Kentucky Judges Reject Proposal For More Warrant Approval Transparency

from the more-boilerplate-and-bullets-for-county-residents,-I-guess dept

Scrutiny of warrants and the judges who approve them has stepped up in Louisville, Kentucky after a no-knock raid ended in the killing of an innocent resident by police officers. The shooting of Breonna Taylor sparked protests, reform efforts, and at least one judge's personal moratorium on no-knock warrants.

Cops don't like to talk about their warrants. Affidavits are often filed under seal. Sometimes the seal is lifted once the warrant is served. In other cases, it takes a concerted effort and a court order to make these documents public.

Judges apparently don't like to talk about warrants either. At least, this appears to be the case in Jefferson County, where judges signing warrants are all but impossible to identify by their signatures.

[Charles] King’s was one of 231 Jefferson County search warrants executed since January 2019 and examined by the Kentucky Center for Investigative Reporting and WDRB News. That review found dozens of flashy loops, “scribble scrabble,” and identical swirls derived from an electronic image file. Few judges took the time to sign their whole name. Only one printed her last name underneath her signature.  

On the vast majority of search warrants — nearly 72% — the names of the judges who approved them were illegible.

The warrant that led to the raid of King's place contained a single paragraph of narrative -- one that made no mention of any efforts by officers to verify allegations of drug dealing -- and an illegible signature. This makes it impossible to tell who's approving obviously deficient warrant requests. It also makes it pretty easy to forge one, if one were so inclined.

While it's understandable that signatures will deteriorate over time, especially when the signature is in high demand, it's not like it's impossible to counteract this natural declination.

Jefferson District Court Judge Julie Kaelin, takes the extra step of printing her name beneath her signature.

The reason is simple, Kaelin says — she wants to be transparent.

“It is problematic to not be able to look at a warrant and see which judge signed it,” she said. “I don’t want anyone to ever think I’m hiding behind an illegible signature.”

This judge went one step further. She proposed a set of rules for warrant approval that would have increased accountability and transparency from all parties involved.

Under the proposed rule change, which was shared with and reviewed by KyCIR, conversations between judges and law enforcement officers seeking a warrant would be recorded; only specific judges could review a search warrant request on a given day; and a judge who refuses to grant a warrant would be required to file the documents with the Jefferson County Circuit Court Clerk.

Judge Kaelin hopes these measures would "boost confidence in the judiciary," which is always a good thing, especially when controversial searches are still commonplace. This would also cut down on "judge shopping" by law enforcement officers, who may find some judges more compliant (or less attentive) than others.

It appears most of the Jefferson County judiciary isn't interested in bettering its relationship with the people who pay their salaries. Following several days of deafening silence, the Jefferson District court system finally admitted it wasn't going to change anything about its warrant approval process.

The judges met Tuesday to consider the proposal in a secret meeting. In the days that followed, Jefferson District Court Chief Judge Anne Haynie and court administrator Kelsey Doren did not respond to repeated requests about the outcome of the meeting.

On Friday afternoon, Doren said via email that the proposal failed. Minutes from the District Court’s judges’ regular monthly meetings “are confidential,” she said. Doren did not respond to a request for an interview with Chief Judge Haynie.

So much for the presumed openness of the courts. And so much for being receptive to any incremental increases in accountability and transparency. It will be business as usual in Jefferson County, where deficient warrant requests are rewarded with illegible judicial approval. If residents are killed by cops during raids predicated on boilerplate affidavits, so be it. Who needs checks and balances when there's a drug war to be fought?

Filed Under: 4th amendment, judges, kentucky, secrecy, transparency, warrants

FBI Asks To Perform An Intrusive Search Of A Phone For Evidence It Doesn't Need From A Device That Probably Doesn't Belong To The Suspect

from the in-which-an-agent-seems-to-believe-'wild-speculation'-is-'probable-c dept

It looks like the FBI believes it should be able to pull pretty much anything from someone's phone for pretty much any reason. A recent warrant affidavit [PDF] submitted by Special Agent Brian De Jesus requests access to nearly everything contained on a cellphone abandoned in a car, supposedly by the suspect now being charged for being a felon in possession of a handgun.

The first three pages list everything the FBI potentially wants to search, including all call info, texts, emails, social media messages, recordings, photos, GPS data, calendar/contact contents, and anything else on the device that might designate ownership or create problems for the FBI when it searches the phone (malware, encryption, data destruction software, etc.).

The affidavit also asks the judge to grant the FBI permission to use biometric measures to unlock the phone, including thumbs, fingers, facial features, and irises/retinas. According to the request, the FBI may only use "objectively reasonable force" to ensure compliance. So that adds some Fifth Amendment concerns to the over-abundant Fourth Amendment issues.

It's anyone's guess how the criminal event preceding the stop of the suspect and the seizure of this phone supports a forensic search of the device. Here's how the FBI came to be in possession of the phone.

A Los Angeles Sheriff's deputy started following a car whose driver appeared to be intoxicated. This led to a short vehicle chase. The driver and passenger fled the vehicle after it hit a curb. The driver escaped. The passenger didn't. The passenger was patted down and a gun was discovered. Since the passenger was a convicted felon, his possession of a gun was a criminal offense.

That should have been the end of it. Officers had a criminal offense and a suspect and all the evidence they needed (criminal record, illegal handgun). Deputies went back to inventory the vehicle before towing it and found a phone. But turning this over to the feds (for the federal weapons charge) resulted in one agent putting his imagination into overdrive to justify an intrusive search of the device.

From my training, personal experience, and the collective experiences relayed to me by other law enforcement officers who conduct firearms investigations, I am aware of the following:

a. Persons who possess, purchase, or sell firearms generally maintain records of their firearm transactions as items of value and usually keep them in their residence, or in places that are readily accessible, and under their physical control, such as in their digital devices. It has been my experience that prohibited individuals who own firearms illegally will keep the contact information of the individual who is supplying firearms to prohibited individuals or other individuals involved in criminal activities for future purchases or referrals. Such information is also kept on digital devices.

b. Persons who also possess firearms, especially prohibited arms, sometimes jointly possess or share firearms with each other.

c. Many people also keep mementos of their firearms, including digital photographs or recordings of themselves possessing or using firearms on their digital devices. These photographs and recordings are often shared via social media, text messages, and over text messaging applications.

d. Those who illegally possess firearms often sell their firearms and purchase firearms. Correspondence between persons buying and selling firearms often occurs over phone calls, e-mail, text message, and social media message to and from smartphones, laptops, or other digital devices. This includes sending photos of the firearm between the seller and the buyer, as well as negotiation of price. In my experience, individuals who engage in street sales of firearms frequently use phone calls, e-mail, and text messages to communicate with each other regarding firearms that they sell or offer for sale. In addition, it is common for individuals engaging in the unlawful sale of firearms to have photographs of firearms they or other individuals working with them possess on their cellular phones and other digital devices as they frequently send these photos to each other to boast of their firearms possession and/or to facilitate sales or transfers of firearms.

That's a lot to extrapolate from finding a felon in possession of a gun. While this may be true in some cases, it's not objectively reasonable to assume that all or most felons illegally possessing handguns also engage in trafficking of illegal firearms or that they keep "records" of illicit purchases that were likely facilitated by people generally adverse to recordkeeping or generating receipts.

But that's not the most egregious extrapolation. The most vivid use of the FBI agent's imagination is the linking of the abandoned phone to the man deputies arrested. Remember, he was the passenger in this vehicle -- something observed by officers on the scene and noted in the agent's affidavit.

Deputies then conducted an inventory search of the abandoned Camry before towing it. During the search of the car, deputies found the SUBJECT DEVICE on the driver’s side floorboard. LASD seized the SUBJECT DEVICE as evidence. The SUBJECT DEVICE was later transferred to the custody of the FBI.

This phone most likely belongs to the driver -- the suspect that got away.

This is a fishing expedition masquerading as an FBI investigation. The FBI wants to look at the phone to find evidence of criminal acts. It already has all the evidence it needs to secure a conviction on illegal possession charges. They caught the guy with the gun. This search isn't going to add anything to the info the FBI already has. The evidence on hand is more than enough to move forward with a prosecution.

This is an attempt to find other stuff -- either to charge this suspect with or to find other people to go after. The instigating crime was alleged drunk driving and evasion of an attempted stop by the LASD. The passenger had nothing to do with the events that triggered his pursuit by LASD deputies. He just ended up being the only suspect the deputies could catch... and he wasn't even driving. But he was caught and a gun was discovered, along with his criminal record. That should be the end of it. But the FBI wants permission to trawl through a phone for evidence of whatever.

According to the docket, this warrant request was granted. It may have been modified, but the notes don't seem to indicate it was. For now, the only other thing on record is the FBI's documentation of its seizure of the device. If this person has even a halfway competent lawyer, he'll challenge this search. There's nothing in the affidavit that justifies this intrusion. An FBI's agent's speculation about the contents isn't the same thing as probable cause. And the fact that the phone was found on the driver's side of the car only further separates this agent's assertions from reality.

Filed Under: 4th amendment, brian de jesus, fbi, fishing expedition, general warrant, probable cause, surveillance

Despite Not Finding Drugs Nearly 95 Percent Of The Time, Judges Keep Approving Drug Warrants For Chicago Cops

from the definition-of-insanity dept

The Chicago Police Department has firmly established itself as one of the worst police forces in America. From running an off-the-books, Constitution-evading "black site" to interrogate detainees without bringing in their lawyers or rights to loading up its gang database with thousands of non-gang members, the department is a horrific mess.

The basic duty of warrant service is similarly infected by the PD's lackadaisical attitude towards the rights of the people they serve. An investigation into search warrants by a local CBS affiliate found that an alarming amount of drug related search warrants fail to turn up any drugs. The report [PDF] -- which examines several thousand warrants executed by the PD -- shows that, far too often, there's nothing illegal going on in the residences the PD chooses to raid.

Total search warrants where property recovered: 6,067 (88.5% of the time)
Total search warrants where guns were found: 1,992 (29% of the time)
Total search warrants where drugs were turned over: 286 (4% of the time)
Search warrants where an arrest was made: 3,931 (57% of the time)
Search warrants where no arrest was made: 2,924 (Nearly 43% of the time)
Search warrants that were completely negative (no arrest, no guns or property recovered): 679 (nearly 10%, or 1 in 10 search warrants were negative)

Almost half the time, the only result of a house search is a destroyed house. If officers decide they don't need to destroy the door (and windows or whatever) on their way in, tossing a house leaves it in complete disarray. When officers are wrong, it's the citizens who pay. And for all the claims that drugs are contributing to Chicago's spike in violent crime, drugs are so rarely found officers could achieve the same success rate by raiding random houses, rather than those they've bothered to copy-paste affidavit boilerplate about.

Eliminating non-drug related search warrants doesn't make anything any better. 72% of warrants detailed in this report were drug related. But the increase in drugs recovered doesn't even amount to a rounding error.

Out of the 4,921, drugs were turned over in 221 cases. That's 4.4% of the time.

Given this hit rate, there doesn't appear to be a whole lot of probable cause supporting these warrants. So why do they keep getting approved? Because officers know which judges to approach to get an affidavit rubber-stamped.

In Cook County, approximately 70 judges can approve search warrants, according to the Cook County Chief Judge’s Office.

[Judge Mauricio] Araujo signed off on more search warrants in Chicago than any other judge in a three-year period, according to police search warrant data analyzed by CBS 2. More than 1,166 search warrants listed his name as the judge.

Judge Araujo's relationships with PD officers certainly makes any claims of impartiality suspect.

Araujo had signed warrants for two former officers, David Salgado and Xavier Elizondo, who used the warrants to raid and rob people. The officers were later convicted.

Araujo described to the FBI his relationship with Salgado as “more than an acquaintance, but not quite a friend,” the Chicago Tribune reported, adding Araujo had attended multiple events with Salgado, including the wake for Salgado’s mother, the officer’s bachelor party in Colombia and his wedding in 2017.

Two things have changed which make Judge Araujo less of a threat to people's civil liberties. Policy changes in the court system randomized judge selection for warrant approval, partially preventing officers from going to the most compliant judges. Second, Judge Araujo resigned in September after the state's judicial commission ruled there was "clear and convincing evidence" Araujo had sexually harassed female police officers and county attorneys.

That won't undo the damage done by cops acting with almost zero judicial restraint. It might prevent some damage in the future. Police officers may not be able to engage in the hard work of internal reform, but they're pretty good at finding loopholes that allow them to act the way they want to. But they can't ignore the facts: Chicago's local drug warriors are rarely racking up wins in the War on Drugs. And judges who won't demand more from officers and their sworn statements are just making the problem worse.

Filed Under: 4th amendment, chicago, chicago police department, police, warrants

Appeals Court Says Baltimore PD's Aerial Surveillance Program Doesn't Violate The Constitution

from the long-term-tracking-of-people-is-fine...-as-long-as-it's-only-12-hours-a-day dept

The Baltimore PD can still use its flying spies, says the Fourth Circuit Court of Appeals. The aerial surveillance program -- first "introduced" on accident in 2016 -- allows the PD to track the movement of people across the entire city, thanks to high-powered cameras mounted on airplanes. The surveillance system (created by Persistent Surveillance Systems) can capture 32-square miles. People and vehicles are reduced to pixels despite the power of the 192-million-megapixel cameras, but combining this footage with street-level surveillance allows the PD to deanonymize moving pixels observed near crime scenes.

The entire system was paid for by a private donor, allowing the PD to sidestep its transparency obligations to the public. After the initial run ended, the PD resurrected it -- this time following the proper processes for introducing new surveillance systems to the city.

Earlier this year, a federal court rejected requests for an injunction, stating that the observations of moving pixels didn't amount to a Constitutional violation. Even though these pixels could be identified using ground-based surveillance, the court didn't see anything in the system that amounted to persistent, intrusive surveillance with Fourth Amendment implications.

The case went to the Fourth Circuit Court of Appeals. During oral arguments, the judges appeared mostly sympathetic to the city's arguments, claiming it was almost impossible to violate the rights of unidentified pixels whose movements have been observed on public streets.

The Appeals Court has delivered its decision [PDF]. And, as expected, it has declared the program to be Constitutional. The opinion opens with something suggesting the judges feel the ends justify the means.

Baltimore sadly has experienced a serious recent rise in homicides. For each of the past five years, Baltimore has been victimized by at least three hundred murders. In 2017, Baltimore experienced a higher absolute number of murders than New York City, a city with fourteen times Baltimore’s population.

It also presents this fact as though it were something that justifies persistent surveillance, rather than pointing out the shortcomings of the Baltimore PD's investigators.

Moreover, the Baltimore Police Department (BPD) has struggled to respond effectively to this increase in murders. In 2019, it cleared just 32.1% of homicide investigations, its lowest rate in several decades.

So, because murders continue to happen and the Baltimore PD seems mostly incapable of solving murders, the system is justified. As the court sees it, because it doesn't flagrantly violate rights, any rights violations it might enable are acceptable.

It is a carefully limited program of aerial observations of public movements presented as dots, and it is important at the outset to say all the things the program does not do. It does not search a person’s home, car, personal information or effects. It does not photograph a person’s features.

There are other limitations to the program. Planes can't fly in bad weather and the high-powered cameras are useless after sundown. But the planes still fly daily, if possible. The court's assumption this system will help Baltimore get a handle on its murder problem seems suspect. Data obtained through records requests show the system's failed to produce results. 700 hours of flights occurred but only led to a single arrest.

The court also claims the system can't be used to track people because [reads opinion] it can only be used to track people's movements.

There will be no live tracking of individuals. Analysts can only use AIR’s photographs to look at past movements.

So, tracking someone's past movements is apparently more Constitutional than tracking their current movements. Weird take, especially given the Supreme Court's Carpenter decision, which found that tracking people's past movements via cell site location info is unconstitutional without a warrant.

The Appeals Court says this is all very legal and very Constitutional.

In light of these precedents, we cannot hold that AIR [Aerial Investigation Research] violates a reasonable expectation of privacy. AIR is merely a tool used to track short-term movements in public, where the expectation of privacy is lessened. Such an activity is lawful in light of Knotts and Jones. And the specific tool which the BPD will use for the surveillance, aerial photography, has been sanctioned by the Supreme Court in several cases.

And this is how the Fourth Circuit says Carpenter doesn't apply:

Whereas CSLI could be used to reliably track an individual’s movement from day to day, AIR can only be used to track someone’s outdoor movements for twelve hours at most.

If there's anything positive about this decision, it's that the court has confined its decision solely to this particular surveillance program, which should prevent more intrusive programs from sneaking in under the Fourth Circuit's ruling.

Our opinion should not be overread. Although we conclude that AIR does not invade a reasonable expectation of privacy, our decision should not be interpreted as endorsing all forms of aerial surveillance. We only address the AIR program, which has built-in limitations designed to minimize invasions of individual privacy. We do not address a surveillance program that includes, for example, twenty-four hour surveillance of indoor and outdoor spaces using photographs that allow analysts to immediately identify the specific people being photographed.

The dissenting opinion says the other two judges have it wrong. There are Fourth Amendment implications and they're being ignored by the majority.

These conclusions rest on a fundamentally warped understanding of the facts, accepting the Government’s promises about the AIR program and ignoring the plaintiffs’ contrary evidence. The AIR program does, indeed, amount to long-term surveillance that compiles “a detailed and comprehensive record” of a person’s past movements. See Carpenter, 138 S. Ct. at 2215–19. Thus, Carpenter is not only relevant to this case. It controls the outcome.

The dissent goes on to point out that the arguments the majority uses to justify the surveillance under its "there's no Constitutional violation here" conclusion.

Applying that broader perspective to this case, the limitations of the AIR program that the majority emphasizes do little to distinguish Carpenter and Jones. Indeed, it is hard to reconcile the majority’s portrayal of the AIR program’s capabilities with its insistence that the program is justified because it helps BPD police crime. That the AIR program’s surveillance planes will fly only during the daylight hours and capture individuals as solitary pixels does not mean that AIR program data cannot be used to track specific individuals over time.

Presumably, the vast majority of Baltimore’s residents start and end most days in the same place: their homes. Who resides at a given address is often public information. Likewise, many people begin each day at home, then travel during the daytime based on a daily routine, and then return home again. In just one possible application, law enforcement could use AIR data to track a person’s movements from a crime scene to, eventually, a residential location where the person remains. Police could then look through time and track the movements of people from that residence. Police could use any number of context clues to distinguish individuals and deduce identity. After all, that is the very purpose of the program.

But it's the majority whose opinion counts. The Baltimore PD can continue to track residents' movements for up to twelve hours a day, day after day (weather permitting). Perhaps the Supreme Court will take up the inevitable appeal and apply its own Carpenter decision a little more rationally.

Filed Under: 4th amendment, 4th circuit, aerial surveillance, baltimore, baltimore police, police

Texas Cops Engage In Millions Of Roadside Searches, Find Nothing Illegal 80 Percent Of The Time

from the you-can-only-be-this-inefficient-by-spending-other-people's-money dept

Pretextual stops are bread-and-butter for cops. There's plenty of real crime out there waiting to be solved, but that requires time and attention that law enforcement apparently just doesn't have. So, a lot of what passes for "law enforcement" is just officers rolling the dice on vehicle searches, hoping to find something illegal (or at least some cash) to justify the roadside harassment.

Here are the depressing facts about the crime solving abilities of law enforcement:

In 2018, the most recent year for which data is available, just 45.5% of all violent crime cases reported to police in America were "cleared," typically meaning a suspect was arrested, according to the FBI's Uniform Crime Reporting Program.

When it came to property crimes, the clearance rate was much lower, at just 17.6%.

While these crimes go (mostly) unsolved, police officers are operating with nearly the same success rates on the nation's streets and highways. There are plenty of traffic stops. But there's actually very little "crime solving" happening. The Houston Chronicle has looked into local law enforcement activity and found almost nothing that justifies pretextual stops or the extended amount of time that elapses between when the lights go on and citizens are free to go.

Law enforcement has a fondness for junk science. Training seminars and Dunning-Kreuger have convinced cops they can do something almost no person can: determine guilt just by talking to people. So far, nothing has talked officers out of this self-delusion. Roadside stops are numerous. Evidence of criminal activity is almost nonexistent.

Statistically, police are terrible at determining which motorists are worthy of being detained and searched. Most turn up nothing. Often relying on signs of a driver’s deception that research has long debunked, officers distinguish liars from truth-tellers at a rate barely above chance, studies show.

Since so few of these pretextual stops result in criminal charges, these Constitutional violations are rarely challenged. The cost of pursuing a lawsuit is prohibitive, as is the qualified immunity doctrine which relies on precedent very few courts are in any hurry to set. As long as a cop violates rights in a way courts haven't already addressed, the citizen gets nothing from the lawsuit but a hole in their wallet and a handful of violated rights.

This lack of deterrent has made harassing motorists a pretty safe bet for officers who think pretty much anything a motorist does in the presence of law enforcement is suspicious. But citizens are getting zero bang for their taxpaying buck when officers focus on drivers rather than actual criminal activity.

Texas police performed just under a million searches during traffic stops last year, according to figures reported to the Texas Commission on Law Enforcement. About one in five resulted in contraband being found. The agency’s numbers aren’t perfect; it combines several types of searches, and some police departments appear to have entered data incorrectly; TCOLE has re-written its form for more precise reporting in the future.

In other words, cops' instincts are wrong at least 80% of the time. And even when they do get a "hit" (i.e., discovering contraband), there's still a chance whatever's been found won't be enough to justify filing criminal charges.

Citizens have a problem with this. Not that they can do much about it. Lawsuits are often futile and law enforcement officials support this harassment with unchallenged and unverified claims about "crime prevention," which seems to talk most local legislators out of engaging in much oversight.

Of course, the entity that most firmly believes millions of stops are acceptable isn't even a law enforcement agency. It's the local police union, represented by VP Douglas Griffith. Griffith cites that one time officers stopped Timothy McVeigh as justification for years of harassment that has yet to produce another terrorist arrest from a traffic stop. Going further, Griffith says this is the public's cross to bear if it would like to continue living in a society.

Tolerating searches that turn up nothing is a reasonable public price for the law enforcement benefit, Griffith said: “To me, if I know I didn’t do anything wrong, it’s nothing more than a minor annoyance.”

That's not how rights work, you fuckmook. Whether or not someone did something wrong is beside the point. The cops can't engage in suspicionless searches. The public's rights aren't secondary to law enforcement wants or needs. And citizens should be doubly upset if they have done nothing wrong.

Fortunately, not everyone is so stupid and dismissive of other people's rights. Here's one law enforcement official who actually recognizes the permanent damage excessive stops and searches can do to community relations.

“I think the payoff is not worth it,” said Major Mike Lee, who oversees the Harris County Sheriff’s Office’s Patrol Bureau. Say “we stop a thousand cars a day. And we make a great arrest that day and we put it all over social media. But in the meantime, you pissed off 999 citizens who may have all been pro-law enforcement before you stop them, and now have such a bad taste in their mouth after that stop."

In most cases, the only thing "justifying" a stop is a melange of faulty assumptions and contradictory logic. With enough creativity, any stop will look clean on the paperwork.

Officers have cited a driver’s pulsing veins, “limbic movements” (twitching), shifty eyes and windows that don’t roll down (suggesting drugs hidden in the door panels) as signs of potential criminal activity. Based on their “training and experience,” they’ve flagged as suspicious cars smelling too much like air freshener, vehicles that are too clean or too messy, erratic driving and driving that appears too cautious.

The science is against cops and their supposedly preternatural ability to suss out liars and cons.

“There are no nonverbal and verbal cues uniquely related to deceit,” a 2011 review of deception research concluded.

Their own failure rate should have clued them in years ago.

A 2005 study of Texas police found officers performed barely above random chance in being able to discern a person telling the truth from a liar.

And yet they persist. It takes several court decisions to deter this activity. And the lack of deterrence shows there haven't been enough court decisions yet. It's convenient for cops to treat everyone as a criminal suspect, even when all they've done is crossed a fog line. Precedent gives them the leeway to turn minor violations into major headaches for motorists. But 80% of the time, all the public gets from this use of their tax dollars is harassed motorists.

Filed Under: 4th amendment, police, pretextual stops, roadside searches, texas

Senator Wyden Wants To Know If The NSA Is Still Demanding Tech Companies Build Backdoors Into Their Products

from the build-them-or-we'll-just-build-our-own dept

It's been more than a half-decade since it made headlines, but the NSA's hardware manipulation programs never went away. These programs -- exposed by the Snowden leaks -- involved the NSA compromising network hardware, either through interception of physical shipments or by the injection of malicious code.

One major manufacturer -- Cisco -- was righteously angered when leaked documents showed some of its hardware being "interdicted" by NSA personnel. It went directly to Congress to complain. The complaint changed nothing. (Cisco, however, changed its shipping processes.) But even though the furor has died down, these programs continue pretty much unhindered by Congressional oversight or public outcry.

One legislator hasn't forgotten about the NSA's hardware-focused efforts. Senator Ron Wyden is still demanding the NSA answer questions about these programs and give him details about "backdoors" in private companies' computer equipment. The DOJ and FBI may be making a lot of noise about encryption backdoor mandates, but one federal agency is doing something about it. And it has been for years.

Not only has the NSA installed its own backdoors in intercepted devices, it has been working with tech companies to develop special access options in networking equipment. This allows the agency to more easily slurp up communications and internet traffic in bulk. Senator Wyden wants answers.

The agency developed new rules for such practices after the Snowden leaks in order to reduce the chances of exposure and compromise, three former intelligence officials told Reuters. But aides to Senator Ron Wyden, a leading Democrat on the Senate Intelligence Committee, say the NSA has stonewalled on providing even the gist of the new guidelines.

“Secret encryption back doors are a threat to national security and the safety of our families – it’s only a matter of time before foreign hackers or criminals exploit them in ways that undermine American national security,” Wyden told Reuters. “The government shouldn’t have any role in planting secret back doors in encryption technology used by Americans.”

No one knows what's in the guidelines and whether they forbid the NSA from backdooring hardware or software sold to US buyers. All the NSA is willing to say is it's trying to patch things up with domestic tech vendors by, um, giving them more stuff to patch up.

The agency declined to say how it had updated its policies on obtaining special access to commercial products. NSA officials said the agency has been rebuilding trust with the private sector through such measures as offering warnings about software flaws.

This is a welcome change after years of exploit hoarding. But there's no reason to believe the NSA isn't holding useful flaws back until they've outlived their exploitability. As for the built-in backdoors, the NSA refuses to provide any details. It won't even answer to its oversight. And if it won't do that, it really needs to stop saying things about "robust oversight" every time more surveillance abuses by the agency are exposed.

There's more to this than potential domestic surveillance. Any flaw deliberately introduced in hardware and software can be exploited by anyone who discovers it, not just the agency that requested it. The threat isn't theoretical. It's already happened. In 2015, it was discovered that malicious hackers had exploited what appeared to be a built-in flaw to intercept and decrypt VPN traffic running through Juniper routers. This appeared to be a byproduct of the NSA's "Tailored Access Operations." While Juniper has never acknowledged building a backdoor for the NSA, the circumstantial evidence points in No Such Agency's direction.

[Juniper] acknowledged to security researcher Andy Isaacson in 2016 that it had installed Dual EC [Dual Elliptic Curve] as part of a “customer requirement,” according to a previously undisclosed contemporaneous message seen by Reuters. Isaacson and other researchers believe that customer was a U.S. government agency, since only the U.S. is known to have insisted on Dual EC elsewhere.

This is the danger of relying on deliberately introduced flaws to gather intelligence or obtain evidence. Broken is broken and broken tools are toys for malicious individuals, which includes state-sponsored hackers deployed by this nation's enemies. It's kind of shitty to claim you're in the national security business when you're out there asking companies to add more attack vectors to their products.

Filed Under: 4th amendment, backdoors, nsa, ron wyden, surveillance
Companies: cisco, juniper

Judge Shuts Down Vallejo PD's Illegally-Obtained Stingray

from the city-is-ping-free-until-further-notice dept

For the moment, police officers in Vallejo, California aren't allowed to use their cell site simulator. A tentative ruling [PDF] issued by a judge says the city violated the law by approving the purchase of a Stingray device without instituting a privacy policy governing its use -- a policy explicitly approved by the city council and subjected to public scrutiny prior to adoption.

The case challenging the new device's purchase and use was brought by Oakland Privacy. Matthew Gauriglia of the EFF breaks down the multiple ways the city and its PD skirted their obligations to Vallejo residents.

The City Council assembled via teleconference in spring 2020, amidst a state-wide pandemic related shelter-in-place order, to vote for the purchase of this controversial piece of surveillance equipment. It did so without adequately obtaining input from the public.

What’s worse, the city council approved the purchase in violation of state law (S.B. 741) regulating the acquisition of such technology. [...] The law prohibits local government agencies from acquiring cell-site simulators without the local governing body approving a specific privacy and usage policy that “is consistent with respect for an individual’s privacy and civil liberties.” This policy needs to be available to the public, published online, and voted on during an open hearing.

The Vallejo city council dodged its state law obligations to expedite the acquisition of the device, seemingly taking advantage of restrictions on gatherings to minimize objections from the public. That decision has led to this (tentative) decision: no tech toy for city cops until it follows the steps above.

This sort of deception is far too commonplace when it comes to law enforcement agencies and the acquisition of controversial tech. Assertions that law enforcement needs this secrecy to stay a step ahead of criminals often go unchallenged. This continues to happen even though Stingrays and other tech (like phone-cracking tools) have been in the public eye for years and their capabilities discussed openly -- not just by civilians, but by government agencies and officials.

It seems pretty short-sighted to take steps like these to dodge controversy. Bypassing obligations to the public tends to result in greater public scrutiny once these actions are exposed or, as in this case, directly challenged as violations of the law. This (tentative) victory for Vallejo-area transparency activists shows the city would have been better off doing it all by the book in the first place. Now it's going to have to retrace its steps and no longer has a COVID lockdown to abuse to minimize complaints from the pesky peasants.

Filed Under: 4th amendment, california, cell site simulator, privacy, stingray, surveillance, vallejo

Location Data Obtained By CBP Comes From Phone Apps, Is Capable Of Tracking People On Both Sides Of The Border

from the what-Carpenter-decision? dept

More details are coming out about federal law enforcement's purchases of location data from data brokers. In February, the Wall Street Journal reported ICE and CBP were both purchasing large amounts of data from Venntel, using this information to track down people in this country illegally. Supposedly the data was "anonymized," which the CBP felt was enough to dodge any Constitutional concerns. Of course, the more data you have, the easier it is to de-anonymize it. And if it was truly anonymous and unable to be converted into traceable human beings, there would be no reason for ICE and CBP to be purchasing it.

This led to some Congressional scrutiny. The House Committee on Oversight and Reform opened up an investigation into federal agencies' purchases of location data from Venntel. This investigation didn't stop the CBP from re-upping its contract with the now-controversial broker and continuing to explore the edges of this legal gray area.

A couple of months later, it was revealed the IRS was also buying location data from Venntel, presumably in hopes of tracking down tax cheats. This led to Senators Ron Wyden and Elizabeth Warren asking the IRS's oversight to look into this. The Inspector General has already replied, stating an investigation is underway to determine whether the IRS's warrantless acquisition of this location data complies with the Supreme Court's Carpenter decision, which enacted a warrant requirement for cell site location data.

More documents obtained by Motherboard explain where all this controversial data is coming from. It's not Google or cell providers' towers, but from any phone app that harvests location data for their multiple Big Data overlords.

U.S. Customs and Border Protection (CBP) bought access to "global" location data harvested from ordinary apps installed on peoples' phones, meaning it could track devices even outside of U.S. borders, according to a document obtained by Motherboard.

[...]

"I know I could find signals in non-U.S. territory but they may have been U.S. users/devices," a former worker for Venntel, the company that CBP bought the location data from, told Motherboard.

This explains CBP and ICE's interest in this particular data. Looking for illegal entrants gets a whole lot easier when you can start tracking them from the other side of the border. It's far more useful to these agencies than it is for the IRS, which apparently couldn't find the suspect it was looking for in Venntel's database.

This is also why CBP feels compelled to keep throwing money at a vendor targeted by a Congressional investigation and (indirectly) by IRS oversight. It's too valuable not to have, no matter what the Fourth Amendment implications are.

Filed Under: 4th amendment, border, cbp, data, ice, location data, location info, phone apps

FBI Sent A Special Task Force To Portland To 'Exploit' Phones Taken From Protesters

from the collect-it-all dept

Ongoing protests in Portland have been met with a federal response. The opening salvo was disturbing: Gestapo-esque tactics carried out by unidentified federal officers driving unmarked vehicles. It didn't get any better after that. The federal task force headed by the DHS seemed more willing to escalate the situation than settle things down, even if they were supposedly there to just do federal things like protect federal property and investigate federal crimes.

Documents leaked to Ken Klippenstein indicated the federal presence in Portland was more interested in finding evidence of some sort of Antifa hierarchy than sticking to the directive. FBI forensic analysts and their tech had been scrambled to Oregon to dig into phones taken from protesters and arrestees in hopes of finding some sort of organizational structure for them to attack.

This immediately raised questions about the Constitutionality of these device extractions. There's a warrant requirement in place for phone searches incident to arrests and it's not clear whether this requirement is being followed. For that matter, cloning phones belonging to detainees not necessarily suspected of criminal activity (with or without a warrant) seems like an unjustified abuse of the powers granted to law enforcement.

Emails obtained by the New York Times indicate that's exactly what's happening. A special deployment of FBI agents was sent to Portland specifically to aid in the extraction of information from protesters' phones.

The FBI’s Washington, D.C., headquarters sent agents from its “Fly Team,” an elite counterterrorism unit, to Portland this summer during the second weekend in July. Their task was to interview arrested protesters and carry out the “initial exploitation of phones, or other communication devices,” according to FBI emails obtained through a public records request. It is unclear whether the Fly Team operation extended either past that weekend or beyond Portland, but the emails suggest that the FBI has been using counterterrorism tools and powers to map left-wing protest networks just months before an election whose result is likely to be delayed, if not challenged.

The Fly Teams have been in existence since shortly after the 9/11 attacks in 2001. But until now, they've mainly been foreign-focused -- either operating in other countries or targeting foreign terrorists. This breaks some new ground in a disturbing way: counterterrorist activity targeting US citizens, some of which have engaged in nothing more than exercising their First Amendment rights.

The emails also suggest federal law enforcement is working around warrant requirements by exploiting one particular exception:

In one of the replies to [Special Agent] Chamberlin’s email, a colleague in the Portland bureau notes that the Fly Team’s “defintion [sic] of exigency will be different from ours.”

The emails [PDF] detail an incident that might be used to stretch the definition of "exigent" to cover any detained protester. A man arrested for shining laser lights into officers' eyes was found to be carrying weapons and explosives. He consented to a search of his phone, which led to a search of his home and criminal charges. If agents can talk themselves into believing any arrestee or detainee poses a threat, phones are going to be searched without warrants in the hopes a court will grant the government the benefit of a doubt if the search is challenged.

There's nothing in the emails that says the FBI is adhering to the Fourth Amendment. There's nothing in there that says it isn't, either. But you generally don't memorialize Constitutional violations in communications that can be obtained with public records requests.

As the New York Times notes, it's unclear under what authority the FBI is acting if it's treating domestic protests like domestic terrorism. But the Constitution may not be much of an obstacle thanks to actions taken by President Ronald Reagan nearly four decades ago.

Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US.

We'll know more as more information leaks out or searches are challenged in court. But even if the FBI is following the law, the law gives it a lot of leeway to engage in acts it probably shouldn't, even if it legally can.

Filed Under: 1st amendment, 4th amendment, antifa, dhs, exigent circumstances, fbi, phones, portland, protests, surveillance

Law Enforcement Also Using 'Reverse' Warrants To Obtain Google Searches

from the no-suspects,-just-search-terms dept

Hunting down suspects these days doesn't require canvassing the area of a crime scene for witnesses and suspects. All it takes is a warrant. But these are not your regular warrants. To start with, there's no suspect to target and no property of theirs to search. These "reverse" warrants work the way you'd expect them to: backwards. Law enforcement agencies approach companies like Google with demands for the information on everyone in areas near crime scenes and work backwards from the data dump to find suspects.

It doesn't always work. Sometimes they get the wrong person. Other times, investigators are shot down by judges who recognize it's impossible to generate probable cause for the search of everyone in a certain area at a certain time. Reverse warrants for location data and devices turn everyone into a suspect when investigators seek this information.

But reverse warrants aren't just for location data, as c|net reports. A warrant first spotted by Robert Snell of the Detroit News sought something else: everyone who performed a Google search for a certain home address.

In August, police arrested Michael Williams, an associate of singer and accused sex offender R. Kelly, for allegedly setting fire to a witness' car in Florida. Investigators linked Williams to the arson, as well as witness tampering, after sending a search warrant to Google that requested information on "users who had searched the address of the residence close in time to the arson."  

This warrant appeared to have worked, at least in terms of locating a suspect. The original warrant is still sealed, but the response returned by Google contained only a single search, immediately narrowing the suspect list down to a single person. Further investigation showed the device that performed this search traveled from Georgia to the address in Florida and then back to Georgia after the vehicle torching took place.

Obviously, this raises another set of Constitutional questions a court will have to address. The attorney for Michael Williams plans to challenge this search as a Fourth Amendment violation. That's where the probable cause factor for search warrants comes into play. There are plenty of innocuous reasons for someone to search for a particular address. In this case, only one person did and phone records obtained following this initial "reverse" search established a pretty suspicious travel record.

But is there probable cause to believe a search for an address is evidence of a crime? That's a questionable assertion and it has the possibility to turn plenty of innocent people into suspects if their Google search histories can be obtained through keyword searches by law enforcement. Many people have an interest in crime. But a much smaller subset actually commit crimes. Searches for terms related to criminal activity will turn curiosity into possible criminal intent. Just because there's a warrant involved doesn't mean it's Constitutional. Slurping up people's Google searches en masse aligns these reverse warrants with the general warrants of this nation's colonial days.

Of course, the downside to pushing back against these warrants is the possibility of creating precedent that says law enforcement doesn't even need a warrant to obtain this info. It's almost impossible for anyone to claim they didn't knowingly and voluntarily share their searches with their search engine provider. That might nudge courts towards finding Google searches to be third-party records, obtainable with only a subpoena.

Filed Under: 4th amendment, general warrants, gps, michael williams, privacy, r. kelly, reverse warrants, search terms, surveillance
Companies: google