Tennessee Drug Interdiction Officers Stomp All Over Traveling Couples' Rights En Route To Seizing Nothing At All

from the putting-the-'ass'-back-in-'asset-forfeiture' dept

More asset forfeiture to report on, albeit of the rarely-reported "attempted robbery forfeiture" variety. (via Overlawyered)

A couple (Lisa and Ronnie Hankins) traveling through Tennessee on their way home (to California) from a funeral was stopped by Tennessee drug interdiction agents as they traveled west on I-40 out of Nashville. What followed was a long fishing expedition, during which officers separated husband and wife in hopes of getting permission to search their vehicle without a warrant.

"You say there's not anything illegal in it. Do you mind if I search it today to make sure?" the officer asked.

Lisa responded, "I'd have to talk to my husband."

[...]

The agent continued, "I am asking you for permission to search your vehicle today -- and you are well within your rights to say no and you can say yes. It's totally up to you as to whether you want to show cooperation or not."

[...]

"You have to either give me a yes or no," he continued. "I do need an answer so I can figure out whether I need a dog to go around it or not."

Because the agent was unable to obtain consent from the couple, he decided to ask a dog. A drug-sniffing dog was brought in to examine the vehicle and, go figure, it alerted near the driver's side window (after ignoring the open passenger's side window). Finally having obtained "permission" for a warrantless search, the two agents went to work. An hour later -- and having disassembled the dashboard of the couple's new car -- they were unable to recover anything incriminating. But hey, no one's rights were violated because the drug dog told officers the car contained drugs, even though it didn't.

It also didn't contain any cash, which one agent told the Ronnie Hankins was far more likely to be hidden somewhere in the vehicle.

[W]hen Ronnie insisted there were no drugs, the agent confided he wasn't really expecting any.

"Well, I'll be honest with you, with you going this direction, I wouldn't think you'd have drugs in the car -- you would have a large amount of money," he said.

Apparently, drug interdiction agents are far less interested in stopping the flow of drugs than they are in intercepting outgoing cash. Otherwise, as Nashville's News 5 (which has been investigating the state's out-of-control asset forfeiture program for years) points out, it wouldn't be performing a majority of its stops on roads leading out of the state.

While drugs generally come from Mexico on the eastbound side of Interstate 40 and the drug money goes back on the westbound side, the investigation discovered police making 10 times as many stops on the so-called "money side."

The frustrated officers finally let the Hankins go, but not before making a last-ditch effort to redeem their futile efforts. The police report claims the interdiction agents found "marijuana debris" or "shake" on the floorboards of the vehicle. The Hankins claim the only thing on the floorboards was grass from the cemetery where Ronnie Hankins' grandfather was buried. Whether it was "grass" or grass, neither of the Hankins were charged or cited.

Tennessee's asset forfeiture laws are far worse than those in many states. 100% of the proceeds of any seizures go to the department that performed it. Legislative attempts to overhaul these laws have been mostly fruitless. A bill introduced in early 2013 aimed to eliminate this abuse by making seizures contingent on convictions. By the time the House and Senate had amended the bill, the only net gain was the prohibition of ex parte hearings. If Tennesee interdiction officers seize your money or other property, they now (the law went into effect at the beginning of this year) have to give you a date when you can show up and defend "forfeited" property from the accusations of law enforcement -- something of limited utility considering these officers tend to prey on drivers with out-of-state plates. Depending on what has been seized, it may be cheaper to allow the state to claim its ill-gotten goods rather than spending even more money to participate in a largely ceremonial process that often results in the state paying out only pennies on the dollar.

Filed Under: cash, drug interdiction, drugs, forfeiture, police, seizures, tennessee

Data Shows Homeland Security Is Lying When It Claims Intellectual Property Seizures Are About Health & Safety

from the just-not-true dept

For quite some time, intellectual property maximalists have seized upon an incredibly dishonest (though all too frequently successful with policy makers) strategy of conflating a variety of different issues to make it appear that extreme enforcement of copyright and trademark law was all about "protecting the safety of Americans." This was a key point made by SOPA's biggest cheerleaders at the US Chamber of Commerce. They took a very, very, very tiny number of cases where safety was an issue (things like counterfeit drugs) and lumped them into a huge category of infringement (online file sharing) where no safety was at issue -- and despite the issues being entirely unrelated, they would then claim we needed SOPA to protect the safety of Americans.

This particular sleight of hand has been long adopted by the Department of Homeland Security, and in particular its Immigrations and Customs Enforcement (ICE) division, whose former boss, John Mortin, used to regularly interchange and conflate these issues to make all kinds of infringement be considered a massive "safety" threat to the public. And, of course the White House's big "strategic plan" concerning intellectual property enforcement insists that "health and safety" are among its "primary concerns." However, with Homeland Security releasing its latest stats concerning intellectual property "seizures," it's become quite clear that they very rarely have anything to do with health and safety, but much more often are just about protecting the business models of large companies (like the one John Mortin went to work for after leaving ICE).

As Jonathan Band points out in the link above, there doesn't seem to be very much "health and safety" protection behind these efforts.

The DHS report for IP seizures for 2012 contains statistics for seizures of counterfeit goods harmful to safety and security. In 2012, this category contained only 11.5% of counterfeit goods seized, measured by estimated MSRP of the goods. The safety and security category likewise represented just 14.8 % of the number of seizures. In 2011, 17.5% of the counterfeit goods seized fell within the safety and security category, and 17.6% of the number of seizures.

Although the March 24, 2014 press release focuses on health and safety, the actual report for 2013 seizures does not contain a breakdown for the safety and security category, unlike the report for 2012. Using the same methodology as the 2012 report, the safety and security category in 2013 can be estimated to contain less than 10% of the value of good seized, and under 14% of the number of seizures.

In short, for the past three years, counterfeit goods threatening safety and security represent significantly less than 20% of the goods seized, measured either by the value of the goods or the number of seizures. Moreover, the percentage of dangerous counterfeit goods is decreasing.

In fact, Band points out that it seems rather questionable that DHS is insisting that "a great deal more needs to be done to protect the public from the health and safety threats that counterfeiters pose" when it doesn't appear that DHS is actually paying much attention to actual health and safety issues at all.

In 2013, fully 40% of the value of seized goods fell in the handbags/wallets category. Another 30% was in the watches/jewelry category. As noted above, less than 10% of the value related to safety and security. Similarly, 35% of the number of seizures involved wearing apparel/accessories, while under 14% of the number of seizures concerned safety and security goods.

It certainly is possible that some consumers are deceived when they purchase counterfeit handbags, watches, and accessories. But most consumers know exactly what they’re getting when they purchase “luxury” items at a deep discount on Canal Street. In contrast, no consumer intentionally buys fake pharmaceuticals that could kill him. Any dollar spent on intercepting a counterfeit Louis Vuitton handbag or Rolex watch is a dollar not spent protecting U.S. consumers from counterfeit drugs and automotive parts.

There is one other possible interpretation of the small and decreasing share of safety and security seizures: that the threat of counterfeit products dangerous to health and safety has been grossly exaggerated by rights holders and the government to justify DHS’s IP enforcement budget. In other words, protecting public health and safety has largely been a pretext for government spending on protecting the commercial interests of corporate rights holders – many of which are foreign owned.

What? DHS and ICE using claims of "health and safety" as a pretext to protect business interests? How could that possibly be...?

Filed Under: counterfeits, dhs, forfeiture, homeland security, ice, pretext, safety, seizures, trademark

Anyone Traveling Into The UK Can Have Their Phones Seized And Data Downloaded Without Cause

from the the-old-rights-are-the-new-luxuries dept

An independent review of the UK's anti-terrorism laws has found that the British "border patrol" functions much like ours when it comes to electronics. If you're bringing it across the border, it can be seized, searched and the data retained indefinitely.

Officers use counter-terrorism laws to remove a mobile phone from any passenger they wish coming through UK air, sea and international rail ports and then scour their data.

The blanket power is so broad they do not even have to show reasonable suspicion for seizing the device and can retain the information for “as long as is necessary”.

Data can include call history, contact books, photos and who the person is texting or emailing, although not the contents of messages.

UK police officers are also authorized to do this to UK citizens, although they are limited to seizing the phone and downloading information only after making an arrest. The border control officers have no such limitations. Scotland Yard, which is in charge of the UK's counterterrorism efforts, spells out travelers' rights this way:

Under the Terrorism Act 2000 a person may be detained and questioned for up to nine hours to determine if that individual is a person concerned in the commission, preparation or instigation of acts of terrorism as outlined in the Act.

Any person being detained can have their electronics (and contained data) seized. Their data is retained even if no charges are pressed.

Under the Act, police or border staff can question and even hold someone while they ascertain whether the individual poses a terrorism risk. But no prior authorization is needed for the person to be stopped and there does not have to be any suspicion. It means a police officer can stop any passenger at random, scour their phone and download and retain data, even of the individual is then immediately allowed to proceed.

David Anderson QC, the independent reviewer of the UK's anti-terrorism policies, says he expects to "raise concerns" during his annual review. That's nice of him, but he seems to be a little too comfortable publicly espousing the "company line."

Mr Anderson said: “Information downloaded from mobile phones seized at ports has been very useful in disrupting terrorists and bringing them to justice.

“But ordinary travellers need to know that their private information will not be taken without good reason, or retained by the police for any longer than is necessary.”

One can easily see where this is headed. Anderson will raise "concerns," which will be addressed by redefining terms like "good reason" and "necessary." That is, if the UK's border protection continues to align with the United States model. Anderson believes this unchecked power is a "useful tool" in the fight against terrorism, and as such, is unlikely to raise severe objections to its continued use.

Even the statements from Scotland Yard defending this tactic have an eerie familiarity.

As with any power to detain an individual it is used appropriately and proportionally and is always subject to scrutiny by an independent reviewer of UK anti-terror laws.

Yes, that's right. Here in the US we also have nothing to fear. Everything the NSA, FBI, DHS, CBP and other acronymed agencies do under the guise of "fighting terrorism" is completely above board, subject to rigorous oversight and 100% legal. It only seems like an intrusive violation of privacy and an abuse of basic civil liberties, something that governments should be protecting us from rather than subjecting us to.

And as for that "independent review," it seems as though Anderson is already at least halfway in agreement with Scotland Yard on the perceived necessity of these policies, something that doesn't bode well for international travelers.

Filed Under: computers, seizures, smartphones, uk

Italian Court Overturns Seizure Of Cyberlocker Rapidgator

from the big-news dept

In April we wrote about how Italian law enforcement had blocked over two dozen websites after the industry claimed they were responsible for copyright infringement. There was no trial, no adversarial hearing where the sites were able to defend themselves. Just: entertainment industry complains, law enforcement buys the complaints, tells a judge and boom, site gone. One of the cyberlockers blocked in this effort, Rapidgator, challenged this blockade, and it has quickly won a reversal. Rapidgator's lawyer, Fulvio Sarzana, was kind enough to send us the details, and it appears the court understood why the initial blockade was hugely problematic.

The court overturned the ruling that came out of the investigation, and made a few key points, according to Sarzana. He said that court ruled that cyberlockers are legitimate if they have a notice and takedown system, and that the owner of the site is not liable for infringements done by users (basic secondary liability protections). It also said that the seizure of an entire site goes "against the principles of reasonableness, proportionality and adequacy."

Unfortunately, the ruling only applies to Rapidgator, since it was the only one who hired a lawyer in Italy and appealed. In response to the ruling Sarzana issued the following statement:

The copyright holders contend that the only way in which they can obtain effective relief to prevent, or at least reduce infringements of their copyrights is by means of an order against ISPs. But this is stupid since the concerns about over-blocking, and ease of circumvention are widely recognized. Blocking through the ISPs is not a silver bullet to stop web copyright infringement. It is, in fact, a way to balkanize the web.

Having strong secondary liability protections, as well as basic due process before blocking access to sites would be a huge step in the right direction, so it's good to see an Italian court recognize these basic principles.

Filed Under: copyright, cyberlockers, due process, italy, secondary liability, seizures
Companies: rapidgator

Oops: After Seizing & Censoring Rojadirecta For 18 Months, Feds Give Up & Drop Case

from the took-'em-long-enough dept

Looks like we've got something of a repeat of the Dajaz1 insanity, in which the US government seized and censored a website for over a year before giving up and handing the domain back -- though this time it's with Rojadirecta. You may recall the Rojadirecta case, where two domains have been held by the US government on a highly questionable legal theory for over a year and a half -- well, the government just dropped the case, and it appears that the domains will be returned.

The case began when ICE seized two Rojadirecta domains from the Spanish company Puerto 80. As we noted at the time, Puerto 80 had been found legal (twice) in Spain, so it was hard to fathom that there could be "willful" infringement here.

Of course, over time, the situation got even more ridiculous. As with Dajaz1 and other sites, the US Attorneys in charge of the case stalled when the site fought back. In the case of Rojadirecta, Puerto 80 decided to stop waiting and sued the government. From there, something of a comedy of errors by the government ensued, with bizarre and unsupportable claims, and (worst of all) repeated attempts to mix and match different pieces of the law to dance around the fact that there was no legal basis for the seizure and the whole thing was unconstitutional. Each time the feds would present an argument, as you picked it apart, you could see that even they didn't seem to understand the law.

It appears that someone over there finally figured it out. We'd been waiting a while to hear from the court, and the last thing we'd heard was Rojadirecta/Puerto 80 pointing to Judge Posner's recent ruling about how a site embedding clips from elsewhere isn't infringing. Some copyright maximalists insisted that this had nothing to do with Rojadirecta, and that Rojadirecta would still lose... but not everyone agreed.

Today the government filed a "voluntary dismissal" notice of the case against Rojadirecta.org and Rojadirecta.com. You can see the short dismissal notice below. What's unfortunate, of course, is that the government might now get away with this blatant censorship and disregard for basic due process, without a court ruling showing that it was an illegal move by the feds. In other words: without punishment, the feds may feel free to do this again. This is now the second (and third) example of the government seizing a domain and censoring it for over a year on a very questionable legal theory -- and when the pressure finally gets to be enough, the government turns tail and runs, giving back the domain with no explanation or apology for blatant censorship. That's unacceptable.

Mark Lemley, who was on the legal team defending Puerto 80, told me:

We're obviously thrilled that after 18 months it looks like we will get the domain names back. I think this is a sign that you can stand up for what's right in copyright law and win.

That's true... but just the fact that they had to fight this for 18 months while the government held their domains raises serious questions about the government's actions here. It's probably not worth it for Puerto 80 to pursue things any further, but it's unfortunate that in both cases where people have fought back against the government's over-aggressive seizures of domain names, the government has tried to wait them out... and then finally admitted by default that it was wrong, and handed back the domains.

I expect that we may see a few more such cases as well. Unfortunately, though, we may not get a clear legal ruling telling the government it can't do this -- meaning that they'll be free to continue to abuse their powers in such a manner going forward.

Update: Added the letter that the DOJ sent with the dismissal notice, suggesting that the MyVidster ruling impacted their thinking...

Filed Under: censorship, copyright, criminal copyright law, doj, domain seizures, domains, free speech, ice, rojadirecta, seizures
Companies: puerto 80

Feds Back To Seizing Websites Over Claims Of Copyright Infringement

from the motherfucking-eagles dept

While we've written plenty about the US Justice Department and US Homeland Security (via ICE) seizing various websites on questionable legal authority by claiming they were tools used for criminal copyright infringement, a series of pretty massive screwups seemed to have them, at least temporarily, shying away from such seizures around copyright claims. Huge errors like seizing Dajaz1 for over a year and then having to admit they had no evidence and give it back seemed to at least make them a little less cowboyish about the websites they chose to shut down and censor.

But, of course, this is the federal government we're talking about, and they sure loved the ability to shut down speech without any sort of adversarial hearing or, you know, due process. So you just knew it wouldn't last. The latest is that the feds have seized three more domains (applanet.net, appbucket.net and snappzmarket.com), claiming that they were "engaged in the illegal distribution of copies of copyrighted Android cell phone apps." Indeed, a quick look at the internet archive certainly suggests that these sites advertised that you could get "paid" apps for free if you joined. But does that warrant a criminal investigation and seizure? Perhaps there are more details, but given the sketchy details of earlier seizures, I'd wonder.

But, more to the point, if these sites were really engaged in such things, why wouldn't a civil copyright infringement lawsuit suffice? Why should the government get involved, when it involves completely pulling down a website with no warning, no adversarial hearing and no due process for those accused?

The Justice Department seems to indicate that this sort of thing is now a "top priority," because (apparently) they have way too much free time on their hands:

“Cracking down on piracy of copyrighted works – including popular apps – is a top priority of the Criminal Division,” said Assistant Attorney General Breuer. “Software apps have become an increasingly essential part of our nation’s economy and creative culture, and the Criminal Division is committed to working with our law enforcement partners to protect the creators of these apps and other forms of intellectual property from those who seek to steal it.”

“Criminal copyright laws apply to apps for cell phones and tablets, just as they do to other software, music and writings. These laws protect and encourage the hard work and ingenuity of software developers entering this growing and important part of our economy. We will continue to seize and shut down websites that market pirated apps, and to pursue those responsible for criminal charges if appropriate,” said U.S. Attorney Yates.

“The theft of intellectual property, particularly within the cyber arena, is a growing problem and one that cannot be ignored by the U.S government’s law enforcement community. These thefts cost companies millions of dollars and can even inhibit the development and implementation of new ideas and applications. The FBI, in working with its various corporate and government partners, is not only committed to combating such thefts but is well poised to coordinate with the many jurisdictions that are impacted by such activities,” said FBI Special Agent in Charge Lamkin.

One other tidbit of interest. Unlike the previous seizure disasters, this one appears not to have been led by ICE, but directly by the Justice Department (via the FBI). The announcement doesn't name this as a part of "Operation in our Sites" which seems to be a term specific to ICE's controversial program. Either way, they're still certainly using the eagle-heavy "seized" graphic they love to throw around, so, of course, we'd be remiss if we did not remind folks that they can purchase their very own "seized tee," to show what you think of the government's efforts.

Filed Under: android, apps, doj, domains, fbi, seizures, websites

This T-Shirt Has Been Seized

from the the-eagles-have-landed dept

“Eagles come in all shapes and sizes, but you will recognize them chiefly by their attitudes.”
– E. F. Schumacher

NON GENERANT AQUILÆ COLUMBAS
– Unknown

For the feds, it’s not enough to simply seize domain names without warning or due process—they want to make sure everyone knows the website operators were breaking the law, even if that has yet to be proven in court. That’s why every domain that gets seized ends up redirecting to one of these dramatic warning pages, replete with the eagle-emblazoned badges of the federal agencies involved. You know the one I mean:

I thought eagles were solitary birds—but apparently they'll flock anywhere the RIAA points. At least that seemed to be the case with the hip-hop blog Dajaz1, which was treated to a year of Promethean pecking while the court waited patiently for the RIAA to fail to produce any evidence.

And that's just one of over 700 websites seized without due process. The first round of seizures, commencing the so-called Operation In Our Sites (which I suggest renaming to Operation Motherfucking Eagles), was announced from Disney headquarters, possibly by a tyrannical Mickey Mouse, but more likely by ICE Director John Morton sporting a dumb grin over the presence of whatever movie stars Disney managed to rustle up for the event. It's Chinatown Hollywood. The only place where eagles and mice get along.

To commemorate the fruits of this alliance, I created the Seized Tee for Techdirt's new Insider Shop. Government regulations prevent us from directly replicating agency badges, but that proved to be a plus, since I think I have drastically improved them in terms of both clarity of purpose and, more importantly, overall eagle-ness, which was clearly a prominent factor in their original design:

Buying the Seized Tee also gets you access to the Techdirt Crystal Ball for one year, two First Word/Last Word credits, and an Insider Badge on your profile and comments. Wear it with pride, and when people ask you about it, be sure to tell them that this kind of government censorship is a real thing that is happening as we speak, and it's a problem that's only going to get worse if it goes unchecked. Eagles do not beget doves.

Filed Under: cwf, eagles, eagles eagles, eagles eagles eagles, forfeiture, ice, more eagles, rtb, seized, seizures, t-shirts

Seizing Domains Is Only Training Criminals To Improve

from the wrong-approach dept

"Cybercrime" investigator Rob Holmes has an interesting post arguing that seizing domains is a recipe for making the problems of illegal activity online even worse. He takes credit for being one of the first to suggest that domains could be viewed as "tools" of a criminal, thus making them ripe for seizure. However, he's not impressed by those in law enforcement who are eagerly seizing domains by the dozens -- in part because he thinks it helps actual criminals more than it hurts them:

The reason we are fighting the good fight is to stop people from doing bad things and hold them accountable for their actions. Whether you are enforcing trademark rights or car thefts, this has to be done one person at a time. In 2010 a client asked me what we could take away from the offenders to make them stop. My simple answer was “Their freedom.” Entrepreneurs will always find a way to do business. Bad guys need to be put away to reflect on their actions. Nothing else will stop them. When you take away only the tool, you are training the criminal to improve. I am not in the business of training crooks. Are you?

This, of course, is a different perspective. Most of us have been concerned about the free speech and collateral damage issues raised by domain seizures. But Holmes is making the argument that, even when we're talking about confirmed criminal activity, domain seizures are counterproductive because they're going after a tool rather than those actually responsible.

Filed Under: criminals, domains, seizing domains, seizures

New Bill Seeks To Let DHS Agents Coordinate More With Private Companies In Seizing Property (Like Domains)

from the this-again dept

The federal government seems to have a real blindness for the fact that companies given government-granted monopoly privileges in the form of trademarks, copyrights and patents might seek to abuse those rights beyond what is reasonably allowed. Instead, they seem to assume that private companies will always properly limit any efforts to use those laws against true violators. Of course, we know that's not true, and that such monopoly holders regularly abuse the laws to block or shut down competitive activity or activity that the IP holder just doesn't like. And yet, the government continues to ignore that this happens. Last year, the White House put forth a bunch of suggested changes to IP law, some of which showed up in SOPA.

One of the ones that didn't show up in SOPA has now made its way into a new legislative proposal, H.R. 4216: Foreign Counterfeit Prevention Act, introduced by Reps. Ted Poe and Steve Chabot. The text of the bill seems simple enough. It changes 18 USC 1905, which currently forbids federal officials from revealing to private parties' information that they come across during investigations. The new bill seeks to make an exception to that: allowing Homeland Security/Customs & Border Patrol agents to share pre-seizure info or products with trademark and copyright holders.

Now, on its face, this might make sense. It's a way for CBP officials to ask copyright and trademark holders if their rights are being abused by potentially infringing products. But, as we noted when the White House first asked for this law, this hasn't always worked out so well in the past, in part because copyright and trademark holders are often not particularly truthful when asked if they infringe -- and they rarely, if ever, give any thought to fair use or other legitimate uses of their copyrights and trademarks. In fact, one of the reasons why the federal government screwed up so badly in seizing Dajaz1 was because it relied on bad claims by the RIAA, who insisted that works that were not infringing were infringing. Organizations like the RIAA have little incentive to get these things right. And this bill encourages greater coordination with those private parties?

The simple fact is that infringement is determined not by the copyright or trademark holder, but through a court process and adversarial hearing. Having Homeland Security sharing more info with private companies seems like a situation that is ripe for abuse. We've already seen how Homeland Security sometimes appears to act as the the private police force of certain private companies. Are we sure that we really want to create a situation that encourages more such activities?

Filed Under: coordination, customs, dhs, private companies, seizures

ICANN Confirms That It's Going To Make It Easier For Governments To Seize Domains Around The Globe

from the not-cool,-icann dept

This just gets worse and worse. After pointing out that ICANN was missing a big (and important) opportunity by not speaking out against governments seizing domain names, we were disappointed to see ICANN release a white paper that was more of a how-to manual for governments on seizing domains. Now, Paul Keating points us to the depressing news that ICANN is now publicly saying that it will work more closely with governments around the world to help them seize and censor domains. The writeup is a little vague, but it says that seizing domains for copyright infringement was a "hot topic" at ICANN's recent meeting -- including promises from ICANN that it would work more closely with law enforcement around the globe and the various registrars to help law enforcement be more effective in censoring these websites. This is really unfortunate and once again highlights ICANN's uselessness in protecting the internet. Instead, it appears to be actively working against basic internet principles.

Filed Under: domain names, domain seizures, legality, seizures
Companies: icann