Massachusetts Judge Says ATF Can Apply A Suspect's Fingerprints To Unlock An IPhone

from the five-finger-Fifth-Amendment-discount dept

It looks like a passcode still beats a fingerprint when it comes to securing your info. Maybe not from criminals, but definitely from the government. Lisa Vaas of Naked Security reports the ATF has received permission from a federal judge to apply a suspect's fingerprints to a phone to unlock it.

[T]he document, issued on 18 April, Massachusetts federal district judge Judith Dein gave agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) the right to press a suspect’s fingers on any iPhone found in his apartment in Cambridge that law enforcement believes that he’s used, in order to unlock the devices with iPhone Touch ID.

The warrant [PDF] authorizes ATF agents to "press the fingers (including the thumbs)" of suspect Robert Brito-Pina to the "Touch ID sensor of any Apple cellular phone" recovered during the search. Brito-Pina is suspected of buying and selling weapons -- neither of which are permissible given his felon status. The ATF apparently believes evidence of this will be found on Pina's iPhone.

There doesn't appear to be any limit on how many fingers the ATF can use to unlock the phone. The warrant says only that officers will decide which fingers to apply. Presumably, that means all of them (including thumbs), since there's no language limiting officers to a certain number of finger applications. The only thing preventing every finger from being applied during the search is the iPhone itself, which will require a passcode after five wrong fingerprint applications.

The phone's nexus is established pretty thoroughly in the warrant application, which much of the sting operation using an arrestee-turned-informant being carried out via text messages. The government moved to unseal the warrant five days after applying for it, suggesting it has already executed this warrant.

The weird thing about the warrant application, which thoroughly details the sting operation and the ATF's surveillance of the suspect, is it appears the swearing agent isn't actually sure Pina owns an iPhone.

Given the popularity of Apple brand devices, I believe it is likely that I will find Apple brand devices such as an Apple iPhone at the Target Location.

And, despite authorizing the agents to only use Pina's finger to unlock any recovered iPhones, the warrant still contains boilerplate stating agents may demand fingerprint applications from anyone at the searched residence.

In some cases, it may not be possible to know with certainty who is the user of a given device, such as if the device is found in a common area of a premises without any identifying information on the exterior of the device. Thus, it will likely be necessary for law enforcement to have the ability to require any occupant of the Target Location to press their finger(s) against the Touch ID sensor of the locked Apple device(s) found during the search of the Subject Premises in order to attempt to identify the device's user(s) and unlock the device(s) via Touch ID.

This case likely won't budge the needle on the Fifth Amendment question. At least, not yet. If Pina wants the evidence gleaned from the iPhone suppressed (assuming there is an iPhone), there may be further discussion of this crucial issue in the future. Most judicial decisions on the use of biometrics to unlock devices have sided with government, asserting that faces and fingerprints are "non-testimonial," even if they're the gateway to plenty of evidence that will be used against the defendant. But there have been a few judges who've taken contrary stances, so the issue is far from settled.

Filed Under: 4th amendment, 5th amendment, atf, fingerprints, massachusetts, search, unlock

Massachusetts' Top Court Says Warrants Are Needed For Real-Time Cell Site Location Info

from the this-means-you,-Stingrays dept

Five years ago, the Massachusetts Supreme Judicial Court got out ahead of the tech curve by declaring that state law enforcement would need warrants to seek historical cell site location info. This predated the US Supreme Court's Carpenter decision by four years. The state court's prescient decision was compelled by the state's Constitution, which provides greater protections than the United States' Constitution.

But no matter which Constitution was used, the court found that the Third Party Doctrine shouldn't cover CSLI because, while everyone uses cellphones to communicate with each other, not a single cellphone user carries one around just to create tracking data for the government.

A recent decision by the same court expands protections for cellphone users -- going further than Carpenter's protection of historical cell site location info. As the ACLU's Kade Crockford points out, real-time acquisition of location info now comes with a warrant requirement. This covers more than service provider-assisted "pings." It also covers one of law enforcement's favorite toys.

Crucially, the ruling takes a different approach from the Supreme Court’s Carpenter decision in one key respect: Instead of confining its mandate to the narrow circumstances of the case before the Court, the ruling extends the warrant protection to other types of real-time cellphone tracking, including where the government uses its own technology rather than requesting the assistance of cellphone companies. In a huge victory for Massachusetts residents, the ruling explicitly specifies that it additionally applies to law enforcement’s use of so-called “stingrays,” also known as cell-site simulators, or devices that police can use to directly track cellphones—enabling police to cut out the cellphone company from the equation entirely.

As the court points out in its decision [PDF], manipulating a person's phone to reveal its location has nothing to do with third-party records or phone users' implied relinquishment of this tracking data. The only party involved is the government. The service provider may be involved, but the phone's owner certainly isn't.

The intrusive nature of police action that causes an individual's cell phone to transmit its real-time location raises distinct privacy concerns. When the police ping a cell phone, as they did in this case, they compel it to emit a signal, and create a transmission identifying its real-time location information. [...] This action and transmission is initiated and effectively controlled by the police, and is done without any express or implied authorization or other involvement by the individual cell phone user. See id. (noting that cell phone ping is "undetectable to the [cell phone] user"). Without police direction, such data would also not otherwise be collected and retained by the service provider.

This active inducement of a signal, solely for the purpose of locating a phone, is something invasive enough it requires a warrant. Since that's all Stingrays do -- induce all phones in the area to cough up identification/location info -- there's no way Stingrays aren't covered by this ruling. The court is clear law enforcement means and methods that subvert societal expectations are unreasonable. Hence the need for warrants.

We confidently conclude that such police action implicates reasonable expectations of privacy. Indeed, society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location data.

The footnote attached to this paragraph specifically references Stingray devices. And it makes it clear this ruling covers whatever new tech/method law enforcement uses to obtain real-time location info, preemptively instituting a warrant requirement for future tech developments.

We recognize that the government's ability to compel a cell phone to reveal its location is not limited to the pinging that occurred in this case. For instance, law enforcement in other jurisdictions have used "cell site simulators" to track down persons of interest by "trick[ing] all nearby phones" into revealing their location information (quotations omitted). State v. Andrews, 227 Md. App. 350, 379 (2016). Nor do we doubt that as technology continues to advance, the government will develop new ways to compel an individual's cell phone to reveal its location. The privacy concerns raised by pinging a cell phone apply equally to any circumstance where the cell phone's location information is generated as a direct result of the government's manipulation of an individual's cell phone.

It's a solid ruling. And it shows some states are going to set the pace in tech/privacy cases simply because their state Constitutions provide residents with more protections than are found at the federal level. If we can't get a unified stance from the top court in the land, maybe we can piece it together state-by-state.

Filed Under: 4th amendment, cell site location info, csli, massachusetts, privacy, warrants

Auto Finance Company Sues Massachusetts City Over Its Unconstitutional Sale Of Seized Vehicles

from the money-v-power dept

An opponent of asset forfeiture has arisen from an unexpected place. Honda's finance division has taken the city of Revere, Massachusetts to court over the seizure and sale of a vehicle it still technically owned.

American Honda Finance Corp., based in California, alleged in its lawsuit filed Feb. 12 in U.S. District Court for the District of Massachusetts that its constitutional rights were violated when a Honda Civic was seized in 2016 by Revere's police department.

"Plaintiff brings this action to remedy a deprivation of its long-settled and fundamental rights to be free from unreasonable seizures and to due process of law under the United States Constitution," American Honda Finance Corp. said in its 13-page complaint.

The complaint [PDF] makes it clear the company thinks this is some bullshit: seizing and selling a vehicle that still belongs to the company holding the lien. Until the vehicle is paid off, Honda still owns the car. But Massachusetts law enforcement doesn't appear to care who owns the car so long as they get to profit from its sale. The narrative detailed in the lawsuit makes it clear zero effort was made to make the car's real owner aware of the city's plans for the seized car.

On or about November 2, 2016, HONDA obtained a purchase money security interest and lien in The Subject Vehicle.

On November 28, 2016, The Subject Vehicle was officially titled in the State of New York with Shanasia Hackworth recorded as the owner and HONDA recorded as the first priority lienholder.

On or about December 30, 2016, REVERE took possession and custody of The Subject Vehicle pursuant to REVERE’s police officers acting in the course of their duties as law enforcement officers.

On or about December 30, 2016, REVERE, through its police officers acting in the cause of their duties as law enforcement officers, and pursuant to laws enacted to further official state interests, directed Mario’s Service Center, Inc. to tow and detain The Subject Vehicle.

On or about December 30, 2016, Mario’s Service Center, Inc. towed The Subject Vehicle and retained The Subject Vehicle on behalf of REVERE as part of an “investigation.”

REVERE did not notify HONDA that The Subject Vehicle had been seized.

REVERE thereafter concluded its investigation. REVERE did not, thereafter, return The Subject Vehicle to HONDA or anyone else. Instead, REVERE authorized its agent, Mario’s Towing Service Center, Inc., to detain and dispose of the vehicle pursuant to Massachusetts G.L.c. 255, §39A.

REVERE did not notify HONDA that after the investigation ended that REVERE authorized Mario’s Towing Service Center, Inc. to detain and dispose of The Subject Vehicle.

REVERE did not ensure that its agent, Mario’s Towing Service Center, Inc., notified HONDA that REVERE had authorized detention and disposal of the Subject Vehicle.

On or about May 18, 2017, REVERE’s agent, Mario’s Towing Service Center, Inc., sold The Subject Vehicle and The Subject Vehicle was retitled through the Massachusetts Department of Transportation with HONDA’s lien not recorded on said title.

Under Massachusetts law the sale pursuant to Massachusetts G.L.c 255, §39A and subsequent retitling extinguished HONDA’s property interest in The Subject Vehicle.

At no time prior to the sale or retitling of The Subject Vehicle did REVERE or any person provide any notice to HONDA relating to The Subject Vehicle.

There's a genuine question of property interest in a vehicle whose title still resides with the financing company. This can't be the first time a company has complained about a vehicle of theirs being auctioned off without notice, but this is the first federal complaint I've seen directly challenging a state's seizure of vehicles from drivers who don't actually own the vehicles they're driving.

This was filed ten days before the Supreme Court held that certain forms of asset forfeiture violate Constitutional protections against excessive fines. Honda's complaint seems to anticipate the high court's displeasure with abusive forfeitures and pulls no punches in its description of the program the city of Revere participate in. (Emphasis in the original.)

Massachusetts G.L.c. 255, §39A effectuates the Commonwealth’s interest in enforcing traffic laws and in protecting the public from hazardous street conditions. The statute provides a means for the state to compensate private parties who assist the state by towing and storing vehicles at the direction of police. The statute has, however, fallen out of step with modern developments in constitutional law which confirm that a duly perfected security interest and lien in a vehicle is a constitutionally protected property right.

A program that takes property away from the property's true owner -- an entity completely disconnected from the underlying criminal activity/accusations -- appears to be a violation of the company's Constitutional rights, if not the greater protections given to property owners by the state's constitution. The suit alleges a host of violated rights, as well as conversion under state law, arguing the sale of the vehicle without notifying the lien holder is basically theft of Honda's property.

Is it going to take the deep pockets of pissed off corporations to finally make a serious dent in abusive forfeiture programs? It might. This case may be more tow-and-sell than most forfeitures, but the principle behind it -- the state depriving companies of their property without notice -- is identical. If this case adds to the judicial dialog on forfeiture programs, I'm all for it.

Filed Under: asset forfeiture, cars, leasing, massachusetts, ownership, theft
Companies: honda

Federal Court Says Massachusetts' Wiretap Law Can't Be Used To Arrest People For Recording Public Officials

from the because-duh-this-was-decided-seven-years-ago dept

Seven years ago, the First Circuit Court of Appeals released its Glik decision. This decision found that recording public officials was protected by the First Amendment, overriding Massachusetts state law. The state wiretap law says recordings must have consent of everyone captured on the recording. The Appeals Court said recording police officers while they performed their duties in public was clearly covered by the First Amendment. The opinion also dealt with some ancillary Fourth Amendment issues, but seemingly made it clear these recordings were protected activity.

The law remained on the books unaltered. Thanks to legislative inaction, the law is still capable of being abused. Since the Appeals Court didn't declare the law unconstitutional, or even this application of it, it has taken another federal court decision nearly a decade later to straighten this out. (h/t Courthouse News Service)

The ruling [PDF] deals with two First Amendment cases. One deals with activists recording cops. The other deals with another set of activists -- James O'Keefe's Project Veritas -- and its secret recording of Democratic politicians. The specifics might be a bit different, but the outcome is the same: recording public officials is protected by the First Amendment. The state law is unconstitutional.

Consistent with the language of Glik, the Court holds that Section 99 may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.

That just reiterates Glik's findings. The Massachusetts federal court goes further, though:

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions.

The court also points out the state government's response to the Glik ruling was wrong. The ruling did not limit itself to "openly" recording public officials. It said the First Amendment protected the recording of public officials performing public duties whether or not government officials knew they were being recorded.

In October 2011, the bulletin was accompanied by a memo from the Commissioner citing the Glik decision. The memo instructs officers that “public and open recording of police officers by a civilian is not a violation” of Section 99. The cover memo for the May 2015 recirculation “remind[s] all officers that civilians have a First Amendment right to publicly and openly record officers while in the course of their duties.”

[...]

But Glik did not clearly restrict itself to open recording. Rather, it held that the First Amendment provides a “right to film government officials or matters of public interest in public space.”

The court says siding with the government's interpretation would just result in more bogus arrests under the state's wiretap law.

But the training materials go beyond telling officers when it is impermissible to arrest; taking a narrow construction of Glik, they also communicate that it is permissible to arrest for secretly audiorecording the police under all circumstances. In other words, it gives the green light to arrests that, as the Court holds below, are barred by Glik.

This ruling should put an end to that. You'd think the last ruling would have done the job, but despite the Appeals Court never ruling that secret recordings of public officials were illegal, the state decided to interpret the decision this way, leading directly to the lawsuits requiring the record to be set one more time, seven years down the road.

Filed Under: 1st circuit, first amendment, first circuit, free speech, massachusetts, police, politicians, public accountability, recording

Public Records Law Reforms Still Haven't Made Massachusetts Any Less Of A Hellhole For Records Requesters

from the appears-the-massholishness-goes-all-the-way-to-the-top dept

Nearly a third of the official guide to public records requests published by the state of Massachusetts is given over to exemptions. That should give records requesters some idea of what they're in for when tangling with the state's agencies.

The state has developed a reputation for being a public records black hole that sucks in requests but never spits anything back out. MuckRock has a detailed post about one agency -- the Medford Police Department -- that appears, for the most part, to simply ignore requests it doesn't feel like fulfilling.

MuckRock records show that the agency consistently fails to acknowledge and fulfill requests, sometimes for years and despite appeals to the Massachusetts Supervisor of Public Records. Its failure to comply with even the updated legislation highlights the shortcomings that remain in enforcement mechanisms for citizens entitled to government information.

This means the nonprofit is burning up man hours attempting to communicate with the MPD's brick wall.

The oldest pending request, dating back to April 2013, had 112 email follow-ups that were sent to an officer who, at some point since initial submission, had left the department; these were followed by 14 fax follow-up messages to a currently valid office fax number.

If there's an exemption that can be used, it will be used. Up until recently, the state had the worst public records laws in the nation. And it looks like they're still the worst. This has allowed a state agency to claim a 63-year-old murder case investigation was still ongoing, despite the lead suspect having died years ago. In another case, the State Police took $180 from a requester and then refused to hand over the records requested.

The recently instituted public records law reforms don't seem to be having much of an effect on state agency responsiveness. MuckRock is reporting law enforcement agencies continue to be the main offenders, upholding the proud police tradition of ignoring laws officers and officials don't like.

This leads to insane, if not illegal, responses to records requests. Todd Wallack of the Boston Globe requested a photo of an officer and detective employed by the Boston Police Department. It rejected his request citing public records exemption f, which claimed the staff photos were "investigatory materials." When Wallack challenged this determination, the BPD responded with ¯\_(ツ)_/¯.

BPD couldn’t explain exactly how this exemption applied to the records in question. And so, the Supervisor of Public Records ordered the Department to fulfill the request. But with a lack of enforcement options from the SPR, it is still to be determined if the Department will comply or not.

The Supervisor of Public Records is an especially useless position, but one that meshes well with the state government's antagonistic take on transparency. The SPR makes the initial call on disputed records requests, but cannot, as a matter of law, force an agency to turn over records if the SPR determines the government agency is in the wrong. All the SPR can do is kick it up to the Attorney General for another determination. This escalation is completely at the discretion of the SPR, who is required by law to escalate reports of non-compliance by state agencies.

In essence, state and local agencies are being told "wait til your dad gets home" when they lose appeals, but without any estimate on when dad will be home or if he's even interested in handling these issues whenever the hell he actually gets back.

Here's how the state suggests requesters deal with Massachusett's effed-up public records laws. This comes directly from Secretary of State spokesperson Debra O'Malley.

“Sometimes requesters opt to sue because they might be more successful and it’s faster,” said O’Malley.

I'm sure O'Malley means well and is probably accurately portraying the near-farcical situation. But the government shouldn't be pushing citizens into lawsuits over public records. The presumption is supposed to be openness, not schoolyard taunts of "make me." But that's where the state remains, even after public records reform: a drain on taxpayers both ways, whether screwing them out of records or paying legal fees with taxpayer funds at the end of the apparently inevitable lawsuits.

Filed Under: boston police department, foia, massachusetts, medford police department, public records

Homicide, Sexual Assault Cases On The Line After Crime Lab Discovers Tech Using The Wrong Tools For The Job

from the more-faith-than-science-in-the-forensic-science-community dept

When life and liberty are on the line, law enforcement lab techs are there to turn hard science into a roulette wheel. Once you get past the fact that a lot of forensic investigative techniques are little more than junk science, you run directly into the failures of the humans staffing forensic/drug testing labs.

In the state of Massachusetts alone, more than 30,000 cases are in the process of being tossed due to lab tech misconduct. One lab tech faked most of her work, speeding through her workload by faking tests and test results. Another used the drug lab as her own personal drug stash, using whatever substances she wanted from incoming evidence and replacing it with filler.

Forensic science is plagued with incompetence and overconfidence, which is an incredibly bad combination when people's freedom is on the line. Only in recent years has the DOJ instructed forensic experts to stop overstating the certainty of their findings. But that hardly fixes the problem. Outside debunkings have led to zero changes in law enforcement forensic work -- a fact so disheartening a judge very publicly resigned from a committee seeking to fix these problems when it became apparent the committee wasn't actually supposed to fix anything.

Here comes more bad news on the forensic front, via criminal justice blog Grits for Breakfast.

The Houston Forensic Science Center has fired a crime scene investigator who violated policy by using unapproved equipment that resulted in false negatives for biological evidence in at least two sexual assault cases, officials said Friday.

Lab officials, who fired investigator Tammy Barette Thursday, said they may never know the full impact her actions may have had on other cases.

Well, sure, you may "never know" if you don't go looking. To be on the safe side, you could consider everything this investigator ever touched tainted. That would cover the "full impact" with some to spare. But if this is handled like any other case of lab misconduct, it will take a court to force a full accounting of the damage.

From what's been uncovered so far, it appears the lab tech used her own equipment to identify the presence of bodily fluids that contain DNA. Her personal tool didn't meet the lab's requirements, making any results of hers suspect. A lab supervisor found 19 cases in which the inadequate tool was used. Even in this limited sample, there were serious problems.

Out of 19 cases where Barette used the improper light source, including the case that sparked the investigation, only four had evidence available to retest, agency spokeswoman Ramit Plushnick-Masti said. Two of those were wrongfully marked as negative for the presence of biological fluids, when they should have yielded positives.

15 more cases "might have had a different outcome." That's not very comforting, considering this lab usually handles violent crimes like homicide and sexual assault.

The lab has responded in the most government of ways: by rewriting a policy that was already in place forbidding the use of personal equipment. The language has been toughened up to make it clear the violation that was always a violation is a policy violation. The single addition is the requirement for investigators to write down the model number of the equipment they use to perform tests. That should certainly prevent any future misconduct. [Gathers rolling eyes from under desk.]

The good news is the lab immediately fired the investigator. The bad news is the problem went undiscovered long enough to do some serious damage. Most of the damage is reputational, providing criminal suspects with ammo to challenge lab findings. If one tech can perform unauthorized tests, surely other accidents and misdeeds have been overlooked. When the lab itself can't say how many cases were affected -- or even how many tests might have been handled with inadequate equipment -- the potential fallout could couple the jailing of innocent people with the release of actually guilty prisoners.

Filed Under: evidence, houston, houston forensic science center, investigations, lab tech, massachusetts, tammy barette, texas

Massachusetts Supreme Court Looking To Define Where The Fifth Amendment Ends And Compelled Decryption Begins

from the let-a-new-wave-of-'wall-safe'-analogies-wash-over-this-land dept

Another case attempting to define the contours of the Fifth Amendment as it pertains to cellphones and passwords has arrived in the Massachusetts Supreme Judicial Court. The case involves sex trafficking allegations and a phone seized from the defendant at the time of his arrest. Testimony from a person who said she was trafficked suggested the phone seized belonged to the defendant Dennis Lee Jones. The state sought to compel Jones to unlock the seized phone, but this motion was denied by the trial court, resulting in the state's appeal.

While the lower court did express some concern that unlocking devices can result in the production of evidence to be used against the person unlocking it, the standard for compelled password production has nothing to do with the eventual recovery of evidence. All the state* needs to reach is a reasonable certainty the defendant knows the password to the seized device. This is called a "foregone conclusion" -- the defendant "telling" the state what it already "knows:" that the phone belongs to him and he can unlock it. The potential evidence held inside the phone may eventually be used against the defendant, but the Fifth Amendment question isn't about this evidence, but rather the simple act of producing a password, which isn't considered testimonial if the government can tie the phone to the accused.

*Yes, I realize Massachusetts is technically a commonwealth. There's no need to point this out in the comments.

In this case, it appears the state failed to meet that standard. The opinion being appealed says the government hasn't been able to conclusively show the phone belongs to Jones or that he knows the password. It may have shown evidence relevant to the case resides on the device, but that's not enough to move forward with compelled decryption.

In this case, the Commonwealth has established with reasonable particularity that information relevant to the charges against Mr. Jones exists on the LG Phone, and that it is authentic, satisfying two of the three elements of the “foregone conclusion” analysis. For example, the 7119 Number is linked to the LG Phone; online listings for alleged prostitution reference the 7119 Number; and police have possession of text messages from the 7119 Number related to commercial sex acts. In short, the Commonwealth has established independently that information connected to the charged sex trafficking activity is on the LG Phone.

The Commonwealth, however, has not demonstrated with reasonable particularity that Mr. Jones possesses the PIN number for the LG Phone or has access to what that phone contains.

[...]

The phone is not registered to Mr. Jones or to his address. A female voice (McNeill’s) answers voice calls to the 7119 Number. The Commonwealth has provided no evidence of Mr. Jones accessing or entering the PIN number into the LG Phone. The Commonwealth does not suggest that any law enforcement officer called the LG Phone and heard Mr. Jones answer the phone. In addition, Mr. Jones has not admitted to owning or controlling the phone. In short, the Commonwealth has offered no evidence akin to the strong evidence offered in Gelfgatt, where the defendant admitted to encrypting (and being able to decrypt) the computers at his home office.

The Commonwealth relies mainly on statements from Ms. Fortin, who lists the 7119 Number in her phone’s contact list as “Dennis,” and claims the 7119 Number belongs to Mr. Jones. I have not seen a statement from Ms. Fortin that shows she witnessed Mr. Jones using the LG Phone, nor did she describe the physical characteristics of the phone (such as model, color, or general appearance) in a way to suggest she has seen Mr. Jones physically use or enter a PIN into the phone. Defendant challenges Ms. Fortin’s credibility. The Commonwealth seems tacitly to acknowledge Ms. Fortin’s credibility issues, indicating in its search warrant affidavit that it seeks access to the contents of the LG Phone to “corroborate or fail to corroborate” the “key aspects of Ms. Fortin’s statement.”

Because it hasn't reached the "foregone conclusion" standard, the state's demand for a password makes this act testimonial.

In seeking to compel Mr. Jones to provide the PIN for the LG Phone, the Commonwealth is asking Mr. Jones to admit that he owns and/or controls the LG Phone, a fact the Commonwealth believes to be true, but does not know, and has been unable to establish independently.

Law prof Orin Kerr, who has written volumes on Fourth and Fifth Amendment issues, has filed an amicus brief [PDF] in this case. Citing his own draft paper [PDF] on the Fifth Amendment and compelled decryption, Kerr's argument mainly focuses on setting the confines of the "foregone conclusion" standard. His brief rejects both the stricter standard suggested by the defendant and lower standard asked for by the government. (h/t ReleasetheKraken)

The defendant argued for "proof beyond a reasonable doubt" he knew the password to the phone. But Kerr points out that's a standard for convictions, not accessing potential evidence.

Due process requires that the government must prove every element of a crime beyond a reasonable doubt because an individual’s freedom is at stake. Assigning such a high burden acts as “a prime instrument for reducing the risk of convictions resting on factual error.”

In contrast, “the basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system[.]” The individual must plead the Fifth and have a court assess the privilege before (often long before) any trial might occur. Although the individual must show that an answer would be incriminating, the individual may not even be a criminal suspect at that time. The Commonwealth could reasonably know only a small part of the evidence that it would later learn before deciding to bring a criminal case against the individual. For these reasons, the trial standard of proof beyond a reasonable doubt standard is not well-suited for the foregone conclusion doctrine.

According to Kerr, obtaining a password only ties the accused to the unlocked device. Whatever is on the phone may help the government prove its case, but it would not be able to use the suspect's compelled cooperation against him in court. It's not much of a protection, but it's something. It would prevent the government from making inferences about the phone's ownership and instead have to rely solely on the evidence found on the phone. The evidence must make the connection on its own without the government's help.

The government argued for a lower standard, one that would allow it to get its motion to compel granted. It wants a "preponderance of evidence" standard applied to "subsidiary facts." With this, the government could use the evidence provided by the victim to meet the standard needed to compel password production without having to prove on its own that Jones owned the phone it's seeking to unlock. Kerr rejects this as well, saying it introduces an evidentiary standard not needed when evidence is still being sought.

Identifying a standard for “subsidiary facts” arises when a trial court must determine what facts to consider to assess whether evidence is admissible at trial. But as explained above, Gelfgatt motions do not involve trial evidence. The only question is whether the Commonwealth can show by clear and convincing evidence that the subject of the order knows the passcode needed to unlock the device. There are no subsidiary facts to consider.

[...]

Adopting the Commonwealth’s preponderance standard for “subsidiary facts” would only water down the clear and convincing evidence standard. To see why, imagine a reliable informant previously told an officer that a criminal suspect regularly used one of two phones found in an abandoned car. But there’s a catch: The officer’s memory is hazy about which phone the informant identified. Based on the officer’s uncertain testimony, the trial court concludes that there is a 51% chance that the informant identified a particular phone as the one the suspect regularly used.

Now imagine the Commonwealth obtains a Gelfgatt order, the suspect pleads the Fifth, and the reviewing judge must determine if the Commonwealth has proven the suspect’s knowledge of that phone’s password by clear and convincing evidence. How should the court treat the officer’s uncertain testimony? Under the Commonwealth’s approach, the judge must treat as 100% certain that the informant identified that particular phone as the one regularly used by the suspect. Because the Commonwealth established the identification of that phone by a preponderance of the evidence, the judge would have to assume it as a true “subsidiary fact” and consider whether the identification showed by clear and convincing evidence that the suspect knew the phone’s password. That would make little sense.

Doubt about the existence of subsidiary facts should not be ignored simply because the existence of those facts is more likely than not.

Here's what Kerr believes the standard should be for compelled decryption:

A clear and convincing evidence standard strikes me as a fair approximation of a burden needed to eliminate that advantage. When the government can show by clear and convincing evidence that it already knows the facts implicit in the suspect’s testimonial acts, it is highly unlikely that the government will obtain any trial advantage from the testimony implicit in that act. The clear and convincing standard is sufficient to be confident that the government need not and will not rely on the testimonial act at trial to prove its case.

If that's the standard, it's unlikely the government has met it. It is lacking several establishing facts tying Jones to the phone seized from him during his arrest. If so, it cannot compel decryption.

The standard for compelled decryption is continually shifting. There's no on-point precedent from the US Supreme Court standardizing this across federal courts and every state has its own Constitution to consider as well during state-level prosecutions.

This will have to be taken up by the Supreme Court at some point, because producing passwords may not be technically testimonial if the government can meet the "foregone conclusion" standard, but it does lead to the production of evidence the government would have had access to otherwise. Analogies about wall safes and combinations only go so far when phones contain far more potential evidence than could possibly fit into a physical hole in the wall.

Then again, the Fifth Amendment only guards against self-incrimination. What's on locked devices may be incriminating, but unlocking a device only proves you can unlock it. If this element can't be used against a person in court, the government must still link evidence found to the criminal charges sought without drawing inferences from the compelled decryption itself. In many cases, this act won't prove essential to the government's case, even if the wealth of information unveiled ultimately helps secure a conviction.

Since the lines are still muddy, it may be in law enforcement's best interest to seek outside help cracking cellphones, rather than relying on something some courts may find testimonial, or otherwise determine the government hasn't met its burden to compel decryption. The future is going to filled with cases like these, and there's a good chance courts will need to spend more time discussing the implications of other security measures -- like fingerprints and facial recognition -- in terms of Fifth Amendment protections. For now, though, there's a poorly-defined standard making life more difficult for everyone involved in the judicial process to determine what can or can't be done without violating rights.

Filed Under: 5th amendment, compelled decryption, dennis lee jones, encryption, massachusetts, passwords

A Decade's Worth Of Meth Convictions Overturned Due To Drug Lab Employee's Misconduct

from the putting-'crime'-back-into-'crime-lab!' dept

Massachusetts prosecutors are seeing a bunch more Drug War wins turned into losses by drug lab misconduct. Annie Dookhan, a drug lab technician, falsified countless tests, ultimately resulting in the overturning of more than 20,000 convictions. Dookhan was valued for her productivity, but no one above her bothered to wonder why she was able to process samples so quickly. Turns out tests go much faster when you don't actually perform the tests.

If that were it, it would have been more than enough indication the nation's crime labs need more oversight and auditing. But it isn't. Another tech at another Massachusetts drug lab is erasing thousands of convictions. Chemist Sonja Farak, an 11-year veteran of the Amherst drug lab, apparently spent much of that time using the substances she was supposed to be testing, turning in falsified test results that landed people behind bars.

The Farak investigation uncovered the drug lab's lack of standards, which included more than allowing an employee to use drugs while on the clock for at least eight of the eleven years she was employed. There's no way of telling how many drug tests might be tainted, not just by employee malfeasance, but by a lack of best practices, like running blanks through testing equipment to ensure new tests weren't tainted by residue left behind by previous tests.

The total number of convictions expected to be thrown out due to Farak's abuse is currently sitting at 7,690 cases. But this won't be the final total. Zach Huffman of Courthouse News Service reports an entire decade's-worth of convictions is being examined.

Expanding relief for a class of drug defendants whose cases crossed paths with a now-disgraced chemist, the highest court in Massachusetts agreed Thursday to throw out nearly a decade’s worth of meth convictions plus all cases from the chemist’s last four years on the job.

The state wants the bleeding to stop at 8,000 cases -- covering only those where Farak signed the drug certificate. But as the court points out in its order [PDF], this isn't just about Farak. It's about the drug lab that protected Farak and the prosecutors that protected the drug lab -- the latter of which included hiding evidence of misconduct from accused drug offenders.

The respondent Attorney General contests the petitioners' proposed remedy, as well as the result suggested by the district attorneys. The Attorney General proposes a different remedy. Based on Farak's admission that she began to tamper with other chemists' samples in the summer of 2012, the Attorney General contends that those defendants whose drug samples were tested between June, 2012, and Farak's arrest in January, 2013, should be offered the opportunity to obtain relief under the protocol established by this court in Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 316-317 (2017) (Bridgeman II).

We conclude that Farak's widespread evidence tampering has compromised the integrity of thousands of drug convictions apart from those that the Commonwealth has agreed should be vacated and dismissed. Her misconduct, compounded by prosecutorial misconduct, requires that this court exercise its superintendence authority and vacate and dismiss all criminal convictions tainted by governmental wrongdoing.

The AG's suggested fix is completely inadequate. The court's final decision covers far more than the limited one-year window of adjacent convictions the AG was willing to toss.

The class of "Farak defendants" includes all defendants who pleaded guilty to a drug charge, admitted to sufficient facts on a drug charge, or were found guilty of a drug charge, where (i) Farak signed the certificate of analysis; (ii) the conviction was based on methamphetamine and the drugs were tested during Farak's tenure at the Amherst lab; or (iii) the drugs were tested at the Amherst lab on or after January 1, 2009, and through January 18, 2013, regardless of who signed the certificate of analysis.

It is impossible this is the only state where this sort of misconduct has occurred. Testing drug samples is like any other job -- people will cut corners. But it also offers something for those with drug problems and those seeking to personally profit from their employment. Something other jobs don't offer: unfettered access to controlled substances. People will be people and drugs will disappear and results will be faked. The problem is this employee misconduct costs people their freedom. And from what's been observed in two major cases in Massachusetts, the entities overseeing these labs don't care about the collateral damage until a court forces them to.

Filed Under: annie dookhan, drug lab, massachusetts, meth convictions, misconduct, sonja farak

Massachusetts Just The Latest State To Embrace Net Neutrality

from the boxing-in-bullies dept

In the wake of the FCC's historically unpopular decision to gut net neutrality, more than half of the states in the nation are now exploring their own, state-level net neutrality rules. In some instances (Montana) states are signing executive orders that ban state agencies from doing business with ISPs that behave anti-competitively. Elsewhere (Oregon and Washington) states are passing new laws that largely mirror the FCC's discarded 2015 rules, and in some instances (California) are a bit tougher than the FCC on things like usage caps or "zero rating."

This week, Massachusetts began finalizing approval of S2610, which initially proposed doing many of the things other such bills do (banning ISP blocking, throttling, or crippling of competitor services and websites). But the bill has since been notably reworked to instead create a state-wide registry that ranks ISPs based on how terrible their service, pricing, privacy and other behaviors are:

"There shall be an internet service provider registry to make broadband internet access service quality and network management practices readily available to customers in the commonwealth. The department shall compile for the registry information disclosed by internet service providers in the commonwealth pursuant to this section and from the verification tests conducted pursuant to this section. The department shall organize the registry in a format that is conducive to review and comparison by customers and prospective customers of internet service. The registry shall be available on the department’s website and shall include net neutrality and consumer privacy grades under subsection (f) in comparison chart for fixed line internet service providers and 1 comparison chart for wireless internet service providers. The department shall provide the information in the registry upon request."

ISPs that behave would be able to display a Massachusetts seal of approval to, purportedly, clearly advertise that they're not terrible and anti-competitive. Efforts to actually include language preventing things like the blocking and throttling of competitors were supposed to be added via amendment, but were thwarted at the behest of telecom lobbying organizations according to regional news outlets. In conversations with state lawmakers, I've also been told that leaders wanted to tightly restrict the language in the bill to avoid ISP lawsuits, since the FCC's "Restoring Internet Freedom" repeal ironically tries to ban states from protecting consumers (you know, state rights and all that).

Since large ISPs convinced the Trump FCC to neuter not only FCC authority but many of the transparency requirements, having a registry that clearly illustrates what kind of connection you're buying isn't a terrible idea. That said, without any hard restrictions on bad behavior, relying solely on naming and shaming bad policy actors can only go so far. A lack of competition means that users can't switch ISPs anyway, so while transparency is great and all, it alone isn't going to force monopoly last mile broadband providers to magically behave.

As is usually the case, local broadband and TV providers tried to claim that rules actually preventing them from being anti-competitive bullies would hurt jobs, puppies, and innovation:

"Our members support and adhere to the principles of net neutrality every day while employing thousands of Massachusetts residents and investing over a billion dollars annually in the Commonwealth’s economy,” Tim Wilkerson, vice president of the New England Cable & Telecommunications Association, said. “The measure being considered in the Massachusetts Senate will do little to protect consumers while hurting innovation and economic growth."

Even if these claims could be taken seriously, perhaps that's something ISPs should have considered before they lobbied to dismantle popular and relatively modest (by international standards) net neutrality protections on the federal level. ISPs have promised to sue states that try and protect consumers in the wake of federal apathy, but they've yet to actually do so -- in part because they're nervous about looming legal challenges of the FCC repeal.

Filed Under: ajit pai, fcc, massachusetts, net neutrality