NJ Legislators Want To Ban Drone Photography Of 'Critical Infrastructure'

from the your-rights-end-where-our-freaking-out-begins dept

Government paranoia about "critical infrastructure" will now be extended to drone photography, if New Jersey's proposed legislation is any indication. While law enforcement agencies are still weighing the Fourth Amendment implications of surveillance drones, some local governments are moving ahead with plans to shortchange the First Amendment.

This new legislation makes it a criminal offense to use a drone to take a photograph of “critical infrastructure.” And what is “critical infrastructure”? Any “asset” whose incapacity—even partial incapacity—would have an impact on the physical or economic security, or public health or safety, of the state. This specifically includes highways, waste treatment facilities, bridges, tunnels, and more.

This proposal would codify something many public employees (especially those in law enforcement/security agencies) already mistakenly believe: that photography of public structures is illegal and probably has something to do with terrorism. Even if the structure is already completely viewable with the naked eye, can be viewed via satellite photography and has been the subject of multiple official photo releases, people with cameras around certain structures are considered inherently suspicious. Now, this misguided "security" concern is being extended to eyes in the sky, something the government seems to believe should be in the possession of government agencies only.

The proposed penalties for violations are fairly severe.

Specifically, this bill makes it a fourth degree crime for a person to use a civilian unmanned aerial vehicle, commonly referred to as a drone, to conduct surveillance of, gather evidence or collect information or data about, or photographically or electronically record any critical infrastructure without the prior written consent of the entity that owns or operates the critical infrastructure. A fourth degree crime is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.

On top of that, the legislation would help the state build a list of "usual suspects."

The bill also prohibits a person from operating a civilian drone unless it is registered with the Division of Aeronautics in the Department of Transportation. In addition, a person is prohibited from operating a civilian drone unless the person maintains liability insurance coverage to insure against loss resulting from liability for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation, or use of the drone. The required minimum coverage is to be in an amount determined by the Commissioner of Banking and Insurance in consultation with the Commissioner of Transportation.

A person who operates a civilian drone without the required registration or insurance is subject to a civil penalty of not less than $1,000 for a first offense and not less than $5,000 for a second or subsequent offense. In addition, for a second or subsequent offense, a person’s civilian drone registration is to be revoked for a period of two years.

So, while law enforcement agencies argue that aerial surveillance has minimal Fourth Amendment impact because public places have a lowered expectation of privacy, they're also supporting legislation that would grant public structures more protection than a member of the public's fenced-in backyard. Of course, the Fourth Amendment only deals with privacy. This legislative push concerns security -- something that tends to receive higher priority than Constitutional rights.

Then there's the inherent stupidity of carving out a drone-specific ban. People with regular cameras (or cell phones) will still be able to photograph these structures, as will aerial photographers in planes and helicopters. It's a very specific paranoia -- one limited solely to new tech that's currently subject to very little government control.

And that's really what this is all about. Lawmakers have (civilian) drone fever and the only cure is more cowbell legislation. Those pesky men (and women) and their flying machines are harming the nation's security somehow with their democratization of aerial photography. These legislators obviously feel the only entity that should have full access to the skies and everything below is the government. And if the First Amendment has to suffer some cutbacks, so be it.

Filed Under: critical infrastructure, drones, new jersey, photography

Judge Orders Newspaper To Delete Article, Newspaper Reminds Judge That It's In The US And The 1st Amendment Exists

from the welcome-to-america dept

This seems to happen all too often, but a local judge has forgotten about the whole 1st Amendment thing. Last week, Bergen County Superior Court Judge Jane Gallina-Mecca ordered the Bergen Dispatch to take down a news article. The article was about a specific family court case, involving custody of a child. It's not surprising that there might be some concern over privacy rights in such cases, but even so, that does not allow a judge to flat out order a newspaper to take down an article -- even more so when the order came out of a closed hearing where no one from the newspaper was even present. In response, the Bergen Dispatch posted a fairly snarky article that reiterates some of the details from the case, and concludes with this wonderful paragraph:

While the Bergen Dispatch reviews its options we have confirmed that Bergen County does currently remain part of the State of New Jersey and that currently New Jersey is still part of the Union of states that is governed by the United States Constitution and the Bill of Rights. As such, Bergen County citizens continue to enjoy the right to freedom of speech and the right to a free press.

Informed of this little tidbit of information, the judge has since vacated the original order, but it's still astounding that it had to go that far in the first place.

Filed Under: 1st amendment, bergen dispatch, censorship, jane gallina-mecca, new jersey, prior restraint

New Jersey Cop Demands Camera From Eyewitness After Police Dog Allowed To Maul Prone Suspect

from the additional-narrative-control-efforts-to-follow dept

If you've done nothing wrong, you've got nothing to hide, right? That's what the government tells us when it wants to erect cameras and fund domestic surveillance efforts. So, what do you tell a police officer who demands a citizen hand over their phone? Even if the officer has done something wrong, he still can at least attempt to hide it. And even if the effort fails, he still likely has nothing to fear. That's the imbalance of power at work and it leads directly to this sort of thing.

New Jersey police may have gone too far when they took the cell phone from an onlooker who recorded their encounter with a suspect who was mauled by a police dog and later died.

The man, Phillip White, had dog bites all over his body last week, his lawyer said, and a jarring video shows cops struggling to pull the dog away.

A police officer took the video from a witness who was recording the arrest — possibly in violation of the law — but the footage was later obtained by NBC Philadelphia.

The tail end of the "arrest" and the officer's questionable demand for the witness' cellphone can be seen here:


[And here's additional, just-released video, courtesy of PINAC that seems to show the suspect was unconscious for a majority of the "altercation."]


Demanding personal information from an eyewitness is one thing, but demanding the person turn over the phone is something else entirely. Either the demand failed to take or the phone was returned intact to its owner (third possibility: an automatic upload to cloud storage after recording was interrupted) because the footage was later turned over to a Philadelphia news station.

No excuse has been offered for this officer's actions yet, but one imagines the justification will fall under the "evidence of a crime" warrant exception. Of course, any criminal activity committed by Phillip White, the suspect being mauled by a police dog in the video, had long since ceased. The only potential criminal activity captured by this recording would have been committed by law enforcement officers.

The officer's line of questioning gives some insight into his motivations. First, he asks if the witness saw everything. Then he informs the witness that he'll need to take the cellphone.

The police were responding to a "disorderly person" call. By the end of it, the "disorderly" person was dead. Police claimed White was combative and a dispatch recording contains an officer claiming the suspect tried to grab his gun. Eyewitnesses, however, said White wasn't resisting. Even the single eyewitness who did say White was resisting said he wasn't by the time the recording was captured.

Agustin Ayala of Ayala Towing said he was driving down Grape Street in his tow truck when he saw two police cars on the street and two officers trying to handcuff a man.

"He was resisting," Ayala said of White.

The two officers, including a K9 officer, handcuffed the suspect and brought him to the ground, he said. Ayala said he asked the officers to stop because he was concerned for the man's welfare.

An officer then reportedly said to Ayala, "you didn't see him try to take my gun."

So, it would appear the deployment of arguably excessive force was retaliation for White's earlier, alleged gun-grabbing. For making an officer feel fear, he was restrained to death with an assist from a four-legged officer -- one who won't stop attacking until instructed otherwise. And at the end of it all, there's an illegal "request" for a citizen's camera. There isn't much about the incident that looks good and the officer's demand for the unflattering footage seems to confirm he's well aware of this.

Filed Under: cameras, filming police, new jersey, phillip white, police

Sanity: Trademark Suit Rules That Florida Pizza Joints Don't Compete With The NJ Turnpike

from the baby-steps dept

While the trademark litigation landscape is littered with lame filings, lamentable rulings, and a litany of liberal interpretations of the law (alliteration!), it's worth noting when we also see sane rulings on trademark lawsuits. So allow me to bring you the news of a federal ruling that acknowledges the fringe and controversial understanding of Florida and New Jersey being very separate and not two entities likely to be confused.

It all started, as most great things, with pizza. Two Florida residents, originally from New Jersey, decided to open up some pizza restaurants. With tastes harkening back to their Northeast roots, Jersey Boardwalk Pizza in Florida decided to play off the logo of the Garden State Parkway logo, as you can see below.

As you can see, the pizza place's logo is a clear homage to that of the Garden State Parkway, which is managed by the NJ Turnupike Authority. There's simply no disputing it. And, if you had only a minimal understanding of how trademark law works, you might not be surprised that the Turnpike filed a trademark suit against the pizza-slingers over the similarities.

The authority’s suit, filed last week, alleges service mark infringement, unfair competition and other claims against Jersey Boardwalk Pizza. The restaurant’s logo has the same green-and-yellow color scheme, including an outline of the state, as the Parkway sign. But on on the restaurant logo, “Garden State Parkway” has been replaced by "Jersey Boardwalk Pizza Co.” with the words “Subs. Cheesesteaks. Pasta" below that.

The suit claims the restaurant’s logo is so similar to the Parkway sign as to give the impression that the two are linked, the Journal said.

Regular readers here are probably already either laughing or shaking their heads. The New Jersey Turnpike is many things, and not all of them bad, but I'm having trouble thinking of a scenario in which someone thought it sold pizzas. Couple that with the fact that these pizza spots are located solely in Florida, which is demonstrably a different location and market than New Jersey, and the whole thing gets sillier.

Fortunately, the judge presiding over the federal case agrees, having recently dismissed the case completely.

Judge William Martini dismissed the suit filed by the New Jersey Turnpike Authority against Jersey Boardwalk Pizza, saying the Florida business had "minimum contacts" with state residents aside from online sales of branded merchandise.

"Although Plaintiff may have felt the brunt of harm in New Jersey, it could not be said that New Jersey is the focal point of the offending activity," Martini wrote in his decision.

"The defendants are a Florida company that doesn't do any business in New Jersey," said Justin Klein, the attorney who represents Jersey Boardwalk Pizza. "We're happy with the outcome and hopefully we can put this behind us and focus on our business."

This would normally be the end of the matter, an end where one would hope the folks a the Turnpike Authority had learned their lesson, and perhaps a bit about how trademark law works. Not so, unfortunately, what with a spokesman for the Turnpike indicating that they would pursue the matter further and look for legal options outside of the Trademark Appeal Board.

Keep digging, I guess, but I'm still certain Florida and New Jersey ain't the same place.

Filed Under: new jersey, new jersey turnpike, pizza, trademark
Companies: jersey boardwalk pizza

'Officer Awareness' Memo: Police Accountability Recording App Could Lead To Dangerous 'Flash Mobs'

from the and-they'll-be-armed-with-cameras!!! dept

Your law enforcement panic of the day: an app that automatically uploads recorded footage and forwards it to the ACLU. (h/t to Dave Maass.)

New Jersey's ACLU branch put together "Police Tape" back in 2012, an app which allowed anyone to record cops with a press of a button. The app then hid itself while the recording continued. If the recording was interrupted, the app would automatically send the recording to the ACLU. The app also advised those confronted by cops of their rights in various situations.

The app is apparently no longer available, but ACLU-NJ reported 30,000 downloads within the first few months of its availability. Widespread coverage of this police accountability app led to a somewhat overwrought response from (of all places) the Burbank, California Police Department.

"OFFICER AWARENESS," the bulletin yells, before heading into a brief summation of the app's capabilities. It takes a turn for the truly absurd when Lt. Eric Deroian attempts to portray the app as potentially dangerous to officers.

Both apps [including the "stop and frisk" app developed by ACLU-NY] will notify other app users within a defined area if someone has activated their app, with the exact location of the police action. This may result in officer safety issues if community groups are able to pinpoint various police actions, and respond to the location in the form of a flash mob.

First off, let's deal with the why of this app's existence. It is only because officers have routinely (and illegally) confiscated, shut down or deleted recordings from civilians' cell phones that an automatic archival process is needed. Despite being told repeatedly by judges, the DOJ and their own internal policies that citizens have the right to record police officers in public areas, many cops still seem to believe this isn't actually a right but a privilege completely subject to any recorded officer's willingness to oblige.

Because cops doing bad things hate to be held accountable for their actions, they often turn on those recording their actions. And because officers have power, weapons and the benefit of a doubt eternally on their side, it's usually pretty easy to shut down recordings. The tide is slowly turning, but civilians are still severely limited in their options when confronted by a cop who doesn't want to be recorded.

That's why apps like these even exist, and cops have only themselves to blame for this situation.

Now, let's address the inadvertent hilarity of the "flash mob" claim. Even if there were enough people with the app installed in the area, it's highly unlikely a coordinated (and apparently threatening) response would be mounted. The thing about successful flash mobs is that they're usually coordinated ahead of time. The best ones are, anyway. There are some that gel unexpectedly, but flash mobs usually require participants to be at least a little prepared.

Being suddenly alerted about some unexpected police bullshittery isn't generally going to provoke anything more than additional cameras and angry voices. I've seen tons of police video captured by citizens and I have yet to see crowds physically attack officers no matter how much of a beatdown they're putting on some unlucky individual. A lot of yelling and swearing? Yeah. But nothing more "threatening" than that. Even when a cop is choking the life out of someone, everyone stands a few feet away and hurls nothing more dangerous than epithets and criticism.

Here's the other thing: You know who else can "notify [others] in their area" and "pinpoint various police actions?" Cops. And their "flash mobs" usually arrive at high speed with sirens blaring, and armed to the teeth with a variety of lethal (and slightly less-lethal, depending on application) weapons. This "mob" has the force of law behind it, as well as a large number of options citizens don't have -- like departments and unions willing to justify nearly any amount of misconduct, as well as various levels of legal immunity should the "police action" result in a civil lawsuit. They'll also be acting out of "fear for their safety," so the occasional kidney punch/emptied gun magazine will be almost instantly forgiven. All the unfriendly citizen flash mob has is… well, their voices and their cameras. Nothing like bringing a Galaxy 4 to a gun/Taser fight.

Bottom line: there's nothing to fear from police accountability apps like these except the accountability. This is what Lt. Deroian's warning is really about. He closes it by noting that a "suspect" had the app installed on his phone, but leaves the details of this person's crime wholly up to the overactive imaginations of the officers reading this "alert."

A better "Officer Awareness" memo might have addressed the fact that citizens have a right to record and that patrolling OFFICERS should be AWARE their actions have a good chance of being recorded, so try not to violate too many rights/beat down too many "suspects." And be careful out there.

Filed Under: flash mobs, lapd, new jersey, police, police recordings, police tape
Companies: aclu

Chris Christie, Port Authority Official Abused E-ZPass Data For Their Own Ends

from the just-some-harmless-toll-data,-right? dept

What data is harmless in the hands of the government? Apparently, not much. Case in point: the data collected by E-ZPass transponders. While the system helps alleviate traffic congestion, it also tracks drivers' movements. If you thought it just triggered toll payments, you're drastically underestimating the government's desire for data.

Back in 2013, Mike covered one NYC driver's experience with his E-ZPass device, finding it was triggered all over the city -- not just on toll roads. The company claimed the signal was scrambled and travel data collected in aggregate. Whether or not that remains true is open for debate, but even the data collected where drivers are expecting data collection can be revealing. E-ZPass data has been used in divorce cases to prove a spouse's whereabouts as well as against a city official, who falsified time sheets.

It's also been used in political fights to disparage opponents. The IBTimes reports that two New Jersey government officials obtained Senator Frank Lautenberg's EZPass records and used them as political fodder in a battle over toll increases.

"Respectfully, Senator, you only started paying tolls recently," [Port Authority Deputy Chief Bill] Baroni said, according to a transcript of the exchange. "In fact, I have a copy of your free E-ZPass," he continued, holding up a physical copy of the toll pass Lautenberg had received as a benefit from his tenure as a Port Authority commissioner. "You took 284 trips for free in the last 2 years you had a pass."

Governor Chris Christie himself disclosed further information about Lautenberg's driving habits.

At a press conference, he alleged that the senator didn't "pay for parking at Port Authority facilities" and said Lautenberg went "through the tunnel to New York three or four times a week in 2005 and 2006."

I find it interesting, too, by the way, in 2005 and 2006, that he went over the Hudson River 284 times. Where was he going?... I think he needs to answer that. 'Cause he's supposed to be the senator from New Jersey. So what's he doing going over the bridge or through the tunnel to New York three or four times a week for 2005 and 2006?... Did he ever spend any time in New Jersey?

Obviously, this is an abuse of government-collected data. Bill Baroni admitted during the 2013 Bridgegate scandal investigation that he possessed driving data on those interrogating him. To add insult to injury, the governor's office claimed it had no records on Lautenberg's driving habits in response to IBTimes' 2012 open records request -- the same records he used to criticize Lautenberg in an earlier press conference.

The ACLU points out that not only is this a misuse of private records, but this sort of situation is completely avoidable.

EZ Pass and other electronic toll booth systems should have the option for anonymous use, where money on the devices is treated like cash, for users who prefer privacy to the convenience of having named accounts. A driver, in other words, should be able to buy a transponder for cash, and use cash to store and re-load value on it. The Washington DC Metro system, for example, offers this option for users of its contactless transit passes.

Obviously, whatever protections the state of New Jersey affords these data are inadequate. Sure, driving in public isn't necessarily private, but the use of travel data to attack political opponents is still an abuse of state-collected data. Supposedly, the data is exempt from public record laws, which locks citizens out of acquiring the data without a subpoena. But nothing's stopping the Port Authority from using it for its own political ends and passing it on to the governor to do the same.

Driving on public roads may not be private, but there's a lot that can be ascertained about a person simply by looking at this data -- information that could only otherwise be acquired by nonstop physical "tailing." When collected and stored, it runs the risk of being abused. The Port Authority already grants police open access to the records (limited only to "purposes of discharging their duties," whatever that actually means in practice) and has shown its willingness to puts its self-interest ahead of state law when it comes to disseminating this information. Better policies and practices are in order, and Governor Chris Christie should be waist deep in investigators (a belated call for a DOJ investigation of Christie and Baroni has been issued by NJ Congressman Frank Palone) rather than considering a 2016 presidential run.

Filed Under: bill baroni, chris christie, e-zpass, frank lautenberg, new jersey, politics, privacy, spying

Trademark-Trolling County Government Ordered To Pay $40,000 In Legal Fees

from the you-can't-put-a-price-tag-on-free-speech...-oh-wait dept

Abusing IP law to shut down criticism isn't just for little people. Even governments do it. The County of Union, New Jersey, attempted to quiet a vocal critic by claiming her use of the county's seal violated its trademark.

[Tina] Renna produces a public access television show in Cranford, NJ, called the “Union County Citizen’s Forum.” The show displays on-air a graphic illustration depicting the Seal of the County of Union with a spotlight shining on it. The illustration symbolizes the self-proclaimed mission of the show to shine a critical light on the workings of the Union County Board of Chosen Freeholders….

The County Attorney sent a cease-and-desist letter to the Township of Cranford warning it to stop displaying the County of Union seal, except in broadcasts of Freeholders’ meetings. According to the County, Renna’s use of the Seal infringes the County’s trademark rights under the Lanham Act.

Except the claims were bogus and the county played fast-and-loose with the facts surrounding its trademark registration. [Ruling pdf link]

On July 10, 2010, Defendant applied to trademark the Seal. See id. On October 18, 2010, the United States Patent and Trademark Office (“USPTO”) denied Defendant’s trademark application, finding that 15 U.S.C. § 1052(b) prohibited registration of a United States municipality’s insignia. See id. at *4. Defendant did not appeal the USPTO’s decision within the six-month deadline. Therefore, the USPTO issued a Notice of Abandonment of Defendant’s trademark application on May 16, 2011. See id. at *5. On March 21, 2012, the USPTO rejected Defendant’s untimely appeal, and issued a second Notice of Abandonment of Defendant’s trademark application.

On September 17, 2010, the cease-and-desist was issued, noting the trademark (correctly) as being "pending." But a follow-up letter -- sent after Renna's legal representative informed the county that it could not actually trademark its seal (citing the law listed above) and after the county's registration had been rejected by the USPTO -- shows this local government wasn't above lying to get its way.

In response, Defendant sent McKusick a letter dated April 21, 2011. In the Second Letter, defense counsel claimed the “Seal is in fact now trademarked,” and that Plaintiff’s display of the Seal thus violated both federal and state trademark law.

Judge Michael Hammer calls out the county for its deception.

Notably, the Defendant sent the Second Letter approximately four months after the USPTO had denied its trademark application. Therefore, it implausible that the Defendant did not, or could not reasonably have been expected to know, that the Seal was not a registered trademark. At oral argument on the summary judgment motions, Defendant’s counsel could not explain that obvious contradiction.

So, what happens to lying, trademark-trolling government agencies who get caught trying to shut down critics with bogus claims? Well, they get to pay legal fees. $40,000 worth of legal fees. Awards like these are rarely handed down, but Judge Hammer notes that the county's deception and intimidation tactics makes this one of those "exceptional cases."

After considering the totality of the circumstances, the Court concludes that this case is “exceptional.” Arguably, Defendant legitimately believed that the Seal warranted the same protection as a legally protected mark. Still, there is a significant disparity in the merits of the parties’ respective litigation positions in this case. The record demonstrates that Defendant litigated this case by asserting that Plaintiff violated a registered trademark, which Defendant knew, or should have known, did not exist… Nonetheless, the Defendant, as the District Court described it, “doubled down” and continued to assert trademark violations based largely on federal and state statutes that, by their terms, did not provide trademark protection for the Seal.
[...]

Second, as the District Court noted, the Second Letter “carried the misleading implication that [the Seal was trademarked when] the opposite was the case.” Indeed, when Defendant sent the Second Letter, the USPTO had denied Defendant’s trademark application, and issued a Notice of Abandonment because Defendant did not timely appeal the USPTO’s denial.

Third, as the District Court emphasized, it is “hard to discern any purpose, other than general intimidation, for [Defendant's] citation of [a] criminal statute in an official communication to a citizen, even one represented by counsel.”

Importantly, the court (in its earlier decision in favor of Renna [pdf link]) also notes that even if the registration was valid, Renna's use of the seal was still protected.

A company may feel put upon by statements about itself that it considers inaccurate. But trademark law is not the solution to that problem; “trademark infringement protects only against mistaken purchasing decisions and not against confusion generally.” “[T]rademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.” Were we to ignore the expressive value that some marks assume, trademark rights would grow to encroach upon the zone protected by the First Amendment. Simply put, the trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function.

If a private company isn't allowed to deploy its IP rights to shut down criticism, quite obviously a government entity shouldn't be allowed to, either. Especially when doing so means attempting to shut down protected speech.

Renna is clearly using the County Seal in an expressive manner. That expression, moreover, is political expression, entitled to the highest degree of constitutional protection. Consider that the First Amendment prohibits a State from criminalizing the desecration of the United States flag as a form of political protest. Should a county, by means of an artful extension of trademark law, be permitted to quash political expression that uses its Seal? I think such an extension would be both unwarranted and Constitutionally risky.

Because of its deceptive attempt to intimidate Renna into removing a non-trademarked county seal (while citing trademark law), the county is now handing $40,000 of its constituents' money over to one of its most vocal critics. If that's not a misuse of public funds -- especially when you add in the money spent by the county to pursue the lawsuit against Renna -- and authority, then I don't know what is.

Filed Under: new jersey, tina renna, trademark, trolling, union

NJ Town Proposes Law That Would Grant Law Enforcement The Right To Warrantlessly Search Houses To Find Underage Drinkers

from the trading-in-your-Fourth-Amendment-for-nanny-state-baubles dept

A New Jersey town is looking to give its police officers yet another way to bypass warrant requirements for searches of homes: underage drinking. Members of the public aren't happy with it, and the city council doesn't want to talk about it, even though the latter have stated they're "on board" with it.

Not surprisingly, the proposal has provoked considerable controversy, to the point that neither the mayor, the police chief, nor members of the Montville Township Committee, the community's governing body, would talk to a local reporter about it. Presumably supporters of the ordinance are relying on the "exigent circumstances" exception to the usual Fourth Amendment requirement of a warrant to search someone's home without consent. According to a gloss by the U.S. Court of Appeals for the 9th Circuit, "exigent circumstances are present when a reasonable person [would] believe that entry...was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts."

You won't find the questionable language in the posted version of the ordinance [pdf]. You can only hear it being discussed in a recording of the city council meeting [mp3 -- relevant part embedded below]. While the proposal does attempt to lessen the impact underage drinking charges will have on a teen's future by providing for lighter punishments and more prosecutorial discretion, it undoes that limited good by giving police an easily-abused warrant exception.

While the council seems short on specifics, it runs long on support. The council notes that both the police chief and the prosecutor are on board with the proposal, which should come as no surprise to anyone.

The concerns raised are legitimate. What are the limits on a warrantless search predicated on presumed underage drinking? The council doesn't have an answer ready but notes that both the chief and the prosecutor have offered to discuss it at a future council meeting.

Every concern is brushed off by vagaries vaginas vague, baseless assertions [thx, Doctor Duck!]. They state that there are "no legal concerns" and that other localities (although none are named) have passed similar statutes without receiving any notable legal "challenges." The closest they come to an acknowledgement of the unintended consequence of broadening law enforcement's warrantless powers is one councilperson saying, "I can see how this might look like another opportunity to kick down doors, but it really isn't." OK, then. If you say so.

All council members except one note their support for the ordinance. The single dissenting voice notes that the law is prone to abuse and offers nothing in the way of deterrence. ("Heroin laws don't prevent the use of heroin...")

In support, the town says the police can be trusted with the proposed "flexibility." The police chief and prosecutor are willing to talk the public into it, if they're up for being talked down to by those who will see their power increased. The committee (for the most part) seem to be convinced granting more warrantless access has only a very limited downside, but will be a solid deterrent. For those on the receiving end of this -- the public -- it seems like more abuse waiting to happen.

Filed Under: 4th amendment, home searches, montville township, new jersey, searches, underage drinking

NJ Attorney General's Office Trying To Push State Supreme Court To Overturn Precedent Requiring A Warrant To Access Phone Billing Records

from the any-expectation-of-privacy-is-still-too-much dept

Last year, the New Jersey Supreme Court upheld its state Constitution in finding that warrants were required to obtain cell phone location data. Notably, this ruling was very state-specific. The standing interpretations of New Jersey's Constitution have awarded a greater expectation of privacy than national interpretations of the Fourth Amendment.

State prosecutors aren't happy that the state of New Jersey provides greater protection for the data of its residents than the federal government, and they're hoping to drag the state's laws down to the desiccated level of today's Fourth Amendment. (Warning: registration wall.)

The New Jersey Attorney General’s office is asking county prosecutors statewide for their help in overturning a 32-year-old state Supreme Court precedent that requires a warrant to obtain telephone billing records.

Assistant Attorney General Ronald Susswein wants them to bring test cases where they will likely lose at the trial and Appellate Division levels, in the hope that the issue will eventually percolate up to the high court, according to his June 10 memo, obtained by the New Jersey Law Journal.

Susswein said he thinks the court might be ready to overturn its holding, in State v. Hunt, 91 N.J. 338 (1982), that the warrantless search and seizure of telephone billing records, while permissible under the federal Fourth Amendment, violates the nearly identical provision of the state constitution.

It appears the Attorney General wants to take a lowest common denominator approach to civil liberties. If this reading of rights is too restrictive for the federal government, why should New Jersey prosecutors be subject to tighter guidelines? The memo portrays the warrant requirement as an "unnecessary delay," something that is supposedly harming investigations. But that assertion is completely bogus.

ACDL-NJ vice president Christopher Adams said “if the Attorney General’s office thinks the defense bar and the civil rights bar are going to stand by while they try to strip more of our rights away, they are sadly mistaken.”

Adams, a Holmdel solo, called it intellectually dishonest to say that Hunt causes delays, given that a warrant for phone records can typically be obtained within a few hours.

Defense attorneys and even judges themselves have long noted how ridiculously easy it is to obtain a warrant. Prosecutors and police constantly portray it as an arduous time sink, despite plenty of evidence otherwise. Susswein's memo is aiming to have even this minimal obstacle removed, giving New Jersey law enforcement and prosecutors the same unbounded access enjoyed elsewhere in the US, where a variety of court decisions have determined that nearly any information turned over to a third party carries no expectation of privacy.

The timing of this move could not be worse. A recent district court decision suggested warrants should be required for cell phone location data, aligning this district with New Jersey's more restrictive Constitution. Elsewhere, the battle is being fought to regain a modicum of privacy in third-party interactions, along with a pushback against warrantless surveillance in general.

This move is being viewed as the leading edge of a push for loosened restrictions on obtaining third-party data.

Assistant Public Defender Dale Jones suspected a “larger agenda” to undo the greater protections provided under the state than the federal constitution, with the memo as “the thin edge of a wedge to try and roll back a generation plus of jurisprudence that began with Hunt.”

Which is exactly how these things start. You don't just ask for access to everything without a warrant. You start with small stuff, arguing that no one has any expectation of privacy to phone numbers called or received. But is it really that unacceptable that New Jersey law enforcement will need to continue to use warrants? Is it that unimaginable that the state's citizens could be afforded slightly more protection than the rest of the nation? Apparently so. Even with all the exceptions afforded law enforcement for those times when it's just too much of a hassle to get a warrant, the State Attorney's office still feels a minimal amount of effort is too much.

The argument here revolves around phone billing records, but that's only a starting point. Sooner or later, the "wedge" stops meeting resistance, and at that point, there's very little hope that the collection of small judicial concessions that has now morphed into a cohesive, dangerous whole will ever be rolled back.

Filed Under: 4th amendment, attorney general, new jersey, phone records, privacy, ronald susswein, warrant

Verizon Knows You're A Sucker: Takes Taxpayer Subsidies For Broadband, Doesn't Deliver, Lobbies To Drop Requirements

from the haven't-we-heard-this-story-before? dept

Ten years ago (!?!) we wrote about how Verizon conned Pennsylvania taxpayers out of billions of dollars. Verizon predecessor Bell Atlantic had cut a deal with the state to wire up every home in the state with symmetrical fiber. That didn't happen. And while Verizon's former CEO Ivan Seidenberg did, in fact, make a big bet on fiber with FiOS, Wall Street hated it and kept punishing the company for daring to do something so stupid as investing in the future. This is a quarter-to-quarter world, and spending on capital improvements that would bulk up the entire economy over the long haul is not a bet that Wall Street folks want to make, since it doesn't pay off in a few months. So, it was no surprise that once Seidenberg was out of the picture, it basically dropped all plans to expand FiOS -- and then started looking to push its DSL users to cable providers, so it could focus on the wireless business instead.

A few months ago, we wrote about the same basic story happening in New York City. Verizon made a deal with the city to get all sorts of subsidies and benefits, in exchange for wiring up the entire city with FiOS. That didn't happen. Verizon weasled out of the deal by saying the legalese in the contract didn't actually mean that every home had to get fiber, but just that they had to "pass all households." As in look outside and wave at all that broadbandy goodness passing you by without stopping.

The latest is that Verizon has been able to wiggle out of similar promises in New Jersey. The New Jersey promise was just like the Pennsylvania one, coming back in the early 90s with a promise to wire up the entire state with symmetrical fiber by 2010. Stop me if you've heard this before: that didn't happen. Instead, Verizon flooded the New Jersey Board of Public Utilities with bogus astroturf comments, which it pushed its own employees to send, arguing that the NJBPU should drop that fiber requirement -- and the NJBPU dutifully complied, ridiculously claiming that Verizon's limited, capped, expensive slow wireless LTE service (which comes nowhere near the fiber promises it made) qualifies for meeting the contract terms.

The NJBPU claims that this "settlement," which doesn't appear to involve Verizon paying back any of the rebates, subsidies or fees it received, is a good thing since it will "avoid what could have been years of litigation over enforcement of Verizon's broadband agreement." In other words, Verizon gets to take your money, deliver not very much, and keep it all, because, gee, it would be a real pain to take them to court.

Remember all this as we continue to discuss this new "anti-net neutrality" offering today. Because the telcos have a long history of insisting that if you just give them the regulatory regime they want (which always involves giving them ways to get a lot more money), then they'll deliver the kind of broadband found throughout the rest of the world. Then, they never deliver. Though, they do keep the money.

Filed Under: broadband, fiber, new jersey, njbpu, promises
Companies: verizon