Techdirt Sues ICE After It Insists It Has No Records Of The 1 Million Domains It Claims To Have Seized

from the transparency-in-censorship dept

Earlier today, we sued ICE for its failure to provide relevant documents in response to a FOIA request.

There's a pretty long backstory here, so let's go back about a decade. In the summer of 2010, we found it somewhat disturbing that ICE had "seized" a bunch of websites and was announcing this from Disney's headquarters. It raised all sorts of questions, starting with the big First Amendment questions. There are a whole bunch of cases making it clear that prior restraint is not allowed under the First Amendment. In Fort Wayne Books v. Indiana, the Supreme Court made it quite clear that you couldn't "seize" an entire bookstore in response to one possibly illegal (in that case, obscene) book:

The pretrial seizure of petitioner's bookstore and its contents... was improper. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional.

It seemed quite clear to me that seizing an entire website, based merely on accusations of copyright infringement, presented the same problem.

And here, the situation was even worse. Because it wasn't being done based on a real investigation by the government, but entirely on the say so of industry -- and, in particular, an industry that has a long history of over exaggerating and misrepresenting the "threats" of the internet. As we noted at the time, if the FTC/DOJ announced plans to bring antitrust charges against Google, and did so from Microsoft's headquarters... people would freak out. And yet, announcing website seizures from Disney's headquarters was no problem?

ICE continued seizing websites under this program, which it called "Operation In Our Sites." Later in 2010 we found a bunch of seizures especially problematic, because among the seizures were two blogs, an open discussion forum and a search engine. Seizing a blog was clearly prior restraint. Indeed, over a year later, ICE quietly handed back one of the blogs, and later admitted that it didn't have any evidence at all that the site was engaged in copyright infringement. Later documents (only unsealed due to a court challenge by EFF) revealed that ICE had seized that blog, Dajaz1, based entirely on false claims by an RIAA exec, and took over a year to hand back the domain (including getting the court to grant "secret" extensions that it wouldn't even tell Dajaz's lawyer about) because it kept waiting for the RIAA to provide the evidence it insisted it had... but never seemed to be able to give to ICE.

And that was not even the worst of these situations. In 2012, nearly two years after seizing it, ICE returned a forum website after that site sued the government. The US government quickly dropped the case and handed back the domain, more or less admitting it had no evidence.

Oh, and then after sitting on the website of another blog for five years, ICE quietly returned the blog OnSmash without ever filing any charges.

Think about that. Lots of people are up in arms about ICE these days for very good reasons. But the fact that these thugs have been literally seizing and pulling down entire websites -- a clear First Amendment violation -- based entirely on the say-so of a few biased corporate execs should be a major scandal.

That takes us to late last year, when I saw that ICE had put out a truly astounding press release. Apparently, Operation In Our Sites has continued unabated for all these years, and ICE was happily crowing about having now seized over a million domains. Given the problems we had found with some of their earlier seizures (and the fact that they had to return a bunch of them), not to mention the concerns about censoring websites on the say so of corporate execs, we found it even more bizarre that the press release proudly stated that the seizure efforts were done with "high-profile industry representatives." It was also truly bizarre that the press release from a government agency tasked with enforcement of certain copyright and trademark laws repeatedly seemed to confuse trademarks with copyrights.

Still, given that ICE had announced the seizure of over 1 million domains in partnership with "high profile industry representatives," we figured at the very least the public should be able to find which sites had been seized and with which industry execs. So back in December I sent a FOIA request. ICE -- incredibly -- came back and claimed it had "no responsive records." We appealed. In April, ICE agreed with our appeal and sent the FOIA back for a new search. We heard absolutely nothing from ICE after that. So early this morning, with the help of the non-profit Cause of Action, we sued ICE to get them to obey the law and respond to our FOIA request.

If it strikes you as somewhat unbelievable that ICE might seize over a million domain names in coordination with "high profile industry representatives" and then have no records of what those domains are, or any communications with those "high profile" industry execs, welcome to the club. We hope that ICE does the right thing, obeys the law, and provides the documents we have requested.

Filed Under: domain seizures, foia, ice, operation in our sites, records, transparency

Police Misconduct Records Show California Police Officer Busting Sober Drivers For DUI

from the delayed-transparency dept

Not every law enforcement agency is refusing to comply with California's new transparency law. Effective January 1st, the law makes police misconduct and use of force records accessible to the public for the first time in the state's history.

The state's attorney general isn't happy. Neither are many of the state's law enforcement agencies. And the state's law enforcement unions are definitely opposed to the new transparency, not to mention the law's apparently retroactive reach. But while the unions are busy trying to keep the law from exposing historical misconduct records, some law enforcement agencies are quietly complying with both the letter and the intent of the law.

The Modesto Bee is one of the first beneficiaries of the new law. It has obtained misconduct records dating back to 2003 from the Modesto Police Department. The details contained in these are exactly the reason law enforcement unions are fighting so hard to keep these records out of the public's hands.

The Modesto Police Department since 2013 has fired five police officers who it claimed were dishonest, including one who allegedly made false reports in DUI arrests to another who allegedly defrauded the federal government out of nearly $10,000.

[...]

Modesto police also released records related to 52 instances dating to 2003 in which officers discharged firearms at someone or their use of force resulted in death or great bodily injury.

Oddly, the use of force records the Modesto PD had on hand have been retained long past the five-year destruction period -- something that suggests the PD sees some value in keeping these files intact. (This is bound to piss off the union representing MPD officers, though. Expect some sort of public condemnation, if not an actual lawsuit, from the union in the near future.)

The documents detail the sort of thing we've become accustomed to seeing in police departments: mainly, a lot of dishonesty. There are reports of an officer lying about a rape investigation, an officer covering up damage he caused to his squad car by failing to put it in park before exiting his vehicle, and another officer taking home nearly $10,000 in housing stipends by falsely claiming he lived in a more expensive neighborhood.

But probably the most egregious misconduct uncovered was engaged in by an officer who had received commendations and public praise by Mothers Against Drunk Driving for his DUI enforcement efforts. But the numbers he was racking up were too good to be true.

[The] problems included the officer’s body camera footage not supporting what he wrote in his reports, including writing that he observed signs of intoxication when none was present on the footage, and relying on an “odor of alcohol” for conducting field sobriety tests, but the suspects’ blood alcohol levels turned out to 0.00 percent. Internal affairs concluded the officer’s conduct was “often rude, belittling, abrupt and arrogant.”

The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, ... recorded evidence of impairment that did not objectively exist, and arrested them without probable cause.

Unfortunately, the report chalks all this up to the officer's "zeal" and refers to his repeated violations of drivers' rights as "a lack of fairness." Yeah, that's pretty much just exonerating with faint damnation. In reality, this was an abuse of the officer's power -- power granted to him by the citizens he's not supposed to be ringing up on bogus DUI charges.

This is just the tip of California law enforcement's ugly iceberg. What's seen here isn't some sort of anomaly. Every department has plenty of dirty laundry. They just can't keep it buried in the back of the closet anymore.

Filed Under: california, dui, foia, police misconduct, records

California Cops Continue To Pretend New Public Records Law Allows Them To Erase Years Of Past Misconduct From The Record

from the and-yet,-people-continue-to-distrust-cops.-it's-a-mystery. dept

On January 1st, a California law went into effect turning long-shielded police misconduct records into public records. Prior to its enactment, at least one law enforcement agency executed a mass purge of older records, preemptively stunting the law's effectiveness.

The law has also faced legal challenges from California police unions and law enforcement agencies seeking a declaration that the law is not retroactive and PDs should only have to release misconduct records created past the date of the law's effectiveness. The state Supreme Court declined an invitation to review the law, but three police unions in Contra Costa County have managed to secure a temporary restraining order while this aspect of the law is sorted out.

The law doesn't contain any language suggesting it does not apply retroactively. But it also doesn't contain any language specifically stating it applies retroactively and that's the wedge law enforcement agencies are trying to drive between themselves and their new obligations to the public. But the lawsuits aren't just coming from the law enforcement side. Agencies are now being sued for failing to turn over documents the new law says the public can obtain.

In a legal test of a new state law requiring the release of police records in shootings and other cases, The Sacramento Bee and the Los Angeles Times jointly sued the Sacramento Sheriff’s Department Friday, charging that the department is refusing to follow the statute that requires the release of records on deputies who fired their weapons or engaged in misconduct on duty.

The papers sought records of officer-involved shootings dating back to 2014. The Sheriff's Departments responded by saying it had no obligation to turn over records created prior to January 1, 2019 and would not do so until it had "clear legal authority" to release them. This lawsuit [PDF] forces the issue, putting it on the court's timetable, rather than the Sheriff's.

As the plaintiffs point out, it's not just transparency activists reading the law as retroactive. It's also one of California's largest police unions.

Respondent has taken the position that Senate Bill 1421 does not apply to the records requested “so only records of covered events occurring on or after January 1, 2019 will be disclosed.” (See Exhibit B; Exhibit D.) Respondent is mistaken. Indeed, even an opponent of Senate Bill 1421, the Los Angeles County Professional Peace Officers Association (“LACPPOA”), admitted, “Moreover, our reading of Senate Bill 1421 is that making the records of an officer’s lawful and in policy conduct is retroactive in its impact. In other words, notwithstanding that the officer’s conduct was entirely in policy, his or her records are available for public inspection irrespective of whether or not they occurred prior to the effective date of SB 1421.”

The state's courts are going to be filling up with similar filings from both sides over the coming weeks. This should hopefully expedite erasing the supposed ambiguity from the law. Hopefully, the courts will consider the intent of the law's crafters, which was to give the public access to police misconduct records to better the police/public relations. This is clearly stated in the legislation itself:

SECTION 1.

The Legislature finds and declares all of the following:

(a) Peace officers help to provide one of our state’s most fundamental government services. To empower peace officers to fulfill their mission, the people of California vest them with extraordinary authority — the powers to detain, search, arrest, and use deadly force. Our society depends on peace officers’ faithful exercise of that authority. Misuse of that authority can lead to grave constitutional violations, harms to liberty and the inherent sanctity of human life, as well as significant public unrest.

(b) The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.

Nothing in that language suggests legislators wanted to reset the clock on January 1st, giving all law enforcement officers a clean slate going forward. The intent of the law is not to erase past misconduct. That doesn't serve its ultimate purpose, which is to restore the "public's faith in the legitimacy of law enforcement." Reading the law the way police unions want it read will only further deteriorate this ailing relationship.

Filed Under: california, discipline, foia, police, records, transparency

Everyone In the Cook County Criminal Court System Too Busy Pointing Fingers To Fix Its Antiquated Records System

from the carbon-paper?--seriously? dept

When you write regularly about lawsuits, you learn very quickly that not all court systems are equal when it comes to allowing modern access to public filings and records. The country is a veritable panoply of an access spectrum, with some districts offering modern e-filing systems and websites to review documents, while other districts are far more antiquated and restrictive. That said, it's hard to imagine a county court system more backwards than that of Chicago's Cook County.

Every workday, attorneys enter criminal courtrooms across Cook County, put away their smartphones and operate in a world that their grandparents would have recognized: accordion-style Manila folders to hold paper documents, handwritten orders for judges to sign, even carbon paper to make copies of the paper filings.

“God help us all if the carbon didn’t take,” said defense attorney Alana De Leon, who had never used the outdated copying method — invented more than two centuries ago — before setting foot in a West Side branch court a few years ago.

While the Tribune article notes that these antiquated techniques result in derisive jokes from the attorneys forced to use them, the reality is that they are no laughing matter. The article tells the story of a woman looking for filing information for her boyfriend's criminal court case and was forced to travel 14 miles just to find out what charges her boyfriend was facing. And this sort of thing isn't reserved for the lay public. Criminal defense attorneys must also make a similar trek just to find out the basic case information for any clients they may take on in Cook County as well. In the surrounding counties, this information would be available via e-filings via an internet connection. In Cook County, home to the third largest city in the union, its all physical filings and carbon copies.

Circuit Court Clerk Dorothy Brown, in charge of this love letter to the days of robber barons, does not want to hear you blame her for any of this, however.

Circuit Court Clerk Dorothy Brown bristled at the suggestion that her office has been slow to adapt to the internet age, telling the Tribune in an hourlong interview last week that a complete overhaul of the criminal case management system is expected to be completed by March 2019. Brown spoke of an “interactive” system in which much of the work performed by attorneys and judges in the courtrooms could be done electronically. Brown said her ultimate goal is to end the reliance on ink and paper.

While that may all sound good, if quite late, it's worth noting that Brown is the same Clerk that has gone to court to block press access to e-filings in recent weeks.

Dorothy Brown, Chicago’s elected court clerk, filed her appeal notice this week, challenging a ruling in early January by U.S. District Judge William Kennelly. The judge found the First Amendment prohibits the clerk from withholding new efiled complaints, a regular source of news, from the press corps. He gave the clerk 30 days to provide access.

She made no move to comply and continues to argue that she must first screen the filings for confidentiality. In his 16-page opinion, Kennelly found that argument belied by a number of effective alternatives available to the clerk.

It's moves like that which create the impression that the lack of transparency that comes along with Cook County's laughably anachronistic records systems is a feature rather than a bug. Cook County has long been a place where county and city officials have played a game of subterfuge with the press and the public, hiding legal machinations as well as actions taken by the city, such as million dollar payouts to the families of victims of police shootings. Making the court system as opaque as possible for as long as possible seems to be the goal.

Brown, of course, insists otherwise and blames the state Supreme Court and Chief Judge Timothy Evans for Cook County's woes.

Brown said her hands have been tied by the Illinois Supreme Court dragging its feet in allowing e-filing statewide in criminal cases for the first time just last year. She also blamed Chief Judge Timothy Evans’ office for blocking her from making basic docket information available online for criminal cases.

In an email, however, Evans’ spokesman, Pat Milhizer, denied Brown’s claim, saying his office would consider any such proposal from the circuit clerk.

Many will say this all smells of classic Chicago machine politics. And, in many respects, it certainly comes off that way. The suburban counties all have modern e-filing systems in place, after all, including several rural counties that don't have nearly the breadth of resources afforded to Cook County. What should be kept top of mind, however, is the tax all of this puts on the public and its interest in justice in the county. Going back to defense attorney De Leon and the use of technology as outdated as carbon copy:

“To a certain extent ... the lack of transparency kind of is the ugly product of the old system,” De Leon said. “I don’t know if it’s necessarily on purpose — to keep this information away from the average citizen — but it certainly is a consequence of that.”

And no amount of CYA or finger-pointing should distract anyone from the obvious reality that the public is not being well-served by the Cook County court filing system.

Filed Under: cook county, cook county courts, criminal case management, dorothy brown, electronic records, records, technology

The Stasi's Tiny Torn-Up Analog Files Defeat Modern Digital Technology's Attempts To Re-Assemble East Germany's Surveillance Records

from the too-hard-for-today's-hardware dept

It is nearly 30 years since the wall separating East and West Berlin came down, and yet work is still going on to deal with the toxic political legacy of East Germany. As Techdirt readers are well aware, one of the defining characteristics of the regime in East Germany was the unprecedented -- for the time, at least -- level of surveillance inflicted on citizens by the Stasi (short for Staatssicherheitsdienst, or State Security Service). This led to the creation of huge archives holding dossiers about millions of people.

As it became clear that East Germany's government would fall, and that its long-suffering citizens would demand to know who had been spying on them over the years, Stasi officers began to destroy the most incriminating documents. But there were so many files -- a 2008 Wired article about them says they occupied 100 miles of shelving -- that the shredding machines they used started to burn out. Eventually, Stasi agents were reduced to tearing pages by hand -- some 45 million of them, ripping them into around 600 million scraps of paper.

After thousands of bags holding the torn sheets were recovered, a team working for the Stasi records agency, the body responsible for handling the mountain of paper left behind by the secret police, began assembling the pages manually. It was hoped that the re-assembled documents would shed further light on the Stasi and its deeper secrets. But it was calculated that it would take 700 years to deal with all the scraps of paper by hand. A computerized approach was devised by the Fraunhofer Institute, best-known for devising the MP3 format, and implemented following a pilot project. After some initial successes, the program has run into problems, as the Guardian reports:

A so-called ePuzzler, working with an algorithm developed by the Fraunhofer Institute and costing about €8m of [German] federal funds, has managed to digitally reassemble about 91,000 pages since 2013. However, it has recently run into trouble.

For the last two years, the Stasi records agency has been waiting for engineers to develop more advanced hardware that can scan in smaller snippets, some of which are only the size of a fingernail.

The ePuzzler works by matching up types of paper stock, typewriter fonts, or the outline of the torn-up page. It has struggled with hand-written files that were folded before being torn, leaving several snippets with near-identical outlines.

While the hardware engineers try to come up with a suitable scanner that can handle these tiny fragments, a small team continues to match up the more crudely ripped pages manually. Inevitably, some people will be thinking: "If only the Stasi had used blockchain, all these problems could have been avoided..."

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: digital technology, records, stasi, surveillance

CIA Helps National Archive Out By Offering To Trash Its Stash Of Leak-Related Documents

from the I'M-HELPING dept

The National Archives obviously can't be expected to store every piece of paper generated by the federal government. But it does have an obligation to preserve copies of historically-significant documents. Unfortunately, it's allowing agencies to make these decisions. While it's true some agencies may have a better grasp on a document's significance, other agencies aren't as interested in archiving historically significant documents -- especially ones that might make them look bad.

Enter the CIA, which already has a significant history of burying documents it would rather not reveal.

The CIA is scheduled to begin destroying old records related to leaks of classified information in August unless critics convince the National Archives to scuttle the plan.

The National Archives and Records Administration tentatively approved a CIA proposal to get rid of several types of records after 30 years. Along with leak-tied files, the record types include medical records, behavioral conduct files, security clearance information, personality files with counterintelligence interests, workers-compensation reports for employees posted overseas, and declassification and referral files.

Leak-related files currently have to be saved permanently, but under this proposal they can be destroyed 30 years after a case is closed.

This is the CIA's response to the Archives' question: what documents should we not worry about keeping? This is the CIA stating none of the documents listed above have historical value. Nate Jones of the nonprofit National Security Archive points out why the CIA shouldn't be allowed to make this determination.

Jones warns that NARA and the CIA should err on the side of preservation, even if they believe the files at issue are backed up elsewhere. “History has shown that they are too eager to destroy their records,” he said of CIA officials. “The CIA does not have a lot of good will for preserving historically relevant documents.”

There's history the CIA likes -- the sort of thing that's enshrined in its public areas and featured prominently on its website. Then there's everything else. The CIA tends to move forward with document destruction without bothering to confirm backups still exist just in case.

[J]ust last month, it came to light that the spy agency chucked records about this country's secret role in the 1953 Iran coup during an office move, when it believed copies existed someplace else.

An avoidable accident, but nothing about it suggests it was an accident or that the CIA had any interest in avoiding it. History may be written by the winners, but history can be erased by even the clumsiest losers. Not only are those files gone but any record of their destruction is missing as well.

“There is no written record confirming the destruction of the 1953 microfilmed cables” because “records of such routine destruction were themselves temporary and scheduled to be destroyed.”

The CIA, meanwhile, is complaining its ample budget simply can't cover the cost of digitizing everything related to leaks or personnel issues. If this is even remotely true, it exposes a serious flaw in agency priorities. The government apparently has plenty of money available for watching others, but very little set aside for being watched by the public.

Matthew Aid, an ex-intelligence officer and historian, puzzled over the rationale behind the National Security Agency storing "several hundred times the volume of the Library of Congress every single day as part of its global eavesdropping operations," while "the CIA can't afford to scan its records."

Regrettably, the NARA is pretty much powerless. It can make recommendations and ask for proposals, but it's all held together by toothless laws which have zero deterrent effect on agencies hoping to carve holes in their sketchy history with scheduled document destruction.

Filed Under: cia, deleting, leaks, national archives, records, records retention

With So Much Public Interest In Our Judicial System, It's Time To Free Up Access To Court Documents

from the pacer-isn't-keeping-pace dept

Like hundreds of thousands of Americans, I am closely following the "airport cases" around the country. In order to keep abreast of the latest developments in one of the fastest-moving cases, Washington v. Trump, I built a Twitter bot that scrapes the public docket mirror hosted by the Ninth Circuit and tweets about new documents and links as soon as they're added.

This case leads a legal push that has attracted incredible amounts of public attention. There have been tens of thousands of protestors, dozens of organizations and companies that submitted amicus briefs (including Techdirt's think-tank arm, the Copia Institute), and over 135,000 people who tuned into the audio-only livestream of the Ninth Circuit oral arguments (which was also broadcast live on multiple news channels).

Those numbers reveal a public demand to be informed and to participate in the law. But they also show the limitations on the kind of transparency that can satisfy that demand. Most notably, any attempts to make court proceedings more accessible to the public has to contend with the expense and overhead of dealing with PACER. My bot is only possible because the Ninth Circuit provides a public docket mirror for individual "cases of interest," essentially duplicating the existing system outside the paywall. Those mirrors are manually updated, which means they are labor-intensive, error-prone, and not always up to date.

By contrast, look at the @big_cases bot run by USA Today reporter Brad Heath. It monitors a set of district court cases, selected by hand, and posts new documents as they get filed. These district court cases don't have public docket mirrors, so @big_cases accesses PACER directly -- and for that, it needs user credentials and ultimately to pay for the documents it downloads. For a journalist whose job is reporting on legal developments, paying these costs makes sense -- and sharing the documents further is a valuable public service. Without institutional backing, though, it's hard to justify the PACER expenses.

The costs go beyond the financial. These bots represent an experiment in meeting members of the public where they are, and those efforts are less likely if they come with a pricetag. Worse, it means these experiments will be limited to cases of widespread general interest. To pick a trivial example: Techdirt readers might be interested in a bot that tweets updates from privacy or copyright dockets. If those public documents were freely accessible, anybody could build a tool like that without worrying about subsidizing the ongoing PACER costs.

At a time when the president and his press secretary are calling into question the legitimacy of factual news reporting, an informed public requires more than ever access to primary sources. Moreover, they need to be confident in the integrity of those sources. Journalists reporting on court proceedings increasingly post the original source documents. Without a free and public government source file, though, most readers can't see the context of the case, and they have to trust that they're getting the full and unmodified documents in question.

The procedural stance of Washington v. Trump is unclear. A Ninth Circuit judge has made a request that both sides brief whether a larger panel should re-hear the question. The White House has issued conflicting reports about whether or not it will appeal Thursday's order to the Supreme Court. And the District Court has indicated that a new briefing schedule might be appropriate. These paths offer various levels of transparency, and it's frustrating to know my bot may not be able to keep up with, say, district court proceedings simply because of the antiquated PACER system.

Meanwhile, the issue continues to attract attention from lawmakers. The House Judiciary Committee will hold a hearing on Judicial Transparency and Ethics on Tuesday, February 14, and is expected to include testimony on PACER. Hopefully, the Committee uses this to recognize that a truly transparent judiciary requires rethinking how PACER functions.

Filed Under: access to information, courts, judicial system, pacer, records, transparency

Police Union's Proposed Contract Looks To Whitewash Officers' Disciplinary Records

from the revisionist-history dept

Touched on briefly during our rundown of police unions demanding better pay for better behavior and accountability was the San Antonio Police Officers Association's (SAPOA) demand that the city should be willing to raise wages if it really expected its officers to perform their duties without veering into abuse or misconduct.

Part of what's keeping a deal from being struck between the city and the union is the amount of money on the table. This gives the union the appearance of holding the city's safety hostage until its demands are met. That may not be an entirely fair characterization (there's some "hostage-taking" on the other side as well), but there's something far more worrying in the proposed contract that's keeping this from being resolved.

The San Antonio police union wants changes to disciplinary procedures that would effectively whitewash past misconduct by officers. Michael Barajas, writing for the San Antonio Current, takes a close look at the controversial clause, and how it's likely to allow bad officers to not only stay employed longer, but possibly rise through the ranks as well.

At issue is the deal SAPOA and Mayor Ivy Taylor’s office negotiated this past summer to put an end to years of litigation over an evergreen clause in the union’s previous contract, which the city in court had argued was unconstitutional. Only recently, however, has police reform come to dominate discussions around the deal. As the Express-News first reported, Saldaña explained in an email to Taylor’s office last month why he wouldn’t vote on a negotiated contract that contained disciplinary procedures he called unacceptable.

[...]

Saldaña’s opposition to the agreement is rooted in disciplinary procedures outlined in Article 28 of the contract, which is set to go before council for approval next week. Under those rules, department officials and arbitrators hearing a case of officer misconduct won’t always get to consider an officer’s full disciplinary history when deciding what punishment to give. As it currently stands, if Chief William McManus wants to discipline an officer, he can’t cite as justification any drug- or alcohol-related violations more than 10 years old; infractions involving “intentional violence” only follow a cop for five years; any other disciplinary action only shows up for two years. If an officer is suspended for three days or less, the department, per the contract, automatically lowers the suspension to a “written reprimand” after a couple of years. Local activists calling for police reform say the policy amounts to government-sanctioned falsification of records.

The passage of time may alter perceptions, but it shouldn't be allowed to alter facts. That's what the union's proposal would do: rewrite disciplinary records after the fact. There will be no such thing as a "permanent record" for the city's officers. With enough years on the force, every disciplined officer will morph into someone better-behaved than they actually are.

Of course, union president Mike Helle thinks this is a perfectly acceptable way to handle misconduct issues. He claims this clause levels the disciplinary playing field. He wonders why a 10-year officer with a few minor infractions should be treated more harshly than a rookie with no prior incidents when punished for identical acts of misconduct.

It should go without saying (but apparently Helle actually needs to hear it) that those with more seniority should be screwing up less and should receive harsher punishments than those without as much experience. It's not as though the current disciplinary process prevents supervisors from considering multiple factors and exercising personal discretion when handing down punishments. Helle just wants to ensure that the longer someone's on the force, the more likely they are to escape severe punishment.

In practice, the union's suggested change would play out like this:

As Express-News columnist Brian Chasnoff wrote last week, Saldaña has seized on the case of one former SAPD officer convicted of raping a teenager on duty to highlight the disciplinary policy’s troubling implications. More than two years before Jackie Neal pleaded no contest to “improper sexual activity with a person in custody,” he was reprimanded for having sex with an 18-year-old high school student he was tasked with supervising in the department’s youth police explorer program. For that, he received a three-day suspension—which, if you follow the department’s disciplinary policies, would have been changed to a written reprimand by the time he was accused of pulling someone identified only as Jane Doe in court records over on the south side, handcuffing her and raping her in the back of his police SUV.

The officer ended up being convicted and having to surrender his peace officer's license. But what about those whose misconduct investigations are handled completely internally? If the union's plan was in place, the officer's file would have shown nothing more than a written reprimand -- hardly indicative of past issues with sexual misconduct.

Helle calls the councilman's opposition to the whitewashing clause the "tantrum" of a "spoiled child." But he glosses over the fact that the union is still threatening to hold its breath until it gets its way. Helle claims he can't change the clause without undoing current negotiations and possibly ending up in court. That seems unlikely to be the only outcome of removing the stipulation. Occam's Razor (and columnist Michael Barajas) says the union boss just doesn't want to remove the clause as it gives the union much more leverage when representing officers during disciplinary hearings.

What it doesn't do, however, is any favors for the public, which will be asked to pay the salaries of bad officers and underwrite the retconning of their permanent records.

Filed Under: accountability, police, police unions, records, transparency

State AG: We Have A Warrant Requirement For Stingrays; State Police: FILE(S) NOT FOUND

from the the-latest-in-LEO-tech:-the-warrantless-warrant dept

In a comprehensive look at Delaware State Police usage of Stingray devices at DelawareOnline, there's this very darkly amusing factoid. (h/t Nathan Burney via Brad Heath)

The state Attorney General's Office says police must obtain a warrant to deploy the Stingray, but when The News Journal requested those court orders through a FOIA, state police said none existed.

This is a problem. It's not that the state police chose to withhold the information, as it has with several other Stingray-related documents requested by the News Journal and the local ACLU. It's that it says no records exist. This means the warrants the Attorney General says police must use are not being used.

What do appear to be used by Delaware State Police are vague pen register orders that hide from judges and defendants the technology actually being used to obtain this phone data. Public defender John Daniello had one such document turned over to him by the police -- one that apparently was used to deploy Harris Technology's cellphone-tracking technology.


It's a pen register order, with a handwritten "negative on TriggerFish location" scrawled across the top. Daniello's now looking to force the state police to hand over the paperwork it's actually using to deploy cell tower simulators -- which isn't the same paperwork the AG's office has stated must be used.

“I was going to make a stink about it and demand all the information,” Daniello said. “They’re going out and pinging everybody."

Daniello said that police are "pulling one over on the courts" by not indicating in the full text of a warrant that cell-site simulators are being used.

Daniello's inquisitiveness has already helped one defendant out. Rather than turn cell tracking documents over to Daniello, prosecutors offered his client a "far better" plea deal than they had initially offered.

The Delaware State Police are following the pattern set by many other law enforcement agencies: claiming their agreement with Harris (and the FBI) forbids any mention of cellphone tracking technology and using pen register orders (which have a lower evidentiary standard than warrants -- information sought must only possibly be "relevant" to an ongoing investigation). The State Police may disingenuously assert the two are roughly equivalent, but the Attorney General's office has explicitly stated Stingray devices can only be deployed with warrants.

This suggests the Attorney General really isn't paying too much attention to what the police are doing with their cell tower spoofers. The following suggests the AG isn't the only person not in the know. The obfuscation of Stingray/TriggerFish deployments is apparently so multi-layered that even the state police find it impossible to locate relevant documents.

The News Journal sent a FOIA request to the Delaware State Police asking for copies of all warrants from adjudicated cases that contained the term “pen register,” the technical term for a call search history. Despite existence of the warrant* issued for Daniello’s client, the agency responded that no records existed.

*It's not a warrant.

Police departments sold state legislators on Stingrays by citing terrorism and drug warring. No one asked too many questions because these are Serious Things few legislators could possibly oppose. They allowed hundreds of thousands of dollars to be spent on technology that's being deployed with little to no oversight. Also discovered during the FOIA requests is that the State Police have no written policies or guidelines covering these deployments. The Attorney General may claim a warrant requirement is in place, but -- considering the lack of responsive documents -- it's entirely unclear what he's basing this assertion on.

Filed Under: delaware, foia, imsi catcher, police, records, stingray

Hateful Eight Pirated Leak Harms Film All The Way To Box Office Records

from the grilled-leaks dept

Mike just recently did a post on the horrible effects of piracy on Hollywood box office results from last year, which can be summarized as "holy shit, look at all the money!" That post took a macro look at the year Hollywood had at the box office, in which revenue and individual ticket sales were both up, despite the fact that piracy exists. Still, the post warned of one potential rebuttal some might make: yeah, but Star Wars.

And it's true that such a high level look at the numbers would need to account for the smash hits released and gobbled up by the public. Still, such examples seem to indicate that the public is willing to fork over dollars if demands are met, but there are micro-examples of this as well. Take, for instance, The Hateful Eight, Tarantino's latest film. You may recall that the film suffered a leak prior to its release, making it widely available on the internet for anyone who wished to engage in a little piracy. It was downloaded hundreds of thousands of times, leading some to worry that its availability to would hamper its success at the box office. That's when one writer, with impeccable intelligence and an un-matched sexual charisma, wrote:

Pay close attention to how Hateful Eight does at the box office, because it's almost certain to be a smash hit, even as it competes with a certain film franchise from a long time ago and far, far away. And that really is the point. Even as media reports will breathlessly detail the pirating of the film, even as we'll be told about street corners in China where copies of the film are offered, and even as the download numbers of the film will soar, the film will do well.

So, how did it all work out for The Hateful Eight? It was, as predicted, a hit. As in a record-breaking hit. Specifically, the 70mm version, something requiring special equipment that is unavailable to most pirates, helped propel the success.

The 70mm version of the film, which has been showing in the largest 70mm release in more than 20 years, had a strong opening-weekend debut, earning $4.6 million at 100 venues in 44 U.S. markets. After its first two weeks, its 70mm engagements have grossed $11.2 million for a $112,000 per theater average for the first 12 days.

The neo-Western expanded to a total of 2,474 engagements at the beginning of its second weekend on Jan. 1, and its combined 70mm and digital showings have grossed a domestic total of $33.8 million to date.

All of that for a film which was leaked early and available for pirating. So, why the success? Well, the obvious answer is the 70mm gimmick, which those pirating the film couldn't enjoy. But that doesn't really tell the whole story, because $34 million gross early in a film's release, especially when competing with Star Wars, is quite a thing. The real reason for this is the combination of Tarantino building up a loyal fanbase that wants to support his work coupled with the theater experience that is still immensely important to many viewers. Going to the theater is an event that cannot be replicated in the home for many movie-goers, no matter how good home theater technology gets.

So, if this demonstrates that piracy doesn't really translate into lost ticket sales in the theater, as I believe it does, then this all returns us to the question of why Hollywood wants to spend so much monetary and emotional capital fighting a fight that might not really matter?

Filed Under: box office, competing with free, hateful eight, leaks, piracy, quentin tarantino, records, screeners