'Going Dark?': Cops Grab Vehicle Data To Identify A Murder Suspect

from the [car-whispering-furtively-into-a-payphone]-i-have-something dept

All the cops in the federal shops say "going dark" is a thing. Local cops have much less to say about the issue, even though they've got as much at stake. The FBI can't be trusted to count its own inventory of "locked" devices, so how much of a problem encryption poses is still highly theoretical. Which is the way the FBI and DOJ want it.

We live in a golden age of surveillance. Much of it is self-enabled. Phones track users wherever they go, an unfortunate byproduct of remaining "connected." FOMO has turned dozens of phone apps into unstoppable data generators. In-home devices record conversations, track viewing habits, and record internet usage habits. Wearables provide even more location data, as well as tons of useful biometric info.

Any cop complaining about the "restraints" of device encryption just isn't using their imagination. Cloud services provide cops with backups of conversations they can't access from locked devices. Billions of data points harvested by apps, data brokers, and government contractors give cops tons of info that's escaped the protective measures device owners have deployed to protect their devices.

A recent report by NBC News shows yet another way cops are leveraging "always-on" information gathering to round up criminal suspects, encryption be damned. Investigators hoping to solve the alleged murder of a Michigan resident turned to third parties to gather evidence, using collected data to build a case. The murder victim was dragged behind his vehicle by his neck, resulting in his violent death. His body was covered in abrasions and his skull had been "partially flattened."

At first, investigators were stumped. But then they went searching for information that has never been historically available to law enforcement. Say what you will about "going dark," but for dozens of years, cops have never been able to trace a vehicle -- much less the actions of its occupant -- without actually sending units/officers out to trail someone. And, in a case like this, there was no reason to shadow the person who killed Ronald French, since he wasn't suspected of murder until after the crime happened. Fortunately for law enforcement, "someone" was already trailing the suspect they originally never suspected of anything.

For more than two years, Kalamazoo County sheriff's detectives investigated French's murder without making any arrests. Then, according to police records obtained by NBC News, one of the detectives learned of an emerging field — digital vehicle forensics — which focuses on extracting the treasure trove of data stored in an automobile's onboard computers.

They returned to French's 2016 black Chevy Silverado pickup truck, which had been stolen around the time he vanished, and discovered time-stamped recordings of someone else's voice using the hands-free system to play Eminem on the radio at the time of French's murder.

The newfangled policework combined with old school investigative techniques (interviews, check out alibis, etc.) to produce a suspect. Thanks to information cops have never had access to historically produced a suspect currently facing murder charges. The recordings of his voice were confirmed by relatives, including his wife.

Some of this isn't completely new. Law enforcement officers and insurance investigators have used "black boxes" in cars for years to suss out the details of car accidents. More recently, law enforcement investigators have turned systems like OnStar into literally rolling wiretaps to intercept conversations.

But there's far more information available now. Vehicles allow drivers to sync their cellphones to on-board systems, providing yet another avenue of access to investigators who find themselves locked out of seized devices. There really isn't much in the way of data protection when it comes to vehicles and information-gathering. At some point, these new Constitutional boundaries may be tested in court, but that day hasn't come yet.

Despite arguments to the contrary when facing suppression motions or civil rights lawsuits, law enforcement agencies are keenly aware of which side of the Fourth Amendment bread their bread is buttered. At this point, protections for in-car data collection remain largely unexplored. And it's in that vacuum of precedent that law enforcement will operate. The NBC report notes that a single agency admits it extracts vehicle data like this "three to four times a week." In most cases, this is for routine accident investigation. But there's far more on the line than a citation for a moving violation in other cases -- and those are the cases we need to keep an eye on.

Filed Under: car data, evidence, going dark, law enforcement, surveillance

'Going Dark' Is Bullshit, Says Yet Another Report Detailing All The Ways Law Enforcement Can Obtain Evidence

from the in-the-land-of-the-deliberately-blind,-the-no-eyed-agitator-is-king dept

"Going dark" is a "problem" that appears to be localized almost entirely at the federal level. While numerous options have presented themselves over the years, the FBI, DOJ, and the president's law enforcement commission continue to claim encryption poses insurmountable problems to law enforcement. With the exception of one Manhattan prosecutor, no one else seems to believe encryption is much of a problem.

Encryption may be limiting access to the contents of a few devices and a handful of IMs, but it's really not stopping investigators from securing evidence or prosecutors from securing convictions. Time after time after time after time it's been pointed out a wealth of options are available to law enforcement. And every new iteration of "smart" things just gives them more. Encrypted phones may eliminate the most direct route to evidence, but the number of workarounds is nearly infinite.

People are tracking their movements and actions with more accuracy than ever. Smart meters track utility use with an intense amount of detail. Citizens are installing cameras in their homes and granting access to devices that record their conversations and log their interactions with any number of services. The only way the FBI, DOJ, et al can say anything is "dark" is if they're walking around with their eyes closed. And that appears to be the case.

Yet another lengthy report on the "golden age of surveillance" has been released, highlighting the surveillance side doors available to law enforcement if the "front door" appears to be locked. "We can't get any evidence!" claim consecutive FBI directors, pointing to the agency's uncounted pile of locked devices.

Meanwhile:

In New Hampshire, for instance, a man was accused of shooting his brother in the arm in a dispute in a driveway. Footage of the altercation was captured by several Ring cameras owned by neighbors, who provided their footage to police. A judge allowed audio of the incident to come in, ruling that the defendant should have expected the driveway communications between himself and his brother to be publicly exposed.

Connected devices have also been used to contradict an account of events. A Pennsylvania woman who alleged she was raped was later charged with making false statements and tampering with evidence after Fitbit data she voluntarily provided to police suggested she had been moving around her home during the time she claimed to be asleep.

In other instances, police have obtained warrants to access data from connected devices. In Arkansas, unusual water usage tracked by a smart meter was used to substantiate claims that a defendant attempted to clean up a murder scene. Prosecutors also sought to obtain a warrant for recordings of the defendant’s Amazon Echo, but the man eventually voluntarily disclosed the recordings.

And in the case of a Connecticut man currently facing trial for the murder of his wife, police have obtained warrants for the victim’s Fitbit and several other connected devices throughout the house that revealed movements and other information contradicting his account of events.

That's just a small part of the Brennan Center's report, which covers nearly every evidentiary avenue law enforcement has access to, as well as the concerns raised by always-on surveillance… even if citizens are willingly participating in their own surveillance. There's a lot of Fourth Amendment questions yet to be answered, but a lot of the answers will come down to whether or not courts view willingly sharing data with companies the same as willingly sharing it with the government.

Any law enforcement official complaining about encryption is being disingenuous. The lack of direct access to things sought by warrants isn't the same as working blindly in the dark. Cops have tons of options they've never had before -- options that replace jackboots on the ground, mind-numbingly long stakeouts, and hanging out in a nondescript van hoping to overhear something incriminating. The investigative cost -- at least in terms of personnel and man hours -- has steadily been decreasing. Reams of data are often only a subpoena away. And for a few thousand dollars, private contractors are on tap to turn data firehoses into useful streams of information.

How many attack vectors are there for evidence? An insane amount. Onboard vehicle communication systems like OnStar have eavesdropped on conversations for years. The addition of Bluetooth connections to in-car entertainment systems has provided another point of access for data that may otherwise be locked inside an encrypted phone. Built-in navigation systems track drivers and their favorite destinations.

Smart gadgets in homes record conversations, track movements, and give investigators clues as to whether anyone was in a home at certain points in time. Fitbits and similar devices track people's movements in areas where cars can't go. They also provide handy biometric info that has never been available to investigators prior to this point in time.

And that only covers the surveillance citizens aim at themselves. Law enforcement has plenty of always-on options of its own that provide it streams of useful data and evidence investigators need no warrants to access. Agencies have augmented their aerial surveillance with powerful cameras capable of tracking movements across entire cities. Low-cost drones provide more aerial surveillance without the expense of keeping manned aircraft aloft. Millions of license plate records are gathered every day by thousands of plate readers. Interlinked databases allow law enforcement to track people's movements across the country if need be.

Then there's the more personally-invasive efforts. Cops are using cheap facial recognition tech to identify suspects and seem largely unconcerned when the software picks the wrong person out of the lineup. Entire communities are subjected to additional scrutiny thanks to flawed analytic systems that turn garbage, racist data into "predictions" about upcoming criminal activity. And this tech is being introduced to schools, turning minors with their whole lives ahead of them into minors whose future has been predetermined by an Excel spreadsheet.

This hasn't replaced anything law enforcement has already had warrantless access to, like utility records, trash pulls, pole-mounted camera footage, etc. This is in addition. To claim the only useful evidence hides in the static storage of a locked phone is bullshit. To their credit, most law enforcement agencies realize this. It's only those up top pretending this isn't the case.

Filed Under: doj, encryption, evidence, fbi, going dark, law enforcement

Trump Campaign Gets Laughed Out Of Court For Claiming A Bunch Of Unvetted Webform Submissions Is 'Evidence' Of Voter Fraud

from the who-needs-sworn-statements-when-you-have-a-CAPTCHA dept

The Trump Campaign is back in court, hoping to reclaim a presidency Donald Trump has lost. It spent plenty of time in court prior to the election, hoping to prevent as many people as possible from voting. Now, it's doing the same thing, insisting (without evidence) there's voter fraud everywhere.

Immediately following Election Day, the Trump campaign opened its own voter fraud hotlines. People who thought they observed voting fraud were encouraged to call the campaign or submit sworn statements via a handful of websites. Both offerings were immediately swamped by pranksters and other non-fans of Trump, tying up phone lines and filling the webform coffers with useless things like, say, the script from "Bee Movie."

Undeterred by a lack of credible fraud accusations, the Trump campaign still attempted to submit some of its mostly unvetted webform garbage as "evidence" in its Arizona lawsuit. As Adam Klasfield reports, the judge wasn't impressed by the campaign's attempt to portray a bunch of statements from internet randos as something worth the court's time and attention.

A Trump campaign attorney conceded in court on Thursday morning that he tried to enter hundreds of dodgy form-filed affidavits into evidence, even though their own investigation found that a subset of the sworn statements that they received were filled with lies and “spam.”

“This is concerning,” Judge Daniel Kiley, from Arizona’s Maricopa County, remarked with some understatement.

This wasn't the only laughable assertion by Trump campaign attorney, Kory Langhofer. On the record and in front of a judge, Langhofer said the campaign was confident it had weeded out bot submissions because the site had a CAPTCHA.

Then he got even stupider by claiming the narratives the Trump campaign couldn't immediately disprove must be truthful representations. Not being able to prove something is a lie isn't the same thing as finding it to be true, the judge pointed out.

Judge Kiley replied that this did not show the remaining affidavits are trustworthy.

“That just shows you cannot disprove what’s asserted,” Kiley noted.

Then, despite entering the legal arena to dispute alleged fraud, the Trump attorney said it was unlikely anyone actually engaged in fraud.

“This is not a fraud case,” Langhofer said, casting the lawsuit instead as allegations of flaws within the voting system. “It is not a stealing-the-election case.”

It appears the Trump campaign's lawyer isn't getting the talking points memos. There have been wild, widespread accusations of voter fraud from both the outgoing president and many of his administration figureheads, which for some reason include his children and his children's spouses.

The Trump campaign thinks a webform and a hotline that will coddle conspiracy theorists when not swamped by pranksters is going to help it win back an election. Good luck with that. But it will make for some great popcorn munching as the campaign and its attorneys continue to embarrass themselves in courtrooms around the nation until every last avenue for redress has been (in all senses of the word) exhausted.

Filed Under: donald trump, election, evidence, fraud hotline, trump campaign, voting, webform

California Court Says Wiretap Target Should Have Access To Wiretap Documents

from the seems-fair dept

The EFF -- representing former California Highway Patrol officer Miguel Guerrero -- has achieved a significant legal victory. The California Appeals Court has given citizens a better shot at demanding law enforcement transparency about intrusive surveillance efforts.

It's incredibly difficult to unseal documents the government wants to keep hidden, especially when the government raises arguments about preserving the secrecy of law enforcement tactics and techniques. This case deals with one of the hundreds of wiretaps approved by a single county judge in California. Officer Guerrero was one target of surveillance. The government insisted the application, along with information about what communications were intercepted, must remain secret even though Guerrero was never charged with any crime.

Guerrero learned from family members that his phone number was the subject of a wiretap order in 2015. Guerrero, a former law enforcement officer, has no criminal record, and was never arrested or charged with any crime in relation to the wiretap. And, although the law requires that targets of wiretaps receive notice within 90 days of the wiretap’s conclusion, he never received any such notice. He wanted to see the records both to inform the public and to assess whether to bring an action challenging the legality of the wiretap.

Unfortunately for Guerrero, law enforcement's habitual abuse of a particularly amenable judge somehow didn't provide enough "good cause" for unsealing the documents. That was the lower court's determination. The state Appeals Court disagrees. Its ruling [PDF] says the judicial math for compelling disclosure is greatly altered when it's the target of a wiretap seeking disclosure.

There is significantly less need to safeguard a person's privacy when the person seeking wiretap materials was the target of that wiretap. The target, in seeking to inspect the wiretap materials, obviously consents to the disclosure being made (to himself or herself), and the inspection does not necessarily disclose private information to a third party. The intercepted conversations typically involve the target as a participant. It is possible that the application and orders could contain private information about others (such as, for example, information obtained from another wiretap needed to show necessity for the target's wiretap). But this is neither invariably the case nor is it likely that other individuals' private information would pervade a target's wiretap documents. Consequently, the privacy concerns underlying Title III and the California wiretap statutes are diminished when the person seeking access is one whose conversations were being recorded.

The government argued the law says wiretap materials "shall be sealed." The court rejects this limited view of the situation, pointing out that this statutory requirement is meaningless in the context of this request.

The fact that wiretap materials "shall be sealed" in and of itself has no bearing on what standard one must satisfy to access them; it simply means that the materials do not start out as publicly available documents.

Furthermore, the fact that Guerrero isn't under investigation weighs against any of the government's secrecy demands.

Here, we observe that the District Attorney has not relied on the existence of an ongoing investigation or grand jury proceeding before the trial court or on appeal. To the contrary, the District Attorney has conceded that there are "no criminal charges pending" against Guerrero. Similarly, the District Attorney has not claimed that there is any sensitive information in the wiretap materials, such as the identity of an informant, or information related to another open investigation, such that disclosure could jeopardize current or future investigations.

The court also says there's a public interest angle to this, prompted by the Riverside County Court's unusual amount of wiretap activity.

As noted above, the anomalous number of wiretaps approved by judges in Riverside County in 2014 and 2015 has elicited scrutiny from judges and journalists.

In addition, public confidence in the criminal justice system and the appearance of fairness can be damaged not only by actual impropriety, but the possibility of impropriety as well.

All of these weigh in favor of disclosure and the former officer -- along with his EFF representation -- has secured that. He'll get to see documents very few people have seen, even years after being charged and the corresponding investigations closed. This is a win for Guerrero but it possibly extends to others targeted by the "anomalous number" of wiretaps approved by the Riverside County Court -- wiretaps even the US DOJ felt possibly violated the law.

Filed Under: california, evidence, miguel guerrero, wiretaps

Sheriff Indicted For Evidence Tampering After Footage Of Deputies Killing An Unarmed Black Man Was Destroyed By Reality Show Producers

from the publicly-funded,-morally-bankrupt dept

It's probably time for Williamson County (TX) Sheriff Robert Chody to be voted out of office. Chody presides over a sheriff's office that has generated an amazing amount of controversy in a short period of time.

The sheriff's office invited A&E's "Live PD" to follow its deputies around as they enforced the law and, apparently, deployed plenty of excessive force. Figuring aggressive officers made for good TV, Chody began treating the hiring process as a casting call, ignoring candidates' checkered pasts if they appeared to be willing to terrorize perps and engage in high-speed pursuits.

This aggressive mindset was solidified by other supervisors in the Sheriff's Office. Deputies were allegedly given gift cards to local restaurants for deploying force during arrests. The supervisor behind the pay-for-pain scheme resigned after posting pictures depicting the kidnapping, rape, and multilation of a black football player (all staged with dolls) to his social media accounts.

During the "Live PD" days, Chody's aggressive deputies tased a black man to death during an arrest. Javier Ambler was stopped after a 22-minute low speed pursuit. Multiple officers tased Ambler as he told them he couldn't breathe and suffered from a heart condition. The footage captured by the Live PD camera crew was destroyed, according to A&E. (Body camera footage still survives.)

According to Live PD, this was part of the agreement it had with the Sheriff's Office, which allowed it to destroy unaired footage after 30 days unless it was needed for an investigation. It should have seemed clear an in-custody death would result in an investigation, but Live PD destroyed it anyway. A&E dumped the show shortly after that.

There's apparently more to this than some CYA-via-boilerplate. USA Today reports Sheriff Chody has been criminally-charged for his involvement in the destruction of the Live PD footage.

A Texas grand jury has indicted Williamson County Sheriff Robert Chody on an evidence tampering charge in the destruction of reality TV show footage that showed deputies chasing and using force on a Black man who died last year.

Williamson County District Attorney Shawn Dick and Travis County District Attorney Margaret Moore opened a joint investigation in June, a week after the Austin American-Statesman, part of the USA TODAY Network, and KVUE-TV revealed details of Ambler’s death and reported that “Live PD” had destroyed its footage.

And there are possibly more criminal charges on the way. Chody is also facing the possibility of additional evidence tampering charges for another incident in another county the same night Ambler was killed by sheriff's deputies.

In addition, the former lawyer for the county, Jason Nassour, has been indicted on evidence tampering for his involvement in the Javier Ambler killing.

According to Live PD, it was Chody who told the show to destroy the footage.

“Live PD” host Dan Abrams said in television interviews and in a post on his website that sheriff’s officials initially asked producers to preserve the video. Two months after Ambler’s death, Chody told them the investigation was completed. At that point, Abrams said, producers destroyed the video.

Whatever the Sheriff's Office did to clear itself of wrongdoing wasn't the only investigation Chody (and Live PD) needed to contend with. Outside investigators from the Austin Police Department and Travis County prosecutors were allegedly stonewalled by both the Sheriff and Live PD when they asked for copies of the footage. These investigations are still ongoing and Sheriff Chody certainly was aware of outside investigations when he instructed Live PD to destroy the footage.

Indictments are easy to obtain if prosecutors have any interest in obtaining them. It will take a court to make these stick and it's awfully difficult to hang criminal charges on law enforcement officers. But there's enough circumstantial evidence pointing to Chody being the wrong person for the job. Sheriffs wield a lot of power. And Chody appears to have abused his since day one.

Filed Under: evidence, excessive force, jason nassour, javier ambler, live pd, reality tv, robert chody, tampering, texas, williamson county

Court Tosses Surreptitious Video Recordings Holding Together Sketchy 'Human Trafficking' Investigation

from the ringing-up-investigators-on-solicitation-charges-for-fucking-themselves dept

In early 2019, law enforcement in Florida wrapped up a supposed "human trafficking" sting centering on Florida spas and massage parlors. By the time prosecutors and cops were done congratulating themselves for helping purge Florida of human trafficking, they appeared to have little more than about 150 bog-standard solicitation and prostitution arrests.

But they did land a big fish. Robert Kraft -- the owner of the New England Patriots -- was one of the spa customers caught up in the sting. That was the biggest news. Evidence of actual trafficking never appeared, leaving law enforcement with a big name, a bunch of low-level arrests, and little else.

What little law enforcement and prosecutors did have is now gone as well. Upholding a lower court's decision on video evidence captured by hidden cameras, a Florida state appeals court says everything captured on the government's secret cameras was illegally obtained. (via FourthAmendment.com)

This conclusion was reached even though investigators obtained warrants for the cameras. Here's the backstory on the video recordings, taken from the decision [PDF]:

The Jupiter detective then applied for a warrant to install secret, non-audio video cameras in the spa and to monitor and record the video. A magistrate issued a warrant allowing police to install hidden cameras at the spa in places where prostitution was believed to be occurring and in the lobby. The warrant prohibited cameras in areas where prostitution was not suspected, such as the kitchen, bathroom, and personal bedrooms.

The warrant allowed non-audio video recording for no more than five days to obtain evidence of prostitution and the felony offense of deriving support from the proceeds of prostitution. The warrant did not discuss or otherwise direct any police conduct related to “minimization,” and the detectives were not given any type of formal written instructions about how to minimize.

Using a phony bomb threat to clear the building, police installed hidden cameras in four of the spa’s massage rooms and in the lobby. Three detectives monitored and recorded video from the hidden cameras over five days. The cameras recorded video continuously, but Jupiter detectives monitored the video feeds only during business hours.

The detectives toggled between the video feeds when they displayed or when they thought they might soon display criminal conduct. They focused on the end of the massages because the sexual conduct typically occurred at the end. In all, police recorded 25 spa customers pay for sexual services. Ten more customers were suspected to have paid for sex, but the offenses could not be confirmed due to dim lighting. Four customers, including two women, were recorded who did not engage in illegal activity.

The same thing happened in other locations. Cameras were surreptitiously installed and monitored by other law enforcement agencies. Technical limitations and hardware glitches resulted in some legal massages being recorded along with those involving sexual acts. In total, multiple spas were surveilled for more than 60 days. While some effort was made to minimize the recording of legal acts or activities not related to possible prostitution and solicitation, this didn't appear to be much of a concern to investigators.

That led to the lower court throwing out the evidence because officers and investigators did not make enough of an effort to minimize intrusion or avoid recording activities outside of the scope of the warrants. The state appealed, claiming three things:

First, it said none of the defendants had any expectation of privacy in their activities at the massage parlors. It also claimed the Fourth Amendment does not contain a "minimization" requirement. Finally, the state argued even if it was wrong about its two previous arguments, investigators should be awarded "good faith" for not knowing any better.

Wrong, says the court. Of course the defendants have standing. The expectation of privacy doesn't disappear just because they've stepped out of their own homes and into a massage parlor.

The spa-client defendants in all of these cases had a subjective and objectively reasonable expectation of privacy in the massage parlor rooms. The surveillance took place in a professional private setting where clients are expected to partially or fully disrobe. The spa owners and their employees also had a reasonable right to expect that the interactions with nude or partially nude clients in the massage rooms would not be exposed to the public. As soon as the door to the massage room was closed, they had a reasonable expectation of privacy.

The court also dispenses with one of the state's more ridiculous arguments: that the people caught on tape engaging in criminal activities had no expectation of privacy because they were engaging in criminal activity.

The state also argues that the spas were primarily used as a brothel, as most of the customers who were recorded and monitored engaged in unlawful activity, and thus, the state asserts, the defendants cannot rely on the Fourth Amendment rights of third parties who had their innocent conduct recorded. However, as case law shows us, Fourth Amendment rights are nearly always safeguarded by those who are criminally prosecuted. [...] Consequently, the state’s circular argument that the defendants lacked a privacy interest because they were engaging in criminal behavior is uncompelling.

The state's assertion that the Fourth Amendment contains no minimization requirements is correct as far as the plain text is concerned. But jurisprudence has developed quite a bit since 1789, when video surveillance was nonexistent and unimaginable.

[T]he Tenth Circuit adopted “five requirements for video surveillance that define more specifically the probable cause and particularity requirements of the fourth amendment,” and which requirements expressly include the minimization requirement: An order permitting video surveillance shall not be issued unless: (1) there has been a showing that probable cause exists that a particular person is committing, has committed, or is about to commit a crime; (2) the order particularly describes the place to be searched and the things to be seized in accordance with the fourth amendment; (3) the order is sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation…

The warrants obtained in this investigation are faulty because they ignored this crucial prerequisite for video surveillance of private places.

The warrants at issue did not set forth any specific written parameters to minimize the recording of innocent massage seekers, and law enforcement did not actually employ sufficient minimization techniques when monitoring the video or deciding what to record. In all the investigations, some innocent spa goers were video recorded and monitored undressed. There was no suggestion or probable cause to believe that female spa clients were receiving sexual services, yet law enforcement largely failed to take the most reasonable, basic, and obvious minimization technique, which was simply to not monitor or record female spa clients.

This is exceptionally careless given the technology involved.

The most egregious example is the investigation by the Vero Beach Police Department in the Freels case where the cameras recorded continuously for 60 days. Thirty days’ worth of unmonitored recordings remain in the police department’s possession in that case. Other innocent spa clients may have been recorded nude – or partially undressed – on those days. Those innocent clients potentially live with the knowledge that nude videos of themselves are preserved on a server somewhere with unknown accessibility. In our ever increasingly digital world filled with hackers and the like, such awareness renders the surveillance a particularly severe infringement on privacy.

There's no good faith here either. Video surveillance has been around for decades. Investigators can't just ignore long-standing policies and court precedent and expect their "errors" to be treated as inadvertent.

We cannot conclude here that the law enforcement agencies acted in good faith with respect to minimization due to the lack of Florida law on point. The warrant applications themselves cited the decades-old federal law (such as Mesa-Rincon) setting out the requirements for obtaining a warrant to conduct secret video surveillance in private locations, including the need to minimize the recording of innocent conduct. These citations negate a finding of ignorance of minimization requirements.

Your ignorance, stupidity, and haste is your own fault, the court says to the state. Everything you had is gone because law enforcement decided to ignore years of well developed jurisprudence to engage in a human trafficking investigation that has yet to uncover any human traffickers.

The federal case law cited herein pertaining to silent video surveillance is well reasoned and widely accepted. Consequently, we must hold—as every federal circuit court and state court to consider the question has— that this type of intrusive, covert video surveillance is subject to heightened standards and procedures designed to implement Fourth Amendment protections, particularly in the face of the constantly expanding use of electronic surveillance techniques by law enforcement. And where the government fails to faithfully follow these standards and procedures, it will be held to account by the exclusion of the evidence obtained. The Fourth Amendment demands no less under these circumstances.

The Fourth Amendment makes demands of law enforcement. This isn't a new thing. It's been there since these two entities began their uneasy coexistence. But far too often, law enforcement is unwilling to uphold its end of the bargain. And let's not lose sight of what actually happened here, which goes beyond the multiple rights violations: cops deployed the video equivalent of wiretaps to catch sex workers and their customers. This sort of intrusion is supposed to be reserved for only the most serious of crimes and the most dangerous of criminals, as the concurrence points out:

The authorization of electronic or video surveillance for petty crimes as a steppingstone in an effort to investigate more serious offenses would make a mockery of the designated crime requirement. Such a subterfuge would violate the princip[le] that continuous invasions of privacy must be reserved for occasions when the need to do so was critical. . . . Florida law provides no basis for seeking a warrant for electronic eavesdropping of conversations in a misdemeanor prostitution case, and there is no reason to believe that either the legislature or judiciary would want to permit such warrants when intrusive video surveillance is at issue.

And this is yet another reason why the surveillance in this case was unlawful: there's no Florida law that permits it.

Neither the Florida statutes, nor case law authorize covert audio surveillance to investigate prostitution-related offenses. It follows that the more intrusive video surveillance is also prohibited, providing yet another basis for affirmance.

All the state has now is a bunch of petty charges it may not be able to make stick without these surreptitious recordings. If cops were really trying to break up a trafficking ring, they have failed miserably and put potential victims right back into harm's way. If investigators and cops were just looking to hassle some minorities and get a few handjobs on the clock, well, then this operation was still a success.

Filed Under: 4th amendment, evidence, florida, massage parlor, robert kraft, trafficking

Researcher Buys Axon Cameras On eBay, Finds They're Still Filled With Recordings

from the not-even-using-'password'-for-the-password dept

Data isn't secure just because nothing happened to it when it was still in your possession. It can still "leak" long after the storage device has gone onto its second life in someone else's hands.

The Fort Huachuca Military Police were just apprised of this truism by Twitter user KF, who had purchased some used Axon body cameras on eBay. The cameras still contained their microSD storage cards. And contained on those storage cards were a bunch of recordings (including audio) that hadn't been wiped by the MPs before the cameras ended up on eBay.

The whole thread is worth a read (here's an unrolled version if you prefer to go somewhere other than Twitter). No one seems to know how the cameras ended up on eBay, but it's pretty amazing they ended up in the secondary market with their recordings still intact.

What's more amazing (but somehow simultaneously less surprising) is that the recordings weren't encrypted or protected by a password. Axon responded to the Arizona Mirror's reporting of this secondary-market breach by saying it was "looking into the matter." It also said it would be putting more effort into telling its law enforcement customers what they should already know.

“We are… reevaluating our processes to better emphasize proper disposal procedures for our customers.”

What's more reassuring is that this data disposal carelessness is no longer as much of an issue for Axon customers. The cameras in KF's hands are first-generation models produced in 2015. Axon's latest version encrypts recordings and, presumably, forces officers to select passwords to ensure this encryption isn't rendered useless by a lack of login protection.

eBay also responded to questions from the Mirror, stating that it forbids the sale of surveillance devices like the ones KF was able to purchase. It also said sellers are responsible for making sure internal storage is wiped before making devices eBay says it does not allow to be sold on the site are made available for sale on the site.

Security matters. But situations that demand the utmost in care are too often handled in ways that an octogenarian using their first computer ever would find amateurish. KF's site contains this amusing/scary security test of police in-car camera systems -- cameras the researchers were able to view live after discovering zero authentication was needed to access this stream. And the system itself was only "protected" by the default login/password, which the researchers found in a PDF copy of the device's manual after a little bit of Googling.

For all the talk from law enforcement officials about the need to redact and/or withhold recordings out of concern for people's privacy, they don't seem to be very concerned that these recordings are ending up in the hands of the public. Nor does there seem to be much concern that recordings might be improperly accessed by other personnel with access to the devices while the cameras were still being used by the Fort Huachuca police. The lack of password protection is just as alarming as the apparent lack of proper disposal procedures. This is consumer-grade carelessness exercised by a taxpayer-funded entity with a whole lot of power and the obligation to be better public servants.

Filed Under: body cameras, disposal, encryption, evidence, fort huachuca, recordings
Companies: axon, ebay

Police Memo Says Officers Raiding A Journalist's Home Were Instructed To Turn Off Their Body Cameras

from the police-cops-are-truly-an-inspiration-to-us-all dept

No one involved in the search of journalist Bryan Carmody's house last May is innocent. Every new piece of information shows the San Francisco police officers -- as well as any supervisors signing off on their paperwork -- knew raiding a journalist's home to find the source of a leaked autopsy report was going to treat the First Amendment and the state's journalist shield law as a doormat.

The leak originated in the police department, which is where the SFPD should have begun and ended its investigation. Instead, officers misled a judge to get search warrants approved to search Carmody's home and the contents of seized electronics. A few months later, all five warrants were being tossed by the five judges the cops lied to, who pointed out the SFPD had purposely withheld information that would have identified the warrants' target as a journalist.

This led to a settlement being paid to Carmody nearly a year after the raid of his home. The city agreed taxpayers should give Bryan Carmody $369,000 for the violation of his rights and lawful protections by the city's protectors and servants.

Three months later, more damaging news has surfaced, thanks to a public records request filed by the Reporters Committee for Freedom of the Press. It looks as though a cover-up was in place from the initiation of the bullshit investigation. It wasn't enough to lie to judges. Officers were instructed to create no impartial record of the raid of Carmody's home.

A San Francisco Police Department memo obtained by the Reporters Committee for Freedom of the Press reveals that police were instructed not to use body-worn cameras during last year’s high-profile raid of journalist Bryan Carmody’s home.

In the two-paragraph memo, which the Reporters Committee received through a public records request, Lieutenant Pilar Torres states that he told law enforcement officers conducting the raid “not to utilize our Department issued BWC’s for this operation” because the video footage could compromise the “confidential investigation.”

Whatever. Pretty much every investigation is a "confidential" investigation while it's still underway. This wording means nothing. And video footage can be redacted if confidential sources might be revealed during idle pre-/post-raid chitchat. Keeping the cameras off allowed officers to carry out the search in a way that best benefited them, eliminating any chance of them being caught doing something they shouldn't. (I mean beyond lying to judges, ignoring the state's journalist shield law, walking all over the First Amendment…)

The SFPD refused to comment on this memo, again citing an ongoing investigation -- this one targeting the SFPD officers involved in the unlawful raid of Carmody's home. I imagine this investigation will continue for as long as it has to, ensuring SFPD reps don't have to answer uncomfortable questions from journalists about their illegal abuse of other journalists.

And when everything has finally wrapped up and the lying officers safely returned to the streets, the report itself will vanish into the file cabinet in the basement until it is summoned by a public records lawsuit. That's the way this will go, because every step of the way, the SFPD has refused to be honest about its decision to target a journalist -- instead of its own officers -- in order to hunt down a leak it knew was in-house.

Filed Under: body cameras, bryan carmody, evidence, san francisco, sfpd

Sheriff's Office That Employed A Deputy Facing 9 Lawsuits And 44 Criminal Charges Says It Has Lost All Of His Dashcam Footage

from the nothing-suspicious-about-this-at-all dept

Hamilton County (TN) Deputy Daniel Wilkey is in more trouble than possibly any other law enforcement officer has ever been in. Currently facing nine lawsuits over his bizarre and disturbing rights violations, Wilkey is simultaneously facing 44 criminal charges, 25 of which are felonies.

Wilkey's rights violations were especially creative. He forced one woman to undergo an involuntary mid-winter baptism in a nearby lake in exchange for some assistance with the drug charges Wilkey was filing against her. In another incident, Wilkey pulled over a car full of minors, forcing the only male occupant to strip to his boxers while he alternated between swearing at the teens and preaching to them.

The criminal charges against Wilkey are a hideous blend of mundane and horrifying -- ranging from reckless driving to false imprisonment to stalking to rape. Wilkey could have been taken off the street anytime before this turned into national news, but the Hamilton County Sheriff's Department apparently felt eight internal affairs investigations in ten months was acceptable behavior, rather than a continuous stream of misconduct it should have diverted before it overflowed the office's capacity to control the narrative.

But the Sheriff's Office seems determined to protect Wilkey from the consequences of his actions. As Courthouse News reports, a whole lot of camera footage from Wikey's patrol car has suddenly gone missing. The attorney for the woman who was forcibly "baptised" by Wilkey has just discovered months of possibly-damning footage has mysteriously vanished.

A few weeks ago, the woman’s attorney, Robin Flores, learned that the county admitted in another case in Tennessee state court that the server storing all the dash-cam footage the Hamilton County Sheriff’s Office recorded from Oct. 25, 2018, to Jan. 23, 2020, suffered a software failure.

According to the county, all the footage is gone and unrecoverable.

Flores has asked the court to ensure any recoverable footage is recovered and anything else that may have been recorded be preserved and handed over to his client. The court agrees this is a suspicious and oddly convenient software failure.

Before appointing a forensic examiner or considering sanctions against a Tennessee county for the loss of months of dashboard-camera footage — possible evidence for nine lawsuits against a single sheriff’s deputy accused of a range of misconduct — a federal magistrate wants to ensure the footage is actually gone.

Calling the loss of the data a “front-burner item,” U.S. Magistrate Judge Christopher Steger in Eastern District of Tennessee said Tuesday that Hamilton County, which sits in the southeast corner of the state, had a duty to preserve evidence — including the dash-cam footage of the traffic stops in question.

The preservation request [PDF] points out that the date range of the "lost" footage covers most of the incidents Wilkey is being sued over. It also points out the Sheriff's Office never notified any of the nine plaintiffs (or the judges overseeing the cases) about the lost footage.

Here, this data appears to have been lost for more than a month yet no notice of its loss has ever been provided to the Plaintiff, notwithstanding her spoliation demands and her properly served discovery demands. The only way this loss came to Plaintiff’s attention today (February 28, 2020) was when counsel was reviewing the Hinds matter and saw the undated letter attached to a state court pleading filed on the same day. The letter indicates that the Sheriff’s Office has been working on this problem for “several weeks” and it may be inferred that the loss occurred on or about January 23, 2020, the last date for which the data was lost.

There's nothing in it for the Sheriff's Office. Ensuring the footage remains intact only raises questions about why it didn't do anything sooner to get Wilkey taken off the streets, if not removed from the force entirely. So, it took 180 hours of dashcam footage, moved it to an external hard drive, and than claimed a "software failure" suddenly made all of this evidence irrecoverable. There's no reason to believe this was an accident -- not until the Sheriff's office makes some sort of showing it actually cares about the people it's supposed to be protecting and serving.

Filed Under: daniel wilkey, dashcam, evidence, evidence destruction, tennessee