Federal Judge Catches DOJ Lying, Sanctions Lawyers With Mandatory Ethics Classes

from the a-small-fix-that-indicates-a-larger-problem dept

The DOJ likes to sling lawsuits and injunctions towards law enforcement agencies with histories of misconduct and deception, but it's apparently less interested in ensuring its own behavior is above reproach.

A lawsuit filed by a handful of states in opposition to the administration's new (and controversial) immigration policies have made their way through a number of courts, with one headed to the top court in the land. Meanwhile, down in Texas, a federal judge has uncovered DOJ lawyers have been engaged in a pattern of deception since the inception of the litigation. While the Supreme Court will be tackling the question of whether the administration has to play by its own rules, Judge Andrew Hanen is spending his time reprimanding the government's lawyers for their misdeeds. (via Jonathan Turley)

What remains before this Court is the question of whether the Government’s lawyers must play by the rules. In other words, the propriety of the Defendants’ actions now lies with the Supreme Court, but the question of how to deal with the conduct, or misconduct, of their counsel rests with this Court. To that end, this Court neither takes joy nor finds satisfaction in the issuance of this Order. To the contrary, this Court is disappointed that it has to address the subject of lawyer behavior when it has many more pressing matters on its docket. It is, at best, a distraction, and there is nothing “best” about the conduct in this case. The United States Department of Justice (“DOJ” or “Justice Department”) has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements. The DOJ’s only explanation has been that its lawyers either “lost focus” or that the “fact[s] receded in memory or awareness.”

These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed.

The lies the DOJ told involve a 2014 DHS directive that changed its handling of Deferred Action for Childhood Arrivals (DACA). The DOJ told the court and opposing counsel that no action under the new guidelines would commence until February 2015. These statements were made both orally (January 15, 2015) and in a filing (December 19, 2014). But in reality, the guidelines were already being used to process immigrants, resulting in over 100,000 modified DACA applications being granted or renewed by the DHS prior to either of these statements.

This was caught by the court in April 2015, but the DOJ insisted its statements weren't lies, but rather the "innocent mistakes" of poorly-informed counsel, shifting the blame towards the DHS. Months later, the real truth has come out.

Now, however, having studied the Government’s filings in this case, its admissions make one conclusion indisputably clear: the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.

[...]

In fact, the Justice Department knew that DHS was implementing the three-year renewal portion of the 2014 DHS Directive weeks before its attorneys told this Court for the very first time that no such action was being taken. Apparently, lawyers, somewhere in the halls of the Justice Department whose identities are unknown to this Court, decided unilaterally that the conduct of the DHS in granting three-year DACA renewals using the 2014 DHS Directive was immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it. [Doc. No. 242 at 17]. Then, for whatever reason, the Justice Department trial lawyers appearing in this Court chose not to tell the truth about this DHS activity. The first decision was certainly unsupportable, but the subsequent decision to hide it from the Court was unethical.

This isn't the DOJ lying about a minor procedural detail. This is the DOJ lying about the DACA modification central to the states' lawsuit against the US government. To purposely mislead the court and the defendants about the status of DACA applicants cannot be waved away with claims of foggy memories. It also cannot be waved away with claims that the DOJ had no idea so many applicants were already being processed using guidelines still being contested in federal court.

In its own defense, the Government has claimed it did not know before February 27, 2015, that the number of individuals that had been granted three-year deferrals between November 24, 2014, and the date of the injunction exceeded 100,000. It claims that it notified the Court very quickly after it realized that the number exceeded 100,000. This may be true, but knowing the exact number is beside the point. [...] Whether it was one person or one hundred thousand persons, the magnitude does not change a lawyer’s ethical obligations. The duties of a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled. See MODEL RULES OF PROF’L CONDUCT r. 3.3 cmts. 2 & 3 (AM. BAR ASS’N 2013). The Government’s lawyers failed on all three fronts. [...] The failure of counsel to do that constituted more than mere inadvertent omissions—it was intentionally deceptive. There is no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth.

The DOJ's lies made the court's temporary restraining order a joke.

The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. [...] Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief.

Unfortunately, the court is limited to what it can do in response to the DOJ's misconduct. Holding the DOJ responsible for the involved states' legal fees would result in the participating states effectively paying their own legal fees. It would be nothing more than moving around money collected from taxpayers and, thanks to federal taxes, robbing plaintiffs to pay plaintiffs. Instead, Judge Hanen has ordered that any DOJ lawyer who has -- or will -- appear in the courts of the 26 states involved in the lawsuit attend legal ethics courses. The courses will be provided by a legal agency unaffiliated with the DOJ, and the DOJ itself will be required to provide annual reports to the court confirming these courses are being attended.

This may seem like a laughable conclusion to such widespread, persistent dishonesty, but with the case currently in front of the Supreme Court, Judge Hanen only has a few options at his disposal. Awarding fees would be even more of a joke and he's in no position to find in favor of the State of Texas, much less the other 25 plaintiffs. So, this will have to do. More importantly, this opinion is on the record, in writing, and will serve as documentation of the DOJ's willingness to bend/break rules to serve its own purposes.

Filed Under: doj, law enforcement, lying, sanctions

James Comey Still Trying To Blame Increase In Violent Crime On 'Viral Videos'

from the pitching-woe dept

FBI Director James Comey says we're "going dark" as more platforms move towards encryption. Nobody's buying it. Not Congress. Not NSA officials. Definitely not those who have actually researched the subject.

He also says people with cameras are causing spikes in crime rates by making police officers so self-conscious they can't do their job. Comey blamed citizens with cameras for escalating crime rates last October. He was immediately contradicted by Attorney General Loretta Lynch. Having learned nothing from the experience, Comey has dusted off his 2015 talking points for redeployment in 2016.

FBI Director James Comey said Wednesday he believes a "viral video effect" causes weak police work and could be "at the heart" of a spike in violent crime in some American cities.

“There’s a perception that police are less likely to do the marginal additional policing that suppresses crime—the getting out of your car at 2 in the morning and saying to a group of guys, ‘Hey, what are you doing here?’” he told reporters at FBI headquarters.

This is a guy with access to some of the best intelligence and advice your tax dollars can buy. And yet he'd rather tuck his thumbs into his suspenders, lean towards reporters and aw-shucks at them with his "I may just be a simple director of the most powerful law enforcement agency in the United States, but…" pitches.

He sounds like a small town local running for sheriff, rather than a top government official with his finger on the pulse of criminal activity and law enforcement technology.

Comey spoke to reporters after being briefed on crime statistics from 40 major cities, most of which saw an increase in murders, he said.

"I was very worried about it last fall and I am in many ways more worried," Comey told reporters at FBI headquarters. "The numbers are not only going up, they're continuing to go up faster than they were going up last year. And I worry very much it's a problem that most of America can drive around. ... I don't know what the answer is, but, holy cow, do we have a problem."

That's classic Comey: You've got problems? I don't have answers.

Encryption got you down? I'm sure the "smart people" in tech can deliver unicorns on command. No, I'm sorry. I don't have any technical details but, you know, those guys at Apple and Google are so damn smart. They'll think of something.

Crime rates spiking in major cities? "Holy cow, do we have a problem?" Any ideas, Mr. Top of the Law Enforcement Food Chain? "I don't know what the answer is."

OK. Well… um… keep on earning that paycheck... I guess.

Not for nothing has James Comey earned a petition calling for his removal. Comey claims criminals are somehow exploiting a "tech gap" the FBI can't seem to close, despite its hundreds of millions of dollars. I don't know how many criminals are staying one step ahead of the FBI in a tech arms race anyone can participate in. (The fact that the FBI can buy/obtain/hoard exploits and malware, along with other high-tech tools the general public can't purchase, somehow always gets lost in law enforcement's portrayal of this so-called "race.") But it can certainly be said criminals are one step ahead of the FBI's top man, who often seems genuinely baffled by the issues confronting his agency.

It may be that Comey is playing dumb because he believes it's the best way to advance his agency's agenda. But he's been doing this for more than a year and there's been no forward movement. If anything, the FBI is less likely to receive Congressional assistance than it was before Comey began running his mouth on these two subjects.

Not only has he lost the support of Congress, but he's not winning any powerful friends within the law enforcement community.

“He ought to stick to what he knows,” James O. Pasco Jr., executive director of the National Fraternal Order of Police, told the New York Times. “He’s basically saying that police officers are afraid to do their jobs with absolutely no proof.”

Unfortunately, this -- and "going dark" -- appears to be all Comey knows.

Filed Under: blame, crime, fbi, james comey, law enforcement, transparency

Court Denies Immunity To Law Enforcement Officer Who Arrested Crew Sent To Clean Out His Foreclosed House

from the when-all-you-have-is-an-inflated-sense-of-power... dept

Lieutenant Timothy Filbeck of the Butts County Sheriff's Department found himself in a not-at-all unusual situation: his home was being foreclosed upon. Like many others who have undergone this process, Filbeck was served with a variety of notices explaining the steps of the process and warning him of the consequences of not complying.

Filbeck moved out of the doomed home and into a family member's. This would apparently be the last rational thing he would do in response to the foreclosure. The insurance company for the bank inspected the home four times before coming to the conclusion it had been abandoned by Filbeck. The utilties had been turned off and "cobwebs extended from wall to wall in every room."

When the company began preparing the house for auction, things started to get interesting. Employees spent a day cleaning the house out and removing any abandoned property inside it. At some point, Filbeck apparently decided to drop by his old house and noticed the things he had left behind were missing. He could have contacted any of the companies involved in the foreclosure proceedings. He could have done nothing after realizing that leaving a foreclosed house abandoned tends to result in the removal of property also considered abandoned. The Eleventh Circuit Court of Appeals notes that Lieutenant Filbeck chose "none of the above."

Instead, Filbeck boarded up the windows, nailed the doors shut, and placed four signs reading “KEEP OUT” on the Property. Filbeck also prepared and filed a police report using fellow deputy Kenneth Mundy’s name and submitted a claim to Liberty Mutual Insurance for the missing property.

Handwritten signs and boards on the windows aren't going to keep legally-entitled persons from accessing the property, especially when the doors are still intact.

Preparing a police report in someone else's name, however… that's a problem. Especially when the person whose name you've used finds out about it.

When Mundy later discovered the police report, he demanded that his name be removed from it and insisted that he had not prepared it, authorized it, or known anything about it at the time that it was submitted.

When MD Maintenance (the company preparing the house for auction) returned to the property, it called the property management company to report the boards and signs. The property manager told MDM's employees to report it to the police.

This, of course, led to MDM employees calling the same Sheriff's Department where Filbeck was employed. A deputy visited the property and confirmed no one was, in fact, still living there. He discussed his visit with Filbeck, which apparently motivated him to escalate his efforts.

A few weeks later, on the morning of February 22, 2011, Plaintiffs went to the Property. The “KEEP OUT” signs were still there. Because the doors remained nailed shut, Graham and Webster entered the Property through a bathroom window.

The two employees resumed the task of removing stuff Filbeck had left behind from the property. Filbeck decided to use his position as a law enforcement officer to intimidate them into leaving the property.

While Plaintiffs were working, Filbeck learned they were there and caused Lieutenant Matthew Vaughan to go to the Property and confront them. When Vaughan arrived, Plaintiffs told him that they were cleaning out a “foreclosure home.” David Carter gave Vaughan and other deputies who joined Vaughan on the scene, documentation showing that the Property had been foreclosed upon and that Plaintiffs were legally authorized to work there.

Possibly concerned that the other officers might reach the conclusion that there was no law enforcement purpose for being at Filbeck's former home, Filbeck himself arrived on the scene and "assumed control" of the "investigation."

Upon Filbeck’s arrival, Vaughn handed him a piece of documentation. David also attempted to show Filbeck an authorization letter on his phone, but Filbeck refused to review it and retorted that the authorization letter “and the rest of this paperwork don’t [sic] mean a damn thing.”

Filbeck then went on to say all the documentation was worth even less than a "damn" on the scale of profanities.

Filbeck insisted that he owned the house, that MDM had no right to be there, and that the foreclosure was “illegal.” He also rejected Plaintiffs’ documentation and the MDM Notices posted at the Property, characterizing them as not worth “shit.”

With that being said, Filbeck flexed his legal muscles.

Finally, despite Tina’s continuing attempts to reason with Filbeck, Filbeck rejoined, “Your boys are going to jail and are staying there until I get my stuff back.”   He also threatened to arrest Tina.

Filbeck then called up courthouse reps to see if there were any eviction notices pending against him. There were not, because the property had been deemed abandoned and Filbeck was obviously no longer living at the home. But those facts didn't stop Filbeck from carrying through on his threat.

After both agencies told Filbeck that no eviction notices had been filed, Filbeck ordered the arrests of Carter, Graham, and Webster for burglary. The officers handcuffed and took Plaintiffs to the Butts County Detention Center. There, they remained incarcerated for roughly 24 hours before they were released without any charges filed.

Filbeck then decided he wasn't done violating their rights.

When the officers carted Plaintiffs off to jail, the Butts County Sheriff’s Office confiscated two cameras, silverware, and $20.00 in cash.

Filbeck later admitted that he had accessed MDM’s impounded vehicle, retrieved a camera, and downloaded pictures onto his computer without a warrant or authorization while the men were stuck in jail. The cameras, silverware, and $20.00 in cash were never returned, despite demands for return of the property.

Filbeck was sued, along with the Sheriff's Department. All defendants moved for summary judgment, asserting qualified immunity. The other defendants walk away from this debacle. Filbeck, however, will have to stand on his own. Both claims of immunity raised by Filbeck have been eliminated by the court's examination of the event. And the Eleventh Circuit Appeals Court gives Filbeck a full blast of its disdain in its opening paragraph.

Defendant-Appellant Timothy Filbeck was a lieutenant with the Butts County Sheriff’s Office. When his house was foreclosed upon, he, like anyone else who has been through foreclosure, had certain options available to him. But arresting the new owner’s agents, Plaintiffs-Appellees David Carter, Clayton Graham, Jr., and Mitchell Webster (collectively, “Plaintiffs”), who were lawfully performing their jobs, was not one of them. And neither was ordering Plaintiffs handcuffed and thrown in jail overnight. We think that should go without saying. Yet Filbeck did these things, anyway. Now Filbeck tries to convince us that he is immune from suit. We are not persuaded. Being a law-enforcement officer is not a license to break the law. And it is certainly not a shield behind which Filbeck may abuse his power with impunity.

The thing is, Filbeck certainly saw his position as both: a permission slip for abusing citizens and a shield to hide behind when they complained. The court couldn't prevent the abuse, but at least it took Filbeck's unearned shield away from him.

That being said, this lawsuit seems to be doing nothing to hold back Filbeck's run for Sheriff of Benton County, AR, where he promises to "bring ethics and integrity back to the Sheriff's Office." (I assume he's having some shipped in...) Not only that, but there's no mention of this debacle in former Butts County Sheriff Gene Pope's letter of recommendation. So, while the court may have stripped away the shield of immunity, his supervisor seems all too willing to ensure Filbeck -- who's been proven to abuse power -- gets even more of it.

Filed Under: butts county sheriff's department, conflict of interest, eviction, foreclosure, law enforcement

Your Tax Dollars At Work: Cops Use Stingray To ALMOST Track Down Suspected Fast Food Thief

from the all-investigative-eggs-put-in-one-technological-basket dept

Hundreds of thousands of dollars worth of equipment, secured through Homeland Security grants, to buy repurposed military technology, which is then put to use to hunt down… fast food thieves.

Many agencies say national security and the need to protect an investigatory tool prevents them from talking about cell site simulators. That extends to the cases themselves.

But:

It’s unclear how many cases had links to national security. Logs released by some agencies do not explicitly cite national security but instead include violent crimes such as homicides and rape; others were more routine crimes, including burglaries, assaults and auto theft.

Equipment costing at least $125,000 plus the hourly rate of officers trained to use it. What's the ROI on this investigation, especially considering the suspect wasn't located?

Annapolis Police couldn’t find their target in the case of a Pizza Boli’s employee who reported being robbed of 15 chicken wings and three subs while out on delivery in March. In that case, police got a court order, according to the police log.

The value of the wings and subs totaled $56.77.

According to the Capital News Service investigation, in the seven counties closest to Baltimore and Washington DC, agencies have spent nearly $3 million on Stingray equipment. While the word "terrorism" often appears on applications for funding grants, there's no evidence the devices have ever been deployed in terrorism investigations. Instead, the most popular use for the devices is to fight the drug war.

Law enforcement spokespeople will often point to the handful of homicide or kidnapping investigations successfully closed with the assistance of cell site simulators, but they'll gloss over the hundreds of mundane deployments performed by officers who will use anything that makes their job easier -- even if it's a tool that's Constitutionally dubious.

Don't forget, when a cell site simulator is deployed, it gathers cell phone info from everyone in the surrounding area, including those whose chicken wings have been lawfully purchased. And all of this data goes… somewhere and is held onto for as long as the agency feels like it, because most agencies don't seem to have Stingray data retention policies in place until after they've been FOIA'ed/questioned by curious legislators.

Regular policework -- which seemed to function just fine without cell tracking devices -- now apparently can't be done without thousands of dollars of military equipment. And it's not just about the chicken wing thieves law enforcement can't locate. It's about the murder suspects who are caught but who walk away when the surveillance device wipes its feet on the Fourth Amendment as it serves up questionable, post-facto search warrants and pen register orders.

Filed Under: fast foot, law enforcement, stingray

Rep. Issa Calls Out Civil Asset Forfeiture As Letting 'Cops Go Treasure Hunting'

from the time-to-end-it dept

We've been writing an awful lot about civil asset forfeiture over the past few years, and how it's basically a program that lets law enforcement steal money (and goods) from people and businesses without ever charging them with a crime. Instead, they just charge the thing with being part of a crime and then keep the proceeds. Just recently, the federal government reopened its asset forfeiture "sharing" program that basically makes it even more lucrative for police to just take people's money and things. Most people don't even realize this is happening, but when they find out the details, they are almost all opposed to the program, that looks like little more than supporting legalized theft for law enforcement, with basically no recourse. In that last link, we noted that most lawmakers don't seem to care about this issue at all, perhaps because of the fear of being branded as "anti-cop" or something silly like that.

Thankfully, it appears that some lawmakers are finally starting to speak out. Rep. Darrell Issa, who is rarely shy about stating his opinion, has written an absolutely fantastic attack on civil asset forfeiture in the LA Times.

Civil asset forfeiture allows police to seize property as long as they believe that the assets in question were somehow connected to criminal activity.

“As long as they believe” — that's the key part.

Authorities don't have to actually prove the person was guilty of a crime. They don't have to even file charges. The presumption of innocence is thrown to the wayside.

It's an egregious violation of the 4th Amendment, but that's not even the most glaring problem with the system.

Under current law, most states allow police departments to absorb up to 100% of the value of the confiscated property — whether it's cash, cars, houses or guns — and use the proceeds to pad their budgets. It's an obvious conflict of interest — and boy, is it profitable for law enforcement agencies.

He points out an insane statistic: In 2014 "police officers took more property from American citizens under civil asset forfeiture ($5 billion) than criminals took in burglaries ($3.5 billion)." Think about that for a second. Issa admits that there's some "nuance" in those stats (in terms of what they include and don't include) but it's still pretty clear that law enforcement is taking an awful lot of things (and money) away from people with basically no due process at all.

Issa notes that some states have started to pass rules that limit asset forfeiture (including requiring an actual conviction against a person and limiting how much money can be kept), but law enforcement supporters have been hitting back hard against any such legislation. And, with the DOJ reopening its "equitable sharing" program, many local law enforcement agencies are just shifting their asset forfeiture efforts to the federal program, rather than the state program:

It should come as no surprise that in states that have implemented caps and limits, law enforcement simply relies on the federal program instead.

In 2015, the Drug Policy Alliance found that whereas revenue collected under California's forfeiture laws had remained constant over the previous 10 years, revenue under the federal program had more than tripled.

Issa notes that it's time for legislation at the federal level to change things:

As more and more states reconsider their civil forfeiture systems, the federal government needs to set a framework for smart reform. That starts with closing the equitable-sharing loophole, and requiring police to satisfy a higher burden of proof to a judge before seizing property under federal law.

It is difficult to come up with a reasonable argument why the basic reforms mentioned here shouldn't be allowed. Requiring a conviction seems like a due process necessity. But, you can expect that there will be angry pushback from law enforcement groups that have been funding operations through all of this stolen money for a long time.

Filed Under: asset forfeiture, civil asset fofeiture, darrell isaa, doj, equitable sharing, forfeiture, law enforcement, seizure

FBI Used FISA Warrant To Prosecute Boeing Employee For Child Porn Possession

from the regular-crime;-special-warrant dept

Ellen Nakashima of the Washington Post has the disturbing story of former Boeing employee Keith Gartenlaub, whose home was searched for evidence of his alleged spying for the Chinese. Specifically, the FBI was looking for documents about the military's C-17 transport plane. Instead, FBI agents came across something else.

[S]ince the search in January 2014, no spy or hacking charges have been brought against him.

Instead, seven months later, he was charged with the possession and receipt of child pornography. He has denied the charges, but a jury convicted him in December.

Questions have been raised about the evidence obtained during the search.

In Gartenlaub’s case, the defense unsuccessfully argued that he could not be linked to identical copies of child pornography videos found on four hard drives in his house. Two of the hard drives had been in a computer that was kept at a beach house where numerous people had access to it, Gartenlaub said.

[...]

Jeff Fischbach, a forensic technologist for the defense, said there is no evidence that the child pornography was ever seen by anyone who used the computer, much less Gartenlaub.

The government’s own forensic expert, Bruce W. Pixley, said he could not find any evidence of the material being downloaded onto any of the computers, the defense noted. That means it had to have been copied onto the computer — but by whom is unknown.

The defense had more difficulty than usual in challenging the evidence. The search wasn't performed with a standard FBI warrant, but instead -- due to its supposed national security implications -- with a warrant issued by the FISA court. That the FBI found child pornography instead is unfortunate, but that fact shouldn't nullify the original warrant or result in the suppression of the evidence, at least according to the DOJ.

While the DOJ is correct in the fact that the FBI wasn't going to call off the search after it uncovered evidence of other wrongdoing, its defense of the way the evidence was obtained is disingenuous. Unlike a regular warrant, a FISA warrant is almost completely unchallengeable. The entire process is ex parte, including the submission of evidence obtained -- even if the evidence has nothing to do with national security.

In Gartenlaub's case, every submission by the government was done under seal. His legal representation had no access to the government's presentation of evidence. The possession of child porn is certainly nothing the government takes lightly, but once the focus of the investigation shifted away from alleged espionage, the process likewise should have changed. At the very least, the FBI should have had a new warrant issued, signed by a regular magistrate judge -- one that would have allowed the defense to examine the affidavit and the results of the search.

JoAnne Musick of Fault Lines points out just how much the FISA Court's involvement screwed Gartenlaub.

Once the warrant issued, there was virtually no means by which Gartenlaub could challenge the basis for the warrant. Of course, the court found the pornography material “obtained pursuant to FISA was lawfully acquired” and did not violate the defendant’s Fourth Amendment rights. Additionally, after ex parte pre-trial briefings between the court and government, the judge found:

"[T]here is no indication of any false statements having been included in the FISA materials."

Surely the government would not have proven any false statements in their private discussions with the court. Perhaps had the defense had an opportunity to review or challenge the basis for the warrant, the court might have found false statements. Yet, we will never know as the defense was unable to review the evidence or otherwise challenge it. It’s disturbing that the accused was unable to obtain even basic information on how the information was obtained and why the warrant was issued.

The ability to challenge presented evidence is a key part of the justice system. Wrongs committed by the government during the search for evidence can only be righted through this process. But the use of a FISA warrant deprives the accused of that potential remedy. When it became apparent the investigation was no longer focused on matters of national security, the FBI should have unsealed documents and turned over evidence to Gartenlaub's legal reps. Instead, it chose to keep operating under the pretense it was investigating espionage and availed itself of all the advantages that come with national security-related investigations.

Then there's this: even though the FBI had enough evidence of child porn possession to prosecute (successfully) Gartenlaub and nothing in the way of evidence he was involved in spying for the Chinese, it still attempted to leverage what it had obtained to turn Gartenlaub into a government informant.

During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time.

So, not only did the government use its additional national security benefits to keep Gartenlaub from mounting a serious challenge to submitted evidence, but it also used evidence it gathered with an unrelated search to pressure him into admitting he was a spy -- something it had no evidence of at all.

Filed Under: child porn, fbi, fisa, law enforcement, national security, warrant

Expanding Unconstitutional Backdoor Searches Of Surveillance Data Is Easy: Just Change What Words Mean

from the some-language-tricks-and-funny-games dept

I already wrote a post about how the FISA Court rejected the arguments of the public advocate that it appointed to review the legality and constitutionality of the infamous backdoor searches. However, I wanted to put up a second post as well, digging a little deeper into what the ruling itself means, rather than just focusing on the public advocate part of it. Because it's pretty scary. We already knew that, once that data was collected under the Section 702 PRISM program, the NSA opened it up to both the CIA and FBI to search on for other purposes.

However, as Elizabeth Goitein explains over at Just Security, even then there were some limitations:

 The Justice Department, having worked Section 702 into the foreign intelligence exception by certifying that the government’s targets were not Americans and that the surveillance had a foreign intelligence purpose, and having met the constitutional reasonableness requirement by noting that incidentally collected information about Americans would be “minimized,” was allowing the FBI to run queries of Section 702 data to obtain information about Americans in ordinary criminal cases. Edward Snowden’s disclosures confirmed this practice, and the Privacy and Civil Liberties Oversight Board’s (PCLOB) report on Section 702 revealed that it was routine.

Many commentators (myself included) have noted that this loophole creates an end run around the warrant requirement in ordinary criminal cases. Until recently, however, there was at least one substantive limitation on the FBI’s ability to query Section 702 data. As reported by the PCLOB, the FBI’s minimization procedures provided that queries must be “reasonably designed” to “find and extract” either “foreign intelligence” or “evidence of a crime.” This was a far cry from the probable cause that would be needed to obtain a warrant, but it was something. The FBI, at least on paper, could not simply go on a fishing expedition through the warrantlessly obtained data.

But the details of this newly revealed ruling show that that limitation has gone away -- basically because the FBI changed its own minimization procedures in part to pretend English words don't mean what they really mean. In the past, the NSA has reinterpreted many English words to mean things different than their plain English meaning. In this case, the FBI has decided to redefine the word "query":

Displaying the intelligence community’s penchant for defining well-understood terms to mean something entirely different, the FBI’s most recent minimization procedures, in the FISC’s words, “clarify that a search of an FBI storage system containing raw-FISA acquired information does not constitute a ‘query’ within the meaning of the procedures if the user conducting the search does not receive access to unminimized Section 702-acquired information in response to the search.” This includes instances in which the search does return unminimized Section 702-acquired information, and the agent is notified of that fact but is not authorized to access the data. Because such searches are deemed not to constitute “queries,” they presumably are not subject to the requirement that “queries” must be reasonably designed to return foreign intelligence or evidence of a crime.

The new procedures also “clarify” what happens if an agent performs a search that returns Section 702 information the agent is not authorized to access. In such cases, an agent who is authorized to access the information may re-run the search and determine whether the information “reasonably appears . . . to be foreign intelligence information, to be necessary to understand foreign intelligence information, or to be evidence of a crime.” If so, the information is passed along to the original agent.

This “clean team” approach is no substitute for a limitation on the initial search. It is analogous to claiming that searches of homes are not “searches,” and thus do not require warrants, if the agents performing the search find nothing – or if an elite team steps in to perform the search and can turn over what it finds to prosecutors only if it is evidence of a crime. Previously, the procedures did not allow fishing expeditions; now they do, and it seems somewhat beside the point that the fisherman only gets to keep the fish if he catches one.

Got that? A query is no longer a query and the FBI has much broader authority to do backdoor searches than was previously known. As the EFF notes in response to this, this seems to fly in the face of legal precedent and the Constitution:

This is a constitutional problem. Quite apart from the bait and switch opportunities it creates for the FBI, it's like saying it's OK for school officials to set up a drug testing program for non-law enforcement purposes, and then once it’s set up, they can completely abandon that purpose and start testing students to simply to put them in jail. Or that the government can set up a program to test pregnant women for drugs with a goal to get them into treatment, but also hand the information over to the police and use the threat of prosecution as additional leverage.

The Supreme Court rejected the latter scenario as unconstitutional in Ferguson v. City of Charleston in 2001. Other Supreme Court cases make clear that even holistic, programmatic assessments of Fourth Amendment "reasonableness"—like the one the FISC engages in here—must take into account the invasiveness of these programs. Searching vast databases containing the full content of emails and every website visited by nonsuspect Americans without a warrant is about as invasive as it gets.

And it's not just the FBI that gets much broader access to these backdoor searches. Marcy Wheeler points out that the decision reveals that the NSA and CIA basically wrote themselves a note last summer saying that they no longer needed to follow minimization procedures... and the judge is cool with that. Here's the paragraph in the ruling:

The NSA and CIA Minimization Procedures included as part of the July 15, 2015 Submission each contain new language stating that “[n]othing in these procedures shall prohibit the retention, processing, or dissemination of information reasonably necessary to comply with specific constitutional, judicial, or legislative mandates.” See NSA Minimization Procedures at 1; CIA Minimization Procedures at 4-5. These provisions were not included in the draft procedures that were submitted to the Court in June 2015, but appear to have been added by the government thereafter. They are not discussed in the July 15, 2015 Memorandum.

As Wheeler notes, this is just the NSA and CIA deciding unilaterally that they can ignore minimization. The judge even pointed out that this move "could undermine the Court's ability to find the procedures satisfy the above-described statutory requirement." However, the judge, Thomas Hogan, then decides that this is kind of okay because government lawyers told him informally (yes, really!) that they don't intend to abuse this very much:

The Court understands based on informal communications between Court staff and attorneys for the government that NSA and CIA intend to apply the similar provisions at issue here in the same narrow manner.

Wheeler has a lot more on this particular part of the ruling and how troubling it is. But, in short, it has also broadened the ability of the government to snoop through these massive troves of data. The reliance on informal promises not to take it too far mean very little. As former NSA and CIA director Michael Hayden has said, his job was to push up as close to the boundaries of what was legal as possible. Once Congress or the courts told him what was legal (or, in some cases, the President unilaterally), he would make use of that. Why would that not be the case here? Or, as Wheeler explains more vividly:

I’m not sure how that’ll be effective when President Trump decides he can pass an Executive Order requiring NSA to keep all the US person data it collects but not tell FISC about it, because the order they report on this to him is part of the minimization procedures they say they can blow off.

And, of course, none of this can be appealed, because even though there are the arguments from the public advocate (which didn't include this last part about ignoring minimization), only the government itself can appeal a ruling, and they got everything they wanted here (and possibly more).

The only actual way to fix it at this point is for Congress to step in and rewrite the law, but the chances of that happening appear to be slim to none.

Filed Under: 4th amendment, backdoor search, backdoor searches, cia, definitions, fbi, fisa court, fisc, law enforcement, mass surveillance, nsa, prism, query, section 702

Law Enforcement Forced To Hand Over $41K It Seized From Businessman At Airport, Plus Another $10K In Legal Fees

from the felled-by-their-own-bullshittery dept

An unidentified Techdirt reader sends in the news that Arizona law enforcement is going to be handing over $10,000 to Madji Khaleq as a result of a failed asset forfeiture attempt. This would be in addition to the $41,870 the DEA already handed back to Khaleq -- every cent of the cash federal agents seized from him at the Tucson airport.

Khaleq had a legitimate reason to be carrying $40K in cash on him.

Court documents show Khaleq told the Drug Enforcement Administration agent who seized the money that he owned a convenience store and check-cashing business in Denver, as well as a wholesale electronics distributorship in California. He said he came to Tucson to buy a smoke shop on South 12th Avenue, but the deal fell through.

But the DEA firmly believes cash = drugs even when there's no evidence pointing towards illicit sources or uses for the funds, so it relieved Khaleq of his burdensome bankroll. Local law enforcement then swooped in to claim its part in the haul… only to return it when Khaleq lawyered up.

Khaleq challenged the seizure in Pima County Superior Court and the Pima County Attorney’s Office withdrew its request for forfeiture of the money in November.

The $10,000 in legal fees due Khaleq will come from the County Attorney's Office and a Tucson-based counter-narcotics task force. Apparently the DEA has washed its hands of the whole affair after giving Khaleq the money it took from him.

The government is unhappy to be paying a drug trafficker an additional $10,000. Oh, yeah. It still believes Khaleq is involved in drug trafficking despite losing this lawsuit and 10 grand in discretionary spending.

In the March 10 stipulation of dismissal, Deputy County Attorney Edward Russo said the $10,000 is not an admission that Khaleq has shown he is “entitled to an award of attorney’s fees, costs or damages in this action.”

Also:

When asked if the County Attorney’s Office still suspected Khaleq of being involved in illicit activity, Johnson said: “Yes, we don’t just take money from people for no reason.”

The hell you don't.

And that's not the full extent of the government's BS. During its fight to keep the uncharged Khaleq from recovering his money, the County Attorney's Office attempted to keep Khaleq as far away from his money and his Fifth Amendment rights as possible.

Russo had asked Aragon on Jan. 11 if the county could present a report on a federal investigation purportedly of Khaleq without Khaleq or his attorney present.

[Judge Gus] Aragon denied the request, saying that to grant the request “would violate basic concepts of fairness and due process.”

Fortunately, a judge stepped in and prevented the government from further abusing Khaleq. Even when the government is clearly in the wrong, it still insists it's right. No admission of wrongdoing despite losing badly enough that the plaintiff was awarded legal fees on top of his original funds, and law enforcement still insists Khaleq is involved in illegal activity despite his lack of a rap sheet and zero evidence in hand to support its claims.

Filed Under: arizona, asset forfeiture, asset seizure, dea, law enforcement, madji khaleq

Canadian Law Enforcement Can Intercept, Decrypt Blackberry Messages

from the so-much-for-the-one-thing-Blackberry-used-to-have-going-for-it... dept

Blackberry's CEO, John Chen, didn't care for the fact that Apple was "locking" law enforcement out of its devices by providing customers with default encryption. As he saw it, Apple was placing profits ahead of Mom, Apple pie and American-made motorcars.

For years, government officials have pleaded to the technology industry for help yet have been met with disdain. In fact, one of the world's most powerful tech companies recently refused a lawful access request in an investigation of a known drug dealer because doing so would "substantially tarnish the brand" of the company. We are indeed in a dark place when companies put their reputations above the greater good.

Chen refused to "extend privacy to criminals." How he had any way of knowing who was or wasn't a criminal at the point of sale was not detailed in his rant.

Then news surfaced that Dutch law enforcement could bypass Blackberry encryption with seeming impunity. At that point, Blackberry became defensive about its new stature as the least secure smartphone option. It claimed in a blog post that its stock phones were not open books for the world's law enforcement agencies. Despite promising earlier that the company would not aid criminals in keeping their secrets from law enforcement, Blackberry heatedly claimed its devices were secure as ever -- even in the hands of criminals.

[T]here are no backdoors in any BlackBerry devices, and BlackBerry does not store and therefore cannot share BlackBerry device passwords with law enforcement or anyone else.

Ah, but there is a backdoor. A big one. And it's on the opposite side of the "house." Motherboard is reporting that the Royal Canadian Mounted Police are able to access unencrypted communications thanks to the Blackberry's built-in "feature."

Imagine for a moment that everybody's front door has the same key. Now imagine that the police have a copy of that key, and can saunter into your living room to poke around your belongings while you're out, and without your knowledge.

By way of metaphor, this is exactly how the Royal Canadian Mounted Police, Canada's federal police force, intercepted and decrypted "over one million" BlackBerry messages during an investigation into a mafia slaying, called “Project Clemenza," that ran between 2010 and 2012.

Citizen Lab privacy expert Christopher Parsons backs up Motherboard's analogy. [emphasis in the original]

In addition to routing and compressing data traffic, RIM's service offerings also include a measure of security in excess of the practices adopted by their competitors. BBM, as an example, is encrypted. However, it is encrypted using a global key. RIM has written that,

"The BlackBerry device scrambles PIN messages using the PIN encryption key. By default, each BlackBerry device uses a global PIN encryption key, which allows the BlackBerry device to decrypt every PIN message that the BlackBerry device receives."

This means that RIM can decrypt consumers' messages that are encrypted with the global key. Consumer devices include all RIM offerings that are not integrated with a BlackBerry Enterprise Server (BES). The BES lets administrators change the encryption key, which prevents RIM from using the global decryption key to get at the plaintext of BES-secured communication.

Blackberry may be technically correct when it asserts it has no access to user passwords. But that hardly matters when it holds the key that can decrypt any BBM communications that pass through its service (with the exception of administrator-level business accounts). This single key's access to unencrypted communications is likely what allowed (and possibly still allows) the RCMP to obtain plaintext messages.

According to the documents obtained by Motherboard, the RCMP appears to be using some sort of Stingray-but-for-BBM technology to intercept and decrypt messages.

[The RCMP maintains a server in Ottawa that "simulates a mobile device that receives a message intended for [the rightful recipient]." In an affidavit, RCMP sergeant Patrick Boismenu states that the server "performs the decryption of the message using the appropriate decryption key." The RCMP calls this the "BlackBerry interception and processing system."

By inserting itself into the middle of communications, the RCMP can intercept the messages. Access to the Golden Key ensures they can be read. The conclusion reached by both the defense team and the judge presiding over the case? The RCMP has Blackberry's global encryption key.

The defence in the case surmised that the RCMP must have used the "correct global encryption key," since any attempt to apply a key other than BlackBerry's own global encryption key would have resulted in a garbled mess. According to the judge, "all parties"—including the Crown—agree that "the RCMP would have had the correct global key when it decrypted messages during its investigation."

Unfortunately, there aren't many more details. Many of the documents related to this case remain under seal and the RCMP certainly isn't going to discuss its interception/decryption secrets if it doesn't have to. It could very well be that it demanded (and obtained) the key from Blackberry, much in the way the FBI demanded Lavabit's SSL key. If so, Blackberry was far more cooperative than Lavabit, which chose to shut down the service rather than allow the government to have total access. (And it has been hinted by the DOJ that this sort of request may be headed Apple's way if it continues to fight its All Writs orders.)

Somewhat ironically, the RCMP acknowledged in court that outing a cellphone provider as Junior G-Men would probably tarnish Blackberry's reputation -- basically the same thing Blackberry CEO John Chen claimed was the height of Apple impudence

RCMP inspector Mark Flynn testified in a heavily redacted transcript that BlackBerry "facilitated the interception process," however, Flynn also stated that facilitation could mean mere information sharing or a physical action to aid interception.

Flynn further testified that revealing the key would jeopardize the RCMP's working relationship with BlackBerry, and harm BlackBerry itself, since "it is not a good marketing thing to say we work with the police."

The question now is whether the RCMP still has this level of access. To cut off the RCMP, Blackberry would have needed to alter the global decryption key -- something that would have required "a massive update... on [a] per-handset basis," according to Citizen Lab's Christopher Parsons. And if Canada's law enforcement has it (or had it), odds are law enforcement agencies in other countries had similar access. Investigators may not be keen to expose techniques in court or in released documents, but they're usually pretty good about sharing this info with like-minded law enforcement agencies.

Filed Under: blackberry, canada, encryption, interception, law enforcement, master key, rcmp
Companies: blackberry

Microsoft Sues Government Over Its ECPA-Enabled Gag Orders

from the silent-service dept

Microsoft isn't the first company to sue the government over its gag orders. Google, Yahoo, Twitter, and a small ISP called Calyx Internet Access have all taken the government to court over its various demands for secrecy it ties to its National Security Letter requests.

But the more the merrier. Sooner or later, someone's going to have to side with the recipient. As Microsoft alleges in its announcement of the lawsuit, the secrecy problem is getting worse, instead of better -- despite the national discussion over domestic surveillance, expanded government power and the ongoing circumvention of due process.

It's not that Microsoft believes the government is never entitled to secrecy. It's that the demand for secrecy seems to be its default position.

To be clear, we appreciate that there are times when secrecy around a government warrant is needed. This is the case, for example, when disclosure of the government’s warrant would create a real risk of harm to another individual or when disclosure would allow people to destroy evidence and thwart an investigation. But based on the many secrecy orders we have received, we question whether these orders are grounded in specific facts that truly demand secrecy. To the contrary, it appears that the issuance of secrecy orders has become too routine.

The government is demanding information from Microsoft while telling it to shut up nearly 150 times a month.

Over the past 18 months, the U.S. government has required that we maintain secrecy regarding 2,576 legal demands, effectively silencing Microsoft from speaking to customers about warrants or other legal process seeking their data.

Worse, in a majority of these cases, Microsoft has been ordered to maintain its silence indefinitely.

Notably and even surprisingly, 1,752 of these secrecy orders, or 68 percent of the total, contained no fixed end date at all. This means that we effectively are prohibited forever from telling our customers that the government has obtained their data.

The lawsuit claims these gag orders violate multiple rights of multiple parties. Those whose data is being requested are having their Fourth Amendment rights violated by the undisclosed searches. Microsoft's First Amendment rights are being violated by the accompanying gag orders.

At the center of Microsoft's lawsuit is a terrible law: the ECPA.

Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation. Nothing in the statute requires that the “reason to believe” be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place.

[...]

That antiquated law (passed decades before cloud computing existed) allows courts to impose prior restraints on speech about government conduct—the very core of expressive activity the First Amendment is intended to protect— even if other approaches could achieve the government’s objectives without burdening the right to speak freely. The statute sets no limits on the duration of secrecy orders, and it permits prior restraints any time a court has “reason to believe” adverse consequences would occur if the government were not allowed to operate in secret. Under the statute, the assessment of adverse consequences need not be based on the specific facts of the investigation, and the assessment is made only at the time the government applies for the secrecy order, with no obligation on the government to later justify continued restraints on speech even if circumstances change…

As the lawsuit points out, the outdated law isn't built to handle the reality of cloud computing. Unfortunately, law enforcement agencies like the FBI are perfectly willing to exploit the loopholes this mismatch provides. Rather than approach individuals under investigation and search their home or place of business (if that's where the communications are stored/originate) the government uses the ECPA to demand information from virtually unrelated parties like service providers, simply they provide cloud storage options.

The Fourth Amendment’s requirement that government engage only in “reasonable” searches necessarily includes a right for people to know when the government searches or seizes their property. See Wilson v. Arkansas, 514 U.S. 927, 934 (1995). For example, if the government comes into a person’s home to seize her letters from a desk drawer or computer hard drive, that person in almost all circumstances has the right to notice of the government’s intrusion. The same is true when the government executes a search of a business to seize emails from the business’s on-site server. But Section 2705(b) subjects Microsoft’s cloud customers to a different standard merely because of how they store their communications and data: the statute provides a mechanism for the government to search and seize customers’ private information without notice to the customer, based upon a constitutionally insufficient showing. In so doing, Section 2705(b) falls short of the intended reach of Fourth Amendment protections, which do not depend on the technological medium in which private “papers and effects” are stored.

It also points out how the government has used the law to treat physical searches and digital searches completely differently, thanks to the flaws in the legislation. While physical "sneak-and-peek" searches can be performed without notification of the target, the silence can only be maintained for 30-90 days. But if it goes after cloud backups, it can approach Microsoft and hit it with an indefinite demand for silence.

Considering how many ECPA reform false starts there have been over the years, Microsoft's demand -- if granted -- could render some of that effort moot. It could also help fill in some of the gaps created by the recent carve-outs that have allowed the bill to finally move out of committee.

For these reasons, Microsoft asks the Court to declare that Section 2705(b) is unconstitutional on its face.

To sum up using all the metaphors, this swing for the fences could kill several birds with one stone if the court finds in favor of Microsoft: ECPA will be hobbled badly and will no longer be the go-to justification for government gag orders and, if the gag orders themselves survive, they'll likely be limited to something less than "indefinitely" and be held to a higher level of scrutiny when they're issued.

Filed Under: ecpa, ecpa reform, email, gag orders, law enforcement, nsls
Companies: microsoft