DOJ Racks Up 90% Failure Rate In Inauguration Protest Prosecutions, Dismisses Final Defendants

from the win-some,-lose-a-whole-lot-more dept

The DOJ, after flailing wildly for most of the last 18 months, has dismissed the remaining defendants in its disastrous inauguration day protest prosecutions.

The US attorney's office in Washington, DC, announced Friday that it is dismissing charges against the remaining defendants charged in connection with anti-Trump demonstrations on Inauguration Day.

Police arrested 234 people on Jan. 20, 2017. Twenty-one people pleaded guilty. The final dismissal notice on Friday came after several trials in which prosecutors were unable to secure any convictions — defendants were either acquitted or jurors failed to reach a verdict.

The government still managed to land 21 convictions, even though its statement suggests it feels this isn't nearly enough, what with "$100,000 in damage to public and private property" occurring during the protests. It certainly isn't much considering the DOJ's original (human) dragnet held more than 200 arrestees.

But that wasn't the only dragnet the DOJ deployed. On its way to dismissing charges against 90% of the defendants, the DOJ also:

• Demanded access to the identifying info of all 1.2 million visitors to the Disrupt J20 website
• Demanded information from the accounts of 6,000 Facebook users
• Claimed arrested protesters were "hiding behind the First Amendment"
• Stated in court that the "beyond a reasonable doubt" jury instruction "doesn't mean too much"
• Hid dozens of videos it planned to use as evidence from defendants
• Attempted to prosecute journalists for attending the protests and documenting them
• Still wants to be able to jail people for discussing protests/rioting, via broad conspiracy charges

This is how it ends for the DOJ, which has largely lost its bids to install a chilling effect via over-broad "rioting" prosecutions. While it's true property was damaged during the protests, rounding up a couple hundred protesters is the opposite of targeted prosecution. If the DOJ hadn't been shutdown in its attempt to amass personal information on more than a million website visitors and Facebook members, the number of defendants would have been even bigger. The eventual dismissals would also have skyrocketed, so the government probably should be happy it walked away with anything at all.

Filed Under: 1st amendment, disrupt j20, doj, free speech, inauguration, j20, protests

EPA's War On Journalists Is Not A Good Look

from the even-if-it's-become-sadly-expected dept

The Obama administration was terrible when it came to how it treated journalists, acting vindictively against many journalists, and opening up investigations that created massive chilling effects on journalism. While some supporters of our previous President insisted that these actions were necessary due to the journalists "leaking" or revealing sensitive information, that's a ridiculous claim. A journalist's job is to report on things, including revealing the kind of information a government would prefer be kept secret. And, more importantly, normalizing a government at war with the journalists who cover it was bound to be abused even more going forward.

And that brings us to the current administration, whose attacks on journalists have been frequent as well, though of a different, more clumsy nature. While the last administration focused on keeping secrets and launching chilling investigations, this one seems focused on name calling and hamfisted attempts at shutting out the media in the most obvious and petty of ways. Neither approach is good, but the current administration's attacks on journalists are so blatant and so stupid, it just makes people wonder what they're so afraid of.

While most people think mainly about the President's comments about the media, the EPA's attitude towards the media may be even more instructive. Just a few weeks ago, NY Times reporter Eric Lipton, in an interview with NPR's Terry Gross, explained how the EPA sought to shut out the media:

Well, this has been something that's been apparent to reporters that cover the EPA for a year now where every Friday or so we send in a request to the Agency to ask them what's up this week, where is the administrator going? And, you know, therefore can we be there essentially to observe his activity as he travels around the United States, in some cases around the world? It's part of our job to cover that. They never tell us where he's going.

And, you know, every Friday we send in this email to say, you know, we're trying to do our jobs to cover the Agency. What they do is they take their trips. They require that the participants that are, you know, part of the various events that they're going to have not tell any reporters unless they selectively pick a reporter they think is going to give them good treatment. And the only time that we become aware of it is when Scott Pruitt or his staff sends out tweets, and then they issue a press release with photos taken from the staff. So honestly, it's a bit like propaganda as opposed to actual events that the public has access to.

Later in the interview, Lipton shares another story of how EPA boss Scott Pruitt almost ended up at an event where open questions would be asked -- after the organizer of the event declared that it was a town hall-style event with questions, and the EPA not only flipped out and said no Q&A would be allowed, but sent that organizer a list of "allowed" questions that included hard hitting journalistic inquiries like "What has it been like to work with President Trump?"

So it should come as little surprise that on Tuesday, at an event where Pruitt was scheduled to speak, the EPA decided to just keep a bunch of reporters out. Specifically, reporters from the Associated Press, CNN, and an environmental publication called E&E News. In the case of the AP reporter, Ellen Knickmeyer, security allegedly "grabbed [her] by the shoulders and shoved [her] out of" the EPA building.

The EPA's response was that these reporters were blocked due to space constraints:

“The leadership summit quickly reached capacity with a wide variety of stakeholders including representatives from over 40 states, territories, and tribes,” Wilcox said in a prepared statement.

And that sounds like a valid excuse until you hear that there were "dozens of empty seats in the room" according to reporters who were there (mentioned in the same link above).

The EPA also tried to blame the AP reporter for security grabbing her and removing her from the building, but later had to change its false statement claiming that she had tried to shove her way in, which does not appear to be true.

After security told her that “we can make you get out,” Knickmeyer said she took out her phone to record what was happening. Some of the security guards reached for it, and a woman grabbed her shoulders from behind and pushed her about five feet out the door.

Wilcox issued a statement late Tuesday saying Knickmeyer “pushed through the security entrance.” After the AP objected to the characterization, the spokesman issued a second statement removing that account and instead saying Knickmeyer “showed up at EPA but refused to leave the building after being asked to do so.”

Separately, the argument that this was a space issue is undermined by a report that the EPA had a list of which reporters were to be blocked. According to CNN:

A CNN photographer was screened by security guards before the event and was waiting for an escort or further information. Wilcox arrived soon after and provided security with a list of news outlets and reporters, instructing them not to let anyone not on the list into the event. The CNN photographer then asked if he could enter the event and was told by security he couldn't.

This is a really bad look for an agency that already is looking pretty dismal. The fact that some press was let in and others weren't -- and that phony excuses were used multiple times in multiple ways -- suggests an agency that wants to be vindictive against coverage it doesn't like. These kinds of attacks on the press may be different in nature than those of the previous administration, but it does show how the general attacks on the press by any administration are shameful attempts to avoid being held accountable. While the strategies may be different, the end effect is a much weaker and less well-informed society. That should be seen as a serious problem.

Filed Under: 1st amendment, censorship, epa, journalism, scott pruitt
Companies: associated press, cnn

Congressman's Office Gets High School Student Suspended For Expressing His Displeasure With Congress

from the (202)-225-6155-/-(775)-686-5760 dept

The debate over gun control has reached new heights following the shooting at a high school in Florida. Every mass shooting prompts debate over the Second Amendment and access to guns, but this one, led by students whose classmates were killed, has more momentum than most.

Youth is wasted on the young, people say, as they note the steady decline in voter participation in younger demographics. This seems to imply more students should be involved in social and political issues, but this particular participation has been met with lots of ridicule and anger. In other words, it's been greeted with hypocrisy, which is pretty much what we expect in heated political debates.

Nothing is more heated than the gun control debate. And everyone with an opinion is wrong. But it's the youth that are the wrongest, and those bemoaning youthful antipathy aren't responding very well to this sudden display of activism. Gun control-related walkouts have occurred in schools all over the nation, and students expressing their displeasure with their representatives are finding out firsthand how thin-skinned their representatives are.

A student at a Nevada high school has been punished by his school for comments he made to a Congressman's office during a personal phone call.

[Noah] Christiansen told the Washington Post that during the walkout, his classmates passed around pieces of paper with phone numbers of legislators to call. Christiansen called the office of Rep. Mark Amodei, a pro-gun Republican, to complain, and reached a staffer in his office.

He told the Post that he said, “I believe bump stocks should be banned, the minimum age should be raised, and Congress people not already asking should get off their fucking asses and do something about gun control.”

Heated topic. Heated words. We're all adults here, except for the student being punished by adults. Rep. Amodei's office called the student's school to complain about his use of the F-word. That should have been the end of it, and the only punishment handed out should have been public mockery of Rep. Amodei and his overly-sensitive staffers.

Of course, that's not what happened. Christensen's school responded by suspending him for "disrespectful behavior/language." That's just stupid. This language didn't target the school, its staff, or fellow students. It targeted Congress in general, which is not exactly known for getting off its fucking ass and checking things off its To Do list.

No one except Christiansen comes out of this situation looking good. Rep. Amodei certainly doesn't. Despite the ACLU's advocacy on behalf of the wronged student, Amodei is sticking to his unapologetic guns.

Amodei defended his staffer and said no apology is necessary. The congressman said the situation was not a matter of shutting down the student’s First Amendment rights.

“I’m not apologizing because my guy accurately described what happened in the phone call,” he said.

In other words, this isn't on me or my staffers. This is on the school because it chose to react this way to a completely unnecessary, completely retaliatory phone call made by a staffer who felt he didn't need to put up with angry, sweary teens. But Amodei's non-apology gets even worse. He also claims his office is in the right because it didn't request a small parade of horribles to be inflicted on the student.

“He related the guy was vulgar,” Amodei said in a brief interview Monday. “He didn’t ask [the school] for any specific thing or beat the kid up. He just said ‘I wanted you know that this guy was really vulgar. We had a lot of calls and nobody else was,’ and that was it.”

Well, Amodei likes to dish it out but he sure can't take it. He used plenty of vulgar language to describe his interactions with the Bureau of Land Management, according to audio obtained by USA Today.

“While I think the world of Mr. Ruhs, I’m not going to try and get between him and your deputy guy, whatever is going on with those two,” Amodei said he told Zinke. “With all due respect, I’ve been to enough rodeos to sense an issue there and let’s just move on.

“Nevada has suffered through a decade of s--- BLM leadership,” he continued. “To put a strong successful leader in there for a net 18 months and then, for any reason, ship him, or let him leave to a position in Boise, is absolutely tone deaf.”

Northern Nevada’s lone congressman went on to decry “bulls---” legal provisions he said were cited by a Zinke subordinate in explaining why Amodei wasn’t told of Ruhs’ departure. That explanation, he felt, amounted to Zinke’s office indirectly telling him to “eat s---” over the incident.

That is awful. And to hear it coming from a respected pillar of the political community? It's almost too much to bear. Someone should probably inform his office that Amodei is running around being "really vulgar." Staffers shouldn't be asked to beat up Amodei, probably. That would just make complainants sound as stupid as the Congressman. But his frequent vulgarity, aimed at prominent people in positions of great responsibility, shouldn't go unnoticed. Neither should he and his office's hypocrisy on the subject of vulgarities and who's allowed to use them.

Amodei claims his office's retaliatory act was meant to show the student words have consequences. They do. And Amodei is hopefully learning quickly that those in power are not immune from the consequences.

Filed Under: 1st amendment, 2nd amendment, free speech, gun control, mark amodei, nevada, noah christiansen, protests

Mike Godwin's First Essay On Encryption And The Constitution

from the going-back dept

Mike Godwin (you know who he is) was recently going through some of his earlier writings, and came across an essay (really an outline) he had written to the Cypherpunks email list 25 years ago, in April of 1993 concerning the Clipper Chip and early battles on encryption and civil liberties. If you don't recall, the Clipper Chip was an early attempt by the Clinton administration to establish a form of backdoored encryption, using a key escrow system. What became quite clear in reading through this 25-year-old email is just how little has changed in the past 25 years. As we are in the midst of a new crypto war, Godwin has suggested republishing this essay from so long ago to take a look back at what was said back then and compare it to today.

From: Mike Godwin
Subject: Some thoughts on Clipper and the Constitution To: e*c Date: Mon, 26 Apr 93 11:15:17 EDT

Note: These notes were a response to a question during Saturday's Cypherpunks meeting about the possible implications of the Clipper Chip initiative on Fourth Amendment rights. Forward to anyone else who might think these interesting.

--Mike

Notes on Cryptography, Digital Telephony, and the Bill of Rights By Mike Godwin

I.Introduction

A. The recent announcement of the federal government's "Clipper Chip" has started me thinking again about what the principled "pure Constitutional" arguments a) opposed to Digital Telephony and b) in favor of the continuing legality of widespread powerful public-key encryption.

B. These notes do *not* include many of the complaints that have already been raised about the Clipper Chip initiative, such as:

(1) Failure of the Administration to conduct an inquiry before embracing a standard,
(2) Refusal to allow public scrutiny of the chosen encryption algorithm(s), which is the normal procedure for testing a cryptographic scheme, and
(3) Failure of the administration to address the policy questions raised by the Clipper Chip, such as whether the right balance between privacy and law-enforcement needs has been struck.

C. In other words, they do not address complaints about the federal government's *process* in embracing the Clipper Chip system. They do, however, attempt to address some of the substantive legal and Constitutional questions raised by the Clipper Chip and Digital Telephony initiatives.

II. Hard Questions from Law Enforcement

A. In trying to clarify my own thinking about the possible Constitutional issues raised by the government's efforts to guarantee access to public communications between individuals, I have spoken and argued with a number of individuals who are on the other side of the issues from me, including Dorothy Denning and various respresentatives of the FBI, including Alan McDonald.

B. McDonald, like Denning and other proponents both of Digital Telephony and of a standard key-escrow system for cryptography, is fond of asking hard questions: What if FBI had a wiretap authorization order and couldn't implement it, either because it was impossible to extract the right bits from a digital-telephony data stream, or because the communication was encrypted? Doesn't it make sense to have a law that requires the phone companies to be able to comply with a wiretap order?

C. Rather than respond to these questions, for now at least let's ask a different question. Suppose the FBI had an authorization order for a secret microphone at a public restaurant. Now suppose it planted the bug, but couldn't make out the conversation it was authorized to "seize" because of background noise at the restaurant. Wouldn't it make sense to have a law requiring everyone to speak more softly in restaurants and not to clatter the dishes so much?

D. This response is not entirely facetious. The Department of Justice and the FBI have consistently insisted that they are not seeking new authority under the federal wiretap statutes ("Title III"). The same statute that was drafted to outline the authority for law enforcement to tap telephonic conversations was also drafted to outline law enforcement's authority to capture normal spoken conversations with secret or remote microphones. (The statute was amended in the middle '80s by the Electronic Communications Privacy Act to protect "electronic communications," which includes e-mail, and a new chapter protecting _stored_ electronic communications was also added.)

E. Should we understand the law the way Digital Telephony proponents insist we do--as a law designed to mandate that the FBI (for example) be guaranteed access to telephonic communications? Digital Telephony supporters insist that it merely "clarifies" phone company obligations and governmental rights under Title III. If they're right, then I think we have to understand the provisions regarding "oral communications" the same way. Which is to say, it would make perfect sense to have a law requiring that people speak quietly in public places, so as to guarantee that the government can bug an oral conversation if it needs to.

F. But of course I don't really take Digital Telephony as an initiative to "clarify" governmental prerogatives. It seems clear to me that Digital Telephony, together with the "Clipper" initiative, prefigure a government strategy to set up an information regime that precludes truly private communications between individuals who are speaking in any way other than face-to-face. This I think is an expansion of government authority by almost any analysis.

III. Digital Telephony, Cryptography, and the Fourth Amendment

A. In talking with law enforcement representatives such as Gail Thackeray, one occasionally encounters the view that the Fourth Amendment is actually a _grant_ of a Constitutional entitlement to searches and seizures. This interpretation is jolting to those who have studied the history of the Fourth Amendment and who recognize that it was drafted as a limitation on government power, not as a grant of government power. But even if one doesn't know the history of this amendment, one can look at its language and draw certain conclusions.

B. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

C. Conspicuously missing from the language of this amendment is any guarantee that the government, with properly obtained warrant in hand, will be _successful_ in finding the right place to be searched or persons or things to be seized. What the Fourth Amendment is about is _obtaining warrants_--similarly, what the wiretap statutes are about is _obtaining authorization_ for wiretaps and other interceptions. Neither the Fourth Amendment nor Title III nor the other protections of the ECPA constitute an law-enforcement _entitlement_ for law enforcement.

D. It follows, then, that if digital telephony or widespread encryption were to create new burdens for law enforcement, this would not, as some law-enforcement representatives have argued, constitute an "effective repeal" of Title III. What it would constitute is a change in the environment in which law enforcement, along with the rest of us, has to work. Technology often creates changes in our social environment--some, such as the original innovation of the wiretap, may aid law enforcement, while others, such as powerful public-key cryptography, pose the risk of inhibiting law enforcement. Historically, law enforcement has responded to technological change by adapting. (Indeed, the original wiretaps were an adaptation to the widespread use of the telephone.) Does it make sense for law enforcement suddenly to be able to require that the rest of society adapt to its perceived needs?

IV. Cryptography and the First Amendment

A. Increasingly, I have come to see two strong links between the use of cryptography and the First Amendment. The two links are freedom of expression and freedom of association.

B. By "freedom of expression" I mean the traditionally understood freedoms of speech and the press, as well as freedom of inquiry, which has also long been understood to be protected by the First Amendment. It is hard to see how saying or publishing something that happens to be encrypted could not be protected under the First Amendment. It would be a very poor freedom of speech indeed that dictated that we could *never* choose the form in which we speak. Even the traditional limitations on freedom of speech have never reached so far. My decision to encrypt a communication should be no more illegal than my decision to speak in code. To take one example, suppose my mother and I agree that the code "777", when sent to me through my pager, means "I want you to call me and tell me how my grandchild is doing." Does the FBI have a right to complain because they don't know what "777" means? Should the FBI require pager services never to allow such codes to be used? The First Amendment, it seems to me, requires that both questions be answered "No."

C. "Freedom of association" is a First Amendment right that was first clearly articulated in a Supreme Court case in 1958: NAACP v. Alabama ex rel. Patterson. In that case, the Court held that Alabama could not require the NAACP to disclose a list of its members residing in Alabama. The Court accepted the NAACP's argument that disclosure of its list would lead to reprisals on its members; it held such forced disclosures, by placing an undue burden on NAACP members' exercise of their freedoms of association and expression, effectively negate those freedoms. (It is also important to note here that the Supreme Court in effect recognized that anonymity might be closely associated with First Amendment rights.)

D. If a law guaranteeing disclosure of one's name is sufficiently "chilling" of First Amendment rights to be unconstitutional, surely a law requiring that the government be able to read any communications is also "chilling," not only of my right to speak, but also of my decisions on whom to speak to. Knowing that I cannot guarantee the privacy of my communications may mean that I don't conspire to arrange any drug deals or kidnapping-murders (or that I'll be detected if do), but it also may mean that I choose not to use this medium to speak to a loved one, or my lawyer, or to my psychiatrist, or to an outspoken political activist. Given that computer-based communications are likely to become the dominant communications medium in the next century, isn't this chilling effect an awfully high price to pay in order to keep law enforcement from having to devise new solutions to new problems?

V. Rereading the Clipper Chip announcements

A. It is important to recognize that the Clipper Chip represents, among other things, an effort by the government to pre-empt certain criticisms. The language of announcements makes clear that the government wants us to believe it has recognized all needs and come up with a credible solution to the dilemma many believe is posed by the ubiquity of powerful cryptography.

B. Because the government is attempting to appear to take a "moderate" or "balanced" position to the issue, its initiative will tend to pre-empt criticisms of the government's proposal on the grounds of *process* alone.

C. But there is more to complain about here than bad process. My rereading of the Clipper Chip announcements will reveal that the government hopes to develop a national policy that includes limitations on some kinds of cryptography. Take the following two statements, for example:

D. 'We need the "Clipper Chip" and other approaches that can both provide law-abiding citizens with access to the encryption they need and prevent criminals from using it to hide their illegal activities.'

E. 'The Administration is not saying, "since encryption threatens the public safety and effective law enforcement, we will prohibit it outright" (as some countries have effectively done); nor is the U.S. saying that "every American, as a matter of right, is entitled to an unbreakable commercial encryption product." '

F. It is clear that neither Digital Telephony nor the Clipper Chip make any sense without restrictions on other kinds of encryption. Widespread powerful public-key encryption, for example, would render useless any improved wiretappability in the communications infrastructure, and would render superfluous any key-escrow scheme.

G. It follows, then, that we should anticipate, consistent with these two initiatives, an eventual effort to prevent or inhibit the use of powerful private encryption schemes in private hands.

H. Together with the Digital Telephony and Clipper Chip initiatives, this effort would, in my opinion, constitute an attempt to shift the Constitutional balance of rights and responsibilities against private entities and individuals and in favor of law enforcement. They would, in effect, create _entitlements_ for law enforcement where none existed before.

I. As my notes here suggest, these initiatives may be, in their essence, inconsistent with Constitutional guarantees of expression, association, and privacy.

Filed Under: 1st amendment, 4th amendment, backdoors, clipper chip, crypto wars, encryption, free speech, law enforcement

EFF, ACLU Sue Government Over Warrantless Electronic Searches At The Border

from the still-in-US-territory,-but-none-of-your-rights-apply dept

If all goes well, we might have the US border join the rest of the United States in recognizing citizens' Fourth Amendment rights. The Supreme Court's Riley decision made it clear law enforcement needed to obtain warrants before searching people's cellphones. Unfortunately, the so-called "border exception" -- upheld by at least one court -- says securing the border is more important than recognizing people's rights.

The EFF and ACLU -- along with the 10 US citizens and one permanent resident they're representing -- are suing DHS, CBP, and ICE for violating the Constitutional rights of the plaintiffs by warrantlessly searching their devices. Not only did the government search their devices, but in some cases, held onto the devices for weeks. One plaintiff's phone is still in the hands of the CBP, having originally been taken from the plaintiff in January.

The filing [PDF] provides details of the plaintiffs' interaction with government agents at US borders. All plaintiffs were taken to secondary screening where they were coerced into handing over their devices and, in some cases, passwords. This is all being done with zero articulable suspicion or probable cause. Agents imply devices will be returned sooner if those they've detained are compliant. But even complicity can result in citizens having to leave their devices in the hands of the government.

Even when travelers comply with officers’ demands to unlock their devices or provide their device passwords, officers sometimes confiscate the devices anyway. For example, even though Ms. Alasaad provided the password to her phone, and CBP officers had already searched Mr. Alasaad’s unlocked phone, officers still confiscated both of the couple’s phones. CBP kept both phones for approximately 15 days.

These lengthy device confiscations cause significant harm. Many travelers, including Plaintiffs, rely on their electronic devices for their work and livelihoods, as well as for communicating with family members. Losing access to electronic devices and the information they contain for extended periods of time can disrupt travelers’ personal and professional lives. Confiscation of electronic devices is especially harmful to those who need, but do not have or cannot afford, replacement devices, and those who need but did not back up stored data.

As a result, the plaintiffs have spent thousands of dollars replacing devices the government kept without offering a legitimate law enforcement/national security reason for doing so. As the lawsuit points out, this type of behavior is unconstitutional.

When CBP and ICE officers confiscate electronic devices pursuant to their policies and practices for the purpose of searching those devices’ content, such confiscations violate the Fourth Amendment in at least three distinct ways:

a. First, these confiscations are not justified at their inception when they are affected absent probable cause.

b. Second, these confiscations are excessive in scope, because officers confiscate not just the locked devices they are unable to search at the port of entry, but also the unlocked devices they are able to search and that they sometimes have already searched.

c. Third, these confiscations are excessive in duration where the duration of confiscation of locked devices is unreasonable in relation to the time actually needed to search the devices.

In addition to the Fourth Amendment violations, there are also concerns about the First. A few of those participating in this lawsuit are journalists. CBP officers not only searched their phones, but questioned them directly about sources and subjects.

Even the plaintiffs who aren't journalists have valid First Amendment complaints. If the government's going to demand access to writings, photos, videos, and other forms of expression stored on electronic devices, this limits future expressive acts. People whose devices have been seized and searched are less likely to give the government as much to dig through the second time around. This means less writing, fewer photos, and steering clear of any artistic creation the government might somehow misconstrue as threatening, criminal, or simply critical of rote government abuse.

As the plaintiffs point out, these searches aren't Constitutional, but they are allowed by DHS and CBP policies -- which state agents may search and seize phones without reasonable suspicion. To that end, the lawsuit asks the court to find the policies officially unconstitutional and ban the government from searching devices at the border without a warrant.

It's a long shot, given the judicial branch's general deference to all things national security-related. But it will be nice to see the government explain how the Supreme Court's Riley decision somehow doesn't apply to American citizens just because they're entering or leaving the country.

Filed Under: 1st amendment, 4th amendment, border exception, border searches, cbp, computers, doj, ice, phones, warrantless searches
Companies: aclu, eff

Court: TSA Agents Can Be Shielded From Certain Civil Rights Lawsuits Because They're Too Important

from the doing-God's-work...-poorly dept

A First and Fourth Amendment lawsuit filed against a TSA agent and a handful of Philadelphia police officers has reached the 3rd Circuit Court of Appeals. Unfortunately, the court has decided the work TSA agents do, however incompetently, is too important to be in any way stifled by the threat of First Amendment lawsuits. [h/t Brad Heath]

Roger Vanderklok was attempting to fly from Philadelphia to Miami to participate in a half-marathon. He packed his heart monitor and watch inside something certain to be flagged by TSA agents 5-7% of the time: a PVC pipe with both ends taped shut.

In this case, a TSA employee did flag the "device" and had some questions about Vanderklok's PVC-and-wires package. Agent Charles Kieser engaged in a conversation with Vanderklok about the pipe, ultimately resulting in the TSA employee having Vanderklok arrested for threatening to smuggle a bomb onto a plane.

The details of this encounter diverge a bit, depending on who you ask. But they do not diverge nearly as much as Agent Kieser believes they do. The court notes in its decision [PDF] that Kieser's description of the incident does not align with that of a far more impartial observer.

Kieser testified on direct examination that Vanderklok was agitated and waved his arms in the air repeatedly during the secondary screening. On cross examination, he further elaborated on his assertion that Vanderklok was physically disruptive at the checkpoint. Surveillance video of almost the entire interaction was played during the cross examination of Officer Pinkney and Kieser’s testimony was shown to be largely inconsistent with the video.

Vanderklok's version of the story more closely aligns with the video. According to the traveler, he was cooperative throughout the incident and Kieser basically lied in order to have him arrested.

Vanderklok maintains that at all times he was patient and not agitated during the secondary screening but that Kieser was agitated and argumentative throughout. Kieser asserts essentially the opposite: that Vanderklok was belligerent during the secondary search. In Kieser’s telling, Vanderklok said, “I could bring a bomb through here any day I want and you’ll never find it.” (JA 8.) Vanderklok denies making that or any similar statement. He says that Kieser fabricated the statement after Vanderklok asked for a complaint form and stated his intention to report Kieser’s behavior. There were no other known witnesses to Vanderklok’s alleged statement.

After the screening was over, Vanderklok repacked his bag, thinking he was going to be boarding his flight. He requested a complaint form and headed for his plane where he was greeted by Philadelphia police officers. They arrested him for disorderly conduct and for threatening to place a bomb on a plane.

The lawsuit followed. In it, Vanderklok alleges a variety of First and Fourth Amendment violations. Most of those were dismissed at the lower level. Vanderklok only appealed his First Amendment retaliatory prosecution and Fourth Amendment malicious prosecution claims. Unfortunately for him, neither has been upheld. Jurisdictional issues prevent the interlocutory appeal of the Fourth Amendment dismissal, leaving Vanderklok with only the First Amendment claim to litigate at this level.

After a long discussion of the underlying issues and precedent, the Appeals Court arrives at the conclusion Agent Kieser can't be sued for violating Vanderklok's First Amendment rights with a retaliatory arrest. More unfortunately, the court decides to take a stance of this issue, setting precedent for all other cases to arise in its jurisdiction.

[A]s the role of the TSA has become prevalent in the lives of the traveling populace, disputes involving airport screening personnel may come up with some frequency, and the existence of a Bivens action for First Amendment retaliation is no longer something that we should assume without deciding. Today we hold that Bivens does not afford a remedy against airport security screeners who allegedly retaliate against a traveler who exercises First Amendment rights.

This leaves Bivens exactly where it was when it was decided: limited to Fourth, Fifth, and Eighth Amendment claims. The First Amendment isn't going to be allowed to join this small party. It also notes that its decision leaves people like Vanderklok somewhat screwed. The United States can substitute itself for certain federal employees facing lawsuits, rendering the litigation pointless by claiming sovereign immunity. Whether or not the government chooses to intercede in this case is irrelevant. The possibility that it might forces plaintiffs to plead these cases in state court.

So, although in such cases the United States would retain its sovereign immunity, state law tort claims against the individual could proceed. That would provide an alternative remedy for an airline passenger who suffers as a result of a TSA screener’s actionable conduct outside the scope of his employment. In instances where the TSA screener has acted within the scope of his employment, it is possible that no judicial remedy will exist if a Bivens action is not implied because the United States could substitute itself for the screener and claim sovereign immunity. But that is by design.

In Vanderklok's case, there's really nothing left for him now that the Appeals Court has shot him down.

Based on the District Court’s orders as they now stand, however, there are no alternative judicial remedies available to Vanderklok, because the District Court concluded that Kieser was not an investigative or law enforcement officer and there was no challenge as to whether Kieser acted within the scope of his employment.

Even though the court recognize it might be creating a situation where plaintiffs have zero legal options (beyond the useless TSA complaint form) when rights appear to be violated by TSA staffers, the court decides it's worth it because safety and security are more important than individual rights and remedies.

Here, Vanderklok asks us to imply a Bivens action for damages against a TSA agent. TSA employees like Kieser are tasked with assisting in a critical aspect of national security – securing our nation’s airports and air traffic. The threat of damages liability could indeed increase the probability that a TSA agent would hesitate in making split-second decisions about suspicious passengers. In light of Supreme Court precedent, past and very recent, that is surely a special factor that gives us pause.

[...]

Ultimately, the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context.

And here's the final attempt to balance the decision, which does nothing more than "suggest" TSA agents not act like Agent Keiser did.

We, of course, do not suggest that TSA screeners should act with disdain for passenger rights or that they can escape all the consequences of their bad behavior. Discipline by the government should be swift and certain, when its employees’ actions warrant it.

The government does a terrible job disciplining itself, as any number of critical reports on TSA agents clearly illustrates. There's across-the-board incompetence coupled with routine abuse of passengers. Add to this a certain amount of theft, longheld beliefs in behavioral junk science, and a pizza box recruiting system, and you have a walking disaster that contributes little to travel or safety. The court here says adding a Bivens remedy would "create a cure worse than the disease." But have they taken a close look at the "disease" lately?

Filed Under: 1st amendment, 4th amendment, bivens, charles kieser, civil rights, first amendment, fourth amendment, roger vanderklok, tsa

Politician Uses Bad Cyberharassment Law To Shut Down Critic; Critic Hoping To Have Law Struck Down

from the thank-you-for-calling-our-attention-to-this-terrible-law dept

Lots of anti-harassment laws have been written over the years. The creation of these laws has sped up as legislators look to find some way of handling cyberbullying and online harassment. These laws have been uniformly bad. Those that make it to governors' desks are often struck down shortly thereafter by courts.

The problem is legislators try to target certain behavior with these laws, but seldom consider the amount of protected speech that will be caught in the laws' webbing. Or maybe these thoughts never enter the minds of legislators, who tend to write these bills badly and broadly.

We've seen multiple statutes come tumbling down after a Constitutional challenge. Eugene Volokh -- along with Venkat Balasubramani -- is challenging Washington state's harassment law over its stripping of free speech protections.

A Washington state statute criminalizes (among other things) “mak[ing] an electronic communication to … a third party” “with intent to harass, … torment, or embarrass any other person” if the communication is made “[a]nonymously or repeatedly.” This deliberately extends beyond unprotected speech (such as true threats or libel). It deliberately extends beyond unwanted speech said to a particular person and forbids embarrassing speech said about that person. Repeatedly criticizing a politician on your blog, for instance, could send you to jail if a prosecutor and judge or jury concludes that you were intending to “harass,” “torment” or “embarrass.”

There are several problems with the law, not the least of which is its addition of anonymity to the list of criminal stipulation. As Volokh notes, the law could be used to imprison bloggers who repeatedly criticize politicians -- an activity the term "blogging" is pretty much synonymous with.

Raising the challenge is Richard Rynearson, a retired Air Force major who has repeatedly criticized politicians for failing to condemn the 2012 National Defense Authorization Act, which authorizes the indefinite detention of US citizens thanks to our engagement in the Forever War on Terrorism.

And it's no longer a hypothetical question of whether Washington's anti-harassment law can be used to prosecute people for criticizing politicians. There are potential criminal charges awaiting Rynearson, thanks to a local politician's decision to leverage this law against a critic.

Rynearson, of Bainbridge Island, has repeatedly written posts that criticize — but don't threaten — Clarence Moriwaki, a key activist behind the formation of the Bainbridge Island Japanese American Exclusion Memorial, commemorating the World War II internment of Japanese Americans.

He insists that those who condemn the internment should also strongly speak out against the government's indefinite detention powers in the war on terror, but that Moriwaki hasn't.

After Moriwaki obtained a temporary restraining order and filed a police report last spring, saying he was being harassed by incessant text messages and Facebook posts, investigators recommended that Rynearson be charged with cyberstalking.

A deputy prosecutor in Kitsap County suggested in an email to Rynearson's lawyer in that matter the office might file charges if his behavior continued, but he has not been charged.

Volokh and Balasubramani have filed a motion [PDF] asking the court for an immediate injunction preventing the enforcement of the law while it's being challenged in court. Hopefully, this temporary injunction will be followed by a permanent ban on enforcement, because it's an unconstitutional law.

The breadth of the statute extends in several dimensions. First, the intent provision — sweeping in speech that a jury might find was intended to “harass, intimidate, torment, or embarrass any other person” — reaches broadly. The terms “harass, intimidate, torment, or embarrass” are not defined by the statute. The Washington Supreme Court, in a case examining the similarly-worded telephone-harassment statute, has defined “intimidate” to include “compel[ling] to action or inaction (as by threats),” Seattle v. Huff, 767 P.2d 572, 576 (Wash. 1989), but it did not provide a definition for the other proscribed purposes.

When statutory terms are undefined, however, Washington courts generally give them their ordinary meaning, including the dictionary definition. See id. (defining “intimidate” by reference to definition in Webster’s Third New International Dictionary). The dictionary definition of “harass” includes “to vex, trouble, or annoy continually or chronically,” Webster’s Third New International Dictionary, Unabridged (online ed. 2017), and the meaning of “torment” includes “to cause worry or vexation to,” id. Finally, “embarrass” means “to cause to experience a state of self-conscious distress.” Id. As a result, even public criticisms of public figures and public officials could be subject to criminal prosecution and punishment if they are seen as intended to persistently “vex” or “annoy” those public figures, or to embarrass or make them “self-conscious” about something.

The granting of a temporary injunction rests on the plaintiff's ability to prove he's being harmed. To date, Rynearson hasn't been arrested, but the local prosecutors have refused to say whether they're taking any action or are dropping the complaint against the blogger. So, it's not a case of hypotheticals. Others criticized by Rynearson could file similar complaints under the harassment law, hoping to nudge prosecutors towards bringing criminal charges.

The permaban, however, hinges on the First Amendment. Given the language used in the law, it certainly doesn't appear the statute can be read to steer clear of infringements on protected speech. This law was passed in 2004, but no one felt like abusing it to silence criticism until just recently. Now, the law will finally be examined by a federal court where it's unlikely to withstand Constitutional scrutiny.

Filed Under: 1st amendment, anti-harassment, cyber harassment, free speech, harassment, washington

Third Circuit Appeals Court Establishes First Amendment Right To Record Police

from the another-circuit-embraces-the-inevitable dept

Early last year, a federal court judge decided filming police officers was not protected by the First Amendment. How the court arrived at this conclusion was by narrowly defining the First Amendment as only protecting "expressive" speech. Simply documenting activity was somehow not covered by the First Amendment, according to the government's theory (the city of Philadelphia, in this case).

According to the district court, expression is key. It was the wrong conclusion to reach, but it helped some Philadelphia police officers escape being held accountable for retaliatory arrests of citizen photographers. Even worse, it created a chilling effect for citizen photographers in the court's jurisdiction, giving them a publish or die be arrested mandate.

At that time, it seemed unlikely the Third Circuit Appeals Court would overturn its own precedential rulings. The Appeals Court had never gone so far as to establish a First Amendment right to record public officials. In fact, precedent had mostly sided with law enforcement officers who had been sued for shutting down recordings. An affirmation on appeal would have resulted in a circuit split that could only be resolved if and when the Supreme Court chose to take up a case directly related to this issue.

Fortunately, the Third Circuit Court has reversed the lower court's finding, at least in terms of the First Amendment. This adds to the list of circuits already viewing recordings of cops as protected speech. The issue appears to be (slowly) resolving itself without the Supreme Court's assistance.

The ruling [PDF] is a fantastic read, at least as far as its handling of the First Amendment goes. The opening makes it clear the lower court screwed this up badly. [h/t Brad Heath]

This case involves retaliation. Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Department’s official policies recognized that “[p]rivate individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties.” No party contested the existence of the First Amendment right. Yet the District Court concluded that neither Plaintiff had engaged in First Amendment activity because the conduct—the act of recording—was not sufficiently expressive. However, this case is not about whether Plaintiffs expressed themselves through conduct. It is whether they have a First Amendment right of access to information about how our public servants operate in public.

Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.

This establishes citizen photography as protected speech, no matter what the photographer's intent is. The protection here has very little to do with expression, no matter how much the defendants wish it was. Instead, it has everything to do with access.

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

[...]

In sum, under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas.

In the Third Circuit, cops can no longer expect to shielded from lawsuits related to shutting down citizens' recording efforts.

As was noted by the court, the right likely should have been established at the time the incident took place (2014).

In 2011 the Department published a memorandum advising officers not to interfere with a private citizen’s recording of police activity because it was protected by the First Amendment. In 2012 it published an official directive reiterating that this right existed. Both the memorandum and directive were read to police officers during roll call for three straight days. And in 2014, after the events in our case and the occurrence of other similar incidents, the Department instituted a formal training program to ensure that officers ceased retaliating against bystanders who recorded their activities.

Unfortunately, the court still sides with the officers, stating that precedent from various circuits did not divorce the act of recording entirely from the concept of "expression." At the point the arrests occurred, it may have seemed reasonable to shut down citizens who attempted to record police if they couldn't clearly state an "expressive" reason for doing so. And that's apparently ok even if the officers had received repeated instructions from their supervisors about respecting the public's right to record.

The dissent disagrees with this conclusion. It wasn't just court precedent and the PD's own directives. Officers also should have been aware of the DOJ's directive along the same lines, which was handed down in 2012 to all local law enforcement agencies urging them to respect the public's "right to record."

With all of this, it is indisputable that all officers in the Philadelphia Police Department were put on actual notice that they were required to uphold the First Amendment right to make recordings of police activity. From a practical perspective, the police officers had no ground to claim ambiguity about the boundaries of the citizens’ constitutional right here.

Even absent this wealth of directives, any officer should have "reasonably" known retaliating against citizens for recording in public was the wrong way to handle this.

A reasonable police officer would have understood, first-hand, the significance of this proliferation of personal electronic devices that have integrated image capture into our daily lives, making it a routine aspect of the way in which people record and communicate events. Apart from any court ruling or official directive, the officers’ own lived experience with personal electronic devices (both from the perspective of being the one who is recording and one who is being recorded) makes it unreasonable to assume that the police officers were oblivious to the First Amendment implications of any attempt by them to curtail such recordings.

The upshot is the judicial enshrinement of the right to record police. The downside for the plaintiffs is the officers can't be sued for violating what should have been considered a clearly established right, even before the Appeals Court decision.

The way things are going, the Supreme Court may never have to address the issue. As the presiding judges note (both in the opinion and during oral arguments), the establishment of this right across the nation is inevitable. As more circuits address the issue head-on, the rulings should result in further First Amendment wins.

As a side note, the oral arguments are an amazing watch. The government's lawyer desperately wants the discussion to center on questions of immunity, but the court is far more interested in how he intends to argue speech must be tied to expressive intent to receive First Amendment protections. The fun starts about 19:45 into the recording. By the time a judge brings up the Zapruder recording ten minutes later, you almost feel sorry for the government's legal rep.

Filed Under: 1st amendment, filming police, first amendment, free expression, recording police, third circuit