DOJ Tells Forensic Experts To Stop Overstating The 'Scientific Certainty' Of Presented Evidence

from the directed-to-use-air-quotes-when-saying-'science'-or-'certainty' dept

The DOJ is finally addressing some long-ignored problems with the forensic evidence its prosecutors rely on. For two decades, FBI forensics experts handed out flawed testimony in hundreds of criminal cases, routinely overstating the certainty of conclusions reached by forensic examination. Of those cases, 28 ended in death penalty verdicts.

An earlier attempt to address issues with flawed science and flawed testimony swiftly ran aground. Federal judge Jed S. Rakoff very publicly resigned from a committee formed to examine these issues after he was informed by the attorney general's office that he wasn't actually supposed to be examining these issues.

Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery -- i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court -- is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect.

[...]

Because I believe that this unilateral decision is a major mistake that is likely to significantly erode the effectiveness of the Commission -- and because I believe it reflects a determination by the Department of Justice to place strategic advantage over a search for the truth -- I have decided to resign from the Commission, effective immediately. I have never before felt the need to resign from any of the many committees on which I have served over the years; but given what I believe is the unsupportable position now taken by the Department of Justice, I feel I have no choice.

Caleb Mason of Brown, White & Osborn (the "White" is Popehat's Ken White) reports that the DOJ appears to be taking these problems more seriously. It has issued a directive [PDF] forbidding forensic experts from making claims about "scientific certainty" when presenting evidence.

Directive Number 1 provides that agencies must now “ensure that forensic examiners are not using the expressions ‘reasonable scientific certainty’ in their reports or testimony.” Yes, you read that right. The Department of Justice is telling its forensic expert witnesses to stop claiming “scientific certainty.” Why? Because for most forensic disciplines, there never was any, and DOJ is—after decades of resistance—admitting it.

One of the forms of evidence is fingerprints, the thing every law enforcement agency makes sure to obtain when booking suspects because it's supposedly so infallible. But like almost everything else law enforcement forensic experts claim are reasonably certain, scientifically-speaking, examination of prints no more guarantees a match than examining bite marks.

Fingerprint examiners look for “matching points” in prints, but believe it or not, there are no general standards for which points to look at, how many points to look at, or even what counts as a “point.” Not only are there no established standards, there isn’t even general agreement within the forensic analysis community. Some people like eight points, others ten, others twelve. Many examiners insist they can make an identification with just a single point.

Even more amazingly, in stark contrast to DNA matching, no one knows what the statistical likelihood is of two fingerprints sharing particular points, or whether that likelihood is different for different regions or features of the print. This is the crucial question for any identification methodology, because while each person’s fingerprints may be unique, the examiner doesn’t look at every molecule—the examiner looks at whatever five (or eight, or ten) “points” he or she chooses to look at.

Why is this process still so vague even after decades of reliance on it for identifying suspects? Well, it's because the DOJ won't allow anyone other than the government to take a look at the collected records. Researchers who may have been able to make better determinations on how many points are needed for more definitive matches (or how often false positives are returned by the database) have been locked out by the DOJ.

But the big fingerprint databases are controlled by DOJ, and DOJ has steadfastly refused to let researchers use them for the types of analyses geneticists do with DNA. That’s what makes print analysis so frustrating: the data exists, so fingerprint analysis could be a genuine scientific discipline, with publicly-available databases, peer-reviewed research, known error rates, and accepted methodologies. It could be a real body of knowledge about the differential rates of occurrence among populations of particular physical features of our fingerprints. Hopefully one day it will be. But it’s not now, as the DOJ directives finally acknowledge.

The DOJ's not offering to open up its fingerprint database for outside examination. But at least it's admitting it hasn't let anyone without a vested interest in successful prosecutions take a good look at the methods used by its forensic examiners or the collected evidence they're working with.

[As a bonus, here's another fantastic read by Caleb Mason: a Constitutional examination of Jay-Z's hit track, entitled "JAY-Z’S 99 PROBLEMS, VERSE 2: A CLOSE READING WITH FOURTH AMENDMENT GUIDANCE FOR COPS AND PERPS."]

Filed Under: doj, evidence, forensics, prosecutors, science

FBI Hides Its Surveillance Techniques From Federal Prosecutors Because It's Afraid They'll Become Defense Lawyers

from the code-of-silence dept

We know the FBI isn't willing to share its investigative techniques with judges. Or defendants. Or the general public. Or Congress. The severely restrictive NDAs it forced law enforcement agencies to sign before allowing them to obtain IMSI catchers is evidence of the FBI's secrecy. Stingray devices were being used for at least a half-decade before information starting leaking into the public domain.

The FBI doesn't want to hand over details on its hacking tools. Nor does it want to discuss the specifics of the million-dollar technique that allowed it to break into a dead terrorist's phone (which held nothing of interest).

USA Today's Brad Heath has obtained documents showing the FBI's tech secrecy extends even further than its nominal opponents (judges, defense lawyers, defendants). Its secrecy even involves freezing out other players on the same team.

A supervisor also cautioned the bureau’s “technically trained agents” in a 2003 memo not to reveal techniques for secretly entering and bugging a suspect’s home to other agents who might be forced to reveal them in court. “We need to protect how our equipment is concealed,” the unnamed supervisor wrote.

The records, released this year as part of a Freedom of Information Act lawsuit, offer a rare view of the extent to which the FBI has sought to keep its most sensitive surveillance capabilities secret, even from others within federal law enforcement.

Yes, the FBI is so determined to keep its techniques secret that it won't even share it with high-ranking prosecutors, like Assistant US Attorneys (AUSAs). But it gets even better. The reason stated in the memo for locking out AUSAs is schadenfreuderiffic.

In case you can't see or read the picture above, here's what the memo says:

Over the past few months, ERF [Engineering Research Facility] has expressed concern about Tech Agents revealing technical details to Case Agents and especially to AUSAs. There have been several instances of AUSAs becoming familiar with our techniques, then resigning and becoming defense lawyers. There also is concern about retiring Agents performing investigative work for defense counsel (i.e. right here in MP).

One conclusion that could be drawn from AUSAs "becoming familiar" with FBI surveillance techniques, then switching sides to work as defense lawyers, is that the FBI's techniques are so intrusive and pervasive that AUSAs no longer find it conscionable to act on the behalf of the FBI.

That's not the only damning paragraph in the two-page set of responsive documents. There's also this, which again shows the FBI openly encourages obfuscation and omission in federal courtrooms.

Over the past week, I have received two ECs [electronic communications] form the field which describe in GREAT detail surreptitious entries and special project concealments installed in the target locations. These ECs describe the equipment concealed, item in which the equipment was concealed, and where the concealments were placed. These ECs were drafted by case agents, uploaded in ACS, and placed in the case file.

TTAs [technically trained agents] should not be providing such detail to case agents. One reason TTAs do not testify is to protect our trade craft. If the case agents have this information, they will be required to reveal it during cross examination at trial. Also, an AUSA may require the EC be turned over during discovery before trial. We need to protect how our equipment is concealed and where our is concealed.

It is sufficient for the case agent to simple state that, pursuant to a court order, equipment was installed in the target location.

So, the FBI will hide information from their own case agents in order to prevent defendants from obtaining the details of the surveillance used to build a case against them. Needless to say, preventing the defense from obtaining these details also prevents judges and juries from hearing them and using those to weigh the Constitutionality of the techniques.

This secrecy undercuts defendants' rights by denying them the opportunity to challenge the evidence or the methods used to obtain it. It also blows right by the Fourth Amendment by obfuscating the techniques used, a process that begins with search warrant affidavits that deliberately leave out essential details in order to protect the FBI's surveillance secrets. The FBI's cavalier attitude towards the rights of Americans traces back to the days of J. Edgar Hoover. While the agency has moved ahead in terms of technical prowess, the underlying "ends justifies the means" attitude appears unchanged.

Filed Under: defense lawyers, fbi, prosecutors, secrets, surveillance

DOJ Pretty Sure The Problem With The Criminal Justice System Is Everyone Else

from the so-many-feelz dept

Earlier this year, Judge Alex Kozinski went much further than his one-off comments in judicial opinions to take the prosecutors to task for… well, pretty much everything. The "epidemic of Brady [exonerating evidence] violations" he noted in 2013's USA v. Olsen decision was just the leadoff. Kozinski teed off on faulty forensic evidence (comparing arson "specialists" to "witch doctors"), the way the "first impression" almost always favors prosecutors (who get to present their case first in criminal trials), and the general unreliability of eyewitness testimony, which is often portrayed as infallible when it's the goverment presenting the witnesses.

Several months later, the Department of Justice -- home to a great many prosecutors -- has finally responded. And its feelings are terribly hurt.

Federal prosecutors, who Judge Kozinski actually described in glowing terms, took offense at the fact they are not considered infallible by the Judge. And in the last few weeks, they have made their hurt feelings known.

Andrew Goldsmith, National Criminal Discovery Coordinator at the Department of Justice, and John Walsh, United States Attorney for the District of Colorado, wrote a letter to the Georgetown Law Journal expressing their displeasure with Kozinski’s contribution to the journal. Rather than take the opportunity to join in Kozinki’s call for a more careful justice system, Goldsmith and Walsh demonstrated a stunning lack of awareness about what they do and how often it goes wrong these days.

According to this defensive group of prosecutors, Kozinski's "provocative preface" was certainly food for thought for whoever Kozinski was referring to, but not them, because federal prosecutors are upstanding men and women whom the judge has insulted deeply.

While the preface raises several points that merit discussion, such as the reliability of certain forms of evidence, Judge Kozinski goes too far in casting aspersions on the men and women responsible for the administration of justice in this country. His preface seemed to question not only the integrity of our agents and prosecutors, but also the government’s capacity to self-correct in the (very small) minority of cases when someone falls short.

The problem is, Kozinski is one of a very few judges to question the integrity of prosecutors. And for all the umbrage being hauled in by the semi-truckful, Kozinski was rather restrained when discussing federal prosecutors. Still, the DOJ cannot sit idly by while someone suggests a few prosecutors don't play by the rules and that the rules themselves are faulty. So, it does what the DOJ always does in these situations: defends the honor of the (not even directly) accused. When the DOJ takes down a local police force for misconduct or abuse, it always makes sure to rub the bellies of the police force at large before getting to the bad stuff.

In this case, the bad stuff preceded the defensive statements from the DOJ, which now have to stand alone.

We have both worked with many prosecutors during our combined thirty-three years at the Justice Department. We have served as line prosecutors and supervisors, and now hold positions with national responsibility. Throughout our careers, what has always struck us is the professionalism, integrity, and decency of our colleagues. They care deeply about the work that they do, not because they are trying to rack up convictions or long sentences, but because they seek to ensure that justice is done in each and every case they handle. This extends to the seriousness with which they take their discovery obligations. Our prosecutors comply with these obligations—because they are required to do so and because it is the right thing to do. It is a principle embedded not only in the Department’s internal rules, but in the Department’s culture.

And being so good is oh so exhausting.

At the Department of Justice, we recognize our responsibility to work tirelessly to improve the work that we do, and to enhance the fair administration of justice.

In support of its assertions, the DOJ claims only a small handful of prosecutions have resulted in the courts calling it out for abusive actions. But that does nothing to diminish Kozinski's points. All it does is distract from them, as Fault Lines blogger Josh Kendrick points out:

Indeed, there are far more cases than the few Kozinski discusses that demonstrate an issue with the prosecution disclosing favorable evidence. And when the evidence comes to light, the DOJ rarely admits to the problem. Instead they argue the evidence wasn’t important, wasn’t available, wasn’t in their specific office, didn’t affect the outcome of the case, or could have been found by the defendant on his own. And the courts are usually cool with any of those arguments. Because once somebody is convicted, the courts hate to unconvict them.

[...]

They don’t actually deny the problem, they create a decoy argument. Sure, there are probably a lot of prosecutors that work very hard to make sure they meet their obligations. In fact, that is exactly what Kozinski meant when he called them “fair-minded, forthright and highly conscientious.” But that doesn’t mean there aren’t some that aren’t. And the enormous amount of power wielded by prosecutors, and especially federal prosecutors, means there is no minimum number of bad apples we should accept.

Furthermore, even if the DOJ is staffed with the best prosecutors in the nation, they're still there to perform a certain task. The DOJ calls it "justice," but in reality it's to obtain convictions. There's a lot of area between "justice" and "jail sentences," but prosecutors rush across this open ground to obtain the latter. The DOJ doesn't second-guess its actions and if others do, it second-guesses their conclusions.

Because of its focus, even the best prosecutors who've never committed a Brady violation in their careers are still part of the problem. And that problem will never be addressed if prosecutors immediately elevate their hackles whenever someone suggests their methodology, tactics or submitted evidence might be questionable. Great people can be great prosecutors and still be part of the problem Kozinski wrote about. The culture (for lack of a better word) doesn't exactly encourage retrospection or restraint, as Above the Law's Matt Kaiser points out:

To be clear, I do think the vast majority of AUSAs are fundamentally good people who are trying to do what they do with integrity. I also think that the vast majority of AUSAs are bright aggressive lawyers who want to win.

Federal prosecutors aren’t trained to read rules or facts to give an edge to the other side. They don’t high-five each other for giving someone suspected of a crime the benefit of the doubt. They don’t send at-a-boy emails to their colleagues for the exercise of discretion in favor of leniency.

It isn’t a question of whether federal prosecutors are good people; it’s whether these people, trusted with enormous power, are exercising that power in the way they ought.

This is the situation everywhere, not just at the DOJ. Federal prosecutors are bitterly licking their Kozinski-inflicted paper cuts and failing to see the larger point of his essay. There are problems in the justice system -- some inherent, some more deliberate. But no one on this end of the equation wants to discuss them. It's left to judges to correct prosecutors' misconduct and it just isn't enough. Too many defendants are talked into plea agreements pre-trial or simply dissuaded from challenging their prosecution by the amount of time and money that must be expended in an effort that's far from guaranteed.

Misconduct goes ignored by some judges and, in a majority of cases, by the offices these prosecutors work for. Convictions are the goal and prosecutors aren't praised for showing restraint, leniency or anything else but prosecutorial efficiency. Corners will be cut, shaky evidence will be backed by questionable experts, and even the most dubious prosecutions seem to have better than a 50% chance of resulting in a conviction. Why would they change? Their side has a lion's share of the "wins."

Filed Under: alex kozinski, andrew goldsmith, criminal justice, doj, prosecutors

Court Smacks Prosecutors For Refiling Identical Charges In Hopes Of Keeping Evidence From Being Suppressed

from the sore-losers dept

Prosecutors hate losing -- so much so that they're willing to color outside the legal lines for a chance at a win. Plenty of prosecutorial misbehavior has been uncovered over the years, most of it tied to the withholding of exonerating evidence.

But they also do other, smaller things. Like this, via FourthAmendment.com.

Police officers went to an apartment building in Clay Center where Parry and his girlfriend lived with their 2-year-old son. A neighbor of Parry's had reported a strong smell of burning marijuana in the building. The officers concluded the smell originated in Parry's residence, so they knocked on the door. Parry and his girlfriend stepped across the threshold to speak with the officers. The woman admitted she had been smoking marijuana earlier in the day during a birthday celebration. The officers requested permission to look in the apartment.

Long story short, consent was denied but the officers searched the apartment anyway, finding drugs and paraphernalia. This evidence was suppressed at Dominic Parry's hearing. This ruling was affirmed on appeal. The prosecutors decided that -- despite two rulings to the contrary -- they really deserved a second chance to put Parry behind bars. So, they gave themselves one.

Four days after the release of the panel decision in Parry I, the State dismissed No. 13CR2 against Parry without prejudice and immediately charged him in Clay County No. 14CR35 with the same offenses. As a practical matter, the complaints in the two cases differ only in their district court identification numbers.

Not only were the complaints the same, but the initial outcome was the same.

Not surprisingly, Parry filed a motion to suppress in No. 14CR35. The district court held another evidentiary hearing. This time the State argued the search of Parry's apartment was proper because exigent circumstances excused the need for a search warrant and even if the search were constitutionally improper, the marijuana and paraphernalia would have been inevitably discovered. The district court found those arguments unpersuasive and again granted Parry's motion to suppress.

And again, the state appealed, leading to the appeals court's disgruntlement at having to address the same prosecution twice.

The doctrine should apply here even though, technically, this case is not the same case as Parry I. The distinction between the two rests on the slenderest of technicalities. The charges against Parry are the same. The dismissal of the original case was immediately followed by the refiling of those charges in this case—a maneuver the State undertook several days after the adverse ruling from this court in Parry I. The State readily acknowledges the goal of the maneuver to be precisely what the circumstances otherwise indicate. The State wanted a do-over on the issue of the constitutionality of the police search of Parry's residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing.

The state claimed it wanted to explore doctrinal arguments it didn't look at during its first prosecution. The court reminds them that if this sort of thing were permitted, nothing would stop prosecutors for continually refiling charges until the desired result was achieved.

The State has dismissed and refiled criminal charges to evade an appellate decision confirming that Parry's Fourth Amendment rights were violated in a search of his home. The State wants to garner another hearing in the district court to make additional arguments on the issue. Law of the case aims to prevent precisely that sort of repetitive airing of points already decided in the district court and reviewed on appeal. If the doctrine were inapplicable in this situation, the State, in the face of an adverse decision on the merits in this appeal, could again dismiss, refile, and get yet a third opportunity to argue the issue—with no end in sight.

The end result of a finding in favor of the state would lead to widespread abuse, as failed prosecutions could be endlessly revived to address the state's arguer's remorse.

In marshalling their arguments, legal advocates always pick and choose among possible positions, honing the promising ones and jettisoning those that don't seem to be. Having chosen disadvantageously, especially in hindsight, an advocate cannot lay claim to manifest injustice as a result.

The justice system is already riddled with holes. Searches that blow right past Fourth Amendment protections are routinely salvaged through exigent circumstances exceptions, inevitable discovery rulings, nonverbal cues being interpreted by courts as consent and various other loopholes in constitutional coverage. (Beyond that, law enforcement officers are excused for any violations of the Fourth Amendment via the good faith exception, various levels of immunity and a court system still largely deferential to the needs and wants of law enforcers.)

Dropping charges and refiling them just to get another chance to secure a conviction is an obvious abuse of a system that's already severely compromised. That the state actually thought this might work says more about the system itself than the moral turpitude of the prosecutors.

Filed Under: dominic parry, lawsuits, prosecutors

Latest Abuse: Feds Reading Emails Between Prisoners And Their Lawyers

from the because-they-can dept

Another day, another story of abuse by federal prosecutors. The latest is that they're now regularly reading the emails between inmates and their lawyers. These are the kinds of things that most people believe should be part of confidential attorney-client privilege. And, for quite some time, prosecutors respected that. However, now they're claiming that since prisoners using the prison email system agree to a notice upfront saying their communications may be monitored, they gave up that right.

Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers — a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.

The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided.

The "divide" from judges seems pretty ridiculous. Some judges say it's okay in part because inmates have other ways to communicate privately with their lawyers, but everyone with a basis in reality notes that those "other ways" (mainly letters) take forever and really hamper the ability of an inmate to work with his or her lawyers. But, some courts just don't care.

The judge overseeing that case, Allyne R. Ross, ruled on Thursday that the government was allowed to review the emails. “The government’s policy does not ‘unreasonably interfere’ with Mr. DiFiore’s ability to consult his counsel,” she wrote.

In Dr. Ahmed’s case, the judge, Dora L. Irizarry, ruled against the government last month, barring it “from looking at any of the attorney-client emails, period.”

This certainly seems like one of those issues that's destined for the Supreme Court in the near future.

Filed Under: attorney-client privilege, doj, feds, inmates, prosecutors

Prosecutors In 'Sexting' Case Apparently Obtained Search Warrant To Photograph Teen's Penis

from the combating-child-porn-by-creating-forced-child-porn dept

Julian Sanchez alerts us to a crazy story in the Washington Post (which, it should be noted, appears to be sourced from one side of the case, so recognize the potential bias), accusing prosecutors in a "sexting" child porn case of going so far as to get a search warrant to take a photograph of the defendant's "erect penis" in order to compare it to the one in a video he sent his girlfriend.

A Manassas City teenager accused of “sexting” a video to his girlfriend is now facing a search warrant in which Manassas City police and Prince William County prosecutors want to take a photo of his erect penis, possibly forcing the teen to become erect by taking him to a hospital and giving him an injection, the teen’s lawyers said

Like many other similar cases, this involves two teenagers sexting each other. We can all admit that this is a rather stupid thing to do, but it would be crazy not to recognize that this happens quite frequently with teens these days. It's already a pretty big stretch to try to twist those cases into "child porn" cases, but various prosecutors have been doing exactly that for years now. In this case, the 15-year-old girlfriend sent her 17-year-old boyfriend a photo of herself, and he sent back the video. The mother of the girl complained, and prosecutors went after the boy for "two felony charges, for possession of child pornography and manufacturing child pornography."

If that already seems fairly questionable, prosecutors apparently decided to take things to the next level when the boy refused to plead guilty:

The male teen was served with petitions from juvenile court in early February, and not arrested, but when the case went to trial in juvenile court in June, Foster said prosecutors forgot to certify that the teen was a juvenile. The case was dismissed, but police immediately obtained new charges and also a search warrant for his home. Police also arrested the teen and took him to juvenile jail, where Foster said they took photos of the teen’s genitals against his will.

The case was set for trial on July 1, where Foster said Assistant Commonwealth’s Attorney Claiborne Richardson told her that her client must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone. Foster asked how that would be accomplished and was told that “we just take him down to the hospital, give him a shot and then take the pictures that we need.”

The teen declined to plead guilty. Foster said the prosecutor then requested a continuance so police could get a search warrant, which was granted by substitute Juvenile Court Judge Jan Roltsch-Anoll.

So, if you're keeping score at home, what we have is (1) two teens (stupidly, but not that surprisingly) sending each other revealing photos/videos of each other in a consenting manner that could be seen as "child porn" solely based on their age and (2) law enforcement forcing the boy to create more such "child porn" in an effort to pressure him into pleading guilty to two felony child porn charges. How does that make any sense at all? Can anyone actually claim that the "forced" photo by police and the followup search warrant, with the plan to "inject" him in a hospital to photograph his erect penis, is somehow less problematic than the original sexting video?

Filed Under: child porn, manassas city, prince william county, prosecutors, search warrant, sexting

Legislators In North Carolina Want To Let Law Enforcement Hide Personal Info From Public Records

from the I-guess-we're-referred-as-'the-Public'-for-a-reason... dept

Often, it seems there are two sets of rules: the set we the public are expected to follow, and those that legislators, law enforcement and other government subsects follow. Sometimes, it's not just something that feels that way. Sometimes, it actually is, like the discovery that lawmakers were profiting from inside trading. This prompted a quick change in laws to make legislators act like law-abiding citizens, but it was just as swiftly rolled back once the outrage had died down.

Legislators in North Carolina are now considering a bill that would give government employees and officials unprecedented control over public records -- a "courtesy" that apparently won't be extended to the public. (via Techdirt reader Jj)

Wake County Assistant District Attorney Colleen Janssen spoke before a House judiciary committee before it passed a measure allowing state and federal prosecutors, federal judges and police officers to remove any information that could be used to identify them from city and county websites. Such information could include local tax payments, property deeds and other records accessible to the public online.

It includes one small caveat.

Identifying information wouldn't be removed from the actual records on file at local government offices.

Anyone with enough time on their hands can still head down and experience some quality face time at the local government office should they want to see the offline-only information, an interaction that will presumably be logged in some fashion, just in case.

Why is this bill even being considered? Because bad things happened once to this one person -- who also happens to be a prosecutor.

A prosecutor recently targeted by kidnappers urged a legislative committee Wednesday to endorse a bill that would shield the identity of law enforcement officials online.

An indictment says alleged gang members kidnapped Janssen's father, 63-year-old Frank Janssen, from his Wake Forest home in April and held him captive in an Atlanta apartment for five days before he was rescued by federal agents. The kidnappers had targeted the daughter as revenge for her prosecution of a gang member, but ended up at the wrong address and decided to abduct the father instead.

Janssen believes this law would help shield law enforcement members, along with the rest of the prosecution side of government, from those with "nefarious intentions." Presumably, the general public will still be subjected to nefarious actions, since they aren't being afforded the same luxury. Despite the fact that law enforcement has become a much safer occupation over the last 50 years, we are constantly told that the dangers are increasing, usually as a justification for misconduct, expanded surveillance or the acquisition of military equipment. Presumably, a world more dangerous for law enforcement would also be more dangerous for civilians, but very little thought is given to the wellbeing of the public. Instead, we get statements like this:

"Kidnapping and mortal danger are faced by state and federal prosecutors constantly."

That's from Robert Guthrie, the president of the National Association of Assistant United States Attorneys.

So, this would allow these parties to scrub online info, but the public's can still be public, even though this information is used by "nefarious" people as well, like scam artists, vengeful ex-anythings (employees, spouses, etc.) and other members of the criminal element. But only the chosen few will be allowed to take public information out of public records.

And that few may only stay a few for a brief amount of time. If passed, the law would open the door for nearly any entity, inside the government or out, to claim that its members are adversely affected by the publication of personal information in public records and that they too should be allowed to scrub their identifying information as well.

If this goes through, North Carolina will have two sets of public records laws -- one for whom danger is considered unacceptable and one for everyone else, where danger is expected to be just part of life.

Filed Under: law enforcement, north carolina, privacy, prosecutors, public information

US Judge Says Prosecutors Can Use A Warrant To Go Fishing For Information Held Overseas

from the jurisdiction:-the-whole-world dept

We've had some discussion concerning the NSA and its defenders arguing that the 4th Amendment doesn't apply outside of the US, but it seems they also believe that the US jurisdiction applies basically anywhere when they want it to. While we recently wrote about magistrate judges pushing back on overly broad requests for information, that clearly is not absolute. Magistrate judge James Francis recently ruled that Microsoft needs to turn over data held on servers in Dublin, even though a US warrant isn't supposed to apply outside the US. Microsoft, quite reasonably, sees this as a problem:

"A U.S. prosecutor cannot obtain a U.S. warrant to search someone's home located in another country, just as another country's prosecutor cannot obtain a court order in her home country to conduct a search in the United States," the company said. "We think the same rules should apply in the online world, but the government disagrees."

As does the judge. The judge's own explanation is basically that he's pretending the warrant is not a warrant, but a subpoena.

Francis agreed that this is true for "traditional" search warrants but not warrants seeking digital content, which are governed by a federal law called the Stored Communications Act.

A search warrant for email information, he said, is a "hybrid" order: obtained like a search warrant but executed like a subpoena for documents. Longstanding U.S. law holds that the recipient of a subpoena must provide the information sought, no matter where it is held, he said.

If the Stored Communications Act sounds familiar, that's because it's a part of ECPA, the horribly outdated law that we've been discussing for years concerning its need for reform. If this ruling stands (and Microsoft is already challenging it), it'll be just one more thing that ECPA reform needs to tackle.

Filed Under: 4th amendment, international, james francis, privacy, prosecutors, warrants
Companies: microsoft

How Three Decades Of Conservative Chief Justices Turned The FISA Court Into A Rubber Stamp

from the FISC:-both-the-wheels-AND-the-grease dept

The FISA court has been deemed a "rubber stamp" and with good reason. Not a single request was rejected over the last two years and over the last twelve years, the court has only rejected 10 out of 20,909 requests.

Reuters has put together a long and detailed piece showing why the court is so compliant. Much of it has to do with who was selected and who selected them.

Selected by the Chief Justice of the United States, FISA judges serve for staggered seven-year terms. Although the court carries 11 judges at a time, 14 have served this year because of routine turnover.

Six of the 14 were originally appointed to the trial courts by George W. Bush; five by Ronald Reagan; two by Clinton and one by George H. W. Bush.

"Since FISA was enacted in 1978, we've had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity," said Stephen Vladeck, a law professor at American University's Washington College of Law.

The court is currently comprised of 14 judges, 12 of which are Republican. Half are former prosecutors. Reggie Walton helped lead the War on Drugs under William Bennett. James Zagel spent seven years as the director of the Illinois State Police, following a dozen years in the state attorney's office (including three years as Chief Prosecutor). John Bates spent some time as an assistant state's attorney but more notably has spent a large part of his judicial career dismissing cases brought against the US government and its officials, including a challenge to an Obama-approved targeted killing and Privacy Act claim brought against the DOJ. Mary McLaughlin (the sole Democrat) spent four years as a prosecutor. Raymond Dearie has years of experience as an Assistant United States Attorney for the Eastern District of NY, along with other work done in conjunction with law enforcement. Thomas Hogan was involved in a ruling that restricted public access to Nixon's White House records (and ordered Playboy to continue printing copies in Braille) as well as jailing a NY Times writer for refusing to disclose a source and authorizing an FBI raid on a congressman's office -- a first in the government's history.

It's unsurprising that George W. Bush would find the makeup of the court to his liking when pushing his "War on Terror" policies -- conservatives with backgrounds in crime and (especially) punishment. (There's no bigger crime than terrorism.) Obama should have been the wild card -- someone who could have attempted to tilt things back in a more moderate direction or at least questioned the court's overwhelmingly partisan composition. Instead, he extended and expanded many of Bush's policies and realized there was no one better to carry out these directives than adherents to the party line.

Almost all of the current FISA judges declined to comment or be interviewed. Only one (Reggie Walton) responded, issuing this rather indignant statement:

"The perception that the court is a rubber stamp is absolutely false. There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges, to ensure that the court's authorizations comport with what the applicable statutes authorize."

Walton may not like the "rubber stamp" designation but the only information the public is allowed to look at indicates a vast majority of requests are granted, no matter how wide a net the requesting agents wish to cast.

Walton's claim that the court's authorizations "comport with what the applicable statutes authorize" is similarly hollow. What's been at least as surprising as the scope and reach of the NSA and FBI's granted requests is the fact that this massive-scale domestic surveillance still somehow falls under the protection of existing laws, or at least the secret interpretation of these laws.

Other information gathered by Reuters suggests some sort of oversight is being applied, but without further details, it's very hard to determine its effect on granted requests.

The records also show that FISA judges ordered "substantial modifications" to 497 surveillance and property warrants and 428 of the business record warrants

The statistics are especially intriguing for business record warrants for 2011 and 2012. Of 417 warrants authorized, the court "substantially modified" 376.

There are a few educated guesses as to what "substantially modified" means, and it very likely doesn't mean "protecting the privacy of US citizens."

Syracuse University College of Law professor William C. Banks, who follows the FISA court closely, said he suspects that warrants are "modified" when judges request more information about a warrant or decide to split a warrant with multiple suspects, phone numbers and locations into several, more specific ones.

"We can't tell the extent of modification, but clearly it suggests that the judges are taking a real look at these things and are at least modifying them in some respect," said Penn Law professor Theodore Ruger. "But I don't think it answers the bigger, more important question of whether this court is acting as a balanced check on the government's authority."

To date, the court has been little more than a complicit tool of two consecutive administrations. Exacerbating this problem is the fact that the Chief Justice of the United States is free to pick FISA judges that align with their viewpoints on crime, terrorism and security. What may have originally served as a functioning part of our system of checks and balances has now become an administrative lapdog and a willing cog in the War on Terror machinery.

William C. Banks pointed this out to current and former FISA judges in his keynote speech given at an American Bar Association dinner celebrating the 35th anniversary of the FISA court.

"FISA envisioned case-specific surveillance, not a generic surveillance operation, and its approval architecture was accordingly geared to specific, narrowly targeted applications," Banks told the FISA judges, according to a transcript. The 2008 changes to the law, he said, have "strained its utility as an independent arbiter of lawful FISA surveillance."

His speech received "polite, if tepid, applause."

Judge Walton may bristle at the "rubber stamp" label and everyone from the administration all the way on down to the requesting agent may insist that nothing is done with oversight and strict adherence to applicable laws, but the track record speaks for itself. 12 years. 20,909 requests. 10 rejections. 36 withdrawn by the court.

Either the court is stocked with judges who can rubber stamp their approval and still somehow delude themselves into believing they're giving everything their full attention and consideration, or they've simply bought into the "terrorist" rhetoric and see no other option but complicity to keep this country "safe." Either way, it's a travesty.

Filed Under: fisa, fisa court, fisc, law enforcement, prosecutors, supreme court, surveillance

Renton Police Shopped Around Until They Found A Prosecutor Who Would Go After Anonymous Critic

from the shameful dept

On Friday we wrote about the Renton City police in Washington, who were somehow able to get a city prosecutor to issue a warrant to get information from Google about supposed "cyberstalking." Of course, the "cyberstalking" really just turned out to be some anonymous, mocking Xtranormal videos -- the kind people put up all the time. These were almost certainly done by someone inside the police force who was frustrated about some random day-to-day politics in the force. Going after them with felony charges is crazy. The chief of police isn't backing down, now that the case has generated a lot of attention, claiming ridiculously, "I would rather err on the side of investigating all complaints (and) alleged criminal misconduct rather than risk failing to investigate a crime that's been reported."

But that's ridiculous. You can investigate the misconduct pretty easily, by watching the videos, and recognizing that they're not cyberstalking. And that's it.

That's not at all what the Renton Police did. Instead, it's now come out, they tried back in May to get a similar warrant from the King County Prosecutor's Office... and it was rejected. The police then asked another officer to make the case for the city prosecutor, who did issue the warrant. Of course, the real person who should be scrutinized here is the city prosecutor who clearly never should have issued such a warrant. KIRO 7, the local TV news station that broke this story and continues to be the best source of information on it, asked the police chief, who goes by the unfortunate name Kevin Milosevich, about this obvious prosecutor "shopping," and he said that reporters were "overreacting."

Of course, if anything, it seems they're underreacting. Shopping for prosecutors in a blatant attempt to unveil the identity of a critic for no reason other than that he's a critic seems like a massive abuse of power. If Milosevich had any idea how this was being viewed by most legal critics, his response would have been to say they were asking prosecutors to drop the case.

Filed Under: cyberstalking, parody, police, prosecutors, renton