James Comey Offers Up Half-Assed Apology For Being Such An Asshole About Encryption

from the still-mostly-an-asshole dept

Former FBI director James Comey's move to the private sector has been… well… annoying, if we're honest. After being booted by President Trump for allegedly failing to pledge his fealty to the Oval Office throne, Comey has become a hero of the so-called Resistance. Those lionizing Comey as some sort of truth-to-power speaker seem to have forgotten he ignored everything ever about pre-election propriety to announce his reopening of the investigation into Hillary Clinton's private email server, and his years spent trying to undermine encryption.

You can take a man out of the FBI, but you can't take the g-man out of the man. Comey may be as unimpressed as many of us are with the current White House leadership, but that only makes him somewhat relatable, not some hero molded from the fires of the long tradition of reshuffling agency leadership with every peaceful transfer of power.

Comey will speak to whoever will listen and/or publish his thoughts. He recently spoke at a conference and offered up his limited apologies for the War on Encryption he waged following the San Bernardino shooting.

As apologies go, it isn't one. Comey says the only error he made was being a bit too aggressive when seeking to undermine the security of millions of device users. (h/t Riana Pfefferkorn)

Comey said it was "dumb" to launch the encryption debate by loudly criticizing companies for seeking encryption that would prevent law enforcement access even with a warrant. "I would do that differently if I had the chance," he said at a conference hosted by the Hewlett Foundation last week.

Beyond that, Comey wouldn't have changed much. And his stance is still firmly anti-encryption. Sure, it sounds like he thinks encryption is important, but the only version he'd be willing to live with if he were still running the FBI would be a version no one would trust.

Comey says, "you could build a key that sits with the U.S. government, a key that sits with the maker of that device and a key that sits with a non governmental agency" and a judge could order these keys to be combined to grant access to the data. He argued such a model could still be built despite widespread criticism from technologists who think such a solution would be impossible or insecure.

This proves Comey still unwilling to be the adult in the room, even as he repeated his assertion that it's all he really wants: an "adult conversation." Plenty of adults have spoken, contradicting Comey's fervent, but unfounded, beliefs that compromised encryption is still secure encryption.

Comey says it's time for the U.S. to have an "adult conversation" about what's at stake as more and more devices and services are encrypted. He warns that "broad swaths" of American life are now occurring out of the reach of law enforcement, and he's worried that the public isn't talking enough about the implications that could have for society.

Whatever. As far as I can tell, law enforcement is doing just fine. The stuff that's encrypted doesn't appear to be much of a problem. The FBI is having no problem radicalizing troubled youths into DOJ prosecution fodder. The ATF is still running stash house stings, turning poor people into federal inmates for thinking about robbing a fake drug stash house of its nonexistent drugs. The DEA is still spending a great deal of time looking for cash, rather than drugs. And local law enforcement is doing the same thing, concentrating on asset forfeiture, SWAT team raids, and talking people into having sex with officers pretending to be 14-year-old girls. Not really seeing the problem encryption poses for the law enforcement in any of these endeavors.

Comey isn't here to speak truth to power or expound on the virtues of the rule of law. He isn't even truly apologetic for his heavy-handed anti-encryption rhetoric over the past few years. He wants people to believe he's a paragon of virtue, thanks to his unceremonious ouster. But he's still the same guy who used to run the FBI and he still has the same goals. Getting fired hasn't made him a better person and it sure as shit hasn't made him a hero.

Filed Under: computer security, doj, encryption, fbi, going dark, james comey

White House Won't Share Data On Whether It Interfered In AT&T Merger Review

from the something-fishy dept

The late 2017 DOJ announcement that it would be suing to stop AT&T's $86 billion merger with Time Warner turned more than a few heads. While the DOJ insisted that the move was driven entirely by an interest in protecting consumers, the decision was utterly discordant with the Trump administration's often facts-optional assault on consumer protections that have bipartisan support, ranging from net neutrality to basic environmental protections. And the DOJ's sudden concern about the impact of media consolidation was in stark contrast to Trump's FCC, where demolishing decades-old media consolidation rules has been a top priority.

At the time of the lawsuit, many wondered if some other motivations were really at play. After all, Rupert Murdoch had been pushing Trump for more than a year to scuttle the deal for anti-competitive reasons. Time Warner rejected a News Corp. acquisition offer in 2014, and more recently AT&T rebuffed the company's attempt to buy CNN... twice. Time Warner employees quoted at the time believed Murdoch was the driving motivation for the political pressure to quash the deal:

"According to executives I spoke with, the theory is that Murdoch privately encouraged Trump to scuttle the deal as revenge for Time Warner rejecting Murdoch’s $80 billion takeover offer in 2014. “A direct competitor, who was spurned from buying us, perhaps is trying to influence the judicial process? That’s corruption on top of corruption,” one Time Warner executive told me."

One obvious theory is that Murdoch convinced Trump to scuttle the deal as a competitive favor, perhaps with an eye on using the deal to force AT&T to divest CNN to Murdoch as a merger condition. This could have theoretically played well within Trumpland given Trump's personal disdain for critical CNN coverage, something that wouldn't be a problem under Murdoch control. Proving that of course is something else entirely, since it's unlikely that, were it true, anybody involved would put such an arrangement in writing.

Fast forward to last month, when a New Yorker piece on the Trump White House's close ties to News Corporation included this notable but overlooked bit:

"...in the late summer of 2017, a few months before the Justice Department filed suit, Trump ordered Gary Cohn, then the director of the National Economic Council, to pressure the Justice Department to intervene. According to a well-informed source, Trump called Cohn into the Oval Office along with John Kelly, who had just become the chief of staff, and said in exasperation to Kelly, “I’ve been telling Cohn to get this lawsuit filed and nothing’s happened! I’ve mentioned it fifty times. And nothing’s happened. I want to make sure it’s filed. I want that deal blocked!”

That prompted House Judiciary Committee Chairman Jerrold Nadler and Representative David Cicilline to demand the White House turn over any correspondence that could help clear things up. But this week, the White House refused, insisting that all correspondence with advisors was protected:

"In a letter dated Monday and released on Tuesday by Cicilline, White House counsel Pat Cipollone declined to release any documents, saying he would not provide “protected communications between the president and his senior advisers that are the very core of the executive branch’s confidentiality interests."

Cipollone added that the Justice Department would be responding “in due course.”

Again, it remains entirely possible that Trump simply wanted the deal spiked out of spite for CNN. But Murdoch's involvement here would explain a lot. The Trump DOJ of course proceeded to do a face plant at trial thanks in part to a Luddite Judge, but also thanks to the DOJ lawyers' failure to mention net neutrality once at trial. It was a rather important contextual omission given AT&T's plans to use both its ownership of "must have" media (like HBO), and its domination of broadband networks anti-competitively. Was the DOJ just clueless or did it just not want to highlight the perils of the Trump FCC killing net neutrality?

It's certainly not out of the realm of possibility that the DOJ tried to stop the deal without any external motivation, but it would certainly be nice to see more data clearing that up one way or another.

Filed Under: antitrust, doj, donald trump, merger
Companies: at&t, cnn, time warner

Julian Assange Arrested On Behalf Of The US, For Trying To Help Manning Crack CIA Password

from the cfaa-and-conspiracy dept

Julian Assange has been arrested in the UK on behalf of the US, as Ecuador has finally tired of their overstaying asylumed house guest. We're about to see quite a major legal battle, first in the UK and then almost certainly in the US, about Assange. The current charges seem narrowly focused on a CFAA-based "conspiracy" between Assange and Manning to try to hack a CIA computer, but if they expand to other Wikileaks activities, there should be concerns over press freedom issues.

I am no fan of Julian Assange or Wikileaks. However, for years I've made it clear that prosecuting him for publishing leaked documents would be a huge mistake by the US. The DOJ spent years trying to come up with an excuse to charge Assange, but kept realizing they had no case, because while he may have had malicious intent, none of his public actions in releasing documents were any different -- legally speaking -- than what any investigative journalism outlet did in releasing obtained documents. The Supreme Court has made it clear that publishing classified documents is protected by the First Amendment. If he went beyond just releasing documents, as the indictment alleges, it becomes a lot trickier -- but there's a fine line here.

It's been clear in the last year or so, that despite years of not finding anything, the DOJ was finally moving ahead with plans to charge him. As we noted last year, everyone who believes in a free press should be concerned about what this might mean for press freedoms in the US as the case proceeds. And that's true, even if the specific charges right now are limited to actions that are unrelated to the publishing of the documents.

A few minutes ago, the DOJ released a fairly barebones 7-page indictment, alleging he was in a conspiracy with Chelsea Manning to hack into government computers to obtain documents. From the indictment, the charges are separate from releasing the documents that everyone knows Manning provided to Assange, and specifically revolve around Manning and Assange apparently working together to try to hack the CIA after Manning had finished handing over all of the documents we already know about. The indictment claims (and I kid you not) that Manning "used special software, namely a Linux operating system... to obtain the portion of the password provided to Assange." What was obtained apparently was a hashed password to a CIA computer system, that Assange was allegedly going to try to crack, in order to enable Manning to get more info out of the CIA.

If all of this is true, then it certainly could go beyond issues related to press freedoms. It's one thing to receive classified documents and publish them. It is a different issue altogether to work with a source and participate in trying to hack a government system. There is no evidence that Assange was ever actually successful in cracking the password, but he's facing CFAA and conspiracy charges here that may have more staying power. If the indictment is accurate and there's evidence to back it up, then Assange could potentially be in (and this is the legal term) deep shit.

But so much of what Assange did, even if we might disagree with his reasons for doing it, is little different than what many media organizations do. What will be necessary is watching closely how the case against Assange advances and changes (it is unlikely that these will be the only charges against Assange). If it is narrowly limited to the actions described in the current indictment, the dangers to press freedoms may be limited. However, if it strays beyond that into some of the other, more journalistic efforts of Assange, it could still represent a huge attack on a free press. Given our current President's near daily attacks on the free press, with repeated announcements that he'd like to change the laws to harm them, going after Assange legally (which may seem a bit ironic, given all the accusations that Assange's leaks in 2016 were designed to help Trump get elected), might be the best way to actually achieve that goal.

Filed Under: cfaa, chelsea manning, cia, conspiracy, doj, hacking, julian assange, passwords

DHS Thinks Homeland Will Be More Secure If Two Federal Agencies Ignore Domestic Terrorists

from the all-threats,-but-really-just-the-foreign-ones dept

The Department of Homeland Security isn't all that interested in securing the homeland, it appears.

The Department of Homeland Security has disbanded a group of intelligence analysts who focused on domestic terrorism, The Daily Beast has learned. Numerous current and former DHS officials say they find the development concerning, as the threat of homegrown terrorism—including white supremacist terrorism—is growing.

This shift of focus away from a growing problem was a move made by the Trump administration. The head of this department, David Glawe, dissolved the branch handling domestic terrorism, even as acts of domestic terrorism continued to increase. The DHS likes securing the homeland, but only if it involves targeting people from other countries. The war at home can continue to be waged as far as its concerned.

The DHS apparently feels the FBI should handle the problem of securing the homeland against domestic threats.

Two former DHS officials, speaking anonymously because their current employers did not authorize them to speak to the press, said this change eliminates redundancy in the government. These officials argued that the responsibility for preventing domestic terrorism lies with the FBI, rather than with DHS.

This is as much the FBI's fault as anyone's. The FBI declared long ago it was now a counterterrorism agency, rather than a law enforcement agency. The problem with leaving this up to the FBI is the FBI is no more interested in combating domestic terrorism than the DHS.

[T]he FBI claimed for several years that far-right violence, though the most lethal, was not the top domestic terrorism threat. From 2004 through 2008, the FBI designated “eco-terrorism” the number one threat within the United States, despite not a single fatality attributed to environmental activists. The FBI still devotes substantial counterterrorism resources to tracking political activists protesting oil and gas pipelines at Standing Rock and elsewhere, and even harassing the lawyers that assist them. In 2017, FBI agents raided two animal sanctuaries as part of a multi-state investigation to locate two piglets rescued from a factory farm, reportedly cutting off a piece of one piglet’s ear to obtain DNA samples for testing. This seems a questionable use of resources, particularly when thousands of violent hate crimes against human beings are going unaddressed.

In another instance of taking its eye off the ball, weeks before the deadly white nationalist riot at Charlottesville, the FBI issued an assessment warning police that black activists protesting police violence posed a threat to them. It even invented a term for it — the “Black Identity Extremist” movement — to justify increasing scrutiny. Its first attempted prosecution of a prominent member of the Huey P. Newton Gun Club, an armed black self-defense group in Dallas, Texas, failed. The FBI continues to monitor and harass Black Lives Matter activists, visiting their homes in advance of protests, potentially chilling their participation.

The FBI's favored counterterrorism efforts are sting operations that utilize undercover informants to radicalize an assortment of weak and helpless people before handing them over to federal prosecutors. The FBI has probably created far more would-be terrorists during its counterterrorism efforts than social media. When the FBI deigns to examine domestic terrorism, it decides to go after people who threaten established industries or the justice system's status quo.

The FBI knows the domestic problem is growing:

Internal FBI figures reviewed by the paper show more domestic terror suspects were arrested in 2018 than “those allegedly inspired by international terror groups.”

According to FBI data, 150 Americans were arrested for planning to engage in acts of domestic terrorism in 2017, compared to 110 international suspects; in 2018, the ratio was 120 to 100.

Like many federal government agencies -- especially those tied to law enforcement -- the FBI and DHS have allowed terrorism to become an eye-of-the-beholder sort of thing. The DHS throws time and money at border security and hassling travelers at international airports. The FBI focuses on ISIS-inspired terrorism, conveniently forgetting plenty of other belief systems are capable of producing violent acolytes.

There's really only one conclusion to draw from this: domestic terrorism is ignored because it usually involves Good Americans™ with white skin and American flag bumper stickers. Foreign terrorism involves brown people of indeterminate origin. This may not necessarily indicate the agencies are filled with racists, but this selective distribution of talent and resources doesn't encourage many alternate theories.

These agencies are supposed to defend us from all threats foreign and domestic. It's just not happening. This is a continuation of the proud American tradition of implicitly viewing foreigners as a threat and white, male citizens as the personification of patriotic virtue. The world may have changed radically over the past several decades, but one narrative -- foreign threats -- still plays better to the home crowd than the idea their friends and neighbors may be planning to shoot up a mosque or drive a vehicle into a crowd of protesters. It's depressing enough that a significant percentage of the US population thinks only people who don't look like them can be dangerous. It's morally repugnant federal agencies reflect this mindset in their priorities.

Filed Under: dhs, doj, domestic terrorism, fbi, hate groups

Court Says Government Can Continue To Withhold Six 'Significant' FISA Court Opinions In Their Entirety

from the releasing-even-a-single-word-would-apparently-destroy-the-nation dept

The EFF's attempt to force critical FISA court opinions out of the DOJ's hands has been rejected by a California federal court. The EFF was seeking to obtain unreleased FISA opinions by utilizing some of the new review requirements enacted with the USA Freedom Act. Unfortunately, the court has rejected the EFF's compound argument, as Aaron Mackey explains:

Although the court did not rule on whether USA Freedom requires the government to review and disclose significant FISC opinions created before May 2015, it decided that EFF could not rely on USA Freedom’s transparency provisions while seeking FISC opinions as part of a Freedom of Information (FOIA) lawsuit. The ruling also upheld the government’s decision to completely withhold six significant FISC opinions based on the government’s claims that disclosing even a single word would jeopardize national security.

If there's any good news in this decision [PDF], it's the court taking a pass on the retroactivity issue, rather than offering judicial backing for the DOJ's opacity. Nothing in the law suggests the new FISA opinion review process only affects opinions created after the law went into effect. The law's language simply states that "each" significant FISA decision must undergo a declassification review. There's no time limit inherent to "each" significant decision, but the DOJ has chosen to read the language in a way that's most beneficial to it. With the court not giving its explicit blessing to the DOJ's interpretation, it can still be challenged.

That's pretty much the end of the good news. While the EFF has managed to pry loose 70 significant decisions, the government still wants to fully withhold six of them. The EFF argued that the review requirement prevents the DOJ from relying on blanket FOIA exceptions to keep these from being released. As the EFF pointed out, the government has offered no evidence these opinions have ever undergone a declassification review.

The court likes the argument, but doesn't agree with the EFF's assertions.

Although Plaintiff presents a creative argument, the Court agrees with Defendant that Plaintiff cannot enforce Section 402 [the declassification review] through this FOIA action. See Dkt. No. 69 at 2. While courts have not addressed this specific issue, the Court is persuaded by the decisions of courts interpreting FOIA’s relationship with other disclosure statutes.

[...]

Absent clear evidence that Congress intended Section 402 to be applied when reviewing FOIA exemptions, the Court will not impute such an intent to hybridize two statutory schemes. [...] The purpose of Section 402 was to allow for more transparency of FISC and FISCR opinions by requiring the Director of National Intelligence and the Attorney General to release information that they determined were not classified, not to override “the ability of the government to claim proper FOIA exemptions.”

The court also says the government's use of blanket exemptions is proper. It bases this on its own limited experience with national security issues.

Recognizing the Court's “limited institutional expertise on intelligence matters,” see Hamdan, 797 F.3d at 770, the Court accords substantial weight to Ms. Gaviria’s representation that “disclosure of this information could reasonably be expected to cause serious damage, and in some instances, exceptionally grave damage to the national security of the United States.” See Gaviria Decl. ¶ 30. In the area of national security, “it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.”

With that bit of deference, the court declares the government to be the winner -- at least in terms of these six withheld decisions. Unfortunately, this means the government can continue to pretend it doesn't have to review old decisions until the court -- or Congress -- tells it otherwise.

Filed Under: doj, eff, fisa, privacy

DOJ Warns Academy That Being An Anti-Streaming Luddite Could Violate Antitrust

from the get-off-my-damn-lawn dept

So roughly a month ago you might recall that Steven Spielberg had a "get off my lawn" moment in demanding that Netflix films be excluded from Oscar contention. The sentiment isn't uncommon among old-school Hollywood types who see traditional film as somehow so sacred that it shouldn't have to change or adapt in the face of technological evolution. It was the same sentiment recently exhibited by the Cannes film festival when they banned Netflix films because Netflix pushed back against absurd French film laws (like the one requiring a 36-month delay between theatrical release and streaming availability).

You'll notice there's never much solid supporting evidence supporting these banning recommendations; just some vague arguments that films from streaming services can't be considered good because these companies push back against traditional and often counterproductive business tactics that haven't aged well in the internet era (like those antiquated release windows). And while Netflix's catalog certainly has its share of duds, there's an ocean of awards for films like Roma that suggest the entire sentiment is little more than old man protectionist nonsense.

Granted shortly after Spielberg's comments about how terrible streaming services were, Spielberg came out in breathless support of Apple's new undercooked Apple+ streaming service, suggesting that perhaps streaming services aren't so bad if Steven's backing them.

Curiously however, Steven's grumpy vision of a streaming-free oscars may not come to fruition. Reports this week surfaced that the Department of Justice has actually told the Academy to tread carefully in terms of excluding streaming services from contention, as they could run afoul of antitrust guidelines:

"According to a letter obtained by Variety, the chief of the DOJ’s Antitrust Division, Makan Delrahim, wrote to AMPAS CEO Dawn Hudson on March 21 to express concerns that new rules would be written “in a way that tends to suppress competition.”

“In the event that the Academy — an association that includes multiple competitors in its membership — establishes certain eligibility requirements for the Oscars that eliminate competition without procompetitive justification, such conduct may raise antitrust concerns,” Delrahim wrote."

While that's actually makes some since for the DOJ, it's an odd issue to single out given all the other massive monopoly problems facing the US in the wake of years of eroded antitrust enforcement. After all, the DOJ just showed how feckless and toothless US antitrust protections are when it did a face plant in trying to stop AT&T's $86 billion merger with Time Warner, a deal that immediately resulted in significantly higher prices for both consumers and competitors alike.

So while the DOJ is correct in that the barring of Netflix and other streaming platforms from streaming contention is idiotic and anti-competitive, it's an interesting problem to be singling out given how useless and apathetic US antitrust enforcement has been on a wide variety of monopoly problems facing the US tech sector, from the cornering of ad markets to the vertical integration issues caused by telecom giants controlling both the content and the conduit to the home.

Filed Under: academy awards, doj, hollywood, movies, oscars, steven spielberg, streaming
Companies: apple, netflix

Federal Prosecutors Recommend Paul Hansmeier Spend The Next 12 Years In Prison

from the not-so-clever-Hans-heads-for-the-federal-glue-factory dept

Cue the Ron Paul "It's Happening!!!!" gif. The wheels of justice have been grinding away for years now, but they've finally generated several years for longtime copyright troll/supervillain Paul Hansmeier. After making a career out of extorting settlements from alleged porn-watching infringers, extorting settlements from small businesses with bogus ADA complaints, attempting to hide his wealth from his creditors (some of which were owed money for sanctions imposed in copyright trolling cases), and otherwise putting on a one-man show entitled "Why We Hate Lawyers," Hansmeier is facing the possibility of spending the next decade in prison.

The sentencing recommendation [PDF] prepared by the prosecutors has nothing good to say about Hansmeier. In fact, the prosecutors make it clear they'd have given him even more than the 12+ years they've recommended. (h/t Virgil Abt)

Here are the numbers:

As reflected in the report, the appropriate guidelines range for Paul Hansmeier is 135 to 168 months in prison.

And here's the reasoning for the lengthy sentence:

Paul Hansmeier was the driving force behind this massive scheme. It was Hansmeier who came up with the idea to construct a copyright settlement mill focused on pornographic films. It was Hansmeier who directed his brother to upload clients’ movies onto file-sharing websites to lure downloaders. It was Hansmeier who drafted nearly all of the legal pleadings used to deceive judges. It was Hansmeier who invented phantom hacking allegations. And it was Hansmeier who lied to judges, dissembled in depositions, and coerced others to conceal the truth.

The government says John Steele was basically the muscle -- an intimidating figure who also handled the bookwork for the scheme. But it was Hansmeier who did the dirtiest of the dirty work. And as such, he should be dealt with more harshly. And this is hardly the end of the government's summary of Hansmeiers' dirty work. The filing continues in this fashion for several pages -- a fitting tribute to Hansmeiers' scamsmanship.

The headings alone indicate the depth of Hansmeiers' grift.

Hansmeier repeatedly deceived courts

Hansmeier and Steele owned and controlled the plaintiffs

Hansmeier invented allegations of hacking

Hansmeier protected himself by using proxies

The details interspersed between these headings are devastating in their description of Hansmeier and his long-running fraud.

Hansmeier concealed from the courts that he filmed and produced much of the pornography in this case himself, not for commercial distribution, but for the sole purpose of using the resulting pornographic movies as bait.

[...]

Hansmeier compounded his egregiously disgraceful misuse of Judge Bransford’s subpoena authority by lying directly to her face in open court…

[...]

Hansmeier hid the fact that he and his codefendant, John Steele, were the attorneys responsible for filing every fraudulent copyright infringement lawsuit in this case. Hansmeier and Steele recruited an alcoholic and now-deceased Chicago attorney named Paul Duffy to serve as the putative owner of “Prenda Law,” the firm that represented AF Holdings, Ingenuity 13, and the other sham plaintiffs in the various copyright cases.

[...]

[W]hen courts around the country sought to hold Hansmeier responsible for the fraud and damages he had wrought, Hansmeier resorted to perjury and suborning perjury to escape blame and retain the proceeds of the scheme. Hansmeier and Steele swore out false declarations, gave false testimony in depositions and at court hearings, and caused Lutz to do the same…

[...]

Even after Judge Wright’s widely-read order sanctioning Hansmeier, Hansmeier continued to hide the money he gained through the fraudulent scheme. Hansmeier transferred money into his new law firm, Alpha Law, into accounts controlled by his wife, Padraigin Browne, and a sham trust called “Monyet,” and then filed a fraudulent bankruptcy case concealing the fact that Hansmeier retained control over a substantial amount of the proceeds of his fraud case.

The whole recommendation is a depressing read simply for the fact this scam went unimpeded for so long. The government wraps up this ugly narrative with its recommended sentence, but only after offering this last appraisal of Paul Hansmeier.

In summary, Hansmeier was greedy, arrogant, devious, mendacious, and consistently positioned other people to be damaged by his conduct, even as he enjoyed the proceeds of the scheme he orchestrated. Even now, Hansmeier continues to accept responsibility only in conditional terms, hoping to convince the appeals court that his shocking abuse of his position of trust as a Minnesota attorney, and an officer of its courts, was somehow legal.

The government says its final call is 150 months, but the footnote attached indicates the government would have handed out so much more if it had not already agreed not to.

In the plea agreement, the government agreed not to recommend a sentence above 150 months.

Twelve years is a lot of time. But Hansmeier appears to have earned every day of it.

Filed Under: copyright troll, doj, john steele, paul hansmeier, sentencing
Companies: prenda, prenda law

Appeals Court Overturns 47-Year-Old Murder Conviction Predicated On Faulty FBI Hair Analysis Evidence

from the DOJ's-forty-year-credibility-gap dept

For years, FBI forensic experts have been overstating their certainty about… well, everything. Every piece of forensic evidence -- the stuff eventually proven to be junk science bolstered by junk stats -- was given the official "Thumbs Up of Absolute Certainty" during testimony.

Eventually (very eventually), it was exposed for the courtroom snake oil it actually was. The FBI, duly chastened, promised to keep doing the same damn thing in perpetuity no matter what actual scientists using actual scientific methods had to say.

For decades, this was standard operating procedure. A study by The Innocence Project found FBI forensic experts had been overstating their findings in court, resulting in a large number of potentially bogus convictions. The DOJ also admitted this error, but chose only to inform prosecutors of its findings, leaving it up to them to erase their own wins from the board.

One of these dubious "hair match" cases has finally made its way to the appellate level. John Ausby, convicted of rape and murder in 1972, is challenging his conviction based on the prosecution's reliance on FBI experts' overstatements. Thanks to the DOJ's admission this expert testimony was likely flawed, Ausby can actually pursue this so long after the fact.

Unfortunately, the lower court claimed the hair match testimony wasn't instrumental to the guilty verdict. It maintained the verdict would have been reached without the FBI forensic expert's assertions of certainty and the prosecution's reliance on this key -- but ultimately bogus -- piece of evidence.

The DC Circuit Appeals Court disagrees [PDF]. As it points out, the situation isn't as simple as the lower court makes it appear. There was additional evidence used to convict Ausby, but the record shows the prosecution relied on the expert's statement that the hairs from the murder scene were an "exact match" -- something it reiterated during closing arguments.

Given the combination of evidence used to convict Ausby, the court finds this overstatement of certainty was instrumental in his conviction.

Agent Neill’s testimony was neither the sole piece of evidence on which the prosecution hung its case nor redundant or irrelevant. We ultimately conclude, however, that Agent Neill’s testimony falls on the material side of the spectrum. Agent Neill’s testimony was the primary evidence that directly contradicted Ausby’s defense theory—that Ausby had been in Noel’s apartment during her two-week absence but not on the day of her rape and murder.

As the court notes, other evidence somewhat supported Ausby's alibi, but it was seemingly shut down by the prosecution's insistence that the hair recovered from the scene could only have come from Ausby.

That Agent Neill’s testimony played a key role in debunking Ausby’s defense is borne out by the prosecution’s emphasis in its closing rebuttal that Agent Neill’s microscopic hair-comparison analysis “is not a positive means of identification but it amounts to a positive means here.” Thus, without Agent Neill’s hair-comparison testimony, there is a reasonable likelihood that the jury could have accepted Ausby’s defense theory.

Forty-seven years later, Ausby's conviction is being vacated. If it hadn't take the DOJ forty years to realize it had a forensic evidence problem, this injustice could have been undone decades sooner.

Filed Under: doj, false conviction, fbi, forensics, hair, john ausbry, murder

Appeals Court Doesn't Buy Government's National Security Assertions; Says Lawsuit Against FBI Can Continue

from the 'we-can't-explain,'-they-explained dept

A lawsuit against the FBI for pervasive, unconstitutional surveillance of Muslims can continue after receiving a very key determination from the Ninth Circuit Court of Appeals. At the center of the case are three Muslims who claim the FBI's continuous surveillance -- assisted by an FBI informant -- violated a number of Constitutional protections.

The key victory here is the court's overturning of the lower court's ruling on the national security assertions raised by the government in hopes of avoiding having to litigate the alleged violations at all. The lower court granted the government's motion to dismiss, saying the government's secrecy matters far more than an unviolated Constitution. The appeals court reverses that, noting stating that the government can't dodge litigation simply by claiming the subject of the lawsuit is too sensitive to discuss in court. From the decision [PDF]:

Plaintiffs asserted eleven claims, which fell into two categories: claims alleging unconstitutional searches, and claims alleging unlawful religious discrimination. The district court dismissed all but one of plaintiffs’ claims on the basis of the state secrets privilege, and allowed only the Foreign Intelligence Surveillance Act (“FISA”) claim against the FBI Agent Defendants to proceed.

The panel held that some of the claims the district court dismissed on state secret grounds should not have been dismissed outright. The panel further held that the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in FISA.

The lower court showed too much deference to the state secrets assertions. It must now reexamine the claims made by the government, as well as their application to the alleged harms. This is very helpful precedent -- one that forces lower courts to pay a lot more attention to the government's natsec hand-waving, rather than simply conclude the government knows best when it comes to state secrets.

There's more good stuff in the panel's opinion. Two FBI agents will have to defend themselves against claims of unlawful surveillance, like the following:

Plaintiffs offer sufficient well-pleaded facts to substantiate their allegation that some of the Agent Defendants—Allen and Armstrong—were responsible for planting devices in AbdelRahim’s house. Specifically, the complaint details one occasion on which Allen and Armstrong asked [FBI informant] Monteilh about something that had happened in AbdelRahim’s house that Monteilh had not yet communicated to them, and explained that they knew about it because they had audio surveillance in the house.

Plaintiffs also allege sufficient facts with regard to those two Agent Defendants in support of their allegation of electronic surveillance of Fazaga’s office in the OCIF mosque in Mission Viejo: Allen and Armstrong told Monteilh that electronic surveillance was “spread indiscriminately” across “at least eight area mosques including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West Covina, and Upland,” and that “they could get in a lot of trouble if people found out what surveillance they had in the mosques.”

The defenses raised by the sued agents forms part of the Ninth Circuit's state secrets decision. It was the agents that raised this defense, not the agency they worked for (which was also sued). As the court notes, the agents cannot possibly hope to prevail by raising a defense the government determined didn't apply to the situation.

The Agent Defendants—officials sued in their individual capacities—are not the protectors of the state secrets evidence; the Government is. Accordingly, and because the Agent Defendants have not identified a reason they specifically require dismissal to protect against the harmful disclosure of state secrets where the Government does not, we decline to accept their argument that the Government’s dismissal defense must be expanded beyond the religion claims.

What the government did do is invoke FISA's protections against open discussion of counter-terrorist surveillance programs. The court reminds the government that the law was created in response to abusive surveillance programs deployed by the government -- abuses much like those central to this case. While it did eventually lend its name to more surveillance abuses following the 9/11 attacks, it was actually more of a reform effort in its original state. Since the government appears to have forgotten FISA's original aim, the appeals court delivers this reminder.

The inference drawn from the text of § 1806 is bolstered by § 1810, which specifically creates a private right of action for an individual subjected to electronic surveillance in violation of FISA. FISA prohibits, for example, electronic surveillance of a U.S. person “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” 50 U.S.C. § 1805(a)(2)(A). Here, Plaintiffs allege they were surveilled solely on account of their religion. If true, such surveillance was necessarily unauthorized by FISA, and § 1810 subjects any persons who intentionally engaged in such surveillance to civil liability. It would make no sense for Congress to pass a comprehensive law concerning foreign intelligence surveillance, expressly enable aggrieved persons to sue for damages when that surveillance is unauthorized, see id. § 1810, and provide procedures deemed adequate for the review of national security-related evidence, see id. § 1806(f), but not intend for those very procedures to be used when an aggrieved person sues for damages under FISA’s civil enforcement mechanism. Permitting a § 1810 claim to be dismissed on the basis of the state secrets privilege because the § 1806(f) procedures are unavailable would dramatically undercut the utility of § 1810 in deterring FISA violations. Such a dismissal also would undermine the overarching goal of FISA more broadly—“curb[ing] the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.”

To sum up, the appeals court isn't willing to let the government (or its agents) claim this apparently-illegal surveillance is too sensitive to discuss in open court. The government will still get to submit evidence and arguments to the court in ex parte hearings if it wants to argue certain elements of the case cannot be discussed publicly, but it will not be granted a blanket exception it can use to dodge the litigation in its entirety. The court ends its decision by noting the government can't have this much power if it's not willing to accept the responsibility that comes with it.

In holding, for the reasons stated, that the Government’s assertion of the state secrets privilege does not warrant dismissal of this litigation in its entirety, we, too, have recognized the need for balance, but also have heeded the conclusion at the heart of Congress’s enactment of FISA: the fundamental principles of liberty include devising means of forwarding accountability while assuring national security.

Which is exactly how it should be. Unfortunately, too many courts take the district court's path and give the government all the secrecy it asks for.

Filed Under: 4th amendment, 9th circuit, constitution, doj, fbi, fisa, muslims, national security, surveillance