Lawyer Says It's Copyright Infringement To Use Her Own Blog Posts Against Her In Disciplinary Proceedings

from the court-says-hahahahahahah dept

Eugene Volokh points our attention to yet another bizarre copyright case, Denison v. Larkin, in which lawyer Joanne Denison argued that the Illinois Attorney Registration and Disciplinary Commission (IARDC) infringed on her copyrights by using portions of her own blog as evidence against her during a disciplinary proceeding. Not surprisingly, the court soundly rejected this particular interpretation of copyright law.

Basically, Denison created a blog about what she and some others believed was "courtroom corruption" concerning a particular 90-year-old woman. Some of those involved in the story filed a disciplinary complaint against Denison, "alleging professional misconduct in making false statements on her Blog." The complaint itself included "15 paragraphs of text" from the blog. Further, she claims that the IARDC "copied over 1,000 pages of the Blog and 'then incorporated [it] into further exhibits.'" She also sued Nextpoint, a company that the IARDC apparently used to save copies of the blog. The (rather patient) court goes through a full fair use analysis, finding (rather easily) that all four of the traditional "fair use factors" weigh heavily in favor of fair use. Based on that, it finds no direct infringement -- and without any direct infringement, the claims of contributory and vicarious infringement fail as well.

Amusingly, Denison tried to argue that the "commercial use" fair use factor weighed in her favor because "the IARDC sells its decisions to companies such as Lexis Nexis and Westlaw for paid or unpaid benefits." The court rather simply points out: "This statement is unfounded."

In the end, it was an easy fair use win (and those are always handy), though this case appeared to be absurd from the start. So it's great to see the court make quick work of it without causing any trouble to fair use.

Filed Under: copyright, disciplinary proceedings, discipline, fair use, illinois, joanne denison

Judge Says Raid On Twitter User Perfectly Fine Because Officers Can Enforce Non-Existent Laws Provided They Have 'Probable Cause'

from the in-the-weeds-finding-some-weed dept

There's been an update of sorts in the Peoria Mayor v. Twitter Parody fiasco, although reading the headlines attached to most of these articles tells a much different story than what's actually contained in the body. This has nothing to do with the parody account owner's (Jon Daniel) lawsuit against the city [pdf], filed with the assistance of the ACLU. (Many headlines actually lead with this, as though the filing of the lawsuit didn't actually happen over a month ago.)

Judge Thomas Keith ruled that police had probable cause to perform the raid at Daniel's residence -- which also netted his roommate, Jacob Elliott, with felony drug possession charges when marijuana and paraphernalia were discovered. And it's Elliott who's actually in court seeking to have charges dismissed and the warrant invalidated.

The argument against the warrant itself is solid. FOIAed emails show internal discussions between the Peoria PD and the Mayor's office, one of which includes the Chief of Police himself saying there are no laws being broken.

Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation. I asked (Feehan) about identity theft and he advised it did not qualify because the statute requires the use of personal identifying information such as a social security number, DOB, etc., and a financial gain form (sic) the use of that information.

Shortly after the raid and the ensuing debacle, the prosecutor dropped the (admittedly) bogus charges against Daniel.

Peoria County State’s Attorney Jerry Brady decided the offender must commit false personation in person. Using that reasoning, he didn’t charge Jon Daniel, the creator of the parody account, who also lived at the house.

This is the argument being used by Elliott's legal rep. If no crime was committed -- and the statute used to secure the warrant not applicable -- then the warrant should be thrown out, along with anything discovered during the raid.

But the judge doesn't see it that way. He says the police had "probable cause," even if the probable cause was (to put it nicely) misinformed.

Keith’s ruling means police had to reasonably think they would find items related to the parody Twitter account such as phones, flash drives, computers or similar things in Elliott’s bed or closet.

This is stuff the police did find. But the officers also looked under Elliott's pillows and in his closet. Judge Keith still wants them to answer for that.

Peoria police officers will testify Oct. 8 to explain why they looked under Elliott’s pillow and in a closet in his room, where police said they found the drugs in a gift bag.

As for the underlying cause being premised on a law that didn't say what police (and Mayor Ardis) wanted it to say, Judge Keith is less decisive.

Elliott’s attorney, Dan O’Day, sought to have the warrant declared invalid, arguing that police made a mistake and that anything found in the house should be thrown out of court.

Keith said he couldn’t make such a finding. He said the law was vague, and there was no case law that could guide judges on what legislators meant when they wrote the law.

But the prosecutor could make that decision, without the intercession of legislators or case law. He simply found that the law did not apply to Daniel's Twitter account and dropped the charges. Keith seems to be unable to wrap his mind around the fact that a warrant served to seize items and detain someone for not committing a crime is inherently flawed. That this was all uncovered after the raid took place does not excuse actions directed and led by a police chief and detective who admitted in emails that they knew the law didn't apply.

The "probable cause" was bogus from the start. The officers' actions in Elliott's bedroom aren't relevant because the whole search was a farce predicated on a deliberate misreading of a statute. The warrant may as well have stated it was seeking evidence of "harboring office supplies" or "manufacturing sandwiches without a license" for all the legal force it actually had behind it. While the warrant application lists "cocaine, heroin and drug paraphernalia" as things "reasonably" believed to be on the premises (no specific mention of marijuana or any other drugs, however), the statute clearly stated as the motivating force is False Personation, which doesn't cover Jon Daniel's Twitter account.

The police went after a Twitter account holder who had violated no laws and netted themselves a drug bust. The fact is, the police had no right to enter the premises in the first place and certainly shouldn't benefit from items seized that had nothing to do with the electronics (or other items) specified in the warrant application.

Keith's obeisance to "probable cause" is ridiculous but you can't expect much more from a former prosecutor who minored in cybercrime and majored in death sentences.

Filed Under: false personation, illinois, jacob elliott, jim ardis, jon daniel, parody, peoria, probable cause, raid, search, search warrant

Peoria Mayor Continues To Defend Police Raid Of Twitter User's Home, Threatens To Sue For Defamation

from the at-rock-bottom-but-still-working-that-shovel dept

Peoria mayor Jim Ardis has responded to the ACLU's announcement of its lawsuit against him (and several others) over the actions taken to shut down a parodic Twitter account. Ardis' "press conference" was really nothing more than him reading a prepared statement and refusing to answer any questions.

His statement shovels blame on the media, complains about having his "identity stolen" and goes long on pointing out that the Twitter account (or "site," as he prefers to call it) was not clearly marked as a parody at its inception. But the highlight by far is Mayor Ardis reading some of the tweets delivered by the account.

Ardis still seems to think he's completely right, but nearly everything he states is wrong.

First off, while the account wasn't marked as a parody when it first went live (March 9th), it had been by three days later (March 12th). Despite this, the mayor and the police continued their hunt of the account's owner. This hunt continued even after they managed to convince Twitter to suspend the account (March 20th).

Ardis repeats the claim that the account wasn't marked as a parody, as though that makes the entire month of police activity past the point of the account's shutdown (and six weeks past the point the account was marked as a parody by Jon Daniel, the account's owner) completely appropriate. Separately, while the lack of being marked as parody for three days may have violated Twitter's terms of service, it has no real bearing on the fact that it's protected speech. Mayor Ardis seems to think that unless something is marked as parody, it's not parody. But the point that many people were making, was that anyone reading the crazy statements on the Twitter feed would recognize it as obvious parody for being so extreme. In fact, having Mayor Ardis read out some of the tweets only seems to confirm the point. What he thinks is so conclusive as evidence that he's right, really only seems to prove the opposite: that the account was making statements so extreme and ridiculous that they were clearly parody, and not real.

Ardis also attacks the media for misrepresenting the facts. That's very hard to do when you're quoting police reports and police department/mayor's office emails directly. Since day one, the media has portrayed this event as Mayor Jim Ardis abusing his power to shut down a Twitter account he didn't like -- a portrayal that is borne out by the documents obtained from public records requests.

He also claims the media is being hypocritical by claiming the account was harmless while simultaneously refusing to print the "offensive" content of the tweets. This is his stupidest assertion. A Twitter account that did nothing but tweet out repeated profanities would be harmless while still being something most journalistic entities wouldn't print verbatim. Arbitrary standards for print are not legal standards for obscenity.

Either way, just because many people may find the account's tweets highly distasteful (and probably wouldn't retweet @grandma, etc.), it still doesn't make the speech less protected or Mayor Jim Ardis any more "right" about pursuing the person behind the account. Once the account was marked as parody, such that it complied with Twitter's terms of service, that should have been the end of it.

Justin Glawe, a Peoria native and friend of Jon Daniel who's been covering this case for Vice since the beginning, says that emails and comments made by an unnamed city official hint that Mayor Ardis may have believed the supposedly obscene account might be linked with the Peoria Journal Star.

[A]ccording to a source inside City Hall, the officials who aggressively pursued Daniel, the creator of the account, were also wrong in a much more mundane way: They thought I was behind @peoriamayor and assumed I worked for the local paper, the Journal Star...

In an email that was released because of a Freedom of Information Act request, Ardis asked his subordinates what “JS reporter” lived with Daniel, and a police official said he didn’t know. If the source in City Hall is correct, Ardis was convinced that reporter was me, and likely thought that by exposing me as the foul-mouthed fiend behind @peoriamayor he’d ruin my reputation as a journalist and that of the Journal Star in the process.

This adds a bit more background to the mayor's apparent disdain for the media. Glawe also points out that the braintrust behind the account shutdown not only seemed to have a poor grasp of the law (perhaps intentionally), but was also mystified by the technical aspects of dealing with an online social media platform.

At one point, some city officials and cops thought they could call Twitter to have @peoriamayor shut down, so it’s no surprise that they apparently couldn’t be bothered to google my name and find out who I was and whom I work for.

In related news, Peoria Police Chief Steve Stettingsgaard has stepped down to take a job with Caterpillar, Inc. While his entire tenure at the head of the PPD has been marked with controversy, there's no doubt this latest incident played a part in convincing him to exit the law enforcement business.

Bizarrely, Mayor Ardis hints he's looking at pursuing someone (Jon Daniel or possibly even Twitter itself) for "defamation," apparently forgetting the email conversation he had with Chief Stettingsgaard back on March 11th.

Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation.

If Ardis decides to pursue this, he'll just be adding to his list of highly-public debacles. His defensive press conference indicates he's unable and unwilling to learn from his mistakes. There's no case to be made here, especially if Ardis decides to go after Twitter itself for the actions of one of its users. But it appears Ardis has dignity to burn, even if most of it is riddled with self-inflicted wounds.

Filed Under: defamation, free speech, illinois, jim ardis, parody, peoria
Companies: twitter

Emails Show Peoria Police Knew There Was No Legal Basis To Pursue Twitter User Who Parodied Mayor Jim Ardis [Updated]

from the but,-you-know,-whatever-it-takes-to-keep-the-mayor-happy dept

Thanks to FOIA requests, more information has been uncovered about Peoria, IL mayor Jim Ardis' quest to shut down a parody Twitter account. Shawn Musgrave at Muckrock has secured copies of the warrants and police reports related to the Peoria Police Dept.'s raid of Jon Daniel, the person behind the not-even-illegal @peoriamayor Twitter account. Matt Buedel at the Peoria Journal-Star has obtained email correspondence between the mayor and the police department.

Justin Glawe at Vice has more details, including the fact that Mayor Ardis and his office pushed hard to prosecute the owner of this Twitter account despite there being no evidence that any laws had been broken.

Ardis and others learned of the account on March 11 and sent dozens of emails over the next few days, apparently panicked by the idea that someone with a few dozen Twitter followers was making fun of the mayor. On March 12, Ardis himself asked City Manager Patrick Urich, “Any chance we can put a sense of urgency on this?” Urich passed that request on to Settingsgaard, saying, “Quickly please.”

Ardis (and his office) pursued this vigorously, telling the Chief of Police (Steve Settingsgaard) that he definitely wanted to prosecute. The first of three search warrants went out March 13th, at which point the Twitter account had already been marked as a parody. Twitter informed the city of this fact, but the push went on regardless. Twitter yanked the account on March 20th, but that still didn't stop Ardis from pushing a very compliant police department into raiding Daniel's home on April 15th.

Glawe points out that, according to obtained emails, the police were initially reluctant to pursue this as they could see no evidence of any laws being broken, at least according to an email sent by Chief Settingsgaard to Mayor Ardis on March 11th.

Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation. I asked (Feehan) about identity theft and he advised it did not qualify because the statute requires the use of personal identifying information such as a social security number, DOB, etc., and a financial gain form (sic) the use of that information. Twitter does not require identifying information other than an email address and name, and there appears to be no financial gain.

Detective Feehan followed this up with his own email, again confirming that Daniel appeared to have broken no laws with his parody account, as well as pointing out he had asked for Twitter to remove the account.

But Detective Feehan, being the detective he is, dug around in Illinois law until he found the state's "false personification" statute and used this to pursue the owner of the account. The Peoria Police were able to push this past local judges with a very expansive warrant, which also contained claims that the occupants of the house were likely involved in some very nasty criminal activity.

In his search warrant affidavit, detective Stevie Hughes wrote that there was “probable cause to believe” that the seized data would contain “evidence, fruits, contraband, and instrumentalities of the dissemination and possession of child pornography.”

This, along with a claim that the house would be full of drug paraphernalia related to "cocaine and heroin" use, was used to justify the seizure of nearly every electronic device in the house.

Post-backlash, the district attorney (whose office played a big part in crafting the three warrants used in this case) announced that no charges would be filed in relation to the Twitter account. That doesn't do much to help Daniel's friend, who is still facing drug charges for possession of marijuana thanks to the Peoria police's willingness to help Mayor Ardis violate others' First Amendment rights.

Glawe's personal blog contains even more information about this debacle, including an email interview with Chief Settingsgaard (where he claims -- using some doublespeak -- that Mayor Ardis was "not aware" of the search warrants in advance), and more details about the city council meeting that followed the story becoming national news.

April Clemons, who was one of several to speak in the public comments portion of a meeting that stretched nearly to 11 p.m., told Mayor Jim Ardis she is the “proud owner of a new Jim Ardis parody account."

Clemons then told Ardis he “screwed up.” Near the end of her comments, Clemons turned to Chief of Police Steve Settingsgaard and told him the same.

For his part, Chief Settingsgaard defended his actions, along with the actions of his officers, saying he was not a "jack-booted thug" and that he was "pleasantly surprised" that only four officers served the warrant at Daniel's residence (contrary to earlier reports of seven officers being involved). "Normally, there's more."

Mayor Ardis, after defending his actions by claiming that a.) the existence of a parody Twitter account took away his free speech rights, and b.) that it was the media's fault that he looked like a thin-skinned, power-abusing ass, has remained completely silent about the incident. Perhaps this has been prompted by the city's lawyers, who realize they may soon be on the receiving end of civil rights lawsuits because of the police department's actions.

Update: the ACLU of Illinois has announced that it will be representing Jon Daniel in a civil rights lawsuit against the city officials.

The ACLU of Illinois now represents Mr. Daniel, the creator of the Twitter parody. Mr. Daniel, like other parodists, has a First Amendment right to post these tweets. He was engaging in a time-honored tradition of poking fun at public officials — even when the public official doesn’t like it. Because Mr. Daniel’s activities were protected, they should never have led to a warrant and search of his home. The police activity in this case was unnecessary and contrary to both the First and Fourth Amendment protections to which he was entitled.

In the coming weeks, the ACLU of Illinois anticipates bringing legal action in support of Mr. Daniel against those officials who are responsible for the violations of his rights. We hope this action will send a strong signal to all that wrongful use of the police power to suppress protected speech, even when it is critical or makes fun of public officials is an abuse of power and is not acceptable.

Filed Under: censorship, free speech, illinois, jim ardis, parody, peoria, tweets

Mayor Ardis Defends Police Raid, Complains That Parody Twitter Account Used Up All The Free Speech

from the i'd-find-something-else-to-spend-the-reelection-fund-on dept

As we recently covered, Jim Ardis, the absurdly thin-skinned mayor of Peoria, IL, got the boys in blue to raid a house over a parody Twitter account that portrayed him as a.) a possible drug user, b.) a possible patron of the world's oldest profession and c.) "trill as fuck." Peoria's Finest have never been finer, deploying seven plainclothes officers to nail a dangerous tweeter whose Ardis-mocking account had been shut down by Twitter weeks before. Bonus: drugs were discovered during the raid, which meant the cops could at least declare victory over marijuana use, if not the internet itself.

Now, the fact that the account was already suspended suggests Ardis had previously contacted Twitter about the unflattering parody. So, this next move was overkill. Why would a mayor do such a thing? Because Mayor Jim Ardis believes the First Amendment is zero sum.

"I still maintain my right to protect my identity is my right," Ardis said in an interview with the Journal Star before the council meeting.

"Are there no boundaries on what you can say, when you can say it, who you can say it to?" Ardis said. "You can’t say (those tweets) on behalf of me. That’s my problem. This guy took away my freedom of speech."

Presumably prior to this awesome show of force, the mayor had been forced to sit quietly with his hands folded on his desk. But now that he's stomped on someone else's First Amendment rights, he can finally freely speak.

But those official bootprints across the back of five Peoria residents aren't going to leave lasting marks. The Peoria Journal Star reports that no charges will be brought against the Twitter account holder.

A review of state law indicates the account holders of now-shutdown Twitter account, @peoriamayor, didn’t break the law because the actual crime alleged, “false personation of a public official,” has to be done in person, not over the Internet or other electronic media, said State’s Attorney Jerry Brady.

"At this time, no, because subsection (b) doesn’t include the use of electronic media," he said.

There are also questions as to whether the unrelated drug charge will stick because, well, it's completely unrelated. The warrant used to raid the house appears to be on legally shaky ground already, and its supposed purpose was to effect arrests and seize evidence related to a Twitter account, not root around until something better presented itself. But it could be weeks before that part is sorted out. The States Attorney says it's not uncommon for search warrants and affidavits to take "several days to weeks" to arrive at his office. (Must send these via trans-Atlantic steamer, I guess...) One imagines documents related to this case will take longer than usual.

Meanwhile, the population of Peoria, along with the city council, is extremely angry that Ardis abused his position. A long, heated discussion of this incident included members decrying Ardis receiving preferential treatment from the Peoria PD, as well as generally lamenting how his actions have turned Peoria into a national laughingstock.

Ardis, however, seems unfazed. He still firmly believes he did nothing wrong. The problem here is everyone else, starting with the media.

"You’re the ones responsible for getting full information, but not to spin it in the way you want to spin it," Ardis said to a Journal Star reporter. "To make us look stupid."

"It’s your responsibility to put actual information out there and cover both sides. Not to opine. And that didn’t happen. Clearly, that didn’t happen."

Hey, Ardis. Only one person can make you look stupid, and he's that person up there claiming the First Amendment can't be evenly divided among several people. The actual information is out there. And it all adds up to Ardis not being able to take a joke, ordering cops to arrest people he doesn't find funny, and complaining about "suddenly" being universally reviled.

Filed Under: defamation, free speech, illinois, impersonation, jim ardis, parody, peoria, satire

Five Illinois Cops Are Caught Lying On The Stand When Defense Produces A Recording Contradicting Their Testimony

from the liars-apparently-still-trustworthy-enough-to-run-a-desk dept

Cops lie. Citizens know this. Defense attorneys know this. Prosecutors know this. Most importantly, judges know this. But rarely does it have any effect on the outcome of the case at hand. But in what has been described as a "Perry Mason moment," five Illinois police officers were caught lying on the stand. (h/t to Trevor Debus)

A seemingly routine suppression hearing in a suburban Chicago courthouse last month took an unexpected dramatic turn when video from a police car was introduced that disproved the testimony of five police officers.

They had said Joseph Sperling was arrested after officers who pulled him over in a traffic stop smelled marijuana, searched the vehicle and found nearly a pound in a backpack lying on the back seat of his car. But the Glenview police video showed the search occurred only after Sperling was taken from his car, frisked and handcuffed, reports the Chicago Tribune (sub. req.).

I suppose once the film rolled, there was little the judge could do but address it. It's one thing for a cop to lie in the courtroom and have it discovered months, weeks or even years later. It's quite another when the testimony is rebutted by video evidence during the same hearing.

"All the officers lied on the stand today," said [Judge Catherine] Haberkorn, who herself is a former prosecutor, at the March 31 hearing. "So there is strong evidence it was conspiracy to lie in this case, for everyone to come up with the same lie."

The officers, currently on desk duty, apparently did conspire to lie about the specifics of the search, at least according to the lawsuit filed by the arrestee shortly after this suppression hearing went sideways.

Joseph Sperling says in his suit that Chicago police asked Glenview officers at the scene of his arrest last June to turn off their squad car dashcams. At least one Glenview officer didn't, resulting in video footage that persuaded a Cook County Circuit Court judge to grant a motion to suppress seized evidence, because police testimony contradicted what the camera showed.

This case has obviously provoked quite a bit of discussion as to how often cops lie and what the final arbiters -- the judges -- do when they take this knowledge into consideration. The answers, unfortunately, are depressing. Even if these temporary desk jockeys manage to retain their jobs, one would think their days as credible witnesses are over. Nothing could be farther from the truth.

Scott Greenfield talks about one judge he heard discuss why he kept on pushing defendants into the maw of the prison system, even while knowing those on the law enforcement side weren't necessarily any better when it came to truth-telling.

After a cocktail or two, Harold talked about how his experience as a judge changed him. Case after case, defendant after defendant, victim after victim, made it all a blur. Sure, cops lied. Everybody knew cops lied. Everybody knew cops lied in every case. That was the game. It was their job to put the bad guy away, and the way to win the game was to speak the magic words that the system accepted as necessary…

What was he supposed to do, Harold asked? They may not all be guilty, but they all were guilty. No one could pluck out the one in a hundred who didn’t deserve to be there, and he wasn’t going to cut everyone free because he couldn’t tell who was who. […] He had a job to do, to keep the cattle moving toward the slaughter. Harold could be a rather charming guy, personally. As a judge, he was utterly despicable.

Judge Richard Kopf, prompted by Greenfield's post, offered his own thoughts as to why he finds cops credible witnesses, despite loads of evidence otherwise. It's a bracing read and admirably soul-baring, but it's not going to make anyone feel any better about their odds against a lying law enforcement officer. While he makes several points that indicate he's still more careful in his selection process than the Judge Harold mentioned above, he does make the following indictment of his own beliefs and behavior.

I am a shitty judge of credibility. Truly, I am. See here for what happened when I believed a defendant and it blew up in my face with an editorial cartoon and the whole nine yards. Thus, when forced to judge between a cop and a defendant it is safer to believe the cop than the defendant particularly if a judge cares about his or her reputation. While pleading the subconscious in mitigation, there was a period of time when I really thought I might make it to the Circuit if I were a good little boy. See what happened to Judge Baer when he “screwed” up.

Will Baude at the Volokh Conspiracy, who originally questioned whether these five cops would be unable to offer believable testimony in the future, gathered some notable comments from Judge Kopf's post that lend credence to the belief that everyone in the courtroom knows cops lie, but there's very little anyone's actually willing to do about it, partly because the system destroys judges who refuse to play along.

Lorin Duckman, a former New York judge, noted how the system lends itself to accommodating lying cops, if only to keep the system moving at the pace that pleases most of those involved.

It’s not just about the trials. Jurors don’t want to sit, don’t understand the instructions and cannot consider what the sentence should be. They cannot tell if a person is lying or not and tend to believe those who look like them or wear badges, despite instructions to the contrary. It’s not about did the accused did it or didn’t do it, most of the time. It’s about the penalties, the sentences, and the lack of a future when one tries to put a life together after doing time. It’s about judges who need to move calendars, jailers and bailiffs, court reporters and clerks who depend on a steady stream of defendants for their livelihood ...

But Duckman also points out that judges have their own livelihoods to consider, and speaking aloud about the fact that cops lie on the stand tends to short-circuit their futures.

[M]ost of all it’s the Judges who sit silently, listening to the bartering, accepting the stories for fear that they will be removed if they question, dismiss or offer justice. Break my hear[t], they did.

A comment I made, “cops lie all the time,” was introduced as evidence at my removal hearing and served as the basis for finding me biased. I couldn’t have been the only judge who believed that, could I?

The system is broken all the way up and all the way down. These five cops were very possibly only called out because it was unavoidable. Their punishment for being caught perjuring themselves has been desk duty, something that may seem tedious compared to pulling people over and illegally searching their vehicles, but can hardly be considered a true punishment. It's not as though the facts are disputed. The cops are being "investigated" after lying in court in front of a judge and several witnesses. There's literally nothing to "investigate."

This is just two police departments (Glenview and Chicago) buying time until they can weigh possible punishments and outcomes. As few judges are willing to confront the fact that cops lie with the same frequency as other human beings, just as few PDs are willing to terminate officers (partly due to pushback from officers' unions), no matter the wrongdoing.

But before all hope is destroyed, another judge (Alabama's Judge Joseph Johnson) commenting at Kopf's blog noted the status quo is changing, at least in his courtroom.

Yesterday I met with our new police chief (city of 250,000) I I told him I was getting tired of not having video or audio recordings of defendants statements. I said I felt juries disbelieved the rendition by the officer (especially a narcotics officer). I added, I was not sure I was going to believe another citizen consented to the search of his vehicle unless I had a written signed consent to search (which they have). The Chief looked like I had kicked his dog. I said “Hey, the jurors expect this in this age of technology.” We will see.

Looking at this and another set of isolated incidents -- the pushback by two judges against overly-broad search warrants -- gives a modicum of hope that law enforcement will be finally forced to play by the rules that have been existent since shortly after the founding of this nation. It's too little, far too late and it's marked by outliers rather than exceptions to the rule. But at least it's something. And the more the public is informed about the routine abuse of civil liberties by law enforcement, the less those tasked with handling the intersection of cops and civilians will be able to ignore the reality of the situation and blithely (and blindly) believe badges denote a more trustworthy class of human.

Filed Under: illinois, lies, police, recordings

Police Raid Apartment, Seize Electronics Related To A Long-Suspended Twitter Account Parodying Town's Mayor

from the from-overkill-to-backfire-in-record-time dept

It doesn't matter how you look at this situation. This is an abuse of power. No matter how much benefit of a doubt you give the protagonists -- even if you cut the Peoria, IL police so much slack you're both falling over backwards (to borrow a Sparks lyric) -- this situation looks like the end result of an overly-close relationship between city politicians and local law enforcement. How else would you explain the following?

Illinois police seized computers and mobile phones while raiding a house whose owner was suspected of parodying the town mayor on Twitter.

In all, five people following the Tuesday evening raid were taken to the Peoria Police Department station for questioning, local media report.

The Twitter account, which had all of 50 followers, and had been already shut down by Twitter "weeks ago," became the flash point for a police raid that involved seven plainclothes officers and the detainment of five people - two of whom were cuffed at their place of employment.

If the mayor felt there was something wrong with this "impersonation," he had plenty of other options available that wouldn't have resulted in this egregious show of force. For one, he could have contacted Twitter and asked for the account to be suspended. (And, for all we know, he did. [UPDATE: see below.] The account hadn't been active for "weeks" by the time the raid took place.) Second, he could have pursued this through civil action (if he felt the account was defamatory, etc.). There was no reason to involve the police in this -- unless, of course, this was the sort of thing the Peoria Police enjoy doing.

Justin Glawe at Vice has a followup on this story which highlights the Peoria Police Department's shady misconduct record.

Peoria is a town of 116,000 people. It has some problems with crime and also some problems with the police, which you can get a sense of if you follow my work or the work of Matt Buedel, the Journal Star crime reporter who broke a several stories last year detailing misconduct within the police department, including an attempt to catch a city councilman in a prostitution sting. The Illinois Attorney General’s Office ruled that an internal report regarding some of those acts of alleged misconduct should be released, but the city and the police department refused. (That report was apparently “lost” by Settingsgaard, and somehow ended up in the hands of a panhandler who, coincidentally, I used to work at a gas station with and know to be a pretty serious drug addict.)

The prostitution sting involved 12 task force officers staking out a Red Roof Inn overnight in hopes of catching Dan Irving, a city council candidate, with a prostitute. This sting ran the day after a close primary election. (Irving went on to lose the general election.) The overnight stakeout was ultimately fruitless as Irving never arrived at the motel with or without a prostitute.

Evidence exists that the Peoria Police Department is willing to be politically motivated. These officers trashed rooms and grabbed every device with an internet connection (including some Xboxes), proclaiming they were linked to an "internet crime." Although no one's been charged yet (other than an unrelated marijuana possession charge -- hooray for the fortuitous results of a bogus police search), the chief of the Peoria Police has dug deep enough into Illinois law to find something to use against the person running the long-suspended, inside joke of an account.

Peoria Police Chief Steve Settingsgaard said the department was investigating misdemeanor charges of impersonating a public official, which carries a maximum one-year jail term and $2,500 fine. The chief, according to the Southern Illinoisan, said it "appears that someone went to great lengths to make it appear it was actually from the mayor."

Really? "Great lengths?" How many Twitter users would have believed the following was issued by the Mayor or his office?

Beyond that, the account bio was changed on March 10th to indicate the account was a parody. A couple of weeks later, it was suspended. Three weeks after that, Peoria police corral five people and their electronics in order to stop something that was already dead and never popular.

Now, news of this has spread nationwide, and as Justin Glawes points out, it has led to the generation of several more fake Peoria Mayor accounts. The colossally stupid effort has done little more than given the nation a reason to dig into the misdeeds of the Peoria Police and an indication of just how thin Mayor Ardis' skin is.

UPDATE: Confirmed: Mayor Ardis was behind the raid. The search warrant obtained by Peoria's Journal Star notes that Ardis approached the police department and told officials there he wanted to find out who was behind the Twitter account. He also told the PD he wished to pursue criminal charges. Warrants were also served to Comcast and Twitter in order to obtain additional information. [h/t to Jim Romenesko]

Filed Under: illinois, impersonation, intimidation, jim ardis, parody, peoria
Companies: twitter

Illinois Supreme Court Overturns Insane Recording Laws

from the i-hear-you dept

When it comes to insane bans on recording police and public officials, the granddaddy of them all has always been Illinois' eavesdropping law, which made it a federal crime to surreptitiously record any public official, even if they were amongst the public while performing their duties. The law was abused with such disregard for the Bill of Rights that court after court ruled the law unconstitutional. Those cases primarily dealt with the recording of law enforcement while performing their duties, something which ought to be a national right, given the ubiquity of cameras that are recording public citizens.

But now the Illinois Supreme Court has gone further, extending the overturning of the law such that it's no longer just law enforcement that is free to be recorded.

Today's decision(PDF) extends that analysis to other public officials as well as private citizens when they do not have a reasonable expectation of privacy. The justices note that the eavesdropping ban "criminalizes a wide range of innocent conduct," including "the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others. None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute's scope is simply too broad."

It's an immensely satisfying decision that turns the country's most draconian anti-recording law on its head. Illinois politics being what they are, there may be no place in the country that needs recordings of public officials more than this state I call home. Attempts to criminalize such recordings in a way that went so far beyond privacy concerns were clearly an attempt to keep the local population at bay while corruption and illegality raged on. More impressively, the court specifically weighed the public's free speech rights against any concerns by public officials and found for the common citizen.

Because the eavesdropping ban "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy," the court concludes, "it does not survive intermediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the first amendment."

And so you can now record interactions with the folks whose salary you pay via taxes in the Land of Lincoln. Frankly, for a state known for corrupt public "servants", this has been a long time coming.

Filed Under: eavesdropping, illinois, police, recordings

Illinois Gas Company Facing Class Action Suit Over Service Charges May Be Blocked By Eavesdropping Act From Presenting Recorded Evidence

from the bad-laws-have-only-legally-dubious-uses dept

We've written a lot about the state of Illinois' infamous Eavesdropping Act, a law that has been routinely abused by Illinois law enforcement officers to prevent citizens from recording them while they work. After a long legal battle that nearly made its way to the Supreme Court, the courts found that the use of the law to prosecute citizens who record police officers was unconstitutional and the latest court to hear the state's arguments suggested the law be repealed altogether.

The law is still on the books at the moment (although LEOs can no longer use it against camera-wielding citizens), which may come in handy for the plaintiffs of a class action suit against an Illinois gas company. (h/t to Above the Law)

The lawsuit claims the gas company charged customers unnecessary fees to cover gas line leaks and repairs. According to an investigation that preceded the lawsuit, Nicor Gas collected nearly $26 million in 2009 while paying out only $600,000 in benefits. In a class action lawsuit filed in 2011, the plaintiffs allege that Nicor also charged several customers $19.95/mo. for appliance coverage (while labeling it only as "Nicor Service Charge" on the bill).

So, why is this lawsuit rising to the surface in 2014? Well, it's because Nicor Gas apparently plans to violate the Illinois Eavesdropping Act in order to defend itself against these claims.

The utility recorded millions of phone calls over the course of a decade and plans to “divulge them outside of Nicor and to use them in court as they litigate the consumer class action,” according to a statement about the case...

“The Illinois Eavesdropping Act flatly prohibits corporations who collect or make such recordings from divulging any part of them to any third party and prohibits such recordings be used in court proceedings,” said [Adam] Levitt (plaintiffs' attorney).

“Nicor Gas claims that all customers recorded heard a ‘warning’ before being recorded, and ‘consented’ by remaining on the line after the warning was given. But under the law, any consent only gave Nicor Gas a right to record, not to divulge or use the recordings. Any ‘consent’ they got from customers that permitted them to record was for the limited purpose of internal quality assurance – not for divulgence to outside parties, and certainly not for use in public court proceedings,” according to Levitt.

Even if this use of the Eavesdropping Act may be somewhat questionable given the circumstances (the most probable defense against the claims is that customers agreed to these charges during phone conversations with Nicor Gas), it's hard to see how the power company will route around the specifics of the law.

From the law itself:

No communication or conversation or any part, portion, or aspect of the communication or conversation made, acquired, or obtained, directly or indirectly, under this exemption (j), may be, directly or indirectly, furnished to any law enforcement officer, agency, or official for any purpose or used in any inquiry or investigation, or used, directly or indirectly, in any administrative, judicial, or other proceeding, or divulged to any third party.

Exemption (j) covers recorded business-to-consumer "oral telephone solicitation and marketing" recordings. Incoming calls ("What the hell is THIS charge?") are also covered by this exemption.

For the purposes of this subsection (j), "telephone solicitation" means a communication through the use of a telephone by live operators:

(i) soliciting the sale of goods or services;
(ii) receiving orders for the sale of goods or services;
(iii) assisting in the use of goods or services; or
(iv) engaging in the solicitation, administration, or collection of bank or retail credit accounts.

Even if it does somehow find a way to present its recordings as evidence, the calls themselves may be incriminating.

Critics accuse Nicor of using scare tactics to sell ComfortGuard.

According to a ComfortGuard marketing script, Nicor call-center reps are instructed to tell customers "the utility is only legally responsible to make the situation safe or make repairs to its own facilities. What that means is that the property owner (such as yourself) may have to find and hire an independent contractor to come in, do an inspection and then make those repairs. That can be expensive, and it could also mean days without any gas to heat the home, cook and so on."

In fact, ICC [Illinois Commerce Commission] staff argue, Nicor is legally required to inspect leak complaints inside customers' homes and make repairs, at charges typically ranging from $50 to $100.

We'll have to see where Nicor goes with this, but the allegations are pretty damning, and it's hard to see how its own sales tactics and vague line item descriptions are going to help its case. Even if it is interesting to see this law being used as a defense mechanism rather than a weapon against citizens, it only helps to highlight how badly written the Illinois Eavesdropping Act is. If nothing else, it presents yet another reason for legislators to seriously consider scrapping the law and starting over.

Filed Under: eavesdropping act, illinois, supreme court
Companies: nicor gas

Google's Fight Against Distracted Driving Laws Might Not Be A Bad Thing For The Inevitable, Glorious Transhumanist Future

from the I-was-absolutely-not-watching-porn,-officer dept

We've talked for years about how while distracted driving laws may be well-intentioned, they often present a new variety of problems. Requiring that touch screens are locked while the car is in motion, for example, ignores the fact that other people might be in the passenger seat and interested in using the technology. Banning some behaviors can also cause people to try to hide the fact they're doing them, which has the potential to be more dangerous. While there's absolutely no doubt that distracted driving is a serious, significant problem (especially texting behind the wheel), the regulatory fixes proposed can often bring up a laundry list of unintentional new issues a politician with a fleeting understand of tech (and a limited imagination) might not be sensitive to.

Efforts to ban Google Glass while driving are similarly complicated. Reuters this week reported that Google lobbyists have been busy trying to shut down distracted laws in a handful of states, including Illinois, Delaware, and Missouri. The laws, also being proposed in New York, Maryland and West Virginia (among others), would in many cases ban outright the use of wearable computing devices. While there's no mistaking that Google's lobbying efforts are about protecting revenues first and foremost, there does seem to be a salient point being made in the midst of the discussion:

"While Glass is currently in the hands of a small group of Explorers," the company said, "we find that when people try it for themselves they better understand the underlying principle that it's not meant to distract but rather connect people more with the world around them."

In my mind, Google Glass is effectively just a heads up display. It's an early, clunky plastic version of what's to come, but it's just a HUD. As any military pilot (or hey, the terminator) could probably attest, there could very well be useful functionality embedded in such devices that provides the driver with additional information that could actually make them safer or a better driver. Blind spot monitoring and improved-view HUD cameras, traffic congestion warnings in the corner of your eye, subtle alerts about dangerous upcoming road conditions (think a crowd-sourced Waze or some variant with a HUD) -- are they all bad? They're all to be banned?

That's not to say Glass and future variations of the concept won't be abused; people who aren't bright will certainly try to watch YouTube videos while driving eighty miles an hour on the Long Island Expressway. But people are either dumb, or they aren't. Your fellow highway dwellers are either entirely awful at operating motor vehicles -- or they aren't. If they're simply bad at it, a bevy of new regulations or rules won't protect them (or you) from them being distracted by pretty much everything -- including chickens, a dropped cigarette, signs, loud noises, other people, farts, or their own thoughts.

Enforcement also seems like a tricky proposition here. As Glass naturally evolves and other companies jump on board, it's going to move from an obvious piece of wearable plastic computing, to contacts, eyeglasses or implants that aren't really distinguishable from normal human features. How does a police officer prove you were using this technology for distracting purposes, versus using it to help drive? They don't: as with current texting rules they just doltishly ban you from doing everything on a phone, even if you're just updating GPS settings. How would law enforcement confirm what you're doing on your retina's HUD without violating your privacy? I'd imagine they won't.

Not to make a habit of siding with lobbyists too often, but it seems like outright bans on what is effectively heads up displays is a bridge too far. I'm not sure tech-challenged DC can effectively and intelligently navigate the transhumanist concerns of tomorrow when they're not even capable of understanding the simple technology issues of today. That said, I'm all for other, more ingenious ways of getting nitwits off the road if anybody has some.

Filed Under: delaware, distracted driving, google glass, illinois, missouri
Companies: google