Virginia (Again) Dumps Electronic Voting Devices Over Concerns About Election Interference

from the deja-vu-for-President! dept

It seems Virginia can't catch a break when it comes to voting. Trusting vendors to provide secure electronic voting devices just isn't paying off. Two years ago, Virginia pulled a bunch of voting machines after it was discovered they were leaky, insecure devices masquerading as something American voters could trust.

The security wasn't just bad in the way many machines are -- frailties that can only be sussed out by security researchers and talented criminals. No, they were bad in the way your grandparents' Google Box is: "secured" with passwords like "abcde" or "admin," along with accessible DOS prompts and multiple open ports.

Time moves on but the electronic portion of Virginia's electoral system does not.

Virginia’s election supervisors on Friday directed counties to ditch touchscreen voting machines before November’s elections, saying the devices posed unacceptable digital risks.

[...]

The decision forces Virginia counties to swiftly replace any touchscreen devices with machines that produce a paper trail, ensuring the state can audit its closely watched gubernatorial race this November between Democrat Ralph Northam and Republican Ed Gillespie.

With possible interference in last year's presidential election not even in the rearview mirror yet, Virginia's government is moving up the date of its planned obsolescence. As Politico notes, there's already a law on the books in Virginia phasing out use of touchscreen voting devices by 2020. This just moves that date forward three years, just in time for this year's elections.

It's not that electronic voting devices are inherently bad. It's just that they appear to be inherently flawed. Report after report shows multiple vulnerabilities in voting machines and yet, year after year, there appears to be little forward motion on the security side. This is baffling, considering learning from mistakes is one of those things even lab rats can do -- but it often seems to be almost impossible for voting device vendors. The flaws generally aren't the result of meticulously-targeted exploits by criminals, but rather the sorts of things that shouldn't go overlooked when vetting machines for use in the public sector.

The paperless office may be on the threshold but the (secure) paperless vote is continually several years away.

Filed Under: dre, e-voting, elections, hacking, paper trail, virginia, voting machines

Google, Ting, Netflix Dare To Suggest That Maybe Giant, Anti-Competitive ISPs Shouldn't Be Writing State Telecom Laws

from the pay-to-play-legislation dept

For years now, we've noted how state legislatures are so corrupt, they quite literally let giant ISPs like AT&T and Comcast write state telecom law. These laws, as you might expect, do everything in their power to keep the pricey, abysmal customer service broadband status quo in place by hamstringing any and every attempt to bring competition to bear on these complacent duopolists. That's particularly true of the anti-community broadband bills passed in more than 20 states that prevent towns and cities from upgrading their own local telecom infrastructure -- even in instances where incumbent providers refuse to.

This kind of protectionism is precisely what's going on right now in Virginia, where incumbent broadband providers have convinced (read: thrown a lot of money at) state Delegate Kathy Byron to propose HB 2108, aka the "Virginia Broadband Deployment Act." The act does nothing to improve broadband deployment; in fact it does the exact opposite, preventing ad-hoc community broadband solutions in light of market failure. It also saddles towns and cities with all manner of restrictions, forcing them to get approval by committees stocked with incumbent ISP lobbyists if they want to even strike public/private broadband partnerships.

Byron has been under notable fire the last few weeks by folks who believe, crazily, that perhaps you shouldn't let giant ISPs with decades of documented anti-competitive behavior write state telecom policy. While Byron has tried to claim that hamstringing towns and cities will somehow improve broadband expansion and pricing, other locals have been busy calling a spade a spade:

Opponents argue that the bill would discourage competition that would drive down broadband costs for poor Virginians and that it would hamper existing municipal broadband networks from providing a necessary service.

The Roanoke City Council unanimously condemned HB 2108 on Tuesday, claiming it would endanger a $9.6 million investment by the city and other local governments in the Roanoke Valley Broadband Authority.

“I’ll call it what it is – an effort by the legacy carriers to protect their turf,” Councilman Ray Ferris said, according to the Roanoke Times. “It’s crony capitalism at its finest.”

Opposition to Byron's bill includes incumbent competitors Google, Ting, Netflix and others, who collectively penned a group letter to the Chairman of the Virginia House Commerce and Labor Committee (pdf), noting that the measure actually makes broadband connectivity in the state worse:

"If enacted, HB 2108 would not only hurt Virginia’s localities and their residents, but it would also harm the private sector in multiple ways. Among other things, it would derail or unnecessarily complicate and delay public-private partnerships. It would interfere with the ability of private companies to make timely sales of equipment and services to public broadband providers. It would deny private companies timely access to advanced networks over which they could offer business and residential customers an endless array of modern products and services. It would also impair economic and educational opportunities that contribute to a skilled workforce from which businesses across the state will benefit.

The letter also proceeds to crazily suggest that maybe, just maybe, decisions on local infrastructure should be left up to the voters, not the CEOs of Comcast, CenturyLink, or AT&T:

Communities in Virginia are eager to work with willing established carriers, enter into public-private partnerships with new entrants, develop their own networks, if necessary, or create other innovative means of acquiring affordable access to advanced communications capabilities. These are fundamentally local decisions that should be made by the communities themselves, through the processes that their duly elected and accountable local officials ordinarily use for making comparable decisions. They should also be able to use their own resources as they deem appropriate to foster economic development, educational opportunity, public safety, and much more, without having to comply with the bottlenecks that HB 2108 would impose.

As we've noted repeatedly, ISPs have been extremely successful the last fifteen years in passing these kinds of laws by framing this as a partisan debate, intentionally sowing division. But getting better broadband and improved competition has broad, bipartisan support. As does letting local communities decide for themselves what to do about the local infrastructure impact of obvious private sector failure. And these bills don't solve any problems; in fact they make fixing the problem of spotty broadband coverage significantly harder.

Most consumers realize this, which is why, like so many tech policy issues incorrectly framed as partisan (net neutrality), these ad-hoc local solutions often see broad, bipartisan support among actual consumers.

Filed Under: broadband, competition, corruption, kathy byron, muni broadband, virginia
Companies: at&t, centurylink, comcast, google, netflix, ting

New Protectionist Virginia Law Would Keep Residents From Better Broadband

from the state-legislatures-for-sale dept

For years now we've noted how incumbent ISPs have written and purchased protectionist state laws in roughly twenty states. These laws were quietly passed by AT&T, Verizon, Comcast and other large ISPs as a response to communities that began considering building their own broadband networks. Granted these efforts only emerged because these communities were frustrated by the lack of competition, poor service, and high prices (aka market failure). Instead of shoring up service and competing, these ISPs found it more economical to simply buy legislation overriding local community rights.

Virginia is just the latest state to happily do the bidding of incumbent telecom giants with a new proposal that would hamstring towns and cities with all manner of restrictions should they decide to build their own networks, or strike a public/private partnership to that same end.

House lawmaker Kathy Byron has crafted the "Virginia Broadband Deployment Act" after receiving healthy campaign contributions from ISPs like Verizon and AT&T. But her proposal actually restricts broadband deployment -- or public/private partnerships like Google Fiber -- by preventing towns and cities from building networks if incumbent ISPs offer speeds of just 10 Mbps down, 1 Mbps up across 90% of their footprints:

...a locality wouldn't be allowed to offer Internet service if an existing network already provides 10Mbps download and 1Mbps upload speeds to 90 percent of potential customers. That speed threshold is low enough that it can be met by old DSL lines in areas that haven't received more modern cable and fiber networks.

Of course, because expensive, last-generation DSL and pricey satellite broadband service already likely meet that metric in Virginia, this is effectively a ban on all community broadband -- without the bill's authors having to overtly admit that's what they're doing. But in addition to that restriction, the law would saddle any new municipal broadband project with all manner of logistical caveats, while giving ISPs ample ammunition to sue and cajole any effort that makes it past this first hurdle:

Moreover, the legislation would give private ISPs grounds to challenge municipal broadband projects in court. Local governments seeking to offer broadband would have to file various documents with the state Broadband Advisory Council at least 120 days before construction and "an annual certification by July 1 of each year that any expansion to or changes in its projects or system since the preceding July 1 still qualify as broadband expansion services."

"Any person who believes that any part of such filings is incomplete, incorrect, or false and who is in the business of providing Internet services within the locality shall have standing to bring an action in the circuit court for the locality to seek to require the locality to either comply with the substantive and procedural content of the filings required by this section, or cease to provide services, and no bond shall be required for injunctive relief against the locality," the legislation says.

Many municipal broadband providers are sued right out of the gate by incumbent broadband providers. After the lawsuits inevitably raise project costs and delay timelines, those same ISPs come in and use these struggles as proof positive that community broadband is the pinnacle of dysfunction. Not too surprisingly, Virginia's bill is being heavily promoted by the Virginia Cable Telecommunications Association, which, like most telecom lobbying arms, implies they're just nobly trying to protect taxpayers from themselves:

The VCTA believes that the General Assembly should debate and establish a state policy to determine if local governments should be risking public dollars to build duplicative networks competing with the private sector that it also regulates, taxes and serves as the gatekeeper to the rights of way used to deploy broadband.

This idea that all municipal broadband deployments are automatically failures -- and that taxpayers need protection from themselves -- is a fairly standard argument from telecom industry lobbyists. But municipal broadband deployments are just business plans, and like any business plans -- some are good -- and some aren't. As such, poorly planned networks fail, and well-designed proposals succeed. But there's nothing automatically calamitous about community broadband; it's simply an organic local response to market failure in the broadband space.

These bills have been successful in large part because ISP lobbyists have managed to frame municipal broadband as a partisan issue, intentionally sowing division. But the majority of such networks are built in Conservative cities and states and have broad, bipartisan consumer support (hating Comcast is pretty damn near universal). The reality remains that if ISPs really wanted to kill municipal broadband, they simply have to do a better job. But again, it's much more efficient to buy state laws protecting your stranglehold over a failing market, than to actually stand up and deliver the kind of better service broadband consumers have been demanding for fifteen years.

Filed Under: competition, muni broadband, municipal broadband, virginia

Court Says Police Chief's Social Media Policy Violated The First Amendment

from the shut-up,-he-updated dept

While holding a position as a government employee can somewhat narrow your protected speech options, it doesn't mean your Constitutional rights are far closer to null and void than the average citizen's. The Fourth Circuit Court of Appeals, affirming a lower court's ruling, has found that a police department's social media policies have been treading too heavily on officers' First Amendment rights.

In early 2013, Chief John Dixon of the City of Petersburg (VA) Police Department revised the department's social media policy, adding two provisions. The preamble to the new rules set the tone. From the decision [PDF]:

The preface to the revised policy prohibits in sweeping terms the dissemination of any information “that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.”

The first addition, supposedly supported by "established case law," notes that a very specific type of speech will not be tolerated.

Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause…

The second addition to the social media policy graciously "allows" officers to discuss general things about their job, so long as no one else in the force decides the comments are "disruptive."

Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.

These additions to the policy were applied to comments made by two officers, who made negative comments on their own Facebook pages about the PD's tendency to promote rookie cops to supervisory positions. Chief Dixon was notified of these comments and decided they violated the new policy. He placed both officers on probation for six months.

Several weeks later, Chief Dixon made more alterations to personnel policies, changing the promotion procedures to immediately disqualify anyone currently on probation. The two officers informed the city they intended to challenge their punishment. Shortly thereafter, the two officers became the subject of several complaints and internal investigations. One was fired. The other resigned. The lawsuit followed, alleging retaliation for exercising their First Amendment rights.

The Appeals Court finds the policy not only infringes on the First Amendment rights of the officers, but discourages discussion of issues of public concern. Those two factors outweigh any perceived "disruption" that may have resulted from the officers' publicly-posted comments.

While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance.

Further, the court finds that -- unlike the lower court -- that Chief Dixon can't avail himself of qualified immunity. Because the policy was facially unconstitutional, any disciplinary actions taken were similarly improper.

We hold that the Department’s social networking policy was unconstitutional and that the disciplinary measures taken against plaintiffs pursuant to that policy were likewise impermissible. The patent overbreadth of the policy negates Chief Dixon’s qualified immunity defense.

As the Appeals Court points out, to allow such a policy to remain intact would harm both the law enforcement agency and the public it serves.

Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief’s command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.

The court finds nothing to back up the officers' retaliation claims, but does send it back to the lower court to determine a remedy for the violation of the officers' First Amendment rights.

Courts have long noted that public sector employees don't immediately give up their First Amendment rights just because they've opted to work for the government. Chief Dixon's "case law-supported" policies were put in place to discourage criticism of his department, which is never a good reason for instituting restrictive social media policies.

And so much for the "support" of "established case law." Two courts in a row seem to have found plenty of case law to the contrary.

Filed Under: 4th circuit, first amendment, free speech, john dixon, petersburg, petersburg police department, police, social media policy, virginia

Citizens On Terrorist Watchlist - Including A 4-Year-Old Boy - Sue Government For Violating Their Rights

from the a-database-fueled-by-faith-and-fear dept

A class-action lawsuit has been filed in Virginia challenging the government's terrorist watchlist. Eighteen plaintiffs -- including a 4-year-old boy who was placed on the watchlist at the age of 7 months -- claim their placement on the watchlist is discriminatory and has deprived them of their rights.

The government's super-secret watchlist for suspected terrorists is, for the most part, the end result of the collective hunches of hundreds of intelligence and law enforcement employees. Despite the lack of anything approaching evidence, people are shrugged onto the watchlist at an alarming rate. The lawsuit points out that only 16 people were on the government's "No Fly" list in 2001. By 2013, the list had 47,000 names on it.

The larger federal watchlist -- overseen by the Terrorist Screening Center, which approves nearly every nomination forwarded to it (98.96%) -- is even more comprehensive. According to the information the plaintiffs have obtained, this database is growing at the rate of 20,000 names per year.

Not all of the plaintiffs are forbidden from flying or leaving the country. All of them, however, have cut back on airline use as every plaintiff has been given the TSA's "SSSS" designation, which brands them (again, without any evidence) as suspected terrorists. Because of their watchlisting, the plaintiffs are routinely subjected to extra scrutiny when traveling -- including detentions that can last for hours.

For others on the list, it's even worse. Once out of the county, all bets are off.

On December 20, 2010, Mr. Gulet Mohamed arrived at the Kuwait International Airport to renew his visa, just as he had done every three months since he arrived in Kuwait.

After an abnormally long wait of several hours, Mr. Mohamed contacted his brother in Virginia via email to inform him that the visa process was taking longer than usual. This is the last communication anyone received from Mr. Mohamed for more than a week.

While at the airport, two men in civilian clothes approached Mr. Mohamed, handcuffed him, blindfolded him, escorted him to a waiting SUV, and drove him to an undisclosed location approximately fifteen minutes from the airport

During Mr. Mohamed's abduction, he was repeatedly beaten and subjected to severe torture by his interrogators. Mr.Mohamed's interrogators struck him in the face with their hands regularly and in Mr. Mohamed's estimate more than a hundred times. The interrogators whipped his feet and forced by his interrogators to stand for prolonged periods of time. At one point, the interrogators threatened to run currents of electricity through Mr. Mohamed's genitals. In another instance, Mr. Mohamed's arms were tied to a ceiling beam and left in that position until he lost consciousness.

Even while in the US, plaintiffs on the watchlist have been subjected to lengthy detention in holding cells, had their electronic devices seized and taken to nearby CBP or FBI offices to be examined, and pressured to become government informants in exchange for the "privilege" of boarding airplanes.

The lawsuit also notes that despite the recent ruling that the redress program for the government's "no fly" list is unconstitutional, the alterations made are still far from adequate. It also points out that the government has disingenuously been "delisting" people whenever challenged, rather than risk having its hunch-based nomination process subjected to additional judicial scrutiny.

On top of that, the lawsuit points out that the nomination process itself is highly suspect. Nominations appear to be based on race, religion and protected First Amendment activity, rather than any suspicion of involvement in terrorism. In addition, nominations to the watchlist also appear to be based on a presumption of guilt by association -- if one family member is nominated and placed on the list, it's a safe bet that anyone related to that member will be listed shortly thereafter.

The plaintiffs are asking the court to examine a multitude of Constitutional violations stemming from the government's abuse of its terrorist watchlists. If this suit is granted class status, it will make it that much harder for the government to simply delist plaintiffs and hope the legal challenge goes away.

[Public shaming time: this is being reported everywhere thanks to the Associated Press, which can't be bothered to provide any of its millions of readers with an actual copy of the filing. Techdirt may not have as many resources as AP, but it does know how to navigate PACER and make court filings available to its readers.]

Filed Under: class action, virginia, watch list

Virginia Senate Votes To Exempt Police Officers' Information From FOIA Responses

from the referred-to-by-short-name-'Cosgrove-Coverup' dept

Way to go, Virginia. In a time when police accountability is (finally!) a mainstream media topic, the Virginia state legislature is having none of it. Prompted by a recent court decision granting The Virginian-Pilot access to police employment records, the state Senate has passed a bill that basically neutralizes the brief win for transparency advocates. (via Radley Balko)

The Virginia Senate voted 25-15 on Monday to keep the names of all police officers and deputy sheriffs a secret.

SB552 by Sen. John Cosgrove, R-Chesapeake, applies to any local or state officer, including officers from agencies such as the Department of Alcoholic Beverage Control and the Virginia Marine Police.

The bill's wording puts law enforcement officers in the same accountability bracket as state employees making less than $10,000 a year.

The provisions of this subsection, however, shall not require public access to records of the (a) official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less or (b) the names, positions, job classifications, or other personal identifying information concerning (1) employees of state or local police departments or sheriff's offices who are responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth; (2) special agents of the Department of Alcoholic Beverage Control; (3) officers of the Virginia Marine Police; (4) conservation police officers who are full-time sworn members of the enforcement division of the Department of Game and Inland Fisheries; (5) investigators who are full-time sworn members of the security division of the Virginia Lottery; (6) conservation officers of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115; (7) full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217; or (8) animal protection police officers employed under § 15.2-632.

The bill now goes to the House, where it will hopefully be greeted with disbelief and derision. Or not. The bill's creator, John Cosgrove, is conjuring up the ghastly spectre of the nonexistent "War on Cops" to justify cutting the public out of the loop.

Cosgrove said Monday that his bill, which exempts law enforcement officers from Freedom of Information Act requirements, should be passed to protect officers and their families from being targeted for violence.

“Unfortunately, our culture has changed,” he said. “Many times, police officers are considered fair game.”

A local law enforcement official agrees:

John Jones, executive director of the sheriffs' group, said he believes that the concerns about the bill are unfounded.

"With social media and all the databases, once you get the name and a little bit more information ... you can pretty much get a picture of who they are," Jones said. "And with everything going on with law enforcement... it's an officer safety issue."

"Everything" apparently being the freefall in police firearm-related deaths over the past 40 years.

If Cosgrove's bill manages to land on the governor's desk and net a signature, he will likely be hailed as a hero by his Fraternal Order of Police brethren. His constituents, however, will receive nothing more than additional widening of the gap between them and those who are supposed to serve them.

Filed Under: accountability, foia, police, privacy, virginia

Virginia Supreme Court Says 'No Thanks' To Improving State's Dismal Court System

from the Brady-violations-will-continue-until-morale-improves dept

Criminal defendants face a tilted playing field all over the country. If it isn't the frequent withholding of exculpatory material by prosecutors, it's everything leading up to it -- beginning with questionable interrogation methods and continuing with the admission of dubious physical evidence.

Virginia's playing field is more slanted than most.

Although prosecutors in Northern Virginia mostly make their files available to defense lawyers, that’s not true across the Commonwealth, defense lawyers said. “Justice is different in one jurisdiction than the next,” said Norfolk defense lawyer Douglas Ramseur. “You could be charged in Richmond and Norfolk and get a completely different amount of information. That seems to me completely inappropriate and unseemly for our system.” He added that prosecutors who like one defense lawyer may provide more access than to a lawyer they don’t like, giving prosecutors unfair leverage.

There's no consistency across jurisdictions. Even at its most accommodating, the amount of information available to defense lawyers pales in comparison to what can be uncovered in civil proceedings. Apparently, when it's only someone's freedom on the line, Virginia's judicial oversight feels "barely adequate" is more than enough.

It's gotten bad enough that the state's Supreme Court empanelled a Special Committee on Criminal Discovery Rules in 2013. In early 2015, a preliminary report was issued. This was followed by a letter from the state's ACLU, which highlighted some of the suggested fixes.

The proposed Rule 3A:11[b] would allow the defense to inspect "all relevant police reports," such as "reports of interviews of witnesses." The new rule would also allow the inspection of "all relevant statements of any non-expert witness," including written or signed statements, transcripts, or recordings.

The inclusion of police reports and witness statements in the routine discovery process will greatly improve the adversarial process. Under the proposed rules, defense attorneys will have access to the most basic information about their clients' cases. No person should have to stand trial without knowing basic information about the government's case against him. And in a criminal justice system that "is for the most part a system of pleas, not a system of trials," defendants must have access to this critical information before trial so that they can make an informed decision about whether to take a plea bargain or go to trial.

[...]

Proposed Rule 3A:11(i) would, for the first time, formally enact the rule of Brady v. Maryland into Virginia criminal procedure. More than 50 years ago, the United States Supreme Court held that, as a matter of federal constitutional law, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution…

This proposal is consistent with Brady and with adversarial principles. By requiring disclosure of exculpatory evidence upon indictment, waiver of indictment, or before entry of a plea, and by requiring the disclosure of impeachment evidence seven days before trial, the proposed rule provides stronger protection to defendants than offered by current constitutional jurisprudence...

By making clear that prosecutors must make disclosures of Brady evidence before trial, the proposed rule would place appropriate emphasis on the duty of a prosecutor to seek justice, not merely to convict.

The discussion continued throughout 2015. The panel's suggestions were opened for public comment and the state's defense attorneys began looking forward to more equitable evidence sharing in the future. Virginia courts, where "trial by ambush" is the norm, would perhaps start moving towards something resembling the balance envisioned by the nation's founders.

Two years after the process began, the same Supreme Court that brought the committee into existence has rejected all of its suggestions. A single-paragraph announcement by the court states nothing will change.

On December 2,2014 came the Special Committee on Criminal Discovery Rules and submitted its final report, which included proposed revisions to Rules 3A:l1, 3A:12, 7C:5, 8:15, and which also proposed the adoption of Rule 3A:12.1. Having considered the Committee's report and the public comments submitted in response thereto, the Court declines to adopt the Committee's recommendations.

Not a single recommendation adopted. A project that lasted two years and gathered more than 300 pages of public comments is nullified by 63 words. The court's excuse for this? It would have been difficult to implement even one of the recommendations because so much of the state's judicial system is in dire need of an overhaul.

Virginia Chief Justice Donald W. Lemons said in a statement to The Washington Post that the entire proposal was simply too much all at once. While commending the report, Lemons wrote that “such fundamental and sweeping changes in the system, especially in light of the strong public comments opposing them, seem unwise at this time.”

[...]

“It would be difficult for the court to accept some of the proposals and not all of them as a package because the court cannot be certain about the interdependent nature of these compromises.”

"Difficult" maybe. But not impossible. Rather than engage in a task worth undertaking, the court has opted for stasis, because it's easier than dealing with the multitude of problems it has failed to address in the past. And it must be noted that the "opposing" comments the Chief Justice refers to in his cop-out were submitted by the beneficiaries of the broken system -- and those comments were in the minority.

[T]he Supreme Court asked for public comment and received 318 pages of letters and emails. The overwhelming majority, coming from defense lawyers and some defendants, supported the rules changes. But the Virginia Commonwealth’s Attorney Services Council and Virginia State Police filed long, detailed objections.

When in doubt, defer to the "winning" team -- the one that always receives the lion's share of judicial deference. Better an innocent man do time than a few proposals upset the delicate balance of the skewed system by screwing with their "interdependence." No matter how the Supreme Court of Virginia spins this, the refusal to move forward is weak, cowardly and will do further harm to criminal defendants. And all the while, the judicial system will continue to pretend a "fair" trial can be had within the state's courts.

Filed Under: court system, virginia, virginia supreme court

Virginia Police Force BBC Reporters To Delete Camera Footage Of Police Pursuit Of Shooter

from the hello-first-amendment dept

The story of this morning's live "on air" shooting of a local TV news reporter in Virginia is horrifying on many, many levels. Like with many senseless killings, there are all sorts of "big questions" being raised, most of which aren't really appropriate Techdirt fodder, though I'm sure those of you interested in those things can find other outlets for them. However, one tangential story fits right into Techdirt's core areas of focus: apparently two BBC reporters who were covering the police pursuit of the apparent shooter (who then shot himself) were forced by police to delete their own camera footage. This is illegal. I don't know how many times it needs to be repeated. Even the DOJ has somewhat forcefully reminded police that they have no right to stop anyone from photographing or videotaping things, so long as they're not interfering with an investigation. And yet...

Two BBC reporters covering the police pursuit of Vester Lee Flanagan said that cops threatened to seize their car and camera if they didn't delete footage of site where the Flanagan shot himself. "Was too far away to get any good footage. One officer threatened to tow my car and take my camera," reporter Franz Strasser tweeted. "Watched me delete my one file, and let me go. Other officer apologized and said we have to understand." His colleague, Tara McKelvey, filmed the encounter.

It appears that the cops used the same bullshit excuse we've seen them use in the past: that it's "evidence."

Officer Clark says: "that could be evidence and seized." He was telling us about our camera. The suspect is reported dead.

— Tara McKelvey (@Tara_Mckelvey) August 26, 2015

But, as Strasser notes, if that's true, then why did the cops make them delete it?

But why they are then okay with deleting 'evidence' makes one question their reasoning.

— Franz Strasser (@franzstrasser) August 26, 2015

As has been noted before, this is a clear violation of Constitutional rights, and the BBC and the reporters in question could file a civil suit against the police department, potentially winning a fair amount of taxpayer money because the police in Virginia are apparently unfamiliar with the First Amendment of the Constitution.

Filed Under: bryce williams, deleting video, filming police, first amendment, franz strasser, free speech, police, reporting, shooting, tara mckelvey, tv, vester lee flanigan, virginia
Companies: bbc, wbdj

Virginia Teenager Charged With Providing 'Material Support' For ISIS Through Tweets, Blog Posts About Privacy And Bitcoin

from the all-part-of-the-'safety'-exchange-rate dept

Wherein the Justice Department declares instructions on how to use Bitcoin to be "material support for terrorism."

Ali Shukri Amin, 17, admitted Thursday that he was behind the the now-suspended Twitter account @Amreekiwitness, which at one point had over 4,000 followers. Through it, according to a Department of Justice statement on Amin, he provided instructions on how to use the world’s dominant online cryptocurrency, and how to set up a Bitcoin wallet for would-be donors. In corresponding blog posts, Amin added more advanced tips, like recommending the use of the anonymizing Dark Wallet.

He was charged with conspiring to provide material support and resources to a terrorist organization, charges that carry a maximum penalty of 15 years in prison.

The plea agreement contains more details about Amin's actions, including his solicitation of help to build an "official" khalifah website and his utilization of every bully's favorite service, ask.fm, to "proselytize… radical Islamic ideology," as well as provide even more info on building secure websites and using Bitcoin for donations.

The DOJ filing also lists an 18-year-old co-defendant, who was allegedly assisted by Amin in his quest to join ISIL. The most interesting part of these claims is the DOJ's mention of encrypted texting app, Surespot, which seems to suggest it has found a way to access these communications.

In or about late November or early December 2014, the defendant put RN in touch with an ISIL supporter located outside of the United States via Surespot in order to facilitate travel to Syria to join and fight with ISIL.

[..]

On January 16, 2015, an overseas ISIL supporter communicated to the defendant via Surespot that the group of ISIL supporters, including RN, had successfully crossed over into Syria.

Considering Surespot doesn't store users' communications and is, in fact, unable to view the contents as users' hold their own decryption key, these statements suggest a couple of ways this information could have ended up in the government's hands.

The worst case scenario -- at least in terms of Surespot's non-criminal, non-terrorist users -- is that the government has found a way to intercept and decrypt messages.

The more likely scenario is that these messages were obtained from a search of Amin's electronic devices. End-to-end encryption can't prevent anyone from viewing stored, decrypted messages. Surespot's silence in response to "warrant canary" questions suggests the FBI/NSA is making further attempts to obtain user info and communications. Communications may be hard to obtain, but there's still a certain amount of useful info stored by Surespot, which includes friend lists and "conversation relationships," which may provide some basic "contact chaining."

While Amin may not have provided any direct assistance to ISIL, the allegations fall under the broad wording of "material support," which includes "providing expert advice and assistance." While Amin's Twitter account has been shut down, his pro-ISIL blog is still live, so you can gauge for yourself the "expertise" offered, which the DOJ refers to as "a series of highly-technical articles." (The entire blog is three articles posted over a two-month period, only one of which actually details anonymization options.)

The discussion of Surespot notwithstanding, this arrest seems to show that security and intelligence agencies still have little to fear in terms of "going dark." Cited frequently in the 7-page plea agreement are public messages on public platforms like Twitter and ask.fm, which seems to indicate there's still plenty of life left in these "old" investigative techniques.

But if you subtract ISIS from the equation, what we have is someone arrested and charged primarily for talking about certain things on the internet: religion, privacy and avoiding surveillance. None of these are criminal acts, even the "radicalization." Indeed, all would be protected speech except for the discussion of the Islamic State, something the government has declared is "off-limits" due to its designation as a terrorist entity. So, whether or not you feel this bust is legitimate, you have to worry about mission creep. Because this is mostly about a 17-year-old Virginian who talked about Bitcoin on ask.fm, but did it in "support" of the wrong entity.

Filed Under: ali shukri amin, bitcoin, doj, isis, material support, terrorism, virginia

Virginia Governor Signs Warrant Requirement For Police Drone Use; Balks At Seven-Day Limit On ALPR Data Retention

from the aww...-and-he-was-doing-so-good-on-the-civil-liberties-front dept

Good news/bad news from the state of Virginia. Governor Terry McAuliffe had two bills land on his desk, both passed with overwhelming support, that would have assured additional privacy protections for the state's citizens. Unfortunately, he only signed one of them.

The one with his signature on it institutes a warrant requirement for law enforcement drone usage. McAuliffe originally sent this one back with a suggested "fixes" that would have rendered the proposed warrant requirement completely meaningless.

Rather than require a warrant for all law enforcement use of drones, the governor's amendments only require warrants for “active criminal investigations,” leaving the door open for persistent, untargeted drone surveillance. Rather than ban the use of evidence collected without a warrant by drones, the governor's amendments created a procedural loophole where otherwise forbidden evidence could be introduced under a different set of legal standards.

To their credits, the legislators who had passed the bill without massive loopholes refused to fold in the governor's suggested amendments. The second time it hit his desk, McAuliffe signed it. This passage can be added to the state's privacy "wins" column, which also includes a warrant requirement for Stingray use.

The bad news is that McAuliffe rejected a bill that would have placed a seven-day retention limit on data gathered by automatic license plate readers. McAuliffe argued -- correctly -- that this limit was significantly lower than any policy currently in place in Virginia. (And, most likely, anywhere in the nation.) Unfortunately, he used ALPR/law enforcement talking points to do so.

Many localities in Virginia retain this data for 60 days to two years. Seven days is a substantial reduction. Additionally, law enforcement agencies demonstrate that crimes are often not reported until several weeks later. Under this bill, essential data would not be available at the time of those reports. This is particularly concerning when considering implications for the National Capitol Region, where cross-state collaboration and information-sharing are essential to responding to potential criminal or terrorist activity occurring near Virginia’s borders.

Oh, "terrorism," you rascally, constantly useful justification! Where will you pop up next? (Probably not in areas actually loaded with terrorists, I would guess.)

Unlike drones and Stingrays, ALPRs weren't originally crafted for use by military personnel in war zones. But here we see the invocation of terrorism as a justification for passively scanning thousands-to-millions of license plates every day. Sure, any vehicle traveling in public areas can be observed, but multi-point collections of plate/location data gives anyone with access a very clear picture of someone's daily life. While we would expect people currently under investigation to be closely watched by police (and/or "tailed" by proxy by ALPR data), we don't expect everyone to be subject to the same level of scrutiny simply because the technology has liberated law enforcement officers from performing in-person surveillance.

The destruction of non-hit data within a short time frame shouldn't be a concern, no matter how much crime/terrorism is afoot in the Virginia area. The amount of plate/location data that can be hauled in by ALPRs is astounding. And the "cross-state collaborations" and "information-sharing" the governor points to only adds to the massive haul. If a potential suspect's information falls into the seven-day memory hole, there's a good chance it will return to the database within a matter of days.

As for the stated concern about the lag between criminal activity and its reporting? Well, what did officers do before they had historical ALPR data to rely on? Surely those investigative methods still exist. ALPRs may have made the job easier, but they didn't destroy previously-existent investigative techniques upon deployment.

On top of this, there's the fact that if McAuliffe doesn't pass this law with the limitation intact, state ALPR usage will continue to violate ANOTHER law.

[M]cAuliffe fails to mention [that] law enforcement agencies are already breaking Virginia’s Data Act by storing ALPR data, as the Virginia Attorney General determined in a 2013 legal opinion [PDF].

If he decides to pass the bill with the limit in place, his state may also enjoy a more favorable outcome to the ALPR-related lawsuit filed against it.

Five days after McAuliffe signed the bills, the [ACLU of Virginia] filed a lawsuit [PDF] against the Fairfax County Police Department, which, despite the Attorney General’s guidance, has been storing ALPR data for up to a year and sharing that data with other law enforcement agencies in the region.

And then there's the fact that ALPRs have been abused by state police and no one in Virginia law enforcement seems to know whether the systems are actually helping apprehend more criminals.

McAuliffe has already sided with his constituents' privacy on two previous bills. There's a lot of ground for compromise between the seven days the bill asks for and the "up to a year" time limit law enforcement agencies already enjoy. That this bill also landed on his desk with overwhelming legislative support is a pretty good indication that Virginians would like the retention needle pushed closer to one week. Hopefully, he'll make the right call and continue to allow his state to lead the nation in privacy protections.

Filed Under: alpr, drones, license plate readers, privacy, surveillance, terry mcauliffe, virginia