IL County Attorney Declares He'll Selectively Enforce Wiretapping Law Found Unconstitutional By Seventh Circuit Court

from the I-don't-know...-I-never-heard-of-no-'constitution' dept

In May of last year, the Seventh Circuit Court finally buried an oft-abused aspect of Illinois' "eavesdropping" law, an outdated statute meant to ensure privacy by requiring both parties to consent to recording. In theory, this prevented secret recordings. In practice, it was the go-to justification for cops to arrest citizens filming their activities. The state's attorney general aided in this abuse by throwing the bad law at as many people as the cops could round up.

A round of courtroom challenges culminated in the Seventh Circuit Court declaring the law was likely unconstitutional, at least in respect to citizens filming law enforcement officers. The Cook County state's attorney appealed but was shot down by the nation's top court, which refused to hear the appeal.

As it stands now, the court has stated that using this law to curtail the recording of police is unconstitutional. (The circuit court booted it back down the line, suggesting the lower court repeal the law altogether.) But that isn't stopping Robert Bonjean, state's attorney for Morgan County, IL, from prosecuting people using an unconstitutional law.

A Jacksonville man who had his phone seized for recording an on-duty police officer is not likely to be charged under the state’s controversial eavesdropping law.

Morgan County State’s Attorney Robert Bonjean said Monday that he is not anticipating prosecuting an eavesdropping charge against Randy Newingham — at least not at this time.

You would think that the state's attorney would have ended his sentence before that troubling em-dash. An unconstitutional law isn't something you can just decide to enforce randomly... or at all. True, the law is still on the books, but this particular aspect -- recording an on-duty law enforcement officer -- isn't a prosecutable offense.

Bonjean seems to think higher court decisions are nothing more than vague guidelines.

“We’ll review those reports and we’ll continue to monitor the decision from the 7th Circuit court,” Bonjean said. “I don’t foresee myself making any blanket decision, just taking it on a case by case basis.”

It would seem to me that the blanket decision has already been made for Bonjean, but there's no deterring an attorney bent on pursuing "justice," even if said justice might need to be put on the back burner until no one's paying attention.

“Quite honestly, I haven’t made a decision,” Bonjean said. “Officially I’ve [indicated] to [Police Chief Tony Grootens] that I won’t file charges. But technically it’s a felony charge, so I have three years from the date of the offense to file a charge.”

Yep. Just wait it out and keep "monitoring" the decision, just in case the Seventh Circuit Court decides to reverse its decision in order to keep Illinois law enforcement free from public scrutiny and servile prosecutors like Bonjean occupied tossing cell phone owners in jail.

Police Chief Grootens threw in his two cents as well, the ignorance of which indicates that Grooten's two cents was perhaps one cent more than his coin purse of a mind contained.

Grootens said he believed that Newingham was sincerely ignorant of the law.

Could be. Many citizens are. Please go on.

“Believe me, [the State’s Attorney’s Office is] busy enough,” Grootens said. “There’s more pressing things on their plate right now than to go with that. I already took care of it. … I told him not to be doing it. He honestly thought he was OK to do it, so now if he continues to do it, I can’t tell you that he certainly won’t be arrested.”

Hmm. That's an interesting interpretation of a law that says preventing citizens from filming law enforcement officers is a violation of their First Amendment rights. It's so interesting, it's completely wrong! Grootens' statement indicates there will be more arrests of citizens wielding cameras because you simply can't have citizens enjoying protections the police have failed to recognize. That way lies anarchy. And madness. And accountability.

The article indicates the police still believe a blanket decision that covers the whole of Illinois somehow doesn't cover Morgan County. Perhaps it's all a big misunderstanding. Cook County appealed the circuit court's decision and was rebuffed by the Supreme Court. Using the same sort of logic currently impairing the attorney and police chief, we can extrapolate this to mean that the law only applies to Cook County and the rest of the counties are free to jail anyone training a camera on a cop.

They might want to be careful, though. Among the things not included in Morgan County's tattered copy of "I Can Law! (And So Can You!)" is the fact that violating citizens' rights opens up the violators to civil suits, as was pointed out by DaveSs in Reason's comment thread.

42 U.S.C. § 1983, commonly referred to as "section 1983" provides:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress...

So, there's that. If Bonjean decides to drop the hammer on Newingham at some point over the next three years, he can expect the hammeree to drop one right back for depriving him of his rights. The same goes for Morgan County law enforcement officials. Before that happens, someone might want to talk to these two gentlemen and try to get them on the same page as the rest of the state.

Filed Under: 4th amendment, eavesdropping, illinois, morgan county, robert bonjean, wiretapping

Microsoft Fires Off Rebuttal To Latest Leak; Angry Letter To Eric Holder

from the at-this-point,-I'm-pretty-sure-no-one's-telling-the-complete-truth dept

The recent leak detailing Microsoft's extremely close work with US intelligence agencies seemed to contradict pre-leak statements made by the company concerning responses to data requests. Microsoft claimed it only did the minimum required by law, but the leaked documents portrayed the software giant as working in concert with the NSA and FBI to provide them with pre-encryption access to several services, including Outlook, SkyDrive and Skype.

Microsoft has responded to this leak via a blog post and a letter to Eric Holder. The blog post is a long refutation of every claim made in the leaked documents. Rather than give the agencies direct, pre-encryption access, as was stated in the leak, Microsoft claims it only provides metadata and content as requested -- and then only if Microsoft deems the request valid.

Microsoft does not provide any government with direct and unfettered access to our customer’s data. Microsoft only pulls and then provides the specific data mandated by the relevant legal demand.

If a government wants customer data – including for national security purposes – it needs to follow applicable legal process, meaning it must serve us with a court order for content or subpoena for account information.

We only respond to requests for specific accounts and identifiers. There is no blanket or indiscriminate access to Microsoft’s customer data. The aggregate data we have been able to publish shows clearly that only a tiny fraction – fractions of a percent – of our customers have ever been subject to a government demand related to criminal law or national security.

All of these requests are explicitly reviewed by Microsoft’s compliance team, who ensure the request are valid, reject those that are not, and make sure we only provide the data specified in the order. While we are obligated to comply, we continue to manage the compliance process by keeping track of the orders received, ensuring they are valid, and disclosing only the data covered by the order.

With this across the board denial of the leaked documents' contents, we're left with only a few possibilities. Either the document isn't accurate and Microsoft's statement is truthful or the statement is false and the document is the truth. Or, somewhere in between, there's a way both can be accurate (or "least untruthful"), which boils down to subjective definitions of certain words, most notably "access." Microsoft could have provided near real-time access while still only complying with court orders. Everything stored and turned over to the NSA and FBI was technically "pre-encryption," in the fact that Microsoft had unencrypted access to the data. As we haven't actually seen a court order or national security letter directed at Microsoft, it's tough to say how direct and how close to real time this access is.

Microsoft's rebuttal doesn't entirely refute the documents, however. There's no doubt it worked closely with these agencies to provide the access, content and data they were seeking, even if it was all strictly "by request." In terms of Skype, Microsoft doesn't even bother refuting the government had access to audio and video via its Prism connection. All it addresses is the statement that claimed video production had tripled "since a new capability was added" in July of 2012.

The reporting last week made allegations about a specific change in 2012. We continue to enhance and evolve the Skype offerings and have made a number of improvements to the technical back-end for Skype, such as the 2012 move to in-house hosting of “supernodes” and the migration of much Skype IM traffic to servers in our data centers. These changes were not made to facilitate greater government access to audio, video, messaging or other customer data.

These changes may not have been made to "facilitate greater government access," but that's not what the document claims. All it says is that this new capability tripled video production. Moving to in-house hosting and migrating traffic to Microsoft data centers could certainly aid in the "production" (read: harvesting) of Skype video calls. Whatever the intent, the end result was the same -- easier, faster access to Skpe data and content for intelligence agencies.

This back-and-forth is unlikely to result in establishing definitive guilt or innocence on the part of Microsoft. Either way, it's of negligible importance. The fact is that intelligence agencies are, by way of court orders and security letters, inserting themselves deeper and deeper into the underlying fabric of online communications, something that stretches much further than Microsoft.

Microsoft itself is hoping to address the larger, more problematic issue of our growing surveillance state. In addition to its blog post, the company sent a rather irate letter to Attorney General Eric Holder [pdf]. It dispenses with most of the usual diplomatic niceties and confronts the government with the damage it's doing to American citizens and American companies with its surveillance activities.

Since the initial leak of NSA documents, Microsoft has engaged constructively with the Department of Justice, the FBI, and other members of the Intelligence Community on the ground rules governing our ability to address these issues and the leaked documents publicly. We have appreciated the good faith in which the Government has dealt with us during this challenging period. But we’re not making adequate progress. When the Department and FBI denied our requests to share more information, we went to the Foreign Intelligence Surveillance Court (FISC) on June 19 to seek relief. Almost a month later, the Government is still considering its response to our motion.

Last week we requested official permission to publicly explain practices that are the subject of newly-leaked documents that refer to Microsoft and have now been misinterpreted in news stories around the world. This request was rejected. While we understand that various government agencies are trying to reach a decision on these issues, this has been the response for weeks.

This is no surprise to anyone who's attempted to obtain information or official responses from our intelligence agencies. The standard m.o. is to wait it out while chanting "grave damage to national security." But what Microsoft adds next serves as a slap in the face to those parties attempting to wait it out.

As I know you appreciate, the Constitution guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest. It’s time to face some obvious facts. Numerous documents are now in the public domain. As a result, there is no longer a compelling Government interest in stopping those of us with knowledge from sharing more information, especially when this information is likely to help allay public concerns.

In other words, "Your secrets aren't secret anymore. Get over yourselves."

At this point, only government employees who dutifully ignore what their employer tells them to ignore aren't aware of these leaked documents and their contents. If our "national security" was suffering "exceptionally grave damage" from these leaks, you'd think at least some of that damage would be noticeable. Instead, what we have is the large scale embarrassment of government officials who are now forced to explain actions that contradict the very principles they claim this country stands for -- that they say they stand for. Refusing to allow companies to discuss activities already outed by leaks is simply the most self-serving form of damage control. The threat to officials' reputations easily exceeds the threat to the security of the American public, and continuing to deny these companies an opportunity to explain their involvement does them, and the public, a disservice.

Filed Under: eric holder, fisa rulings, free speech, nsa, nsa surveillance, skype, surveillance, warrants, wiretapping
Companies: microsoft

Massachusetts Wants To Make Surveillance Easier, While Texas Is Making It Harder

from the two-different-states,-two-different-views dept

It appears that Massachusetts and Texas are taking two rather different approaches to allowing surveillance of its citizens. Texas this week signed into law a bill that prohibits accessing emails by the government without a warrant. The bill is pretty simple: it goes beyond what the current federal law, ECPA, allows, in saying that if law enforcement wants to access someone's emails, they need a warrant (something that many of us think should be required under the 4th Amendment already). Meanwhile, it appears that Massachusetts is going in the other direction, pushing a bill that would make it much easier to wiretap anyone's phones. Specifically, the bill would do the following:

1) Remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally. Potentially, even minor crimes like marijuana possession could become eligible for wiretapping by state authorities.

2) Double the length of an authorized wiretap, from 15 to 30 days.

3) Legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.

All of them are deeply concerning, with the last one being potentially unconstitutional. But that first one may have the most immediate direct impact, since it would basically give law enforcement the ability to go after anyone they suspect of almost any offense and hit them with a wiretap. If you think that wouldn't be abused, you haven't been paying attention to how law enforcement (especially local law enforcement) has abused all sorts of powers in the past.

The EFF has put together a petition to try to get Massachusetts lawmakers to realize what an incredibly bad idea this would be.

Filed Under: email, massachusetts, surveillance, texas, wiretapping

Prank Resulting In 2 NFL GMs Talking To Each Other Results In Up To 5 Years Of Prison, $500k Fine

from the it-was-just-a-joke,-guys dept

Insane legal actions over relatively mild pranks are coming fast and furious these days. We just recently discussed the 17 years old high school girl staring down felony charges over a childish year book prank. There have also been several cases of those that fall victim to pranks turning to intellectual property law as a way to hide their gullibility. There's something -- embarrassment perhaps -- that spurs victims into unreasonable legal action once the trap has been sprung.

And now we can add to that list the case of Joshua Barber and Nicholas Kaiser, who are looking at up to 5 years in prison and/or a half-a-milliion dollar fine for the crime of getting two NFL general managers to talk to each other on the phone and recording the conversation. Their prank consisted of calling the office of Buffalo Bills GM Buddy Nix, claiming to be Tampa Bay GM Mark Dominik, hanging up, then dialing Dominik. The confused Nix called back using the redial function on his phone (many, many times), and the pranksters finally called Dominik as well, just as Nix called them back, hit the conference button, joined both GMs on the line and recorded the ensuing conversation. It's worth noting that conversation was about as innocuous as it gets. No real embarrassment was to be had from the recording, which was then sold to Deadspin. The result of the prank is far less innocuous.

[The] two Plymouth, Mass. men were charged Wednesday with intentionally intercepting a wire communication and with making a telephone call without disclosing their identity with the intent to annoy or harass the person at the called number. The complaint further states that after the conversation was recorded, Barber and Kaiser sold the unauthorized recording to the website deadspin.com. If convicted, Barber and Kaiser face a maximum penalty of five years in prison, a $500,000 fine or both.

And yes, here are your tax dollars at work, with the FBI/DOJ gloating about taking those darn prank callers off the street and ruining their lives with extended jail time and fines. Half a million and half a decade in jail for a prank phone call? Shall I assume The Jerky Boys are currently dropping soap in barred showers, or is the safer assumption that someone in the legal system sees this high-profile prank as a way to further their career?

Filed Under: buddy nix, doj, fbi, joshua barber, mark dominik, nfl gms, nicholas kaiser, prank calls, wiretapping
Companies: nfl

Chinese Hacks Of Google Database Of Surveillance Targets Highlight How Dumb Technology Backdoors Are

from the how-can-people-still-not-see-this dept

We've argued for quite some time that law enforcement's desire to require backdoors for wiretapping in all electronic communications is really dumb, because it won't just be law enforcement using it (and, when they use it, it won't just be for legitimate purposes). As soon as you have that backdoor in place, you've pretty much guaranteed that it becomes something of a target. And the news that broke earlier this week about how Chinese hackers who broke into Google servers a few years ago were targeting their database of which accounts had been flagged for national security surveillance makes this point that much clearer. The people doing this kind of hacking aren't dumb: they know that there are weaknesses where they can probe. A few weeks back, a Microsoft exec had actually revealed that their own analysis of similar attacks on Microsoft's servers from China showed the same basic target and discussed the serious implications.

"What we found was the attackers were actually looking for the accounts that we had lawful wiretap orders on," Aucsmith says. "So if you think about this, this is brilliant counter-intelligence. You have two choices: If you want to find out if your agents, if you will, have been discovered, you can try to break into the FBI to find out that way. Presumably that's difficult. Or you can break into the people that the courts have served paper on and see if you can find it that way. That's essentially what we think they were trolling for, at least in our case."

The more openings and the more data that is shared, the more openings and opportunities there are for people who you don't want to see that data to have access to it. That should be a major concern. Just before all of this was revealed, we had written about a new report how such backdoors basically destroy any competent attempt at cybersecurity. Julian Sanchez highlights how those who think this isn't a problem are almost certainly confused about how computer security works.

Defenders of the FBI proposal tend to pooh-pooh security concerns raised about requirisng such backdoors: Our brilliant American programmers, they assert, will find ways to enable wiretapping without creating new vulnerabilities. But if a company like Google, with its massive financial resources and a stable of some of the smartest coders anywhere, can be victimized in this way, how realistic is it to expect thousands of Internet startups to achieve better security?

Creating more access to information that should be secret might help law enforcement, at the expense of our civil liberties, but it's also going to help those with nefarious intent quite a bit. And that should be a serious concern.

Filed Under: backdoors, china, hacking, national security, surveillance, wiretapping
Companies: google, microsoft

Kiwis Want To Spy On All Communications, VPNs, And Be Able To Use Secret Evidence Against You

from the no-justification-needed dept

Although New Zealand's decision not to allow patents for programs "as such" was welcome, other moves there have been more problematic. For example, after it became clear that the New Zealand intelligence service, the Government Communications Security Bureau (GCSB), illegally wiretapped and spied on Kim Dotcom, the New Zealand government announced that it would change the law so as to make it legal in the future to snoop on New Zealanders as well as on foreigners. Judging by a major new bill that has been unveiled, that was just the start of a thoroughgoing plan to put in place the capability to spy on every New Zealander's Internet activity at any moment. Here's an excellent analysis of what the bill proposes, from Thomas Beagle, co-founder of the New Zealand digital rights organization Tech Liberty:

The TICS [Telecommunications (Interception Capability and Security)] Bill is a replacement for the Telecommunications (Interception Capability) Act 2004. This law forced communications providers (ISPs, telcos, data networks, etc) to provide "lawful intercept" capabilities so that the Police, SIS and GCSB could access communications once they had a suitable warrant. The new bill expands and clarifies these requirements.

However, the addition of the word "security" is the key to what has changed. The new bill now gives the GCSB sweeping powers of oversight and control over the design, deployment and operation of all data and telecommunications networks run by network providers in New Zealand. The stated reasons are to both protect New Zealand's infrastructure and to ensure that surveillance agencies can spy on traffic when required. As part of this, the GCSB will have the power to stop network providers from reselling overseas services that do not provide these capabilities.

As Beagle goes on to explain, this will have a number of implications, including a requirement to build backdoors into all telecoms networks:

From the Bill:

A network operator must ensure that every public telecommunications network that the operator owns, controls, or operates, and every telecommunications service that the operator provides in New Zealand, has full interception capability.

Note that the surveillance agencies still need to have a legally issued warrant (under the Search & Surveillance Act, NZ SIS Act, or GCSB Act) to actually intercept any communications and there are obligations to avoid capturing communications that are not covered by the warrant.

Here's one way that could dramatically impact Internet users in New Zealand:

It then goes on to give the Minister the power to ban the resale of an off-shore telecommunications service in New Zealand if it does not provide interception capabilities. This could stop the resale of foreign-hosted VPNs, instant message services, email, etc.

Another clause could have major implications for Megaupload:

Network operators must decrypt the intercepted communications if they have provided the encryption, but there is no obligation to do so if the encryption is provided by others.

What does this mean for providers such as Mega (file locker) or LastPass (password storage) who have a business model based on the fact that they supply a cloud product that uses encryption but have deliberately designed it so that they can not decrypt the files themselves? This gives users the assurance that they can trust them with their data. Will the government close them down unless they provide a backdoor into the system?

One deeply troubling aspect is the following:

There is also a provision that allows the courts to receive classified information in a court case in the absence of the defendant or the defendant's lawyer. This applies to information that might reveal details of the interception methods used by the surveillance agency or is about particular operations in relation to any of the functions of the surveillance agency, or is provided as secret information from the surveillance agencies of another country. It can also be used if that disclosure would prejudice security of NZ, prejudice the maintenance of law, or endanger the safety of any person.

As Beagle notes:

particularly offensive to civil liberties are the provisions for convicting people based on secret evidence. How can you defend yourself fairly when you can't even find out the evidence presented against you?

He concludes with an important point:

One must ask where the justification for this expansion of power is coming from. Has New Zealand already been materially affected by attacks on our communications infrastructure? It seems clear that while the GCSB may not be that competent at exercising the powers they already have, they have done a fine job of convincing the government that they can handle a lot more.

That's a question that needs to be put to the governments of other countries, like the US and UK, that are also seeking to extend massively their ability to spy on their own citizens. What evidence do they have that such extreme, liberty-threatening powers are actually necessary, and will make the public safer, rather than simply being a convenient way for governments to identify whistleblowers who expose their incompetence and corruption, say, or to spy on those who dare to oppose them?

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: communications, encryption, gcsb, new zealand, secret evidence, snooping, surveillance, vpns, wiretapping

Appeals Court Holds Firm: The Government Cannot Be Sued For Violating Its Own Wiretapping Laws

from the US-Government-issues-blank-check-for-4th-Amendment-violators dept

There's more bad news on the Fourth Amendment front as the appeals court reviewing a lawsuit filed against the US government for illegally spying on American citizens has declined to rehear the Al-Haramain case.

A federal appeals court is refusing to reconsider its August ruling in which it said the federal government may spy on Americans’ communications without warrants and without fear of being sued.

The original decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals this summer reversed the first and only case that successfully challenged President George W. Bush’s once-secret Terrorist Surveillance Program.

Without comment, the San Francisco-based appeals court announced Wednesday that it would not rehear (.pdf) the case again with a larger panel of 11 judges, effectively setting the stage for a Supreme Court showdown. The appeals court Wednesday also made some minor amendments (.pdf) to its August ruling, but the thrust of it was the same as before.

Not only does this mean the plaintiffs will have to take the case to the Supreme Court (if it will hear the case), but it also means the damages awarded ($20,000 each for the two plaintiffs and $2.5 million in legal fees) have been reversed.

This also means the Bush's Terrorist Surveillance Plan will continue unchecked as citizens will be unable to bring suits against the government for warrantless spying. The decision rests on a couple of dubious items: a "missing" sovereign immunity waiver and a document mistakenly sent to the plaintiffs that was later designated a "state secret."

The San Francisco-based appeals court had ruled that when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants. That means Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws...

A lower court judge found in 2010 that two American lawyers’ telephone conversations with their clients in Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former al-Haramain Islamic Foundation lawyers Wendell Belew and Asim Ghafoor.

The document was later declared a state secret, removed from the long-running lawsuit and has never been made public.

Concern about the government's ability to designate nearly anything as a "state secret" in order to prevent the release or use of possibly damning evidence has already been discussed by the Supreme Court during oral arguments in the Clapper v. Amnesty International case. In this case, the belated "state secret" designation effectively limited the plaintiffs to citing circumstantial evidence, which is far less effective than producing an actual document showing that the NSA was doing exactly what the plaintiffs claimed it was.

Between the "sovereign immunity" that is unlikely to ever be waived and the ability to designate damning evidence post-facto as "state secrets," the NSA has set itself up with the ability to run a constitutionally dubious, but legally sound, domestic spying program. The system of checks and balances our nation was formed on now more closely resembles a series of erected walls protecting government agencies from being held accountable for their actions.

Filed Under: immunity, privacy, wiretapping

Massachusetts Man Charged Criminally For Videotaping Cop... Despite Earlier Lawsuit Rejecting Such Claims

from the this-won't-end-well dept

You may remember a high-profile, landmark ruling last year in Massachusetts, where charges against Simon Glik -- arrested for violating a state law that said it's "wiretapping" to record a police officer in public without his permission -- weren't just dropped, but the arrest was found to be both a First and Fourth Amendment violation. In the end, Boston was forced to pay Glik $170,000 for violating his civil rights.

You would think that story would spread across Massachusetts pretty quickly and law enforcement officials and local district attorneys would recognize that filing similar charges would be a certified bad idea. Not so, apparently, in the town of Shrewsbury. Irving J. Espinosa-Rodrigue was apparently arrested and charged under the very same statute after having a passenger in his car videotape a traffic stop for speeding, and then posting the video on YouTube. Once again, the "issue" is that Massachusetts is a "two-party consent" state, whereby an audio recording can't be done without first notifying the person being recorded, or its deemed a "wiretap." This interpretation, especially when dealing with cops in public, is flat-out ridiculous and unconstitutional, as the Glik ruling showed.

It's somewhat amazing that no one pointed out to the folks in Shrewsbury how this might play out, but given the Glik ruling, Shrewsbury officials might want to start putting away some cash to pay Espinosa-Rodrigue...

Filed Under: first amendment, fourth amendment, irving espinosa-rodrigue, massachusetts, simon glik, two party consent, wiretapping

Chicago Mayor Rahm Emanuel On City's Illegal Recordings Of Conversations With Journalists: 'Much Ado About Nothing'

from the we're-here-to-write-the-laws,-not-follow-them dept

Chicago city hall officials are in a bit of trouble for recording phone conversations with Chicago Tribune reporters without their consent. A city attorney is downplaying the incidents, insisting that there's no "widespread practice of such tapings" and promising that "steps are being taken" to prevent this from happening again.

Why is this a big deal? Because recording a conversation without the consent of all parties is a felony in Illinois. But what happens when city hall officials, who should be familiar with these laws, violate them? Not much. Chicago Mayor Rahm Emanuel's response is that committing a felony is nothing to get excited about.

Asked about the recordings at an unrelated news conference Monday, Mayor Rahm Emanuel said the issue was “much ado about nothing.”

“My view is, like all, we have a press conference here, I expect my staff to have a record of it,” he said. “And if I have a phone conversation, an interview, I expect to have a record of it as well.”

But the commission of a felony is a very big deal if committed by regular citizens. Radley Balko says it's all about who's doing the recording... and who they're recording. 

So remember when Chicago police were arresting people for recording them, and charging them with crimes punishable by 10 or more years in prison? Remember the woman who was arrested and charged because she attempted to record Chicago PD internal affairs police browbeating her when she tried to report a sexual assault by a Chicago cop? Remember all that stuff we heard from Chicago PD and Cook County DA Anita Alvarez’s office about protecting privacy?

That's not an isolated event. Earlier this year, two men filed a lawsuit against the city of Chicago, alleging they were battered, strip-searched and falsely charged after filming a traffic accident caused by a police car. Late last year, a man was arrested for recording the police and charged with illegal eavesdropping and is now facing a sentence of up to 75 years in prison. Another man was arrested and told he was facing 15 years in prison for daring to record a traffic stop.

The good news is that the courts have rejected some of these cases, stating that the law these citizens were arrested for breaking may be unconstitutional. For now, the law still stands. And the recordings done by members of city hall are illegal. The claims that the recordings were simply inadvertent errors rather than part of something more nefarious don't wash when you take a look at what was being discussed when the recordings occurred.

The issue reached a public forum last week when a court filing in a wrongful death lawsuit against the city raised questions about whether a city spokeswoman had recorded Tribune reporters without their consent as they conducted a phone interview with Chicago police Superintendent Garry McCarthy in October 2011.

And in separate incidents this past September, city spokespeople twice recorded a Tribune reporter as he conducted phone interviews with a top city official involved in Emanuel's controversial speed camera program. The spokespeople acknowledged that they independently recorded the interviews without asking the reporter for consent.

Odd that the illegal recordings would have occurred during discussions about possible law enforcement malfeasance. Emanuel's press aides openly admit that recordings take place during media interviews about "controversial topics," but most of these interviews are done in person, making the recording obvious. No effort was made to inform these reporters that their conversations were being recorded.

Last month, the city turned over to the plaintiff's lawyers an audio recording and transcript of the conference call showing no evidence that McCarthy or Hamilton sought consent to record the Tribune reporters.

"Absent from the audio and the transcript was evidence of the parties' consent," according to a court filing last week by the plaintiff's attorney, Craig Sandberg.

Not only is the required consent absent, but the recordings seem to be missing as well:

Gerould Kern, senior vice president and editor of the Tribune, declined to comment Friday about the recordings. Instead, he cited the letter sent by Tribune Co. attorney Karen Flax to Patton, demanding that city officials cease recording Tribune reporters without consent. The letter also asked that the city preserve copies of all recorded conversations and turn them over to the Tribune.

In its response Saturday, the city said it was unclear whether there would be any tapes to turn over.

As Balko points out, the double standard on display here is egregious. Ordinary people get cuffed, threatened, charged with felonies and in some cases, beaten and strip-searched. City officials don't even get a slap on the wrist. Instead, they get the mayor's assurance that their illegal recordings are a whole lot of nothing for anyone to be concerned about. Even the "mysterious" disappearance of the requested recordings fails to raise an eyebrow. Just one of those things that happens to evidence that incriminates politicians and members of law enforcement.

The growing gap between the governing and the governed continues. Those on the enforcement side treat many laws as optional. Those governed and policed are still forced to comply with the laws, no matter how (to paraphrase Frank Zappa) badly written and randomly enforced.

Filed Under: chicago, double standard, rahm emanuel, recordings, wiretapping

Court Tells FBI To Reveal More Info About Its Digital Wiretapping Program

from the going-dark dept

The FBI has been pushing to get more powers to wiretap newer digital forms of communication -- some of which are supposed to be encrypted end-to-end -- for quite some time. It's been working with various companies to try to get backdoors, while also pushing for legislation to compel companies to comply. It is known that the FBI has a program called "Going Dark" to tap digital communications. The EFF sought information on Going Dark with a series of Freedom of Information Act requests, which generally turned up heavily redacted documents that revealed very little. In response, the EFF went to court... and the court has now said that the feds need to reveal more. First, the court said that the government appeared to go overboard in leaving out info:

the Government is directed to conduct a further review of the materials previously withheld as non-responsive. In conducting such review, the presumption should be that information located on the same page, or in close proximity to undisputedly responsive material is likely to qualify as information that in “any sense sheds light on, amplifies, or enlarges upon” the plainly responsive material, and that it should therefore be produced, absent an applicable exemption.

Separately, the court said that the index of info provided has problems, not necessarily in the index itself, but the way it's presented seems purposely designed to stifle the EFF's efforts to understand the exemptions by overloading the info, without clearly highlighting what applies to what:

As plaintiff points out, however, the large number of different types of documents included in each summary entry in the index, and the fact that multiple exemptions are claimed, makes analysis difficult, despite the veneer of detail. The supporting declaration covers 171 pages (with a great deal of repetition) purportedly explaining the justification for all of the exemptions claims, but does not identify documents by bates numbers or otherwise, further exacerbating the problem.

As such, the court has ordered the feds to try again:

the existing index is insufficient to provide an adequate foundation for review of the soundness of the exemption claims. Accordingly, the FBI is directed to provide a revised index as promptly as practical, making a good faith effort to address the issues raised by EFF.

This is the "most transparent administration in history"? Withholding excess info and making sure the info sent over is as tough as possible to review?

Filed Under: going dark, internet communications, oversight, wiretapping