Tired Of Federal Apathy, Oakland Moves To Ban Anticompetitive Broadband Landlord Deals

from the this-stuff-can-be-fixed-if-you-care-enough dept

We've noted for years how corruption and apathy have resulted in the U.S. broadband sector being heavily monopolized, resulting in 83 million Americans having the choice of just one ISP. Tens of millions more Americans only have the choice of their local cable company or an apathetic local phone company that hasn't meaningfully upgraded their aging DSL lines in twenty years. On top of that problem is another problem: ISPs routinely bribe or bully apartment, condo, and other real estate owners into providing them cozy exclusivity arrangements that block broadband competition on a block by block level as well.

While the FCC tried to ban such landlord/monopoly ISP shenanigans back in 2006, the rules were poorly crafted. As a result, this stuff still routinely happens, it's just called...something else (Susan Crawford wrote the definitive piece on this for Wired a few years back).

For example ISPs will still strike deals with landlords banning any other ISP from advertising in the building. Sometimes landlords will still block competitor access to buildings entirely. Or they'll charge building access fees that unfairly penalize smaller competitors that may not be able to afford them. Or, because the rules prohibit ISPs from blocking access to an ISP's in building wiring, they'll just lease these building lines to the landlord, who'll then block access to competitors on behalf of the monopoly ISP (because technically the landlord now owns them). It's just noxious, weedy bullshit, and it's been going on for decades.

While the FCC has recently made a little noise about revisiting the subject, any policymaking there could take years to sluggishly materialize. Like most broadband reform, feckless federal leadership has driven reform to take place at a faster cadence on the local level. In Oakland, for example, the city council just voted to effectively eliminate all landlord/ISP anticompetitive shenanigans to encourage broadband competition:

"Oakland residents shared the stories of their personal experience; a broad coalition of advocates, civil society organizations, and local internet service providers (ISPs) lifted their voices; and now the Oakland City Council has unanimously passed Oakland’s Communications Service Provider Choice Ordinance. The newly minted law frees Oakland renters from being constrained to their landlord's preferred ISP by prohibiting owners of multiple occupancy buildings from interfering with an occupant's ability to receive service from the communications provider of their choice."

The ordinance closely mirrors a similar law passed in San Francisco aimed at ending anticompetitive ISP/landlord schemes. The ordinance kills all kinds of payola nonsense that occurs on this front. If a competitor needs to access the building because a tenant has ordered service, landlords can't block it (within reason, you still couldn't install your own giant tower on the rooftop).

Again it wasn't particularly hard to craft such effective provisions if the willpower is there. But the political influence telecom giants like AT&T and Comcast have on state and federal lawmakers means such willpower is pretty hard to come by. It's an example of how government regulation in telecom isn't inherently evil (a telecom industry propped up bogeyman that has informed conventional wisdom for a generation), especially if it's actively encouraging competition in a heavily monopolized sector where cronyism and corruption are commonplace.

Filed Under: apartments, broadband, california, competition, landlord deals, landlords, oakland

California Cities Experimenting With Civilian Responses To Mental Health Crisis Calls

from the fewer-chances-somone-will-be-helped-to-death-by-police-officers dept

More cities are adopting an approach to mental health emergency calls that steers calls away from police officers and towards professionals who are trained to respond to mental health crises with something other than force deployment.

Early results have shown promise in cities like Denver, Colorado and New York City, New York. These response teams are not only better suited to handling mental health calls, but they're less expensive than sending cops and/or needlessly involving the carceral system. Law enforcement agencies command outsized portions of city budgets. Shifting small portions of these budgets to alternatives like these makes better use of these funds, providing residents with options that are far more effective -- and cost effective -- than the usual method of sending more expensive government employees to respond to problems they're ill-equipped to handle.

A couple of cities in California are experimenting with mental health response teams. The teams in use in Sacramento and Oakland were formed by residents in response to the tragic killing of a young man suffering from schizoaffective disorder by police officers.

That day, Miles was having a schizoaffective episode at the family’s home in Walnut Creek, CA, a city a few miles east of Oakland.  

First Miles’ grandmother, and then Taun Hall herself, called 911. Hall wanted to get her son to a hospital where he could receive treatment. She felt her only option was to call the police.

But when the Walnut Creek police officers arrived, the situation escalated quickly.

“[The police officers] were shouting at him and, you know, doing commands,” Hall said. “Someone who is mentally impaired doesn’t respond, doesn’t understand, because they’re not in the same frame of mind.”

Miles Hall ran towards the officers, who first shot him with ‘less-lethal’ ammunition called bean bag rounds. When he continued running, two officers shot him with their handguns. Miles Hall was transported to John Muir Hospital, where he died from his injuries.

MH First Sacramento and MH First Oakland are both part of the same project. The MH stands for Miles Hall just as much as it stands for mental health. Both are offshoots of the Anti Police Terror Project, an advocacy group seeking to end the longstanding use of violence by police officers against people of color. Currently, both response teams are limited to running mental health hotlines on weekends only but both hope to expand on that with the recent COVID wave starting to recede in the state. They're also hoping to secure more funding to expand their operations to offering response teams that can handle mental health calls requiring in-person assistance.

Residents of Oakland will soon have one more option for mental health calls that won't involve law enforcement.

Now, a new pilot project has been funded by the city of Oakland to take even more of the workload off the shoulders of the police.

“A project called MACRO, Mobile Assistance Community Response of Oakland,” explained [Coalition for Police Accountability coordinator Rashidah] Grinage. “And what it does is it says that 911 calls that are not necessarily required to have a police response, namely their low-level calls, they are sometimes mental health crises, but there can be other kinds of incidents as well. Conflicts between neighbors, problems with somebody blocking a driveway, incidents where a police officer is not really a necessary responder, MACRO will provide civilian responses to these kinds of 911 calls for service.”

MACRO is based on the CAHOOTS (Crisis Assistance Helping Out On The Streets) program currently running in Eugene, Oregon. That program has achieved considerable success, not the least of which is the savings of over $6 million a year in public safety spending.

It's too early to tell whether these programs will replicate the successes seen elsewhere. But it is clear more options like these are necessary if we want to keep more people alive. Police officers shouldn't be expected to handle these situations well. They're simply not trained to perform this sort of public assistance. Unfortunately, they're the default option in most cases, which means officers responding to mental health calls will fall back on the training they have received, which mostly involves subduing people and responding to perceived threats -- neither of which tends to work out well for people who are already struggling to maintain their grip on reality.

Filed Under: civilian responses, emergency calls, mental health, miles hall, oakland, police, sacramento, walnut creek

The Oakland PD's Dramatic Drop In Use-Of-Force Incidents Is All Bullshit

from the numbers-massaged-and-manually-pleasured dept

Well, this post of mine has aged terribly.

Back in 2014, I breathlessly reported the Oakland PD's adoption of body cameras had resulted in sweeping improvements to its use of force. Deadly force usage had dropped to nothing, reducing the number of people killed by cops from eight per year to zero.

That still holds. If you just look at dead bodies, you'll see that the Oakland PD had produced zero corpses in the 18 months following the installation of body cameras. But other stats in that report are a bit more questionable.

[Mayor] Jean Quan said Oakland police officers had 2,186 use-of-force incidents in 2009, the last year that no officers wore body cameras, and that number declined to 836 such incidents last year and to only 572 incidents so far this year, with just two weeks remaining.

Were body cams really the panacea? Did this program actually introduce accountability?

Unfortunately, it appears the body cams changed nothing. Precipitous drops in use of force incidents have continued. Year after year, the Oakland PD appeared to improve its relationship to the public in terms of subjecting them to physical restraint or bullets.

But the drop observed here has turned out to be too good to be true. Turns out the easiest way to reduce use of force stats is to… stop reporting uses of force.

[I]n September 2018, the Oakland police’s inspector general, an internal watchdog, found that officers under-reported the number of times they pointed their guns at people. In November, the department’s independent monitor confirmed the inspector general’s determination while also noting multiple cases in which officers struck or wrestled with people and failed to report it.

The report [PDF] by the Oakland PD's Inspector General shows officers fudging numbers to make it appear as though the force was using less force. There may have been little to no improvement whatsoever, even with the addition of body cameras. I mean, thank god the force didn't keep killing eight people a year, but beyond the periodic homicide, there has been little improvement.

Substantial drops in several use of force stats prompted this IG investigation, as well as an internal review initiated by the PD itself. What investigators found was very little change in use of force habits, but a lot of change in use of force documentation.

Pulling a sample of incidents in which use of force would be expected, the OIG found officers simply weren't documenting their force deployments.

All documentation and available video footage for the 47 incidents were reviewed. Of these 47 incidents, the auditors identified 17 in which a reportable use of force went unreported (no use of force form was completed).

You've heard the "bad apples" excuse. It appears the rotten apples within the Oakland PD tend to gravitate towards each other.

Twelve of the 17 incidents of underreporting involved four squads of officers.

It's not all bad news, though. The department was at least forward-thinking enough to believe certain cases might need additional review. This policy would at least give a second pass to "contempt of cop" arrests.

The Chief published a Special Order requiring supervisory review of PDRD footage for incidents involving Penal Code 69, 148, and 243(b)(c) arrests (threatening an officer, resisting arrest, battery on an officer) in late November 2018.

But there's plenty of bad news. The Oakland PD instituted policies meant to compile objective reporting of use of force incidents. But then it undermined its own policies by allowing officers to make judgment calls on reporting.

In practice, a police officer’s “intention” is a dominant factor in determining whether the pointing of the firearm at the subject(s) is reportable, a result of an inadequately designed policy.

Because of these deficiencies, the Oakland PD revamped its policies in 2018. This resulted in a dramatic change in use of force stats, albeit not in the direction one would hope.

[B]eginning in October 2018, the total number of reported uses of force (all types of force) increased dramatically, by nearly 300% between January and May 2018 and January and May 2019.

So, it's mostly bad news, highlighted by the uptick in force deployment post-policy fix. Even with the fixes, the OIG found even more under-reporting.

Upon review of the associated video recordings for the 47 incidents likely to involve force in which the arrests were more probable to have involved a use of force, there were 177 incidents in which the Lead Auditors deemed a reportable weaponless defense technique or pointing of a firearm(s) was used and not reported and documented.

It's not just about guns. These are a few cases the OIG highlights in its report, showing even use of less-than-deadly force went unreported despite the new policies.

1. Officers were in a foot pursuit of a subject and an officer forcefully pushed the subject, causing him to fall on the ground against a fence. The reporting officer stated in his report “no known witnesses.” OIG’s review of the associated video footage identified multiple witnesses on scene when the force in question was used.

2. Officers were attempting to place a subject in handcuffs, and the subject stood up and punched an officer in the face. Another officer wrapped his arms around the subject, physically lifting him off the ground causing them both to fall backwards onto a glass table and then lifted the subject back onto a couch.

3. A detained subject started to run from an officer, and the officer grabbed the subject by the hair and pulled him to the ground. The officer failed to articulate and document in his report that he pulled the subject by his hair.

4. During the search of a subject, the subject turned to run, and the officer grabbed him, causing them both to fall to the ground. The officer also delivered an intentional forearm strike to the subject’s right tricep area while attempting to handcuff the subject.

Cops may complain body cameras are nothing more than "gotcha" devices meant to catch them abusing people and violating their rights. The flow of these policemen's tears would mean oh so much more if the body cameras didn't catch them abusing people and violating their rights. So, if nothing else, the body cameras are exposing what officers hoped to cover up by not filing use of force reports.

Then there's this: cops may argue they don't engaged in biased policing, but the stats belie their protestations of "fair and balanced" enforcement.

There were 12 incidents involving 19 subjects in which the audit found the pointing of the firearm should have been reported as a use of force but was not. Of the 19 subjects, 17 were African American (89%) and 2 were Hispanic (11%).

So, every time a white person has a gun pointed at them by an Oakland PD officer, it gets reported. That seems a bit troublesome.

And there's little reason to believe the ongoing use of body cameras will result in more conscientious policing. Officers apparently believe recording interactions with the public is optional.

Upon review of the associated video recordings for the 47 incidents likely to involve force in which the arrests were more probable to have involved a use of force, the lead auditors determined there were PDRD concerns in 19 incidents. However, 18 of the 19 incidents involved officers not complying with PDRD policy requirements.

Fortunately, the large number of cameras issued ensure there was at least some footage of every use of force incident. Unfortunately for officers who "forgot" to activate their cameras, other officers activated theirs, giving investigators all they needed to discover multiple violations of the PD's body camera policies.

The Oakland PD only looks better on paper. It has barely changed at all since the institution of body cameras and use of force reporting requirements. Some cops hate accountability and many apparently view this as damage to be routed around. Until the PD steps up and starts firing people for violating policy, the practice of fudging the numbers and neglecting camera obligations will continue.

Filed Under: body cameras, lies, oakland, police, statistics, use of force

Oakland, California On Its Way To Becoming The Third US City To Ban Facial Recognition Tech

from the beat-it,-face-jockeys dept

For the third time in two months, a US city has banned the use of facial recognition tech by local government agencies.

San Francisco started this movement (oh god please let it be a movement) back in May, booting the tech out of the city before local agencies had even gotten a chance to fool around with it. Earlier this month, Somerville, Massachusetts took home the silver in the anti-surveillance-state games, enacting a local ban on facial recognition tech.

Oakland, California has become the third city in the nation move forward with a facial recognition tech ban, as KPIX reports:

The city of Oakland on Tuesday took a first step towards banning the use of facial recognition technology by city employees, including the Oakland Police Department.

The City Council voted unanimously to approve the ordinance, which would prohibit police from both acquiring the software or using it at all, including if used by other police agencies.

This won't become official until September, when the council will reconvene for a second -- and final -- vote on the ordinance. It seems unlikely a majority of councilmembers will switch positions in the next 60 days, so local agencies with an eye on acquiring this tech should probably put those dreams to bed.

This ban appears to be slightly broader than those enacted elsewhere. It forbids government agencies from using the tech even when partnering with non-city agencies that might have this tech in their possession.

And a little homework goes a long way. The city council's president wrote a report on all the downsides of facial recognition tech, including its lack of accuracy and its tendency to err more often when attempting to identify minorities.

This ban will cramp the Oakland PD's style a bit. It already uses facial recognition tech via a database owned by the San Mateo County Sheriff. It argued that it should still be allowed to do this, but the council disagreed, voting for a ban that locks them out of the Sheriff's database. Hopefully, that language will be retained when it comes up for a final vote in September.

Filed Under: bans, facial recognition, oakland, privacy

Oakland Residents Now Protected By The 'Strongest' Surveillance Oversight Law 'In The Country'

from the and-there-was-much-rejoicing dept

After years of deploying surveillance tech with minimal oversight and zero public notice (sometimes even city lawmakers were cut out of the loop), law enforcement agencies are being reined in by their overseers. Cyrus Farivar of Ars Technica reports Oakland, CA city governance is putting residents first for a change, joining a few other California cities in efforts to reduce surveillance tech abuse and increase public accountability.

Late Tuesday evening, the Oakland City Council formally approved a new city ordinance that imposes community control over the use of surveillance technology in the city.

Oakland is now one of a number of California cities, including Berkeley and Davis, that mandates a formal annual report that details "how the surveillance technology was used," among other requirements.

The city itself caught some heat for a 2013 plan to turn the city into London, UK (West Coast, USA Edition). The proposed "Domain Awareness Center" would have provided law enforcement with access to a network of more than 1,000 cameras. To make matter worse, the proposed system would have been cobbled together by SAIC, a government contractor with a sordid history of fraud, bribery, and shoddy workmanship. SAIC was behind a $600 million custom computer system ordered by the FBI. When it finally arrived, late and overbudget, it was so worthless the agency immediately scrapped the system and hired a different contractor.

The backlash from this attempt to place most of the city under round-the-clock surveillance has prompted a change of heart in city leadership. The new ordinance [PDF] opens with several declarations, including this one, which indicates city governance recognizes the inherent downside of pervasive surveillance.

WHEREAS, the City Council finds that, while the use of surveillance technology may threaten the privacy of all citizens, throughout history, surveillance efforts have been used to intimidate and oppress certain communities and groups more than others, including those that are defined by a common race, ethnicity, religion, national origin, income level, sexual orientation or political perspective…

Following the declarations are the specifics. Lots of them. Reporting requirements are robust and thorough, demanding law enforcement agencies provide info on data gathered, who data was shared with, what was disclosed, how surveillance tech is being deployed, and where in the city these devices and methods have been put to use. The ordinance also requires periodic audits to check for violations, unauthorized access, and demands law enforcement agencies assess the impact these devices are having (if any) on reducing crime.

The new ordinance -- written with the ACLU's assistance -- passed unanimously. It has the support of city leaders and city residents. How much support it has in the law enforcement community remains to be seen.

Filed Under: 4th amendment, oakland, surveillance

Beyond ICE In Oakland: How SESTA Threatens To Chill Any Online Discussion About Immigration

from the trafficking-is-in-the-ICE-of-the-beholder dept

First, if you are someone who likes stepped-up ICE immigration enforcement and does not like "sanctuary cities," you might cheer the implications of this post, but it isn't otherwise directed at you. It is directed at the center of the political ven diagram of people who both feel the opposite about these immigration policies, and yet who are also championing SESTA. Because this news from Oakland raises the specter of a horrific implication for online speech championing immigrant rights if SESTA passes: the criminal prosecution of the platforms which host that discussion.

Much of the discussion surrounding SESTA is based on some truly horrific tales of sex abuse, crimes that more obviously fall under what the human trafficking statutes are clearly intended to address. But with news that ICE is engaging in a very broad reading of the type of behavior the human trafficking laws might cover and prosecuting anyone that happens to help an immigrant, it's clear that the type of speech that SESTA will carve out from Section 230's protection will go far beyond the situations the bill originally contemplated.

Some immigration rights activists are worried that ICE has recently re-defined the crime of human trafficking to include assistance, like housing and employment, that adults provide to juveniles who come to the United States without their parents. In many cases, the adults being investigated and charged are close relatives of the minors who are supposedly being trafficked.

Is ICE simply misreading the trafficking statutes? Perhaps, but it isn't necessarily a far-fetched reading. People in the EU who've merely given rides to Syrian (and other) refugees tired from trekking on foot have been prosecuted for trafficking. Yes that's Europe, not the US, but it's an example of how well-intentioned trafficking laws can easily be over-applied to the point that they invite absurd results, including those that end up making immigrants even more vulnerable to traffickers than they would have been without the laws.

So what does that have to do with SESTA? SESTA is drafted with language that presumes that sex trafficking laws are clearly and unequivocally good in their results. And what that Oakland example suggests is that this belief is a myth. Anti-immigrant forces within the government, both federal and state, can easily twist them against the very same people they were ostensibly designed to protect.

And that means they are free to come after the platforms hosting any and all speech related to the assistance of immigrants, if any and all assistance can be considered trafficking. The scope of what they could target is enormous: tweets warning about plain-clothed ICE agents at courthouses, search engine results for articles indicating whether evacuation centers will be checking immigration status, online ads for DACA enrollment assistance, or even discussion about sanctuary cities and the protections they afford generally. If SESTA passes, platforms will either have to presumptively censor all such online speech, or risk prosecution by any government or state entity with different views on immigration policy. Far from being the minor carve-out of Section 230 that SESTA's supporters insist it is, it instead is an invitation to drive an awful lot of important speech from the Internet that these same supporters would want to ensure we can continue to have.

Filed Under: chilling effects, free speech, immigration, oakland, sesta, sex trafficking

ICE Now Calling Aiding Unaccompanied Minors 'Human Trafficking' To Bypass Sanctuary City Laws

from the offline-SESTA-ing dept

In the name of fighting sex trafficking, legislators are willing to make the internet mostly worthless. Punching a hole in Section 230 protections will encourage incumbents to limit user participation and prevent startups from ever making it off the ground. Proponents claim it's narrowly-targeted and abuse-proof, but the language would allow any service provider to be held accountable for the criminal actions of users. If traffickers can't use Facebook or Google thanks to heavier moderation, they'll move onto other websites and services until those too are rendered useless by government action.

Part of the problem with legislation like this is mission creep. It may start with sex trafficking, but it will inevitably be expanded to cover other illicit content. And sex trafficking itself is its own dodge. All the government has to do is claim something is trafficking and the hammer begins to fall.

This is because the term leaves no room for intelligent conversations. Proponents know people aren't likely to speak up against efforts to fight sex trafficking, especially when they point out this sometimes includes children. It becomes a governmental blank check for enforcement action -- something that deters questioning of the government's activities, much in the way the term "national security" has limited legislative and judicial discussion about surveillance overreach.

A recent raid by ICE in Oakland, California, appears to have been carried out under false pretenses: a bog standard immigration enforcement action masquerading as a human trafficking investigation.

Following a controversial Aug. 16 raid of a West Oakland home by Immigration and Customs Enforcement agents, Oakland Police Chief Anne Kirkpatrick said repeatedly that the operation was part of a criminal human trafficking investigation. She also asserted that OPD did not violate Oakland's sanctuary city policy by assisting ICE — by providing several patrol officers to block off the street during the raid — because it was a criminal, not civil immigration matter.

Sounds ominous. But the paper trail undermines the official narrative.

But according to evidence presented by Oakland Privacy Advisory Commission Chair Brian Hofer at the commission's meeting last week, the raid hasn't resulted in a single criminal prosecution. Rather, the only person arrested, Santos de Leon, is facing civil immigration charges and could be deported.

This is generating controversy because it appears Oakland police violated the city's sanctuary statutes by providing assistance to ICE in routine immigration enforcement efforts. But that's not the only reason it's controversial. It appears ICE is using loaded language to redefine activities performed by citizens aiding stranded children.

Immigration advocates are worried that the West Oakland raid could be an example of a new and troubling trend: ICE has recently begun to classify the act of providing shelter and other assistance to unaccompanied minors who recently immigrated to the United States as "human trafficking," and is charging adults, often close family members, with the crime.

When someone refers to a bill containing massive collateral damage as "narrowly targeted," they're either being ignorant or disingenuous. No one knows how to exploit legislation better than government agencies, and ICE calling acts of aid "human trafficking" (or "sex trafficking," according to the Oakland PD police chief) allows it to utilize local law enforcement and bypass local restrictions.

This is an IRL example of the exploitability of the terminology tied to SESTA. It's apparently being abused to allow local law enforcement agencies to violate local laws. Letting legislation like SESTA loose on the internet will result in similar abusive acts, accelerating mission creep's inevitable advance.

Filed Under: dhs, human trafficking, ice, immigration, oakland, oakland pd, sanctuary cities, sesta

Federal Court Says Warrants Are Needed For Stingray Deployment

from the little-more-Fourth-for-cellphone-users dept

A federal court in Oakland, California has come to a conclusion the DOJ definitely didn't want it to reach, as Cyrus Farivar reports for Ars Technica.

In the 39-page ruling, US District Judge Phyllis Hamilton notably found that the use of stingray to find a man named Purvis Ellis was a "search" under the Fourth Amendment—and therefore required a warrant.

The DOJ -- despite issuing its own guidance requiring warrants for Stingrays in 2015 -- argued in court earlier this year that no warrant was needed to deploy the Stingray to locate a shooting suspect. It actually recommended the court not reach a conclusion on the Fourth Amendment implications of Stingray use, as it had plenty of warrant exceptions at the ready -- mainly the "exigent circumstances" of locating a suspect wanted for a violent crime.

Unfortunately for the federal government (and all other law enforcement agencies located in the court's jurisdiction), the court declined the DOJ's offer to look the other way on Constitutional issues. It found a Stingray's impersonation of cell tower to obtain real-time location information is a search under the Fourth Amendment.

The court adopts Judge Koh’s reasoning in In re Application for Telephone Information, 119 F. Supp. 3d at 1026, to hold that cell phone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable. While Judge Koh limited her analysis to the privacy interest in historical CSLI, the court determines that cell phone users have an even stronger privacy interest in real time location information associated with their cell phones, which act as a close proxy to one’s actual physical location because most cell phone users keep their phones on their person or within reach, as the Supreme Court recognized in Riley. In light of the persuasive authority of Lambis, and the reasoning of my learned colleagues on this court recognizing a privacy interest in historical cell site location information, the court holds that Ellis had a reasonable expectation of privacy in his real-time cell phone location, and that use of the Stingray devices to locate his cell phone amounted to a search requiring a warrant, absent an exception to the warrant requirement.

The court also has something to say about the FBI/Oakland PD's use of a pen register order as a stand-in for a warrant specifically detailing the type of device to used to obtain these so-called "phone records."

The government contends that since the Stingray devices used in this case were configured in compliance with the pen register statute, then the provisions of the pen register statute, including the “emergency” provisions, govern their operation. Doc. no. 321 at 9 (citing 18 U.S.C. § 3125). The government does not address the key issue in dispute, namely, whether the provisions of the pen register statute and the SCA provide the appropriate standard for using a CSS to locate a cell phone in real-time. The court follows Judge Illston’s determination in Cooper, 2015 WL 881578, that the provisions of the pen register statute and the SCA do not authorize the use of a CSS to disclose realtime information about a cell phone user’s physical location, and that such location monitoring must be authorized by a showing of probable cause.

It also points out the DOJ's reliance on the Stored Communications Act to salvage its warrantless Stingray use is misplaced -- something that could be gathered by the name of the statute.

[C]ongress intended that the SCA “was to be used as a means to obtain data which has already been stored at the time the government seeks to obtain it,” as opposed to real-time data.

Ultimately, though, the court denies the suppression of the evidence, allowing the government's "exigent circumstances" argument to prevail. This may prove to be a good thing in the long run (although it does little for the defendant). Allowing the government to keep its evidence gives it no reason to appeal the decision. And this decision implements a warrant requirement for obtaining real-time cell site location info and gives certain third-party records an expectation of privacy.

Filed Under: 4th amendment, imsi catcher, oakland, purvis ellis, stingray, surveillance, warrant

Court Documents Show FBI Had To Bail Out Oakland Police With Its Bigger, Better Stingray

from the stand-back-and-let-the-pros-handle-this,-son dept

Cyrus Farivar of Ars Technica has obtained court documents showing the Oakland Police Department had to call in the feds -- and their IMSI catcher -- to track down a suspect wanted in connection with a shooting of an off-duty police officer.

According to new government affidavits filed earlier this week, the Oakland Police Department (OPD) used its stingray without a warrant in 2013 for several hours overnight as a way to locate a man accused of being involved in shooting a local police officer. The OPD called in the FBI when that effort was unsuccessful. The FBI was somehow able to locate the suspect in under an hour, and he surrendered to OPD officers.

The only reason these affidavits even exist is because the judge presiding over the prosecution of Purvis Ellis ordered the government to submit declarations detailing how the devices were used to locate him. Two declarations -- one from the FBI [PDF] and one from the Oakland PD [PDF] -- shed some additional light on the now-ubiquitous cell phone-tracking technology.

Neither law enforcement agency sought a warrant for their Stingray deployments. Both declarations claim none was needed because of "exigent circumstances." Given that this occurred before the DOJ instituted a warrant requirement for the FBI's Stingray use, it's unlikely any evidence is in danger of being tossed.

The Oakland PD's declaration states the same thing: no warrant was sought because of "exigent circumstances." Similarly, there appears to have been no warrant requirement in place for the Oakland Police Department at that time. That doesn't mean the court won't find that the use of a Stingray device (or, in this case, two of them) requires the use of a warrant, but even if it does, the good faith exception is likely to apply -- especially in the FBI's case, as its warrant requirement was still thee years away. In both deployments, pen register orders were used to obtain subscriber info. Because exigent circumstances dictated the requests, no judicial approval of the orders was needed.

Ellis' lawyers are hoping the judge will find the circumstances surrounding the Stingray deployments to be not nearly as "exigent" as the government claims.

Prosecutors argued that because the three men involved in the altercation were at large, there was a clear exigency. Ellis’ defense, meanwhile, has countered that because the OPD had declared the scene “secure” 14 minutes after Karsseboom was shot, there was no exigency. This issue remains unresolved.

On one hand, securing a crime scene doesn't immediately dispel perceived exigency. As the government points out, the shooting suspects were still free and roaming Oakland. On the other hand, the amount of time that elapsed between the Oakland PD's response to the reported shooting and the eventual location of Ellis by the FBI -- 15 hours -- suggests some of the exigency may have dissipated by the time the FBI fired up its tracking device.

Whatever the case is, the Oakland PD's call for assistance suggests its equipment was already outdated.

“It's unclear from the Oakland declaration how continuous the operation of their equipment was,” Brian Hofer, chair of the City of Oakland Privacy Advisory Commission, told Ars. His newly created commission has been scrutinizing the city’s procurement process for surveillance and has pushed for new policies overseeing its use.

“We believe that Oakland only had an older 2G/3G Stingray, based on public records in our possession,” he continued. “It is possible that the FBI already possessed a Hailstorm or similar 4G capable device at this time, or an older 2G/3G system but with enhanced amplification, or maybe Oakland's equipment was simply malfunctioning."

The shooting occurred roughly two years before the PD attempted to secure a Homeland Security grant to pay for the Hailstorm upgrade, which would have allowed it to track the suspect. The FBI's newer version had no such problems. The Oakland PD spent ten futile hours searching for Ellis. The FBI located him roughly an hour after deploying its Stingray. It also deployed something else along with it. From the FBI's declaration:

At one point, in an effort to reduce the error radius and increase the accuracy of the location of the cellular telephone, a cell site simulator augmentation device was deployed into the interior of the apartment building. This device is used in conjunction with the cell site simulator and has no data storage capability whatsoever.

Farivar spoke to Daniel Rigmaiden -- the person who first uncovered government use of Stingray devices in criminal investigations (prior to that, it had only been deployed in war zones by the military) while serving time for tax fraud -- who suggested the "augmentation device" might be something made by KeyW or one of its competitors. These devices passively collect connection info and are small enough to be carried in an agent's hand.

Rigmaiden also points out something else this incident shows, however inadvertently. All the money being spent by local law enforcement agencies might be better off spent on other things. Not having a Stingray device isn't the end of the world -- especially when the FBI is willing to put its devices and technical expertise to use at a moment's notice.

Filed Under: fbi, oakland, oakland police department, privacy, purvis ellis, stingray

Sad Raiders Fan Tries To Keep Team In Oakland By Squatting On Trademark

from the that-won't-work dept

I'm not certain why people think this will work, but there seems to be an idea floating around a few of our fellow citizens that they can simply force their favorite sports teams to do what they want by filing trademarks for things they never intend to use. You may recall the story about a jackass in North Dakota who wanted to prevent the University of North Dakota from changing its name from The Fighting Sioux to, well, anything else that had been suggested by filing for trademarks on all the other things that had been suggested. Such a strategy was doomed to fail from the beginning for any number of reasons, but mostly because you actually have to be using what you're trying to trademark in commerce in order to get it approved, and trolling isn't a commercial enterprise as far as I know.

Now we have another story, though it shifts from one of trolling to one of simple sadness, as a Raiders fan who doesn't want his team to move to San Antonio, as reportedly might soon happen, has decided to launch a preemptive strike by filing for a trademark for "San Antonio Raiders."

An Oakland Raiders season-ticket holder who wants the team to remain in the East Bay has filed a trademark application for the name “San Antonio Raiders.”

“I figured if I took over the name, San Antonio Raiders, I could force (the team) to stay in Oakland,” Lane Blue of Fresno, California, said in a phone interview.

I'm loathe to heap any real anger upon a Raiders fan, because it seems to me that life as a Raiders fan must be so horrible so as to warp the brain to some degree, but anyone with a bare minimum of knowledge of how trademarks work knows this isn't going to work. Again, you have to use the mark in commerce to get a trademark at all, and Lane Blue would have to show that he's using the mark in a way with which the Raiders would be competing. Also, if the team really is planning on a move to San Antonio, it would be criminal for the team's lawyers not to have already begun the trademark filing process. Regardless, you can expect the application to be reviewed and summarily denied.

But the larger point is that this is a symptom of what permission culture does: it makes the uninformed think that tools like trademark allow for a sort of monopolistic control where it actually doesn't. Why does it do this? Well, because too many times trademark, and other intellectual property laws, skirt or outright cross the line into that exact sort of heavy-handed protectionism, albeit in a less obvious way.

So sorry, Raiders fan. You can't use intellectual property to force your team to stay nearby. Now, maybe if your last name was Disney, on the other hand...

Filed Under: lane blue, oakland, raiders, san antonio, trademark