how they deal with patient information. In addition, the claim is at odds with another recording Henderson made of the officer that took his property, in which deputy Jacqueline Muellner claimed she was taking the device in as “evidence.” This “evidence” was subsequently deleted before Henderson’s recording device was given back to him, leading me to wonder when the case against Henderson would be tossed out to make room for one against deputy Muellner.

The answer, unfortunately, might be never. Ramsey County Judge Edward Wilson has denied Henderson’s attempt to get the case thrown out, saying that the first amendment doesn’t apply. He also refused to throw out the obstruction charge, despite the fact that the bench Henderson had been sitting on is roughly thirty feet from where the ambulance was parked.

Wilson, the judge, wrote in his order that "it is not necessary that one engage in a physical act to interfere or obstruct. It is sufficient if the defendant's actions or conduct had the effect of physically obstructing or interfering with a member of an ambulance crew."

Got it now? Obstruction doesn’t actually mean obstruction, it means either obstruction or doing something that makes professional police and EMS folk not able to do their jobs properly. This, apparently, includes recording them from thirty feet away, which puts into question exactly how many Minnesota police and EMS workers suffer from the kind of ADD my dog has when I take her on walks. I can imagine it now: EMS worker kneels in front of patient, EMS worker begins wiping away blood on patient’s face, EMS worker asks patient if he remembers his name, EMS worker cannot hear response because he’s run into heavy traffic chasing a squirrel.

And, while the disorderly conduct charge absolutely reeks of the police throwing feces at the wall to see what sticks, deputy Muellner ran away and retired to become former-deputy Muellner, with all of her benefits in place and without any formal inquiry into why she destroyed evidence so important that it was worth seizing private property.

However, while the news is all bad thus far, Henderson’s lawyers are promising to take this to trial, so we’ll just have to see if the judicial process has a bit more sense than judicial officers of the court.

Filed Under: andrew henderson, destruction of evidence, minnesota, recording police, recordings

Did FBI Counterterrorism Agent Reveal That Feds Now Record All Phone Calls?

from the er...-what? dept

It's long been assumed (or hinted at very strongly by a variety of evidence) that the feds have been making and collecting copies of pretty much every digital communication available. A whistleblower from AT&T more or less revealed the details on that. The NSA's ability to collect all this data is well documented, and people are just now coming to terms with the legal loopholes used to justify this mass sweeping up of communications.

However, for the most part, it was believed that the content of phone calls was not included in this broad sweep. While it's well known that law enforcement can get a wiretap on your phone if they suspect something, there was little indication that other calls are being recorded. Similarly, information about who you called and when you spoke to them tends to be easy for law enforcement to get. However, Glenn Greenwald is noting that a former FBI counterterrorism agent, Tim Clemente, went on TV, and in discussing the investigation of Katherine Russell (the wife of deceased accused Boston bomber Tamerlan Tsarnaev) has clearly said that the contents of historical phone calls are also available to the feds.

BURNETT: Tim, is there any way, obviously, there is a voice mail they can try to get the phone companies to give that up at this point. It's not a voice mail. It's just a conversation. There's no way they actually can find out what happened, right, unless she tells them?

CLEMENTE: "No, there is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation. It's not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.

BURNETT: "So they can actually get that? People are saying, look, that is incredible.

CLEMENTE: "No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not."

It's possible this was an exaggeration, but when questioned about this particular point later, Clemente again insisted that it was the case and specifically added that "all digital communications in the past" are recorded and stored. Of course, again, he may have misspoken. Or he may be exaggerating for effect. There's also the possibility that Tamerlan's phone calls were actually being tapped given the earlier investigation of him for possible terrorist connections.

So there are numerous possibilities here, but it is still a case of an FBI counterterrorism agent claiming, multiple times, that the contents of all phone calls are being recorded, which, if true, would be quite a revelation (and probably not something Clemente is supposed to be revealing via an interview with the media). At the very least, it would be good for there to be some serious follow up on this to find out how true Clemente's claims really are.

Filed Under: fbi, katherine russell, nsa, phone calls, recordings, spying, surveillance, tamerlan tsarnaev, tim clemente