Institute For Justice Survey Shows How Philadelphia's Forfeiture Program Preyed On Poor Minorities

from the I-guess-the-gov't-feels-minorities-just-haven't-been-oppressed-enough dept

The Institute for Justice managed to kill off most of Philadelphia's severely abused civil forfeiture program in 2018. Litigation resulted in a consent decree that banned law enforcement from seizing cash amounts less than $250 and seizures of less than $1,000 were forbidden unless accompanied by criminal charges or if the seizure was to be used as evidence in a trial.

This consent decree was necessary because the Philly PD had abused the system for years, taking minute amounts of cash off anyone they arrested as part of a catch-and-release program where alleged criminals were free to go but the PD held onto the cash. Officers were also caught buying seized houses at auction, flipping them to turn a profit, and incentivizing even more bogus property seizures.

Of course, the PD took the "evidence" loophole and ran with it, seizing vehicles as supposedly instrumental to prosecutions that never happened before auctioning them off and pocketing the money.

The Institute for Justice has doubled back on the impetus of its lawsuit against the city of Philadelphia, surveying victims of forfeiture programs and coming up with plenty of reasons why residents should be thrilled these programs are now (mostly) dead.

Its report [PDF] on Philly forfeiture surveyed 407 residents, resulting in data that shows the PD targeted minorities frequently and poor minorities most frequently of all.

The demographic characteristics of Philadelphia forfeiture victims look quite different from those of Philadelphians overall. Figure 1 disaggregates the racial and ethnic makeup of the sample, showing the large majority of respondents were Black. Indeed, as Figure 2 shows, Philadelphia forfeiture victims are more likely to be Black than the general population. They are also more likely to earn lower incomes and be unemployed and less likely to have a college degree or own their homes. These results suggest Philadelphia’s civil forfeiture machine disproportionately entangled members of disadvantaged communities.

This is partly a result of biased policing efforts, which continues to be a problem for law enforcement everywhere, not just in Philadelphia. But targeting low income residents also ensured the Philly PD would be more likely to retain ownership of seized property. Residents making less than $50,000 a year had lower amounts taken from them and often lacked the funds to seek their property's return. With legal fees approaching $3,500 for a successful return effort, most chose to simply walk away from the forfeited property, rather than spend time and money they didn't have fighting against a system designed to deter them from retrieving seized property.

When it comes to forfeiture in Philadelphia, no job is too small:

Police seized as little as $25 in cash, a cologne gift set worth $20 and crutches.

As the report points out, the median value for seized property was just $600. More than 50% of seizures were amounts less than $600. Nearly 70% were for less than $2,000. Less than one-quarter were for more than $3,000 -- an amount that might turn a legal battle for the return of property into a breakeven effort.

But even the initial step in recovering property was often bypassed by the city. You can't try to reclaim property if there's no record of the police taking it from you -- something police officers appear to have used to their advantage.

More than half of respondents—58%—never received a receipt for their property at the time of seizure, and two thirds did not receive any information from police about how to begin the process of getting their property back. A simple receipt may not sound like much in the grand scheme of the complex civil forfeiture process, but people who received a receipt at the time of seizure were eight times more likely to get their property back than those who did not.

As for the argument that confiscating cologne sets and crutches is essential to fighting crime, the stats don't back that up. In most cases, forfeitures were completely removed from criminal convictions or even criminal charges.

Of those respondents who ultimately lost their property to forfeiture, more than half (56%) were never charged with a crime, and three-quarters were never found guilty of any wrongdoing—that is, they were not convicted of a crime, nor did they enter into any sort of plea deal with the court.

As we've covered extensively at Techdirt, abusive forfeiture programs aren't unique to Philadelphia. They're everywhere. It's only in recent years that legislators have decided to do something about abuses entities like the Institute of Justice have highlighted, reported on, and sued about for years. Things are changing for the better in many places, but more work still needs to be done to push cops back to earning their money honestly, rather than just taking stuff because they can.

Filed Under: asset forfeiture, bigotry, civil asset forfeiture, legalized theft, philadelphia, poverty, racism
Companies: institute for justice

Josh Hawley: The War On Men (?) Is Driving Them To Porn And Video Games (Things Many Men Like?)

from the lolwut? dept

If ever there were the walking, talking embodiment of hypocrisy in modern American politics, surely Josh Hawley would be a viable avatar for such a creature. There are few better at saying one thing and doing another than he. He's a free speech advocate... who thinks social media sites should be sued for their choices on speech on their platforms. Josh Hawley loves to talk about how much he's been canceled... despite being a sitting US Senator and being given pages in massive newspapers in order to say all of that. Josh Hawley hates discriminating against folks over their politics... except when it's against the folks who's politics he doesn't like. And, finally, Hawley is a "constitutional lawyer" who, by some measure, participated in an unconstitutional attempt to overthrow an election.

So forgive me if I can but laugh at Hawley's recent speech at the National Conservatism Conference about how the "war on men" is driving men to such vile hobbies as video games and pornography.

“Responsibility is one of God’s greatest gifts to mankind, and men must be held responsible for their actions,” Hawley said. “Still, can we be surprised that after years of being told they are the problem, that their manhood is the problem, more and more men are withdrawing into the enclave of idleness, and pornography, and video games?”

So, here's the thing: I am a man. Not in the grandiose sense of course. I am only mildly "manly", whatever the hell that means. But I am a "male" in the traditional sense of the word. And before I ever realized that anyone might be critical of such man-ness, I had already played plenty of video games and (sorry Mom) had seen plenty of pornography. Nobody's critique of any of my behavior led me to video games or pornography. The awesomeness of video games did the former and the natural human curiosity that comes with puberty did the latter.

And I'm not particularly a creature of the left and yet I have never felt any of this war on men. Or Christmas. Or the troops. Or any of the other trumped up moral panics that get trotted out far too often just to rile everyone up. Perhaps I'm lucky... but I doubt it. When Hawley says men are being "told they are the problem", the obvious question is "for what?" If the answer is being assholes, well, society is changing and men can't get away with being assholes in the way they far too often used to. That isn't a war on men; it's a war on assholes. And leave video games and porn out of it.

And, frankly, Hawley's "cure" for all of this, um, leaves much to be desired.

Hawley ended his speech with a call to fight the war on men by increasing the number of manufacturing jobs in the U.S. and creating new tax credits for getting married. If successful, a record number of men might put down their dicks and virtual assault rifles to rejoin the patriarchy.

What a silly thing to say! Dear men, have we a deal for you! We have a great factory job making widgets for you and the only cost to you is you have to ignore your own biology!

But that's how you know how performative this all is. Hawley knows there is no serious war on men. He knows that video games and pornography aren't some massive problem to be solved. And, most importantly, he knows that his constituents aren't as smart as he is and so they aren't aware of those premises. So, instead of leading, he plays to that base to build his popularity and get reelected.

Filed Under: josh hawley, manliness, moral panic, porn, video games

Congress Tries To Ram The Ill-informed INFORM Bill Into The Must-pass NDAA

from the ill-considered-with-ill-effect dept

Congress is at it again, trying to legislate without bothering to understand the problems they are ostensibly trying to fix. This time it's with the INFORM Consumers Act, S.B. 936, which, instead of debating further, some of its sponsors are trying to ram through as an amendment to the must-pass NDAA. Which itself is a clue that there's something wrong with this bill, because if the only way to become law is to avoid further scrutiny, then that's exactly when such scrutiny is needed.

At least this time the proposed bill doesn't take direct aim at Section 230 or antitrust, and unlike some other bills this one is at least trying to target something resembling an actual policy problem. But as is so often the case with these "let's make Internet platforms responsible for everything wrong with the world" bills, it still doesn't actually fix the problem it's trying to solve.

The problem that this bill is supposedly tackling is that sometimes the products people buy online can be defective or dangerous, but then sometimes consumers can have difficulty finding the seller responsible to try to hold liable for any resulting harm. The apparent goal of the INFORM Consumers Act is to make such sellers more findable and thus more accountable, but (a) it won't really, and (b) it will create all sorts of other problems that ultimately will hurt consumers (and others) instead.

The bill is flawed both in its concept and its execution. At its core, the essential failing is that instead of directly targeting the wayward vendors concerning Congress, the bill instead aims to conscript online marketplaces into formally policing online sellers, which is itself of dubious effectiveness as a regulatory strategy, let alone of dubious doctrinal consistency regarding how tort law works or of dubious constitutionality regarding how state action works. In particular, the bill wants to obligate all online marketplaces, of every size and stripe (see the definition at Section (2)(e)(4)), to collect seller information (Section (2)(a)(1)), verify it (Section (2)(a)(2)), display it (Section (2)(b)(1)), and then terminate any seller's account if they are out of compliance (see Section (2)(b)(4)). To the drafters these requirements may seem like small asks, but in practice they are far from it, especially as wrapped up in this overall legislative language.

For one thing, even just asking for all this seller information creates all sorts of privacy problems, particularly for sellers who are individual people, who would have to supply all sorts of personal details, including tax IDs (Section (2)(a)(1)(A)(iii)), which may well be their social security numbers. And then the marketplaces would have to somehow safely store this government-demanded honeypot of deliciously sensitive of personal information that other regulation has actively been trying to deter them from collecting at all. (The House version of the bill, H.R. 5502, at least addresses this concern, albeit with a handwavy, "Nerd harder," sort of demand of the platforms (see Section (1)(a)(4)).)

Next, policing this information is not something that a marketplace would necessarily have either the resources or competency to do, especially not at the scale the law would demand. Being forced to terminate accounts for inadequate compliance also raises due process concerns for both the marketplace and any legitimate seller so affected. And such terminations are not without consequence, including for consumers who will now have to face higher prices, lack of supply for the products they seek as vendors are driven offline entirely, or even more risk as everyone is now forced to turn to offshore marketplaces not subject to laws like these and ultimately even less accountable to American consumers than the online marketplaces bills like this are obviously intending to target.

Meanwhile, even the part of the bill that forces platforms to display seller information creates a problem with compelled speech (Section (2)(b)(1)(A)(ii)). While commercial speech can sometimes be proscribed in certain ways without offending the First Amendment, a law drafted as broadly as this one is unlikely to be able to demonstrate the narrow tailoring required to surmount that constitutional hurdle. Especially when it acknowledges with its own exceptions how unnecessary some of its requirements are. Fortunately, it avoids an additional privacy problem by allowing vendors who only have a personal phone number or residential address to not have that information posted publicly (Section (2)(b)(2)(A)(i) and (iii)). Which is good, because if bills like these were to make it functionally impossible for entrepreneurial Americans to avail themselves of ecommerce, it wouldn't be good for them, the economy, or consumers who would have liked to buy their products. But, then again, since, by its own terms, the bill acknowledges that there may be more pragmatic ways of addressing vendor accountability, its overly prescriptive approach, which still lumps far too many dissimilar vendors together with identical requirements, is unlikely to pass constitutional muster. And its practical effect will still amount to being a gratuitous burden on vendors and the online marketplaces they depend on to conduct their businesses, needlessly making it more difficult and expensive to do so.

Then, on top of these drafting infirmities, the House version of this bill would also give state attorney generals enforcement powers (Section (1)(d)), which is always a fraught exercise when it comes to Internet commerce, because it allows some states to exert an effective veto power over online platforms that other states might prefer to benefit from. But even the FTC enforcement power the bill proposes raises issues as well (Section (2)(c)(1)). It may be proper for the FTC to go after any vendor who dupes consumers into purchasing from them, including with the illusion of accountability. But as long as consumers are on notice that they may not be able to track down the vendor later, and not deceived into believing otherwise before making their purchase, then they are as empowered to make their purchasing decisions as the FTC has any business requiring. If consumers need more information before making their purchasing decisions, then that is a pressure they can put on the vendors or online marketplaces to deliver. We don't need a law to force it, especially not one as blunt in its effects as this one.

In fact, everything about this bill is fatally blunt. Although it in theory only applies to "high volume" sellers, the definition of high volume can reach all sorts of casual sellers.

The term “high-volume third party seller” means a participant on an online marketplace's platform who is a third party seller and who, in any continuous 12-month period during the previous 24 months, has entered into 200 or more discrete sales or transactions of new or unused consumer products resulting in the accumulation of an aggregate total of $5,000 or more in gross revenues. (Section (2)(e)(3)*

Also, even if some sort of law might be required to address the sales of dangerous or defective goods, there is nothing in this bill to restrict it to the sales of just these sorts of items. The requirements of the INFORM Act could just as easily reach vendors who sell books, CDs, or t-shirts, even if they only sell them periodically.

The term "consumer product" means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed). (Section (2)(e)(2) (citing 15 USC Section 2301(1)))

Given the expressive nature of these products, the mandatory identification requirements of a seller is something that directly offends the First Amendment's right of anonymous speech. But even less dramatically, it's still a bill that is utterly pointless, yet no less cumbersome, for vendors who sell all sorts of non-dangerous goods.

Or for any possible platform that might enable any sort of sales. While the drafters of this bill might have had certain online marketplaces and certain products in mind when they drafted it, neither its specific details, nor its general regulatory approach of burdening platforms with all responsibility for making sure bad things never happen through the Internet, are nearly so limited.

And that itself is a bad thing.

* The House version of the bill limits disclosure requirements to "any high-volume third party seller with an aggregate total of $20,000 or more in annual gross revenues on such online marketplace," but since the statutory definition is still the lower amount, this alternate term ends up adding in more confusion, rather than relief.

Filed Under: inform act, information, marketplaces, privacy

Transparency Activists Dump 1.8 Terabytes Of Police Helicopter Surveillance Footage

from the you've-let-us-down,-Dr.-Whirlington-Spinblade dept

Let's just get right into this and let Distributed Denial of Secrets (DDoS) harvest some accolades and encouragement to continue to deploy its particular brand of intrusive transparency on historically secretive entities.

The transparency activist group Distributed Denial of Secrets, or DDoSecrets, posted a 1.8-terabyte trove of police helicopter footage to its website on Friday. DDoSecrets cofounder Emma Best says that her group doesn’t know the identity of the source who shared the data and that no affiliation or motivation for leaking the files was given. The source simply said that the two police departments were storing the data in unsecured cloud infrastructure.

The lesson here (one of many) is that if you can't adequately protect your secrets, maybe you don't deserve to have them. And there are plenty of secrets to be had here. It's not that people aren't aware police helicopters are circling overland at all hours of the day. Episodes of COPS and YouTube collections of high-speed chases have made that fact common knowledge.

The DDoS release shows law enforcement agencies aren't just deploying choppers to keep an eye on suspects in motion. They're also using them to engage in extended surveillance of people suspected of nothing, hovering over large gatherings and deploying infrared cameras to peer inside of buildings just for the fuck of it.

Putting your stuff in the cloud means opening up additional attack vectors for those seeking your secrets. That appears to be the root source of this new leak. What a time to be alive!

I mean, sure there's more surveillance than ever. But the reliance on (apparently unreliable) private contractors means government secrets are only a hack away with being shared with everyone on the planet. That's definitely good news for the policed, who often have no say in how they're surveilled and are routinely denied access to information about government surveillance tech.

There's an amazing amount of irony contained in this latest DDoS release. Just a couple of months ago, the Dallas PD was being raked over the coals by pissed off city officials for inexplicably deleting more than 22 terabytes of data. According to the cops, the city IT employee handling the transfer of data from the cloud to Dallas PD servers screwed things up, resulting in the mass deletion. Some of it was recoverable. Most of it wasn't. At best, 7.5 terabytes were permanently lost during the botched transfer.

Good news is in the eye of the beholder. Transparency enthusiasts will obviously love this new set of leaks from Distributed Denial of Secrets. And this new leak may allow the Dallas PD to recover more of the data it thought it had lost forever, as David Lee points out for Courthouse News Service.

Data transparency activists released a massive 600-hour leak of mostly Dallas Police Department helicopter footage, raising more questions about the city’s data security protocols three months after DPD admitted to a 22-terabyte deletion of case data that resulted in the release of criminal defendants awaiting trial.

I hate to laugh at the turntables, but try and spin this, DJ DPDPR. RAISE ALL THE QUESTIONS!

If an entity wants to be entrusted with the power to deploy warrantless surveillance provided it has enough downwash, it should be expected to protect the hundreds of hours of footage it's gathered. And if it can't manage a data transfer with losing at least a third of its 22 TB of data, it should probably allow transparency activists to perform its archival duties for it, considering how much better they are at preserving data and making it easily accessible.

Filed Under: dallas pd, helicopter video, police surveillance, surveillance, transparency
Companies: distributed denial of secrets

Israeli Malware Merchants NSO Group, Candiru Added To Commerce Department Export Blacklist

from the unwelcome-to-the-party,-pals dept

A couple of Israeli spyware purveyors have finally gotten themselves disinvited from the good graces of the federal government of the United States. The Commerce Department's Bureau of Industry and Security has amended its export regulations to hand NSO Group and the more mysterious Candiru a "presumption of denial," meaning they'll have to prove they're trustworthy again before US entities will be able to do business with them.

The new rules also make it more difficult for NSO and Candiru to sell their products using middlemen who aren't affected by the regulations.

In addition, the ERC [End-User Review Committee] also determined that no license exceptions should be available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule.

NSO and Candiru weren't the only ones affected by this amendment, but they're the most notable recipients of the export controls.

The ERC determined that NSO Group and Candiru be added to the Entity List based on § 744.11(b) of the EAR: Entities for which there is reasonable cause to believe, based on specific and articulated facts, that the entity has been involved, is involved, or poses a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such entities. Specifically, investigative information has shown that the Israeli companies NSO Group and Candiru developed and supplied spyware to foreign governments that used this tool to maliciously target government officials, journalists, businesspeople, activists, academics, and embassy workers.

Also added to the blacklist were two other malware purveyors located in countries the United States has a much frostier relationship with.

The ERC determined that Positive Technologies, located in Russia, and Computer Security Initiative Consultancy PTE. LTD., located in Singapore, be added to the Entity List based on their engagement in activities counter to U.S. national security. Specifically, these entities traffic in cyber exploits used to gain access to information systems, threatening the privacy and security of individuals and organizations worldwide.

US companies and agencies will now have to approach the Commerce Department and ask for permission to purchase exploits from these companies, with the presumption being that their requests will be denied. This effectively shutters a large and presumably profitable market for these companies. It also prevents US-based exploit developers from selling their discoveries to any of the affected companies. And it's just another reputational hit for NSO Group, which has been remarkably resilient, considering its now fighting a PR battle on multiple fronts while being dragged down by its long, sordid past.

That hasn't stopped it from complaining that this blacklisting is unfair. Here's the statement it gave to The Record after the publication of the export regulation amendment.

NSO Group is dismayed by the decision given that our technologies support US national security interests and policies by preventing terrorism and crime, and thus we will advocate for this decision to be reversed.

We look forward to presenting the full information regarding how we have the world’s most rigorous compliance and human rights programs that are based the American values we deeply share, which already resulted in multiple terminations of contacts with government agencies that misused our products.

That is hilarious. It will be fun seeing how NSO proves it has the "world's most rigorous compliance and human rights program" after it has been observed selling its products to countries with dismal human rights records. Combine that statement with its defense that it has no "visibility" into how its customers use its products and it's pretty clear the "rigorous compliance program" NSO claims to have is about 50% delayed reaction and 50% bullshit.

Filed Under: commerce department, entity list, export regulations, malware, spyware
Companies: candiru, nso group

Daily Deal: The 2021 Complete CompTIA Certification Prep Super Bundle

from the good-deals-on-cool-stuff dept

The 2021 Complete CompTIA Certification Prep Super Bundle has 16 courses to help you get ready to take various exams. Courses cover IT fundamentals, cybersecurity, networks, clouds, and more. It's on sale for $49. Use the code SAVE15NOV and get an additional 15% off of this bundle and all other items in the store.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Killing Website Comment Sections Wasn't The Brilliant Move Many Newsroom Leaders Assumed

from the muzzles-aren't-innovation dept

So for years we pointed out how the trend of news websites killing off their comment section (usually because they were too cheap or lazy to creatively manage them) was counterproductive. One, it killed off a lot of local, community value and engagement created within your own properties. Two, it outsourced anything vaguely resembling functional conversation with your community -- and a lot of additional impressions and engagement -- to Facebook. Despite the downsides everybody ran with the idea that comment sections were utterly irredeemable and unnecessary.

Turns out, much of the conventional wisdom driving those decisions wasn't so grounded in fact. This Poynter piece does a really good job revisiting whether killing the comment section was a good idea ten years on. It's true that negative comments in the comment section can tarnish a visitor's perception of the quality of an outlet's brand. But it's also true that the discussions outsourced to Facebook continue to also do that, they're just doing that over at Facebook. So many researchers argue that if you're going to have a discussion, you're probably better off having at locally at your site:

"Conversations on Twitter, Facebook and Instagram won’t stop. And the same research premise holds true — negative comments on those platforms will have a negative impact on the outlet’s credibility. So is it better to at least keep one forum where the outlet has control and the potential to monetize commenters into subscribers? And how do we make that forum as good as it can possibly be?"

If you recall, when most news empires over the last decade announced they were killing their comment sections, it was usually accompanied with some form of gibberish about how the decision was made because they just really "valued conversation" or wanted to "build better relationships." Sometimes newsroom managers would be slightly more candid in acknowledging they just didn't give enough of a shit to try very hard, in part because they felt news comments were just wild, untamable beasts, outside of the laws of physics and man, and irredeemable at best.

But again, as it turns out, none of that was true.

One recent experiment worked collaboratively with 24 Gannett newsrooms giving them four options: to turn off comments, to keep existing commenting systems in place, to use Vox Media’s "Coral" commenting system, but to use Coral’s commenting system and only allow subscribers to comment. You'll never guess what the study found:

"Turning off comments actually lowered the average time readers spent on the site, according to Stroud’s research.

And journalists, who have the most to lose from a harsh comment, didn’t have increased job satisfaction or feel differently about how the newsroom served the community when comments were eliminated."

While yes, many readers are often incoherent trolls, many other readers actually (gasp!) know what they're talking about, and their input and conversations can actually improve journalism. As is often evident here at Techdirt, sometimes the resulting conversation can correct something the author has gotten wrong, or give reporters insights into trends and ideas they'd never previously even considered. If modern news is actually a conversation, quality comments are a helpful extension of that conversation:

The Detroit Free Press’ Delgado sees involving reporters more routinely in the process as a potential solution. Having the journalist in the space with commenters can create a conversation between the newsroom and the community. It’s beneficial not just to readers, but to the reporters themselves.

“I know when I moderate comments, I’m a smarter, better journalist,” Delgado said. “I know what people are talking about, and you can start to see a lot of the ideas and theories that are resonating."

The problem wasn't so much the comment section, it was poor managers running news organizations in a country that doesn't properly fund journalism. And the study above does show that if you're not going to run a comment section well, you're better off not trying. But at the same time, a lot of these organizations did have the resources to do a better job at managing on-site community, it was just easier and cheaper to pretend comment sections were some irredeemable, malicious force we were all better off without to justify their corner cutting. That was always a narrow oversimplification.

The untapped irony is that many of these same major outlets that outsourced all discourse to Facebook over the last five to ten years, now complain incessantly about how Facebook has too much power over discourse, ad markets, and everything else. It's pretty rare you'll see anybody acknowledge that the decision to muzzle local communities and outsource all discourse to Facebook helped create at least some of the problems they're now complaining about.

Filed Under: comments, community, journalism, news

Fifth Circuit Says Man Can't Sue Federal Agencies For Allegedly Targeting Him After He Refused To Be An FBI Informant

from the hard-to-prove-anything-that-can't-be-confirmed-or-denied dept

The secrecy surrounding all things national security-related continues to thwart lawsuits alleging rights violations. The Fifth Circuit Court of Appeals has just dumped a complaint brought by Abdulaziz Ghedi, a naturalized American citizen who takes frequent trips to Somalia, the country he was born in. According to Ghedi's complaint, rejecting the advances of one federal agency has subjected him to continuous hassling by a number of other federal agencies.

The Appeals Court decision [PDF] opens with a paragraph that telegraphs the futility of Ghedi's effort, as well as the ongoing string of indignities the government has decided to inflict on people who just want to travel.

Abdulaziz Ghedi is an international businessman who regularly jets across the globe. Frequent travelers, however, are not always trusted travelers. In recent years, Ghedi has had repeated run-ins with one of America’s most beloved institutions: modern airport security.

The general indignities were replaced with seemingly more personal indignities when Ghedi decided he wasn't interested in working part-time for the feds.

Ghedi complains that ever since he refused to be an informant for the Federal Bureau of Investigation a decade ago, he has been placed on a watchlist, leading to “extreme burdens and hardship while traveling.”

This isn't a novel complaint. This has happened to plenty of immigrants and US citizens who visit countries the federal government finds interesting. Many, many Muslims have been approached by the FBI to work as informants. And many have reported their traveling experiences got noticeably worse when they refused to do so.

Without moving past a motion to dismiss, there can be no discovery. And national security concerns means there isn't going to be much to discover, even if a plaintiff survives a first round of filings.

Unsurprisingly, the Government refuses to confirm or deny anything.

That put Ghedi in the crosshairs of "a byzantine structure featuring an alphabet soup of federal agencies," as the court puts it. The DHS oversees everything. Day-to-day hassling is handled by the TSA (domestic travelers) and the CBP (international travelers). Ghedi saw more of one (CBP) than the other, but the TSA still handles screening of passengers and luggage, so he saw plenty of both.

The refusal to join the FBI as a paid informant apparently led to all of the following:

• an inability to print a boarding pass at home, requiring him to interact with ticketing agents “for an average of at least one hour, when government officials often appear and question” him;

• an SSSS designation on his boarding passes;

• TSA searches of his belongings, “with the searches usually lasting at least an hour”;

• TSA pat downs when departing the U.S. and CBP pat downs when returning to the U.S.;

• encounters with federal officers when boarding and deboarding planes;

• questioning and searches by CBP officers “for an average of two to three hours” after returning from international travel;

• CBP confiscation of his laptop and cellphone “for up to three weeks”;

• being taken off an airplane two times after boarding; and

• being detained for seven hours by DHS and CBP officials in Buffalo, New York in May 2012 and being detained in Dubai for two hours in March 2019.

Ghedi approached the DHS through its court-mandated redress program to inquire about his status twice -- once in 2012 and again in 2019. In both cases, the DHS refused to confirm or deny anything about his travel status or his placement on any watchlists that might result in enhanced screening and extended conversations with federal agents every time he flew.

Ghedi sued the heads of all the agencies involved, alleging rights violations stemming from his refusal to become an informant and his apparent placement on some watchlist operated by these agencies.

Ghedi brings two Fourth Amendment claims. The first alleges that the heads of the DHS, TSA, and CBP violated his Fourth Amendment rights through “prolonged detentions,” and “numerous invasive, warrantless patdown searches” lacking probable cause. The second alleges that the heads of the DHS, TSA, and CBP also violated his Fourth Amendment rights through their agents conducting “warrantless searches of his cell phones without probable cause.” The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures.”

The district court said he had no standing to sue. The Fifth Circuit says he does. But standing to sue doesn't matter if you sue the wrong people. The Appeals Court says there's a plausible injury alleged here, but it wasn't perpetrated by the named defendants.

Even though we hold that Ghedi has plausibly alleged an injury in fact, he still must satisfy standing’s second prong—that his injury is fairly traceable to these Defendants. Here Ghedi’s Fourth Amendment claims falter. That is because Ghedi bases his Fourth Amendment claims on TSA and CBP agents’ searching him and seizing his electronics. He argues these searches and seizures are atypical actions, even for people on the Selectee List. Yet instead of suing these agents directly, Ghedi has brought his Fourth Amendment claims against the heads of DHS, TSA, and CBP. Ghedi does not allege that any of these officials personally conducted or directed the searches or seizures he has experienced. And his allegations that his experiences are atypical cut against an inference that these agents are following official policy.

Not only that, but the court says Ghedi has never been prevented from traveling. At worst, traveling has become a constant hassle, marked by hours-long delays, unexplained device seizures, and plenty of unwanted conversations with federal agents. But ultimately Ghedi got where he was going and I guess that's good enough.

Ghedi never alleges that he was prevented from ultimately getting to his final destination. At most, these allegations lead to a reasonable inference that the Government has inconvenienced Ghedi. But they do not plausibly allege a deprivation of Ghedi’s right to travel.

There are some rights the court will recognize but this isn't one of them.

In short, Ghedi has no right to hassle-free travel. In the Supreme Court’s view, international travel is a “freedom” subject to “reasonable governmental regulation.” And when it comes to reasonable governmental regulation, our sister circuits have held that Government-caused inconveniences during international travel do not deprive a traveler’s right to travel.

And, putting the final nail in Ghedi's litigation coffin, the Appeals Court says the government's secrets may harm individuals but they can't harm their reputation… because they're secret.

As we noted at the outset, Ghedi’s status on the Selectee List is a Government secret. Simply put, secrets are not stigmas. The very harm that a stigma inflicts comes from its public nature. Ghedi pleaded no facts to support that the Government has ever published his status—one way or the other—on the Selectee List. His assertions that the Government has attached the “stigmatizing label of ‘suspected terrorist’” and “harm[ed] . . . his reputation” are legal conclusions, not factual allegations.

That's how it goes for litigants trying to sue over rights violations perpetrated by agencies engaged in the business of national security. Allegations are tough to verify because the government refuses to confirm, deny, or even discuss a great deal of its national security work in court. Ghedi could always try this lawsuit again, perhaps armed with FOIA'ed documents pertaining to his travels and the many agencies that make it difficult for him. But that's as unlikely to result in clarifying information for the same reason: national security.

Heads, the government wins. Tails, the plaintiff loses. Ghedi is still free to pursue lawsuits against the individual agents who hassled him, took his stuff, and tried to coerce him into becoming an informant, but given the national security implications and the ongoing existence of qualified immunity, it's just as likely he'd lose that suit as well.

Filed Under: 5th circuit, abdulaziz ghedi, civil rights, dhs, doj, fbi, informants, somalia

Funniest/Most Insightful Comments Of The Week At Techdirt

from the quotables dept

This week, our first place winner on the insightful side is an anonymous comment about the valuation of Trump's social network venture:

The fact a company with $300 million felt it necessary to steal free software, pretty much says all that needs to be said.

In second place, it's That One Guy talking about Nintendo's disastrously bad implementation of N64 games for the Switch:

Pirates yet again have the superior version

It all makes sense now, it wasn't so much that the ROM sites were providing competition in the available games so much as they'd allow people to see just how terrible the official offerings were compared to the unofficial ones and might have forced Nintendo to do more than the absolute bare minimum.

For editor's choice on the insightful side, we've got a brief exchange regarding the Association of American Publishers trying to withhold documents in the lawsuit against the Internet Archive. First, it's Stephen T. Stone noting the red flag:

Nothing says “something fishy is going on here” like trying to prevent discovery in a legal proceeding.

Next, it's Thad adding a caveat:

I'd probably amend that slightly and say that it's suspicious when a plaintiff wants to prevent discovery.

A defendant may have a very good reason to try to block discovery. See Devin Nunes's various vexatious suits trying to unmask anonymous critics.

Over on the funny side, our first place winner is an anonymous comment about the AAP documents:

They'd really love to give them the documents, but all parties haven't finished collectively deciding what price they want to charge.

In second place, it's Toom1275 on our post about the criminal defamation law police used to arrest a critic, responding to someone expressing their hope that the defendant can beat the charges:

"Beating" charges?

Next they're gonna call that assaulting law enforcement.

For editor's choice on the funny side, we've got a pair of references to closely related cartoons. First, it's MTL with a comment about the ongoing efforts of California prosecutors to get user info from Signal that Signal doesn't have:

A la Simpsons:

Dzzt OW!
Dzzt OW!
Dzzt OW!

Finally, it's Stephen T. Stone again, invoking a popular meme in response to the problems with Trump's SPAC deal:

We now go to Philip J. Fry for his comments on the matter.

That's all for this week, folks!

This Week In Techdirt History: October 31st - November 6th

from the at-the-time dept

Five Years Ago

This week in 2016, people were grappling with James Comey's surprise last-minute announcement that the Clinton email investigation was ongoing (and noting that it seemed to fly in the face of the FBI's ban on investigation disclosures), followed by the agency suddenly leaking like a sieve and opening an internal investigation into one of its own Twitter accounts. AT&T was making things up in an attempt to get its Time Warner acquisition approved, and Senator Wyden warned that the merger posed a massive threat to net neutrality. Meanwhile, the copyright office screwed over thousands of sites by changing its DMCA registration policies, YouTube finally buried the hatchet with Germany's GEMA, and the DOJ sued DirecTV over collusion on regional sports programming.

Ten Years Ago

This week in 2011, the fight was on over the ridiculously named E-PARASITE Act. We were disappointed to see GoDaddy support the bill despite being a site dedicated to theft under its definitions, and we were not at all surprised to see the US Chamber of Commerce make ridiculous arguments in favor. Many in the content industries were insisting that the bill wouldn't require rewriting the DMCA, even though its author admitted that's the plan. Then the campaign for support got really desperate: an astroturf group inflated the number of letters supposedly sent to Congress, Warner Bros. (which had just announced record profits) started pleading poverty and asking people to support the bill (part of a pattern with successful rightsholding companies), and somehow the MPAA even dredged up meaningless support from firefighters. Meanwhile, we highlighted the single best article explaining why the bill was bad.

Fifteen Years Ago

This week in 2006, Universal embarrassed itself when its lawyers didn't know about its marketing plans and sent cease-and-desist letters to fans participating in a guerilla campaign. It was also a big week for abusing the DMCA, and we took a look at how takedowns were used to silence critics and any content someone doesn't like. Following the big deal between record labels and YouTube, we learned how the deal was structured such that they didn't have to share any of the money with musicians, while a lot of other creators were starting to ask questions about what they would get out of industry deals with YouTube. Meanwhile, Google was getting an early start on making deals to pay viral video creators.

Filed Under: history, look back