Germany's New Government Promises To Support End-To-End Encryption And Reject Backdoors

from the finally-someone-is dept

A bit of welcome news as the war on encryption continues around the globe. Germany's new government has said that it plans to come out more strongly in favor of end-to-end encryption and against backdoors. According to a report in Euractiv:

According to Jens Zimmermann, the German coalition negotiations had made it “quite clear” that the incoming government of the Social Democrats (SPD), the Greens and the business-friendly liberal FDP would reject “the weakening of encryption, which is being attempted under the guise of the fight against child abuse” by the coalition partners.

Such regulations, which are already enshrined in the interim solution of the ePrivacy Regulation, for example, “diametrically contradict the character of the coalition agreement” because secure end-to-end encryption is guaranteed there, Zimmermann said.

Introducing backdoors would undermine this goal of the coalition agreement, he added.

“What is sometimes proposed in the ePrivacy Regulation goes far beyond what we envisage in terms of vulnerability management,” Zimmermann told EURACTIV, adding that implementation would “mean actively creating vulnerabilities.”

This is certainly good to see, but it's also important to have a country with as much clout as Germany standing up and saying this. Indeed, Zimmermann is also quoted as saying that the new German government plans to take a more vocal and proactive role on this issue.

Unfortunately, not all of the new coalition government's views on the internet appear to be as good or as helpful. The same article also notes that while some parts of the new governing coalition had campaigned on getting rid of Germany's truly awful NetzDG internet censorship law, the new government does not plan to support such a position, and may, in fact, support a similar EU-wide plan within the Digital Services Act (DSA) which is currently up for debate in the EU.

Germany’s Network Enforcement Act (NetzDG), which has a similar scope to the EU’s DSA and has served as its model, according to Zimmermann, is not without controversy in the country.

The FDP campaigned for its abolition during the Bundestag election campaign because, according to the liberal party, it encroached too much on civil liberties.

But Zimmermann does not believe the liberal party would drag its reservations on the NetzDG into discussions on the EU’s DSA.

“It is no longer a question of winning any symbolic victories, but we simply have to see that we get a good regulation in the end,” Zimmermann said.

That's an odd statement that seems to suggest that protesting the disastrous and censorial NetzDG is "symbolic." It's not. It's a terrible law that has been abused repeatedly and should be ditched entirely, not spread to the EU.

Filed Under: backdoors, censorship, civil liberties, content moderation, encryption, germany

Will COVID Become Australia's 9/11?

from the trading-away-the-liberties-of-others-for-temporary-safety dept

Civil liberties in Australia are on the verge of extinction, thanks to the government's response to the COVID crisis. What has been heralded as a triumph of science and quick responses has drifted towards something far more totalitarian that imposes its will on the country's citizens, restricting them from living their lives, much less enjoying supposedly guaranteed liberties.

Change has been a constant in response to this pandemic. But in countries considered to be part of the "free world," some balancing has been put in place to contain the spread of the virus while preventing citizens from being subjected to extreme measures usually only deployed by dictators.

Australia has proven particularly resilient. But while people here in the US have entertained thoughts of kidnapping governors in response to minimal restrictions on social interactions and shopping, the residents of Australia have endured severe restrictions that seemingly only get more severe as time goes on.

This is the exchange of liberty for safety -- an exchange that's been made involuntary by government officials. The arrival of the Delta variant has again complicated matters. And already severe restrictions are becoming draconian, thanks to the government of Australia believing there's no involuntary sacrifice residents won't make to keep COVID infections to a minimum

Conor Friedersdorf has compiled a compendium of Australia's latest COVID prevention efforts -- many of which haven't been seen in countries that aren't being run by Supreme Leaders or Presidents-for-life.

“Australia’s borders are currently closed and international travel from Australia remains strictly controlled to help prevent the spread of COVID-19,” a government website declares. “International travel from Australia is only available if you are exempt or you have been granted an individual exemption.” The rule is enforced despite assurances on another government website, dedicated to setting forth Australia’s human-rights-treaty obligations, that the freedom to leave a country “cannot be made dependent on establishing a purpose or reason for leaving.”

Australian courts have, so far, sided with the government and its increasing encroachment on civil liberties and personal freedoms. They have found that the government's needs outweigh the complaints of the governed in these COVID times, under the assumption these extreme measures are not only justified, but temporary.

But it's not just travel in and out of Australia that has been restricted. Travel within the country has been affected by COVID policies, turning a cohesive nation of states into separate territories whose boundaries are enforced with "papers, please" demands from people trying to do nothing more than move freely within the borders of their homeland.

Moving around one's own city or town is being restricted as well, enforced by a government-owned-and-operated app.

[T]he government of South Australia, one of the country’s six states, developed and is now testing an app as Orwellian as any in the free world to enforce its quarantine rules. Returning travelers quarantining at home will be forced to download an app that combines facial recognition and geolocation. The state will text them at random times, and thereafter they will have 15 minutes to take a picture of their face in the location where they are supposed to be. Should they fail, the local police department will be sent to follow up in person.

While not technically a crime, the involvement of law enforcement makes existing within the confines of a single town -- but not abiding by quarantine requirements -- something indistinguishable from criminal activity. It's not just law enforcement in the mix in Australia, though. It's also the military, which has been sent to places the government feels contains too many citizens unwilling to stay under the government's thumb.

Australia has deployed hundreds of soldiers to Sydney to help enforce a Covid lockdown.

A Delta outbreak which began in June has produced nearly 3,000 infections and led to nine deaths.

Australian Defence Force soldiers will undergo training on the weekend before beginning unarmed patrols on Monday.

In COVID-era Australia, those who refuse to respect the constantly shifting, tending-towards-totalitarianism policies will be greeted with a show of (possibly unarmed) force by local cops and the government's military.

Soldiers will join police in virus hotspots to ensure people are following the rules, which include a 10km (6.2 miles) travel limit.

State Police Minister David Elliott said it would help because a small minority of Sydneysiders thought "the rules didn't apply to them".

All of this is already concerning. But beneath the policies imposed out of supposed concern for the public's safety runs an unhealthy undercurrent. Once countries put drastic measures in place in response to unexpected threats to public wellbeing, they're rarely eager to roll them back once the crisis has passed, or even lessened.

What remains to be seen is whether Australia can maintain that performance without permanently ending core attributes of life in a liberal democracy, including freedom of movement, peaceable assembly, and basic privacy.

If the government likes its new powers, and its ability to keep its citizens contained, it may decide the crisis has no definite end in sight. And with the virus continuing to mutate (as all viruses do), these severe, but temporary, precautions and restrictions may become permanent -- allies in the government's never-ending War on COVID.

Filed Under: australia, civil liberties, covid, quarantine, surveillance

Why Are We Letting School Administrators Use Qualified Immunity To Escape Accountablity For Violating Free Speech Rights?

from the when-time-isn't-a-factor,-I-guess-just-keep-fucking-up dept

Administrators of publicly-funded schools have a strange habit of misunderstanding the limits of their power and failing to respect the freedoms extended to their students by the Constitution. Naturally, this has resulted in lawsuits. Lots of them. And lots of losses for administrators, including one recent notable loss delivered by none other than the US Supreme Court.

But administrators aren't actually feeling these losses, for the most part. As government employees, they have access to qualified immunity, which gives them a chance to avoid being sued as long as they've violated rights in a non-clearly-established way. (Not only that, but if this shield somehow fails, it's taxpayers who foot the bill for courtroom losses.)

An op-ed for USA Today, written by FIRE (Foundation for Individual Rights in Education) members Greg Lukaniaoff and Adam Goldstein, asks why we're allowing administrators to avail themselves of this protection, given they're not asked to make speedy decisions under tremendous pressure.

Qualified immunity was invented to protect public employees from being unfairly sued for doing their job in good faith. It was intended to be applied in situations where a government employee such as a police officer has to make a split-second decision and couldn’t be expected to know they were violating the law when they acted. In a sense, qualified immunity is the name we’ve chosen for the grace we grant public officials for unintentionally wrong decisions that otherwise would merit discipline, termination or damages paid to victims of violations of constitutional rights.

But campus administrators are not generally in situations like our hypothetical officer. Most are, in fact, in positions not unlike a judge, with ample time, staff expertise and opportunity to reflect on the constitutional implications of their decisions. And yet, qualified immunity is consistently invoked to protect those decisions, no matter how transparently unconstitutional.

While it makes (limited) sense to give cops a little leeway when dealing with possibly deadly situations, it makes very little sense to pretend school administrators are in the same position. The circumstances in which they find themselves on the wrong side of the Constitution never deal with life-and-death situations. Nor are they under any pressure to make hasty decisions on matters involving students' rights. They have ample opportunity to examine the issue before them and consider the implications (including the Constitutional ones) of their proposals and decisions.

And yet, they ask for qualified immunity, aligning themselves with government employees who don't enjoy the same luxuries they do. The pleas for immunity work often enough that the threat of lawsuits is rarely a deterrent. The fact that the public foots the bill to defend public employees from accusations of rights violations makes deterrence an even more abstract idea, leading administrators to treat violations like victimless crimes. As long as they aren't personally harmed, there's been no foul.

Without effective deterrents in place, terrible, bad, dumb stuff happens.

Administrators rely on qualified immunity to avoid consequences when they engage in intentional, considered and collaborative efforts to violate civil liberties, such as when they punished a University of New Mexico medical school student for a pro-life Facebook post; investigated two University of South Carolina student groups for holding a pre-approved demonstration specifically about freedom of speech; and denied an Arkansas State University-Jonesboro student the right to table for her student group because administrators censored all speech outside a “free speech zone” covering 1% of the campus.

The op-ed doesn't argue qualified immunity is a good thing for cops -- people who have plenty of training and experience, but apparently very little know-how when it comes to respecting rights. They shouldn't have it either. But, at least in some cases, mistakes are made during fast-moving situations that have the potential to be deadly. Administrators have all the time in the world to research applicable case law before taking action that affects students' speech. But they so very rarely perform due diligence and, with qualified immunity in place, can be rewarded for their willful ignorance.

Strip it all away. But if we have to start somewhere, why not take qualified immunity away from people who have the time and resources to carefully consider their actions, but appear more willing to do whatever they want and roll the dice on an early escape from litigation?

Filed Under: 1st amendment, civil liberties, civil rights, free speech, qualified immunity, schools

Papers Please Has Something To Tell You About The 'No Fly' List And It's Going To Make You Sad

from the more-Douglas-Adams-than-George-Orwell-tbh dept

How does someone end up on the federal government's "no-fly" list? You'd think the shorter, less-convoluted question would be how one avoids ending up on this list. Unfortunately, the answer to either question is a convoluted mess -- one complicated unnecessarily by the number of federal agencies that think they should have a say in who lives and who flies.

Papers Please has attempted to explain the no-fly list and its parameters. And it has kind of failed, albeit through no fault of its own. The interconnectedness of government things -- the wheels of which were greased with countless pieces of post-9/11 legislation, memoranda of understanding, data-sharing agreements, and the insistence of numerous agencies that they, too, were important cogs in the War on Terror Machinery -- has made this almost impossible to parse.

Behold your tax dollars at work preventing you from flying:

If you can't see the embed, here's an annotated PDF version.

There were demands -- some made by the incoming President's people -- that participants in the Red Hat Insurrection should be added to the no-fly list. Bad idea. The no-fly list has been abused for years and it's not getting any better. Courts may be coming around to the fact that arbitrary federal-level decisions with almost zero recourse isn't what America's all about, but if change is coming, it will be slow, expensive, and stymied constantly by invocations of the "national security" mantra.

Here are some of the facts. The FBI has used the no-fly list as leverage to turn Muslims into informants so it can more easily score empty net goals against supposed "terrorists" too poor to buy terrorist supplies and too mentally incompetent to formulate an attack plan, much less draft their own statement of ISIS allegiance.

The feds' belated focus on domestic extremists doesn't excuse years of projecting a presumption of guilt on Muslims just because some extremists decided to fly planes into buildings. But the presumption of guilt continues -- encompassing pretty much any American who desires to board a plane.

Airlines aren't much without passengers. So it's in their best interest to sell as many tickets as possible and board as many people as possible. Their default assumption is everyone's good to fly unless proven otherwise. The government has taken an opposing stance, presuming everyone guilty of latent terrorism.

[F]ly/no-fly decision-making by airlines differs from that of the U.S. government in two major ways.

First, for an airline the default is generally “Yes”, whereas for the U.S. government, as discussed above, it has been “No” since at least 2008. If you have a ticket, you look more or less alive and human, your clothing covers your “naughty bits”, and you don’t break any rules (more on that below), the airline will generally let you on the plane. You don’t (usually) have to prove that you aren’t a terrorist.

This creates friction -- something exacerbated by the TSA, which operates under its own rules and has been granted considerable discretion to ground passengers and/or subject them to multiple levels of increasingly invasive screening.

If no flags fly, passengers can attempt to board a plane. But airlines are also given a lot of discretion about whom to serve -- something most private companies enjoy.

Second, airline procedures generally involve a greater degree of human discretion and judgement on how to interpret and apply the fly/no-fly criteria. Airlines would say that this allows flexibility (sometimes good) but it also allows arbitrariness (bad). For better or worse, whether you are allowed to fly can depend on a gate agent’s temper and mood.

International flights further complicate matters by adding new laws and agencies to the mix. Considering what's going on behind the scenes, it's a miracle airlines have been able to fill planes with passengers over the last decade.

As noted earlier, placement on a no-fly list is almost impossible to challenge. The government -- mainly the DHS -- has argued no-fly list status isn't something anyone's entitled to litigate. The placement occurs without court involvement. So, the DHS apparently feels the exclusion of court review during placement demands exclusion of court review after placement. Since there's very little court intercession, US agencies have continued to add people to no-fly lists for almost no reason at all.

Challenging no-fly status is incredibly expensive. A couple of court cases have managed to poke some holes in the government's arbitrary groundings. But it takes deep pockets to take a lawsuit far enough that high-level courts express their concerns about the constitutionality of no-fly lists.

Only one no-fly case has gone to trial, resulting in something of a Pyrric victory: After eight years of litigation, Dr. Rahinah Ibrahim found out that she was put on the no-fly list because the FBI agent who interviewed her as part of his mosque-watching assignment misunderstood how to fill out the blacklist and watchlist “nomination” form. Dr. Ibrahim’s name was taken off that list. But her U.S. visa was revoked (despite the fact that her children were born in the U.S. and are U.S. citizens), and she hasn’t been able to return to the U.S.

Dr. Ibrahim’s pro bono lawyers incurred almost $4 million in expenses to overcome what the 9th Circuit Court of Appeals described as “scorched earth” and “bad faith” litigation tactics by the government. It took the lawyers another seven years to get paid, (finally, last month, fifteen years after they started working on the case) after the government appealed the fee award all the way to the Supreme Court.

Other cases have bubbled up to this level, but have yet to secure courtroom victories. The expenses incurred in these long-running legal battles are likely on par with this effort -- one that took seven years (and more litigation) to get repaid.

All of this leads to the current situation, where irresponsible lawmakers are leveraging unprecedented actions and political animus to call for a federal level fucking of Americans who did stupid stuff and will -- in many cases -- end up facing federal charges.

We find it especially ironic that calls to deploy measures like extrajudicial no-fly orders are being made by politicians who profess to be those most committed to the rule of law. The current no-fly system, as should be apparent from the description above, is the antitheses of the rule of law, and epitomizes the lawlessness of the DHS in particular.

Does everyone convicted of a crime belong on the no-fly list? If so, for how long after their conviction? What about people suspected or accused of crimes? And why shouldn’t these decisions be made by judges?

Why should we focus on air travel, anyway? Surely those who came to Washington by air were less likely to have brought firearms or explosives than those who came by car.

The no-fly list should not be an all-purpose weapon to be deployed against anyone who's acted irresponsibly and/or criminally. The no-fly list probably shouldn't be used at all against anyone, but if it is going to remain active, it should only target known terrorists the government can definitively show would endanger the nation if they were allowed to fly. The list should be short and targeted. Instead, it's become a catchall for everyone the government is unsure of, as well as a receptacle for Muslims the government failed to turn into informants. Adding alleged domestic terrorists to the list is unwise, as most of those raiding the Capitol committed crimes of opportunity, rather than premeditated acts of terror.

Papers Please has made an admirable attempt to explain the no-fly list and how it operates. But much of its underlying legal rationale remains obscured, buried by national security invocations and unjustified claims that explaining the system would somehow allow people to avoid it. It's an unavoidable -- and mostly unchallengeable -- part of American life at this point. And it's never going to get better if opportunistic politicians continue to believe it's something necessary to secure the nation against all threats domestic and foreign.

Filed Under: civil liberties, civil rights, doj, fbi, no fly list

Huawei Is Crafting Facial Recognition Tech That Will Make It Easier For The Chinese Government To Target Citizens It Doesn't Like

from the be-as-evil-as-possible dept

The Chinese government's war against its own citizens continues. The repression and persecution of China's Uighur population has been well-documented. The Chinese government is fighting a surveillance war on multiple fronts, beginning with its own citizens, who must maintain a positive "citizen score" to live life without too much government harassment. Its attempt to hold Hong Kong to the same oppressive standard has been met with significant resistance. But, in the end, China will consummate its takeover of Hong Kong with a removal of its independence.

Uighur Muslims have been the focus of the government's unmitigated wrath for years. China wants these residents either locked up or living in another country entirely. And it's pressuring tech companies to assist in their oppression. Far too many have complied. Documents seen by the Washington Post show Huawei has decided to be the Chinese government's posse, helping the government locate and target Uighur residents.

The Chinese tech giant Huawei has tested facial recognition software that could send automated “Uighur alarms” to government authorities when its camera systems identify members of the oppressed minority group, according to an internal document that provides further details about China’s artificial-intelligence surveillance regime.

The tech Huawei is developing attempts to determine a person's age, sex, and ethnicity using only facial shots. Given that this tech hasn't proven itself able to reliably recognize faces, it seems unlikely it will perform these extra tasks with better accuracy. False positives are guaranteed. And a false Uighur positive in China means citizens will be detained and subjected to a lifetime of brutal punishment just because they happened to trigger a Huawei "alarm."

According to Huawei, this proposed system has not gone live.

Both companies have acknowledged the document is real. Shortly after this story published Tuesday morning, Huawei spokesman Glenn Schloss said the report “is simply a test and it has not seen real-world application. Huawei only supplies general-purpose products for this kind of testing. We do not provide custom algorithms or applications.”

Maybe this is true. But it's also the sort of statement a company would release when being pressured by a government to avoid revealing ongoing surveillance programs.

Even if the system isn't live at the moment, that doesn't change the fact that it will be live at some point in the future. And the Chinese government will have a tool it can use to target a small percentage of its population -- a tool whose ability to recognize faces alone is already questionable. Adding in other factors only increases the possibility of false positives.

Then there's the mission creep. If it "works" for China, other countries looking to target people for their sex, race, or age will have a tool that's been field-tested and ready for deployment. China's not the only authoritarian regime looking for exciting new ways to persecute certain citizens. Following through with development of this tech means Huawei will be the go-to source for countries looking to add to their human rights violation rap sheets.

Filed Under: china, civil liberties, civil rights, facial recongition, surveillance, uighurs
Companies: huawei

Reuters Report Shows How The Supreme Court Has Turned Qualified Immunity Lawsuits Into A Rigged Game

from the making-a-malfunctioning-system-even-worse dept

Reuters has published an in-depth report on qualified immunity, the Supreme Court-created legal doctrine that allows law enforcement officers to avoid being held responsible for rights violations, so long as they've taken care to violate rights in a way courts haven't previously directly addressed.

The problem originates with the Supreme Court, which established this new quasi-right in a 1967 decision stating that police officers could be granted immunity for rights violations if they acted in "good faith." But it really didn't start going off the rails until 15 years later. In 1982, the Supreme Court expanded this protection, adding the "clearly established law" prong that has derailed countless civil rights lawsuits in the following forty years.

It's this prong that makes it incredibly difficult for plaintiffs to prevail. Without a case exactly on point, the rights violations are overlooked as not being "clearly established." And since courts are under no longer under any obligation to reach that far in their rulings, very few rights violations become "clearly established," allowing cops to violate rights with near impunity and force citizens to fund their defense in the resulting lawsuits.

It's this Supreme Court-encouraged stasis that Fifth Circuit Appeals Court judge Don Williett called out in a stinging dissent.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

What was already problematic was made even worse by the Supreme Court a little over a decade ago. Its ruling narrowed qualified immunity discussions to this single point, allowing court after court to avoid making any findings about the underlying rights violations.

The Supreme Court in 2009 raised the bar even higher for plaintiffs to overcome qualified immunity. In Pearson v. Callahan, it gave judges the option to simply ignore the question of whether a cop used excessive force and instead focus solely on whether the conduct was clearly established as unlawful.

In the decade since then, the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

That's the Catch-22 Judge Willett described. Since the discussion of the rights violation is limited to whether or not a court has declared that particular rights violation unlawful, courts look only for precedent on point, rather than establish any new precedent of their own. If courts do decide to establish precedent, or determine a previous case not exactly on point addresses the violations in the case in front of them, they're likely to see their decisions overturned by the Supreme Court.

Qualified immunity is the Supreme Court's baby. Understandably, it's done all it can to protect it. It has admonished courts for interpreting precedent too broadly. And it has shown a clear preference for giving officers stripped of immunity a chance to win it back.

Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court’s acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs’ appeals, the acceptance rate was slightly below the court’s average.

Nearly every decision has favored law enforcement officers. Given the way the system is set up, this outcome is unsurprising.

The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal.

This has resulted in appeals courts finding in favor of officers 57% over the last two years. This contrasts with cases heard prior to the Supreme Court's 2009 decision. Before that decision, the situation was nearly reversed, with courts finding in favor of plaintiffs 56% of the time.

Much of the point swing since 2009 can be directly attributed to the Supreme Court's "clearly established" focus. As the percentage of wins for plaintiffs has dropped from 57% to 43%, the percentage of cases where the question of excessive force has been ignored completely has grown to consume much of that 14 point difference.

This is based on the reporters' examination of 529 appellate cases published between 2005 and 2019. It also includes every qualified immunity case the Supreme Court chose to rule on or ignore.

If there's any good news, it's this: the Supreme Court may be reconsidering its continuous expansion of this self-created legal doctrine.

The high court has indicated it is aware of the mounting criticism of its treatment of qualified immunity. After letting multiple appeals backed by the doctrine’s critics pile up, the justices are scheduled to discuss privately as soon as May 15 which, if any, of 11 such cases they could hear later this year.

Justice Sonia Sotomayor, one of the court’s most liberal members, and Clarence Thomas, its most conservative, have in recent opinions sharply criticized qualified immunity and the court’s role in expanding it.

Unfortunately, no one's really sure what the best approach to fixing qualified immunity might be. There's zero chance the court will decide to eliminate it completely or severely limit its reach. But it could at least reestablish the examination of excessive force issues it has encouraged courts to ignore, allowing more violations to be clearly established. This would result in more plaintiffs seeing restitution and, hopefully, fewer police officers engaging in rights violations since the courts will no longer be quite as stacked in their favor. Whatever the case, the public isn't being served by this judicial doctrine, which has done nothing to limit deployments of excessive force or encourage officers to exercise restraint in questionable situations.

Filed Under: civil liberties, police, qualified immunity, supreme court

Arrest Numbers Show The NYPD Is Handling Pandemic Enforcement With The Same Biased Enthusiasm It Put Into Stop And Frisk

from the at-least-the-selective-enforcement-is-consistent dept

You can take the stop-and-frisk out of the NYPD, but you can't remove the biased policing, as the old saying goes. The NYPD may have been forced to stop pushing every minority up against the nearest wall/fence/cop car after a federal court determined this to be a violation of their rights, but they're apparently continuing to enforce laws very selectively.

On Thursday night, the Brooklyn district attorney’s office became the first prosecutor in the city to release statistics on social-distancing enforcement. In the borough, the police arrested 40 people for social-distancing violations from March 17 through May 4, the district attorney’s office said.

Of those arrested, 35 people were black, four were Hispanic and one was white.

More than a third of the arrests were made in the predominantly black neighborhood of Brownsville. No arrests were made in the more white Brooklyn neighborhood of Park Slope.

So, this is more than just anecdotal evidence. It's, you know, evidence evidence. Plenty of anecdotal evidence exists of inconsistent social distancing enforcement is available, if you're interested in seeing that as well.

This bothers Mayor Bill De Blasio -- the man who won the election by promising to be someone other than Mike Bloomberg, who loudly and proudly supported the NYPD's "right" to harass and detain minorities. But he's not upset enough. And he's upset incorrectly. Critics are calling this selective enforcement of pandemic efforts a new stop-and-frisk. De Blasio is only upset about the terminology.

“What happened with stop and frisk was a systematic, oppressive, unconstitutional strategy that created a new problem much bigger than anything it purported to solve,” he said. “This is the farthest thing from that. This is addressing a pandemic. This is addressing the fact that lives are in danger all the time. By definition, our police department needs to be a part of that because safety is what they do.”

That's just talking around the problem. Yes, the pandemic response isn't "systematic," but the ingrained habits that have resulted in minorities being disproportionately targeted by NYPD officers certainly are. And his siding with the NYPD aligns him more with the man he replaced than the public that elected him. Both De Blasio and Police Commissioner Dermot F. Shea claim this enforcement has been deployed "sparingly and fairly." It's hard to square "fairly" with the numbers released by the Brooklyn DA.

It also doesn't square with the total arrest numbers provided by the NYPD.

Citywide, black people make up 68 percent of those arrested on charges of violating social-distancing rules, while Hispanic people make up 24 percent, a deputy police commissioner, Richard Esposito, said late on Thursday night.

Only seven percent of the social distancing arrests citywide involved Caucasians.

The police union spoke up, because of course it did. The head of the PBA made one halfway decent point about bad laws and the problems inherent in enforcing them…

Patrick J. Lynch, the president of the Police Benevolent Association, declined to comment on Officer Garcia’s actions, but noted he and his colleagues “did not create the poorly conceived social-distancing policy they were sent out to enforce.”

… but followed that up by defending an officer who has been sued seven times and cost the city more than $200,000 in settlements. Officer Francisco X. Garcia was involved in a controversial social distancing arrest in which he punched a man onto the ground and then sat on him as he was handcuffed. Garcia has been removed from duty while this arrest is being investigated, which is apparently the equivalent of hanging this sinless man on the cross.

[Lynch] said City Hall was blaming Officer Garcia for carrying out the policy it had created. “Once again, our leaders are poised to trample a police officer’s rights in order to protect themselves,” he said.

Ah yes. Let's not "trample" those rights. But the rights of everyone else can be trampled while the NYPD fumbles its way through the pandemic, making minorities pay the price for the social distancing sins of an entire city.

Filed Under: bias, biased policing, civil liberties, nypd, pandemic, policing, social distancing

Police Department Shells Out $50,000 To Man After His Camera Catches Cops Fabricating Criminal Charges Against Him

from the talking-themselves-into-a-lawsuit dept

The Connecticut State Police have agreed to pay $50,000 to a man its officers subjected to a bunch of Constitutional violations on their way to issuing tickets to him for violations he never committed.

Here's a brief description of how this whole thing started:

On September 11, 2015, Picard was protesting near a police DUI checkpoint in West Hartford. One of the defendants, John Barone, approached him under the pretext of public complaints and confiscated Picard’s camera and lawfully carried pistol. Unbeknownst to the troopers, the camera was recording when Barone brought it to where co-defendants Patrick Torneo and John Jacobi were talking.

That's just part of what happened before the recording the officers weren't aware of captured them colluding to make up crimes to charge Michael Picard with.

There's more detail in the opinion [PDF] the court handed down last fall, which gave the State Police notice its officers were unlikely to escape Picard's lawsuit. One officer knocked Picard's video camera to the ground. When he picked it up to continue recording the officers, one of them did something really stupid.

While defendants discussed plaintiff, plaintiff picked up his video camera off the ground and aimed it at the three defendants.

Barone then walked back to plaintiff. He grabbed plaintiff’s video camera and told him, “It’s illegal to take my picture.” Defendants have admitted that Barone “told plaintiff that it was illegal to take his picture without permission to do so;” and that Barone “secured” plaintiff’s camera.

Once they had it in their possession, the cops ignored the camera. This is important because they later argued they seized it because they thought it might be a gun. If they really thought the camera posed a threat to them, you'd think they would have examined the camera. But they didn't.

If they had examined the camera, they might have noticed it was still recording. This is what the camera caught as it laid on top of the officers' vehicle.

Torneo spoke by phone to Lieutenant Allan to determine whether plaintiff had any “grudges;” asked why plaintiff was challenging them at the DUI spot checks; and discussed plaintiff’s past demonstrations.

Defendants Torneo and Barone verified that plaintiff’s pistol permit was valid, that his gun was not stolen, and that there were no warrants for his arrest.

On the video camera recording, Barone can be heard stating, “punch a number on this or do what? Gotta cover our ass.” Torneo can be heard saying, “Let’s give him something,” and “then we claim in backup that we had multiple people stop and complain … but they didn’t want to stay and give a statement.”

Here's the recording Picard's camera made -- one that captures officers colluding to create bogus criminal charges against a citizen.

Picard was charged with two criminal infractions. Both were dropped by the prosecutor. More importantly, the court refused to extend qualified immunity to these officers on Picard's Fourth Amendment violation allegations. It also refused QI on Picard's First Amendment retaliation claim. With three officers facing a jury trial, the State Police has decided to buy its way out of this using taxpayer money.

This incident shows why recording police officers isn't just important, it's necessary. While it may be difficult to record officers' discussions once they're back in their vehicle, having a recording device visible and present may deter cops from fabricating charges just because they don't like the legal activity you're engaged in. Officers are usually pretty careful to ensure their own illegal activity goes unrecorded, but it's tough for them to control devices operated by citizens.

Filed Under: cameras, civil liberties, connecticut, free speech, police, protests, west hartford

Federal Court Permanently Blocks Michigan's Sex Offender Registry Law, Tells Legislators To Try Writing A Constitutional One

from the it's-only-a-230-year-old-document-that-people-have-hardly-heard-of dept

Michigan's sex offender registry has been struck down as unconstitutional. It's the result of multiple legal battles, tracing all the way back to 2010. The latest round of litigation has finally killed the law -- something legislators allowed to stay on the books after being told pretty much the same thing by the Sixth Circuit Court of Appeals in 2016.

If you really want to dig into the details of this years-long attempt to overturn the law, you really should read Guy Hamilton-Smith's guest post at Simple Justice. He quotes the Sixth Circuit's 2016 opinion, which really should have resulted in something better than the state offered in response, which was nothing. Due process isn't something very many sex offender registries do well, and Michigan's SORA was one of the worst.

SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

Since this opinion only applied to the plaintiffs in this case, legislators refused to take the hint the law was unconstitutional on its face. A second lawsuit, brought by the ACLU as a federal class action, has finally achieved what the first one didn't: an injunction permanently preventing the state from enforcing this law against anyone.

With the Michigan legislature unwilling to act to comply with Does I, and the statute not being severable, the outcome flowed naturally. Judge Cleland entered permanent injunctions as to two distinct classes of plaintiffs.

The first class was the Ex Post Facto class, which is to say that the order precludes the application of Michigan’s SORA law at all to anyone who was convicted prior to 2011.

The second class includes anyone required to register at all, regardless of when their offense was committed. Michigan’s SORA, like many around the country, contains (or, perhaps more aptly, contained) within it myriad restrictions on where people required to register may live with their families, where they may travel, where they may work, and requires them to report in person to provide minor changes in their information to authorities. Failure to abide by these often hyper-technical. if not entirely untenable, requirements would often lead to new felony prosecutions, often on a strict liability basis.

Cleland also permanently enjoined the enforcement several of these provisions on Due Process and First Amendment grounds for this class of plaintiffs, as well as reading into SORA a knowledge requirement, thus, precluding criminal prosecutions on a strict liability theory.

In practical terms, this means Michigan does not have a sex offender registry at the moment. Presumably, legislators will be far more active this time around, since the inability to ostracize certain criminals isn't going to play well with their constituents. But they'll have to be far more careful this time around, and actually allow these citizens who've served their time to become part of the communities they live in, rather than the drifters and pariahs politicians want them to be.

To be sure, there are horrible people on sex offender registries who've violated and harmed victims in horrific, incalculable ways. But there are also people on registries who've done nothing more than send sexts to their peers, or urinated in public, or happened to be a few months on the wrong side of consent laws. It's not just child rapists who end up on these lists. It's people who've made a juvenile mistake (in most senses of the word) and are now forced to navigate a labyrinthine law to live their lives -- one that makes it almost impossible to live anywhere in the United States while simultaneously erecting obstacles that prevent them from rejoining civilization on any level.

The opinion [PDF] includes a list of SORNA's demands that fall outside of the Constitution -- prohibitions and requirements state legislators won't be allowed to use in their replacement law.

(a) Provisions Void for Vagueness:

(1) the prohibition on working within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(3) the prohibition on residing within a student safety zone, Mich. Comp. Laws. §§ 28.733, 28.735;

(4) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(h);

(5)the requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws.§ 28.727(1)(j).

[...]

(c) Provisions Void under the First Amendment:

(1) the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” Mich. Comp. Laws. § 28.725(1)(f);

(2) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual, Mich. Comp. Laws.§ 28.727(1)(h);

(3) the requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(l);

(4) the retroactive incorporation of the lifetime registration’s requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws. § 28.727(1)(i).

The court says a Constitutional sex registry is possible, but the state has had almost a decade to fix this and has only made it worse. It now has sixty days to craft a suitable replacement. Until it does, it cannot enforce the worthless one it still has on the books.

Filed Under: 6th circuit, civil liberties, constitutional, michigan, sex offender registry, sex offenders, sora