Letter From High-Ranking FBI Lawyer Tells Prosecutors How To Avoid Court Scrutiny Of Firearms Analysis Junk Science

from the cheating-to-win-is-how-the-FBI-defines-'justice' dept

Law enforcement -- including the FBI -- like to claim they're heavily invested in science. The use of forensic "science" has been with us for years, but nowhere is it more sketchy than in law enforcement labs, where zero accountability rubs elbows with zero outside review of methods.

For years now, evidence historically claimed to be almost certain indications of guilt has been shown to be, in many cases, no better than a coin flip. Even DNA has its problems, especially when "expert" witnesses overstate their ability to exclude "innocent" DNA from cluttered crime scenes. The unwillingness of police to police themselves has been aggravated by the unwillingness of courts to question statements made by forensic techs -- ones that include things like claiming a person can be positively identified by the wrinkles and creases in their mass-produced clothing.

One judge -- Jed S. Rakoff -- did speak up. He excused himself from the DOJ's examination of law enforcement forensics once it became clear the Justice Department was more interested in finding supporting claims than dissenting voices. The DOJ's Deputy Attorney General informed Judge Rakoff that examination of pre-trial evidence procedures was beyond the "scope" of the Commission, resulting in Rakoff's resignation.

Blood pattern analysis, bite mark patterns, hair matching, etc. Nearly every supposedly inarguable form of forensic evidence has been determined to be junk science under closer examination. Even the FBI has admitted its forensic experts have routinely overstated the certainty of their findings during sworn testimony.

You would think all of this would add up to a major overhaul of forensic procedures and requirements that testing methods be subjected to peer review or blind testing or literally anything other than the zero scrutiny it has enjoyed for years. You'd be wrong. Instead, law enforcement officers and officials have been putting their energy into finding ways to keep their junk science from being rejected by courts.

A letter obtained by The Daily Beast shows the FBI would rather lie to courts than give up the use of yet another questionable forensic technique: bullet matching. Investigators claim bullet fragments contain unique markings from the barrel of the gun they're fired from and these can be used to uniquely identify the weapon used to fire the bullet. This, of course, assumes there are no similarities between mass-produced weapons and mass-produced bullets that might result in "matches" that say nothing more than a certain kind of gun fired a bullet designed to be fired from that model of gun.

This supposed form of evidence was called into question by the Obama Administration:

The most damning criticism of the field came in a 2016 report by the President’s Council of Advisers on Science and Technology, or PCAST, which found that “firearms analysis currently falls short of the criteria for foundational validity,” and that the studies the field’s practitioners often cite to support their work are poorly designed and “seriously underestimate the false positive rate.”

Following this report, some judges began to push back against this questionable evidence. Law enforcement is pushing back, led by none other than a high-ranking lawyer representing the FBI's forensic team.

Late last year, a forensic firearms analyst in Wisconsin emailed a remarkable document to more than 200 of her colleagues across the country. It was a handout from an online lecture given by Jim Agar, the assistant general counsel for the FBI Crime Lab.

[...]

In the two-page handout, Agar instructs firearms analysts on how to circumvent judges’ restrictions on unscientific testimony. He even suggests dialogue for prosecutors and analysts to recite if challenged. Most controversially, Agar advises analysts to tell judges that any effort to restrict their testimony to claims backed by scientific research is tantamount to asking them to commit perjury.

The letter [PDF] is quite the read. The FBI lawyer refuses to even consider the idea that bullet-matching forensics might be faulty. Instead, he instructs prosecutors and expert witnesses to work together to undermine any attempt the court (or defense lawyers) might make to depict these findings as questionable. It starts by implying courts are wrong to even question the expertise of forensic techs.

So far, no court has excluded the testimony of a firearms identification expert witness. The greater likelihood is that the court will attempt to compromise and craft some kind of language that weakens or neuters the expert’s identification opinion, substituting that terminology for the examiner’s identification opinion. Some courts have put in place so-called “limitations” to that testimony, which fundamentally alter the examiner’s opinion. However, these are not true limitations because they make material and substantive changes to the expert’s testimony. These are wholesale attempts to rewrite the firearm expert’s testimony by a layman with no experience in forensic science. This practice is not supported by either science or the law.

And it wraps up by suggesting forensic experts opt out of testifying completely rather than have their expertise and statements called into question:

If the court insists on limiting the firearms expert testimony to GRC or class characteristics, I probably would not call the examiner at all. Instead, I would put on a lay witness such as the case agent or an armorer for the police department to testify about the similar class characteristics of the weapon and the bullets and/or cartridge cases.

Does this sound like science to you? Anything backed by actual science would be able to survive evidentiary challenges. Since this isn't, it's not strong enough to even survive cursory examination. Any case relying solely on this junk science should be doomed. But by forcing the court to play by the FBI's terms (or, conversely, preventing the forensic expert from being questioned), the agency can still roll the dice on bypassing scrutiny of its means and methods.

The problem for the FBI now is that this letter is out there in the public domain. Judges paying attention to these issues will know exactly why the prosecution is asking leading questions of its forensic expert or why there's no forensic expert being asked to testify. This letter alone should cause most firearms analysis to be tossed immediately. It probably won't, but it should, unless the law enforcement agency can definitively show it uses methods not used by the FBI or has completely disregarded the suggestions of the FBI's counsel.

Real evidence should be able to survive scrutiny. It should be able to stand on its own without the prosecution playing "hide the witness." This letter is a tacit admission that firearms analysis is more guesswork than science. As such, it should be considered damning evidence of its own -- something that will force law enforcement experts to thoroughly and scientifically justify their assertions. And it should definitely encourage the DOJ to consider halting the use of firearms forensics until it can find a scientifically sound way of doing so. But, if history is any indicator, the DOJ would rather score cheap wins that use forensic evidence backed by sound science.

Filed Under: evidence, fbi, forensics, junk science

Study Shows Blood Pattern Analysis Is Just More Guesswork Posing As Scientific Evidence

from the blood-suckers dept

Another form of evidence used in criminal cases is being called into question. The latest (via CJ Ciaramella) to receive the dubious honor of being designated "dubious" is blood spatter analysis. This brings it in line with a long list of other things long-considered (and, in too many cases, still considered) to be evidence worthy of introducing into a court of law, joining bite mark analysis, hair analysis, um… pair of blue jeans analysis... and even the old standby, DNA analysis.

The problem with all of these sciences is that they're mostly subjective. Sure, they look pretty science-y. A lot of math and charts and lab coats and computers are scattered all over the place. Inscrutable printouts are carried by expert witnesses with years of experience under their belts. They show up in court and make claims about certainty of matches or probability of X contributing to Y, much of which can't be easily contested because, as mentioned earlier, the results are open to interpretation.

Despite this, a lot of what's called forensic science still ends up being used as evidence in criminal cases, even though it's more accurate to refer to it as forensic guesswork. Blood spatter analysis is no exception. This study [PDF] for Forensic Science International says the lack of solid standards in the blood pattern analysis field have resulted in experts looking at the same blood patterns but all seeing something different.

We investigated conclusions made by 75 practicing bloodstain pattern analysts on 192 bloodstain patterns selected to be broadly representative of operational casework, resulting in 33,005 responses to prompts and 1760 short text responses. Our results show that conclusions were often erroneous and often contradicted other analysts. On samples with known causes, 11.2% of responses were erroneous. The results show limited reproducibility of conclusions: 7.8% of responses contradicted other analysts.

That's a problem. How big of a problem is unknown. Actually, a lot about this is unknown. Differing opinions on blood spatter evidence can turn a suicide into a homicide or turn a killing from an act of self-defense to a murder. There's actual freedom riding on these interpretations, so it's crucial they be correct. And yet no one in the field (or in the court system) seems too concerned about ensuring this evidence is correctly analyzed.

Although BPA has been admissible as expert testimony for more than 150 years, the accuracy and reproducibility of conclusions by BPA analysts have never been rigorously assessed in a large-scale study.

In 2009, the National Research Council condemned blood pattern analysis as "more subjective than scientific." Nothing changed. In 2016, it called for testing of error rates in criminal forensic science. Again, nothing changed. Small studies were performed but nothing on the scale of this one, which involved 75 practicing blood pattern analysts and 192 samples. The results are far from encouraging. In fact, they point to enough of a margin of error that this sort of analysis should be prohibited from being introduced as evidence until standards are developed and put into practice that eliminates the subjectivity on display here.

But, given the 150 years of use and the minimum of interest in developing standards, this will also likely lead to nothing changing. What this research does do, at least, is give defendants something to use to challenge questionable evidence and questionable statements by prosecutors' expert witnesses.

Filed Under: blood pattern analysis, blood splatter analysis, evidence, junk science

Prosecutor Who Used Bite Mark Analysis Even The Analyst Called 'Junk Science' Can Be Sued For Wrongful Jailing Of Innocent Woman

from the mouthful-of-garbage dept

A lot of stuff that looks like science but hasn't actually been subjected to the rigors of the scientific process has been used by the government to wrongly deprive people of their freedom. As time moves forward, more and more of the forensic science used by law enforcement has been exposed as junk -- complicated-looking mumbo-jumbo that should have been laughed out of the crime lab years ago.

Tire marks, bite marks, hair analysis… even the DNA "gold standard" has come under fire. If it's not the questionable lab processes, it's the testimony of government expert witnesses who routinely overstated the certainty of their findings.

Bite mark analysis has long been considered junk science. But for a far longer period, it was considered good science -- a tool to be used to solve crimes and lock up perps. This case, handled by the Third Circuit Court of Appeals, contains an anomaly: the bite mark expert who helped wrongly convict a woman of murder -- taking away eleven years of her life -- actually stated on record that bite mark analysis is junk science.

This case starts with some DNA testing. Supposedly, this is as scientific as it gets. But the prosecutor appeared to have wanted to pin this crime on Crystal Dawn Weimer. So investigators chose to ignore what the DNA evidence told them. Investigating the murder of Curtis Haith, who had been beaten and shot in the face, investigators started talking to party guests who had been at Haith's apartment the night before. They zeroed in on Weimer even when available evidence seemed to point elsewhere.

From the decision [PDF]:

When officers arrived at her house, Weimer was still dressed in the clothes she had been wearing the night before. She had minor injuries to her face and foot, and officers observed what looked like mud and blood on her clothes. Weimer told officers that she, Haith, and others had attended a party the night before and that she had given Haith a ride from that party and dropped him off at another party. She then spent the rest of the night at the housing community where her mother and sisters lived. Her cousin, sisters, and then-boyfriend Michael Gibson confirmed her story. Weimer and Gibson also told officers that Weimer injured her foot when they were “horseplaying” a few days earlier. App. 87 ¶ 31. And Weimer said that the blood on her shirt and the injury to her eye were caused by a fight with Gibson. DNA testing later confirmed that the blood on Weimer’s clothes belonged to Gibson, and none of the DNA samples collected from the crime scene matched Weimer—in fact, the samples suggested a male DNA profile.

Almost two years later, an ex-boyfriend of Weimer's (Thomas Beal) told investigators that she had shot Haith and told him that the blood on her clothes came from the victim. Of course, DNA evidence had already ruled this out, which should have made this witness' statement a bit more suspect. But investigators went back over the photographs taken at the scene and found something they could possibly use to tie Weimer to a crime DNA evidence heavily suggested she hadn't committed. The first attempt to implicate Weimer failed.

When reviewing Haith’s autopsy photos, a state investigator saw what she believed to be a bite mark on Haith’s hand. A Fayette County dentist analyzed the injury. The dentist first concluded that Gibson bit Haith, but after examining teeth impressions for Weimer, she reported she could not identify which set of teeth caused the mark.

The investigator sought a second opinion and got the one she wanted.

A bite-mark expert then reviewed Beal’s statement, photos of the injury to Haith’s hand, and teeth impressions from Gibson and Weimer. He concluded the bite mark matched Weimer.

The investigation continued. This ended up raising questions about the origin of this bite mark. Some evidence suggested the bite could have taken place hours or days before the murder. The prosecutor went back to the "expert" and, conveniently, secured a revision that turned Weimer back into the prime suspect.

Without reviewing additional evidence, he determined the bite occurred seven to ten minutes before Haith’s death.

The prosecutor went back to the state's key witness -- the ex-boyfriend who was already wrong about the blood on Weimer's clothes. His story changed. The witness claimed "a black man named Lonnie" had helped Weimer with the murder. But this "Lonnie" had been in jail at the time the murder took place, further distancing the state's key witness from anything resembling the truth. Somehow this failed to dissuade the state from relying on this very sketchy testimony. Adding this questionable testimony to other questionable testimony from a jailhouse informant -- one who claimed the state's favorite witness was involved in the murder -- prosecutors went after Weimer.

The case fell apart immediately. Weimer's ex-boyfriend recanted his story on the stand, claiming a police officer "kind of like coaxed me along" when preparing his statement. The state remained immune from dissuasion and took another swing at Weimer after the first trial had ended in a dismissal of all charges. The second time around it worked. Weimer was convicted of third-degree murder and conspiracy to commit murder.

Nine years later, Weimer had her charges vacated by a judge who found enough evidence to suggest she had been wrongly incarcerated and imprisoned. A whole bunch more evidence came to light during her retrial. That's where the state's bite mark "expert" performed his own Perry Mason move.

The bite-mark expert also disavowed his trial testimony, stating that his opinion that the bite mark was Weimer’s was based on “junk science.”

Also uncovered were letters from jailhouse informants that showed investigators and prosecutors handing out unspecified deals in exchange for testimony against Weimer. In June 2016, the charges were dropped with prejudice, ending eleven years of wrongful imprisonment.

Unfortunately, the ending for Weimer is far from happy. Too many layers of immunity stand in the way of prosecutors, experts, and investigators being held personally accountable for destroying an innocent woman's life. The prosecutor who led this witch hunt-esque "investigation" -- DA Nancy Vernon -- will escape some of the claims brought by Weimer. Most significantly -- at least in terms of what this post is highlighting -- she'll dodge any responsibility for using junk science to help press a very shaky case against Weimer. According to the court, everyone was still in the bite mark Dark Ages and can't be held responsible for the collective ignorance of law enforcement forensic techniques.

During the relevant time period—from late 2002 to early 2006—the unreliability of bite-mark evidence was not widely recognized such that “any reasonable official in [Vernon’s] shoes would have understood that [s]he was violating” Weimer’s rights by directing officers to investigate the timing of the bite mark on Haith’s hand. Despite allegations that the bite-mark expert later referred to such evidence as “junk science” during Weimer’s post-conviction proceedings, such evidence was widely used in criminal proceedings during and after Weimer’s trial, see Erica Beecher-Monas, Reality Bites: The Illusion of Science in Bite-Mark Evidence, 30 Cardozo L. Rev. 1369, 1375–87, 1408 (2009) (outlining the scientific unreliability of bite-mark evidence and arguing that judges “circumvent[] their gate-keeping responsibilities” by “continu[ing] to admit bite-mark testimony into evidence”); see also Brewer v. Hayne, 860 F.3d 819, 824–25 (5th Cir. 2017) (holding forensic odontologists were entitled to qualified immunity when the plaintiffs showed only that the evidence the experts presented at trial in the 1990s was no longer considered trustworthy by later standards and that the experts may have been negligent in their analysis). Thus, based on the law as it existed at the time, Vernon was not on notice that her alleged conduct of directing further investigation into the bitemark evidence would violate Weimer’s rights.

But almost every other claim survives. The prosecutor who ignored the evidence she didn't like (DNA evidence suggesting a male committed a crime/the lack of victim's DNA on Weimer) in favor of the stuff she did (bite mark "analysis," a bunch of jailhouse informants being offered deals) will have to face Weimer's malicious prosecution and civil rights conspiracy claim without the shields of qualified or absolute immunity.

Filed Under: 3rd circuit, bite marks, crystal dawn weimer, curtis haith, fake science, forensics, junk science, nancy vernon, police, prosecutors, thomas beal

Documents Show Law Enforcement Agencies Are Still Throwing Tax Dollars At Junk Science

from the made-from-the-finest-snakes dept

Recently, 269 gigabytes of internal law enforcement documents were liberated by hacker collective Anonymous -- and released by transparency activists Distributed Denial of Secrets (DDoSecrets). The trove contained plenty of sensitive law enforcement data, but also a lot of stuff law enforcement considers "sensitive" just because it doesn't want to let the public know what it's been spending their tax dollars on.

The documents highlighted in this report by Jordan Smith of The Intercept show law enforcement agencies are spending thousands of dollars to maximize the Dunning-Kruger effect. People are still peddling junk science and discredited techniques to law enforcement agencies and We the People are picking up the tab.

The training session was billed as “cutting edge,” and dozens of law enforcement professionals signed up to learn about “New Tools for Detecting Deception” from a human lie detector who calls herself “Eyes for Lies.” Her real name is Renee Ellory, and she claims that she’s one of just 50 people identified by scientists as having the ability to spot deception “with exceptional accuracy.”

[...]

Training participants would learn how to “identify anger, contempt, and disgust before words are even spoken.” Course objectives were broad: Learn to differentiate between “real” and “fake emotional displays”; “recognize hidden emotions”; identify the “ways our subconscious brain leaks information when we lie”; “analyze body language that indicates deception”; gain tips to use when interviewing a psychopath; “identify the key features of expressions that reveal danger for you!”

Big if true. But it isn't. And Renee Ellory herself would probably recognize that fact if her career didn't depend on her remaining ignorant of scientific studies directly contradicting the claims made in her courses. But she's been able to do a lot of damage to a lot of law enforcement officers, who now believe -- with zero facts in evidence -- they can detect lies just looking for "universal facial expressions" and fleeting "microexpressions" on subjects' faces.

Ellory proudly touts her selection as one of only 50 "truth wizards" who can "spot deception with exceptional accuracy" in her marketing materials [PDF]. This is based on the Wizards Project (I am not making this up) run by Paul Ekman and researchers at the University of California. This "wizard" designation is as worthless as the pseudoscience behind it.

While the theory of universal expressions dates back to Charles Darwin, research has been mixed, and Ekman’s work in this area has been repeatedly challenged by scientists in recent years as unreliable, in part because of methodological issues.

Where microexpressions are concerned — also an area of Ekman’s studies — subsequent research has found them “rare and nondiagnostic,” Kukucka said, and that training individuals to see them doesn’t actually work.

It's still just a coin toss, no matter how much training officers receive. This is the same junk science the TSA thinks will help it catch terrorists. The problem here is trainees believe they're actually better at detecting lies after having their heads filled with unproven assertions all day long by someone who fervently believes they can detect lies better than 99.9999999% of the population. Years of training can't make these results replicable. A day or two of training does nothing more than make officers believe they can do something they actually can't: detect lies just by looking at facial expressions.

When reached for comment, Ellory offered several -- most of them defensive But this one's remarkable in its level of self-regard:

“I find at times with my gift, it’s akin to seeing color in a world where other people live in a colorblind world. Seeing color is ‘real’ but trying to convince a color blind person color exists is nearly impossible,” she wrote. “I tell people in my classes what I teach will be common knowledge in 100 years, but we are still in the dark ages when it comes to understanding human behavior and deception,” she continued. “At a point, I learned, I can’t change the world alone. But I can educate those who are open to learning and they have thanked me endlessly."

Renee Ellory isn't the only "expert" telling cops they can detect lies using techniques never proven to detect lies. Steven Rhoads, former police chief and, um, "retired Christian rodeo clown," heads the very sketchy-sounding "Subconscious Communication Training Institute." Documents [PDF] contained in the DDoSecrets stash show Rhoads and his acolytes have been infecting everyone from local cops to ICE agents with his proprietary brand of pseudoscience bullshit.

The trainings feature lessons in how body language — including “facial gestures and human emotions,” “eye movement and gaze behavior,” and “gestures involving the torso” — can be used in interrogations and reveals not only deception but danger for officers. “As a very general rule of thumb the left side of the body is more apt to reveal known deception than is the right side of the body,” reads material for a 2018 training called “Subconscious Communication for Detecting Danger,” found in files connected to the Northern California Regional Intelligence Center.

Rhoads says his system is scientific because, unlike Ellory's, it relies on a baseline. Cops can't just walk up to a perp and stare down the left side of the detainee's body until it starts confessing. Cops have to establish a baseline for emotions, expressions, and responses. But that takes only about 20 questions. You know, like a polygraph machine -- that other "science" that has repeatedly proven to be highly inaccurate.

It's sadly unsurprising pseudoscience purveyors are still finding willing buyers of their bullshit in the law enforcement community. Cops are just as susceptible to cognitive biases as the people they police. They believe they're smarter than the people they deal with. Training like this only increases their self-deception. Even if the trainers and their methods were legit, it would still be a problem. You can't crank out experts in human behavior over the course of a couple of 8-hour sessions. But the Dunning-Kruger effect also affects those doing the training and selling this junk science: they appear to believe they can.

All of this adds up to worse policing. When reasonable suspicion involves judgment calls based on secondhand bad science, peoples' rights are being violated by officers who now believe they're capable of detecting lies just by looking at a person.

Filed Under: blue leaks, junk science, law enforcement

Drug Tests Administered By Prison Staff Aren't Much Better Than The Terrible Ones Deployed By Cops

from the zero-incentive-to-solve-the-problem dept

Faulty drug tests deployed by law enforcement continue to ruin lives. Usually, it's cheap field tests used by officers during traffic stops that turn legal substances into illegal substances, resulting in hefty criminal charges for people who've never used drugs, much less carried them around in their cars.

The current faulty drug test debacle isn't likely to generate as much sympathy or result in wide-ranging investigations of drug testing tech. These drug tests are negatively affecting people who are already locked up, which isn't quite as disturbing as minor moving violations escalating into felony drug charges.

But it's still disturbing, even if it isn't taking innocent people off the streets. Documents leaked to Gothamist show hundreds of inmates have been subjected to harsher punishments, extended sentences, and loss of privileges thanks to drug tests corrections officials knew were unreliable.

New York state corrections officials believe that approximately 2,000 prisoners were subject to a flawed drug test that produced false positives and led to increased punishment across the state, according to documents obtained by WNYC/Gothamist.

The problem may have been caused by a chemical mishap known as "cross reactivity," which can lead to a clean subject falsely appearing to have used drugs, the documents say.

Roughly 300 prisoners were affected at the Fishkill Correctional Facility alone, according to a staff memo.

In one case reported by the New York Daily News, an inmate in a drug treatment program saw his time in the New York correctional system turned into a complete nightmare by inaccurate drug tests.

Anthony Cortes was in school at New York’s Willard Correctional Facility’s drug treatment campus in early March when he got called for a routine drug test.

[O]fficials told him the test came back positive for Buprenorphine, a medication commonly prescribed to treat opioid addiction. He was booted from Willard’s program, transferred to Five Points Correctional Facility and thrown into solitary confinement. A second drug test in April came back with the same results and more time in isolation.

Yet by mid-September — following nearly 200 days in solitary and four and a half months after his scheduled release — officials realized they had made a grave error.

Cortes is now suing the state over its use of faulty drug tests and the deleterious effect it had on his incarceration. Cortes isn't the only one suing over these tests. Courthouse News Service reports a class action lawsuit has been filed on behalf of an unknown number of inmates who have been punished for "failing" faulty drug tests.

[Nazeda] Steele-Warrick, who lives in Queens, filed a federal class action Wednesday against two diagnostic companies whose drug tests she says produced false positives, leading to punishment for inmates who were in fact clean. The 36-year-old former inmate sued Delaware-based Microgenics Corporation, which makes clinical diagnostic products, and Thermo Fisher Scientific, which manufactured the urine-analysis drug tests.

According to Warrick's lawsuit [PDF], the state's Department of Corrections later confirmed the test results jailers used to strip her of privileges were erroneous. But before that happened, this happened:

Individuals assigned to keeplock have limited access to their property, packages, telephones, correspondence, and visitors, and their commissary privileges are suspended, pending a disciplinary determination.

Ms. Steele-Warrick felt tremendous shame and humiliation as she was marched away in handcuffs past her peers and friends.

Unlike her private room, which had a door she could self-close and open, Ms. Steele-Warrick’s keeplock cell was behind locked and secured steel bars. The room had only a locker, sink, and toilet. It did not have the night stand, radio, or closet that Ms. Steele-Warrick had in her private room. Her meals were delivered through a “feed-up slot” in the bars.

Ms. Steele-Warrick did not have access to any of her belongings in her keeplock cell. Her first day there, she could not access her toothbrush, shampoo, or soap. Although she eventually obtained those items, she did not have any of her other personal belongings, including her books or magazines.

While Ms. Steele-Warrick was confined in keeplock, correction officers emptied out her private room, searching and cataloguing all of her personal belongings and securing away most of it in storage.

A package of food from Ms. Steele-Warrick’s husband arrived while she was in keeplock, and correction officers confiscated all the fresh vegetables and produce, later leaving Ms. Steele-Warrick with only a couple of canned items.

The false positive also had the potential to disrupt Warrick's immigration proceedings, which relied on her being able to demonstrate she was not dangerous person in order to continue living with her family. It also caused her to be cut off from her family when her visitation rights were revoked.

This isn't new and this isn't limited to New York. Prisoners in Washington have filed enough complaints the Department of Corrections is finally allowing challenged test results to be retested. And in 2013, New York's top court gave a probationer permission to sue drug testing equipment manufacturers directly for the faulty drug test that resulted in the revocation of his release.

Meanwhile, drug testing equipment aimed at visitors to correctional facilities are generating false positives that punish both inmates and their families.

The ion scanners devices are designed to detect trace amounts of particles. Correctional Service Canada has placed these devices in the lobbies and mailrooms of some of its prisons in a bid to reduce the flow of drugs into its facilities.

The devices are extremely sensitive, and MOMS [Mothers Offering Mutual Support] says in its petition that the scanners set off false positive readings at an "alarming" rate.

Anne Cattral, whose son is incarcerated at Ontario's Warkworth Institution, said she has lost count of the times she has tested positive for morphine, hash, opium and heroin. She follows a rigorous regime of washing, cleansing coins and jewelry and driving with plastic gloves before visiting the prison to limit the chances of a false reading.

Cattral said a positive test can lead to the visit being denied. It is also recorded on an offender's file, affecting future private family visits, transfers, and parole, she said.

It may well be the country's correctional services know they're working with unreliable equipment. But the best kind of deniability is the plausible kind.

[CSC spokesperson Esther Mailhot] said CSC does not collect data on false positives in testing.

Yeah. You don't want to be doing that. That only helps litigants suing the CSC and does nothing at all for CSC officials who don't like to be sued.

It's your word against theirs (the government's) out in the free world. Once you're incarcerated, you pretty much don't even have your word any more. If someone convicted on drug charges tests positive for drugs, everyone just assumes everything is working correctly, even if it actually isn't. Maybe these lawsuits will alter this assumption just a tiny bit.

Filed Under: accuracy, drug tests, junk science, prisons

Europe's Latest Border Security Efforts Combines Junk Science With Lie Detectors

from the strangely-expensive-for-such-a-shit-solution dept

There's border garbage going on in Europe as well. A report by The Intercept shows border officials have cobbled together junk science, tech, and a spin on a notoriously-sketchy piece of equipment into its newest border security offering.

It's called Silent Talker. It subjects travelers to lie detector tests predicated on the fiction that people call tell other people are lying just by looking at them. It's the same pseudo-science that powers the TSA's useless "Behavioral Detection" program. Only this is possibly worse because it considers itself to be a lie detector and it's been known for years lie detectors can't reliably detect lies.

It works like this: travelers upload their passports to the border agency's website and are put face-to-"face" with a blue uniformed avatar. The software takes control of the device's camera to scan the traveler's face and eye movements for "signs of lying."

Here's the thing: it doesn't even work when it's humans doing the face-to-face work. A report on the TSA's Behavioral Detection program found it to be completely lacking in scientific background. The justification for the program was predicated on hearsay, conjecture, and anecdotal evidence. The TSA claimed it was hard science, but actual scientists have said there's no evidence backing the claim that anyone can suss out lies just by looking at people's faces.

These research findings do not imply that people move their faces randomly or that the configurations in Figure 4 have no psychological meaning. Instead, they reveal that the facial configurations in question are not “fingerprints” or diagnostic displays that reliably and specifically signal particular emotional states regardless of context, person, and culture. It is not possible to confidently infer happiness from a smile, anger from a scowl, or sadness from a frown, as much of current technology tries to do when applying what are mistakenly believed to be the scientific facts.

Instead, the available evidence from different populations and research domains—infants and children, adults living in industrialized countries and in remote cultures, and even individuals who are congenitally blind—overwhelmingly points to a different conclusion: When facial movements do express emotional states, they are considerably more variable and dependent on context than the common view allows.

[...]

Efforts to simply “read out” people’s internal states from an analysis of their facial movements alone, without considering various aspects of context, are at best incomplete and at worst entirely lack validity, no matter how sophisticated the computational algorithms.

Given this scientific background, it's no surprise Europe's "Silent Talker" lie detector/behavioral detection program can't actually detect lies or liars.

A person judged to have tried to deceive the system is categorized as “high risk” or “medium risk,” dependent on the number of questions they are found to have falsely answered. Our reporter — the first journalist to test the system before crossing the Serbian-Hungarian border earlier this year — provided honest responses to all questions but was deemed to be a liar by the machine, with four false answers out of 16 and a score of 48. The Hungarian policeman who assessed our reporter’s lie detector results said the system suggested that she should be subject to further checks, though these were not carried out.

The rush to allow tech to do the work of people -- as well as the firm belief that if something is expensive it must be good -- has led to the funneling of time and money into this highly-questionable border security effort.

IBorderCtrl’s lie detection system was developed in England by researchers at Manchester Metropolitan University, who say that the technology can pick up on “micro gestures” a person makes while answering questions on their computer, analyzing their facial expressions, gaze, and posture.

An EU research program has pumped some 4.5 million euros into the project, which is being managed by a consortium of 13 partners, including Greece’s Center for Security Studies, Germany’s Leibniz University Hannover, and technology and security companies like Hungary’s BioSec, Spain’s Everis, and Poland’s JAS.

There's more money on the way and companies will be pushing dubious "solutions" to governments with security money to burn. European nations have been hit with a series of terrorist attacks, which means the wind is now catching most of these governments' caution and junk science purveyors are converting fervent beliefs into long-term government contracts. The European Commission has budgeted nearly 35 billion euros over the next eight years for border control efforts. Being first is better than being correct, and governments all over the world have shown a willingness to allow unproven tech to use their citizens for on-the-job training.

Filed Under: border security, eu, junk science, lie detector

Confirmed: TSA's Behavioral Detection Program Is Useless, Biased, And Based On Junk Science

from the come-fly-the-discriminatory-skies dept

Thanks to FOIA requests (and lawsuits), the ACLU has gathered enough documents to provide a comprehensive report [PDF] on the worthlessness of the TSA's "Behavioral Detection" program. Meant to give the agency a better way of proactively thwarting acts of terrorism, the program instead opts for lazy profiling, dubious readings of behavioral cues, and junk science.

The documents show the evolution of the behavior detection program and make clear the extent to which it is a program of surveillance of unsuspecting travelers based on unreliable indicators. “Behavior detection officers,” some of them dressed in plain clothes, scrutinize travelers at airports for over 90 behaviors that the TSA associates with stress, fear, or deception, looking for what the TSA calls signs of “mal-intent.” The reliability of these so-called indicators is not supported by the scientific studies in the TSA files. The behavior detection officers may then engage travelers in “casual conversation” that is actually an effort to probe the basis for any purported signs of deception. When the officers think they perceive those behaviors, they follow the travelers, subject them to additional screening, and at times bring in law enforcement officers who can investigate them further.

The TSA has repeatedly claimed that the behavior detection program is grounded in valid science, but the records that the ACLU obtained show that the TSA has in its possession a significant body of research that contradicts those claims. The records include numerous academic studies and articles that directly undermine the premise of the program: the notion that TSA officers can identify threats to aviation security with some reliability based on specific behaviors in an airport setting. In fact, the scientific literature in the TSA’s own files reinforces that deception detection is inherently unreliable, and that many of the behaviors the TSA is apparently relying on are actually useless in detecting deception. The documents further show that the TSA either overstated the scientific validity of behavior detection techniques in communications with members of Congress and government auditors, or did not disclose information that discredited the program’s scientific validity.

There's nothing good in the ACLU's findings. In addition to the contradictory lists of "behavioral indicators" that would make pretty much every traveler suspicious, the documents also include a "Behavioral Detection" presentation [PDF] that shows the compiler's inherent bias. For no appropriate reason, the presentation includes the following images:

Right above these questionable images is something just as questionable: a profile of "female suicide bombers" that pretty much encompasses the entirety of the female gender.

If you can't read/see the picture, the female suicide bomber profiles reads as follows:

Single, married, mothers or grandmothers

High school and college students

Working professionals such as lawyers, journalists, or medical practitioners

Devout or non-devout in religious beliefs

Intelligent, charming, and attractive

Very active in their cause

The cost of this program -- which simultaneously caters to biases while providing little in the way of useful targeting -- runs in the billions. In exchange, US taxpayers have received almost nothing that makes air travel safer. What they have obtained is the "opportunity" to be questioned without being detained, as TSA agents attempt to apply contradictory non-science to "casual" conversations most travelers feel compelled to engage in.

Engaging in mock-casual conversation with TSA agents is guaranteed to result in some level of suspicion, as it would be almost impossible not to.

The TSA’s list of behavioral indicators—long held secret but leaked to the press in March 2015—deepens our concerns about the program and calls into question whether it could ever be implemented neutrally and objectively. The list includes conduct as commonplace as being late for a flight, yawning, whistling, or rubbing one’s hands together. Other “indicators” are unavoidably subjective: appearing confused, “wearing improper attire,” “appearing not to understand questions,” or displaying “exaggerated emotions.”

In some cases, the TSA indicators place travelers in the difficult position of seeming deceptive to the TSA no matter what they do—whether they “give[] non-answers” to questions or they are “overly specific with answers”; whether they are “gazing down” or “constantly looking at other travelers or associates”; whether they have “no or little direct eye contact” or they have “widely open staring eyes.”

Putting agents in the position of sussing out potential terrorists with a long list of contradictory indicators does travelers and their safety no favors. When nothing can be reconciled against the TSA's disproven "science," agents are more likely to fall back on their own biases when vetting travelers. Hence the large number of non-white fliers "randomly" selected for additional screening.

The program hasn't made the TSA smarter or more nimble. All it's done is made flying even more unpleasant, especially for those that fit the "profile" the TSA provides… which is damn near everyone attempting to board a plane.

Filed Under: behavioral detection, dhs, junk science, searches, tsa
Companies: aclu

Junk Scientist Greets Skepticism With Legal Threats, Sues Blogger For Criticizing Him And His Work

from the shut-up,-he-litigated dept

There's nothing those operating on the fringes of science hate more than people questioning their means, methods, and conclusions. To question is to be sued, unfortunately. Ken White has again fired up the Popehat signal in hopes of securing a skeptical blogger some legal assistance in fighting off a clearly bogus defamation suit by a junk scientist offended by the blogger's dismantling of his junk science.

Pepijn van Erp blogs about science and pseudoscience from the Netherlands. He praises good science and skewers and critiques the bad. Wait a minute. Is that the Jaws theme playing? Yes. Yes it is — because blogging about junk science is a great way to get threatened or sued. In my experience, purveyors of "non-mainstream" science are unusually litigious and sensitive to criticism. You've seen it here at Popehat with "atavistic" cancer theorists and vaccine truthers and naturopaths and fans of questionable cancer remedies and AIDS deniers. I blame the crystals.

Pepijn wrote about a guy named Ruggero Santilli. I see that Wikipedia, which has a four thousand word article about Bigfoot, notes that some scientists view Santilli as a "fringe scientist."

Santilli has argued against skeptics before, primarily racking up losses. He has his supporters though, ones that claim the mainstream scientific community's refusal to recognize Santilli's groundbreaking antimatter "research" is mainly due to the community being chock-full of Jews. So there's that.

Santilli has many pet theories, none of which have garnered much in the way of legitimate support.

Why is he viewed [as a fringe scientist]? Well, you can read Pepijn's post about Santilli's claim that he discovered a new type of gas from specially distilled water. Or you could read Pepijn's post about Santilli's claim that antimatter produces "antimatter-light" that can be focused using concave (NOT convex. NEVER convex.) lenses.

Santilli doesn't care for being called a "scam artist," "mad professor," or "cunning scam artist." (He's also apparently upset antimatter ITSELF has been defamed by Pepijn's posts.) But rather than provide evidence supporting his conclusions, he has decided to sue Pepijn (and others) in Florida.

The lawsuit [PDF] itself is an enjoyable read, especially as it pursues the standard M.O. of bogus libel lawsuits: name multiple defendants including those shielded by Section 230 of the CDA. Santilli is not only suing Pepijn, but his hosting provider, Hosting2Go.

Also on the list of defendants is the name "Frank Israel," for reasons only known to Ruggero Santilli. Pepijn's response to the original C&D, purporting to be from Santilli's lawyer but most likely composed and printed on legal letterhead by Santilli himself, questions why this unrelated party has been named in the lawsuit.

To start with: your client is complaining about two articles on my personal website. My website is not related to Stichting Skepsis. So why you have also addressed the chairman of Stichting Skepsis, Professor Frank Israel, in this matter with a similar letter, I do not understand. The secretary of Stichting Skepsis, dr. Jan Willem Nienhuys, has sent you an elaborate letter (on paper) explaining most of the following matters in more detail. I’m grateful for his support in this case and I do urge you to read his letter with care.

The response letter is a very fun read, especially the part where the blogger informs the lawyer that according to his own law firm's site [archived version as the entire site is now dead], his client cannot possibly expect this lawsuit to survive, no matter how full of merit it might be.

All together I don’t think this article can be seen as libelous towards Magnegas [Santilli's company]. Besides, this article is more than three years old and because of that I learn from your own blog that bringing this to court under Florida law seems pointless: http://fortis.law/2016/01/13/is-it-defamation-slander-and-libel-in-florida/ [mirror].

The relevant portion of that blog post [emphasis added]:

Statute of Limitations

You must bring the issue to the courts within two years of its occurrence for the case to be considered. In cases of internet defamation, this statute applies to the date the post was made, not when it was most recently accessed.

Unsurprisingly, Pepijn has yet to obtain a response from the law firm. If an actual law firm was attached to this suit, you'd think it would have withdrawn the suit. The lawsuit, however, is still live, suggesting Santilli is the "asshole" signing "stupid letters" in Joseph E. Parrish, Esq.'s name.

No matter how stupid the lawsuit and how miserable its chances of surviving a motion to dismiss are, it still costs money to defend against "scientists" who fight criticism with legal threats and filed motions. Hence the Popehat signal, which will hopefully prevent Santilli from damaging anyone but himself with his litigiousness.

Filed Under: defamation, free speech, junk science, pepijn van erp, ruggero santilli

FBI, DOJ And Their Forensic Scientists State They'll Continue Using Discredited Junk Science To Put People Behind Bars

from the if-it-ain't-working,-don't-fix-it dept

For dozens of years, criminal prosecutions have relied on junk science. Forensic science, properly applied, can actually provide matches that identify suspects. But it's not properly applied. In the hands of the DOJ, forensic evidence examination is a closed loop. Outside scientists have been granted access to the DOJ's DNA work, but everything else -- from fingerprints to hair samples -- has been locked away in the government's database.

Still, the DOJ insists its science is solid, something it bases on confirmation bias. The matches determined in its forensic labs are "scientifically certain" because the DOJ's expert witnesses have said so in court. Not only are outside scientists locked out of examining evidence and forensic processes, but defense lawyers are as well.

The DOJ has finally decided to dial back its "scientific certainty" a bit by issuing guidance instructing its experts to not make this claim in court. This follows years of bogus matches being presented as sure things by forensic experts in court, leading to an unknown number of false convictions. This step back is a step forward for an agency that is mostly unwilling to admit to any mistakes or wrongdoing.

This small change is likely due to a damning report [PDF] issued by the President's Council of Advisors on Science and Technology (PCAST) that asserts that the "scientifically certain" evidence prosecutors rely on is severely flawed.

The questions that DNA analysis had raised about the scientific validity of traditional forensic disciplines and testimony based on them led, naturally, to increased efforts to test empirically the reliability of the methods that those disciplines employed. Relevant studies that followed included:

• a 2002 FBI re-examination of microscopic hair comparisons the agency’s scientists had performed in criminal cases, in which DNA testing revealed that 11 percent of hair samples found to match microscopically actually came from different individuals;

• a 2004 National Research Council report, commissioned by the FBI, on bullet-lead evidence, which found that there was insufficient research and data to support drawing a definitive connection between two bullets based on compositional similarity of the lead they contain;

• a 2005 report of an international committee established by the FBI to review the use of latent fingerprint evidence in the case of a terrorist bombing in Spain, in which the committee found that “confirmation bias”—the inclination to confirm a suspicion based on other grounds—contributed to a misidentification and improper detention; and

• studies reported in 2009 and 2010 on bitemark evidence, which found that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter.

Beyond these kinds of shortfalls with respect to “reliable methods” in forensic feature-comparison disciplines, reviews have found that expert witnesses have often overstated the probative value of their evidence, going far beyond what the relevant science can justify. Examiners have sometimes testified, for example, that their conclusions are “100 percent certain;” or have “zero,” “essentially zero,” or “negligible,” error rate. As many reviews—including the highly regarded 2009 National Research Council study—have noted, however, such statements are not scientifically defensible: all laboratory tests and feature-comparison analyses have non-zero error rates.

Despite these conclusions, law enforcement forensic scientists, along with the FBI and DOJ are promising to continue using junk science to convict people. The Attorney General's response to the report is basically, "Thanks for all the hard work, but we're not changing a thing."

In a statement reported by the Wall Street Journal, Attorney General Loretta Lynch said that the agency remains “confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning.” As such, she said, while “we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”

The FBI's response [PDF] is no more enthusiastic. Its one-page blast claims the entire PCAST report is flawed. It also asserts there are "multiple studies" that back up its forensics work. However, the FBI turned down an invitation to participate in the PCAST study and one of the PCAST members points out that the studies the FBI claims contradict the PCAST findings actually do no such thing.

Asked about the FBI’s complaints, Eric Lander, co-chair of the presidential council and president and founding member of the Broad Institute of MIT and Harvard, a biomedical research group, told The Intercept that the FBI is mistaken. “Neither report says that proficiency testing be used to estimate the ‘error rate’ of forensic methods,” he wrote in an email, and both reports agree that examiners should be subject to proficiency tests. And Lander said he is “not aware” of what studies the FBI believes were ignored by the report. “We specifically received FBI’s input on studies to consider and we did so.”

[...]

Lander wrote that the presidential council did in fact review the six studies the FBI complains that it missed. “However, these studies are clearly not empirical studies ‘providing support for foundational validity,'” he wrote. “Indeed, only one of the papers even reports an empirical study of current forensic method at all!”

But the most defensive response [PDF] to the PCAST study has come from the American Congress of Forensic Science Laboratories. Unsurprisingly, the group isn't pleased that its conclusions and methodology have been questioned. Before addressing the shortcomings it feels the study contains, the ACFSL first tries to claim the whole thing is just a politically-motivated attack on the good people in law enforcement.

Interestingly, the PCAST report comes during a presidential administration that has demonstrated a deep sensitivity to the needs and demands of trial attorneys, criminal defendants, and advocates of sweeping criminal justice reform. Future administrations may take a different approach, tending to champion positions traditionally held by police and prosecutors. We have no opinion in these matters. But these swings in ideological perspective cause commensurate changes in how forensic science and its role in our criminal justice system are perceived. In the current political climate, forensic science is looked upon with far more suspicion and, in some cases, disdain than would be the case in other political circumstances. And because forensic science is both expected and apt to remain independent of these political currents, it is vulnerable to being misportrayed and even bullied in a way that compromises its occupational stability.

It's somewhat interesting that a field where evidence has been used to deprive innocent people of their freedom -- and whose courtroom assertions are treated as nearly-unassailable despite a long history of uncorrected errors -- can somehow be bullied by a report both the DOJ and FBI have already indicated they're going to ignore.

It also attacks some of the contributors for their work with the Innocence Project (Eric Lander) and their previous assertions about the intrusiveness of DNA collections (Tania Simoncelli) -- all the while claiming it has no interest in "disparaging" the authors of the study. Even in this, the forensic scientists' sample size is way too small. Attacking Lander for his Innocence Project work conveniently overlooks his considerable contributions to the scientific community.

[Innocence Project's Chris] Fabricant said the congress’ assertions were absurd. “To suggest that the leading scientists in the country would cash in their credibility to do – what? What possible agenda could they be pursuing except scientific validity?” he asked. “I’d like to know what agenda they propose is being driven, and how somebody like Eric Lander – who mapped the human genome — is going to preside over a process that is intended to undermine the criminal justice.”

These responses indicate business -- as lousy and inaccurate as it is -- will continue as usual until the DOJ is forced to confront these issues, either by litigation or legislation. Not exactly heartening news for citizens who don't like being locked up for crimes they didn't commit.

Filed Under: doj, fbi, forensic science, junk science, prosecutors, science

Feds Still Shrugging People Onto Terrorist Watchlists Based On Hunches

from the you-might-be-a-terrorist-IF...-we-decide-you-might-be-a-terrorist-WHEN dept

The US government's desire to keep terrorists off airplanes has resulted in heavily-populated "watchlists" -- lists short on due process and long on hunches.

The TSA, in particular, has embraced a mixture of borrowed ideas and junk science to staff airports with Behavioral Detection Officers, who attempt to keep terrorists from boarding planes by looking for any number of vague indicators. The end result is a billion-dollar program with the accuracy of a coin flip.

That's the physical version of the government's "predictive policing" security efforts. The same sort of vague quasi-science is used to populate its "no fly" list.

The U.S. government’s reliance on “predictive judgments” to deprive Americans of their constitutionally protected liberties is no fiction. It’s now central to the government’s defense of its no-fly list—a secretive watch list that bans people from flying to or from the United States or over American airspace—in a challenge brought by the American Civil Liberties Union.

Court filings show that the government is trying to predict whether people who have never been charged, let alone convicted, of any violent crime might nevertheless commit a violent terrorist act. Because the government predicts that our clients—all innocent U.S. citizens—might engage in violence at some unknown point in the future, it has grounded them indefinitely.

The court itself found the "no fly" list's redress processes (or lack thereof) to be unconstitutional, as it was basically unchallengeable by listed travelers. (And the only sure way for a person to discover they were on the "no fly" list was to buy a ticket to somewhere and attempt to board a plane.) According to the court, the list and its lack of proper redress was a perfect storm of civil liberties violations.

In summary, on this record the Court concludes the DHS TRIP process presently carries with it a high risk of erroneous deprivation in light of the low evidentiary standard required for placement on the No-Fly List together with the lack of a meaningful opportunity for individuals on the No-Fly List to provide exculpatory evidence in an effort to be taken off of the List.

While the DHS has slightly improved its redress process for those who find themselves on the list, it hasn't made any changes to its dubious selection standards. In fact, it's made this part of the process worse.

[T]he U.S. government launched its predictive judgment model without offering any evidence whatsoever about its accuracy, any scientific basis or methodology that might justify it, or the extent to which it results in errors.

In our case, we turned to two independent experts to evaluate the government’s predictive method: Marc Sageman, a former longtime intelligence community professional and forensic psychologist with expertise in terrorism research, and James Austin, an expert in risk assessment in the criminal justice system. Neither found any indication that the government’s predictive model even tries to use basic scientific methods to make and test its predictions.

As Sageman says, despite years of research, no one inside or outside the government has devised a model that can predict with any reliability if a person will commit an act of terrorism.

And there go any redress improvements. To get off the list, a person must convince the government he or she won't commit a criminal act that its "predictive model" has determined they might. At least in the FBI's terrorist "investigations," there's a minimum of intent and activity. In the case of would-be travelers like the ACLU's clients, there's nothing more than a predictive model spitting out probabilities.

In all likelihood, the predictive model used by the US government is based on more than faulty science. It's also based on faulty reasoning. As Doug Saunders at the Globe and Mail points out, analysts researching tracking and surveillance of would-be terrorists are finding the usual presumptions are mostly wrong.

Analysts began looking at the work of Paul Gill, a criminologist at the University College of London. In a highly influential 2014 paper titled “Bombing Alone: Tracing the Motivations and Antecedent Behaviours of Lone-Actor Terrorists,” Dr. Gill and his colleagues analyzed known terrorists not by what they thought or where they came from, but by what they did.

In the weeks before an attack, terrorists tend to change address (one in five) or adopt a new religion (40 per cent of Islamic terrorists and many right-wing terrorists did so). And they start talking about violence: 82 per cent told others about their grievance; almost seven in 10 told friends or family that they “intended to hurt others.”

A huge proportion had recently become unemployed, experienced a heightened level of stress or had family breakdowns. And most had done things that looked like planning – including contacting known violent groups.

Predictive modeling often looks like "thought policing," but that is of little use, apparently. There are other indicators that are far more telling, but these factors aren't being given proper weight by the models in use. Saunders notes that there has been a shift in modeling over the past couple of years, thanks to research from analysts like Paul Gill, but that shift in predictive factors hasn't slowed legislators from demanding even more futile, invasive "thought policing."

Unfortunately, governments, including Canada’s, are behind the curve: Just as their terrorism experts and security employees have abandoned policies which resemble the policing of thoughts, they're passing disturbing laws to make such obsolete practices easier.

The DHS may be using smarter modeling now, but it's not as though it's been examining its existing list to remove those who don't match the vague criteria. Instead, it's only responding to challenges made by travelers who find themselves on the list, and even then, it may still withhold information a listed flyer could use to challenge their status if the agency deems the release of such info a threat to national security. The nod to due process leads to an exchange of information and paperwork with the government, but there's nothing adversarial about the redress procedure. It's your word against theirs, with the agency -- not a court -- making the final determination as to whether a person can ever board an airplane.

Filed Under: behavioral targeting, doj, hunch, junk science, no fly list, terrorist watchlist, tsa