New Illinois Law Says Cops Need A Warrant To Grab Data From (Some) Third Parties

from the on-the-other-hand,-you-still-have-to-deal-with-the-Chicago-PD dept

The state of Illinois continues to provide more protection than the US Constitution. Its privacy laws exceed what has been determined to be "reasonable" violations of privacy by decades of court precedent. This has allowed it to go after companies for violating state laws, even when the collections being prosecuted would likely be legal under the Supreme Court-created "Third Party Doctrine."

State law allowed Facebook to be successfully sued over its facial recognition program -- one that detects faces and attempts to match them to Facebook profiles to "tag" photos with names of account holder's "friends." This resulted in a $550 million settlement from Facebook -- a relative bargain considering the original asking price was $35 billion.

It also has allowed the state to move forward with its lawsuit against odious facial recognition tech provider, Clearview. Clearview sells access to its database and AI to government agencies for the alleged purpose of identifying criminal suspects. The AI -- finally independently tested years after its debut -- appears to be fairly solid. But its 10 billion image (and counting) database is composed of images and personal info scraped from thousands of websites and social media platforms. According to the state of Illinois, this collection violates state privacy laws because Illinois residents are not informed of this collection, nor are they given any opportunity to opt in or out.

Third parties aren't the only ones availing themselves of data harvested from the web. Government agencies are taking advantage of massive collections assembled by data brokers. The assumption by law enforcement is that no warrant is needed to obtain location info and identifying information from third parties because there's no expectation of privacy in information shared with apps, websites, and service providers.

It should be clear that's likely not acceptable in Illinois where state law regulates these collections to ensure end users are protected (at least somewhat) by mandates requiring notification and consent. Nonetheless, law enforcement persists in accessing this data, assuming their actions aren't illegal even if the collections they're accessing have been illegally obtained.

That's going to change. A new law that went into effect at the beginning of this year says Illinois law enforcement can no longer access this information without a warrant.

A first-of-its-kind law in Illinois limiting law enforcement access to data from household digital devices sits at the forefront of an emerging legal debate over protecting the privacy of such records.

The state’s law, which takes effect Jan. 1, comes as law enforcement seeks to tap into consumers’ growing collection of internet-connected devices, from smart speakers to security cameras. These devices can capture conversations, movements, and other information that could be used for investigating crimes.

Known as the Protecting Household Privacy Act, the law restricts the sharing of device data by requiring a search warrant or permission from the device’s owner, with some exceptions in emergency scenarios.

As noted above, the law [PDF] contains warrant exceptions that can be used if law enforcement believes there's an imminent threat to someone's life or safety, as well as if the officer believes a warrant could have been obtained but is somehow prevented from obtaining one immediately. That last exception is a nod to the "good faith exception," but the law at least demands officers still apply for and obtain a warrant for data collected under the exigent circumstances exception. And it's limited to certain devices, which means information from some data brokers will still be obtainable without a warrant.

The law is pretty solid. Exigent circumstances can be used to avoid seeking a warrant first, but a warrant must be obtained within 72 hours to legitimize the warrantless collection.

The bigger problem is the Stored Communications Act. This federal law is far less stringent and would allow Illinois law enforcement agencies to bypass the law by partnering with federal agencies. In those cases, federal law would apply. And even if local agencies don't seek this information directly, they will obviously have indirect access to whatever has been obtained by federal agencies.

The law seeks to head this off with this language:

In the event of any conflict between this Act and any applicable federal or State law, the requirement that establishes the higher standard for law enforcement to obtain information shall govern.

But, as stated above, this restriction only applies to Illinois agencies. Federal agencies can still obtain the data and presumably share it with local agencies to help them route around these newly imposed restrictions.

Despite its shortcomings, the law provides far more protection for Illinois residents than federal law -- or federal court decisions -- provide. It's a win for locals that generates some friction for federal partnerships. How the applicable restrictions will be applied remains to be seen, but it's a good move by the state to protect residents from the government overreach enabled by the Third Party Doctrine.

Filed Under: 4th amendment, illinois, privacy, warrant

Another Illinois Appeals Court Handles Compelled Password Production, Says There's No Fifth Amendment Issue Here

from the residents'-rights-are-now-determined-by-where-they-reside-in-the-state dept

The Fifth Amendment implications of compelled password production has reverted from "somewhat settled" to "not settled at all" in the state of Illinois.

In 2019, an Illinois appellate court said the Fifth Amendment protects people against compelled password production to unlock devices. As the court pointed out in that decision, investigators had zero interest in the password itself. They were interested in what it would give them access to, which was all the evidence allegedly on the locked phone.

The state relied on the "foregone conclusion" theory. In the government's view, the only information it needed to know with certainty is that the phone belonged to the suspect and that the suspect knew the passcode to unlock it. But the appellate court said that wasn't the right conclusion. What investigators wanted was access to the phone's contents, and it could not compel production of a passcode just to see if its guess about evidence contained in the phone was correct.

Here, the State is not seeking the passcode per se but the information it will decrypt. The cases that declare the passcode to be a nontestimonial communication operate under the framework that the passcode is the testimonial communication and that it falls under the foregone conclusion exception to the fifth amendment privilege. We consider that the proper focus is not on the passcode but on the information the passcode protects. The State claims it sustained its burden of proving with reasonable particularity that it knew the passcode existed, that Spicer knew the passcode and that it would be authenticated by entering it into Spicer’s phone. However, what the State actually needed to establish with reasonable particularity was the contents of the phone, which it did not do.

That decision didn't settle every open question about the Fifth Amendment's application to locked devices and compelled production, but it did set a baseline for law enforcement to reach if it expected courts in this district to ask for orders demanding the surrender of passcodes.

But that was the Third District. The Fourth District Appellate Court has a different set of standards and it has sided [PDF] with the state, finding that the Fifth Amendment doesn't apply to compelled production. (via FourthAmendment.com)

The trial court sided with the defendant, saying the state had not met its "foregone conclusion" burden and recognizing the constitutional implications of, in essence, forcing someone to testify against themselves by compelling access to possibly incriminating evidence. It specifically cited the 2019 Third District Appeals Court decision in its opinion.

[R]elying on Spicer, the court found that, for the doctrine to apply, the State must show with reasonable particularity that, when it sought the act of production, it “knew the evidence existed, the evidence was in the [d]efendant’s possession and it was authentic.” The court noted (1) a valid search warrant had issued for the phone’s contents, which defendant did not challenge, and (2) law enforcement has a right to access the contents of the cell phone. The court concluded, however, that it “would be speculation to presume at this point that the photograph would still be on the phone,” and it “[could not] find here that it’s more likely to be found on the [d]efendant’s phone any more than it might be on the [co-defendant’s] phone.” Accordingly, the court found that the State did not show the foregone conclusion doctrine applied and denied the State’s motion to compel defendant to provide access to his cell phone.

The Appellate Court disagrees with this assessment. It sets the "foregone conclusion" bar much lower than the Third District did, saying the only thing the government needs to know is whether or not the phone likely belongs to the defendant and that they likely have the ability to unlock it.

Investigators obtained phone records linking the seized phone to the defendant and double-checked this by calling the number listed on the phone records. The lockscreen showed the incoming call from the police station phone, adding more evidence that the phone held by investigators belonged to the suspect facing fraud charges.

To reach this conclusion, the court considers -- and discards -- rulings from the state and federal level that found that compelled production is a form of testimony. Instead, it decides that punching in a passcode is an effort so free of mental effort it's no different than a fingerprint or a blood sample.

The questions raised in Stahl and Andrews regarding the continued viability of the key/combination analogy (i.e., mental/physical dichotomy) in the digital age deserve consideration. We, too, observe that a cell phone passcode is a string of letters or numbers that an individual habitually enters into his electronic device throughout the day. A passcode may be used so habitually that its retrieval is a function of muscle memory rather than an exercise of conscious thought. A fair question that arises, then, is whether the rote application of a series of numbers should be treated the same as the Hubbell respondent’s “exhaustive use of the ‘contents of his mind’ ” to produce hundreds of pages of responsive documents. The two scenarios appear to bear no resemblance to each other.

Going further, the court says the defendant isn't actually going to be telling investigators anything. He is not being ordered to turn over his passcode, but rather enter it to unlock the phone investigators have a warrant to search. While the lower court was correct to rely on precedent set in 2019, the precedent doesn't make any difference in this district.

After comparing conflicting opinions from across the nation on what "foregone conclusion" needs to be reached (a. phone can be unlocked by the defendant, or b. phone contains evidence relevant to the case), the court decides it's the former.

Placing the focus of the foregone conclusion doctrine on the passcode rather than the documents or evidence contained on the phone appears to strike the most appropriate balance between fifth amendment concerns and fourth amendment concerns. In this case, the State’s motion seeks the compelled production of the passcode. The production of the passcode will lead to the contents of the phone, for which the State has obtained a valid search warrant that defendant does not challenge.

According to this appeals court, finding otherwise would allow defendants to hide behind the Fifth Amendment even when the Fourth Amendment has been satisfied.

[H]e seeks to utilize the fifth amendment to prevent the operation of the fourth amendment, which authorizes (as here) the issuance of a search warrant based upon a verified complaint showing probable cause for the presence of evidence of a crime in the premises (here, the cell phone) to be searched.

By focusing (1) the fifth amendment analysis on the production of the passcode and (2) the fourth amendment analysis on the evidence contained on the phone, one constitutional provision does not become either superior or subservient to the other. Further, doing so ensures that the protection against compelled self-incrimination and the interests of law enforcement in executing a valid search warrant are both respected.

That's how it stands in the Fourth District. Even though it disagrees with the Third District's conclusions, it can't actually override that precedent. So, the Fifth Amendment has differing levels of protections depending on which district is handling criminal cases involving compelled production of passwords. Sooner or later, the state's top court is going to need to step in and reconcile these differences.

Filed Under: 5th amendment, compelled password production, illinois, passwords, self-incrimination

Public Records Plumb The Depths Of Illinois Law Enforcement's Accountability Black Hole

from the regular-rogues-gallery-of-[lol]-public-servants dept

The Chicago Police Department isn't willing to police itself. That much is apparent from the actions of its officers, which includes the department setting up an inner city "black site" where arrestees were separated from the rights and representation in order to coerce confessions.

Nonexistent oversight has led directly to horrific outcomes, like unjustified killings and -- in just one jaw-dropping stat -- 100 misconduct accusations resulting from a single SWAT team raid of a wrong address.

Will it ever get better? It seems unlikely. In Illinois, police accountability isn't even an afterthought. Some reforms were passed earlier this year but with a large concession to police departments: a partial burial of officers' misconduct records.

At the same time that the 2021 law expanded the information in the misconduct database and required local departments to check it, a last minute amendment closed the database to the public and courts.

That loophole is on pg. 669 of the text. It reads: “The database, documents, materials or other information in the possession or control of the Board that are obtained by or disclosed to the Board pursuant to this subsection shall be confidential by law and privileged and shall not be subject to discovery or admissible in evidence in any private civil action.”

That's a pretty big loophole. There's a workaround, but it requires parties to approach individual law enforcement agencies to obtain these records, rather than simply get them from the state's Training Standards Board, which is charged with collecting them from all over the state. A little secrecy goes a long way. Records can still be obtained, but it all but makes it impossible for outsiders to quantify how much misconduct is being reported across the state or how much of that misconduct is resulting in punishment.

That's the way the police like it. Cops in the state -- especially in Chicago -- are tough on crime… unless it's criminal acts or rights violations committed by officers. The Pulitzer Center has obtained a number of records from across the state via public records requests, which shows how often officers walk away from sustained allegations and criminal charges.

Eighty-one Chicago police officers lost their badges over the past 20 years, but only after being investigated for 1,706 previous offenses – an average of 21 accusations per officer.

When law enforcement agencies say some horrible thing in the news is the result of a "bad apple," they're referring to officers like these ones. But agencies are obviously fine with having bad apples floating around their barrels. Bad apples create more bad apples. The simplest thing to do would be to send these officers packing when it becomes apparent they can't be trusted. Somehow, it is always anyone but police officials pointing out the worst of the worst, months or years after sustained damage has been done.

This is what Illinois residents' tax dollars are paying for:

From 2000 to 2020 law enforcement officers in Illinois kept their badges even if they engaged in domestic abuse, sexual harassment, racism, perjury, most misdemeanors and other offenses unbecoming of a police officer.

Over the entire year of 2020, Illinois decertified two officers – one for theft and the other for an offense labeled “other,” an ambiguous category occasionally used in the state’s decertification records.

From Jan. 1, 2000, to Jan. 1, 2021, Illinois decertified 347 officers, an average of fewer than 17 a year.

But that's not even the worst of it. This is:

[Norberto] Rodriguez held on to his police license for almost a decade after he went to prison on a 52-month sentence for transporting four kilos of heroin. The state decertification board said Chicago officials failed to notify them of the conviction.

Chicago police investigated Rodriguez for domestic abuse three times during the 1990s and he was suspended or asked to take an unpaid leave for a total of 48 days. In 1992, the department investigated him for assault/battery, an allegation the department sustained.

In 1997 prosecutors charged him with the attempted murder of his wife, Irma, for shooting her in an argument. These charges were dropped, but the department fired him.

[...]

Rodriguez killed his wife, Irma, in 2009, and a jury found him guilty of first-degree murder in 2017.

The twist? His police certification wasn't revoked until two years after he murdered his wife. And he held onto it for nine years after he pled guilty to federal drug charges and for twenty years after he was fired by the PD.

The Chicago PD has employed two officers who murdered their spouses.

[Rafael] Balbontin was decertified in 2007 for a “felony.” Before this, Chicago police investigated him for “murder/manslaughter” in 2005, which the department later changed in its final complaint category to a “domestic altercation,” for which it fired him.

The “domestic altercation” was in 2005 when Balbontin stabbed his wife, Arcelia, to death in her home. He was later convicted of murder and sentenced to 25 years in prison.

The PD can't even bring itself to acknowledge the actual crime committed by its officer. A "domestic altercation" can result in murder, but murder is never just a "domestic altercation"... unless it has to be documented in an officer's employment record.

And bad cops (there are plenty listed in this report) were free to bounce around the state, infecting other agencies after being (in very rare cases) fired or forced to resign. It wasn't until this year that the state's law enforcement agencies were required to perform background checks and verify prospective officers were still certified. Agencies were always free to approach the state's law enforcement training board to check on officers' certifications. But they never did.

In response to a FOIA request, the board acknowledged it had no record of a local department requesting the certification status of an officer from 2000 to 2019.

The board excused this lack of interest in its certification records by pointing out agencies could get the same information from the Professional Misconduct Database that was created in 2019. Most agencies couldn't be bothered to do that either.

This database was used 48 times in its first year of operation but never by the Chicago Police Department as of December 2020, according to a FOIA request.

Don't ask, don't tell: law enforcement edition. This is how the Chicago PD (and others in the state) came to employ (for years on end) rapists, fraudsters, extortionists, domestic abusers, actual murderers, and officers with misconduct rap sheets longer than the criminal records of the people they arrested. If accountability begins at home, the state's police agencies stepped out to buy a pack of smokes shortly after formation and never looked back.

Filed Under: chicago pd, foia, illinois, public records, transparency

Officer Claims Sheriff's Office Told Him To Play Copyrighted Music To Shut Down Citizens' Recordings

from the future-is-Denis-Leary's-'Asshole'-on-repeat-forever dept

The new hotness for law enforcement is trying to end the careers of police accountability activists. When approached by people filming them, officers from multiple law enforcement agencies have begun playing the zero-accountability hits, hoping that notoriously litigious artists like Taylor Swift and the Beatles will join forces to keep these recordings from being uploaded to social media sites.

The thought process is so simple a cop could understand it. When someone starts recording or livestreaming, crank up some music in hopes the copyright bots will recognize the track and shut the whole thing down. Even if it can't terminate a livestream, it might terminate a few pesky accounts with enough copyright strikes.

One law enforcement officer straight up admitted to the people filming him that he was playing music in hopes of keeping the video from making it past YouTube's copyright cops, much to the eventual dismay of his fellow officers. The Alameda County Sheriff's Department has learned from this Streisanding, and has since made it official policy to forbid the playing of copyrighted content for the sole purpose of thwarting the recording of officers by members of the public.

Welcome to the flipside. Matthew Gault and Motherboard have uncovered a document written by an officer who deployed the same tactic claiming his employer specifically directed him to engage in this IP-abusing effort.

On February 25, an activist running the YouTube account Accountability Angel attempted to enter the LaSalle County Sheriff's office in Ottawa, Illinois. James Knoblauch blocked her approach, ignored her questions, took out his phone, turned on Blake Shelton’s “Nobody But You,” and cranked up the volume.

According to an incident report obtained by Motherboard via a Freedom of Information Act request, someone told Knoblauch to turn on the music.

The recording of this incident can be seen here. And the report, written by Knoblauch, can be seen here [PDF]. This confirms previous reporting on the incident by Motherboard, which ran under the headline "It Sure Looks Like This Cop Played Country Music to Avoid Being Filmed."

In the video, James Knoblauch, who had been chief of police in nearby Oglesby until he retired (after previously being removed from office) last year, approaches the camera. Angel asks why she is not being allowed into the building with her phone.

But instead of answering, Knoblauch silently reaches into his jacket pocket, pulls out his phone, and starts swiping. Moments later, we hear music playing. He boosts the volume, just in time for us to hear the opening strains of country star Blake Shelton’s “Nobody But You” featuring Gwen Stefani

Here's what the report says [all spelling/grammatical errors in the original]:

Upon arrival, I observed a female, Angel Famer who I've had prior dealings with. At this time, I observed Angel holding up a selfie stick with a cell phone attached to it. It appeared that she was video recording from the vestibule area.

I then entered the vestibule area and stood in front of Angel and advised her that cell phones were not allowed in the building and that she would need to take her cell phone out to her vehicle or rent a locker at the jail.

As I was recently advised, I then turned on some music. At this time Angel became belligerent to me about the music. [...] I continued to stand in the vestibule area in from of her. Angel continued to say I was denying her right and that I was an oath breaker. Angel continued to be belligerent towards me with comments such as, shut your fucking music off and called me "no balls."

So, that's the claim made by James "No Balls" Knoblauch, former Oglesby (Illinois) police chief and current court officer employed by the LaSalle County Sheriff's Office. Did his employer actually tell him to thwart accountability by misusing the intellectual property of others? Knoblauch had better hope so, since it's right there in black and white on an official report. The Sheriff's Office has refused to comment on the incident, which suggests it at least implicitly supports his actions. But it will probably take another set of public records requests to uncover the truth.

Until then, we can assume Knoblauch is aware of similar shitty tactics deployed by cops elsewhere in the country. What he doesn't seem to be aware of is the fact that it hasn't worked yet. All this shows is Knoblauch is like those other officers: someone who thinks the people should continue to cut paychecks for officers who respond to accountability efforts with open hostility.

Filed Under: copyright, dmca, illinois, james knoblauch, lasalle county, lasalle county sheriff, ottawa, police

Illinois Governor Signs Law Banning Cops From Performing Background Searches On Public Speakers

from the hey,-this-is-the-1st-Amendment.-have-you-met? dept

The Chicago PD has a host of problems. Ones that have gone unaddressed for years and appear to remain unaddressed even after the federal government has been forced to step in. Misconduct goes unpunished, investigations into officers are left uncompleted, the PD buys surveillance tech with forfeiture funds to dodge its oversight, and it operated a CIA-style black site in the city where arrestees and their rights vanished with alarming regularity.

For years, the Chicago PD has also apparently investigated citizens who speak at public meetings. A 2019 investigation by the Chicago Tribune, aided by public records requests, uncovered this secret attack on the First Amendment.

Documents obtained by the Tribune under a public records request show the Police Department gathered the details on nearly 60 people in advance of their speaking at monthly meetings of the Chicago Police Board since at least January 2018. A police spokesman said the background checks go back further, to at least 2013.

The checks appear to be extensive, with police searching at least one internal department database to determine if speakers have arrest or prison records, warrants outstanding for their arrest, investigative alerts issued for them by the department and even if they’re registered sex offenders or missing persons. Police also searched comments that speakers had previously made on YouTube or on their Facebook and Twitter accounts, among other internet sites, the documents show.

Among those subjected to background checks were a woman who alleged she was sexually assaulted decades ago by a Chicago police officer, a community activist who gained prominence after the fatal shooting of Laquan McDonald by a police officer and a 77-year-old man known for his frequent, flamboyant rants on a variety of topics at public meetings across the city.

It actually goes back further than 2013. Other public records indicate the Chicago PD has been doing this for more than 15 years, beginning in 2006.

The background searches only targeted certain speakers at certain public meetings: those wishing to express their opinion during comment sessions hosted by the PD's oversight. Upon revelation of this practice, Police Superintendent Eddie Johnson offered up two useless comments. First, he claimed the PD had never acted on this information. Then he promised to end it, but seemingly because it was a pointless exercise in police overreach.

“I don’t think we have a reason at this point to continue it," said Johnson, who often attends Police Board meetings with members of his command staff. "It’s done.”

It's really done now -- at least as far as one background search database goes. The involuntary decision to end the practice of running searches on public speakers has been codified.

Gov. J.B. Pritzker on Friday signed into law a measure that makes it illegal for police to use at least one commonly searched law enforcement database to conduct criminal background checks on citizens who sign up to speak at public meetings statewide.

[...]

The new law, which goes into effect immediately, bars police agencies throughout Illinois from conducting background checks on citizens “for the sole reason” of that person speaking “at an open meeting of a public body, including police disciplinary boards.”

But the bill only forbids use of the LEADS (Law Enforcement Agencies Database System) database for these searches. It doesn't prevent the Chicago PD (and other agencies) from using other criminal record/background check databases they have access to. There's also a public safety exception that allows cops to run searches if they "reasonably" believe a speaker is a security threat or may engage in criminal conduct. That's a pretty massive exemption and one that can be abused without officers fearing they may be punished by employers that have shown little interest in punishing them for their misconduct.

However, if LEADS is used and an officer can't find a way to justify the search, there are actual consequences. A violation of the law can lead to 30 days in jail and a fine of up to $1,500. Considering how hesitant governments are about punishing their own, it seems unlikely we'll see many officers punished for violating this new ban. If the cops want to dig up dirt on public speakers, they'll find a way to do it. The better deterrent is something law enforcement agencies can't control: speakers are allowed to sign up to speak at meetings 15 minutes ahead of its start, rather than 24 hours prior. That gives some power back to the people, making it far more difficult for dossiers to be compiled by police officers more interested in abusing their powers than respecting people's rights.

Filed Under: background checks, chicago, chicago pd, free speech, illinois, intimidation, police, public meetings

After Eight Years And Three Reviews Of The Case, Indiana Supreme Court Rules Police Must Return Seized Car To Its Owner

from the thousands-of-dollars-spent-fighting-against-the-public's-interests dept

It's now been eight years since Indiana law enforcement seized Tyson Timbs' Land Rover following his arrest for distributing drugs. In eight years, this case has made multiple visits to the state trial court, the state court of appeals, the state's Supreme Court, and the nation's Supreme Court.

This isn't just due to Timbs' tenacity and his desire to have his car returned. His only car -- worth $35,000 when it was seized -- has been sitting in an impound lot for most of decade, all because of criminal charges that netted Timbs $1,200 in fines and one year of home detention.

No, these multiple trips are due to the state of Indiana attempting to prevent precedent from being set that would prevent it from seizing whatever it wants whenever it wants. Previous rulings found excessive fines -- in this case taking the form of a $35,000 vehicle seizure over $400 of heroin sold to undercover officers -- violate the Eighth Amendment. And these rulings also reminded the state that it had incorporated that part of the US Constitution years ago and couldn't try to ignore it now just because it still wants to avail itself of Benjamins when ringing up people on nickel-and-dime charges.

So, for the third time, the Indiana state Supreme Court is forced to handle the Timbs case because the state has refused to accept every previous ruling that has gone against it, including the one handed down by the US Supreme Court. The opening of the ruling [PDF] expresses some of the court's exasperation with the state's stubbornness.

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover. And, again, the same overarching question looms: would the forfeiture be constitutional?

Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again. During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines. Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.

All of these questions have been capably handled at each step of this long, laborious process. The problem is the state doesn't like the answers it's been getting. And the state Supreme Court doesn't appear to like the state's refusal to listen. There are some facts to consider, but as far as the state's top court is concerned, they were answered amply by the lower court.

[U]ntil now, the proportionality inquiry remained unresolved—that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse? The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019). Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.

The key is the excessive fines part of the Eighth Amendment. The courts must decide whether the seizure was proportionate. The lower court -- after hearing from witnesses on Timbs' behalf (the state decided not to call any of its own) -- made the right call by weighing the cost against the crime. The seizure of Timbs' only vehicle didn't serve any greater public interest. All it did was enrich the state at Timbs' expense.

[C]ontrary to the State’s position, we conclude that the $35,000 market value of the vehicle and the other sanctions imposed on Timbs point to the punitive, rather than remedial, nature of the forfeiture. As Timbs II explained, it’s appropriate to evaluate the market value of the forfeiture relative to the owner’s economic means—because “taking away the same piece of property from a billionaire and from someone who owns nothing” do not reflect equal punishments. 134 N.E.3d at 36. And, here, taking away a $35,000 asset from someone who owned nothing else was significantly punitive. Likewise, imposing the forfeiture on top of other sanctions—sanctions that included six years of restricted liberty as well as $1,200 in fees and costs -- shows that the vehicle's seizure was not for remedial purposes.

Finally this comes to an end, years after it should have been obvious seizing Timbs' car violated the Eighth Amendment right to be free from excessive fines.

Accordingly, we affirm the trial court; and the seven-plus-year pursuit for the white Land Rover comes to an end.

The state and its law enforcement agencies are now subject to a proportionality test that weighs the severity of the crime against the value of the items seized. If this test stands during criminal asset forfeiture -- the seizures accompanying actual criminal charges -- it needs to be applied to cases where law enforcement can't even be bothered to affect an arrest, much less pursue criminal charges when seizing property. This is good news for Indiana residents. And it has the potential to disrupt forfeiture efforts nationwide.

Filed Under: 8th amendment, asset forfeiture, civil asset forfeiture, due process, illinois, tyson timbs

Court To Cops: Waiting Sixteen Months To Search A Seized Phone Violates The Fourth Amendment

from the turn-times-so-ridiculous-general-contractors-are-aghast dept

A recent case handled by an Illinois Appeals Court has some interesting things to say about cellphones and searches. It also contains some rather interesting assertions by law enforcement, which apparently didn't feel all that compelled to search a seized phone for more than a year after it was seized. (via FourthAmendment.com)

It's a drug and gun case, with the defendant facing two felony charges. Lamar Meakens was arrested following a traffic stop where contraband was discovered and his phone was seized. Here's how the court sums up that initial interaction in its opinion [PDF]:

Just after midnight on May 28, 2017, a Naperville police officer stopped defendant for speeding. Based on an odor in the car, the officer called for a canine search. The searching officers found eight $100 bills (several of which had identical serial numbers), a loaded .40-caliber handgun, and two unlabeled pill bottles, which in turn contained bags that held pills marked Xanax, a green leafy substance, and a white powder. While defendant was in the back of the squad car, he used the iPhone at issue to make a call.

The cops took everything they found, including the cellphone Meakens was using. The record is unclear as to why the cops took this phone but the court points out in a footnote that it should have been released to Meakens when Meakens was released from custody.

We note that a cell phone is not contraband; therefore, defendant’s cell phone should have been returned to him upon his initial release.

But that's not what happened. The PD instead decided to hold onto Meakens' phone for nearly sixteen months. It was only shortly before the trial began that officers finally sought a warrant and performed a search of the seized phone.

When the government was asked why it had taken so long to seek a warrant, it claimed that the delay was irrelevant. After all, taking a person's phone away for sixteen months hardly inconveniences them. Also Meakens was in jail where he wouldn't have access to it anyway.

The State, however, argued that an iPhone is, by its nature, easily replaceable. Therefore, the possessory-interest impact of seizing a suspect’s cell phone is necessarily less than, for instance, seizing a suspect’s luggage. The State also argued that defendant’s possessory interests were at a minimum while he was held in jail.

It's amazing that a government can still pretend the contents of a phone are analogous to the contents of someone's luggage, as the State implies here. But its explicit argument is even worse: it pretends it's more of an inconvenience to be without the contents of a suitcase than to be without a cellphone -- an item people use to communicate with others, engage in any number of essential services which can be accessed online, and otherwise revolve their lives around.

But that's the case the State made. And that's the arguments the trial court sided with.

The Appellate Court is far less sympathetic to the State's assertions.

Given the extraordinary delay in seeking a warrant and the State’s complete lack of diligence, we conclude that defendant’s possessory interest in the phone outweighed the interest the State had based on its probable cause to search the phone.

To begin with, the State had an obligation to seek a search warrant and perform a search in a timely manner. Waiting more than a year to do so causes more harm to the person deprived of the property since it allows the party doing the seizing to set the timetable for its return to whatever the State wants it to be, rather than what might benefit the person whose property has been taken. Shifting the dynamic completely in favor of law enforcement and its apparently expansive definition of "timely" violates rights.

The State’s diligence in seeking a search warrant also goes to the measure of its interest. Here, the State cannot claim any diligence. It waited until just before trial to obtain a warrant, about 15 months, and it did not explain its delay. We are aware of no delay longer than 13 months that a court has deemed reasonable.

The Court then cites the Supreme Court's Riley decision, which made it clear a phone was not just some featureless storage device but an often indispensable piece of equipment that's rarely separated from its owner. The State's assertion the seizure of a phone is, at best, a minor inconvenience vastly (and deliberately) underplays the role these devices play in people's lives.

Here, the State argues that, because cell phones in general are easily replaced, the seizure of a smartphone does not place a high burden on the person from whom it is taken. That is not a safe assumption. To be sure, some of the personal data accessed from a smartphone may be in “cloud” storage—“stored on remote servers rather than on the device itself.” Riley, 573 U.S. at 397. As noted in Riley, “users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.” Riley, 573 U.S. at 397. However, if a smartphone is seized, only the data in the cloud is potentially accessible to the user and then not always conveniently. For a typical person, only the seizure of a personal vehicle is likely to cause equal or greater disruption.

Nor are they easily replaced for other reasons. As the court notes, other than vehicles, cellphones might be the most expensive items people own.

The Appellate Court also rejects the assertion that being in jail eliminates someone's possessory interest in a seized phone. A phone is still a powerful communication tool, whether or not it can physically be accessed by its owner. Seizing this terminates lines of communication that might otherwise have remained open, even for incarcerated people.

A smartphone carries with it a history of a person’s communications. Therefore, if a detainee can give another access to his or her smartphone, that person can serve much more effectively as the detainee’s agent than would be possible if the phone were seized, thus limiting the disruptive effect of the detention. By contrast, a person released on bond will likely be inconvenienced but generally not be rendered incommunicado. It is thus possible that the seizure of a smartphone is more disruptive to a pretrial detainee than to a person who has been released. We thus cannot dismiss defendant’s possessory interest as inherently minimized by his jailing.

And the Court won't allow the government to reverse-engineer a justification for holding onto the phone for nearly sixteen months.

The State notes that, at defendant’s trial, its witness testified that suspects found with contraband drugs and weapons often use cell phones to photograph the contraband. The State argues, “While [defendant’s] possession of [the] cell phone would ordinarily have no evidentiary value apart from the contents, in this circumstance, possession of a cell phone, and its later discovered contents, corroborated [the inference that] Defendant knowingly possessed contraband.”

This rule, applied to the circumstances here, does not favor the State. The State’s own argument shows why this is so. It was only the “later discovered contents” that gave the phone evidentiary value. If the police had discovered within days of defendant’s arrest that the phone contained only innocuous texts with defendant’s family and cat pictures, then, by the State’s own argument, the phone would have lacked evidentiary value. That discovery would thus remove justification for the phone’s continued seizure. This appears to be an instance of the State attempting to justify the seizure by its fruits. Such arguments are attractive but mistaken; the exclusionary rule would be meaningless if it only excluded the results of fruitless searches.

There goes the search. And there goes the conviction. A new trial awaits and the government will have to do without the evidence it wanted so badly it could barely be bothered to search for it.

Filed Under: 4th amendment, delay, illinois, lamar meakens, mobile phones, naperville, searches, warrants

Appeals Court Rejects Clearview's Attempt To Dodge A State Lawsuit By Trying To Make It A Federal Case

from the yeah...-it's-a-little-weird dept

Clearview's attempt to dodge a potential class-action lawsuit filed against it in Illinois has just been booted back to the Illinois court system by the Seventh Circuit Court of Appeals.

Clearview -- facial recognition's current supervillain -- was sued in Illinois by Illinoisans alleging violation of Illinois law. Multiple times.

The plaintiffs claimed Clearview's scraping of publicly available photos, location data, and other information from a variety of websites and social media platforms violated the state's law, which requires companies to obtain permission from people before harvesting and selling access to this data.

This same law netted a $550 million settlement from Facebook for its preemptive tagging of people in photos, something a court found to be a violation the law passed by the state in 2008. This settlement appeared to rattle Clearview, which filed documents with the court stating it would no longer do business in Illinois or knowingly collect biometric information from Illinois residents.

This lawsuit continues, however, thanks to the Seventh Circuit. In a somewhat novel move, the plaintiffs argued they do not have standing to pursue this lawsuit in federal court. Clearview argued otherwise, hoping to establish enough standing to take the lawsuit federal, at which point it would agree the plaintiffs did not have enough standing to move the case forward.

It's not often plaintiffs argue against their own standing, but the plaintiffs want this case in a state court, where they can pursue Clearview for violation of state laws. The only federal hook is Clearview's existence as a Delaware corporation headquartered in New York. State courts will normally allow lawsuits like these to be moved to federal court because the plaintiffs and defendant aren't located in the same state.

The district court, however, agreed with the plaintiffs: they did not allege any federal harms or anything else that would make the case better served at the federal level. The opening of the Seventh Circuit's opinion [PDF] highlights the bizarre nature of this appeal:

Oddly, [plaintiff Melissa] Thornley insists that she lacks standing, and it is the defendant, Clearview AI, Inc., that is championing her right to sue in federal court. That peculiar line-up exists for reasons that only a civil procedure buff could love: the case started out in an Illinois state court, but Clearview removed it to federal court. Thornley wants to return to state court to litigate the BIPA claims, but Clearview prefers a federal forum. The case may stay in federal court, however, only if the more stringent federal standards for standing can be satisfied; Illinois (as is its right) has a more liberal attitude toward the kinds of cases its courts are authorized to entertain. The district court held that Thornley has alleged only a bare statutory violation, not the kind of concrete and particularized harm that would support standing, and thus ordered the action remanded to the state court.

The court notes this reversal of roles has led to an equally unusual appeal. Normally, plaintiffs argue in favor of their standing to sue. In this case, the plaintiffs are arguing against this because it runs contrary to their interests and in favor of Clearview's. After examining far more precedent than one would imagine would be on hand, the Appeals Court says the case must exit the federal court system and return to Illinois.

The Appeals Court says the plaintiffs are free to craft their allegations as narrowly as they'd like. And as much as Clearview would like to be accused of even greater violations to (briefly) take the case federal for an easier dismissal, it's not up to the courts to tell plaintiffs how to craft their arguments or shuffle things from state to federal just because something a federal court could handle could plausibly be alleged.

[Thornley] does not contest either the existence of minimal diversity (she is a citizen of Illinois, and Clearview is a citizen of Delaware and New York) or the fact that more than $5,000,000 is at stake. Instead, she has simply offered a class definition that is narrower than it might have been. We have no reason to believe that the district court, acting on its own initiative, would certify a different and broader class; to that extent, the rule that the plaintiff controls her own case applies. And unlike the situation in Standard Fire, people who fall outside Thornley’s class definition are totally unaffected by this litigation. If they wish to sue Clearview, either alone or under a class definition that includes an allegation of injury, they are free to do so. Indeed, as we noted earlier, there are a number of class actions pending against Clearview, many of which appear to be broader than this one. We know of nothing that would prevent a putative class representative from taking a conservative approach to class definition. And if the plaintiffs change their tune in the state court, Clearview will be able to attempt to remove again to federal court, though we do not predict the outcome of such an effort.

Clearview's counterintuitive attempt to make a federal mountain out of the plaintiff's state molehill fails. The case remains in the state court system and limited to a specific violation of state law. Clearview will still have to defend itself against these claims.

Filed Under: facial recognition, illinois, jurisdiction, privacy, removal, standing
Companies: clearview

Illinois Legislature Sends Massive Police Reform Bill To The Governor's Desk

from the it's-broken-so-start-fixing-it dept

A serious set of police reforms has passed through the Illinois legislature and is headed to the governor's desk. You can tell it's a good set of reforms because the police union hates it.

In the final hours of the legislative session, state senator Elgie Sims did no one any favors by introducing a 764-page amendment to the reform bill that had already passed. That's not a cool move, no matter what the ends are. No one can possibly hope to read and comprehend something of that size with only a few hours left in the session, as another state senator pointed out on his Facebook page.

But it's not as if the state senators had no idea what was contained in the bill. More than a week earlier, one of the state's police unions was already complaining about its contents and asking legislators to vote the bill down. The union's list of complaints looks like a comprehensive set of reforms -- something almost any other person or entity in the state would view as positives. Here's the Illinois Fraternal Order of Police's bitch list about the earlier, 611-page police reform bill, followed by commentary:

Eliminates Qualified Immunity for police officers, making them civilly liable to siren chasing trial lawyers

Qualified immunity needs to go. It has encouraged bad behavior by cops by making it almost impossible for them to be held accountable for their actions. As one Appeals Court judge recently pointed out, qualified immunity turns civil rights litigation into a rigged game citizens almost always lose.

Eliminates Officer’s rights to Collectively Bargain, creating a “special class” of public employee who does not have these rights in Illinois

A step towards eliminating police unions is a step towards accountability. This point can't be argued. History has proven this much.

It Eliminates impartial arbitration over burdensome residency requirements

Asking cops to live near the people they serve shouldn't be burdensome. When cops are commuting from distant suburbs and neighboring towns to protect and serve, it's pretty tough for them to feel any empathy for the people they police or contribute to any sense of community.

Allows for unrestricted and ungoverned disciplinary policies of law enforcement officers

Likely hyperbole, just like the line that opens the FOP's post:

Late on January 5th, the Illinois General Assembly filed a 611 page bill that eliminates law enforcement as we know it from every community in the State.

LOL. Ok.

Prohibits departments from taking advantage of cost-saving federal surplus programs

An less-dishonest phrasing would explain that this bill prevents cops from acquiring military gear like assault rifles, grenade launchers, and armored vehicles. The Defense Department's 1033 program has driven a wedge between the police and policed, and has delivered no measurable improvement to law enforcement safety or crime reduction.

Allows officers to be punished or fired based on anonymous and unsubstantiated or unverifiable complaints

Oh, I doubt that.

Mandates that those unsubstantiated and unverified complaints be kept to be used against officers forever, with no destruction and no limits on how they can be utilized to inflict harm on officers

Stop your crying. Arrest records are permanent, even if arrestees are never convicted of the alleged crimes. There's no reason officers shouldn't have a permanent record that reflects their years of service -- both the good and the bad. Files will note claims that are unsubstantiated and unverified. Those won't hurt officers because, well, verified/substantiated complaints rarely have a negative effect on law enforcement officers' careers.

Substantially increases both initial and ongoing education requirements with no money to pay for the increased costs and no assurances that the courses will even be offered

That's a problem that needs to be addressed. But dismissing it out of hand because all the details aren't in writing yet is counterproductive.

Mandates the use of body cameras by all departments for every officer with no money to pay for the cost of those cameras

Pretty sure the police will pay for the cameras. They'll pay for it the way they pay for everything else: tax dollars. Or, if money's tight, maybe cops could free up some of their asset forfeiture funds to buy this equipment.

Defunds any department that does not comply 100% with the draconian requirements of the legislation

Again, hyperbole. There should be consequences for not complying with [checks notes] state law, but very few local governments are actually willing to defund police departments. Losing some of your budget because of compliance failures is not "defunding."

Eliminates funding for law enforcement agencies

LOL. No.

Eliminates Cash Bail

Cash bail simply allows the less fortunate to see their fortunes suffer even further. It's pretty difficult to keep your life running while in jail and it's impossible to earn money to pay bail while behind bars.

Enacts multiple benefits for felons

Who even knows what the FOP is saying here. The FOP might be referring to the felony murder rule, which is curtailed by this legislation. Felony murder is a hell of a thing, allowing people to be charged with murder if some act they committed resulted in the death of a person -- even if they never directly interacted with that person. For instance, selling drugs that later result in someone's fatal overdose can trigger the felony murder rule.

Prohibits use of force in almost all situations, and makes officers criminally liable for virtually any use of force

No. It doesn't. It tempers the use of force by ensuring it's justifiable. And when it isn't, it can result in criminal charges. The implementation of standards for force deployment is not a "prohibition" just because it eliminates some officer discretion.

Removes prohibitions against obstructing police officers

It doesn't do anything of the sort. It simply makes it a misdemeanor not punishable by more than 48 hours in jail or 100 hours of community service. This makes it less likely obstruction charges will be used to punish people for not being sufficiently deferential to cops.

Charges officers with Official Misconduct, a class 3 felony, for banal and incidental issues

One man's banal is another man's egregious offense. What cops may think are "banal" violations are actually disturbing to those outside of law enforcement and often surface indicators of systemic problems departments aren't dealing with properly. Increasing the severity of the punishment is a good deterrent.

That's the FOP's take. And the FOP really didn't need to be so worried about it. No one was going to be able to pass a bill with all of this included. The last-second amendment stripped out a bunch of the really good stuff.

Some more controversial elements were eliminated from the final version of the bill to secure its passage. One would have reduced the power of police unions to bargain over disciplinary procedures. Another would have ended qualified immunity for civil rights violations, which would have made individual officers — instead of taxpayers — financially liable if a court found they intentionally violated the constitution.

Dammit. Passing a qualified immunity ban somewhere in the nation would be a great start -- a test case to see if it actually would result in the parade of litigation horrors cop officials claim it would. That will have to wait for another day and another legislature.

But a lot of good stuff remains. The passed version expands the state's officer misconduct database and lengthens the retention of disciplinary records. It gives the state board more power to strip misbehaving officers of their certification. It forces police officers to provide more details on arrests whenever resisting arrest is one of the charges. It adds a duty to intervene when officers witness other officers violating rights. It enacts new procedures for no-knock search warrants. And it mandates body cam use across the state by 2025.

The governor has stated he will sign the bill. This is good news for Illinois residents. And it should be good news for cops… at least the good ones. This doesn't change anything good cops already do. It only makes things worse for bad cops, despite the FOP's hysterical claims about it being the end of law enforcement. It should be a new beginning -- one that can be used to rebuild failing agencies and help them rid themselves of their worst components.

Filed Under: 1033 program, cash bail, elgie sims, illinois, law enforcement, police militarization, police reform, police unions, qualified immunity