As Predicted, Smaller Media Outlets Are Getting Screwed By Australia's Link Tax

from the exactly-as-we-warned dept

Ever since the giant news organizations, led by Rupert Murdoch's News Corp., began pushing the ridiculous idea of forcing Google and Facebook (and often just Google and Facebook) to pay a "link tax," we've been pointing out that while this might be a windfall of free money for the news giants, small news organizations (like, um, us) would likely get totally screwed over. With Australia leading the charge of silliness and passing its link tax, we're discovering that our predictions were exactly correct.

The big Australian publishers, News Corp. and NINE, are making out like bandits, while the smaller publications? Not so much.

A long-term commercial deal between Facebook and Google and Guardian Australia is expected to be completed in a matter of days, adding to a raft of agreements struck between large tech companies and major media outlets since February. While companies like Nine Entertainment Co, News Corp Australia and Seven West Media are already implementing plans off the back of the deals, there is increasing concern among smaller companies that they still have not been remunerated fairly.

Of course, this isn't really surprising. In fact, the real worry should be that the administrative costs for the internet companies to have to figure out how to compensate smaller publishers is so unworthy of the hassle, that those smaller publications will just start to be excluded en masse from Google and Facebook, once again serving the interests of the largest publishers, and not actually helping the cause of journalism at all.

Filed Under: australia, link tax, rupert murdoch, wealth transfer
Companies: facebook, google, news corp.

DOJ Asks DC Court To Compel Decryption Of Device Seized In A Capitol Raid Case

from the be-careful-what-you-ask-for dept

The DOJ is testing some waters it may not want to be troubling, not with hundreds of prosecutions stemming from the January 6 Capitol raid on the docket. It has asked the DC court to compel a defendant to decrypt his laptop so the FBI can search it for evidence. (h/t Marcy Wheeler)

The government is seeking an All Writs Act order [PDF] forcing the alleged device owner to unlock the device using either his face or his passcode.

The government respectfully moves for an order compelling the defendant to produce a critical piece of evidence – his Microsoft Surface Pro laptop computer – in an unencrypted state. The government proposes a two-step process: First, the defendant should be ordered to place his face in front of the computer’s camera, so that the computer can be biometrically unlocked. Second, if the biometric attempt does not unlock the computer, the defendant should be ordered to type his passcode or PIN into the computer.

Having failed to obtain consent, the government is now hoping to achieve this by force. This isn't a particularly wise idea considering how many cases it's currently juggling in this circuit. If the court decides this violates the Fifth Amendment, it may negatively affect other prosecutions involving secured devices.

The government argues there's no Fifth Amendment issue here.

The requested relief would not violate the defendant’s Fourth or Fifth Amendment rights. With respect to the Fourth Amendment, there is only minimal intrusion on the defendant’s privacy, and there is probable cause that the defendant’s face can unlock the Subject Device (and lead to the recovery of relevant evidence). With respect to the Fifth Amendment, Reffitt’s entering his password into the Subject Device does not violate his privilege against self-incrimination, because his act of production would not be testimonial, since the only potentially testimonial component implicit in his act of producing the unlocked/unencrypted device is a foregone conclusion.

This will come down to what the court feels the phrase "foregone conclusion" actually means. While the act itself (either presenting biometrics or providing a passcode) isn't necessarily testimonial, it does give the government access to evidence that might be used against the person being compelled to grant access to this information. At least one court has found that entering passwords and providing evidence are basically the same thing, since the first naturally leads to the latter. The government has no interest in the password, even though that's what it is seeking to compel. It's interested in what having that password entered will provide.

If the only foregone conclusion the government needs to have in its possession is who owns the computer, obviously compelled decryption will help establish ownership. The government appears to know whose computer it is. The Surface Pro targeted by the proposed order displays the name of the defendant (Guy Reffitt) on the screen when opened. And, despite Reffitt (initially) telling investigators otherwise, one of Reffitt's family members confirmed it belonged to the defendant.

Having that much information on hand might be enough to compel decryption if the court decides the only foregone conclusion the government needs to reach is the most likely owner of the device it's seeking to unlock. But if the foregone conclusion bar is set higher -- a likely source of criminal evidence -- things will get much more difficult for the government.

The government is basing this request on the theory that recordings captured at the Capitol by the suspect's helmet-mounted camera were moved to the laptop for storage prior to their deletion from the camera. However, the government seized multiple devices from the defendant's home, including three phones, two other laptops, and one desktop computer. Most of those have been searched already and determined they don't hold any relevant data.

The government is assuming -- based on statements by family members who viewed recordings on that device -- that's where the recordings it is seeking are now located. But it won't know this until after it performs a search. And it can't perform a search until the device is unlocked. This assumption is credible, but the files could have been uploaded to the cloud and viewed on the device, which means the files the government concludes (in a foregone way) must reside on the laptop possibly aren't actually there.

If the court decides the government doesn't have more than a hunch at this point, it may deny this order. And it may decide to lay down some Fifth Amendment ground rules that eliminate compelled production as an option. This is a roll of the Constitutional dice the government may later regret -- a rerun of its failure to compel decryption assistance in the San Bernardino case. But if it goes the other way, it will become that much easier for the government to pursue prosecutions in a district that handles an outsized portion of the DOJ's cases.

Filed Under: 4th amendment, 5th amendment, all writs act, decryption, doj, encryption, facial recognition, january 6th, unlocking

Glitches And Greed Mar Effort To Bring COVID Relief To US Broadband Users

from the band-aids dept

As part of a recent COVID bill, the government announced that folks struggling economically during COVID would be getting some temporary help. Under the EBB (Emergency Broadband Benefit program), U.S. consumers can nab a $50 discount off their broadband bill, or $75 if you live in tribal areas. The program ends when its $3.2 billion in federal funding expires, or six months after the government has declared an end to the pandemic.

To be clear the program is bringing some helpful aid to struggling consumers, with more than 2.3 million users signed up through the voluntary program's 825 participating ISPs. But this being the busted US broadband industry overseen by fairly feckless federal leadership, the efforts aren't going without a hitch.

For one, some ISPs like Verizon exploited the program to force consumers onto even more expensive plans (not too surprising for a company that thought it would be a good idea to cap, throttle, then upsell firefighters during an historical California wildfire). Other ISPs like Charter Communications, Verizon, T-Mobile, and AT&T greatly restricted which plans qualified for the program. A few ISPs, like Charter, rejected users who didn't agree to sign up for more expensive broadband tiers once the program ends. This violated FCC rules designed to prevent bill shock among poor people, but it's not clear the agency did much about it.

Charter and Comcast also appear to be rejecting qualified applicants based on incompetence and some dumb database issues. One qualifying Comcast user, for example, was rejected four times by Comcast despite being approved for the program by the FCC:

"Over the last several weeks, Corsaro said he's reapplied and been rejected by Comcast another three times. He's followed the circuitous trails of automated FCC phone lines that all lead to dead ends and appealed to the kindness of mystified Comcast agents, who have told him again and again that he needs to finish the FCC's verification process. "I keep telling them, 'I've been approved. There's nothing to finish,'" Corsaro said."

Such complaints are common over at Reddit for both Comcast and Charter. Some of the problems stem from something as simple as "street" versus "St." not matching between FCC and ISP databases, something it took several months to notice:

"It turns out even the smallest differences in how people enter their data into the different systems can trip them up — for example, writing Elm St. in one and Elm Street in the other. "We've learned in these early days of the program that the information consumers provide to an Internet provider must exactly match, to the letter, abbreviation, and number, the information they enter in the National Verifier," Comcast spokesperson Joel Shadle said in a statement. He noted that Comcast is "continually working with the FCC and USAC to make the process easy to navigate."

Again the EBB program is certainly a useful, if temporary, band aid, providing immediate relief to millions of Americans. But the program doesn't really do much to address the regional monopolization and lack of competition that makes US broadband so mediocre and expensive in the first place. Nor does it address the fact the Trump FCC gutted its own consumer protection authority because a bunch of telecom monopolies asked them to, using completely bogus justifications (something the Biden administration seems in absolutely no rush to remedy).

Instead of fixing the real causes of US broadband dysfunction (monopolization and the state and federal corruption and regulatory capture that protects it), we seem intent on applying layers of cumbersome bureaucracies on top of the problem. It's like applying a dozen band aids upon a severe arm wound, then wondering why a bunch of plastic strips aren't truly fixing the problem.

Filed Under: broadband, covid, digital divide, discounts
Companies: at&t, charter, comcast, t-mobile, verizon

Daily Deal: The Super Software Engineer Bundle

from the good-deals-on-cool-stuff dept

Software engineers are computer science professionals who use their knowledge and skills in engineering and programming languages to build applications, develop computer games, and run network control systems. This particular job is always in-demand. In the Super Software Engineer Bundle, you'll get 41 hours of video content on IoT, Java, Angular, MongoDB, AI, and so much more. It's on sale for $39.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

No, Facebook's Argument In Response To Muslim Advocates' Lawsuit Is Not 'Awkward'; Facebook Caving On 230 Is What's Awkward

from the so-much-silliness dept

Mother Jones has a slightly weird article saying that Facebook is making an "awkward legal argument" in a lawsuit that was filed against the company by Muslim Advocates, arguing that Facebook and its executives lied to Congress when it insisted that the company would remove hate speech. There's a lot to unpack here, though I'd note that there are two things I find awkward here -- and neither of them are Facebook's legal arguments in the case. The real awkwardness is Muslim Advocates trying to argue that Facebook failing to remove certain content violates consumer protection laws. The second awkward bit is Facebook's constant political posturing about its openness to Section 230 reform.

Let's dig into the case, though. The complaint from Muslim Advocates (and filed by a lawyer who is a long-term critic of Section 230) is fairly straightforward. It says that Facebook's execs have testified before Congress that the company removes content that violates its policies. Yet, when Muslim Advocates alerted the company to content that it believed violated Facebook's policies, the company did not always remove it. Ergo (the complaint says), it means that Facebook's execs lied to Congress... and somehow that violates DC's consumer protection laws.

There's plenty here to roll your eyes about. There is no doubt that (tragically) there is plenty of hate speech on Facebook directed at Muslims (and many other groups). It is also true that content moderation is impossible to do well at scale, and that (1) mistakes will be made and (2) lots of people will disagree with Facebook's interpretation of its own rules. And just because Facebook testifies that if it becomes aware of content that violates its policies, it will take it down, if someone else believes that content violates Facebook's policies, but Facebook doesn't take it down, that does not mean that Facebook lied to Congress. It just means that there are differing interpretations of Facebook's policies, and Facebook is the one who gets to have the final say on that.

The lawsuit, obviously, argues otherwise. I find that argument to be kinda silly. And, if it actually wins the day in court, it would be tremendously problematic for the open internet. Enabling basically anyone to sue a company for not taking down content that the person (but not the company) believes violates policies is a recipe for (1) a ton of frivolous, wasteful litgation and (2) the creation of a near automatic heckler's veto for almost any content online. That would be very, very bad.

Also, the specific claims are kinda weird. How is it a "consumer protection" violation? Well, according to the lawsuit:

The CPPA establishes a right to truthful information from merchants about the consumer goods and services that they provide to people in the District of Columbia.

And thus, because this group claims Facebook lied to Congress, that somehow means that it did not provide "truthful information... about the consumer goods and services they provide." That... is a huge stretch. There are also claims of fraudulent and negligent misrepresentations.

Facebook has responded with two separate motions to dismiss. One is a typical 12(b)(6) motion to dismiss for failing to state a legitimate claim. The second is a separate motion to dismiss under DC's anti-SLAPP law. There are lots of interesting arguments made in both of those filings (some of which overlap), but the crux of the defense is exactly as you'd expect: (1) no one at Facebook said that they'd be perfect in moderating and (2) if Facebook disagrees with some 3rd party about whether or not some content violates Facebook's policies, that's not evidence of any lie.

Billions of people use social media to express themselves, which means that content reflecting the full range of human experience finds expression on platforms like Facebook Facebook agrees with Plaintiff Muslim Advocates that anti-Muslim hate speech is vile, and devotes significant resources to keeping such abuse off its platform based on Community Standards that outline what is and is not allowed on Facebook. Enforcement of the Community Standards requires being aware of potentially violating content, ether through Facebook's own efforts or reports by third parties, and making judgments as to whether that content should be removed as violating the Community Standards. As Facebook has candidly acknowledged, these judgments are subject to disagreement and error, but Facebook remains committed to making its service a place where people feel safe to share with others and express themselves.

Managing a global community in this way has never been done before. Facebook is committed to continuing to improve its enforcement efforts and believes that means engaging Congress and other stakeholders to share and seek input on its policies and practices. As part of this ongoing dialogue, Facebook executives have testified before Congress regarding the Community Standards,

The part of the defense that caught Mothers Jones' interest is that Facebook (correctly) note that this lawsuit is clearly barred under Section 230. And that does seem pretty clear. It's not awkward at all.

...all of Plaintiff's claims are barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (“CDA”), because they seek to impose liability on Facebook for not removing third-party content that Plaintiff believes should be removed. Plaintiff attempts to plead around the CDA by bringing misrepresentation claims, but it is clear from the Complaint that Plaintiff is challenging Facebook's alleged failure to remove certain third-party content that Plaintiff believes violates the Community Standards. These are editorial decisions that go to the core of conduct protected by the CDA.

Mother Jones claims that this is an awkward legal argument because of Facebook's openness to reforming Section 230. But, even for those of us who don't trust Facebook's proposal for reform, there is no indication at all that if Facebook got what it wanted out of 230 reform that this case wouldn't still be barred by it. Facebook's reform proposal is basically that if it engages in best practices regarding content moderation, it still gets 230 protections. And even if Muslim Advocates disagrees, Facebook can make a pretty strong case that it engages in "best practices" regarding content moderation. Indeed, Facebook's proposal also made clear that no reform should punish a company for missing any particular pieces of content.

So, there's nothing in Facebook's legal arguments that goes against its own advocacy regarding 230 reform. So it's difficult to say why that legal argument is "awkward." It's not. It's just Mother Jones trying to spin this into a story -- which is pretty disappointing. Especially considering that Mother Jones has been so active in the good fight for stronger and better anti-SLAPP laws which (as the other filing in this case shows) would protect Facebook here, since this lawsuit seems (also) to be an attempt to punish Facebook and its execs for their speech at Congressional hearings (which is a classic kind of SLAPP situation).

If anything, the "awkward" part is why is Facebook continuing to be so willing to throw Section 230 under the bus, when cases like this (and so many others) show why it totally makes sense and does what it needs to do in making sure that websites can moderate without fear of facing liability for their many, many difficult subjective choices. Of course, we all know the real reason Facebook is doing this: because the politics of the day means that it has to "give" something here since so many people are mad at the company, and Facebook has (unfortunately, probably correctly) realized that if it undermines 230, it can do so in a manner that Facebook can survive, and its smaller competitors cannot.

The rest of the motions to dismiss are worth reading as well, as they deftly call out the silliness of the complaint, including the fact that when Facebook execs say that they remove content that violates policies, that is only after (1) they're aware of it and (2) they, themselves, determine if the content actually violated the policies, something that is inherently subjective:

Contrary to Plaintiff's assertion that Facebook executives represented in Congressional testimony that Facebook removes all content that violates the Community Standards, that testimony makes clear that enforcement of the Community Standards depends on Facebook being aware of potentially violating content and making judgments that are subject to disagreement and error.

As for the argument that this is a consumer protection issue, Facebook notes that that law is about the sale of products, which just doesn't apply here at all:

Plaintiff cannot state any claim under the CPPA because it regulates conduct arising out of consumer-merchant relationships, and Plaintiff does not, and cannot, allege any such relationship with Facebook, or that the alleged misrepresentations were made in connection with the sale of goods or services to Plaintiff or anyone else.

As noted, there's a lot more detail in the filings that is worth reading, but this should give you the gist of both sides of the argument. This lawsuit seems an unfortunately silly one by Muslim Advocates, and frankly undermines the work that the organization does. And, if Facebook wins the anti-SLAPP argument (which is certainly possible), then the organization might even end up on the hook for Facebook's (I'm sure quite expensive, given the multiple well known lawyers it has working on this case) legal bills.

There is one separate thing that is probably worth noting in this case: it does have some similarities to the somewhat infamous Barnes v. Yahoo case in the 9th Circuit, in which the court ruled that via "promissory estoppel," a plaintiff could get around Section 230. In that case, the plaintiff spoke to someone at Yahoo who promised them they would remove some content, but then did not. In that case, the court said that once an employee promised the plaintiff that the content would be removed, the company loses the 230 protections.

However, this case strikes me as notably different in multiple ways (and, of course, is not bound by an already problematic 9th Circuit ruling, since it's in DC superior court). In Barnes, there were not only specific pieces of content that the plaintiff alerted Yahoo to, but then the employee told the plaintiff that the company would "take care of" that content. So that was the promise. Here, the plaintiffs are trying to take broad statements regarding Facebook's content moderation practices to Congress and trying to say that this constituted some sort of binding promise to never be wrong or never disagree with Muslim Advocates' own subjective opinion. And that's just silly.

So, in the end, we have an awkward basic legal argument from Muslim Advocates, and an awkward bit of political posturing by Facebook with its publicity campaign to "reform" Section 230. What is not awkward at all is Facebook's legal response to this silly lawsuit.

Filed Under: congress, consumer protection, content moderation, mark zuckerberg, section 230
Companies: facebook, muslim advocates

Researchers: 2G Connection Encryption Deliberately Weakened To Comply With Cryptowar Export Restrictions

from the endangering-phone-users-in-the-name-of-public-safety dept

Researchers have discovered a backdoor in 2G encryption, one that was deliberately created. As this report by Lorenzo Franchesi-Bicchierai for Motherboard points out, the researchers didn't necessarily know it was deliberate when they discovered it.

Researchers from several universities in Europe found that the encryption algorithm GEA-1, which was used in cellphones when the industry adopted GPRS standards in 2G networks, was intentionally designed to include a weakness that at least one cryptography expert sees as a backdoor. The researchers said they obtained two encryption algorithms, GEA-1 and GEA-2, which are proprietary and thus not public, "from a source." They then analyzed them and realized they were vulnerable to attacks that allowed for decryption of all traffic.

The researchers said in their research paper the backdoor appeared to be deliberate. They reverse-engineered the algorithm, trying to randomly replicate the weakness in the random number generator they'd discovered. They were unable to do so. After observing this, they came to a pretty dead-on conclusion:

This implies that the weakness in GEA-1 is unlikely to occur by chance, indicating that the security level of 40 bits is due to export regulations.

This was confirmed shortly after the paper [PDF] was published.

A spokesperson for the organization that designed the GEA-1 algorithm, the European Telecommunications Standards Institute (ETSI), admitted that the algorithm contained a weakness, but said it was introduced because the export regulations at the time did not allow for stronger encryption.

This algorithm hasn't been in common use for years. The 2G standard has been abandoned in favor of 3G and 4G, eliminating this deliberately induced weakness. Export regulations no longer require deliberate weakening of encryption, so current standards are far more secure.

But even though 2G networks haven't been in common use since the early 2000's, this weakness (which still exists) still has relevance. One of the features of Stingray devices and other cell site simulators is the ability to force all connecting phones to utilize a 2G connection.

Handsets operating on 2G will readily accept communication from another device purporting to be a valid cell tower, like a stingray. So the stingray takes advantage of this feature by jamming the 3G and 4G signals, forcing the phone to use a 2G signal.

This means anyone using a cell site simulator can break the weakened encryption and intercept communications or force connecting devices to cough up precise location data. While law enforcement agencies (including the FBI) claim not to use any features that allow interception, the US is not the only customer for these devices. And there's been no confirmation that any US agency isn't using these to intercept communications they feel aren't protected by the Fourth Amendment, like conversations occurring in other countries (remember: the military had Stingrays first) or close to our nation's borders.

This revelation adds more info to the body of work dealing with the first cryptowar that began all the way back in the 1990s. Back then, the US government considered the export of strong encryption to be a criminal act. The NSA was one of the beneficiaries of this determination. This determination -- and the NSA's input -- resulted in the standardization of weakened encryption by the RSA. Even after the US government abandoned its criminalization of strong encryption, state-sponsored hackers (including our own NSA) were often able to force to force sites and content delivery services to utilize "export grade" encryption rather than stronger options in order to intercept communications and content.

Fortunately, most of that is behind us now. Our communications are now protected by encryption that hasn't been deliberately weakened. But it's still out there. And it can still be exploited by attackers with the right tools.

Filed Under: 2g, backdoor, encryption, gea-1, weakened

Funniest/Most Insightful Comments Of The Week At Techdirt

from the say-what dept

This week, our first place winner on the insightful side is Bloof with some thoughts about Rupert Murdoch's antitrust hypocrisy:

Rupert Murdoch is also against socialism, while pushing for laws in Australia so more successful companies are forced by the government to give his media empire free money.

Rupert Murdoch is against socialised medicine, yet bolted to the UK the moment the Covid Vaccine was made available to his agegroup, shot to the head of the line thanks to his political connections, getting the vaccine before the Queen.

Rupert Murdoch is happy to push antivax BS, yet... See above.

Rupert Murdoch has built his fortune on decrying others as sex offenders and criminals while defending criminals and sex offenders if they make him money or agree with him politically and are still of use.

Rupert Murdoch is a hypocrite and a cancer on western civilisation. Decades after his death, we will still be working out the true extent of the damage his malignant influence has done to the world.

In second place, it's another comment about Rupert Murdoch, this time from That One Guy responding to an Australian official's admission that he came up with the link tax idea and yet it somehow wasn't a favor for him:

'... I don't see it'

'Sure it was proposed by him, and will result in a whole bunch of money being funneled to him with no effort on his part, and it's set up so that if his demands aren't met the government will step in and bring the hammer down and force the other side to pay him, but that doesn't mean it's the government favoring him or anything!'

For editor's choice on the insightful side, we've got another comment about the link tax, from an anonymous commenter responding to the oft-floated idea that internet giants should cut Australia off in response:

Facebook tried that and the idiots decried it as Zuckerberg censorship. It's a lose lose situation either fighting it or going with it. Our tech policy debate have been hijacked by idiots.

Next, it's another anonymous commenter translating a description of the FBI's practices as "warrantless acquisition of other people's property":

Better known as theft.

Over on the funny side, our first place winner is Bobvious with another comment about Murdoch:

In other News

Murdoch Horse and Buggy Company sues Tesla, Demands a Man with a Red Flag Walk in front of them.

In second place, it's Rocky answering another commenter's question about whether or not Devin Nunes claims to have a cow:

I'm mostly surprised the judge didn't have one.

For editor's choice on the funny side, we start out with an anonymous comment about the recent big push for new antitrust legislation and its glaring omissions:

I'm surprised there wasn't a "or owns a themepark" exemption in there too.

Finally, it's Bobvious again with a comment about music copyright issues for video game streamers:

Wait a minute

Isn't everyone going to get DMCA'd by the estate of John Cage for having 4'33'' on endless replay during the streams?

That's all for this week, folks!

This Week In Techdirt History: June 13th - 19th

from the the-style-at-the-time dept

Five Years Ago

This week in 2016, we were learning more about the scope of Peter Thiel's attack on Gawker (and the further exploits of his laywer...) while Gawker was exploring a questionable legal counterattack. The issues with corporate sovereignty in trade agreements were getting more mainstream attention while the paperback version of Hillary Clinton's memoir removed text about her support fro the TPP. Europe was getting ready to create a link tax just as its top court was confirming that copyright levies don't work. An appeals court handed a big loss to record labels in their attack on Vimeo over lipdub videos, while Twitter, Facebook and Google were hit with claims of material support for terrorism following the Paris attacks.

Ten Years Ago

This week in 2011, while some websites were playing pranks by pretending their domains had been seized by ICE, several of the sites that were actually targeted were challenging the seizures — and notable target Rojadirecta sued the US government, Homeland Security, and ICE. But ICE was still stalling on FOIA requests seeking more information about the seizures. And at the same time, China was getting in on the website seizure game while using copyright infringement as an excuse. Meanwhile, a judge was threatening sanctions while tossing out a Righthaven lawsuit, and the Denver Post was sued over its considering taken action, leading Righthaven to threaten them with more suits.

Fifteen Years Ago

This week in 2006, we were bracing for the onslaught of political spam, and also for the inevitable freakout about mobile social media, while rolling our eyes at the latest panic about violent video games. We took a look at how the recording industry had Canadian politicians in its pocket, while the RIAA seemed to be reaching the denial stage of its war on piracy (and opening up a new front by sending out cease-and-desist letters to people dancing to music on YouTube). And while we were glad to see Congress starting to recognize the problem of patent trolls, we were not so optimistic about Rep. Lamar Smith's approach to combating them.

Filed Under: history, look back

Cop Who Led Strike Team Into Wrong House During Drug Raid Granted Immunity By Eleventh Circuit

from the no-precedent-set-so-cops-are-free-to-do-this-same-thing-again dept

In February 2018, 24 armed officers from the Flint Circuit Drug Task Force engaged in the raid of a McDonough, Georgia house. Led by Captain David Cody, the officers deployed flash-bang grenades and forced their way through the door of the house at 303 English Road. Inside, they found only Onree Davis, the 78-year-old owner of the house.

Unfortunately for Davis, who was sitting innocently and non-drug-dealerly in his own home watching the news when it was raided, the task force was supposed to be raiding 305 English Road. But officers on the scene felt the house at the correct address (the same one they'd been investigating and surveilling on-and-off for two years) was "uninhabitable" and decided to try their luck at the house up the street.

Even more unfortunately for Davis, the courts have decided every officer involved in the wrong house raid is protected by qualified immunity. The latest blow to common sense and professional decency comes courtesy of the Eleventh Circuit Court of Appeals, which says the last officer whose immunity was still in question (Captain David Cody) is no longer in question. (via Reason)

The lower court granted Cody immunity for leading the raid to the wrong address, despite the houses having different paint colors, different items in their yards, and different numbers of their houses. The Eleventh Circuit affirms [PDF] all of this, even though Capt. Cody admitted he failed to apprise himself of all the pertinent facts before leading a task force on a violent raid.

Capt. Cody testified that he reviewed the search warrant to make sure it was signed, confirmed it authorized no-knock entry, and confirmed the address matched the address used in the PowerPoint presentation, but admitted that he did not read it “all the way through.”

Not that Capt. Cody was especially careless. The footnote attached to this paragraph makes it clear SWAT team participants are generally more concerned about topping off on bullets and grenades than eyeballing the paperwork that grants them permission to temporarily bypass Fourth Amendment protections.

For the first time in Norris’s reply brief, he argues that whether Capt. Cody read the search warrant is a disputed fact based on Agent Hicks’s testimony that he did not recall any other officers asking to look at the search warrant during the briefing.

I guess this lack of preparedness makes it easier for officers to claim they had to "react" to "rapidly-changing situations" after they've violated some rights. After all, if you can't be bothered to appraise yourself of the specifics of the situation you'll soon be facing, you're bound to be surprised or confused and almost certainly "fear for your safety" when you're right in the thick of it.

A N Y W A Y...

Back to the case.

So, the unprepared Capt. Cody led an unprepared task force into the house of the especially unprepared 78-year-old Onree Davis. But the court says this is fine and worthy of immunity because Cody's task force moved fast and broke stuff, making it more difficult to prevent themselves from acting in error.

Capt. Cody and the other officers involved carefully planned a high-risk raid at what was thought to be a dangerous target house but made a mistake when faced with an unexpected circumstance—the residence not matching the description given. The team was especially limited in their ability to respond to this unexpected circumstance because they had “announced” their presence with flash grenades, it was unsafe to communicate via radio, and they were forced to make a split second decision.

The most charitable reading is that the Eleventh Circuit thinks it's unfair to ask cops to think on their feet when conducting raids that could result in injuries or death. Once a raid is underway, the only way out of it is through it, even if "through" means breaking down the door of the wrong house and pointing guns at a person suspected of nothing.

My uncharitable reading is that this encourages officers to immediately make as much noise as they can when conducting raids because once the "presence" is "announced," they're clear to do whatever they want until they feel the scene is "secure." Cause enough chaos and it will be tough to prove an officer knew better than to do whatever unconstitutional thing they did because what reasonable person could think clearly with all of this [gestures at flashes/bangs] going on.

Capt. Cody armed himself with ignorance and explosives and that's enough for the court to give him permission to duck out of this lawsuit.

While the mistaken raid of Norris’s home was no doubt traumatic, given the significant factual differences between Capt. Cody’s actions in the raid and our prior precedent, we agree with the district court that Norris failed to meet his burden to show that Capt. Cody violated clearly established law.

That's how it ends for the man who suffered this violation of his Fourth Amendment right to be free from unreasonable searches and seizures. All twenty-four officers who participated have been granted immunity and are free to go. And with no declaration that this sort of thing violates rights, officers in this circuit are free to make these same mistakes again without worrying about being held accountable.

Filed Under: 11th circuit, cody davis, flint circuit drug task force, georgia, mcdonough, onree davis, qualified immunity, swat teams