Police Say No Evidence Of Value Was Lost In Ransomware Attack, Except Maybe Some Stuff Defense Lawyers Might Find Useful

from the all-good-on-THIS-side,-assume-same-for-others,-etc. dept

Ransomware is everywhere. And it's affecting everything, including critical systems. Sure, it's kind of humiliating to be locked out of your smart TV, but hospitals are being locked out of patient records and --in a new twist -- hotel guests are being locked out of their rooms.

Then there's something like this, where the chain of evidence is disrupted by ransomware purveyors.

The Cockrell Hill Police Department lost video evidence and a cache of digital documents after hackers invaded the department’s computer system last month.

Stephen Barlag, Cockrell Hill's police chief, said the incident was not the work of hackers, but acknowledged that the incident included a computer-generated ransom demand.

"This was not a hacking incident," Barlag said in a news release Wednesday evening. "No files or confidential information was breached or obtained by any outside parties."

[Rather entertaining to note WFAA's opening sentence is immediately contradicted by the Police Chief's statements. #journalism]

While it's reassuring no evidence was obtained by outside parties, it's not that much more reassuring to hear the owner of the data couldn't access it either. The PD consulted with the FBI before coming to conclusion that the files might still be inaccessible even if it did pay the $4,000 ransom.

The department, however, is not being all that upfront about the possible negative effect this might have on criminal defendants, who might want to challenge the evidence against them or look through it for anything exculpatory. The department -- despite admitting its backup was similarly infected -- claims this is no big deal.

Barlag said of the lost files, “none of this was critical information.”

Define "critical."

"Well, that depends on what side of the jail cell you're sitting," said J. Collin Beggs, a Dallas criminal defense lawyer who has a client charged in a Cockrell Hill felony evading case involving some of the lost video evidence.

This would be video evidence Beggs has been asking for since last summer -- well before the PD's files were wiped out by ransomware. It could be very critical information, despite Police Chief Barlag's assertion to the contrary. What's useful to a defendant is seldom viewed as useful by law enforcement. Hence the difference of opinion.

But even while stating nothing of (subjective) value was lost, Chief Barlag did admit there was a possibility that defense lawyers might be interested in finding out what evidence might no longer be available. And the department may not have made this loss public if it hadn't needed to speak to defendants about its inability to secure relevant evidence.

Barlag said he didn’t know how much of of the digital material lost was evidence in pending criminal cases, but acknowledged that some of it was. He said no cases have been dismissed that he knows of because of the losses.

Well… yet. The infection wasn't discovered until December 12th and the department didn't go public until more than a month after that. So, news that evidence needed in prosecutions may not be available has spread very slowly. And the details of what's recoverable makes it clear that the department values narrative over less-biased documentation. The police reports are retained in hard copy. Any recordings of incidents detailed in these reports are apparently backed up in a more haphazard fashion.

Some of the videos were backed up on CDs, but those that were not are lost.

No police reports, nor any criminal history information, was lost, Barlag said.

Comforting… for the police department. Not so much for criminal defendants, who are going to have an even harder time arguing against "our word vs. yours" assertions -- which cops can back up with police reports while giving defendants nothing at all to push back with.

Filed Under: cockrell hill police department, evidence, hack, police, ransomware, stephen barlag

Court Orders Prosecutors To Stop Dragging Feet On 20k Convictions Resulting From Faked Drug Lab Tests

from the Move-a-bit-faster.-It-is-so-ordered. dept

In 2012, it was discovered that Annie Dookhan, a Massachusetts state drug lab technician, had falsified thousands of drug test results. Perhaps this would have been discovered before it became catastrophic, but supervisors seemed impressed with her productivity and dumped even more of the testing workload on her.

The end result of Dookhan's fakery was a caseload of well over 40,000 convictions that needed to be reexamined. It also resulted in Dookhan being sent to jail for three years. Dookhan is out now, but more than 20,000 of the possibly-tainted convictions still haven't been addressed. This makes it likely there are people still falsely incarcerated while the person who helped put them there is back on the streets.

Presiding over what's left of Dookhan's mess is Massachusetts' highest court. It has been weighing various solutions to expedite the processing of more than 20,000 possibly wrongful convictions. One suggestion is that all remaining convictions be immediately vacated, with the option left to state prosecutors to reopen any they feel are still legitimate.

State prosecutors, however, aren't nearly as willing to see 20,000 convictions overturned. Their suggestion is the complete opposite: that they be allowed to continue doing not much about it while people continue to do time for crimes they didn't commit, or live a less-full life thanks to a bogus felony conviction on their record. In fact, as Fault Lines' Josh Kendrick points out, the DA's office seems to feel wrongful convictions aren't really a big deal.

The DAs argued a majority of the affected defendants might not be interested in a remedy, because there was little adverse impact from a closed chapter in their life. The Court was skeptical of this argument, because it is bullshit highly unlikely anybody wants to keep a wrongful drug conviction on their record out of convenience.

The court thinks even less of the DA's mass mailing attempt to notify those affected by Dookhan's drug lab fakery. From the decision [PDF]:

The shortcomings begin with the envelope itself, which identified the source of the letter as "RG/2 Claims Administration LLC," a source that would appear inconsistent with the words on the envelope, "IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF MASSACHUSETTS." Such an envelope invites the risk that the notice might be unopened and discarded as "junk mail."

Among the shortcomings of the letter itself are that it failed adequately to inform the Dookhan defendants that the Supreme Judicial Court has determined that they are entitled to a conclusive presumption that the drug analysis in their case was tainted by egregious government misconduct. Nor did it adequately inform them that, as a result, this court has determined that they are entitled to withdraw their guilty plea on drug charges if they can show a reasonable probability that they would not have pleaded guilty, and instead would have decided to go to trial, had they known of Dookhan's misconduct.

[...]

The letter also failed to inform the Dookhan defendants that they had a right to counsel if they sought to withdraw their plea or move for a new trial and that, if they could not afford counsel, one would be appointed for them. Instead, it invited them to speak to their original lawyer on the case and, if they did not know how to contact that lawyer, invited them to obtain that information from the relevant criminal clerk's office. The letter also invited them to contact the office of the district attorney who prosecuted them "[f]or more information." It did not provide a telephone number for CPCS or for any other entity that conducts criminal defense.

Not only that, but nearly 6,000 of these letters were returned as undeliverable and the DA's office sent out less than 1,000 second attempts to different addresses. Half-assing its way towards cleaning up thousands of wrongful convictions isn't something the court is willing to let the DA's office continue doing.

The court splits the difference. It's better than allowing the DA's office to slow-walk the conviction rollback, but it's not nearly as expedient as vacating the remaining 20-24,000 convictions. First off, the court puts a strict time limit on the reexamination of the remaining cases.

Upon the issuance of this opinion, each district attorney shall commence an individualized review of every Dookhan case in his or her district that was included on the list that the district attorney earlier submitted to the single justice. No later than ninety days after the issuance of this opinion, each district attorney shall file three letters with the county clerk.

This is something the DA's office has had years to do but still hasn't. Now, it will have to complete this task within the next three months. The first letter would identify any cases where defendants pled guilty before Dookhan signed the drug certification. These defendants would not be given a presumption of egregious government misconduct if their cases are reopened. The second letter would contain a list of any convictions the DA's office has proactively chosen to dismiss with prejudice, whether or not it feels the conviction might hold up under reexamination. The third letter would contain any convictions the state feels would still hold up in court despite Dookhan's misconduct. Recipients of the first and third letters would be given access to public defenders during legal proceedings.

After this face, new attempts to notify Dookhan defendants will begin, with a letter whose content, envelope, and delivery method will all have to be approved by the court.

The mailing should permit a relevant Dookhan defendant to declare, simply by checking a box, that the defendant wishes to discuss with counsel whether the defendant should attempt to vacate his or her drug conviction by filing a motion for a new trial, and should also include a form indigency affidavit for the defendant to fill out if he or she claims to be indigent and therefore qualifies for the assignment of counsel. CPCS is encouraged to draft and include within the mailing a separate letter providing the legal guidance and information that CPCS would generally provide to a relevant Dookhan defendant who would telephone its hotline.

Better still, the court says the prosecutor's office will bear the full cost of these efforts.

The financial burden of notifying defendants of egregious government misconduct that affected their criminal cases must be borne by the prosecuting district attorney's office, even if, as here, the fault belongs to the Hinton lab and Dookhan, not the prosecutors. Therefore, the cost of providing new and adequate notice, including but not limited to the cost of mailing, of locating missing defendants, and of publicity through social and other media, shall be borne by the district attorneys, with the allocation of those costs to be determined by the single justice. We recognize that this cost could be considerable, but that is a consequence of egregious government misconduct that affected more than 20,000 defendants.

And if the prosecutor's' office doesn't like seeing its budget eaten up by these efforts to right the lab's wrongs, it has everything it needs to control the bleeding.

We also note that a district attorney may reduce the amount of this cost by reducing the number of defendants identified in the third letter.

The concurring opinion reinforces this point: stemming the bleeding relies heavily on the state's willingness to vacate convictions:

Just as the success of the Bridgeman II protocol will depend on its timely and rigorous implementation, so too will its viability turn, at least initially, on the willingness of the district attorneys promptly to dismiss with prejudice a truly significant number of the roughly 20,000 relevant Dookhan defendants' cases -- at a minimum, those for simple possession in which sentences already have been served. Not doing so in the first phase of the protocol will of necessity add to the already staggering human and financial costs of the scandal and risk overloading the already strained public defense system.

And it adds this chilling hint of things to come:

In this regard, we cannot turn a blind eye to the potential costs of the looming crisis of thus far undetermined magnitude caused in western Massachusetts by Sonja Farak, yet another rogue chemist employed by a State laboratory.

The dissenting opinion says the route the court didn't take -- immediate vacation of all affected convictions -- is the only correct way to shift the burden where it should be: from the falsely-convicted defendants to the office that convicted them.

Contrary to the court's assessment of the case-by-case procedure offered as the solution to the problem the court is obliged to solve, it is neither the fairest nor the best alternative for remedying the manifest injustice to the defendants caught up in the Dookhan scandal and for restoring the integrity to our criminal justice system. It fails as the "fairest" alternative because it flouts the guiding principle that "in the wake of government misconduct that has cast a shadow over the entire criminal justice system, it is most appropriate that the benefit of the remedy inure to the defendants." [...] It also fails as the "best" alternative because it is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan's tainted evidence. In short, the court's solution is too little and too late.

The court is too timid to adopt the only remedy that's going to save the state from a nightmarish future. A justice hinted there's another set of bogus convictions on the horizon, possibly on the same scale as the Dookhan misconduct. How the hell is the state going to handle concurrent, overlapping attempts to right its drug lab's wrongs? The only way it can stay ahead of the damage done by its drug lab is to do what the court is unwilling to order: begin vacating sentences en masse. But the DA's office seems to believe it's better than plenty of innocent people remain locked up, than one guilty man go free.

Filed Under: annie dookhan, convictions, drug labs, evidence, massachusetts

DOJ, Obama Administration Fight Order Requiring The Full CIA Torture Report To Be Turned Over To The Court

from the don't-touch-our-stuff dept

The Obama administration has responded to calls to declassify the full CIA Torture Report with a "will this do?" promise to lock up one copy in the presidential archives. While this ensures one copy of the full report will survive the next presidency, it doesn't make it any more likely the public will ever see more than the Executive Summary released in 2014.

Other copies may still be scattered around the federal government, many of them in an unread state. The Department of Defense can't even say for sure whether its copy is intact. Meanwhile, an ongoing prosecution in which the defendant is alleging being waterboarded by the CIA has resulted in an order to turn over a copy of the full report to the court.

This order would preserve a second full copy -- with this copy being as close as we've gotten so far to seeing it become part of the public record. Of course, the DOJ is challenging this court order on behalf of the Obama administration, which certainly never intended to participate in this much transparency. Charlie Savage of the New York Times notes (on his personal blog) that a motion has been filed seeking to reverse the court's preservation/deposit order.

[T]oday the Obama Justice Department decided to fight Judge Lamberth’s order rather than comply with it. It filed a motion asking to Judge Lamberth to reconsider his order, arguing that it raised constitutional concerns (interfering with communications between Congress and the executive branch) and was unnecessary anyway given the presidential records thing. And it said that if he didn’t reconsider, the executive branch will appeal.

The judge had ordered a copy to be filed with the Court Information Security Officer (CISO). The DOJ argues [PDF] that this isn't necessary because the CIA has its copy locked up real tight-like.

Reconsideration is appropriate primarily because intervening facts have rendered these provisions unnecessary. As explained below, a copy of the SSCI Report is already being preserved in the Executive Branch under the Presidential Records Act, 44 U.S.C. §§ 2201-2209, and documents underlying the Report have been and continue to be preserved under a 2007 preservation directive issued by the Director of the CIA. Further, no copy of the SSCI Report held by the CIA has been destroyed, nor has any improper destruction of evidence by the CIA occurred since the issuance of the 2007 preservation directive.

True, one copy is being preserved in Obama's presidential archives. But the second assertion is a bit more dubious. While it's technically true the CIA hasn't destroyed any copies of the Torture Report, its oversight has. In May of last year, it was discovered that the CIA's Inspector General had destroyed the copy he'd received, thanks to a string of counterproductive "normal business" decisions.

[L]ast August, a chagrined Christopher R. Sharpley, the CIA’s acting inspector general, alerted the Senate intelligence panel that his office’s copy of the report had vanished. According to sources familiar with Sharpley’s account, he explained it this way: When it received its disk, the inspector general’s office uploaded the contents onto its internal classified computer system and destroyed the disk in what Sharpley described as “the normal course of business.” Meanwhile someone in the IG office interpreted the Justice Department’s instructions not to open the file to mean it should be deleted from the server — so that both the original and the copy were gone.

This prompted Dianne Feinstein to send a letter to someone who should have had an extra copy or three of the Torture Report lying around: CIA Director John Brennan.

As you may be aware. the office of the CIA Inspector General has misplaced and/or accidentally destroyed its electronic copy and disk of the Senate Select Committee on lntelligence's full 6,700-page classified Study of the CIA Detention and Interrogation Program. I write to request that as Director of the CIA, you provide a new copy of the Study to the office of the CIA IG immediately.

Your prompt response will allay my concern that this was more than an "accident." The CIA IG should have a copy of the full Study because the report includes extensive information directly related to the ongoing oversight of the CIA.

The accidental deletion of the IG's copy was possibly in violation of another preservation order stemming from ongoing FOIA litigation. The CIA was under orders to preserve its copy(ies), which means its oversight office should have been doing all it could to ensure its copy didn't disappear. If the CIA somehow managed to destroy its copies of the report, its oversight should have been in position to act as its backup, not to mention come down on it for any acts of impropriety. Instead, it took a copy and immediately -- if possibly inadvertently -- threw it away.

So, while the DOJ may firmly believe in all that is good and right and trustworthy about government officials holding onto damning documents, it can't rule out the possibility of human error. So, to better ensure preservation in accordance with the order, it should be less reluctant to hand over a copy to the court CISO, which would at least shift the culpability should this copy end up missing.

The obvious conclusion is that the outgoing administration (to say nothing of the incoming replacement) is still very interested in keeping the full report from ending up in the public's hands. Delivering a copy to the court makes it a part of the judicial process which, despite its tendency to seal documents and dockets far too frequently, is a much more open process than shuffling copies around from lockbox to lockbox within federal government agencies.

Filed Under: cia, cia torture report, doj, evidence, preservation, torture report

Prosecutors Looking Into $2 Field Drug Tests After Investigation, Figure Defense Attorneys Should Do All The Work

from the THIS-NEEDS-TO-BE-FIXED...-by-other-people dept

The fallout from cheap field drug tests continues. The lab that does actual testing of seized substances for the Las Vegas PD had previously expressed its doubts about the field tests' reliability, but nothing changed. Officers continued to use the tests and defendants continued to enter into plea bargains based on questionable evidence.

The Las Vegas PD knew the tests were highly fallible. After all, the department had signed off on a report saying as much and handed it into the DOJ in exchange for federal grant money. But cops still used them and prosecutors still relied on them when pursuing convictions.

Nothing changed until ProPublica stepped in with its own investigation into the faulty drug tests. In response to this reporting, prosecutors are finally taking a closer look at the tests officers deploy hundreds of times a year.

The Clark County District Attorney’s Office in Nevada established a conviction review unit in October. In what appears to be one of its first efforts, the unit has been seeking information about problematic convictions resulting from one of the office’s routine practices: accepting guilty pleas in drug cases that rely largely on the results of field tests done by police that can be unreliable.

Unfortunately, this initial move is being handled poorly. Rather than have its prosecutors reexamine any cases relying on field-tested evidence, the DA's office is dumping the workload on already-burdened public defenders.

Daniel Silverstein, head of the newly formed unit, in November asked a statewide organization of defense lawyers for any information they had on cases that might have involved inaccurate field tests, and thus resulted in potentially wrongful convictions.

This isn't the defense attorneys' problem. While they're definitely interested in a solution, the wrongful convictions were pursued by the DA's office and its attorneys should be the ones looking for convictions that might need to be overturned. The DA's office has more resources and it is the entity that chose to continue pursuing cases against citizens based on nothing more than unreliable $2 test kits.

Howard Brooks, the Clark County Public Defender’s appellate director, called the district attorney request to defense attorneys “an absurd challenge.” Brooks argued it is the duty of prosecutors to verify the integrity of their convictions — both those that have already been won and those being brokered today in Clark County courts.

Then there's the fact that this examination process won't end up reversing many convictions. As ProPublica points out, seized evidence is routinely destroyed after convictions are obtained. And while lab tests are run on seized substances, that only happens if everyone coordinates to run the samples through as soon as possible. This is something that almost never happens.

Prosecutors routinely delay crime lab analysis to check results of field tests until the eve of trial, court records show. When defendants plead guilty at preliminary hearings, the alleged drugs rarely even reach the lab. In Clark County last year, according to court data, just eight of 4,633 drug convictions went to trial.

Add to that the fact that the PD itself has never tracked the failure rate of its field drug tests, despite having access to this data. It may have signed off on a damning report, but its discoveries about the tests' fallibility changed nothing about its day-to-day business. The drug tests remained in use by the police department and were treated as unquestionable evidence by the DA's office when pushing for plea deals.

About the only immediate positive result of this investigation is the higher bar prosecutors will have to clear before admitting field drug test results as evidence. The state's public defenders are planning to challenge every field drug test submission during evidentiary hearings. Of course, this assumes the judicial process will even make it this far.

For many of the accused, accepting plea deals nets them shorter sentences and a slightly less-awful future than going to trial might. Defendants often accept deals just to avoid actual jail time. On the prosecution scorecard, it still counts as a win. As a bonus, additional evidence possibly pointing to the field tests' abysmal accuracy rate vanishes, allowing cops, prosecutors, and sympathetic judges to continue lying to themselves about the tests' accuracy.

Filed Under: $2 field tests, doj, drug tests, evidence, las vegas pd, nevada

What The US Intelligence 'Russia Hacked Our Election' Report Could Have Said... But Didn't

from the why-didn't-it? dept

By now it's quite clear that many in the US intelligence community believe strongly that Russia tried to influence the US election, and part of that included hacks into the DNC's computer systems, a spearphishing attack on Clinton campaign manager John Podesta's emails and some exploratory surveillance hacking into the computer systems of state election systems (but not into the voting machines themselves). The US intelligence services said it back in October. And they said it again last month. And, they said it again on Friday with the release of an unclassified "incident attribution" report.

Because the debate over this issue has gotten quite silly in some places -- and ridiculously political as well -- let's start with a few basic points: It is absolutely entirely possible that the Russians hacked into all these systems and that it was trying (and perhaps succeeding?) to influence the election. Nothing in what I'm saying here is suggesting that's not true. What I am concerned about is the evidence that's presented to support that claim -- mainly because I think we should all be terrified when we escalate situations based on secret info where the government just tells us to "trust us, we know." And, yes, governments (including the US) have done this going back throughout history. That doesn't make it right.

But here's the thing: there actually is some pretty good evidence that Russia was behind the hack. But here's the crazy thing: that evidence is not in this report, but presented elsewhere. If you keep reading below, I'll point out an example of some pretty compelling evidence that Russia was behind the hack -- and it's the kind of evidence that the US intelligence community could have easily provided, but did not.

And that's where the problems lie. Because very little in this new report provides any evidence at all of Russia doing anything. It certainly goes deep into the motivations for why Russia might want to influence our election. It's also not surprising that Russia might have the ability and expertise to do these things. But it would be nice to see actual evidence. As Lovenzo Franceschi-Bicchierai at Motherboard notes, there's really very little in the new report that we didn't know already:

But this report adds nothing we didn’t already know from public information. The only significant statement is that, yes, American spies are convinced Russian President Vladimir Putin himself directed the hacking and influence campaign—something they already stated in early October.

Marcy Wheeler similarly notes that there's plenty of work on motives, but little on evidence:

What we see of it is uneven. I think the report is strongest on Russia’s motive for tampering with the election, even if the report doesn’t provide evidence. I think there are many weaknesses in the report’s discussion of media. That raises concerns that the material on the actual hack — which we don’t get in any detail at all — is as weak as the media section.

The "media" section is actually pretty ridiculous. It basically notes that RT, the American-targeted TV station owned by the Russian government, has a history of pushing Russian-approved propaganda. Well, sure.

And just one more pointer on this. Former CIA analyst Patrick Eddington also has a really thorough analysis of the report and comes to basically the same conclusions:

While the report provides new and important details on the multifaceted Russian operation, its failure to include declassified primary source data for key claims ensures the controversy has not been put to rest.

So, what kind of evidence could the intel community have provided? Well, Matt Tait, who used to work at the UK's GCHQ, and who now tweets at @pwnallthethings gave a pretty damn good example of digging down into publicly available data to present quite compelling evidence that Russian interests were behind, at the very least, the hack of John Podesta's emails. This is not 100% conclusive, certainly, but it's a hell of a lot more compelling than anything released by the US government: See? That's pretty damn compelling. Perhaps it's not conclusive, but it's a very, very strong argument for why the hack came from Russia. And it's a hell of a lot more compelling that what the US government put out.

I've seen lots of people arguing that the intelligence community couldn't reveal more details because it would "burn sources and methods" that were used to determine the attribution of the hacks -- but Matt Tait did figure all that out with public information (ironically, some of it revealed via Wikileaks). Now, perhaps the intelligence community that hates Wikileaks doesn't want to use that as a "source" in its report. Or perhaps it's something else. And, yes, it makes sense that the intelligence community should not burn sources and methods to reveal stuff like this. But there are ways to present compelling details without compromising those things. But, of course, this is the US intelligence community we're talking about, and they're generally not fans of revealing anything at all. So I'm sure even the details in this report were like pulling teeth. And that's dumb.

Again, more and more of what happens in the world is going to happen via computer systems and networks. And we're not always going to know. But it's a serious problem when governments are escalating situations and making angry posturing moves against one another based on totally secret information where the best we're being told by the government is "trust us." Especially when that very same government has a long history of not being so trustworthy.

Filed Under: election, evidence, hacking, matt tait, russia, us intelligence

Court Says 791 Days Of Warrantless Location Tracking 'Unreasonable," But Refuses To Toss Evidence

from the 4th-Amendment-no-match-for-bad-precedent dept

A confusing and disturbing conclusion has been reached by a New York federal court. The court has decided that 791 days of location tracking with a GPS ankle bracelet is unreasonable, but somehow not worthy of evidence suppression. (via FourthAmendment.com)

Kemal Lambus -- the defendant challenging the evidence -- was granted parole, but with certain conditions. One of those was imposed a few months after his release: wearing an ankle bracelet to ensure he abided by his curfew. This was in addition to the normal amount of diminished privacy afforded parolees, which includes any number of warrantless searches by parole officers.

According to Lambus, there was nothing "voluntary" about the ankle bracelet agreement he signed. He was told that if he didn't, his parole would be revoked. The opinion [PDF] agrees, noting that the state itself refers to conditions "imposed' on Lambus -- a word that implies this was anything but consensual.

Lambus objected to the tracking device, but was told he would only have to wear it for 3-6 months. After that period had expired, Lambus repeatedly -- seven times in the following six months -- asked to have it removed. The six-month figure originally given to Lambus is backed up by the government's contract with the provider.

A record from Veritracks, the vendor that provides GPS monitoring services to NYSDOCCS, indicates that the initial GPS monitoring period was set to last only until November 8, 2013, exactly 6 months after the bracelet was attached.

The court finds the extended search -- 791 days of location tracking -- to be a violation of the Fourth Amendment. While it acknowledges that parolees have a lower expectation of privacy, their Fourth Amendment rights are not null and void until they complete their parole term.

The government argued the tracking was voluntary because Lambus agreed to wear the bracelet. As noted above, the evidence doesn't agree with this assertion. This is only one of the arguments the government made to salvage its warrantless tracking, but the court doesn't find this persuasive.

In the instant case, Lambus’s location was monitored 24 hours a day, every day from May 8, 2013 to July 8, 2015—791 days. In People v. Weaver, the New York Court of Appeals recognized that even if a person has a diminished expectation of privacy in a car traveling on a public road, continuously tracking the car through use of a GPS monitoring device was a “massive invasion of privacy” that was “inconsistent with even the slightest reasonable expectation of privacy.” Here, too, the “massive invasion of privacy” by continuous GPS surveillance vitiated Lambus’s reasonable expectation of privacy, even if such an expectation was “slight.”

The government's other arguments didn't fare any better. The purpose of the tracking device shifted from curfew violations to drug trafficking before law enforcement actually came across any evidence suggesting Lambus might be involved. The Appeals Court may have done away with strictly separating law enforcement and parole officer searches by eliminating the "stalking horse" concept from circuit case law, but the record still indicates the bracelet was left on Lambus for law enforcement purposes, rather than simply to verify his adherence with his parole conditions.

Lambus knowingly had a GPS tracking device placed on his ankle on May 8, 2013, not because he was expected of any criminal wrongdoing, but to monitor whether he was abiding by the curfew condition of his parole.This purpose shifted as federal law enforcement began using the location data to build a narcotics trafficking case against a dozen individuals. His ostensible supervisors, NYSDOCCS, took no actions against him despite, presumably, possessing evidence of criminal wrongdoing.

The last sentence shows NYSDOCCS had conceded control and surveillance of Lambus to federal and local law enforcement by that point.The court acknowledges that law enforcement and the supervision of released prisoners often contain intertwined "special needs," but those don't outweigh the massive, lengthy privacy violation that occurred here.

The more intrusive the search, the deeper the coordination between the agencies, and the more wide-ranging the web of criminal activity the search seeks to detect, the less substantial the relation of the search is to the supervision of the parolee being searched. The longer the search, the more likely it is to be “seeking contraband or evidence in aid of prosecution for criminal activity” (id. at 798) for the purpose of “uncover[ing] evidence of ordinary criminal wrongdoing.” Such a search could not be justified under the tent of the “special needs” doctrine.

The court is clearly disturbed by the government's actions.

Pinpointing exactly when Lambus’s electronic monitoring crossed the line from a supervisory search to a general law enforcement search is difficult. That the line was crossed during the two years seems clear. Parole officers must serve the community at large and the parolee, a dual responsibility requiring facilitating a parolee’s rehabilitation, if possible. Allowing a parolee to knowingly violate both the conditions of his parole and the law—for months and months on end—betrays both of the constituencies the parole officer is supposed to serve by sacrificing rehabilitation for recidivism in aid of public protection.

A state cannot use a parolee as a sort of fly paper, trailing him around the community for years, trolling for criminals. If the state wishes to search someone for the primary purpose of furthering a deliberate effort to gather evidence as part of a wide-ranging criminal prosecution, the “warrant and probable-cause requirement is not…‘impracticable’”; the search cannot be justified as a “special need,” even if the searchee is a parolee.

And yet, the court is unwilling to suppress the evidence. Because it can't find exactly where the state crossed the line from "supervisory" to "law enforcement search," it falls back on the Appeals Court's nullification of the "stalking horse" legal concept.

The unequivocal language in these two decisions—Reyes and Newton—created a binding appellate precedent that police involvement with a warrantless search of a parolee does not stamp the search as unconstitutional if it was initiated by a parole officer pursuant to a legitimate supervisory objective.

If the court can't see where to draw the line, it sucks for the defendant.

In the instant case, the search was initiated by NYSDOCCS to monitor Lambus’s adherence to his parole conditions; specifically, his curfew. This is a legitimate supervisory objective. The decision by NYSDOCCS and the federal agents to coordinate subsequently was reasonable given the Court of Appeals’s Reyes and Newton decisions. Neither the NYSDOCCS officers nor the federal law enforcement officers behaved inappropriately. There would therefore be little deterrent value in excluding the evidence. The court declines to suppress the location data evidence.

So, while the court may say the government can't use parolees as criminal activity "fly paper," its decision basically says the state can… at least up until the point the Appeals Court decides to revisit this issue.

The instant case is, however, distinct from Reyes and Newton in striking ways that may prompt the courts to revisit their jurisprudence in this area in a more generous future case.

The court also points out that not having a lawyer to represent you means not having as many rights -- yet another way the criminal justice system is broken.

If Lambus had been represented by counsel during his parole, he might have challenged NYSDOCCS’s decision to subject him to this continuing search for such a long duration. Individuals who lack counsel are left in the lurch when attempting to remedy violations of rights to their privacy. It is an unfortunate and common occurrence in our country that rights without counsel are no rights. In a case like the present one, where the invasion of privacy is so substantial and the government’s purpose is so questionable, a search is likely unreasonable and therefore unconstitutional at some point.

But for the lack of counsel…

The court does not reach that issue in the instant case.

This decision can be blamed on bad precedent, and the lower court is in no position to override it. The opinion here appears to be the "inevitable" one, rather than the one the court really wanted to hand down. As it stands now, state and federal law enforcement can piggyback on parole conditions with little to no fear of repercussion.

(Also of note: the opinion does suppress evidence obtained with an illicitly-obtained wiretap warrant -- something that was only admitted after the court questioned the discrepancy between the officer's testimony and his sworn statements in the affidavit.

In the instant case, the omission was not “inadvertent;” it was knowing. The Special Agent testified that despite having been an affiant in previous wiretap applications, he did not know that he needed to check for prior wiretap applications related to all the target interceptees. This mistake alone, despite precedent to the contrary, may have constituted mere inadvertence. But this was not the Special Agent’s only error. The HSI agent swore that “a check of federal law enforcement databases, including FBI, DEA, ATF, and HSI databases, indicate that there have been no prior application seeking Court authorization to intercept the wire, oral, or electronic communications of the Target Subjects or over the SUBJECT TELEPHONE.” Jan. 9, 2015 Aff. at ¶ 24 (emphasis added). When he swore to this statement, he knew it was false. This was not a “misunderstanding." It was perjury.

The case was filled with sketchy law enforcement behavior, but the multiple agencies involved are still able to salvage most of their evidence thanks to some questionable case law.)

Filed Under: 4th amendment, evidence, unreasonable, warrantless tracking, warrants

FBI Dismisses Child Porn Prosecution After Refusing To Hand Over Details On Its Hacking Tool

from the extreme-tactics,-voluntary-dismissals dept

The FBI has decided to let one of its Playpen defendants walk rather than turn over information on its Network Investigative Technique. The NIT, deployed all over the world on the back of a single warrant obtained in Virginia, unmasked Tor users by dropping code on Playpen visitors' computers that sent back IP addresses and other information about the user's computer.

The warrant itself has been ruled invalid by a number of judges presiding over Playpen prosecutions, although not all of them have determined that the evidence obtained by the NIT should be suppressed. The FBI not only sent malware to site visitors, but it also ran (and possibly improved) the child porn website for two weeks while pursuing its investigation.

Michaud's lawyer asked the court to force the FBI to hand over information on the NIT. The FBI countered, saying it wouldn't turn over the information even if ordered to do so. Judge Bryan, after an in camera session with the agency, agreed with the government that there was a law enforcement need to keep the details of the tool secret. But he also made it clear the government couldn't have both its secrecy and its evidence. He ordered all evidence suppressed.

With all evidence deriving from the forced exposure of Michaud's IP address, there was nothing left for the government to work with. It could have voluntarily turned over information to Michaud's defense lawyer for examination, but has chosen instead [PDF] to let Michaud go free. (h/t Andrew Crocker)

On June 23, 2016, the United States Attorney’s Office for the Western District of Washington filed a protective Notice of Appeal to preserve the right of the United States to pursue an interlocutory appeal of the order of the district court granting the defense motion to compel and finding, as a remedy for the refusal to comply that the evidence of the Network Investigative Technique (NIT), the search warrant issued on the basis of that evidence and the fruits of that search should all be suppressed.

Upon further review within the Department of Justice or the Court’s order and the record in the case, the United States has concluded that this appeal should not be pursued. It is for that reason that the United States now respectfully requests that this appeal be dismissed.

The FBI is developing quite the reputation for dropping prosecutions in the face of challenges of its secret tools and techniques. The NDAs it hands out to every law enforcement agency seeking to purchase Stingrays not only tells them to obscure the device's use, but to let suspects walk if it seems some of this info might make its way into the courtroom.

What's more problematic here is the FBI/DOJ's two-faced stance on these issues. The FBI argues in court (often obtaining the court's agreement) that these questionable tactics (deploying malware, warrants that ignore jurisdictional limits, running child porn sites rather than shutting them down, etc.) are justified because the people it's going after (child porn viewers/distributors) are that terrible. But then it turns around and lets the very bottom of its basket of criminal suspect deplorables go free rather than hand over information to the defense. It does this even though the defense, the judge, and the DOJ would do all they could to protect as much of the NIT information as possible, including sealing documents and redacting those that are published.

Fortunately, the judge presiding over this case wasn't going to let the FBI have 100% secrecy and 100% of the derived evidence. And that has resulted in a voluntary dismissal of someone the government clearly felt was enough of a criminal menace that its extreme tactics were justified.

Filed Under: child porn, doj, evidence, fbi, hacking, jay michaud, nit, playpen

Judge Tells DOJ It Can't Un-Suppress Evidence By Starting The Indictment Process All Over Again

from the if-at-first-you-don't-succeed,-upend-the-Bill-of-Rights dept

Sure, we like the DOJ when it's handing down scathing reviews of local law enforcement agencies and belatedly issuing warrant requirements for IMSI catchers, but we're not nearly as thrilled when it argues against warrant requirements for cell phone searches, demands backdoors in phone encryption, or beats mild miscreants over the head with the CFAA.

In fact, there's very little to like about the DOJ outside of its civil rights division. Here's yet another reason why the Department of Justice often seems like a misnomer. (h/t Brad Heath)

A decision [PDF] has been handed down by a federal court in Puerto Rico, presumably with an eyeroll and an exasperated sigh.

In 2014, Homeland Security agents searched Jose Silva-Rentas without reasonable suspicion, probable cause, or a warrant. Silva happened to be next to somebody HSI agents did search with probable cause. Rentas moved to suppress the evidence and the court agreed that the government's theory of probable cause osmosis wasn't enough to salvage the search.

The government makes much of Colón's unwise response to the agents' arrival, arguing that his evasive (and criminal) conduct not only gave rise to probable cause for his arrest, but also provided the agents with grounds to arrest Silva and the other individuals in the area. But probable cause as to one individual does not necessarily extend, as though by osmosis, to those in his company. It "must exist with respect to each person arrested, and `a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to [arrest and] search that person.'"

The government then tried to salvage the results of the search with a motion for reconsideration. This was also denied. The court here found the tip from a confidential informant too unreliable to form the probable cause needed for the detention and search of Silva.

The government moves for reconsideration, claiming again that the agents relied on trustworthy confidential sources. In this regard, it points out that the confidential sources' identities were previously known to Agent Clemente, and that the sources had provided reliable information on illegal activities allegedly carried out by members of Silva-Rentas' drug trafficking organization. The motion, however, is silent as to how the agents were aware of the confidential sources' identities, or what reliable information they previously provided.

They may have been denied twice by the same judge, but federal prosecutors weren't going to let the judicial system stand in the way of a conviction. So the did they only thing they could do, which turns out to be the sort of thing they can't actually do: they rang Rentas up for a completely identical prosecution.

The DOJ's lawyers tried to find a gap in case law to exploit, hoping that some sort of technicality (it's great when it works for the home team, right?) would allow it to use evidence already suppressed by the same court to pursue a second prosecution against someone it had already dismissed charges against.

The Puerto Rico court -- entertaining the same prosecutors and same defendant for a second time -- isn't amused by this ploy. It cites the case law the DOJ's lawyers should have read before making their Double Jeopardy Lite maneuver.

Here, the prosecuting entities in the case before Judge Delgado and the case at bar are identical. Federal prosecutors litigated Defendant’s prior suppression motion and prosecutors from the same office are litigating the instant motion. Further, both parties had a full and fair opportunity to be heard on the matter during the prior case as the Motion to Suppress was filed on December 30, 2014 and the matter was not fully disposed of until August 27, 2015 when Judge Delgado denied the United States’ Motion for Reconsideration of the Court’s ruling suppressing the evidence. Between the two dates, Judge Delgado analyzed the parties’ briefs, held an evidentiary hearing, and published a detailed opinion with findings of both fact and law. Thus, the parties were fully heard on the issue and the Court adjudicated the matter through a valid and final on the merits.

The government argued that "final" doesn't always mean "final." The court disagrees.

[I]n his prior case, Defendant was indicted on several charges relating to possession of weapons by a convicted felon and possession of a machine gun. Soon after the ruling suppressing the search and seizure which yielded weapons on Defendant’s person, the United States moved to dismiss all charges against Defendant. For the Court to now find that Judge Delgado’s detailed ruling suppressing all firearms seized from a defendant charged with possession of said firearms is not essential to the judgment of dismissal would be nonsensical. Accordingly, the Court finds this element has, too, been satisfied.

As the court points out, to buy into the DOJ's argument would be to allow it to go judge shopping repeatedly until it found a court willing to admit evidence a court had previously suppressed.

To hold to the contrary would imply that the United States is afforded infinite opportunities to use previously suppressed evidence against a defendant in subsequent proceedings in separate cases. This would also allow the United States to reargue admissibility of evidence in perpetuity until they find a judge that holds the evidence admissible. Obviously, that would not be in tune with the Constitution’s protections against Double Jeopardy nor the Fourth Amendment’s prohibition against unreasonable searches and seizures.

The DOJ probably isn't thrilled its arguments have been boiled down to a latent desire to overturn Constitutional protections and pursue multiple prosecutions for the same criminal allegations, but that's what its arguments are when all the legalese prettying it up is stripped away. This is the DOJ's farcical interpretation of the word "justice."

Filed Under: doj, evidence, jose silva-rentas, probable cause, warrant

Appeals Court Dumps Infringement Lawsuit Against EA After Plaintiff Fails To Produce Evidence

from the well,-I-have-lots-of-hearsay-and-conjecture... dept

The Ninth Circuit Court of Appeals has affirmed [PDF] the dismissal of a copyright infringement suit brought against Electronic Arts by Robin Antonick, a programmer who worked on the Apple II version of the game Madden back in the mid-80s.

Antonick was locked out of royalties for other versions of the game by the software company, but alleged Electronic Arts did nothing more than copy his code when porting it to other platforms -- creating a "derivative work" that he was supposedly entitled to collect royalties on. Antonick might have had a case. But while allegations are nice…

In 2011, Antonick brought this diversity action against EA, seeking contract damages in the form of unpaid royalties for Sega Madden and Super Nintendo Madden. [...] Antonick produced evidence that Park Place was rushed and inadequately staffed, and argued that it copied his code to meet the demanding deadline for the first Sega Madden. Antonick’s expert, Michael Barr, opined that Sega Madden was substantially similar to certain elements of Apple II Madden. In particular, Barr opined that the games had similar formations, plays, play numberings, and player ratings; a similar, disproportionately wide field; a similar eight-point directional system; and similar variable names, including variables that misspelled “scrimmage.”

…evidence is better.

But neither the source code for Apple II Madden—the “Work”— nor the source code of any allegedly infringing works were introduced into evidence. Nor were images of the games at issue introduced.

Not that evidence (or a lack thereof) apparently mattered to the jury. It found that EA had created a derivative work with its Sega version of Madden, but the court found (post-verdict) that Antonick had not produced any evidence clearly pointing to copyright infringement. Without that evidence, Antonick is out of luck when it comes to his contract/royalty claims.

Antonick tried to route around this obstacle by claiming EA had both the opportunity and the motive to copy his work. On top of that, he tried to pursue this as a "look and feel" case while still relying on the supposedly-copied code as the basis for his claims. The Ninth Circuit found these arguments -- and Antonick's witness -- unpersuasive.

[T]he lay testimony was about how the games appeared, not how they were coded—and Antonick does not assert a copyright interest in Apple II Madden’s audiovisual appearance, only in its coding.

Antonick argues that copying was shown by testimony of Michael Kawahara, an Apple II Madden assistant producer. When asked whether he recognized any of the plays in Sega Madden from Apple II Madden, Kawahara answered affirmatively, stating that “[it] was – well, since the interface was – well, it was the same as we used in the Apple II. It was very easy to look at all of the plays in the Genesis version and they looked identical . . . to the original Apple II version.” This comment, however, does not establish that the source code for the two games were substantially similar. Kawahara had no programming responsibilities for Apple II Madden; did not understand the Apple II Madden code; did not see the Sega Madden code; and admitted that he had no knowledge about differences in the games’ codes.

A statement entered into evidence by the plaintiff -- introduced to back up Antonick's claim about EA's motive/opportunity to copy the source code -- only made the case weaker.

Antonick also cites a statement by Richard Hilleman, an EA representative, that it was “possible” he had told an interviewer that “the Sega game took the system’s approach from Mr. Antonick’s game and just simply put a different aesthetic on top of it.”

This is an area that often trips up those deeply reliant on IP protections but surprisingly uninformed about what those protections actually cover. The Appeals Court straightens out this popular misconception.

But, an “approach” is an idea that cannot be copyrighted—only its expression in code is protectable—and Sega Madden could have used Apple II Madden’s “approach” to football video games without violating the copyright laws.

That's the minor failure of the suit -- mistaking ideas for expression. The ultimate failure is Antonick's inability to back up his assertions with actual evidence. Infringement claims with no evidence presented pushed Antonick into resorting to "look and feel" claims, which are notoriously difficult to turn into courtroom victories.

Filed Under: copyright, evidence, infringement, robin antonick
Companies: ea, electronic arts

Jayme Gordon Guilty On All 4 Counts Of Wire Fraud In Scheme To Sue Dreamworks For Copyright Infringement

from the wires-crossed dept

It was somewhat breathtaking back in 2011 to see the multiple accusations of copyright infringement brought against Dreamworks' movie Kung Fu Panda. While none of the suits appear to have stuck, the case brought by Jayme Gordon stood out, first because it certainly looked, based on his evidence, that he had a somewhat strong case, and then later it became clear that his evidence against Dreamworks was actually a bullshit con he'd trumped up after likely infringing on previous works by Disney. The quick version of the story is that Gordon altered some drawings he'd done previously to look more like artwork in a trailer he saw for Kung Fu Panda, where those original drawings were essentially recreations of art from a Disney coloring book. He also tried to hide all of this by deleting files off of his computer so that they wouldn't be found during discovery, an endeavor that worked about as well as a flotation device made entirely out of stone. Jesus, this world is a strange place in which to live.

Regardless, as Tim Cushing noted in his post above, the U.S. Attorney's Office in Boston filed wire fraud charges against Gordon because his attorneys emailed requests for discovery and settlement offers across state lines as part of his scheme. These charges, which come from the same office that prosecuted Aaron Swartz, looked for all the world like charges stacking. Except this particular U.S. Attorney's Office tends to follow through on the charges.

Which brings us to the present, in which Gordon has been found guilty on all four wire fraud charges and is in serious trouble.

Jayme Gordon, 51, was convicted today by a federal juryon four counts of wire fraud and three counts of perjury. U.S. District Court Chief Judge Patti B. Saris scheduled sentencing for March 30, 2017. The charge of wire fraud provides for a sentence of no greater than 20 years in prison, three years of supervised release, a fine of $250,000 and restitution. The charge of perjury provides for a sentence of no greater than five years in prison, three years of supervised release and a fine of $250,000.

Let's be clear that the wire fraud charges, when compared to how other U.S. Attorney's Offices tend to handle these things, are purely punitive. The manner in which these offices tend to prosecute wire fraud is one fraught with variance. It tends to come down to whether or not that particular office really wants to hammer the defendant, rather than the law being equitably applied across the entire constituency. Put another way: isn't the five years in prison and quarter-of-a-million dollars fine ample punishment for what Gordon did?

However you want to answer that question, it seems likely that his sentence will be far greater than that. Even if he serves a fraction of the possible 25 years in prison, it's likely to be in the double digits. Gordon is by no means a likable character, but that seems out of whack.

Filed Under: copyright, evidence, fraud, jayme garcia, kung fu panda, wire fraud
Companies: disney