Yet Another Report Shows Asset Forfeiture Doesn't Reduce Crime Or Cripple Criminal Organizations

from the makin'-it-rain-on-discretionary-spending-opportunities dept

According to the Department of Justice (and countless other law enforcement agencies), civil asset forfeiture is a valuable tool that harms criminal organizations and lowers crime rates. It's a deterrent they assert actually exists, despite there being no accompanying arrests of these supposed criminals.

I don't know what criminal organizations are being dismantled at less than $1,000/seizure, but that's the reality of asset forfeiture. A large majority of forfeitures involve amounts too small to be disputed in court, where legal fees quickly outpace any expected recovery.

That's how the system "works." Cops grab what they can and hope the system tilted in their favor pays off. Any incidental effects on crime rates are a bonus. But lowering crime isn't the focus, no matter what's asserted by defenders of legalized theft.

And the facts say otherwise. A study released last year showed asset forfeiture has zero effect on crime rates or drug sales. All it does is take cash from people who need it the most, as is borne out by low dollar amounts most frequently seen in forfeiture cases.

Now, another study is confirming the obvious: asset forfeiture enriches police departments… but not the lives of the people they serve. The study had a great data set to work with. Back in 2015, New Mexico outlawed civil asset forfeiture. If cops wanted to take stuff, they had to secure a conviction. If asset forfeiture was the valuable crime-fighting tool New Mexico law enforcement agencies claimed it was, crime rates would be expected to increase. But that's not what happened, according to the Institute of Justice's study.

[F]ive years after New Mexico effectively banned civil forfeiture, those fears remain unrealized, according to a new study set to be published on Tuesday by the Institute for Justice, a public interest law firm that has been advocating reforms to forfeiture laws. The predicted rise in crime and drop in arrests has not materialized, according to the study, which is based on analyses of FBI data. Arrest and offense rates in New Mexico, the study found, remained essentially flat before and after the 2015 law went into effect. That’s based on an examination of crime overall, as well as a specific set of offenses: drug possession, drug sales, and driving under the influence. Arrest and offense rates were also consistent with trends in two neighboring states, Colorado and Texas.

Despite there being no link between forfeiture and crime reduction, the DOJ continues to claim the system works. The DOJ likes to point to its biggest seizures -- like forfeitures related to high-profile criminal cases involving millions of dollars -- as proof the program is essential to the recovery of criminal proceeds to make whole victims of crimes. But the DOJ purposefully conflates criminal and civil asset forfeiture. The former is tied to criminal convictions. The latter occurs without almost zero court examination or adversarial hearings.

Civil asset forfeiture rarely involves millions of dollars. When court costs are far more than what can be recovered, the system allows cops to amass large sums of cash in small increments. That's the reality of forfeiture: tiny amounts of cash no one outside of law enforcement would assume were the result of criminal activity.

The median forfeiture averaged $1,276 across the 21 states where usable data was obtainable. In most of those states, half of cash seizures fell below $1,000. In Michigan, for example, half of all civil forfeitures of currency were worth less than $423, and in Pennsylvania, that median value was $369.

That's how we're crippling massive criminal conspiracies: with cash amounts that wouldn't even cover a car payment. The median amount in these cases show cops are just shaking down people for the money in their wallets and cooking up a post-seizure justification for taking their money. If it costs $1,000 to fight a $400 seizure, almost everyone is just going to let it go. Then the cops point to the number of unchallenged seizures as "evidence" the alleged perps (who were never arrested or charged) are guilty of criminal activity.

This money is then converted into slush funds for cops -- ones that often aren't subject to additional oversight. Cops pay salaries and make off-the-book purchases of surveillance tech with these funds, secure in the knowledge that their oversight can't oversee line items that aren't reflected in local budget books. The more often they get away with this, the more often they feel they can use their power to take cash from people to buy themselves the things they want.

Meanwhile, no one gets any more safety or security out of the deal. Citizens are subjected to shakedowns by officers without any corresponding decrease in crime rates or increase in public safety. Not only do cops become a law unto themselves with forfeiture programs, they shortchange honest citizens whose tax dollars are being wasted on programs designed to pad cop shop budgets.

Filed Under: asset forfeiture, civil asset forfeiture, crime, doj, legalized theft, police

Trump Appoints Unqualified Guy Who Hates Section 230 To Top Justice Department Role

from the why-is-he-in-government-at-all? dept

In 2018, we wrote about a law professor named Adam Candeub, who was one of the lawyers for white supremacist Jared Taylor, suing Twitter in a doomed lawsuit for kicking him off its platform. I had a confusing email exchange with Candeub which I wrote about in that piece, which suggested that he was either unaware of Section 230 at the time he filed the lawsuit, or simply confused about the long list of decisions around 230 that made the lawsuit an obvious loser (which is what happened). Candeub and his co-counsel were very angry about my article, and insisted that their alternative interpretation of Section 230 would win the day.

Since being proven wrong, Candeub has spent a tremendous amount of energy trying to twist and torture Section 230 interpretations into his own belief of what they should be. Back in May, Candeub was hired by the Trump administration to be deputy assistant secretary, where he helped guide Trump's ridiculolus executive order on 230 a few weeks later. It recently came out that he, and new FCC commissioner Nathan Simington, abused their government jobs to try to get Fox News to attack Section 230, telling a producer of Fox News host Laura Ingraham's show that doing so may help get Trump and down-ballot Republicans elected in the fall.

In normal times, federal government officials are supposed to represent everyone, and not just their own political party. They are not supposed to engage in campaigning or electioneering on the public's dime, and they certainly aren't supposed to be working with the press to help elect their own party. Yet, that's exactly what Candeub and Simington did. In response, Simington got his FCC commissionership (despite basically no relevant telecom law experience) and Candeub... has now been promoted to a senior level Justice Department job:

Adam Candeub, the acting head of Commerce’s National Telecommunications and Information Administration, has been named deputy associate attorney general starting Monday, according to two officials and a third person familiar with the matter, who requested anonymity to discuss the plans. The political appointment does not require congressional confirmation.

The concern, as noted in Politico, is that he's going to use the remaining month in office to cause problems for the internet:

Candeub has played a central role in carrying out Trump’s executive order targeting social media companies like Twitter and Facebook over allegations they censor conservative viewpoints. The executive order asked federal agencies, including the Federal Communications Commission, to narrow the scope of a crucial set of liability protections that shield online companies from lawsuits over the user content they host. One of Candeub’s advisers at the NTIA, Nathan Simington, was confirmed last week to a five-year term as an FCC commissioner.

Trump has taken increasing aim at the legal shield, a 1996 law known as Section 230, in the twilight of presidency, including vowing to veto a must-pass defense spending bill that overwhelmingly sailed through both the House and Senate because it does not repeal the protections. And he’s rallied his allies across federal agencies and in Congress against the law, which has been widely credited with enabling the creation of today’s thriving online industry.

Candeub, who first joined NTIA earlier this year, has a long history of bashing the social media giants over allegations of an anti-conservative bias. In 2018, Candeub represented a white nationalist in a lawsuit against Twitter alleging the social network censored him.

The article further notes that in writing the NTIA's petition to the FCC (in response to the executive order that he helped craft), Candeub worked closely with the DOJ, which has itself continued to attack Section 230 (despite the fact that Section 230 has an exemption for any federal criminal laws, and thus does not impact the DOJ at all):

Candeub actively consulted with the Justice Department during this summer’s efforts to draft the administration’s social media petition to the FCC. He also ran draft copy by White House adviser James Sherk, according to emails obtained by POLITICO through a Freedom of Information Act request.

“I’m feeling heavy breathing,” Candeub wrote in one July 13 email pressing DOJ counsel Lauren Willard and DOJ's Chris Grieco for feedback on the petition, citing pressure from Sherk.

It's not clear what Candeub can do in the month he has left, but it certainly is alarming that he's been put in this position. He has shown over his few months in office that he has no interest in representing the American people as a public servant, but rather in trying to twist a law that stymied a high profile lawsuit he was involved in, and he's implicated in an email to try to do that twisting to help his political allies. There is no way he should be in any government role, let alone a powerful one at the Justice Department.

Filed Under: adam candeub, commerce department, doj, ntia, section 230

New Report Shows Cellphone Encryption Isn't Really Stopping Cops From Searching Phones

from the complaining-that-99%-access-isn't-100%-access dept

We're still hearing quite a bit about law enforcement's supposedly endless string of losses to criminals and their device encryption. Citing facts not in evidence, consecutive FBI directors -- along with outgoing Attorney General Bill Barr -- have claimed the implementation of encryption has pretty much made it impossible to successfully prosecute criminals.

We know this isn't true for several reasons. But let's begin with the FBI, which has relied on overstated numbers to press the "going dark" theory for a few dozen months at this point. After admitting it couldn't do math -- even when aided by a spreadsheet -- the FBI has refused to update its overblown number of locked devices in its possession. The FBI has not corrected its math for 931 days at this point.

Criminal prosecutions haven't slowed down either. When almost every prosecution ends in a plea deal, it's pretty rich for prosecutors and law enforcement to complain they're being beaten by criminals. And a bunch of federal agencies pad their own numbers, engaging in borderline entrapment to ensure a steady stream of prosecutorial wins.

A new report shows just how little of an effect device encryption has had on law enforcement efforts. Some of the report's highlights are touched on by Lawfare's Susan Landau. We've heard the complaints encryption is keeping law enforcement out of seized cellphones. The reality is much more worrying. Not only is encryption not much of a barrier, but law enforcement tech allows investigators to access pretty much everything before trimming it down to what's been asked for in warrant affidavits.

These forensic tools are quite sophisticated. FBI Director Christopher Wray once complained that “warrant-proof encryption,” like that used on iPhones, prevents law enforcement access to crucial evidence. But Upturn found that the forensic tools copy all the data found on a cellphone. The tools then sort the data so that law enforcement can easily search through it. And MDFTs include some features that make law enforcement’s job even easier. For example, Cellebrite, perhaps the most sophisticated MDFT, can compare a facial image, such as from a police database, to any of the faces in photos stored on the phone. Others MDFTs classify text conversations by topic, such as drugs, money or family.

The MDFTs work on a variety of sophisticated phones. Cellebrite says it can extract data from “all iPhone devices from iPhone 4S to the latest iPhone 11 / 11 Pro / Max running the latest iOS versions up to the latest 13.4.1.” The company claims to be able to handle even locked iPhones and Android devices.

"Going dark" is nothing more than rhetoric. The reality is encryption isn't much of a roadblock. The report by DC think tank Upturn shows there's little standing in the way of law enforcement forensic extractions, no matter how much federal officials claim otherwise. The business of cracking/scraping phones is largely automated -- plug-and-play invasive searches that pretty much ignore efforts owners might make to secure their devices against government intrusion.

Mobile device forensic tools (MDFTs) are so powerful, Upturn recommends the ban on consensual searches of cellphones, given what investigators can access when they're deployed. This makes some sense, given the specious reasons given for some cellphone searches. But that's going to be a really difficult thing to sell to legislators when one of the most recognized exceptions to the Fourth Amendment is the voluntary waiver. (Counterpoint: the definition of "voluntary" could use more examination by courts, which have decided the third-party doctrine applies even when voluntary consent isn't obvious, but still side with law enforcement agencies who have coerced confessions and "consent.")

People may think these powerful tools will only be aimed at the worst criminals -- drug kingpins, child molesters, financial services firms, etc. But they're not. They're used for everything because they're cheap, easy, and convenient.

Law enforcement use these tools to investigate not only cases involving major harm, but also for graffiti, shoplifting, marijuana possession, prostitution, vandalism, car crashes, parole violations, petty theft, public intoxication, and the full gamut of drug-related offenses.

Anti-encryption enthusiasts like FBI directors Chris Wray and James Comey have somewhat acknowledged some powerful tools render device encryption moot. But even while (sort of) admitting their "going dark" claims were overblown, proponents of encryption backdoors claim success rates are too low, tools are too expensive, and solutions provided by government contractors won't scale. Upturn's report says otherwise.

Our records show that at least 2,000 agencies have purchased a range of products and services offered by mobile device forensic tool vendors. Law enforcement agencies in all 50 states and the District of Columbia have these tools. Each of the largest 50 police departments have purchased or have easy access to mobile device forensic tools. Dozens of district attorneys’ and sheriff’s offices have also purchased them. Many have done so through a variety of federal grant programs. Even if a department hasn’t purchased the technology itself, most, if not all, have easy access thanks to partnerships, kiosk programs, and sharing agreements with larger law enforcement agencies, including the FBI.

So, there's plenty of access. Funding isn't a problem. Vendors have solutions that scale because there's plenty of access and plenty of funding. But the complaints continue. And the complaints continue despite how much is being extracted with each deployment.

MDFTs pull every photo on the device, extracting metadata that shows when and where photos were taken. It pulls data from every app that generates it, including location data, which allows law enforcement to track movement without a warrant. The extraction tools can also pull deleted data, allowing investigators to perform digital trash pulls for additional evidence.

Then there's the third parties themselves. While the FBI and others complain about a lack of access, any data/communications stored by cloud services can be recovered without having to deal with device encryption.

The wealth of data available to law enforcement allows them to engage in fishing expeditions for evidence of other crimes. The only thing stopping them is the courts, so it's worth their while to dig through everything, considering the worst case scenario is a dismissed case, rather than fines, fees, sanctions, or anything else that might hurt them more directly.

A city or state might ban facial recognition searches, but cops can still do this without violating the specifics of the ban, thanks to built-in tools.

Cellebrite offers a “search by face” function, whereby law enforcement can compare an image of a face to all other images of faces found on the phone.

They can also look for anything else conceivably incriminating (or titillating) without having to screw with their tools' default settings.

Cellebrite also allows law enforcement to define new image categories by feeding its software a small set of example images to search for (for example, searching for hotel rooms by giving the software a set of five images of hotel rooms that were taken from Google images). As another example, Magnet Forensics’ AXIOM can employ text classification models in attempts to detect “sexual conversations,” or to filter conversations by topics ranging from family, drugs, money, and police.

Even if encryption is the default option, a variety of software and hardware exploits renders this useless in most cases. Patches from developers and manufacturers make this somewhat of an arms race, but this race remains a tie, at worst. Law enforcement isn't losing. And if it's losing access, it's only temporary.

There's another "war" at play here -- one that's rarely referenced by law enforcement officials. Every vendor wants more customers, so they're always improving their tech. The healthy competition makes tools more powerful while dropping their price, ensuring equal access for law enforcement agencies across the nation. The public records obtained by Upturn show there's not a single state in the Union that doesn't have access to forensic tools capable of cracking or bypassing encryption. Funding isn't an issue, given the federal government's interest in making encryption a non-issue.

That means there's thousands of extractions a year -- something that undercuts the FBI's "warrant-proof encryption" narrative at least as much as its inability to count physical items accurately.

The records of use we’ve assembled from 44 law enforcement agencies represent at least 50,000 extractions of cellphones between 2015 and 2019.

There is no going dark. If legislators want to believe there is, they're going to have to do so by ignoring all the evidence to the contrary. What law enforcement wants is convenience -- the ability to crack open phones without having to hook them up to a machine or beat the submission out of an arrestee. The options are there and agencies are obviously using them. Every argument that says encryption is locking law enforcement out is not just disingenuous -- it's dishonest.

Filed Under: access, doj, encryption, fbi, going dark, law enforcement, prosecutors

Patriot Act Used By The FBI To Collect Internet Browsing Data, Contradicting Claims Made To Oversight

from the oh-no-this-must-be-the-first-time-the-IC-has-lied-to-its-oversight-[faints] dept

The NSA shut down its bulk phone records collection -- authorized under Section 215 -- after it became apparent it wasn't worth the effort. Reforms put in place by the USA Freedom Act prevented the agency from collecting it all and sorting it out later. Instead, it had to approach telcos with actual targeted requests and only haul away responsive records. The NSA somehow still managed to overcollect records, putting it in violation of the law. The NSA hinted the program had outlived its usefulness anyway, suggesting it had far better collections available under other authorities that it would rather not subject to greater scrutiny.

But this didn't end the government's bulk records collections. It just ended the phone metadata program. The NSA still collects other records in bulk, including banking records and, oddly, books checked out by library patrons. The broad authority of Section 215 could be read to allow the government collect other records, like email metadata and internet activity. Reasoning that people voluntarily create records of their internet use by using third-party services to surf the web, the government hinted it could sweep these up just as easily as it had swept up call records.

The government's attempt to collect internet history under this authority ran into some friction earlier this year when the Senate voted to block this collection. Senator Ron Wyden directly asked the director of national intelligence (DNI) to inform the Senate whether or not agencies under its purview had gathered internet use records under this authority. He received this answer.

In a Nov. 6 letter to Mr. Wyden, John Ratcliffe, the intelligence director, wrote that Section 215 was not used to gather internet search terms, and that none of the 61 orders issued last year under that law by the Foreign Intelligence Surveillance Court involved collection of “web browsing” records.

Wyden took this response to mean that implementing a ban on collection of internet history records could be put into place without negatively affecting any intelligence gathering activities. But when the New York Times pressed DNI John Ratcliffe on specifics, a new party inserted itself into the conversation: the DOJ. According to its response, the FBI had already done the thing the DNI had just told Sen. Wyden it hadn't.

In fact, “one of those 61 orders resulted in the production of information that could be characterized as information regarding browsing,” Mr. Ratcliffe wrote in the second letter. Specifically, one order had approved collection of logs revealing which computers “in a specified foreign country” had visited “a single, identified U.S. web page.”

So, the FBI was collecting internet browsing records, albeit with an order that only targeted foreign users visiting one US web page. Still, this wasn't what the DNI originally said to Sen. Wyden. This set Wyden off. Again. The supposedly honest answer he received in response to his questions wasn't actually all that honest. As he pointed out in his statement, the belated admission raised questions about domestic surveillance and potential abuse of Section 215 authority to collect something the DNI said no one was collecting. And, if nothing changed, there was no guarantee the Intelligence Community wouldn't talk itself into believing a collection of internet browsing data would be cool and legal.

“More generally,” Mr. Wyden continued, “the D.N.I. has provided no guarantee that the government wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.”

Previous attempts to erect a warrant requirement for the collection of internet data or search histories have failed to reach the president's desk. This latest admission has refueled the fire to protect Americans (or visitors to American websites) from government overreach. Even if such a collection targets only foreign internet users, there's no guarantee it won't sweep up US citizens -- like pretty much every other bulk collection has.

At this point, everything is up in the air. There's a new president headed into office who might be more receptive to reform efforts, but he's also the man who served the Obama Administration -- one that wasn't all that concerned about domestic surveillance until it became impossible to ignore the documents leaked by Ed Snowden. Even then, its response was tepid at best and it still allowed IC surveillance business to continue pretty much uninterrupted -- something it used to justify extrajudicial killings based on little more than metadata. This needs to be fixed, but surveillance reform advocates still lack majority support. And the guy headed to the White House has never seemed all that concerned about surveillance abuses.

Filed Under: 4th amendment, browsing data, bulk records, doj, fbi, fisa, fisc, john ratcliffe, mass surveillance, metadata, nsa, odni, patriot act, ron wyden, section 215, usa freedom act, warrant

Government Argues In Court That It Can Kill US Citizens At Will With Zero Judicial Oversight

from the your-tax-dollars-incoming dept

The federal government is back in court, arguing for its unilateral right to kill US citizens. Two journalists who had appeared to have been mistakenly targeted by drone strikes sued the government in 2017, seeking an injunction forbidding their own government from extrajudicially killing them.

The journalists, Ahmad Zaidan and Bilal Kareem, both experienced near misses by drone strikes. The suspicion they were mistakenly targeted was confirmed by an NSA document leaked by Ed Snowden that claimed Zaidan -- an Al Jazeera journalist -- was a member of Al Qaeda. His targeting was related to the government's bulk collection of metadata, which would have placed Zaidan close to several Al Qaeda members. His proximity to Al Qaeda members was to be expected, given his coverage of Al Qaeda activity and other events/incidents in the areas he covered.

All it takes is metadata to get someone killed -- even US citizens like Bilal Kareem who, like Zaidan, routinely covered Al Qaeda activity and spoke to Al Qaeda members. Kareem's solo lawsuit demanding confirmation that he had been placed on the government's kill list was terminated by the DC Circuit Court in 2019, which held that the information was too sensitive to share with US citizens possibly marked for death by their own government.

His joint lawsuit with Zaidan lives on, however. And it may finally provide the journalists with some answers. As Megan Mineiro reports for Courthouse News Service, the DC judges handling the case seemed rather shocked by the government's assertions.

Drawing alarm at the D.C. Circuit, a lawyer for the United States argued Monday that the government has the power to kill its citizens without judicial oversight when state secrets are involved.

“Do you appreciate how extraordinary that proposition is?” U.S. Circuit Judge Patricia Millett asked Justice Department attorney Bradley Hinshelwood, paraphrasing his claim as giving the government the ability to “unilaterally decide to kill U.S. citizens.”

The "state secrets" assertion was the same claim used to escape Kareem's solo lawsuit. But it doesn't appear to be working quite as well this time -- not when the government is saying it can engage in extrajudicial, extraterritorial killings of US citizens and other non-terrorists. "We kill people based on metadata," a former US government official gleefully exclaimed in response to Snowden leaks. That still holds true, and it appears the government loses no sleep when it kills the wrong people based on flawed assumptions about patterns in its metadata stash.

The government's alternate argument wasn't much better. It basically claimed Kareem couldn't prove the US targeted him because lots of people were throwing around bombs and missiles.

Shrugging off Kareem’s claims as baseless speculation, the government argued the alleged airstrikes occurred at a time when Syria was wracked by civil war.

“In all of these circumstances, he’s not even the only person present, much less is there anything to suggest that he’s actually the target of any of these specific attacks,” Hinshelwood said.

Of course, the government could easily prove it never targeted these journalists by handing over information about the contested drone strikes. But it won't. It would rather argue it can kill whoever it wants without oversight or judicial review. The government would rather make this bold statement in open court than submit classified info directly to judges and lawyers with security clearance that would confirm or refute the placement of the plaintiffs on kill lists. The government's priorities are incredibly screwed up. And we have a long and pointless "war on terror" to thank for its refusal to answer questions about its drone strike programs -- programs that may well be targeting innocent people (including US citizens).

Filed Under: ahmad zaidan, al qaeda, bilal kareem, doj, drone strikes, extrajudicial assassination, judicial oversight, kill list, metadata, national security, nsa, state secrets, terrorism, us citizens

The DOJ Will Finally Allow Local Cops To Wear Body Cameras When Working With Federal Agencies

from the years-after-the-tech-has-become-ubiquitous dept

The federal government is finally coming around to body cameras. While law enforcement agencies around the nation continue to buy body cameras for their officers, federal agencies have been less receptive to these tools of incremental accountability and transparency.

First, let's address body cameras. They're not a panacea. They don't turn bad cops into good cops. They're far more useful to prosecutors then they are to criminal defendants or plaintiffs in civil rights lawsuits. They tend to "malfunction" with alarming regularity during confrontations with members of the public. And they can be manipulated to act as corroboration for falsified police reports.

That being said, they do offer one thing we haven't seen since the advent of dashcams: another version of events normally only memorialized by exonerative statements and questionable report narratives.

Five years ago, the DOJ was throwing federal money at body camera programs. But only for local law enforcement agencies. The feds wanted none of it. A mandate issued by the DOJ said its agencies wouldn't partner with cop shops using the tech, even if the cameras were purchased with federal money. According to the DOJ, it was "looking into the issue," but strongly felt the presence of body cameras would "expose police methods." It said this with a straight face despite "police methods" remaining largely unchanged since the invention of the door ram.

Five years later -- and while under the now-temporary thumb of cop cheerleader Bill Barr -- the DOJ has finally decided to join the present (already in progress).

Today, the Justice Department announced that it will permit state, local, territorial, and tribal task force officers to use body-worn cameras on federal task forces around the nation. The department’s policy will permit federally deputized officers to activate a body-worn camera while serving arrest warrants, or during other planned arrest operations, and during the execution of search warrants.  

This doesn't mean federal officers and agents will be wearing body cameras. Oh my no. That accountability bridge will presumably be crossed sometime in the next decade. But it will no longer require local officers to leave their cameras at the station before assisting in warrant service. According to the DOJ's official guidance [PDF], this will finally allow the local boys to stop violating their own policies when performing arrests or searches.

To the extent state and local law enforcement agencies mandate BWCs [body-worn cameras] for TFOs [task force officers] while engaged in federal task force operations, the Department will permit federally deputized TFOs from those agencies to use their BWCs under the following circumstances.

How gracious of the federal government to allow local agencies to follow their own policies. But there are some catches. And one of those catches will allow officers to engage in searches without providing unbiased documentation of the search.

TFOs are authorized to activate their BWCs upon approaching a subject or premises, and must deactivate their BWCs when the scene is secured as determined by the federal supervisor on the scene as designated by the sponsoring federal agency.

More DOJ caveats await, ensuring even fewer recordings will occur.

TFOs are prohibited from recording: (1) undercover personnel; (2) confidential informants or confidential sources; (3) on-scene witness interviews prior to or after the operation; (4) personnel using specialized or sensitive investigative techniques or equipment; or (5) onscene actions by any non-law enforcement persons who are assisting law enforcement personnel prior to or after the operation.

So, the FBI will continue to conduct "interviews" without unbiased documentation and nearly anything involved with a task force operation will go unrecorded because pretty much everything other than breaching an entrance or placing someone in cuffs will fall into these expansive, malleable exceptions.

And if the public wants access to this footage, good luck with that. Whatever local policies and laws that normally govern public access to recordings are null and void. According to the DOJ, it retains control of recordings and will preemptively declare all recordings exempt from public records requests.

In all circumstances, TFO BWC recordings shall be treated as law enforcement sensitive information, the premature disclosure of which could reasonably be expected to interfere with enforcement proceedings, and as potential evidence in a federal investigation subject to applicable federal laws, rules, and policy concerning any disclosure or dissemination; and therefore deemed privileged absent appropriate redaction prior to disclosure or dissemination. Nothing in this policy shall be deemed to provide a right of public access to TFO BWC recordings.

The good news is there is one exception: if anyone on the task force -- federal or otherwise -- kills or seriously injures someone, the recordings will be "expeditiously reviewed" and approved for public release as soon as is "practical." Granted, the dictionary definition of "expeditious" and "practical" will differ greatly from the DOJ's definition of those terms. But it's something. And it's something that fills a void the DOJ proactively chose to leave unfilled for years.

Filed Under: body cameras, doj, federal agencies, law enforcement, transparency

Nixon Scandal Resulted In A Law To Prevent The Politicization Of Antitrust Cases; Meanwhile Trump Uses His Politicized Antitrust Effort In Campaign Ad

from the different-times-apparently dept

Everyone knows about President Richard Nixon and the Watergate scandal, but you might now know as much about another huge scandal that preceded that one -- involving Nixon meddling, for political purposes, in an antitrust case by his Justice Department against a large "tech" company/conglomerate at the time. The case involved ITT trying to buy up some smaller companies, and the DOJ brought an antitrust case against them. The scandal part was that ITT approached the White House and worked out a deal: ITT would donate $400,000 (roughly $2.5 million today) to the 1972 Republican National Convention, and Nixon would get the DOJ to drop the case. Which he did. As the Nixon tapes eventually revealed, he called up then deputy Attorney General Richard Kleindienst and said:

“The I.T.T. thing — stay the hell out of it. Is that clear? That’s an order ... I do not want McLaren to run around prosecuting people, raising hell about conglomerates, stirring things up.”

Kleindienst's responded that he understood. Soon after he was nominated to be Attorney General, and during his Senate confirmation hearings he was asked whether the White House had interfered in the DOJ case against ITT, and he denied it. During Watergate, when the Nixon tapes came out, proving that Kleindienst lied, he ended up pleading guilty for lying to Congress.

The reason that the IIT quid pro quo deal with the White House was revealed was because a lobbyist for ITT named Dita Beard had sent around a memo with the details of the deal, which amusingly closed with "please destroy this, huh?" It wasn't destroyed, and instead was leaked to the Washington Post's Jack Anderson who sent his associate, a young Brit Hume, to Beard's house to verify the memo and get an explanation for it.

So, what's this historical story got to do with anything? Well, as we've discussed a few times now, current Attorney General Bill Barr's antitrust crusade against Google is clearly a politicized farce. Barr told the DOJ that they had to file before the election. DOJ staffers resigned from working on the case in protest. And the final case is stunningly weak.

But, after the ITT/Nixon debacle, Senator John Tunney introduced and got passed into law the Antitrust Procedures and Penalties Act, better known as the Tunney Act. It was designed to prevent another ITT/Nixon situation from happening again, by trying to stop the DOJ/White House from politicizing antitrust. The mechanism to do so is somewhat simplistic, but any settlement agreement is supposed to go before a judge to check to make sure the deal is in the public interest, rather than for shady political reasons. Parts of the law are often ignored in antitrust settlements, and it makes news when judges remember it exists.

However, it does seem notable that the whole intent of the law was to stop sketchy backroom politicization of antitrust activities by the White House telling the Justice Department what to do. And yet, now, we literally have a President of the United States directly politicizing his own DOJ's antitrust campaign. On Wednesday evening Trump tweeted out a weird campaign ad that rambles incoherently about "big tech" being bad, and how something needs to be done. Then he flat out admits that because he believes big tech is "against him" that's why "we" are going after Google:

Big tech has to be spoken to and probably in some form has to be stopped because they're taking away your rights. They're taking away things that nobody would have believed possible. So one of the things we're doing -- you saw what happened with Google -- with the lawsuit. One of the things we're doing is looking very powerfully and strongly at big tech. Go out and vote.

In any other administration in history, this alone would have been a scandal. The DOJ is supposed to be an independent agency from the President, and isn't supposed to bring cases based on political whims, such as tech companies "not liking" the President. And the President isn't supposed to be claiming direct credit for the lawsuit. Like others have pointed out, this is like Stupid Watergate. Things that Nixon did behind closed doors Trump is doing blatantly out in the open, and somehow that's why he gets away with it.

Here, he's flat out admitting that the DOJ cases against Google is not for legitimate reasons by for political ones, and he's using that case, for which he takes credit, in a literal campaign ad. If the courts actually cared about the Tunney Act (and a few judges out there might still believe in it) this would be yet another giant gaping hole in the case. Google now has more than enough evidence to highlight that the entire case was brought for political purposes, and not for legitimate ones.

The Nixon/ITT mess raised enough concerns that it caused some to talk about impeachment (of course that was then superseded by Watergate). Here, Trump is doing worse things in public, and it barely gets a shrug.

Filed Under: antitrust, doj, donald trump, motives, politicization, richard nixon, tunney act
Companies: google