Appeals Court: A Bunch Of Mostly-Irrelevant Information Is Not 'Probable Cause'

from the drug-warrior-enthusiasm-clouds-judgment dept

A drug conspiracy with no drugs. A house searched because a car carrying no drugs was registered to the address. It's little things like these that add up to a successfully suppressed evidence, even if it took defendant Ricky Brown a trip to the Sixth Circuit Court of Appeals to achieve it.

The DEA, working with Michigan State Police, pulled over two vehicles that had left a house they had under surveillance, apparently on their way to a heroin buy set up by an informant. One vehicle, a Chevy Silverado driven by Steven Woods, was searched after a MSP traffic stop and approximately 565 grams of heroin were recovered. The other vehicle, a GMC Yukon in which Brown was a passenger was stopped as well. However, there were no drugs in this vehicle, just four cell phones.

Despite this lack of evidence, the MSP booked both the vehicle's driver (Marzell Middleton) and Brown on charges of "conspiring to deliver drugs." Search warrants were obtained for both Brown and Middleton's residences, and 90 grams of heroin were found at Middleton's house.

The route to the search warrant for Brown's residence was a bit more circuitous. The idea to search Brown's residence was apparently predicated on little more than the fact that a vehicle he owned (another Yukon, but not the one that was being driven when both parties were arrested) was parked in Middleton's driveway while that residence was searched. From the decision [PDF]:

During their search of Middleton’s residence, the police also searched a 2002 GMC Yukon registered to Brown, which was parked on the street in front of the residence. MSP Trooper Unterbrink allowed a drug dog to walk around and climb into the vehicle. The dog alerted to the odor of narcotics inside Brown’s vehicle, but the affidavit does not indicate that any drugs were actually recovered. Agents seized the 2002 Yukon under Michigan forfeiture laws.

This was the first plank of the DEA's probable cause platform: the drug sniff that seemingly failed to turn up any drugs. The next was text messages on a prepaid cell phone containing the message "He said 1175 or 1125 for one," which Agent Fitch claimed was "consistent with Detroit-area pricing for cocaine." Also added to the affidavit were the results of a criminal record database search: an arrest (and an acquittal) for "delivery/manufacture of dangerous drugs" dating back to 1996 and a 1999 conviction for conspiracy to distribute marijuana.

Despite there being nothing linking Brown to the sale of heroin and his most recent conviction being 12 years old at that point, Agent Fitch somehow convinced a judge that a vehicle parked in the driveway of a house being searched was enough of a "nexus" to justify a search of the vehicle owner's home. This warrant was obtained three weeks after Brown's arrest and three weeks from the point Brown had been released after being charged, during which time neither the DEA nor the MSP performed any surveillance of Brown or his residence.

The DEA rolled up to Brown's house and searched it. Agents found some stuff, but nothing that would link Brown to heroin distribution.

DEA agents executed the search warrant at Brown’s residence on March 31. They found a nine-millimeter Smith and Wesson semiautomatic pistol, a loaded 12-gauge shotgun, and 60 grams of marijuana. They also recovered a digital scale, various forms of ammunition, $5,805 in cash, utility bills addressed to Brown, a Michigan certificate of title and insurance document for a 2002 GMC Yukon, and a hand-written document—purportedly a drug ledger—listing names and what appeared to be gram drug quantities. They did not find heroin or any other evidence linking Brown to a heroin conspiracy.

The district court refused to suppress the evidence, claiming the "four corners" made up for the deficiencies in the affidavit, and allowed the good faith exception to paper over the rest of the warrant's flaws. The government continued to pursue the heroin conspiracy charge, but the jury found nothing in the evidence to support it. Brown was acquitted on that charge but convicted on the firearms and marijuana possession charges.

The appeals court is less impressed with the government's attempt to spin nearly nonexistent threads into connective tissue.

In the present case, the search warrant affidavit contained no evidence that Brown distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there. The affidavit did not suggest that a reliable confidential informant had purchased drugs there, that the police had ever conducted surveillance at Brown’s home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence. The Government notes that Brown’s car, which was registered to his residence, was parked outside Middleton’s home and tested positively for narcotics during a canine search. Although these facts supported the search of Brown’s car, they did not establish a fair probability that evidence of drug trafficking would be found at his residence. A more direct connection was required, such as surveillance indicating that Brown had used the car to transport heroin from his home to Middleton’s on the day in question. The mere fact that the car was registered to Brown’s home was too vague and generalized a nexus to support the search warrant.

The government tried to salvage this by claiming Brown's status as a "known drug dealer" was all it really needed to obtain a search warrant of his residence. The appeals court disagrees.

Although this alone establishes that the warrant was issued without probable cause, we note that the evidence supposedly establishing Brown’s status as a drug dealer was also inadequate. The affidavit relied on the following facts to show that Brown was a known drug dealer: Brown was a passenger in Middleton’s car when the arrest was carried out. Police officers seized four cell phones from the car, two of which were believed to belong to Brown because they listed Middleton’s phone number as a contact. One of Brown’s alleged cell phones had a text message that said, “He said 1175 or 1125 for one,” which Agent Fitch alleged referred to local cocaine prices, not heroin. Brown possessed $4,813 in currency at the time of his arrest. Brown’s car was parked at Middleton’s residence and, during a search of Brown’s vehicle, a drug dog alerted to the odor of narcotics.

Although some of these facts suggest that Brown may have been involved in the heroin drug conspiracy—and thus established probable cause to arrest Brown—they are too inconclusive to assume, for the purpose of determining probable cause to search Brown’s residence, that he was a known drug dealer.

The court also denies the government's good faith appeal, finding that law enforcement had 22 days to put together something more resembling probable cause. The court wonders why the DEA -- if it felt it didn't have enough PC to pursue a search of Brown's house right after his arrest (the driver's house was searched the next day) -- suddenly felt it had enough evidence to support a warrant three weeks later, when literally nothing had changed in the interim.

It is hard to account for this delay, as little new evidence was discovered during that period: just a cryptic text message, which Agent Fitch concluded reflected pricing for cocaine—not heroin—and a conviction for conspiracy to distribute marijuana from 1999. Neither the text message nor the 12-year-old conviction was probative of whether Brown was using his current residence for drug trafficking…

Save for a passing reference to Brown’s car registration, the affidavit is devoid of facts connecting the residence to the alleged drug dealing activity. Although the good-faith standard is less demanding than the standard for probable cause, the affidavit still must draw some plausible connection to the residence. Agent Fitch’s affidavit failed to do so.

With the evidence suppressed, the convictions for marijuana and firearms possession vanish as well. Considering the Supreme Court recently decided old arrest warrants can salvage illegal searches, it's nice to know mostly-irrelevant criminal history isn't enough to turn a lack of probable cause into a good faith effort.

Filed Under: dea, law enforcement, michigan, probable cause

DOJ Drops Stupid Drug Trafficking Charges Against FedEx After Judge Criticizes Its 'Novel Prosecution'

from the The-Man-reluctantly-moves-on-to-hassling-other-parties dept

After two years, the DOJ has decided to drop its bogus conspiracy/drug trafficking case against Federal Express. In July 2014, FedEx was hit with an indictment for allegedly knowingly delivering illegal/counterfeit drugs to a handful of sketchy recipients.

The government insisted FedEx perform interdiction efforts for it by opening boxes and determining (without guidance) whether or not the contents were legit. FedEx pointed out that it was in the package delivery business, not the law enforcement business. The DEA shrugged and said, "Do better." FedEx said, "Why don't you give us a list of people/businesses you think are engaged in illegal activities?" The DOJ refused to do so and rewarded FedEx's good faith efforts with an indictment.

An indictment is easy to obtain, as anyone familiar with the machinations of grand juries is aware. The DOJ's case, however, immediately fell apart after it dragged its purple and orange ham sandwich into a process that's actually adversarial. Judge Charles Breyer -- who we know from his hilariously-redacted denial of HP's heavily-redacted request to seal documents and his interest in the FBI's possibly-illegal courthouse step wiretaps -- presided over the opening arguments… and that was pretty much all he had to hear.

Maria Dinzeo of Courthouse News Service reports:

Addressing the court briefly, Breyer said, "I'm quite familiar with this industry. I'm deeply concerned by tragic consequences caused by sales of toxic substances to individuals, including children, who have not had a direct consultation with a licensed physician"

But this case was "entirely different," Breyer said. "The court has been asked to determine if defendant should be held criminally liable as a co-conspirator. As a result of detailed opening statements by the government and defense and accepting factual assertions as uncontested, the court concludes the defendants are factually innocent. They did not have criminal intent."

Breyer emphasized that FedEx repeatedly offered to help the government, asking officials to identify a particular customer shipping illegal substances, so that it might stop picking up its packages.

"The DEA was unwilling or incapable of providing that information to FedEx," Breyer said. "Rather the government decided to pursue this novel prosecution."

When judges call something "novel," it's rarely because they're impressed. "Novel" is a polite way of saying "bullshit." Or "insane." It's a word pro se plaintiffs hear quite frequently. The DOJ is probably not quite as used to it, as even its weakest arguments tend to be granted more deference than they deserve.

That was enough to convince the DOJ to drop the charges, wrapping up another ridiculous situation where drug warrior zealotry has culminated in The Man sticking it to Himself.

The DEA certainly could have intercepted suspicious packages and examined them itself, but it chose to pass that burden on to the intermediary. This suggests its investigations aren't going as smoothly as it might have hoped. Probable cause for search warrants isn't a particularly high bar, but the DEA presumably either can't meet it, or would rather let others do the work for it and save it the trouble of filling out the paperwork.

Filed Under: dea, deliveries, doj, drug trafficking
Companies: fedex

Law Enforcement Forced To Hand Over $41K It Seized From Businessman At Airport, Plus Another $10K In Legal Fees

from the felled-by-their-own-bullshittery dept

An unidentified Techdirt reader sends in the news that Arizona law enforcement is going to be handing over $10,000 to Madji Khaleq as a result of a failed asset forfeiture attempt. This would be in addition to the $41,870 the DEA already handed back to Khaleq -- every cent of the cash federal agents seized from him at the Tucson airport.

Khaleq had a legitimate reason to be carrying $40K in cash on him.

Court documents show Khaleq told the Drug Enforcement Administration agent who seized the money that he owned a convenience store and check-cashing business in Denver, as well as a wholesale electronics distributorship in California. He said he came to Tucson to buy a smoke shop on South 12th Avenue, but the deal fell through.

But the DEA firmly believes cash = drugs even when there's no evidence pointing towards illicit sources or uses for the funds, so it relieved Khaleq of his burdensome bankroll. Local law enforcement then swooped in to claim its part in the haul… only to return it when Khaleq lawyered up.

Khaleq challenged the seizure in Pima County Superior Court and the Pima County Attorney’s Office withdrew its request for forfeiture of the money in November.

The $10,000 in legal fees due Khaleq will come from the County Attorney's Office and a Tucson-based counter-narcotics task force. Apparently the DEA has washed its hands of the whole affair after giving Khaleq the money it took from him.

The government is unhappy to be paying a drug trafficker an additional $10,000. Oh, yeah. It still believes Khaleq is involved in drug trafficking despite losing this lawsuit and 10 grand in discretionary spending.

In the March 10 stipulation of dismissal, Deputy County Attorney Edward Russo said the $10,000 is not an admission that Khaleq has shown he is “entitled to an award of attorney’s fees, costs or damages in this action.”

Also:

When asked if the County Attorney’s Office still suspected Khaleq of being involved in illicit activity, Johnson said: “Yes, we don’t just take money from people for no reason.”

The hell you don't.

And that's not the full extent of the government's BS. During its fight to keep the uncharged Khaleq from recovering his money, the County Attorney's Office attempted to keep Khaleq as far away from his money and his Fifth Amendment rights as possible.

Russo had asked Aragon on Jan. 11 if the county could present a report on a federal investigation purportedly of Khaleq without Khaleq or his attorney present.

[Judge Gus] Aragon denied the request, saying that to grant the request “would violate basic concepts of fairness and due process.”

Fortunately, a judge stepped in and prevented the government from further abusing Khaleq. Even when the government is clearly in the wrong, it still insists it's right. No admission of wrongdoing despite losing badly enough that the plaintiff was awarded legal fees on top of his original funds, and law enforcement still insists Khaleq is involved in illegal activity despite his lack of a rap sheet and zero evidence in hand to support its claims.

Filed Under: arizona, asset forfeiture, asset seizure, dea, law enforcement, madji khaleq

ODNI Lawyer Bob Litt Says There's No NSA Data Sharing With Law Enforcement... If You Don't Count The FBI, DEA, Etc.

from the a-fine-guest-post-full-of-classic-debunkables dept

Just when we thought some surveillance reforms might stick, the administration announced it was expanding law enforcement access to NSA data hauls. This prompted expressions of disbelief and dismay, along with a letter from Congressional representatives demanding the NSA cease this expanded information sharing immediately.

This backlash prompted Office of the Director of National Intelligence General Counsel Robert Litt to make an unscheduled appearance at Just Security to explain how this was all a matter of everyone else getting everything wrong, rather than simply taking the administration at its word.

There has been a lot of speculation about the content of proposed procedures that are being drafted to authorize the sharing of unevaluated signals intelligence. While the procedures are not yet in final form, it would be helpful to clarify what they are and are not. In particular, these procedures are not about law enforcement, but about improving our intelligence capabilities.

As Litt explains it, everything about this is lawful and subject to a variety of policies and procedures.

These procedures will thus not authorize any additional collection of anyone’s communications, but will only provide a framework for the sharing of lawfully collected signals intelligence information between elements of the Intelligence Community. Critically, they will authorize sharing only with elements of the Intelligence Community, and only for authorized foreign intelligence and counterintelligence purposes; they will not authorize sharing for law enforcement purposes. They will require individual elements of the Intelligence Community to establish a justification for access to signals intelligence consistent with the foreign intelligence or counterintelligence mission of the element. And finally, they will require Intelligence Community elements, as a condition of receiving signals intelligence, to apply to signals intelligence information the kind of strong protections for privacy and civil liberties, and the kind of oversight, that the National Security Agency currently has.

So, this all sounds like it has nothing to do with law enforcement. Just intelligence "elements" from the community. Except that law enforcement and intelligence agencies are hardly separate entities. We already know the NSA is allowed to "tip" data to the FBI if it might be relevant to criminal investigations. There's no clear dividing line between intelligence and law enforcement -- not with law enforcement's steady encroachment into national security territory. When Litt says "only intelligence agencies," he's actually referring to several law enforcement agencies, as Marcy Wheeler points out.

As a threshold matter, both FBI and DEA are elements of the intelligence community. Counterterrorism is considered part of FBI’s foreign intelligence function, and cyber investigations can be considered counterintelligence and foreign intelligence (the latter if done by a foreigner). International narcotics investigations have been considered a foreign intelligence purpose since EO 12333 was written.

In other words, this sharing would fall squarely in the area where eliminating the wall between intelligence and law enforcement in 2001-2002 also happened to erode fourth amendment protections for alleged Muslim (but not white supremacist) terrorists, drug dealers, and hackers.

So make no mistake, this will degrade the constitutional protections of a lot of people, who happen to be disproportionately communities of color.

And, to go back to Litt's statement, the whole thing starts with a dodge:

These procedures will thus not authorize any additional collection of anyone’s communications…

This is something no one has actually claimed. What people are concerned about is the NSA using its massive collection abilities to become an extension of domestic law enforcement, rather than the foreign-focused entity it's supposed to be.

And, as for Litt's claims that everything is subject to clearly-defined rules on minimization, those are also false. First off, the expanded permissions originate under Executive Order 12333, which has been revised in secret on more than one occasion -- all without the full participation of Congressional oversight. Not only that, but agencies that are recipients of unminimized data from the NSA are supposed to apply their own minimization procedures to better ensure "strong protections for privacy and civil liberties." Wheeler notes that two recipients have yet to put any minimization procedures in place, despite having had years to do so.

I also suspect that Treasury will be a likely recipient of this data; as of February 10, Treasury still did not have written EO 12333 protections that were mandated 35 years ago (and DEA’s were still pending at that point).

The backdoor search loophole has yet to be closed (which gives the FBI access to unminimized data and communications obtained via Section 702) and these agencies -- along with two consecutive, very compliant administrations -- have been tearing down any walls between the NSA and law enforcement for several years now.

Litt's reassurances are worthless. It namechecks all the stuff we know is mostly worthless: oversight, minimization procedures, the frankly laughable idea that the FBI cares more about privacy and civil liberties than making busts, etc. and asks us to believe that a tangled thicket of secretive agencies and even-more-secretive laws are all designed to protect us from government overreach.

Filed Under: bob litt, data sharing, dea, fbi, law enforcement, nsa, odni

DOJ Steps In To Salvage The DEA's Toxic, Possibly Illegal Wiretaps

from the oh-wait,-there's-actual-MONEY-on-the-line dept

Late last year, USA Today's Brad Heath and Brett Kelman uncovered a massive DEA wiretap program -- one that was being run almost exclusively through a single California state court judge and being signed off on by a single DA's office. The wiretaps were likely illegal, seeing as the warrants weren't being run by federal judges. They also weren't being signed by the top prosecutor in the area, as is required federal law.

Federal law bars the government from seeking court approval for a wiretap unless a top prosecutor has personally signed off on that request, a requirement Congress added after the FBI wiretapped civil rights leaders in the 1960s. The only exception is when the district attorney is “absent” and has authorized someone else to act in his place, a federal appeals court ruled in 2013.

The wiretaps -- and the evidence obtained -- were considered so toxic, DOJ lawyers were telling the DEA not to drag them into any of its courtroom battles.

"It was made very clear to the agents that if you're going to go the state route, then best wishes, good luck and all that, but that case isn't coming to federal court," a former Justice Department lawyer said.

[...]

"They'd want to bring these cases into the U.S. Attorney's Office, and the feds would tell them no (expletive) way," a former Justice Department official said.

Despite this rolling up of the welcome mat and changing of the locks, the DOJ is making an appearance in a case involving one of these dubious wiretaps. Brad Heath reports the Justice Department is trying to salvage one of the DEA's cases, which is in danger of having the wiretap evidence suppressed.

The Justice Department urged a judge not to throw out a series of wiretaps agents used to arrest an accused marijuana trafficker, saying the surveillance was “authorized in accordance with state and federal law.” That defense came in a filing Monday in federal court in Louisville.

Someone up top must have been concerned about losing a big drug bust. This case has gone federal and it involves a large amount of cash -- something that is certainly motivating the DEA to keep its evidence intact.

In May 2014, DEA Riverside informed DEA Louisville, who in turn informed Detective Murphy, that Shewmaker had been arrested near Perris, California, and that a consent search of his vehicle had resulted in the seizure of $418,930 in U.S. currency from hidden compartments inside the front and rear passenger side door panels.

The DOJ is arguing that the lack of a signature by the top prosecutor in the area shouldn't result in the suppression of evidence. It claims the defense is reading far too much into the California statute that determines who can and can't sign off on federal wiretap requests.

Thus, in the instant case, suppression is implicated only if this Court finds that the California legislature intended to require each district attorney, no matter how large or small their particular jurisdiction might be, to personally review and authorize every single wiretap application unless they were physically absent from the office, in which cases a properly designated subordinate might perform the review and authorization, and that the legislature regarded this requirement as a central purpose of the legislative intent to ensure that wiretaps were only authorized in appropriate cases. Surely, had this been the legislative intent, the law would be more specific about what “absence” means. It seems obvious that the legislature was primarily concerned about the scope of the designation, that is, to ensure that the authorization to review a wiretap application was given to a high-ranking assistant who was essentially authorized to run the office in the district attorney’s absence.

State law says the "top prosecutor" must sign them, unless he's absent. The DEA funneled its wiretap requests through the office of The Prosecutor Who Wasn't There.

Riverside County’s former district attorney, Paul Zellerbach, has acknowledged that he allowed lower-level lawyers to do that job, saying he could not recall ever having reviewed a wiretap application himself. Four of the wiretaps in the Kentucky case were approved by one of Zellerbach’s assistants, and one was approved by an assistant to his successor.

So much for the statute preventing abuse, if that's the way the DOJ chooses to read it. Rather than going to a top prosecutor -- someone who was supposed to ensure the proper probable cause was present and that the requesting agency had exhausted all other options -- the paperwork landed on the desk of whoever was available and could wield a pen with relative competence.

The assistant US attorney defending the previously-indefensible wiretaps says there's no reason technicalities like sidestepping federal law and state statutes should result in evidence suppression.

Fentress said that even if the wiretap applications were deficient, the problems were minor enough that the judge should not block the government from using them as evidence.

An argument for giving the government "good faith" credit, even though the deficient warrants were only a few months ago considered toxic enough DOJ lawyers were telling the DEA to stay the hell away from federal courts. Perhaps the DOJ wouldn't be in this awkward position if it had simply told the DEA to do things by the book, rather than take the path of least no resistance.

Filed Under: dea, doj, paul zellerbach, riverside, warrantless wiretaps, wiretaps

DEA's Definition Of Evidence Control Apparently Doesn't Include Recording Gross Weight Of Seized Substances

from the 'controlled'-substances,-my-ass dept

Let's start out with this story, which is graphically (and tragically) illustrative of the problem discussed later in this post.

A former police detective and Drug Enforcement Agency task force member committed suicide after being arrested for allegedly setting up drug sales involving substances seized by his department, WBNS-TV reported.

Authorities said 43-year-old Tye Downard hung himself inside his cell on Monday morning. The 20-year veteran officer for the Reynoldsburg Police Department had been arrested on Feb. 18 and charged with possession of drugs with the intent to distribute.

WSYX-TV reported that Downard made nearly $35,000 from the transactions leading up to his arrest. He faced up to 20 years in prison as a result of the charges against him, and nearly 50 cases in which he was involved will be reviewed.

The DEA seems very concerned about controlled substances. Internal control of these substances? Not so much. A recent Inspector General's audit found multiple problems with the DEA's handling of seized drugs, the most egregious of which appears to be this particular aspect.

We reviewed the DEA-6s for 250 exhibits to determine whether the gross weight of the exhibit was documented as required by the DEA Agents Manual. We found the gross weight was not listed on the DEA-6 for 128 of the 250 exhibits.

Over 50% of those audited had no weight listed. The New York office was the worst of those sampled, with 80% of its seized evidence paperwork missing this crucial element.


Considering the fact that sentencing is partially predicated on weight, you'd think the DEA would show more interest in maintaining an "unimpeachable chain of custody." Not so. The OIG spoke to DEA supervisors about this missing info and received a shrug, a post facto promise to fix, and a statement almost too stupid to be believed.

One manager provided no explanation, another stated that the missing weights were an oversight that would be corrected, and the third manager informed us that he was not aware of the requirement to document the gross weight of the exhibit.

Recording the weight is incredibly important. The above case -- where an untold amount of drugs simply "walked out" of DEA evidence rooms -- illustrates why the DEA must not only record this weight, but verify it periodically. But those in charge of maintaining the chain of custody seem less than concerned about their underlings' failure to do so. It's because of that attitude that a task force member was able to personally profit from the illegal sale of seized evidence.

The requirements established in the Agents Manual helps ensure the integrity of the exhibit for prosecution, minimize suspicions regarding the theft or loss of drugs during the seizure process, and provide a benchmark for future weight calculations.

The OIG recommends the DEA start doing the thing it should have been doing 100% of the time already. The DEA concurs and will presumably correct it at the speed of bureaucracy. The problem is that this is obviously a systemic issue that has gone unaddressed for years. This lax handling of evidence should call into question the amounts cited during prosecution, not to mention any statements in court regarding the integrity of the evidence it supplies.

Filed Under: dea, evidence, tracking, weight

With Arrival Of New DA, The DEA's 'Likely Illegal' Wiretap Warrants More Legal, Less Prolific

from the the-rubber-stamp-is-gone-and-the-inkpad-has-run-dry dept

The DEA's South California wiretap kingdom is crumbling. Run almost solely through a single, very obliging judge and approved by an assortment of DA's office underlings, the wiretap warrants were so toxic the DOJ wouldn't touch them. Local prosecutors would, however, but now they're finding their cases falling apart.

The likely illegal wiretap program skirted guidelines meant to prevent exactly this sort of abuse. In response to the FBI's abuse of wiretaps to surveil civil rights leaders (including Martin Luther King Jr.) during the 1960s, the DOJ stated warrants had to be signed off by the top prosecutor in the area they were deployed: in this case, Riverside District Attorney Paul Zellerbach. Zellerbach delegated when he shouldn't have, compounding other problems, like the DEA's use of a county judge for warrant requests, rather than a federal judge.

Brad Heath and Brett Kelman have been relentless in pursuing this story. Two more recent developments seem to indicate Riverside, California, will no longer be the DEA's playground. To start with, another of the DEA's cases is being challenged… in Kentucky.

The Kentucky case is the first to challenge that surveillance in federal court, and could have implications for prosecutions across the United States in which police relied on Riverside County eavesdropping. The case may also force the Justice Department to take a position on whether the wiretaps were lawful, something it has not publicly done.

The new court filing challenges Riverside wiretaps on two fronts. First, it argues that Riverside prosecutors used wiretaps as an “initial step” in investigations, even though taps are supposed to be reserved as a tool of last resort. Second, the motion says that former District Attorney Paul Zellerbach, who led the Riverside DA’s office during an unprecedented rise in wiretaps, did not review each wiretap application personally, which was required by federal law.

In addition, the DEA's home field advantage is no longer. Zellerbach is no longer in office and his replacement -- Mike Hestrin -- is following through with his promise of cleaning this mess up. The DEA hit peak wiretap during Zellerbach's tenure. It's now experiencing a swift and dramatic decline.

Officials approved another 607 wiretaps in 2015, according to the figures released by the district attorney’s office. Most were approved in the first half of the year, before Hestrin said he installed a “stricter” standard that required every new wiretap application to have a “strong investigatory nexus” to Riverside County.

Taps have dwindled since then. So far this year, Hestrin has approved only 14. In the first two months of last year, his office approved 126.

There are still issues left to be addressed though. The Desert Sun, which has worked in conjunction with USA Today's Heath and Kelman to cover this story, notes that the DA's office has rejected FOIA requests for wiretap approval policies under Zellerbach and Hestrin. On top of that, oversight is still very limited. Wiretap warrants are routinely sealed and information about these warrants being withheld from some defendants.

But the good news is the DEA's wiretap pipeline -- DA Zellerbach and county judge Helios Hernandez (who signed off on 20 times as many warrants as his San Bernardino county counterpart) -- has been broken by the arrival of DA Hestrin. Zellerbach's "hands off" approach to wiretap warrant approvals means more than 700 warrants his office issued since 2013 could have their legality challenged in court.

Filed Under: 4th amendment, california, dea, mike hestrin, paul zellerbach, riverside county, warrantless wiretaps, warrants

Judge In Different Apple Case Says That All Writs Act Doesn't Mean Apple Needs To Help Feds Break Into Phone

from the paper-trail dept

Everybody has obviously been focused on the DOJ's All Writs Act request on Apple in the case involving the San Bernardino attacker's work iPhone, but as we've been covering there are a other cases where the feds have made use of the All Writs Act as well, including a key one in NY in the court of Magistrate Judge James Orenstein that we've been covering for a while now. Orenstein has already expressed skepticism about the government's argument, and now has come out with a well timed order denying it.

Judge Orenstein is no fool, and knows that the world will pay close attention to his order -- so it's pretty detailed. Also, and this is important, it basically mimics the key argument that Apple has made in its filing in the San Bernardino case, saying that the All Writs Act is preempted by other laws (mainly CALEA) and therefore, Apple cannot be compelled to help. In short, Congress has addressed this more specific issue and hasn't passed a law that allows the government to get what it wants, so the government can't just fall back on the All Writs Act to do what Congress failed to do:

More specifically, the established rules for interpreting a statute's text constrain me to reject the government's interpretation that the AWA empowers a court to grant any relief not outright prohibited by law. Under a more appropriate understanding of the AWA's function as a source of residual authority to issue orders that are "agreeable to the usages and principles of law," 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple's relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the record and the parties' arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will. I therefore deny the motion.

In the case -- involving drug trafficking (not terrorism) charges against Jun Feng -- the DEA seized Feng's iPhone 5 (with iOS7) and wanted to use the All Writs Act to compel Apple to help open it up. The case was complicated by the fact that as this was being debated, Feng took a plea deal. However, the government still wanted to move forward to set a precedent (it claimed the information might be useful in sentencing or to find other partners and customers of Feng). Judge Orenstein "agreed" with the government that the issue is not moot, based on this, but uses it as a chance to shoot down its All Writs Act argument entirely.

In going into detail, Judge Orenstein basically repeats the basic argument that CALEA rules here, and the All Writs Act does not apply:

I believe Apple has the better argument – both because it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also because even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe.

Judge Orenstein goes on for many pages, in great detail, explaining why CALEA applies over the AWA and why it says that Apple need not help the government here. It's worth a read, but it follows pretty closely on Apple's own arguments.

There are also some pretty good lines and takedowns of government arguments, and I'll just note one here, involving how the government's argument could be so widely abused, in particular how the DOJ says that because Apple just "licenses" the software instead of selling it, then Apple retains a relationship which makes the All Writs Act demands apply. Judge Orenstein points out how insane such a reading of the law would be:

If Apple's retention of intellectual property rights in the software deployed in a device sold to the public sufficed to render it sufficiently close, for purposes of the AWA, to any crime committed by any user of such a device, it would eventually render the first discretionary factor under N.Y. Tel. Co. a dead letter. As constantly increasing computing power is continually squeezed into ever smaller storage devices, the category of consumer products containing licensed software will continue to grow. In a world in which so many devices, not just smartphones, will be connected to the Internet of Things, the government's theory that a licensing agreement allows it to compel the manufacturers of such products to help it surveil the products' users will result in a virtually limitless expansion of the government's legal authority to surreptitiously intrude on personal privacy.

This being a NY district court, the ruling has no direct precedential value (and certainly not in the Central District of California where the other big case is happening), but at the very least sets up the possibility of a circuit split that could get the issue to the Supreme Court relatively quickly. Also, just in general, it's good to see a judge not just roll over for the DOJ on requests like this and give due recognition to the legal concerns at issue.

Filed Under: all writs act, calea, dea, doj, encryption, fbi, james orenstein, jun feng
Companies: apple

Want To Report A Dangerous Drug Dealer? Just Enter Your Personal Info Into The DEA's Unsecured Webform

from the we-know-all-about-you,-but-good-luck-finding-out-about-us dept

Chris Soghoian, the ACLU's chief technologist, has decided to troll the DEA. His complaint is valid, though. The problem is, how do you troll the DEA when it's almost impossible to find the contact info of the person you want to speak to? Just like the FBI has more options at its disposal than simply demanding Apple help it beat down an iPhone's front door, Soghoian was able to route around the DEA's unforthcoming attitude.

How to disclose a security flaw to the DEA.
1 Find CISO on LinkedIn.
2 Look up consulting company records.
3 Email.https://t.co/sRK56FSkEL

— Christopher Soghoian (@csoghoian) February 28, 2016

If you can't read/see the tweet, it says:

How to disclose a security flaw to the DEA.
1 Find CISO on LinkedIn.
2 Look up consulting company records.
3 Email.

The email address was harvested from a third-party website for a company DEA CISO Bret Stevens is apparently associated with, Innovative Security Solutions, Inc., conveniently located in northeastern Virginia, right outside of Washington, DC.


This site will allow you to edit company info, provided you can socially engineer your way into a position at the company. That being said, it looks loads better than the company's original site, which appears to have been last updated five minutes after the domain was registered (2004).


There's nothing on this site referring to Bret Stevens, current DEA security chief, but then again, the site doesn't appear to be subject to frequent updates. Or any updates.

Anyway, Soghoian wanted to point out a security flaw on the DEA's website. The DEA will accept tips from citizens. However, it does absolutely nothing to protect these helpful citizens. From Soghoian's notification email:

The DEA operates an online tip­form, through which individuals can report "possible violation of controlled substances laws and regulations. Violations may include the growing, manufacture, distribution or trafficking of controlled substances."

See: http://www.dea.gov/ops/submit.php

This website does not use HTTPS to protect the transmission of information. It should.

Quite correct. Not only has the Office of Management and Budget stated every agency must use HTTPS on all public-facing websites by the end of 2016, but you'd think a form that collects personal info about members of the public -- especially in conjunction with info about possibly armed and violent criminals -- would be given an extra layer of security. Apparently, the DEA is not all that concerned about its tips being scooped by criminals, or criminals intercepting unsecured tips in order to target do-gooders.

Soghoian's email also suggests the agency be a little more transparent about its security staff.

On a more general note, I would also like to encourage you to post publicly contact information for your information security team, so that researchers and other individuals can responsibly disclose flaws such as this issue. This is a best practice followed by some federal agencies, widely adopted by those in the private sector, and promoted as a best practice by the Federal Trade Commission.

If this email manages to reach Bret Stevens, it will likely be sneered/groused at before being discarded as the imperious communications of a meddling motormouth representing an entity far too concerned about the rights of all Americans, especially the guilty, drug-dealing ones. As for its unsecured tip form, it will likely remain unsecured until the DEA is finally forced into compliance with the OMB's instructions.

Use at your own risk.

Filed Under: bret stevens, chris soghoian, dea, failures, https, security

Rather Than Ending NSA's Key Surveillance Tool, White House To Now Let Other Agencies Use It

from the uh...-what-now? dept

Late last night, the NY Times broke a very troubling story. Rather than finally putting an end to Executive Order 12333, it appears that President Obama is going to expand the power of it in dangerous ways. We've written about EO 12333 a bunch of times, but for those of you unfamiliar with it, it's an executive order signed by President Reagan that basically gave the NSA pretty free rein to collect signals intelligence outside of the US. Because it's not (technically) about domestic surveillance, what the NSA does under EO 12333 is not subject to Congressional oversight. That is, Congress is mostly as much in the dark as everyone else is on what the NSA is doing overseas. And, as former State Department official John Napier Tye revealed a couple of years ago, for all the talk of domestic surveillance programs revealed by Ed Snowden, the NSA's real power comes almost entirely from 12333.

And it has no limitations. Napier noted that the other programs -- things like Section 215 (now morphed into whatever the USA FREEDOM Act allows) and Section 702 -- were merely used to "fill in the gaps" not covered by 12333.

And it almost certainly involves both foreign and domestic intelligence. Basically, if any of your data goes outside of US boundaries, the NSA is free to capture it under 12333. Remember those stories of the NSA hacking into datacenters of companies like Google, Yahoo and Microsoft? Those datacenters were in Singapore. And the reason the target was Singapore rather than the US, was because of 12333.

Meanwhile, the NSA likes to insist that it respects the privacy of Americans thanks to its vast minimization program that is supposed to dump inappropriate data on Americans, or in stripping out private information when sharing data with other agencies.

But apparently that's going away. Instead, the White House has plans to let the NSA share data collected under 12333 with other government agencies without any minimization. Basically, whatever the NSA collects overseas might now be freely available to the FBI or Homeland Security or the IRS or the DEA. Doesn't that seem at least somewhat problematic? From the NY Times:

The Obama administration is on the verge of permitting the National Security Agency to share more of the private communications it intercepts with other American intelligence agencies without first applying any privacy protections to them, according to officials familiar with the deliberations.

The change would relax longstanding restrictions on access to the contents of the phone calls and email the security agency vacuums up around the world, including bulk collection of satellite transmissions, communications between foreigners as they cross network switches in the United States, and messages acquired overseas or provided by allies.

The idea is to let more experts across American intelligence gain direct access to unprocessed information, increasing the chances that they will recognize any possible nuggets of value. That also means more officials will be looking at private messages — not only foreigners’ phone calls and emails that have not yet had irrelevant personal information screened out, but also communications to, from, or about Americans that the N.S.A.’s foreign intelligence programs swept in incidentally.

This is crazy. For all the talk of the NSA having access to all of this information, and even a fair number of reports of NSA staff "abuse" of their access to data, in general, the NSA certainly has a reputation for being serious about not allowing any abuse of the data. Other agencies? Not so much. The FBI, CIA, DEA and ATF, for example, have long and colorful histories of abusing data to harass and intimidate people. Giving them much wider access to whatever the NSA slurps up overseas, and then trusting those agencies to handle "minimization" (as is the apparent plan) is downright frightening.

And despite this massive change, the public won't get to weigh in. Instead:

Intelligence officials began working in 2009 on how the technical system and rules would work, Mr. Litt said, eventually consulting the Defense and Justice Departments. This month, the administration briefed the Privacy and Civil Liberties Oversight Board, an independent five-member watchdog panel, seeking input. Before they go into effect, they must be approved by James R. Clapper, the intelligence director; Loretta E. Lynch, the attorney general; and Ashton B. Carter, the defense secretary.

Oh sure. They just need approval from the folks who will benefit most from all of this, and no real discussion with the public who will be impacted by it. What a surprise...

Filed Under: atf, cia, dea, executive order 12333, fbi, irs, minimization, nsa, privacy, surveillance