New Laws Will Force Transparency On California Law Enforcement Agencies Starting Next Year

from the here-comes-some-of-that-responsibility-that's-supposed-to-accompany-power dept

Starting next year, California law enforcement agencies will finally be subject to a bit more scrutiny and accountability. For years, law enforcement officers have been able to hide misdeeds behind super-restrictive public records laws -- laws so restrictive even law enforcement's best friends (i.e., prosecutors) couldn't see them.

For the general public, this meant near total opacity. For criminal defendants, this meant rarely having the chance to impeach an officer's testimony by offering evidence of past misconduct or routine untruthfulness.

Over the past few years, efforts have been made to roll back the restrictions built into California's public records laws. All of these efforts died on the way to the governor's desk, most riddled with rhetorical bullets fired by California police unions who claimed making this information public would endanger the lives of bad cops.

The status quo -- in place for the last forty years -- is being disrupted. Two bills have been signed by Governor Jerry Brown, creating holes in law enforcement's law-enabled opacity.

Under the law, records involving “personnel, medical, or similar files of disclosure which would constitute an unwarranted invasion of personal privacy” were exempt from the public. Police records often fell into this category, with officer personnel records - such as use of force violations - subject to additional protection under the law.

Now with two new laws, SB-1421 and AB-748, the public has the opportunity to review records that were once exempt from oversight. Under SB-1421, law enforcement agencies are required to provide public access to records related to use of force, sexual assault complaints, and dishonesty in investigations and reporting of a crime. AB 748, authored by Assemblymember Phil Ting (D - San Francisco), supports Skinner’s bill by requiring the release of body camera footage within 45-days of a critical incident with a 30-day delay if a case is still pending.

The state's police unions are still complaining about the new laws, calling the governor's decision "reckless" and "disappointing." But the Peace Officers Research Association of California (PORAC) goes even further, claiming the law requiring the release of body cam footage will encourage bad behavior by the usual suspects: people protected by the First Amendment.

Brian Marvel, President of the Peace Officers Research Association of California (PORAC), representing more than 70,000 public safety members, said AB 748 creates significant problems by doing the following:

It jeopardizes the privacy of witnesses, which in today's society is exceedingly difficult to have them come forward, given the bullying tactics of certain activists groups.

[...]

It invites the media to interfere with investigations and prosecutions by contacting witnesses, second guessing determinations, and driving a false narrative regarding an incident, all to sell newspapers and get clicks on their websites.

These arguments are pathetic. Anyone arguing their critics are serving up criticism "for the clicks" has already lost the battle. The best way to combat a "false" narrative is openness and transparency. If law enforcement agencies really wanted to set the record straight following a shooting, they'd proactively dump footage and documents. Instead, these agencies spent years hiding behind the state's public records laws, only making long-delayed appearances to claim people criticizing an officer's actions were wrong and were being misled by public enemy #1, the Fourth Estate.

It's likely good law enforcement officers support this transparency. After all, nothing to hide is nothing to fear, as we've been told when rights are about to be violated. Trust is built through transparency and accountability. Law enforcement agencies have never been fans of either, which has directly resulted in the destroyed community relationships they show so little interest in fixing.

Legislation can start rebuilding the trust law enforcement agencies aren't willing to repair. It's perfectly understandable why they'd be opposed to these bills: they do have something to hide and lots to fear. But they're public agencies, funded by taxpayers and supposedly answerable to those they serve. They haven't been. Not by a long shot. But these new laws -- which go into effect at the beginning of next year -- will force agencies to begin addressing their more problematic employees. In the long run, it will work out better for everyone.

Filed Under: california, law enforcement, police, transparency

Six Months Later, People Are Finally Realizing That FOSTA Actually Is Putting Lives At Risk

from the we-kinda-warned-you dept

Before FOSTA became law, plenty of experts in the space tried to warn everyone that a bill that was frequently promoted as being necessary to help "save the lives" of vulnerable women involved in sex trafficking, would actually put more lives at risk. And we've already had some evidence to support that this prediction was entirely accurate. Various law enforcement officials have been complaining that it's now more difficult to catch sex traffickers.

And, now the Associated Press has a big article looking at the impact of FOSTA and it's not pretty. The closing down of various online forums for sex workers has driven more sex workers into the street, where their lives are at significantly higher risk:

Law enforcement in San Antonio arrested 296 people for prostitution between March 21, when the Sex Trafficking Act passed Congress, and Aug. 14, according to a public records request — a 58 percent increase from the same span the year before, when police made 187 arrests.

Phoenix police said they experienced a surge in street-prostitution arrests in 2018 but did not provide figures. In Houston, levels have remained constant, but more 14- to 17-year-olds have been working outdoors since May, said James Dale, a police captain.

Police in Sacramento, California, noted three street-prostitution arrests between March 21, 2017, and mid-August of that year. During the same period in 2018, they recorded 15.

The stories from women who have shifted from using the internet to the streets are pretty harrowing:

Kara Alexander, who lives in Florida, advertised her services on Backpage, Craigslist and other sites before April. When media companies closed down sections hosting adult services ads, she said, she started working on the streets.

In May, she said, a client raped her and poured alcohol in her body in an attempt to destroy evidence. Alexander, 29, said she had faced violence while working online, but never on this scale.

“It’s a different kind of danger,” she said.

A sex worker who goes by Quinn and didn’t want her real name used because she feared arrest and other repercussions said that in the age of the trafficking act, she hasn’t been able to rack up enough jobs. Near the end of April, she started selling herself outdoors in Boston for the first time since she was a teenager, she said.

“There’s no backup plan for people like us,” said Quinn, who said she was raped and beaten in August but could not afford treatment.

There are more stories and information in the full AP piece.

And, again, none of this should be a surprise. Before FOSTA became law, we (and many others) pointed to a recent study that showed how adult ads on Craigslist "reduced the female homicide rate by 17.4%" when it was available. And, to put some context on that number, that's the overall female homicide rate, not just "the female homicide rate of sex workers." Forcing more women into the street is, literally, leading to people dying.

And it is infuriating that this was done by Representatives like Ann Wagner and Mimi Walters who insisted they were doing it to save women's lives, when the reality is that they have only served to put more women in potentially mortal danger.

The AP article also highlights another point that we had mentioned previously: FOSTA is enabling much more trafficking by empowering pimps, while online sites allowed sex workers to avoid needing to use pimps:

Alexander said a friend of hers was attacked by pimps who were incensed she was working without them, and Quinn said pimps have become much more aggressive now that they see a market.

It would be nice if some reporters actually ask Representatives like Ann Wagner and Mimi Walters, or Senators like Rob Portman and Richard Blumenthal how they feel about the fact that the bad law that they pushed for, claiming it was necessary to save young women, has now created a situation where those women are placed in significantly more danger? In the business world, if you push for a proposal, once it's implemented, people check to see whether what you claimed would happen would -- and if it didn't, you're often asked to explain why not. It's incredible that Congress can pass a law insisting it will do one thing, and when it does the exact opposite, no one seems to care.

Filed Under: fosta, law enforcement, police, sex workers

Indian Police Adding Pre-Crime Software To Their Long List Of Snooping Tools

from the mind-your-associations dept

Lots of tech is being deployed by law enforcement around the world -- often far in advance of thorough testing, privacy impact assessments, or public input. Biometric scanning, facial recognition software, cell site simulators, social media monitoring tools, and, of course, "predictive policing."

The last one on the list brings together a bunch of data and tells cops where to go to stop crime before it happens. Pre-crime is no longer relegated to sci-fi movies providing chilling glimpses of a totalitarian future. It's here now and it's converting certain neighborhoods into instant probable cause.

The Chicago PD is only one of several agencies using the software to generate "heat lists" of citizens in need of arresting. There may be no criminal activity occurring when patrols begin, but the algos say it's inevitable, so off the cops go to round up people who may be likely to commit crimes.

India is starting to dip its toes into the pre-crime waters. A new program introduced in Maharashtra will dovetail with the local government's cybersecurity plans, possibly converting the second-largest state into India's leading surveillance state.

The work of enhancing and bolstering cyber security in Maharashtra, started in 2015, is based on five major projects, including developing software to help police department prevent untoward incidents or crimes at specific place and time. The software would work on technologies like Artificial Intelligence and Big Data Analytics, empowered by exhaustive database of crimes and criminal activities, which is now being fed into the system.

SP Cyber, Maharashtra, Balsingh Rajput, who is implementing the state’s elaborate plan to strengthen the IT wing of state police under Special IG Brijesh Singh, said the ‘Predictive policing software’ would use available data sets of police, and open source information available over the internet, to give outputs regarding a probable crime. “Points for location and type of event and probable gang could also be derived well before time using the software,” he said.

The pre-crime software will roll out along with other tools of the tech-law trade. Portable phone forensic devices will be handed out to officers for use in cracking locked cellphones and scraping their contents. New software will allow the police to scan through hours of footage obtained from cameras and drones in a matter of minutes.

This will all be applied on top of India's nationwide surveillance of communications via its "Central Monitoring System."The national government has no qualms about participating in domestic surveillance. That attitude has carried over to the local level, ensuring round-the-clock monitoring of citizens' daily activities in Maharashtra.

Filed Under: india, law enforcement, pre-crime, predictive policing, snooping

Another Prison Phone Service Caught Recording Privileged Conversations And Passing Them On To Law Enforcement

from the criminals-on-both-sides-of-the-bars dept

A few years back, prison communications provider Securus was caught -- via hacker-obtained data -- recording privileged calls between inmates and their legal reps. Yes, ALL CALLS ARE RECORDED, as the sign says, but certain calls shouldn't be. Securus did it en masse, hoovering up 14,000 privileged calls over an unspecified time period. The total could be much higher than that. The data obtained only covered part of Securus' massive network, with 12,000 privileged calls alone in this data dump coming from a single state.

Now, another prison phone company has been caught recording privileged conversations and turning them over to law enforcement.

An Orange County Sheriff’s Department employee revealed this week during a court hearing that the department improperly recorded more than 1,000 privileged phone calls between county jail inmates and their attorneys over a three-year period.

An employee with Global Tel Link Corp., a contractor that oversees the jail phone system, wrote in a July 27 letter to Sheriff Sandra Hutchens — obtained by the Daily Pilot on Thursday — that an update in the company’s system in January 2015 caused “a technical error” that led to 1,079 such phone calls being recorded, in violation of state law.”

In violation of state law. It violates a lot of things, not just state law. But that's OK, state law enforcement was there to make sure laws were enforced.

Senior Deputy District Atty. Cynthia Nichols, the prosecutor in Waring’s case, became aware of the issue during Boston’s testimony Monday in Orange County Superior Court.

Nichols asked him during the hearing whether the Sheriff’s Department has made any effort to contact the district attorney or defense attorneys whose phone numbers and client communications were compromised.

“Not to my knowledge,” [director of inmate services Greg] Boston responded.

The law was broken and no one on the law enforcement side did anything to fix it. That split-second decision made during an rapidly-evolving situation (or whatever) may come back to haunt Boston and his Sheriff's department cohorts. In this mess of 1,000 calls hang 58 serious criminal cases, running the gamut from gang-related charges to the attempted murder prosecution of the offspring of a reality TV star.

The "technical error" was exposed during the trial of Joshua Waring, the son of a star of "Real Housewives of Orange County." Inmate services director Greg Boston testified during this case, exposing Global Tel Link's screwup and the apparent partaking of ill-gotten goods by local law enforcement.

The Orange Court Sheriff's Department claims it instructed the service provider to fix the problem when it discovered it had access to privileged recordings. But that hardly explains how Global Tel Link managed to record 1,000 calls it never should have recorded before someone on either end actually noticed the issue. According to Waring's attorney, the "technical error" went unaddressed for three years, suggesting the OCSD didn't mind having access to privileged conversations, even when it knew the recordings were illegal under state law.

And the official statement from the OCSD covers only part of the problem. Telling the provider to stop intercepting privileged calls is one thing. Deciding to keep this information to itself, rather than pass it on to affected legal reps and the DA's office, isn't nearly so noble or proactive.

Filed Under: attorney client privilege, law enforcement, prisons, recording phone calls
Companies: global tel link

Australian Gov't Floats New Batch Of Compelled Access Legislation With An Eye On Encryption

from the hello-darkness-my-old-friend dept

The Australian government is looking to revamp its compelled access laws to fight encryption and other assorted technological advances apparently only capable of being used for evil. It's getting pretty damn dark Down Under, according to the Department of Home Affairs' announcement of the pending legislation.

Encryption conceals the content of communications and data held on devices, as well as the identity of users. Secure, encrypted communications are increasingly being used by terrorist groups and organised criminals to avoid detection and disruption. The problem is widespread, for example:

• Encryption impacts at least nine out of every ten of ASIO’s priority cases.

• Over 90 per cent of data being lawfully intercepted by the AFP now use some form of encryption.

• Effectively all communications among terrorists and organised crime groups are expected to be encrypted by 2020.

An example of harmful encryption is provided for readers at home, so they can weigh their own security and privacy against an anecdote about a registered sex offender who may or may not have escaped prosecution (the outcome of the case isn't provided) by using encrypted messaging apps. And it includes an inadvertently helpful lesson about the stupidity of targeting encryption with legislation, even if the DHA likely doesn't realize it.

The suspect was arrested and his mobile phone was seized but despite legislative requirements he refused to provide his passcode.

There's the limitation of lawmaking. Lawbreakers break laws and they're not going to stop just because you've told them not to with a government mandate. Legislation [PDF] like this does little more than make life more difficult for service providers and device makers while undermining the privacy and security of millions of law-abiding citizens.

The explanation sheet [PDF] notes the government is not seeking to mandate encryption backdoors. That being said, it would like providers of encrypted services/devices to leave the door cracked open so the government can step inside whenever it feels the need to look around.

The type of assistance that may be requested or required under the above powers include (amongst other things):

• Removing a form of electronic protection applied by the provider, if the provider has an existing capability to remove this protection.

• Providing technical information like the design specifications of a device or the characteristics of a service.

• Installing, maintaining, testing or using software or equipment given to a provider by an agency.

• Formatting information obtained under a warrant.

• Facilitating access to devices or services.

• Helping agencies test or develop their own systems and capabilities.

• Notifying agencies of major changes to their systems, productions or services that are relevant to the effective execution of a warrant or authorisation.

• Modifying or substituting a target service.

• Concealing the fact that agencies have undertaken a covert operation.

The law can't retroactively force companies to produce crackable devices and messaging systems. But the first bullet point could see the Australian government demanding they do so in the future if they want to provide goods and services to the Australian public. Fortunately, the bill includes a clause making future demands along these lines impossible for the time being.

The Bill expressly prohibits technical assistance notices or technical capability notices from requiring a provider to build or implement a systemic weakness or systemic vulnerability into a form of electronic protection. This includes systemic weaknesses that would render methods of authentication or encryption less effective. The Australian Government has no interest in undermining systems that protect the fundamental security of communications. The new powers will have no effect to the extent that requirements would reasonably make electronic services, devices or software vulnerable to interference by malicious actors. Importantly, a technical capability notice cannot require a provider to build a capability to remove electronic protection and puts beyond doubt that these notices cannot require the construction of decryption capabilities.

Without further discussion by the legislature, it's tough to tell whether creating an escrow system would be considered a "system weakness" or make "encryption less effective." I mean, it obviously is and does, but does the DHA see it that way? And will this clause survive the final markup? Compelling decryption using "existing" methods seems especially useless if most services and devices cannot currently be decrypted by providers. The government is better off seeking outside help from contractors who do nothing else but find ways to crack or bypass encryption, rather than dropping language into the law that suggests backdoors the government won't call "backdoors" will be mandated in the future.

It also gives the government a considerable expansion of power, allowing it to peruse private companies' design specs and a heads up if any redesigns are in the works. It also forces companies to be compliant partners in government surveillance by mandating their assistance in man-in-the-middle attacks ("modifying or substituting a target service") and ordering them to withhold information from affected customers.

There is a public comment period, which is a nice touch. There also appears to be some respect for the good encryption does, rather than simply viewing it as an escape route for criminals and terrorists. But there's also a good deal of power expansion tied to rickety wording that suggests backdoors might be mandated if the government can talk itself into viewing proposals as something other than backdoors. And there's no guarantee this vague promise will make the final cut.

Filed Under: australia, backdoors, encryption, going dark, law enforcement, surveillance

New Report Says The Feds' Focus On Device Encryption Is Holding Local Law Enforcement Back

from the get-what-you-can-instead-of-dreaming-about-an-all-access-pass dept

CSIS (Center for Strategic and International Studies) has just released another report [PDF] on device encryption. But there's a difference: this one isn't so much about encryption but what law enforcement isn't doing to access the wealth of digital data available to it. (h/t Robyn Greene)

What CSIS found is there are plenty of powerful tools and options available. The problem -- especially at the local level -- is law enforcement appears to be unsure of how to proceed when seeking digital data. This results in a couple of problems, the latter of which has definite civil liberties implications.

Our survey of federal, state, and local law enforcement officials suggests that challenges in accessing data from service providers—much of which is not encrypted—is the biggest problem that they currently face in terms of their ability to use digital evidence in their cases. Specifically, the inability to effectively identify which service providers have access to relevant data was ranked as the number-one obstacle in being able to effectively use digital evidence in particular cases.

Following closely after that is the difficulty of obtaining data and evidence from service providers if agencies do manage to narrow down where it's located. While there are a variety of federal resources available to train and educate law enforcement investigators about seeking digital evidence, they're underfunded and underutilized.

This lack of education and overall uncertainty is leading to unfortunate results -- both in terms of targeted citizens and the law enforcement agencies hoping to hold onto whatever evidence they may obtain. Overbroad warrants are routine and it's not always the result of a "collect it all" philosophy.

Law enforcement claims... they often lack enough information to know what data is and is not available and make the kind of relevancy determination needed. Put simply, unless law enforcement officials are adequately informed about what kind of data providers have available, they are not in a position to know what there is to ask for—let alone determine if it is relevant. Law enforcement officials also point out that in many cases it is appropriate to ask for “any and all data,” particularly when the universe of available data is sufficiently limited—for example, if the request is directed toward “any and all data” about a particular account and during a specific time horizon.

These broad requests result in pushback from tech company recipients (who, unfortunately, likely understand the law better), which further strains the relationship between service providers and law enforcement agencies. The problem with the law enforcement side is the numbers don't support this perception.

The number of law enforcement requests, at least as directed at the major U.S.-based tech and telecom companies, has significantly increased over time. Yet, the response rates have been remarkably consistent.

The increase in requests has led to an increase in rejected requests as a whole -- which fuels the perception service providers are giving lawmen the figurative finger -- but the percentage of rejected requests (around 20%) has remained constant.

It's not just law enforcement personnel needing more training and info. The lack of training leads to broad warrant requests and subpoenas from law enforcement. These requests should be receiving pushback before they're delivered to service providers. But far too often, they're not receiving enough scrutiny at the judicial level. This is also an education/information problem.

[R]esources should be invested in training judges, in addition to law enforcement officials engaged in the investigative and prosecutorial functions. Judges serve as crucial intermediaries in the request process, ensuring that data requests are lawful and appropriately tailored. Resources should also be expended to train defense attorneys, who also need the ability to access and interpret digital evidence in order to mount an adequate defense.

The broad requests that do make it through post additional issues that are rarely discussed. While FISA court orders authorizing surveillance (including domestic surveillance) stress minimization of non-target info, demands for data from service providers aren't subject to these restrictions. Data/communication dumps can expose a lot of info about non-targets and there's almost zero recourse for non-targets whose privacy has been violated. "Incidental" collection isn't just something the NSA does. It's the inevitable byproduct of overbroad requests and few, if any, rules governing the collection and use of this info.

The report details a large number of deficiencies in the process which has made law enforcement's job far more difficult than it needs to be. Tech advances don't solely benefit crafty criminals. They also aid law enforcement, but there's been no cohesive effort made by the federal government to ensure local agencies can make the most of the tools available. Until this is nailed down, worrying about defeating or bypassing encryption is a waste of time.

That the FBI's director has decided that's how he's going to use his time and energy, suggests the agency -- the most frequent contact for local agencies seeking tech help -- isn't going to prioritize sharing knowledge over seeking legislative mandates. The FBI is hurting itself and others by limiting their ability to do everything they can right now in hopes of getting a law enforcement-sized hole drilled in encryption at some point in the next few decades.

Filed Under: doj, encryption, fbi, going dark, law enforcement
Companies: csis

Bad Bill Would Create A Nationwide Exception To Subpoena And Warrant Requirements For Cellphone Location Data

from the STOP-TRYING-TO-HELP dept

It's a law named after a crime victim, so you already know it's going to be questionable. Federal lawmakers are floating a bill aimed at undermining some of the Fourth Amendment just handed back to us by the Supreme Court. At stake is cell site location info, although in a much more limited amount and in much more limited form. The EFF's Dave Ruiz has more details.

The Kelsey Smith Act (H.R. 5983) tries to correct a tragedy that occurred a decade ago by expanding government surveillance authorities. It is a mis-correction.

The bill would force cell phone companies to disclose the location of a person’s device at the request of police who believe that person is in distress. On its face, that’s not unreasonable. But if the police make a mistake—or abuse their power—the bill offers almost no legal recourse for someone whose location privacy was wrongfully invaded.

This law is named after Kelsey Smith, who was murdered more than a decade ago. Police approached Verizon asking for her cellphone's current location, only to be told they needed to get a subpoena. By the time police had obtained that, Smith was already dead -- killed the same day she was kidnapped. As Ruiz points out, Kansas lawmakers immediately carved out an emergency exception for cell location ping orders, stripping away subpoena requirements. This bill would extend that to all 50 states.

The problem is the bill's wording, which would eliminate privacy protections granted to Americans under the nebulous heading of "emergency." The bill's language contains an expansive definition for the new subpoena/warrant exception, which would definitely cover no one idea of an emergency.

The Kelsey Smith Act allows law enforcement agents to access the location of any cell phone that has dialed 9-1-1 for emergency assistance in the last 48 hours. Almost by definition, that’s not an emergency. Emergencies are of-the-moment crises, requiring immediate responses. If you call 9-1-1 today to request emergency assistance, law enforcement shouldn’t be able to get your location information 48 hours later without showing that the call relates to a current emergency.

At this point, service providers can make judgment calls on demands for location info. A provider can demand a subpoena or warrant first, even if law enforcement claims it's an emergency. These assessments are made on behalf of their customers, protecting their privacy against needless intrusion. If the police need the info, they have the burden of showing cause. This bill would do more than simply reverse the burden of proof. It would do away with it completely, forcing service providers to turn over info any time an officer states it's an emergency.

The problem with granting law enforcement a longer leash in these cases is they've been shown to abuse the permissions they already have. The EFF's post contains statements from the ACLU's Nate Wessler about abuse of emergency exceptions in police departments all over the nation, used in criminal cases involving no real emergencies.

But that's not all. The Justice Department's watchdog has uncovered systemic abuse of the same exceptions by federal officers.

In a 2010 report, the Department of Justice’s Inspector General found systemic misuse of emergency requests for call record information by the FBI. The report found that emergency requests were used in entirely non-life-threatening situations, including three “media leak investigations,” one of which resulted in the collection of telephone records from Washington Post and New York Times reporters.

While nominally limited to phones that have dialed 9-1-1, the exception encourages officers to think outside the Fourth Amendment's box and use the paperless route whenever possible. This isn't speculation. This is what's already happening. At this point, it's still mainly up to service providers to fend off BS demands for location data. If this bill passes, the last barrier will be torn down, turning service providers into unofficial extensions of law enforcement agencies.

Filed Under: 4th amendment, emergencies, exceptions, kelsey smith, kelsey smith act, law enforcement, location info, subpoena, warrants

Appeals Court Says TSA Agents Are Beyond The Reach Of Federal Lawsuits

from the agents-in-baggy-tactical-pants-shouting-'u-can't-touch-this'-forever dept

Well, this is disappointing. The 3rd Circuit Court of Appeals has just made it pretty much impossible to sue a TSA officer, no matter how you've been treated or how many of your rights have been violated. Reuters has the rundown on the decision, which all comes down to the court's definition of the words "law enforcement officer." (via Parker Higgins)

In a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners were not “investigative or law enforcement officers,” and were therefore shielded from liability under the Federal Tort Claims Act (FTCA).

The majority said it was “sympathetic” to concerns that its decision would leave fliers with “very limited legal redress” for alleged mistreatment by aggressive or overzealous screeners, which adds to the ordinary stresses of air travel.

“For most people, TSA screenings are an unavoidable feature of flying,” but it is “squarely in the realm” of Congress to expand liability for abuses, Circuit Judge Cheryl Ann Krause wrote.

Thanks, Judge Krause. I'm sure Congress will get right on that. Seeing as there's no personal benefit to Congress members and ample opportunity to piss off fellow government employees with the power to make their travel experiences closely resemble an abduction by aliens, there's little chance of this being pursued, no matter how many cases are shrugged into their lap.

Here's the background: the appellant (Nadine Pellegrino) was selected for additional screening. She demanded a private screening and things went from bad to worse quickly. Items were carelessly packed and unpacked. Personal belongings were damaged. TSA agents were unhelpful, rude, and apparently deliberately obstructive. Agents claimed Pellegrino "hit" them with her belongings while in the screening room. Not "hit" as in the endpoint of a swing, but "hit" as in things bumped into them while they were dealing with an unhappy traveler. Oh, and she called the two officers in the room "bitches." This is how a bunch of government employees -- starting with the TSA agents -- chose to handle it. From the decision [PDF]:

When the police arrived, Pellegrino was frisked, handcuffed, and arrested. Labbee confiscated her driver’s license and, along with Abdul-Malik, swore out criminal complaints against her. Kissinger offered a witness statement corroborating the allegation that Pellegrino struck Labbee in the leg with her bag. The police escorted Pellegrino out of the airport in plain view of other passengers. She was held for roughly 18 hours and released after her husband posted approximately $400 in bail.

The police incident report stated Pellegrino struck both Labbee and Abdul-Malik with her bags and shoes that she tossed out of the private screening room. It also noted both TSOs suffered from leg pain and a stomach bruise as a result of Pellegrino’s actions.

Did things calm down? Hardly. The Philadelphia District Attorney’s Office charged Pellegrino with ten criminal violations: two counts of felony aggravated assault, see 18 Pa. Cons. Stat. § 2702; two counts of possession of an instrument of a crime (the suitcases allegedly used to hit the TSOs), see id. § 907; two counts of making terroristic threats, see id. § 2706; two counts of simple assault, see id. § 2701; and two counts of recklessly endangering another person, see id. § 2705. (Someone must have taken creative charging and aced the test; either that or there was a lot of lawyer-lounge temporizing.)

That's where this all starts. This is how the 3rd Circuit chose to end it.

The long decision spends most of its running time interpreting various words to the detriment of the public at large. TSA officers enforce laws, detain people, perform searches of both people and their things and yet, somehow, they're not "investigative or law enforcement officers." The court unhelpfully explains the only reason TSA officers are called "officers" is because the agency threw employees an undeserved bone to lift flagging morale.

[A]s we noted previously, TSOs were originally called “screeners,” and their title was changed in 2005 merely as part of an effort to improve employee incentives and “upward mobility opportunities within [the] profession.” Specifically, it appears that the title change and related adjustments were intended to “give TSOs an opportunity to . . . apply for DHS law enforcement positions”—further undermining the notion that TSOs already constitute a species of law enforcement officer.

If we can take any joy from this decision at all, it's the fact that the "promotion" from "screeners" to "officers" was as meaningless as everything else the TSA does. That's the most cynical way to appreciate this decision -- one that decides a whole bunch of words scattered across a few dozen pages somehow alters the fact that these "officers" do stuff associated with law enforcement and investigation, even if they have to turn over actual arrests and bookings to local cops.

Judge Thomas Ambro's dissent highlights how ridiculous -- and ridiculously unhelpful -- the majority's dissembling is.

No other Court of Appeals has gone as far as they do by categorically barring certain classes of individuals (i.e., those who are not criminal law enforcement officers) from the reach of the proviso. Nor has any other Court of Appeals relied on another statute’s and an agency’s classifications to determine whether a federal agent is an “investigative or law enforcement officer” under § 2680(h).14 The majority’s reasoning would allow Congress—and perhaps even agencies—to exempt individuals from the proviso’s reach simply by categorizing them as employees who lack criminal law enforcement powers. See Majority Op. at 43 (citing a TSA directive that discusses the distinctions between TSOs and law enforcement officers). It would also empower courts to disregard § 2680(h)’s statutory definition of “investigative or law enforcement officer” in favor of those terms’ meanings as perceived by the particular judicial panel. Such a rule would allow courts to expand or contract statutory definitions as they see fit.

This isn't any way to run a law shop. But this is the way the Third Circuit runs its jurisdiction. This is its second shielding of TSA officers from federal civil rights lawsuits -- something it says it does reluctantly, but also apparently repeatedly.

TSA officers are empowered to search for violations of federal law and enforce federal travel regulations. However the TSA chooses to define their duties -- and it deliberately chooses to describe them as outside the reach of federal torts whenever convenient -- they are officers of the law and there's even a hint of "investigation" to the work they do. Then again, what do you expect from an agency that defines the airport screening process this absurdly?

The Government [...] contends TSA screenings are not searches under § 2680(h)’s proviso because they are consensual and limited in nature.

They're only "voluntary" in the sense that no one holds a gun to your head and forces you to buy a plane ticket. Other than that, they're mandatory. If you're flying, you're submitting to a search the federal government says lies outside the protections of the Fourth Amendment and, in this case, outside the reach of a federal lawsuit, should a TSA officer steamroll your rights.

Filed Under: 3rd circuit, law enforcement, lawsuits, tsa

More Police Admitting That FOSTA/SESTA Has Made It Much More Difficult To Catch Pimps And Traffickers

from the i-mean,-who-could-have-predicted-it... dept

Prior to the passage of SESTA/FOSTA, we pointed out that -- contrary to the claims of the bill's suppporters -- it would almost certainly make law enforcement's job much more difficult, and thus actually would help human traffickers. The key: no matter what you thought of Backpage, it cooperated with law enforcement. And, law enforcement was able to use it to track down traffickers using online services like Backpage. Back in May we noted that police were starting to realize there was a problem here, and it appears that's continuing.

Over in Indianapolis, the police have just arrested their first pimp in 2018, and it involved an undercover cop being approached by the pimp. The reporter asks why there have been so few such arrests, and the police point the finger right at the shutdown of Backpage:

The cases, according to Sgt. John Daggy, an undercover officer with IMPD’s vice unit, have just dried up.

The reason for that is pretty simple: the feds closed police’s best source of leads, the online personals site Backpage, earlier this year.

“We’ve been a little bit blinded lately because they shut Backpage down,” Daggy said. “I get the reasoning behind it, and the ethics behind it, however, it has blinded us. We used to look at Backpage as a trap for human traffickers and pimps.”

Got that? Just as we noted, Backpage was an incredibly useful tool for police to find human traffickers and pimps. And... thanks to do gooders insisting that Backpage was to blame, now Backpage is gone, and the police can't find the traffickers and pimps any more.

This does not seem like the way to stop trafficking. It seems like the way to make it more difficult for law enforcement to stop it.

“With Backpage, we would subpoena the ads and it would tell a lot of the story,” Daggy said. “Also, with the ads we would catch our victim at a hotel room, which would give us a crime scene. There’s a ton of evidence at a crime scene. Now, since [Backpage] has gone down, we’re getting late reports of them and we don’t have much to go by.”

The article is quite long and detailed -- and, somewhat incredibly -- even gets Sgt. Daggy to admit that he used to complain about Backpage, and then realized how useful it was as a police tool:

Shortly after Indianapolis hosted the Super Bowl, Daggy was invited to give a presentation at the Conference of Attorneys General.

“I was badmouthing Backpage big time,” he said, “because, you know, we were getting all of our arrests off there. We made over 60 arrests and caught four human trafficking cases during the Super Bowl.”

After he presented, Daggy says the website’s lawyer came up to speak to him.

“She came up to me and said, ‘You know, if we shut down, the ads will go offshore and someone else will pick them up,’” Daggy said.

That’s when Daggy started viewing Backpage as a trap – a useful tool for police trying to find victims who rarely self-report, and perpetrators who rarely come out in the open.

Of course, I'm still waiting to hear what all those people who supported SESTA/FOSTA have to say about all of this. Where is Amy Schumer, who put out a PSA in favor of SESTA/FOSTA, now that police are admitting that it's putting women's lives at risk, and that they're no longer able to track down and stop traffickers. Where are all the moralizing people who just happened to also be magically connected to the Hollywood studios who have always wanted to attack CDA 230, but suddenly found a "cause" to use in saying they needed to open up CDA 230 to stop sex trafficking. You guys made a problem much, much worse.

Filed Under: fosta, indianapolis, john daggy, law enforcement, policing, sesta

Threats To Pull Database Access Increasing Misuse Reporting By Cali Law Enforcement Agencies

from the still-more-to-be-done,-unfortunately dept

Who polices the police? They can't be trusted to do it themselves. This much has been proven time and time again as misconduct and criminal behavior is greeted with minimal discipline or graceful exits that allow bad apples to move from barrel to barrel spreading rot.

What oversight actually exists tends to be beholden to law enforcement. In a few cases, truly independent oversight boards are in place, but their efforts are blunted by agencies that rarely hand out the punishment boards recommend or otherwise do everything they can to ensure this oversight is starved for information.

In California -- much like in other states -- abuse of law enforcement databases remains a problem. The EFF has been focusing on this state's efforts to curb abuse, raising it above the zero effort previously expended. This is, unfortunately, possibly one of the better years on record in California, and it still looks like this:

The records obtained by EFF show a total of 143 violations of database rules—the equivalent of an invasion of privacy every two and half days.

These numbers represent the first comprehensive accounting of misuse of the California Law Enforcement Telecommunications System (CLETS). While the acronym is not well known by the public, everyone with a driver’s license or criminal record has information accessible through CLETS. Police and other public safety employees access this sensitive information approximately 2.8 million times a day during the regular course of business.

The EFF's efforts led to a reform effort by the state's Attorney General. New rules were handed down by the California DOJ mandating reporting on misuse of law enforcement databases. The AG swore to "proactively enforce this requirement," and it appears to be having a positive effect.

In 2017, only 704 agencies disclosed these records—approximately 53% compliance. Following an overhaul of the oversight system, in 2018 the Attorney General gathered information from 1,285 agencies—98 percent compliance.

The teeth in the mandate are linked to database access. Failure to comply means revoked access department-wide. Local law enforcement officials aren't going to want to have to hold press conferences explaining their inability to close investigations or whatever because their database access has been severed for refusing to report misuse.

But that's not the end of the line for the state AG. Compliance is way up, but there appears to be some under-reporting occurring. The EFF reports the LAPD -- which has blown off reporting for years -- finally started turning in numbers, but the reporting is beyond belief. The LAPD claims it only had to investigate misuse three times in 2017. This means one of two things: the LAPD's employees are among the finest and most honest in the United States, or lots of misuse is going un-investigated or unreported.

The AG needs to follow up with agencies to ensure the reported numbers are accurate and that investigations are prompt and thorough. Otherwise, it will be tempting for agencies to just hand in their homework every year without making any real changes to discourage misuse of law enforcement databases.

Filed Under: california, clets, database, law enforcement, privacy