Multiple Legislators Looking To Neutralize AG Sessions' Rollback Of Federal Forfeiture Reforms

from the spike-strips-in-Sessions'-driveway dept

Jolly new Attorney General Jeff Sessions can't wait to put the screws to all those Americans who didn't have the sense to seek employment as law enforcement officers. Sessions wants harsher drug sentencing, less oversight, and the revival of programs abandoned in the 80s and 90s after they proved to have zero effect on rising crime rates.

Sessions, with the support of the Trump Administration, is rolling back the last administration's minor reforms to the 1033 program, which allowed local law enforcement agencies to obtain MRAPs, assault rifles, grenade launchers… whatever it took to defend the annual Mule Day Parade from terrorist attacks. Fun fact: these same items are apparently crucial components of flood rescue efforts in Houston, TX. [Cue shooting star and the words "The More You Know," soon to be riddled with bullet holes for startling MRAP-riding 1033 recipients with their sudden appearance…]

Asset forfeiture is coming back, too. Sessions has opened the federal loophole closed by his predecessor, allowing local agencies to give the finger to legislators and the people they serve as they bypass local reform efforts and cash in on other people's property. Sessions appeared to be this close to visible arousal when discussing the return of the Federal Forfeiture Loophole during a law enforcement conference in Alabama.

"I love that program," Sessions said. "We had so much fun doing that, taking drug dealers' money and passing it out to people trying to put drug dealers in jail. What's wrong with that?"

It's a rhetorical question, but only because Sessions is completely uninterested in the answer. What's wrong with civil asset forfeiture could fill several publications (and has!) but there's no talking to a man who's paid to revel in his deliberate ignorance. Putting people in jail is a concept wholly divorced from civil asset forfeiture, which is why it's been abused so often and so thoroughly. Once law enforcement was freed from the burden of actual proof, anything found anywhere near anyone possessing any amount of drugs was fair game for opportunistic officers. (Note: drug possession is completely optional! A dog can tell cops to take stuff, even if there are no drugs present. And you can't cross-examine a dog to see if it actually smelled drugs or just wanted to make its uniformed human happy.)

Sideloading forfeitures through the federal adoption program allows cops to bypass forfeiture efforts in several states. That would include those which have established a conviction requirement, basically eliminating civil asset forfeiture altogether. Unfortunately for Sessions, there are still a few troublemakers on Capitol Hill hoping to undercut the improper advances made by the new AG towards Americans' personal property. Civil rights watchdog FreedomWorks has compiled a list of amendments to the DOJ appropriations bill that would suck the fun right out of taking money from people just because.

Amendment 46 to Division C: Submitted by Rep. Tim Walberg (R-Mich.), this amendment would prohibit the use of funds from being used to carry out Attorney General Sessions' directive. The problem with this amendment is there were some minor positive aspects to the otherwise terrible directive, such setting a minimum value of $10,000 before seized property or cash can be adopted, requiring more proof of criminal activity, and doubling the time required for the property owner to receive notice of their rights. Because the amendment would prohibit funding for the directive, it would prevent the positive reforms from being implemented.

[...]

Amendment 70 to Division C: Submitted by Rep. Justin Amash (R-Mich.), this amendment would prohibit funds from being used to facilitate adoptive seizures of property or cash. The amendment references the directive from the previous administration, but it's tailored to address the specific activity, adoptive seizures, for prohibition. Presumably, it would leave the minor positive reforms in Attorney General Sessions' directive in place.

Amendment 87 to Division C: Submitted by Rep. Darrell Issa (R-Calif.), the amendment would reduce the appropriation for the Justice Department's Assets Forfeiture Fund by $10 million and increases funding by the same amount to the Debbie Smith DNA Backlog Grant Program, which deals with forensic kits in cases of sexual assault. The merits of the DNA program notwithstanding, the amendment doesn't directly address Attorney General Sessions' directive.

Amendment 127 to Division C: Submitted by Rep. Warren Davidson (R-Ohio), the amendment would prohibit the use of funds appropriated from being used for adoptive seizures. It's similar to Rep. Amash's amendment, but it isn't directly tied to a specific directive or order.

Unfortunately, the attachment of amendments to a "must-pass" bill doesn't guarantee any of the riders will make it past preliminary discussions. If they were allowed to make it out for a vote, FreedomWorks posits they have a good chance of passing. Given the support they might gather if allowed into the wild, these amendments likely have a slim chance of becoming anything more than excess weight to be shed in favor of more powerful lawmakers' pet boondoggles and President-pleasing riders.

But there's still a small chance Sessions' love affair with legalized theft will be broken up by interloping Congressmen. And that would be a joy to behold: AG Sessions having to turn away law enforcement agencies desperate to have the shaky seizures legitimized by federal adoption procedures… and Sessions having the power -- but not the funds -- to do it.

Filed Under: asset forfeiture, civil asset forfeiture, doj, jeff sessions

Court Finds FBI's 'Malware' Deployment To Be Perfectly Constitutional

from the well...-the-darkweb-is-like-an-unlit-highway... dept

The US court system has hosted a large number of lively discussions about the tactics used by the FBI in its Playpen child porn investigation. A lot of new ground was broken by the FBI, not all of it good. First, the agency kept a darkweb child porn site running for two weeks after it seized it. It did this to facilitate the distribution of malware designed to uncover information about the computers (and users) accessing the site.

Adding to the mess was the malware itself. The FBI's Network Investigative Technique (NIT) was deployed across the US (and across the globe) via a single warrant signed by a magistrate judge in Virginia. Plenty of courts have declared the FBI's warrant invalid, as the search performed violated Rule 41's jurisdictional limitations. (Those limitations no longer exist, so chalk up a win for the DOJ.) Many have also called the NIT's extraction of IP addresses and device-identifying info a search. But very few judges have seen fit to suppress the evidence obtained, either finding no privacy expectations in IP addresses or granting the FBI "good faith."

At the appellate level, only two Playpen cases have been heard, but both courts returned decisions in favor of the government. The process continues in full force at the lower levels, where the DOJ is still working its way through the dozens of cases springing from its NIT deployment.

In Texas, a federal judge has decided [PDF] against suppressing evidence obtained with the FBI's NIT. But Judge Xavier Rodriguez does so while using a descriptive term the government vehemently disagrees with. [h/t Brad Heath]

In December 2014, the Government became aware of a website named Playpen that contained child pornography. One of the servers for that website was in North Carolina. Ultimately the Government seized that server pursuant to a warrant, relocated the server to Virginia, and assumed the role of administrator. When the Government was unable to identify the identity of the approximate 150,000 members of the website, the Government obtained a warrant on February 20, 2015 to deploy Network Investigative Technique (NIT) malware. The warrant authorized the search for persons located in the Eastern District of Virginia. The malware, however, reached all computers accessing the website, including Defendant Halgren’s computer in San Antonio, Texas.

Through the malware the Government discovered that a user named “Platch” accessed the site, and the Government discovered the IP address associated with “Platch.” Defendant Halgren was the user associated with the IP address.

The FBI has argued its NIT isn't malware, even though it seems to fit the description. It's a payload designed to reveal IP addresses and device info without the target's permission or awareness. If deployed by anyone else other than the government, the government would take issue with the exploit's operation and delivery method.

Thus ends the things the government won't like in this opinion. The judge goes a route few others have, treating the malware like a tracking device. By casting it as something it really isn't, the judge is able to sustain the warrant's viability. If the NIT is a tracking device, no jurisdictional violations occurred. The tracking device simply "traveled" out of the jurisdiction and that can't possibly be the government's fault.

Magistrate Judges have authority “within the district in which sessions are held by the court that appointed the magistrate judge . . . and elsewhere as authorized by law.” 28 U.S.C. § 636(a). Former Rule 41 that was in effect in 2015 authorized a Magistrate Judge “to issue a warrant to search for and seize a person or property located within the district.” The Former Rule 41 provided “exceptions to this jurisdictional limitation for property moved outside of the jurisdiction, for domestic and international terrorism, for the installation of a tracking device, and for property located outside of a federal district. None of these exceptions [in 2015] expressly allow[ed] a magistrate judge in one jurisdiction to authorize the search of a computer in a different jurisdiction.”

But see United States v. Darby, 190 F. Supp. 3d 520, 536 (E.D. Va. 2016) (“Rule 41(b)(4) allows a magistrate judge to issue a warrant for a tracking device to be installed in the magistrate's district. Once installed, the tracking device may continue to operate even if the object tracked moves outside the district. This is exactly analogous to what the NIT Warrant authorized. Users of Playpen digitally touched down in the Eastern District of Virginia when they logged into the site. When they logged in, the government placed code on their home computers. Then their home computers, which may have been outside of the district, sent information to the government about their location. The magistrate judge did not violate Rule 41(b) in issuing the NIT Warrant.”)

Even if the court would have found the warrant invalid (which it didn't), it still would have allowed the FBI to keep the evidence because the Fourth Amendment doesn't cover IP addresses.

Given that the Defendant’s IP address was required to be disclosed to various third parties and Playpen to access the website, any subjective expectation of privacy the Defendant may have possessed was not objectively reasonable.

And if that wasn't enough, good faith is also granted, so any lack of a valid warrant still wouldn't have resulted in evidence suppression.

The warrant was not void at its issuance. Even if it had been, the Court concludes that the good faith exception would apply and that suppression would not be warranted.”); but see Levin, 186 F. Supp. 3d at 44 (NIT Warrant was issued without jurisdiction and thus was void ab initio and the good-faith exception is inapplicable). This Court disagrees with Levin and the three or four other courts that have ordered suppression. If a judge signed a warrant without the necessary probable cause determination that warrant was akin to being void. But if an officer reasonably relies upon that signing and acts in good faith, Leon holds that the evidence seized should not be suppressed.

This will almost certainly be appealed. There's still plenty of appeals courts left that haven't explored these issues. The first two tries went the government's way, but more eyes on more cases may actually result in a successful suppression effort. The problem is the rules (well, Rule 41 anyway) have changed. Courts may see little value in suppressing evidence the government can now acquire lawfully with last year's Rule 41 changes. The Eighth Circuit Appeals Court came to exactly that conclusion earlier this year.

The thing is, the government should still be deterred from breaking rules they know still exist, even if governing statutes may change in the future. The government hasn't stopped locking up marijuana users and dealers even though legalization in a majority of US states seems inevitable. This standard should be applied to the government by the only entities capable of doing it: the US courts.

Filed Under: doj, fbi, malware, nit, playpen, rule 41

Attorney General Jeff Sessions: Hurricane Harvey Is Proof We Need To Militarize Our Police Forces

from the say-what-now? dept

Earlier this week, we wrote about Donald Trump and Jeff Sessions bringing back the Defense Department's 1033 program, which helped militarize local police forces with surplus military equipment. We've been covering all sorts of problems with the 1033 program over the years, and people like Radley Balko have written entire books on the problem. And the previous ban on the 1033 only put a fairly narrow limit on the practice of militarizing police -- but now even those modest limits are gone.

What's truly incredible, however, is the complete nonsense being used to justify this. Attorney General Jeff Sessions gave a speech about this on Monday, in which he trotted out his standard misleading and out-of-context stats, falsely claiming that there's some massive new crimewave across the country, when there's really just been a tiny bump after decades of decline in crime rates (the use of percentages by Sessions shows the he likely knows the absolute numbers are so meaningless that he has to mislead with percentages working off a small base).

But, even with the usual misleading claims about violence and violence directed towards police, I still never expected him to... point to Houston and the impact of Hurricane Harvey as a reason for increased police militarization. But that's exactly what he did:

Those restrictions went too far. We will not put superficial concerns above public safety. All you need to do is turn on a tv right now to see that for Houstonians this isn’t about appearances, its about getting the job done and getting everyone to safety.

Wait. Law enforcement in Houston needs surplus military equipment to rescue people? Last I've seen it's been tons of good hearted people using boats of all kinds going around and rescuing people. I don't see much need for military equipment.

Once again, this looks like law enforcement using "any means necessary" to justify getting their military surplus toys, despite tremendous evidence of how this process is abused, how it harms community relations and how it leads to civil rights of the public being violated. To point to the disaster in Houston as a reason for restarting the program is not just frivolous, it's dangerous.

Filed Under: 1033, doj, hurricane harvey, jeff sessions, police, police militarization

Gov't Must Pay Legal Fees In Court Battle Over 'Secret' Drone Docs Gov't Couldn't Stop Talking About

from the putting-its-money-where-its-nonstop-mouth-is dept

The government will be paying its opponent's legal fees after needlessly drawing out FOIA litigation, the Ninth Circuit Appeals Court has decided [PDF]. The First Amendment Coalition sued the Department of Justice after it refused to produce documents discussing the legal rationale for extrajudicial drone strikes targeting American citizens.

The legal memo FAC sought was the same legal memo the ACLU and New York Times sued the DOJ for refusing to release. (Or so the FAC thought. But its litigation -- along with the ACLU/NYT litigation -- made it clear the government was holding on to more than one legal memo.) In the NYT/ACLU case, the Second Circuit Court told the DOJ to cough up its justification for killing Anwar al-Awlaki, pointing to several public comments made about the drone strike by prominent US government officials. The court wasn't interested in the DOJ's arguments something publicly discussed frequently would be too "sensitive" to put in the hands of the ACLU and New York Times.

The DOJ made the same arguments in this case, but the Second Circuit decision undoes its attempt to fend off FAC's legal fees claims. Factoring into the Ninth's conclusions is the leak of a white paper by the US government providing its legal analysis of extrajudicial drone strikes. This was then followed by an official release of the same white paper.

This leak -- and the court-ordered release of the DOJ's legal memo to the ACLU and New York Times -- prompted the FAC to ask the district court to vacate its decision in favor of the DOJ's secrecy and award it legal fees, since it was seeking the same document. This motion was filed nearly three years ago, just to give you some idea how long the DOJ has dragged out a losing legal battle.

The Appeals Court notes the documents might not have been released by the government if it hadn't been for its entanglement in multiple FOIA lawsuits. As the court points out, the fact that the government voluntarily handed the documents to the FAC after the drone strike white paper's official release doesn't absolve it of racking up FAC's legal fees for no apparent reason.

FAC was met with abject resistance throughout the entire litigation until the OLC-CIA memo was produced roughly two and a half years after the lawsuit was initiated, and almost a year and seven months after the Government waived any secrecy or privilege with the official release of the White Paper.

Additionally, FAC's litigation is possibly the only reason the public's now aware there are multiple legal memos justifying extrajudicial killings of American citizens.

There is no question that the Second Circuit’s decision in the SDNY litigation was an impetus for FAC to continue its litigation. But what actually triggered the release of the OLC-CIA memo was that FAC sought to vacate the district court’s grant of summary judgment. It was the appellant’s “dogged determination,” therefore, that led the district court to “direct” the parties to discuss whether the litigation was moot, and which resulted in the Government’s decision—as acknowledged by the lower court—to “voluntarily disclose[] the CIA memorandum to [FAC].” Because of FAC’s efforts, the public then learned that the OLC-DOD memo was not the first memo addressing the justification for the drone attack, nor was it identical to the prior OLC-CIA memo. Plaintiff’s litigation, therefore, “triggered the release of additional or key documents.”

Summing it up, the Ninth Circuit Appeals Court has harsh words for both the DOJ and the lower court.

There is no reason why the district court failed to recognize, as the Second Circuit did, that the official release of the White Paper—coupled with all the prior public statements of high-ranking Government officials— constituted a waiver of any secrecy and privilege that the Government had asserted. The district court, therefore, erred in granting summary judgment and dismissing the complaint. But for this error, the district court litigation would have ended earlier. Thus, FAC had to endure unnecessarily protracted litigation. It is counterintuitive to punish FAC for expending additional legal fees to pursue the litigation, when it would have sooner been entitled to the release of both memoranda—and the right to recoup its counsel fees—if not for the district court’s error.

The lawsuit now goes back to the lower court to determine how much the government will be paying FAC for the DOJ's protracted refusal to even acknowledge the existence of drone strike memos government officials couldn't stop talking about.

Filed Under: 2nd circuit, 9th circuit, anwar al-awlaki, doj, drones, fees, foia, secrecy, transparency

Deputy Attorney General Trots Out All Sorts Of Silly Analogies About 'Intellectual Property'

from the guys,-stop-this dept

We've always had difficulty understanding why copyright or trademark law should even have "criminal" components to them. It seems fairly obvious that they can be handled easily enough with civil actions, without involving law enforcement. And this matter is only reinforced every time law enforcement tries to get involved in copyright and trademark enforcement. They seem oddly... almost unable to comprehend that infringement is different than theft and that it requires a different thought process and analysis. Time and time again, we see this crop up, both in the US and around the world. And it remains consistent no matter who is in charge. Under Obama, the DOJ was terrible on intellectual property issues, and that's now carrying over to the Trump administration.

Deputy Attorney General Rod Rosenstein just gave a talk at the Interpol International Law Enforcement IP Crime Conference -- which, as you can imagine, is not a place where nuanced discussions on infringement are expected. And Rosenstein lived down to low expectations in delivering a speech full of silly analogies and misleading statements that show little understanding of the deeper underlying issues when it comes to copyright, trademark and patents. It starts out with a particularly silly analogy:

As a child, I learned a fable about a hen that finds some wheat grains and asks other animals for help in planting them. Nobody is willing to help, so the hen does the work itself. At every stage of the process – harvesting the wheat, threshing it, milling it into flour, and baking the flour into bread – nobody wants to help. But when the work is finished, everyone wants to eat the bread.

Modern intellectual property is more complicated than baking bread, but the same fundamental principle applies. If we let some people steal things without compensating the people who produce things, the incentive to create new things will be lost.

Huh? The famed Little Red Hen story isn't about "letting some people steal things without compensation." It's got nothing to do with that. But, already we're off on the wrong foot as Rosenstein has leapt to a misleading understanding of intellectual property issues in the first place -- comparing a finite resource with an infinite one, and falling back on a silly -- and legally incorrect -- claim of "stealing."

Similarly, "the incentive to create new things will be lost" is a familiar trope, but one that is simply proven wrong time and time again by history. As we've noted, over the past twenty years or so, even as the internet has enabled ever greater piracy, it has also created an astounding revolution in new content production. The problem is that so many people assume -- incorrectly -- that the "incentive" for creation is getting the copyright, patent or trademark, rather than the many other incentives. Many of those other incentives do involve making money, but not necessarily by using intellectual property law to do so. And for many, it's not the monetary incentives that drive creation at all. Arguing that infringement decreases incentive to create is simply not borne out by history. It shows a level of ignorance that is disappointing, if not surprising, for a top DOJ official.

Intellectual property enforcement assures innovators and investors that when they devote time and money to develop new concepts and products, they will reap the financial rewards.

No, it doesn't, actually. There is no guarantee that anyone reaps any financial awards. It's not a system of welfare for creators. And, even if you make the argument that the laws themselves help structure a business model that allows the holders of the copyright, patents and trademarks (not necessarily the creators of the underlying works) that still has nothing to do with criminal enforcement. And, again, there are many, many business models that don't rely on copyright, patent or trademark law to "reap the financial rewards." Insisting that those are necessary is short sighted and misleading.

If governments fail to protect intellectual property rights, the immediate consequence will be monetary losses to individual property owners.

Not necessarily. This assumes that any infringing copy is a lost sale -- a myth that also is rarely supported by evidence.

But the long-term impact will be less investment of time and resources, and fewer innovations for society at large.

Another myth, not supported by actual data. As we noted above, even as internet piracy increased, so did the development and output of content.

This conference represents an ongoing commitment by law enforcement, industry partners, and other stakeholders from all over the world to come together and identify ways to protect intellectual property and the industries that fuel the modern global economy. These protections are critical to almost every sector of the economy, from new, life-saving drugs and medical techniques that allow us to live longer and healthier lives; to computers and software that run the devices we use to navigate the airplanes and trains and taxi cabs that brought us here today; to applications on the smartphones we use to purchase coffee.

The thing is, many in the tech industry don't want the DOJ getting into their business. They don't need "protection." They just want to innovate. The people making apps on smartphones these days are often the ones leading the charge against over aggressive enforcement of IP laws. Yet, here, Rosenstein is pretending that he represents their views.

One of our challenges is that intellectual property crime does not look like traditional crime, where the perpetrator takes a physical item directly from the victim. Everybody understands that it is wrong to walk into a business and take property without permission. In contrast, the individual act of downloading a movie from a file-sharing site, or buying a cheap knockoff of a name brand item, may seem harmless. But the accumulated economic loss from thousands or millions of those illegal transactions can destroy legitimate businesses, eliminate the incentive to invest in innovation, and undermine the rule of law.

It doesn't look like traditional crime because it's not traditional crime. And in many cases it seems harmless because it is harmless. Clearly, that's not true in all cases, but in many, it is. Many people downloading a movie would never pay for it in the first place. There's no economic loss there. Many people buying a cheap knockoff brand item, would never buy the full price item. There's no loss there. In fact, multiple studies have shown that when it comes to knockoff goods, the purchase is often an aspirational purchase. That is, they know they're buying a fake, but they buy the knockoff and end up buying the real version later, when they can afford to. In other words, knockoffs and copies often act as cheap or free marketing for more expensive products.

But Rosenstein can't even consider that as a possibility. Rosenstein's piece goes on in this vein for quite some time, and at some point there's no use debunking each and every point. The problem here is really the simplistic "law enforcement" mindset that insists that infringement is theft (it's not) and that any infringement must be bad (even though it's not) and damaging to society (even though it's not). Is it really too much to hope for officials who can actually understand the nuance related to these issues?

Filed Under: copyright, counterfeits, doj, law enforcement, patents, rod rosenstein, trademarks

Court Calls Out Government For The 'General Warrant' It Served To Facebook

from the but-awards-it-an-A-for-effort dept

In a disturbing case involving the sex trafficking of minors, the 11th Circuit Appeals Court has reached a few interesting conclusions involving digital searches and the Fourth Amendment. Included in the court's findings are rulings on the use of the All Writs Act to force Apple to unlock a device, an email warrant served to Microsoft, and warrants used to obtain a vast amount of information from Facebook. [h/t Orin Kerr]

The All Writs Act received a ton of free publicity thanks to Apple's fight with the DOJ over the (forced) unlocking of the San Bernardino shooter's iPhone. Ultimately, the DOJ hired outside help to crack open the phone, abandoning its search for helpful precedent. (And, ultimately, the phone -- the shooter's work-issued phone -- contained nothing of interest.)

Here, the Appeals Court finds [PDF] there's nothing wrong with using the 1789 All Writs Act to paper over holes in the 200+ years of legislation.

The authority granted by the All Writs Act is broad but not boundless. The Act “is a residual source of authority” that permits issuing writs only if they “are not otherwise covered by statute.” Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361 (1985). It is a gap filler. “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. And where Congress has proscribed a certain type of judicial action, the Act cannot overcome that proscription. See id. The bypass order meets this requirement because no statute expressly permits or prohibits it.

Using somewhat circular reasoning, the court states the All Writs warrant issued here doesn't produce any Fourth Amendment difficulties because Apple willingly complied with it.

To comply with the bypass order, Apple simply had to have an employee plug the iPad into a special computer and then transfer the iPad’s data to a thumb drive. That is not an unreasonable burden, especially in light of the fact that Apple did not object to the bypass order’s requirements.

More helpfully, the court seems to suggest it's amenable to challenges like the one raised here. In most cases, challenging an All Writs warrant can only be done by the company receiving it. The court doesn't have to meet the issue of whether or not the defendants had standing to challenge the warrant served to Apple, but doesn't immediately dismiss their attempt to establish standing.

Moving on, the court examines the warrant served to Microsoft for emails related to the criminal charges. The court finds the warrant was not overbroad.

Viewed against that constitutional history, the Microsoft warrant complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay.

How often does a court describe a warrant as merely "okay?" I'm guessing it's probably not that often. Here's why it did in this case, explained in the footnote attached to the "okay" descriptor.

It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional.

The government passes this warrant examination with C-. The work needs improvement and the government just isn't applying itself. Unfortunately, neither is the court if it's going to allow third parties do the government's particularity work for it.

The Facebook warrant, however, doesn't live up to the court's "okay" standard.

The Facebook warrants are another matter. They required disclosure to the government of virtually every kind of data that could be found in a social media account… And unnecessarily so. With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers. And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy. Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of Moore’s Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a “general warrant.”

If there's one thing law enforcement doesn't want to hear from a judge, it's the term "general warrant." Being compared to an occupying force is never a good thing. And these warrants are definitely not "okay."

The two warrants required Facebook to “disclose” to the government virtually every type of data that could be located in a Facebook account, including every private instant message Moore had ever sent or received, every IP address she had ever logged in from, every photograph she had ever uploaded or been “tagged” in, every private or public group she had ever been a member of, every search on the website she had ever conducted, and every purchase she had ever made through “Facebook Marketplace,” as well as her entire contact list. The disclosures were not limited to data from the period of time during which Moore managed the prostitution ring; one warrant asked for all data “from the period of the creation of the account” and the other did not specify what period of time was requested.

The government claimed the Facebook warrant was no different than warrants used to search electronic devices. In the latter case, the government generally takes possession of the device and digs through it until it finds what it needs. (This is an area of jurisprudence that is slowly shifting. With "persons' entire lives" often located on devices like smartphones, the analog equivalent is the government seizing the entire contents of a person's home before taking what's actually relevant to the case at hand.) The court has no sympathy for this argument, pointing out the warrant should have asked Facebook for only what was relevant and allow a non-government party to dig through the suspects' digital personal effects.

The means of hiding evidence on a hard drive — obscure folders, misnamed files, encrypted data — are not currently possible in the context of a Facebook account. Hard drive searches require time-consuming electronic forensic investigation with special equipment, and conducting that kind of search in the defendant’s home would be impractical, if not impossible. By contrast, when it comes to Facebook account searches, the government need only send a request with the specific data sought and Facebook will respond with precisely that data.

And the government should know this, because it does this thousands of times a year.

That procedure does not appear to be impractical for Facebook or for the government. Facebook produced data in response to over 9500 search warrants in the six-month period between July and December 2015.

Unfortunately, the government is allowed to keep the Facebook evidence under the "good faith" exception.

The Facebook warrants do not fall within either category of excludable warrants. As we have already explained, probable cause supported issuance of the warrants. And while the warrants may have violated the particularity requirement, whether they did is not an open and shut matter; it is a close enough question that the warrants were not “so facially deficient” that the FBI agents who executed them could not have reasonably believed them to be valid.

This suggests a two-step process for warrants served to service providers might be the better path to take in the future. While particularity is difficult to nail down when you're not sure exactly what you're looking for, trimming down demands for data and communications to relevant time periods raises the chances of warrants surviving suppression challenges. The court sets no precedent in this decision thanks to its good faith ruling, but the footnote addressing the Microsoft warrant and the multiple paragraphs devoted to the government's Facebook haul hints the government really needs to tighten up its search warrant procedures.

Filed Under: all writs act, doj, fishing expedition, general warrant, surveillance
Companies: apple, facebook, microsoft

Trump Rolls Back Ban On Transfer Of Military Equipment To Law Enforcement Agencies

from the police-statesmanship dept

As part of his ongoing effort to reverse everything President Obama ever did, President Trump will be rolling back the previous administration's 1033 program ban. The program allowed local law enforcement agencies to help themselves to Defense Department equipment -- often paid for with federal grants -- as long as they said the magic words (terrorism/drugs) on the application.

Attorney General Jeff Sessions, who led the campaign for the program's reinstatement, outlined the President Trump's new executive order Monday in an address at the annual meeting of the Fraternal Order of Police, the nation's largest police union.

The administration's action, first disclosed by USA TODAY, would restore "the full scope of a longstanding program for recycling surplus, lifesaving gear from the Department of Defense, along with restoring the full scope of grants used to purchase this type of equipment from other sources,'' according to a administration summary of the new program recently circulated to some law enforcement groups.

"Assets that would otherwise be scrapped can be re-purposed to help state, local and tribal law enforcement better protect public safety and reduce crime."

Attorney General Sessions loves rolling things back. This will give police departments access to mine-resistant vehicles, grenade launchers, and firearms, which should "assist" them in fighting the Drug War 1980s-style and/or pitching in with ICE's efforts to pitch migrants back over the wall Trump can't seem to get built.

This is prime law-and-order stuff. Trump has made it clear law enforcement is on the right side of history. Everyone who doubts or criticizes cops is simply wrong. A ban put in place as a reaction to militarized police responses is being reversed because no one up top cares how police are perceived. AG Sessions has already killed off federal civil rights investigations of local law enforcement agencies. Now, police will find it easier than ever to dude up as war-fighters, rather than easily-identifiable public servants.

As Radley Balko pointed out on Twitter, Obama's rollback didn't put a huge dent in military gear acquisitions. But it did attempt to head off further development of law enforcement's "us vs. them" mentality by making it a bit more difficult to look and act like an occupying force, rather than law enforcement agencies. Balko notes plenty of gear can still be obtained from other sources, like the DHS, state agencies, and donations. But the ultimate point of the ban was to reduce the gap between public servants and the people they serve -- something explicitly noted by Obama's law enforcement guidance task force.

The Task Force on 21st Century Policing, chaired by former Philadelphia Police Commissioner Charles Ramsey and Laurie Robinson, a former assistant attorney general, called on law enforcement officials to "minimize the appearance of a military operation'' when policing mass demonstrations.

"Avoid using provocative tactics and equipment that undermine civilian trust," the task force urged.

The previously-banned equipment also included tracked armored vehicles, bayonets and grenade launchers.

Trump's ban reversal sends the opposite message. Combined with his public statements, proclamations, and executive orders, the future of policing will make cities and towns feel like occupied territory and turn citizens into civilians.

Filed Under: 1033, doj, donald trump, jeff sessions, militarized police, military surplus, police

DOJ To End Operation ChokePoint; Porn Stars Free To Bank Once More!

from the strange-times dept

You may recall that in 2014 we wrote about a strange occurrence having to do with Chase Bank refusing to provide its banking services to Teagan Presley, a rather well known adult film actress. When it became clear that Presley wasn't the only performer to whom this was happening, it initially looked as though banks were engaging in a form of slut-shaming of adult film actors. It turned out, however, that it was the federal government doing the slut-shaming, with the emergence of the Department of Justice's Operation Choke Point. This DOJ policy that was developed to combat financial fraud somehow bled over the stencil lines and became a sort of banking morality police, encouraging banks to cut off services to industries like adult film, fireworks retail stores, and sellers engaged in what the DOJ deemed to be "racist materials." It's worth highlighting that all of these industries and actions, whether you like them or not, are legal, yet the DOJ was essentially attempting to extra-judiciously scuttle them through secretive federal policy. That should have terrified everyone, but didn't, and so the program went on.

Until recently. The justice department recently announced that Operation Choke Point will be ended.

The move hands a big victory to Republican lawmakers who charged that the initiative — dubbed "Operation Choke Point" — was hurting legitimate businesses. In a letter to House Judiciary Chairman Bob Goodlatte (R-Va.), Assistant Attorney General Stephen Boyd referred to the program as "a misguided initiative."

“We share your view that law abiding businesses should not be targeted simply for operating in an industry that a particular administration might disfavor,” says the letter, obtained by progressive activist group Allied Progress and later provided to POLITICO by Goodlatte's office. “Enforcement decisions should always be made based on facts and the applicable law. We reiterate that the Department will not discourage the provision of financial services to lawful industries, including businesses engaged in short-term lending and firearms-related activities,” it adds. A nearly identical letter was sent to Sens. Thom Tillis (R-N.C.) and Mike Crapo (R-Idaho).

We tend to stay away from partisan politics here at Techdirt, but I cannot write this post without pointing out the oddity that is an Obama-era policy preventing adult film stars from getting banking services and a GOP administration then restoring them. Obviously, per Boyd's letter, there are many more industries that were persecuted that are more in the realm of typical conservative fodder, but it seems that the DOJ is ending the operation in full and is doing so as a matter of principle. Good principle, it should be noted, because attempting to punish lawful businesses through banking back-deals is an especially scummy way to do government. Several applauding members of the government rightly point out that temporary presidential administrations ought not be able to choke out (their word, not mine) legal businesses at their whim and fancy.

Goodlatte and House Financial Services Chairman Jeb Hensarling (R-Texas), along with Reps. Tom Marino (R-Pa.), Blaine Luetkemeyer (R-Mo.) and Darrell Issa (R-Calif.) praised the department in a joint statement.

“We applaud the Trump Justice Department for decisively ending Operation Choke Point," they said. "The Obama Administration created this ill-advised program to suffocate legitimate businesses to which it was ideologically opposed by intimidating financial institutions into denying banking services to those businesses."

Now, some of these industries themselves are industries we may not want to applaud. Some of us have severe issues with payday loan companies, for instance, and some of us surely don't care for the adult film business. But if they're legal, and they are, this sort of thing is no way to deal with these industries.

Filed Under: banking, businesses, doj, operation choke point, porn stars

DOJ Walks Back Its Demands For Info On Everyone Who Visited A Trump Protest Site As Some Of Those Visitors Protest Subpoena

from the oops,-didn't-mean-such-blanket-surveillance dept

Last week we wrote about a crazy warrant from the DOJ, effectively demanding information -- possibly identifying information -- on everyone who visited the site disruptj20.org, which had been used by people organizing protests of Trump's inauguration. When we wrote about it, the site's hosting company, DreamHost, had just announced that it was pushing back on the demand in court. On Monday of this week, some of the visitors to the site pushed back too. Public Citizen Litigation Group took on the case of five individuals who had visited the site, asking the court if they could intervene to oppose the warrant.

As Paul Levy, who wrote the briefs, noted in the accompanying blog post, there's a legitimate fear of our President creating an "Enemies List."

Although a warrant this broad would be disturbing in any administration, Internet users have every reason to be concerned in an administration led by a President who has shown intense intolerance for disagreement and a tendency to lash out with raw language and threats directed at political adversaries, and who has urged his supporters to attack protesters. The listing of all those who visited or interacted in any way with this web site could easily form the beginning of an “Enemies List” that would put Richard Nixon to shame.

Our clients in the intervention are five anonymous Internet users who viewed the web site, either to learn more about the protests, to coordinate their own protest activities; one of our clients was also a journalist whose reasons for visiting the site included reporting remotely on the protests. The Does object to allowing federal prosecutors to put their names on a list of potential enemies of the Trump Administration who are to be visited by FBI agents or hauled in for questioning by federal prosecutors. Our argument is based on the First Amendment right to read anonymously — analogous to the right to speak anonymously that we have litigated in many other cases; that right is now broadly accepted as a basis to refuse to enforce discovery to identify online speakers without evidence that the speakers have done something wrong.  The right to read anonymously has been addressed less often, but in drafting our papers on very short notice we were able to draw on an amicus brief we had filed ten years ago in the Maryland Court of Appeals.

However, just a day after those filings, the DOJ itself admitted that perhaps the warrant was a step or two too far and has responded to DreamHost, admitting that the original warrant was too broad and asking to modify the warrant to make it more narrow. The DOJ insists that it is just looking for actual criminal behavior, not building a list of Trump haters.

The Warrant--like the criminal investigation--is singularly focused on criminal activity. It will not be used for any other purpose. Contrary to DreamHost's claims, the Warrant was not intended to be used, and will not be used, to "identify the political dissidents of the current administration[.]"... Nor will it be used to "chill[ ] free association and the right of free speech afforded by the Constitution." In fact, as discussed further below, after conducting a careful search and seizing the evidence within the scope of the Warrant, law enforcement will set aside any information that was produced by DreamHost but is outside the scope of the Warrant; it will seal that information; and it will not revisit that information without a further court order.

The DOJ then suggests that part of the problem was that it didn't quite realize just how much info DreamHost might have had on visitors to this site, and thus it didn't realize that it was actually requesting so much:

The government is acutely aware that criminal investigations involving electronic evidence present unique challenges. One of those challenges is that some of the evidence -- particularly the full scope of the evidence -- will be hidden from the government's view unless and until the government obtains a court order or search warrant. That is an important part of the history in this case because much of DreamHost's challenge to the Warrant is based on information that was not known (and would not reasonably have been known) to the government when the Warrant was applied for and obtained. What the government did not know when it obtained the Warrant -- what it could not have reasonably known -- was the extent of visitor data maintained by DreamHost that extends beyond the government's singular focus in this case of investigating the planning, organization, and participation in the January 20, 2017 riot. The government has no interest in records relating to the 1.3 million lP addresses that are mentioned in DreamHost's numerous press releases and Opposition brief. The government's investigation is focused on the violence discussed in the Affidavit.

And, to make that even more clear, it agrees to amend the warrant:

Consistent with that focus, the government is asking this Court to enter a new Attachment B to the Warrant, and remains committed to minimizing the information that is ultimately seized for the government's criminal investigation.

While I imagine many people won't be willing to give the DOJ the benefit of the doubt here, I think it's entirely possible (and even likely) that the request for so much info was due to confusion and bumbling agents, rather than a nefarious plan to build an enemies list. I still think that there are serious concerns to be had about the warrant -- and it sounds like DreamHost still isn't comfortable with things either:

Notably, the government has attempted to have a dialogue with DreamHost about these matters. Regrettably, those attempts have proven unproductive because DreamHost maintains that the Warrant is improper and that the Court lacks jurisdiction to issue the Warrant... As recently as this past week, DreamHost told the government that it would provide no information about the Website without further legal process and--somewhat incompatibly--told the government that DreamHost would only discuss limiting the production of information called for by the Wanant if the government first withdrew the Warrant in its entirety

You can see the amended warrant at the end of the DOJ's filing. It still feels like a fishing expedition, but it's clearly not nearly as broad as before, where it may have included basically all IP addresses of anyone visiting the site.

Filed Under: 4th amendment, disruptj20, doj, donald trump, fishing expedition, warrant
Companies: dreamhost

GCHQ Knew FBI Wanted To Arrest MalwareTech, Let Him Fly To The US To Be Arrested There

from the so-much-for-those-'flight-risk'-fears dept

It looks like the UK found an easy way to avoid another lengthy extradition battle. Its intelligence agency, GCHQ, knew something security research Marcus Hutchins didn't -- and certainly didn't feel obliged to tell him. Not only that, but it let a criminal suspect fly out of the country with zero pre-flight vetting. (Caution: registration wall ahead.)

Officials at the intelligence agency knew that Marcus Hutchins, from Devon, who was hailed as a hero for helping the NHS, would be walking into a trap when he flew to the US in July for a cyber-conference.

Hutchins’s arrest by the FBI on August 2 while he was returning from Las Vegas freed the British government from the “headache of an extradition battle” with their closest ally, say sources familiar with the case.

Certainly no one expected GCHQ to give Hutchins a heads-up on the legal troubles awaiting him on the other side of the pond, but there's something a bit mean-spirited about allowing a UK citizen to walk into custody in another country. And as for the "headache," too bad. That's just part of the deal when you make promises to other countries you'll ship them your citizens to face an uphill battle in an unfamiliar judicial system while facing charges for laws that may not apply the same way -- or as harshly -- at home.

This is even more disconcerting when it was Hutchins who was instrumental in killing off the WannaCry ransomware that wreaked havoc pretty much everywhere earlier this year. In gratitude for his efforts, a few publications outed the person behind the "MalwareTech" pseudonym, which probably made it a bit easier to tie Hutchins to various online personas.

As Marcy Wheeler pointed out on Twitter, it works out pretty well for the UK. It gets to outsource its prosecutions to a nation where punishments for malicious hacking are much, much higher. It also gets to dodge the publicity black eye of handing over its (inadvertent) WannaCry hero to the feds and their threat of a few decades in jail. It also suggests the Five Eyes partnership is paying off in questionable ways and, sooner or later, it's going to be an American citizen walking into the same sort of trap overseas.

Filed Under: doj, extradition, fbi, gchq, malwaretech, marcus hutchins, uk