Judge Says Trump 'Witch Hunt' Tweets Can't Beat DOJ's Glomar Response On FBI Investigation Documents

from the official-statements-v.-rambling-discourse dept

A federal court has decided public statements -- including a handful of tweets -- from President Trump aren't enough to undercut the DOJ's Glomar response about the existence of investigation documents. The James Madison Project, along with journalist Josh Gerstein, have been seeking documents confirming (or denying) President Trump himself has been or is currently the target of a DOJ investigation. (h/t Mike Scarcella)

The DOJ has refused to answer the question or provide documents asserting anything one way or the other. Instead, it has told the plaintiffs it can neither confirm nor deny these documents exist. The DOJ is using FOIA Exemption 7(a) to support its Glomar, which covers documents whose release could "reasonably be expected to interfere with law enforcement proceedings."

One would think the use of any FOIA exemption would indicate sought documents exist. But the DOJ continues to insist it can't even verify the existence (or nonexistence) of these documents without undermining an investigation it is or isn't engaged in.

The plaintiffs argue the DOJ cannot continue to express itself in the form of a Glomar -- not after President Trump himself appears to have confirmed he's a target of an FBI investigation. The court notes it's not impossible for government officials to undercut Glomar responses with public statements, but what the plaintiffs have gathered as evidence isn't enough to overcome the exemption. From the opinion [PDF]:

Plaintiffs base their case solely on statements made by President Trump, including some of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist based on the President’s summaries of conversations he had with the former FBI director as well as a number of vague, and sometimes hostile, comments made on social media concerning the investigation.

In addition to Trump's strange insistence that former FBI Director James Comey told him "three times" he wasn't under investigation (in his letter to Comey informing him he'd been fired), the plaintiffs point to a television interview where Trump reiterated his "three times" claim, and a number of tweets about "witch hunts" issued by the president.

The court notes there's a lack of specificity in Trump's public statements. Trump's claims he was told multiple times he was not under investigation doesn't necessarily indicate the DOJ or FBI hold records containing this information. Trump supposedly received this info from Comey three times in three different personal conversations with the FBI director -- none of which required official documentation.

The tweets are, unfortunately, not very precise either. As the court points out, "rambling" emissions during early morning hours are hardly hard proof the FBI/DOJ have records pertaining to investigations/non-investigations of President Donald Trump. The court makes it pretty clear Trump's tweets should not be read as official statements confirming the existence of anything.

As stated before, an official acknowledgment cannot be based on “public speculation, no matter how widespread.” Here again, plaintiffs admit that President Trump’s exclamations were sparked by information disseminated by the press, rather than government documents, so those tweets cannot constitute an official acknowledgment.

Plaintiffs argue that the problem is cured in this situation because the President’s tweets officially acknowledged the “authenticity” of the leaked questions. That is quite a stretch. The President complains that it was “disgraceful that the questions concerning the Russian Witch Hunt were leaked to the media.” Other than the use of the phrase “the questions” (emphasis added), the tweet does not confirm or even imply that the published list is accurate. The Court is reluctant to place so much emphasis on the President’s choice of a single article in a rambling set of comments issued at 4:00 in the morning.

[...]

The second and third tweets in the series are even further from official acknowledgments than the first. None of the impassioned but disjointed references to a “Witch Hunt,” “setup & trap,” “collusion,” or “obstruction” matches the FOIA request. And the fact that the President is vociferously attacking the investigators makes the proposition that he was speaking on their behalf in this instance somewhat dubious.

And so it goes for the rest of the President's public statements, made during interviews with television shows and websites. The statements made are vague and tend not to confirm existence of documents. Most of what the President has said about the investigation the DOJ can neither confirm nor deny has been "impassioned but disjointed." The court says the plaintiffs need far more than imprecise ramblings to prevail and grants the DOJ's motion to dismiss the case.

Precision matters when you're going up against the government in a FOIA case. Interpretations of imprecise statements tends to end up weighing in the favor of non-disclosure, despite the FOIA's statutory presumption of transparency. A public official rambling on about witch hunts at 4 a.m. probably shouldn't be treated as a trustworthy source of inside information -- especially when that official routinely inverts the Glomar by confirming and denying ("I'm not under investigation," "WITCH HUNT!") an investigation exists.

Filed Under: donald trump, fbi, foia, glomar, investigation, transparency

FBI Tried To Get Google To Turn Over Identifying Info On Hundreds Of Phone Owners

from the not-how-the-4th-Amendment-works dept

The US government isn't supposed to seek general warrants. And US judges aren't supposed to approve them. The Fourth Amendment requires a showing of probable cause to justify the intrusion by the government into citizens' lives and property. None of that appears to have happened in this case, brought to us by Thomas Fox-Brewster at Forbes.

Back in March, as it investigated a spate of armed robberies across Portland, Maine, the FBI made an astonishing, unprecedented request of Google. The feds wanted the tech giant to find all users of its services who’d been within the vicinity of at least two of nine of those robberies. They limited the search to within 30-minute timeframes around when the crimes were committed. But the request covered a total space of 45 hectares and could’ve included anyone with an Android or iPhone using Google’s tools, not just the suspect.

This wasn't just a demand for device IDs. The FBI -- as detailed in the warrant request [PDF] -- wanted everything Google had on hand.

In addition, for any Google accounts linked to the accounts or identifiers listed in Attachment A by HTTP cookies, recovery email address, or telephone number, the Provider is required to disclose all records or other information regarding the identification of the account, to include full name, physical address, telephone numbers and other identifiers, records of session times and durations, the date on which the account was created, the length of service, the IP address used to register the account, log-in IP addresses associated with session times and dates, account status, alternative email addresses provided during registration, methods of connecting, log files, and means and source of payment (including any credit or bank account number).

This is the sort of rummaging the Constitution is supposed to prevent. It's understandable the FBI needed some assistance tracking down robbery suspects, but this grab for a wealth of information about 45 hectares of people milling about minding their own business, isn't. And this sort of thing isn't limited to the FBI. As was covered here earlier this year, the Raleigh PD did the same thing at least four times during criminal investigations in 2017.

In this case, hundreds of people would have been swept up in the dragnet. Certainly, some post-acquisition data sifting would have occurred to narrow it down to people/devices near the location of robberies when they occurred. But whatever happens after info is obtained cannot be used to justify the original acquisition. This warrant never should have been signed.

If there's any good news coming out of this, it's that Google either didn't hand over the info requested or didn't have the info requested on hand.

Google was expected to return the information on April 19, but didn’t. The FBI filed a motion to extend the time it had to get the data, which a judge granted. But Google never handed it over, despite another three FBI motions to extend. Though the prosecutor, assistant U.S. attorney Michael Conley, said a fifth motion would be filed if the data didn’t arrive, the government gave up the ghost earlier this month.

A final returned warrant, dated August 6, simply stated: “Google did not provide information responsive to the warrant.”

The reason for this is unknown. Google provided no comment to Forbes and Brewster-Smith points out the company never filed an objection to warrant itself. It's hard to believe Google didn't have any of this info on hand -- especially considering Google has collected location data even when device users have turned location services off. If nothing else, it should have had some data points on hand. Perhaps there was a lot of discussion behind the scenes between lawyers from both sides that never made it to court but did result in the FBI's please-don't-call-it-"general" warrant being denied.

It also may be the FBI didn't press the issue because it didn't have much confidence in securing a favorable ruling from a judge higher-placed than the magistrate that signed the warrant request. The last thing the FBI wants is precedent set forbidding this sort of collection effort.

Filed Under: doj, fbi, general warrants 4th amendment, location info, maine, portland, robberies, warrants
Companies: google

Court Tells Government It Can't Search A House Just Because A Suspected Drug Dealer Once Parked In Its Driveway

from the an-affidavit-needs-to-be-more-than-a-sketchy-conspiracy-theory dept

The "good faith" exception can be difficult to overcome. Courts seem willing to grant the government this Fourth Amendment workaround even when it seems apparent the government operated in bad faith.

Take, for instance, the FBI's Playpen investigation. On the strength of a single warrant issued in Virginia, the FBI, in essence, searched computers all over the nation (and all over the world) to extract identifying info about the devices' users. Even when courts found the warrant to be invalid because of its blatant disregard for jurisdictional limitations (warrants can only be executed in the district they're issued), they still granted the government "good faith" because the FBI agent had relied on the judge's approval of the warrant to execute the search.

But this was happening while the FBI was petitioning the rest of the government to remove jurisdictional limitations with amendments to Rule 41. So, this warrant was obtained while limits the FBI wanted lifted were in place, but its execution took place before the limits were lifted. Somehow, this was still considered "good faith," even if those overseeing the warrant and investigation knew the FBI planned to violate jurisdictional limitations with the deployment of its PII-scraping malware.

This is only a small part of the federal court system's deference to law enforcement. "Good faith" is supposed to be the exception, not the rule, but hundreds of court rulings on evidence suppression bend over backwards to view law enforcement actions in the best possible light, even as evidence mounts outside the court system American policing is frequently unconstitutional, if not outright corrupt.

When you see a court actually reject the government's "good faith" advances, you can be certain law enforcement has screwed up severely. This case, brought to our attention by the Sixth Circuit Blog, is one of those exceptional strippings of a Fourth Amendment exception.

In this decision [PDF], the Sixth Circuit Appeals Court upholds the lower court's suppression of evidence. The Akron PD engaged in a lengthy drug investigation, but decided to take a few shortcuts to search a residence it vaguely speculated might be related to the drug dealer they were pursuing. The connective tissue of the warrant tore immediately upon judicial inspection. The supposed probable cause for an extensive, broad search of a residence? One time the guy they were surveilling parked his car in the driveway.

The target of the investigation was Camiolo Rocha-Ayon Jr. The rest of this is related to Carl Tucker -- the person challenging the evidence's legal origins -- in ways only clear to the officer requesting the warrant.

Akron Police Department Detective M.V. Gilbride sought a records-and-documents search warrant for the Saxon Avenue house. Citing his training and experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride hypothesized that Rocha-Ayon had traveled to the residence “to collect drug proceeds from TUCKER to pay for [an] upcoming delivery of cocaine.” He further speculated that “a portion of the cocaine seized” from Rocha-Ayon was intended for Tucker, that “at least a portion of the currency recovered” from Rocha-Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County, Ohio Auditor’s Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was the account holder for the residence’s electric utilities; that the Akron Police Department had received a service call in October 2016, which suggested that drug dealing was occurring at the house; that, inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack cocaine ; and that the affidavit had been presented to and approved by “the Akron Police Legal Advisor.”

Having perused Detective Gilbride's speculative affidavit, a local judge granted the Akron PD the permission to seize:

[b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic equipment to store information relating to the possession, transportation, ordering, purchase and distribution of controlled substances, . . . bank statements and records and other items evidencing the obtaining, secreting, transfer and/or concealment and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency, photographs, indicia of occupancy; and other fruits, instrumentalities and evidence related to drug trafficking.

So, based on the observation a drug suspect once parked in the driveway of a house owned by someone else, the PD was given free rein to seize everything in the house (if not the house itself, because, you know, "transfer/concealment/expenditure of money").

Then the government obtained a second warrant after finding a utility bill with Tucker's name on it listing an address on Penguin Ave. [Keep in mind, the supposed target of this investigation is still Rocha-Ayon, who once parked in the driveway of the Saxon Ave. residence.] This affidavit copy-pasted the Saxon Ave. speculation and dragged in a completely unrelated service call from the Akron PD to this Penguin Ave. for a domestic dispute involving Tucker. This warrant was approved as well.

The lower court said the Saxon Ave. warrant (the first one obtained) was so bare bones it could not possibly justify a search. And if that warrant was bad, it invalidated the second warrant because that one was largely based on evidence recovered during the first invalid search.

The appeals court agrees. And in doing so, it provides a crystal clear description of a "bare bones" warrant -- the kind that can't be salvaged by "good faith" pleas from the government. It also points out officers utilizing warrants like these terrible ones cannot expect a judge's signature to save them from their own better judgment.

Broadly speaking, an officer’s reliance on a search warrant is not objectively reasonable where “a reasonably well[-]trained officer would have known that the search was illegal despite the magistrate’s authorization.” One such situation is where the affidavit is “bare bones,” i.e., is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

Everything about the Saxon Ave. warrant was garbage. And everything arising from that one -- the Penguin Ave. warrant -- is just more garbage. Here's the PD's bare bones warrant, stripped of its boilerplate and CopSpeak, bleeding to death in the harsh light of judicial examination.

The Saxon Avenue affidavit is a prototypical example of a bare-bones affidavit. Stripped down to its basics, the affidavit asserts that evidence of drug trafficking would be found at the Saxon Avenue residence because (1) a suspected drug dealer once parked in the driveway for a brief period of time, (2) the house’s owner had a 17-year-old conviction for possession with intent to distribute, and (3) a four-month-old, seemingly unverified, apparently anonymous tip suggested that drug dealing may have occurred there.

The court then drags the government's arguments on behalf of its terrible warrant into the same light and lets them soak in their own shame.

The government attempts to resist this conclusion by pointing to additional, allegedly “critical” facts contained in the Saxon Avenue affidavit. Specifically, the government notes that when Rocha-Ayon visited the residence, he was driving a car that he sometimes—but not always— used in connection with drug trafficking; that prior to his arrival on February 17, Rocha-Ayon stopped to purchase household items that are sometimes—but not always—used by drug traffickers; and that two days later, Rocha-Ayon was arrested 135 miles away while transporting cocaine. Based on these additional facts, the government claims that a reasonable law enforcement officer could “easily infer” that “ROCHA-AYON JR. [had] traveled to 791 Saxon Avenue on February 17, 2017 to collect drug proceeds from TUCKER to pay for the upcoming delivery of cocaine…"

If that's the argument the government wants to make, the court will let it. But all it does is show the officer involved in obtaining this warrant is either incredibly poorly trained or an idiot.

Contrary to the government’s assertion, no reasonably well-trained officer could draw such conclusions based upon the particularized facts in the affidavit…

Building another warrant on the skeletal framing of the first bad warrant can't save the second warrant. The court discusses the issue, but points out it doesn't even need to reach a "good faith" decision on the second warrant. It clearly sprung from the first invalid warrant/search and is similarly nothing but unconstitutional garbage. Evidence obtained from both searches is suppressed, leaving the government with its original investigation target -- the one they arrested 135 miles away from the residences searched and in which the suspect parked his car once at only one of the residences.

It's an exception to the rule that's actually supposed to be an exception. Only the worst law enforcement actions are refused the GFE pass for the halls of justice. This isn't a win for the Fourth Amendment. It just one of the few times the government's disregard for civil liberties actually results in suppressed evidence.

Filed Under: 4th amendment, 6th circuit, akron, akron police, camiolo rocha-ayon, carl tucker, doj, drug dealer, fbi, mv gilbride, search, warrant

Court Says Comey And Other DOJ Officials Must Answer BuzzFeed's Questions About The Steele Dossier

from the not-as-big-as-you'd-think,-but-still-kind-of-big dept

Since publishing the urine-soaked "Steele Dossier," BuzzFeed has been targeted with multiple defamation lawsuits. Trump's former lawyer, Michael Cohen, ultimately dropped his lawsuit against the website after his own legal problems pretty much demanded he focus his legal attention elsewhere. Oh, and it was a lawsuit he was likely to lose, what with a lot of the alleged defamation being factual statements and any remaining defamation having been penned by the author of the dossier, not BuzzFeed itself.

Another doomed lawsuit is still active -- this one brought by Aleksej Gubarev and a couple of his companies (XBT Holdings and Webzilla, Inc.). Gubarev claims the next-to-last paragraph of the Steele Dossier defames him and his by linking Gubarv to Russian hacking attempts targeting the Democratic National Committee.

This lawsuit is likely doomed to fail as well, what with the alleged defamation having been penned by Steele, not BuzzFeed. But while it rolls towards this seemingly inevitable conclusion, the process continues with the subpoenaing of witnesses for both sides. BuzzFeed wants to depose people with knowledge of the events depicted in the dossier -- high-powered people like former FBI Director James Comey and other DOJ/FBI officials.

As Eriq Gardner notes on Twitter, this request has actually been granted, which is kind of a big deal.

Here's the text of the tweet if you can't see the embed:

WOW! This just in: A judge grants BuzzFeed's motion to compel testimony from James Comey and others at the Justice Dept. and FBI over the Trump Dossier.

The court has decided the answers BuzzFeed seeks from these officials is relevant and could contribute to the affirmative defenses the website has raised. From the order [PDF]:

Upon consideration of the parties’ briefs, and for the reasons set forth below, the court concludes that the subpoena—as substantially narrowed during the course of this litigation—is not unduly burdensome, and that BuzzFeed has made a sufficient showing of need to overcome the law enforcement privilege. The testimony that BuzzFeed seeks is essential to its defense against the defamation action and it cannot be obtained from any other source. Additionally, the release of the testimony will have a minimal impact, if any, on law enforcement interests, particularly in light of the substantial amount of information already officially acknowledged about the Dossier’s provenance and subsequent use by the FBI.

Accordingly, the court grants the Motion to Compel and orders the Government to produce, subject to a protective order, an affidavit that is responsive to the three topics set forth in BuzzFeed’s narrowed request.

This is a big deal, considering FBI/DOJ officials tend to remain beyond the reach of subpoenas thanks to hundreds of law enforcement/national security excuses that prevent most citizens from asking them any questions directly, much less under oath. So, kind of a coup for BuzzFeed and its legal team.

But wait, there's more less! Dismiss any images of Comey and other FBI officials taking the stand in court or spending hours being deposed by BuzzFeed's lawyers. That's just not happening. What's being compelled is the answer to three questions, which can all be answered with a single word.

Revised Narrowed Topic No. 3: The Government need only respond to one of the following and shall specify in its affidavit whether it is answering (A) or (B):

(A) Prior to 5:20 p.m. EST on January 10, 2017, did the FBI and/or any of the other Defendant agencies possess the two-page memorandum contained within the Dossier dated December 13, 2017, i.e., Report 2016/166?

(B) Prior to 5:20 p.m. EST on January 10, 2017, did the FBI and/or any of the other Defendant agencies possess all 35 pages of the Dossier?

Revised Narrowed Topic No. 7: Did the FBI receive from Senator John McCain a copy of the first 33 pages of the Dossier (i.e., all pages other than Report 2016/166) on or about December 9, 2016?

Revised Narrowed Topic No. 8: Did Mr. Clapper, Mr. Rogers, Mr. Brennan, and/or Mr. Comey, before January 10, 2017, brief President Obama about allegations contained in the Dossier?

Despite the FBI/DOJ only being required to answer three yes/no questions, the government is still arguing the request is too burdensome. The DOJ claimed -- with a straight face and under oath -- that answering these three questions would "divert crucial resources away" from its law enforcement and natsec work. The judge disagrees:

What started as a demand for documents and testimony covering nine separate topics is now a request to respond by sworn affidavit to three discrete questions, which likely can be answered with a simple “yes” or “no.” Not a heavy lift.

The government also argued that being compelled to answer three yes/no questions would result in it being swamped with similar requests from other litigants engaged in lawsuits over the same subject matter. The court lols and asks the government if it even bothered to assess the situation before making that claim.

Three lawsuits in the nearly 18 months since the Dossier’s publication—only one of which involves a demand on the Government—does not suggest there will be, as the Government Respondents fear, a mass “proliferation” of actions.

As for the government's claims answering these questions would compromise an ongoing investigation into Russian election interference, the court points to all the stuff already made public by the Nunes Memo, the Carter Page FISA warrant affidavits, and other public statements made by government officials.

To be sure, this is big news. The government isn't forced to hand over info -- however limited -- from ongoing investigations very often. This is a rarity. But it's not going to result in cross examination on the witness stand or a bunch of lawyers and clients gathered in a conference room objecting to each others actions over the minimal interactions from government officials. This is more BuzzFeed Poll than Perry Mason, but it's still nice to see a court give the government's oh-this-is-so-very-burdensome arguments the full, dismissive discussion they clearly deserve.

Filed Under: aleksej gubarev, christopher steele, deposition, doj, fbi, james comey, steele dossier
Companies: buzzfeed

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

Federal Judge Blasts FBI, Agent For Breaking The Law When Seeking Stingray Warrants

from the to-catch-lawbreakers-you-gotta-break-a-few-laws dept

While it's good the FBI is seeking warrants for Stingray deployments, there's some bad news. This story from Cyrus Farviar from Ars Technica shows FBI warrant procedures are incredibly flawed -- so severely flawed they break state law when they're put to use.

California law does not allow state judges to sign off on warrants for federal agents, something that this particular FBI agent, Stonie Carlson, apparently did not know.

"But the two warrants were plagued by numerous errors, reflecting a pattern of systematic recklessness by law enforcement that militates in favor of suppressing the evidence (and against applying the 'good-faith exception' to the exclusionary rule)," US District Judge Vince Chhabria wrote in a July 3 order. "This ruling is published separately to put the relevant actors in the criminal justice system on notice that California law prevents state judges from issuing search warrants to federal law enforcement officers, which means that federal law enforcement officers are not permitted to execute such warrants."

The FBI put its Stingray to use to track cellphones used by people suspected of engaging in credit card fraud. The order [PDF] suppressing the evidence is an entertaining read -- one that doesn't pull any verbal punches excoriating the federal agents involved in this law-flaunting trip through a California courthouse.

FBI Agent Stonie Carlson brought two warrants to the Alameda County Courthouse -- one intimately familiar to the FBI. The judge signed off on the warrants despite state forbidding this practice. The FBI is also not allowed to use state judges for federal warrants, something Carlson apparently didn't know. As the order [PDF] points out, this ignorance alone might have been enough to salvage the warrants and evidence… if that's all there was to it.

A federal agent's mistaken belief that he could be issued a search warrant by a California state judge is likely not, on its own, a basis for suppressing evidence obtained during the search (at least before the publication of this ruling). That is arguably good faith negligence. But the two warrants were plagued by numerous errors, reflecting a pattern of systematic recklessness by law enforcement that militates in favor of suppressing the evidence (and against applying the "good faith exception" to the exclusionary rule).

But no good faith will be awarded here. Judge Chhabria wants to make it crystal clear no more of this "negligence" is welcome in his jurisdiction.

This ruling is published separately to put the relevant actors in the criminal justice system on notice that California law prevents state judges from issuing search warrants to federal law enforcement officers, which means that federal law enforcement officers are not permitted to execute such warrants.

As was noted earlier, state/county judges can issue certain warrants to federal and local law enforcement. But only local law enforcement is allowed to execute search warrants issued by local judges. If a federal agent wants to engage in a search or an arrest, they need to get their warrants approved by federal judges. The DEA's inability to follow California law has cost it a few cases over the years. The FBI is going to have the same problem if it doesn't train its agents correctly.

Even if it was a lapse in training, Judge Chhabria isn't interested in forgiving Agent Carlson for his agency's failings. This results in one of the harsher bench-slaps handed out to a federal agent.

At the evidentiary hearing, Carlson claimed that his decision to seek the warrants from state court judges, rather than a federal magistrate judge, was based partly on training his colleagues received from that office. This statement by Carlson may or may not accurately reflect whatever his colleagues learned or told him, since Carlson's general conduct in this case, as well as his testimony at the evidentiary hearing, shows that he is neither well-trained nor particularly concerned with complying with the law in conducting his enforcement activities.

The ruling isn't just issued for the FBI's benefit. It's also there to tell state judges to do their job correctly. But it cuts the judge in this case some slack, but only by suggesting Agent Carlson may have muddied the warrant water deliberately.

[T]he two state court judges who issued the warrants may have been unaware of the legal limits on Carlson's ability to insert himself into the state criminal justice system. The record is not clear on this point. As discussed in the separate unpublished ruling, although the state court judges likely should have known that Carlson was seeking authorization for himself and other federal officers to execute the searches, it is possible they were misled by the paperwork Carlson submitted to them.

The FBI is finally using warrants for Stingrays -- just as the DOJ stated back in 2015. Agents are just doing it as incorrectly as possible, which isn't a huge improvement. Considering the way this one was botched, Agent Carlson may as well have not even bothered filling out an affidavit.

Filed Under: 4th amendment, alameda, fbi, stingray, stonie carlson, warrants

FBI Boss Chris Wray: We Put A Man On The Moon So Why Not Encryption Backdoors?

from the yeah-ok-then dept

Despite the FBI finally admitting it had greatly exaggerated the number of encrypted devices it can't get into, FBI Director Chris Wray keeps pushing the "going dark" theory to whoever will listen. This time it was NBC's Lester Holt. In an interview during the Aspen Security Forum, Wray again hinted he was moving towards an anti-encryption legislative mandate if some sort of (impossible) "compromise" couldn't be reached with tech companies. (Transcription via Eric Geller.)

I think there should be [room for compromise]. I don't want to characterize private conversations we're having with people in the industry. We're not there yet for sure. And if we can't get there, there may be other remedies, like legislation, that would have to come to bear.

The "compromise" Wray wants is simple: if law enforcement has a warrant, it gets access. The solution isn't. To weaken or backdoor encryption to serve law enforcement's needs makes everyone -- not just criminal suspects -- less safe. If a hole can be used by good guys, it can be used by bad guys. And even the best guys can't prevent their tech tools from making their way into the public domain. Just ask the NSA and CIA. In the case of the NSA, leaked exploits resulted in worldwide ransomware attacks.

Wray pitches an impossibility by portraying it as a lack of effort by the tech industry. The tech industry -- the one with all the "brightest minds" -- have been consistent in their stance. A hole for one is a hole for all. There's no such thing as securely-compromised encryption. Wray's response has also been consistent: they're just not thinking hard enough. The only "compromise" pitched by members of the tech sector is basically re-skinned key escrow -- the thing that went out of fashion with the death of the Clipper Chip.

Wray's pitch now includes an appeal to the modern wonders of the world, as if these examples change the equation at all:

We're a country that has unbelievable innovation. We put a man on the moon. We have the power of flight. We have autonomous vehicles… [T]he idea that we can't solve this problem as a society -- I just don't buy it.

First off, bringing the space program into this is ridiculous. All it does is demonstrate the government has access to some of the best minds, but Wray expects the private sector to provide, maintain, and bear the expense of a law enforcement-friendly encryption "solution." (And if it fails to deliver, Wray's more than willing to ask the government to force the private sector to play ball.)

Second, putting a man on the moon was the side effect of a Cold War cock-measuring contest with the USSR. While the nation has derived many benefits over the years from the space program, the "man on the moon" mission was a way of expressing superiority and implying that our weaponry was similarly advanced. The US government showed the world how powerful it was. I don't think that's the analogy you want to make when discussing personal device encryption.

And third, the whole "putting a man on the moon" analogy was solidly mocked on John Oliver's program two years ago when he quoted cryptography expert Matt Blaze accurately saying, "When I hear 'if we can put a man on the moon, we can do this' I'm hearing an analogy almost saying "if we can put a man on the moon, surely we can put a man on the sun.'" Not every issue is the equivalent of putting a man on the moon.

While the others listed are private sector achievements, they're simply not good comparisons. Encryption methods continue to advance in complexity and ease-of-use. This is innovation, even if it's innovation Chris Wray doesn't like. Each of the innovations listed solved problems and created markets. In this case the problem is device security. Encryption solves it. Who wants secure devices? Everyone who buys one.

The rise of smartphones has seen users replace their houses with handheld devices as the primary storage for a life's-worth of documents, along with access to a great deal of financial and personal info. Device makers want to ensure a stolen phone doesn't mean a stolen life. Wray (and others) don't want to do anything more than obtain warrants to scrape the digital innards of devices they seize. In other words, when the FBI encounters a locked safe in someone's house, Wray would believe it's the manufacturer's fault for the safe failing to unlock immediately in the presence of a search warrant.

Still, Wray believes society as a whole would be better off with weaker encryption because sometimes terrorists and criminals use encryption.

Because to the extent that the bad guys have shifted more and more to living their whole lives through encrypted devices and encrypted messaging platforms, that if we don't find a way to access that information with lawful process, we're in a bad place as a country.

Default encryption has been around for a few years now and there's no evidence we're less safe as a nation. Very few prosecutions have been dead-ended because investigators couldn't get into a phone. The problem is presented as swiftly-growing and inevitable, but there's been nothing delivered as evidence of these claims. The FBI has continually pointed to its growing pile of locked devices as Exhibit A in the War on Encryption, but has never presented anything at all to give these claims of diminishing public safety any credence. All we know for sure at this point is the FBI can't count. It used a wrong number (~7,800) to push the narrative and still expects us to believe it after it admitted this count was nearly four times higher than the actual number of devices in its possession.

Wray needs to stop complaining about the tech sector until his own agency can demonstrate its ability to approach the issue with facts, verified numbers, and intellectual honesty.

Filed Under: backdoors, chris wray, encryption, fbi, going dark, man on the moon

FBI Decides To Ruin A Man's Life Over Nude Photos Of His Legal Girlfriend He Took Seven Years Ago

from the government-still-full-of-vindictive-assholes dept

You can be in a consensual, legal relationship but still end up a sex offender. That's how child porn laws work. It's legal to have sex, but illegal to take pictures. In Ohio, a 27-year-old man was arrested on child porn charges for taking pictures of his then-17-year-old girlfriend. (h/t Guy Hamilton-Smith)

The affidavit [PDF] from the FBI is a harrowing deliberate misconstruing of the actual events, written in service of destroying a man's life. It makes the man appear to be some sort of child porn-producing fiend, when, in fact, it was just him taking photos of his girlfriend.

As will be shown below, there is probable cause to believe that Edward R. Marrero used a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct and such visual depiction was produced using materials that had mailed shipped and transported in and affecting interstate and foreign commerce, in violation of Title 18, United States Code, Section 2251(a).

[...]

On May 18, 2017, Affiant interviewed the pubescent female (Victim). The Victim admitted to being the ex-girlfriend of Marrero. The Victim identified herself and Marrero in a photograph in which Marrero’s hand and mouth were on the Victim’s breast.

On June 28, 2018, affiant telephonically interviewed the Victim. The Victim admitted that the photographs were taken in Cuyahoga County when she was under the age of 18.

Oh, and this:

The Kodak EasyShare camera was not produced in the State of Ohio.

So, there's your "interstate" charge. Because the pictures were taken with a camera not "produced" in Ohio (but obviously sold in Ohio), the government is pretending this satisfies the clause needed to generate a minimum 15-year-prison term.

It all seems very damning, but here are the facts:

Edward Marrero, 27, said while testifying Thursday that he took the photos in April 2011, according to an affidavit written by FBI agent Lisa Hack. At the time, she was 17 years old and he was 20, authorities say.

Marrero is no longer in a relationship with the woman. He testified that he knew she was underage when he took the photos, the affidavit states.

The age of consent in Ohio is 16 years old, but federal law states it is illegal to create, share or possess sexually-explicit images of anyone under the age of 18.

The relationship was completely legal. The pictures somehow aren't, even though no one could legally call the relationship (as it existed seven years ago) "exploitation" or "enticement." But they can call the photos illegal and they can retcon the consensual relationship into a predator/prey dynamic using federal child porn charges.

The testimony referenced above wasn't meant to incriminate Edward Marrero. He was testifying on behalf of another person facing child porn charges. When he detailed the pictures he took while in a consensual relationship with a 17-year-old, the feds decided to swear out an arrest warrant. While Marrero was informed of his Fifth Amendment rights, he most likely thought what he stated in court wasn't incriminating (because the girlfriend was over the age of consent) or that the government would view his statements rationally and not immediately move to have him arrested.

As Guy Hamilton-Smith pointed out on Twitter, the federal government is being as punitive as possible, as quickly as possible. Marrero's initial appearance was greeted with immediate detention and he's been placed in the custody of the US Marshals. All this is happening over photos taken seven years ago by people in a consensual relationship. The accused wasn't producing child porn by any rational definition of the statute. But it can be read in irrational ways to ruin lives just because.

Filed Under: child porn, edward marrero, fbi, photographs, teenagers

Fired FBI Official Now Discovering The 'Civilian' Delight Of Being Jerked Around By Govt' Agencies

from the welcome-to-the-private-sector,-Andy dept

FBI Deputy Director Andrew McCabe's career came to a sudden end earlier this year. Following in his predecessor James Comey's footsteps, McCabe swiftly found himself on the front sidewalk with a Sessions footprint on his ass. An Inspector General's report followed soon after, detailing many reasons McCabe might have been fired -- lying to investigators, leaking stuff to the press, evading concerns about his investigative neutrality in light of his wife's acceptance of donations from a Clinton-linked PAC... We don't know if any of these are why Trump fired McCabe, but pretty much any one of these things makes a firing justifiable.

Lying to the FBI is serious business, even when it's just its oversight. Ask anyone who's been charged with nothing but lying when the FBI fails to build a better case. For McCabe, though, it was just a little "administrative misconduct." Something that could be addressed with a writeup or, in this case, a firing. That the trigger was pulled hours away from McCabe's retirement sucks for McCabe, but I find it very difficult to sympathize with career government employees who feel they're still owed a lifetime of retirement benefits after they've been fired for cause.

McCabe is still trying to get what he thinks taxpayers owe him. He claims the firing was "politically motivated." Given the general nature of Trump's personnel decisions, he's probably not wrong. But the IG report shows him engaged in behavior that could result in termination. McCabe doesn't believe that's the case and he's demanding the DOJ hand over documents and manuals related to internal policies and firing practices. And he's doing this like an actual civilian: by filing FOIA requests.

Unsurprisingly, that's not working. McCabe's lawyers are asking the DC court to force the DOJ to hand over all policies and manuals. As is argued in this quasi-FOIA lawsuit [PDF], the DOJ has been shirking its obligations to the public for decades.

Defendants have been required for over 50 years to proactively disclose the kinds of documents at issue here, and there is no just reason for either their failure to do so now or for any further delay. Defendants’ breach of their disclosure obligations have prejudiced Mr. McCabe and Plaintiff in fundamental ways, all of which flow from one of FOIA’s core concerns: No citizen should “los[e] a controversy with an agency because of some obscure and hidden [administrative material] which the agency knows about but which has been unavailable to the citizen simply because he had no way in which to discover it.”

His FOIA request was only a few days old at the time of the filing, so this lawsuit isn't really about non-responsiveness. It's about the DOJ deliberately playing keep-away with documents McCabe needs to determine whether or not his firing was done in accordance with DOJ policy.

This cannot possibly come as a surprise to McCabe. A career fed would know federal agencies don't turn over documents without a fight, even when their legal obligations are clear. The FBI is barely responsive to its own oversight, so there's no reason to believe the DOJ is going to proactively post documents for public consumption. And when it's facing a potential lawsuit over a firing, it's definitely going to amp up the stonewalling and denials. McCabe probably wouldn't have minded Joe Citizen being dicked around this way, but it irritates him when he's on the receiving end of treatment like this:

FOIA mandates that Defendants proactively disclose the applicable policies and procedures in an electronic format without waiting for an affirmative request. Defendants have failed to do so. When Plaintiff requested the pertinent documents, Defendants variously refused to comply and failed to properly, timely, or sufficiently respond. They even barred Plaintiff from accessing Defendants’ physical library, which contains some (or perhaps all) of the documents at issue here.

When you're forced out of government service, you suddenly become keenly aware of the injustices -- large and small -- perpetrated daily by federal agencies. For someone who used to be near the top of the fed food chain, this pettiness and opacity must be almost unbearable. When you're on the inside, it just looks like a measured response to stupid members of the public who won't mind their own business. But once you're on the outside looking in, you realize how much effort you must make just to force government agencies to comply with federal law and their own internal policies.

Filed Under: andrew mccabe, fbi, foia

Inspector General Not Too Happy With James Comey's Handling Of The Clinton Email Investigation

from the FBI-still-sucks-but-in-exciting-new-ways! dept

The damning report the President has been waiting for has arrived. The Inspector General's report covering everything from James Comey's handling of the Clinton email investigation (terribly with bonus insubordination) to a couple of FBI agents forming a two-person #Resistance (stupid and made the FBI look bad, but not illegal) runs almost 600 pages and won't make anyone looking to pin blame solely on one side of the partisan divide very happy.

It's been claimed the report would finally show the FBI to be an agency filled with partisan hacks, further solidifying "Deep State" conspiracy theories that the government Trump runs is out to destroy Trump. It was somehow going to accomplish this despite many people feeling the FBI's late October dive back into the Clinton email investigation handed the election to Trump.

Whatever the case -- and whatever side of the political divide you cheer for -- the only entity that comes out of this looking terrible is the FBI. That the FBI would engage in questionable behavior shouldn't come as a surprise to anyone, but the anti-Trump "resistance" has taken Trump's attacks on the FBI as a reason to convert Comey, the FBI, and the DOJ into folk heroes of democracy.

The summary of the report [PDF] runs 15 pages by itself and hands out enough damning bullet points to keep readers occupied for hours. Then there's the rest of the report, which provides the details and may take several days to fully parse.

Here are some of the low lights from Inspector General Michael Horowitz, possibly the only person who should be touting "Deep State" theories since he's spent his IG career being dicked around by the DEA, DOJ, FBI, and DEA.

The report says everything about the Clinton email investigation was unusual. Termed the "Midyear Exam" by the FBI, the investigation was mostly a voluntary affair. Most of the evidence and testimony obtained was obtained from consenting witnesses and participants. The FBI rarely felt the need to compel testimony or evidence with subpoenas. It also did not access the contents of multiple devices used by Clinton's senior aides, devices that may have contained classified info that had been circulated through a private email server. As the report notes, this is at odds with Comey's sudden interest in Anthony Weiner's laptop, where his estranged wife (and former Clinton personal assistant) Huma Abedin apparently had stored copies of Clinton emails.

The IG says the tactics used were unusual but does not pass official judgment on them. However, the actions of five FBI employees involved in the investigation did further damage to the FBI and its reputation by taking an investigation already viewed as politically-questionable and aggravating the perception.

In undertaking our analysis, our task was made significantly more difficult because of text and instant messages exchanged on FBI devices and systems by five FBI employees involved in the Midyear investigation. These messages reflected political opinions in support of former Secretary Clinton and against her then political opponent, Donald Trump. Some of these text messages and instant messages mixed political commentary with discussions about the Midyear investigation, and raised concerns that political bias may have impacted investigative decisions.

However, the IG did not uncover evidence suggesting any of these FBI employees had the power to steer the investigation. Some of those engaged in anti-Trump texts actually pushed for additional subpoenas and search warrants in an investigation that seemingly had little use for any testimony not obtained voluntarily. But that doesn't mean these actions were harmless.

Nonetheless, these messages cast a cloud over the FBI’s handling of the Midyear investigation and the investigation’s credibility.

From there, it moves on to James Comey's surprising decision to go public with the email investigation's conclusions in July of 2016. This followed the softening of language in the FBI's investigative report. Clinton's handling of classified info went from "grossly negligent" to "extremely careless." The possibility of hostile actors accessing Clinton's email server went from "reasonably likely" to "possible." Then Comey decided to go public, cutting plenty of people out of the loop so they wouldn't prevent him from doing so.

Comey acknowledged that he made a conscious decision not to tell Department leadership about his plans to make a separate statement because he was concerned that they would instruct him not to do it. He also acknowledged that he made this decision when he first conceived of the idea to do the statement, even as he continued to engage the Department in discussions about the “endgame” for the investigation.

Comey admitted that he concealed his intentions from the Department until the morning of his press conference on July 5, and instructed his staff to do the same, to make it impracticable for Department leadership to prevent him from delivering his statement. We found that it was extraordinary and insubordinate for Comey to do so, and we found none of his reasons to be a persuasive basis for deviating from well-established Department policies in a way intentionally designed to avoid supervision by Department leadership over his actions.

[...]

We concluded that Comey’s unilateral announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct. We also found that Comey usurped the authority of the Attorney General, and inadequately and incompletely described the legal position of Department prosecutors.

The late October letter to Congress about the reopening of the investigation isn't viewed as any better by the OIG. Comey claimed he needed to do this because withholding the discovery of emails on Anthony Weiner's laptop might have been viewed as swinging the election in Clinton's favor. The IG disagrees.

Much like with his July 5 announcement, we found that in making this decision, Comey engaged in ad hoc decisionmaking based on his personal views even if it meant rejecting longstanding Department policy or practice. We found unpersuasive Comey’s explanation as to why transparency was more important than Department policy and practice with regard to the reactivated Midyear investigation while, by contrast, Department policy and practice were more important to follow with regard to the Clinton Foundation and Russia investigations.

Comey’s description of his choice as being between “two doors,” one labeled “speak” and one labeled “conceal,” was a false dichotomy. The two doors were actually labeled “follow policy/practice” and “depart from policy/practice.” Although we acknowledge that Comey faced a difficult situation with unattractive choices, in proceeding as he did, we concluded that Comey made a serious error of judgment.

Then comes the irony. As Comey became the front-mouth for an investigation he shouldn't have been talking about, he routinely engaged in the same behavior he was currently investigating.

We identified numerous instances in which Comey used a personal email account to conduct unclassified FBI business. We found that, given the absence of exigent circumstances and the frequency with which the use of personal email occurred, Comey’s use of a personal email account for unclassified FBI business to be inconsistent with Department policy.

In addition to being a violation of FBI policy, James Comey -- currently idolized by some as a speaker of truth to power for being fired by the president -- also violated FOIA law by using a private email account for government communications. Comey wasn't the only one -- other agents involved in the investigation routinely used private email accounts -- but he was the FBI's personification of the Clinton email investigation. On top of this, he told other FBI agents the use of personal email accounts would subject them to harsh punishment.

In an October 2016 speech at an FBI conference in San Diego, Comey said, "I have gotten emails from some employees about this, who said if I did what Hillary Clinton did I'd be in huge trouble. My response is you bet your ass you'd be in huge trouble. If you used a personal email, Gmail or if you [had] the capabilities to set up your own email domain, if you used an unclassified personal email system to do our business... you would be in huge trouble in the FBI."

Some may quibble about the lack of classified info being circulated by these agents and their Gmail accounts, but the fact remains the use of private email accounts increases the risk of circulation exponentially. Sticking to government accounts reduces this possibility to zero.

There's much more in the report, including some discussion about the propriety of the Russian influence investigation that Trump claims is a witch hunt. Nothing in the report suggests the investigation isn't valid, even if the actions of agents (the anti-Trump texting) and Andrew McCabe's non-recusal (his wife took money from a Clinton-connected PAC) managed to cover everything with a slimy gloss of impropriety.

The upshot of the report is this: James Comey deserved to be fired, although probably not for the reasons Trump had in mind when he did it. The people employed by the FBI are not always able to set aside their personal biases when engaged in investigations. But the FBI is no one party's political tool. It's a blend of both sides, which makes it unlikely anything was done intentionally to harm Trump or Clinton's political prospects. For all the complaining done by Trump, he's the one in office. If the election was "thrown" by Comey's fourth quarter audible in the email investigation, Trump was the beneficiary of the FBI's actions. This makes complaints about a Russian investigation "witch hunt" incoherent, as it tries to retcon the FBI's actions to portray them as being #NeverTrump even when they were (not officially) helping him. The simultaneous investigations of Clinton and Trump make it difficult to craft a coherent conspiracy theory, but it certainly isn't stopping anyone from trying. The FBI is untrustworthy, but it's not a kingmaker.

Filed Under: doj, donald trump, email, fbi, hillary clinton, inspector general, james comey, michael horowitz, private email, procedures