Sheriff's Dept.: The 1,079 Privileged Jailhouse Calls We Intercepted Was Actually 34,000 Calls

from the so,-we're-getting-really-good-at-privilege-violations dept

A few months back, the Orange County Sheriff's Department admitted it had been listening in on privileged conversations. Calls from inmates to lawyers were being swept up along with everything else by service provider Global Tel Link. This violation of state law (among other things) jeopardized dozens of prosecutions. In all, GTL's so-called "technical error" resulted in the interception of more than 1,000 privileged calls.

The Sheriff's Department claimed it told GTL to fix the problem, but didn't appear to have been terribly bothered by this evidentiary windfall... some of which made its way into the hands of prosecutors. It made several disappointed noises about its provider when confronted in court, but its quasi-proactive "knock it off" -- directed towards GTL -- didn't explain its lack of proactivity when it came to informing criminal defendants and their legal reps their cases may have been compromised by attorney-client privilege violations.

This was only the tip of the iceberg. The OC Register reports there's been an exponential increase in the number of privileged calls trapped by this "technical error." (h/t Matt Ferner)

Nearly 34,000 inmate phone calls to their attorneys were recorded, and the Orange County Sheriff’s Department accessed calls 347 times, according to documents revealed in court proceedings Friday, Nov. 9.

The numbers are a significant – and, to some, alarming – spike from the 1,079 recorded calls Global Tel Link originally acknowledged in an August hearing. At that time, 58 of those recorded calls also were said to have been accessed by Sheriff’s Department or phone company investigators 87 times from January 2015 to July 2018.

Conveniently under seal until after the sheriff's election concluded and GTL's contract renewal was in place, the new numbers blow the old, still disturbing, numbers out of the water. This has triggered a new round of finger-pointing from the Sheriff's Department, which again claims -- despite listening in to the illegal haul -- it's all GTL's fault.

In a release distributed late Friday, Sheriff Sandra Hutchens, who plans to step down early next year, blamed GTL.

“The facts show that this is an error by GTL, an error that they are continually unable to fully disclose or explain,” Hutchens said. “We anticipate this will be exploited by some to perpetuate an anti-law enforcement narrative. We are confident that those who look at this situation objectively will recognize an error by a contractor does not constitute a conspiracy by law enforcement. To imply otherwise ignores the truth.”

Oh my. Not an "anti-law enforcement narrative." Anything but that. The departing sheriff has decided to blame the company for the problem, but not any of her personnel who repeatedly listened to recordings they should never have had access to. And she's proactively blaming the media by claiming reporting facts about the department's thousands of violations is "anti-law enforcement."

GTL, on the other hand, says the new number is bogus. It claims the older, lower number is accurate and those 1,079 calls were the only ones recorded despite the numbers called being on GTL's "do not record" list. When asked to explain the ~33,000 call difference, GTL spokesman James Lee deferred to the court's protective order, saying it prevented him from discussing the case. Apparently the order only covers culpatory statements but nothing halfway exonerative GTL's front man wants to throw out there.

No one seems to know what the actual number of violations is. We've already seen the number of calls collected climb from 1,000 to 34,000 within the space of two months. The Sheriff's Departments wants GTL to shoulder all the blame for the debacle, but somehow still feels comfortable signing it up for another year of possible incompetence.

Orange County taxpayers are paying department personnel to engage in attorney-client privilege violations. That's the long and short of it. And they're going to be paying for the eventual settlements to the eventual lawsuits. It's to be hoped the investigation being helmed by the court will eventually reach the bottom of this debacle, but with one official walking away from the job and the department giving GTL another chance, it doesn't seem like the embarrassing admission of multiple illegal acts by law enforcement will have much of a deterrent effect.

Filed Under: orange county, prison, privacy, privilege
Companies: global tel link

Court Says Gov't Can't Claim Testimony That Undermines Its Criminal Case Is 'Privileged' When It's Used It In Other Cases

from the decks-undergo-destacking dept

The government rarely likes to play fair in court. This is why we have the (repeatedly-violated) Brady rule (which forces the production of exonerative evidence) and other precedential decisions to guide the government towards treating defendants the way the Constitution wants them to be treated, rather than the way the government would prefer to treat them.

In a case involving drug charges predicated on the distribution of synthetic marijuana, the government tried to keep testimony of a DEA chemist out of the hands of two charged defendants. The Fourth Circuit Court of Appeals says this isn't OK in a decision [PDF] that gets very weedy (why yes, pun intended) pretty quickly. That's the nature of synthetics -- and the nature of DEA determinations on controlled substances analogues.

The two proprietors of Zencense -- Charles Ritchie and Benjamin Galecki -- decided to manufacture and distribute their own blend of spice, using XLR-11 and UR-144 as active ingredients. The DEA raided Zencense's Las Vegas production facility, charging the pair with conspiracy to distribute controlled substance analogues.

The government alleges both synthetics are analogues of JWH-018, which is a controlled substance. Unfortunately, its own chemist disagrees with this assertion.

The DEA’s determination that a substance is an analogue is made by its Drug and Chemical Evaluation Section (DRE). During the process of determining if UR-144 is an analogue, the DRE solicited the views of Dr. Arthur Berrier, a Senior Research Chemist with the DEA’s Office of Forensic Sciences. Dr. Berrier concluded that UR-144 is not substantially similar in chemical structure to JWH-018, which would mean that it is not outlawed by the Analogue Act.

This means the distribution was only half as illegal as the government asserts. Or, possibly, not illegal at all, as this footnote portrays the government's assertions.

All of the expert testimony in this case agreed that XLR-11 and UR-144 are indistinguishable, and the Government treats them as the same substance.

If they're similar, and UR-144 isn't "substantially similar" to controlled substance JWH-018, the government doesn't have much of case left to prosecute. The charges hinge on the defendants' knowledge that the substances they manufactured were illegal analogues. But the DEA's chemist is on record stating that the substance Zencense emulated isn't actually a controlled substance.

Upon learning this, the defendants sought to obtain the chemist's testimony. The government refused their request.

The Government opposed the motion to compel, arguing that “some of the information sought [was] part of the deliberative process and is therefore privileged.” (J.A. 673). The district court denied the Defendants’ motion, “find[ing] that the denial of this Touhy request is appropriate as it would violate the Deliberative Process Privilege of the Drug Enforcement Agency to grant the subpoena”.

As the court points out, this is a ridiculous position for the government to take. While the government made a proper claim of privilege, there's nothing privileged about the DEA chemist's assertions.

Applying this framework, we readily conclude that the district court erred in concluding that the deliberative process privilege applies because, to the extent the privilege covers Dr. Berrier, the Government has waived any reliance on it. The Government has, by its own admission, provided Dr. Berrier’s opinion as Brady material in criminal cases involving XLR-11 and UR-144. See United States v. $177,844.68 in U.S. Currency, 2015 WL 4227948, *3 (D. Nev. 2015) (cataloguing cases). Moreover, Dr. Berrier recently testified in open court pursuant to a motion to compel in an analogue case involving the distribution of UR-144. See United States v. Broombaugh, 2017 WL 2734636 (D. Kan. 2017) (ordering the unsealing of Dr. Berrier’s testimony). Finally, Dr. Berrier’s opinion that UR-144 is not an analogue of JWH-018 is freely available online. See Federal Judicial Center, Litigating Synthetic Drug Cases, http://fln.fd.org/files/training/April%202015%20Handout.pdf, pp. 37-41 (last visited May 16, 2018). Therefore, Dr. Berrier’s opinion was accessible to everyone but the jurors in this case.

As the court notes, compelling testimony is limited to that which is "favorable" and "material" to the defense. Clearly, Dr. Berrier's testimony is favorable, as it shows the analogue produced by the defendants was not identical to a controlled substance. As for the materiality of the testimony, the appeals court will let the district court decide. It seems extremely material, as the government's case rests on its accusations of manufacture of a controlled substance analogue, which is at odds with its own expert's assertions.

Unfortunately, this isn't the end of the road for the defendants. Having already faced two trials (one mistrial, one resolved with an Allen charge delivered to a deadlocked jury), the convictions are vacated and the government now has a chance to potentially put the defendants on trial one more time. Even when the government apparently has it wrong, it's still given multiple chances to obtain a conviction.

Filed Under: dea, evidence, government, privilege

Mark Udall's Open To Releasing CIA Torture Report Himself If Agreement Isn't Reached Over Redactions

from the putting-the-pressure-on dept

As we were worried might happen, Senator Mark Udall lost his re-election campaign in Colorado, meaning that one of the few Senators who vocally pushed back against the surveillance state is about to leave the Senate. However, Trevor Timm pointed out that, now that there was effectively "nothing to lose," Udall could go out with a bang and release the Senate Intelligence Committee's CIA torture report. The release of some of that report (a redacted version of the 400+ page "executive summary" -- the full report is well over 6,000 pages) has been in limbo for months since the Senate Intelligence Committee agreed to declassify it months ago. The CIA and the White House have been dragging out the process hoping to redact some of the most relevant info -- perhaps hoping that a new, Republican-controlled Senate would just bury the report.

The arguments for not leaking the report -- or just putting it into the Congressional record -- is not a legal one. Members of Congress are allowed to put whatever they want in the Congressional record without fear of legal repercussions. However, it could lead to other problems, including being kicked off of the Intelligence Committee, which would have led to less ability to oversee what was going on in the future. But since he's leaving anyway... As Timm notes:

But Udall’s loss doesn’t have to be all bad. The lame-duck transparency advocate now has a rare opportunity to truly show his principles in the final two months of his Senate career and finally expose, in great detail, the secret government wrongdoing he’s been criticizing for years. On his way out the door, Udall can use congressional immunity provided to him by the Constitution’s Speech and Debate clause to read the Senate’s still-classified 6,000-page CIA torture report into the Congressional record – on the floor, on TV, for the world to see.

There’s ample precedent for this. In 1971, former Senator Mike Gravel famously read the top-secret classified Pentagon Papers for three hours before almost collapsing and then entering thousands of pages more into the record after he couldn’t speak for any longer from exhaustion.

In fact, Gravel is now urging Udall to do exactly that, in an interview he gave to Dan Froomkin.

“If Udall wanted to do this, he could do the same thing.” Gravel said. “Hell, I’d fly into Washington and help him pass it out.”

If it’s more convenient, Gravel said, he’ll be in Udall’s home state of Colorado in a couple weeks. “If he wants to, we can get together over Thanksgiving weekend, and talk this thing out so he feels comfortable.”

The two biggest reasons not to do it, Gravel said, are no longer relevant. “The biggest fear you have is peer pressure. What are my members of the Senate going to think of me? But I’ve got to say, if you lose office, like he has, he’s got no more peer pressure.”

Udall himself had been rather quiet about all of this over the past few weeks, but has now told the Denver Post that all options are on the table, but he's still hopeful that a deal may be reached.

“I’m going to keep all options on the table to ensure the truth comes out,”

In an odd way, his loss may actually put extra pressure on the CIA to agree to fix the retraction problem, since they now know that Udall can just go around them entirely. Suddenly, the "fallback" position isn't such a good situation. In the past, the CIA could stall under the likelihood that no one could really do much about it. But that calculus has changed, meaning that the CIA no longer has the upper hand here. Still, it would be something if Udall decides that the only way to get this info out is to put it out himself, in part, because he could release a lot more than just the executive summary. Who knows if he'd go that far, but it's good to hear that he's at least open to the option.

Filed Under: cia, mark udall, privilege, torture report

UK Government Report Recommends Ending Online Anonymity

from the dangerous-and-stupid dept

Every so often, people who don't really understand the importance of anonymity or how it enables free speech (especially among marginalized people), think they have a brilliant idea: "just end real anonymity online." They don't seem to understand just how shortsighted such an idea is. It's one that stems from the privilege of being in power. And who knows that particular privilege better than members of the House of Lords in the UK -- a group that is more or less defined by excess privilege? The Communications Committee of the House of Lords has now issued a report concerning "social media and criminal offenses" in which they basically recommend scrapping anonymity online. It's not a true "real names" proposal -- as the idea is that web services would be required to collect real names at signup, but then could allow those users to do things pseudonymously or anonymously. But, still, their actions could then easily be traced back to a real person if the "powers that be" deemed it necessary. Here's the key bit:

From our perspective in the United Kingdom, if the behaviour which is currently criminal is to remain criminal and also capable of prosecution, we consider that it would be proportionate to require the operators of websites first to establish the identity of people opening accounts but that it is also proportionate to allow people thereafter to use websites using pseudonyms or anonymously. There is little point in criminalising certain behaviour and at the same time legitimately making that same behaviour impossible to detect. We recognise that this is a difficult question, especially as it relates to jurisdiction and enforcement.

The report notes that the findings are "tentative" and that these recommendations might possibly "be an undesirably chilling step towards tyranny," but they don't seem that concerned about it, or they wouldn't have made the general recommendation in the first place.

There is a long list of problems with such a proposal, beyond the obvious questions of how you would possibly enforce it and what the various chilling effects would be. But let's take it one step further and note the fallacy of the very premise made in the report: that without such requirements it is "impossible to detect" who did an action online deemed to be illegal. We've been dealing with this issue forever. A decade ago, we reported on the various freakouts over open WiFi and how it would "allow" anyone to commit crimes online and make it "impossible" to find them. And yet, time after time, we noted examples of basic detective work allowing police to track down the criminals.

Yes, without being forced to first identify yourself, it might make the police work a bit more difficult, but never impossible. Take a similar situation in the physical world. Anyone can walk into a store or a bank and hold it up. And they can do it without identifying themselves at the door before coming in. It happens all the time. Police have no official identity to work with, but they do have other clues -- fingerprints, video, photos, the clerk's memory -- to work off of and can piece together who committed the crime. The same is true of people online. Even if they don't identify themselves upfront, they frequently leave plenty of clues that allow law enforcement to figure out who they are.

So the very premise that this is somehow necessary is pretty much eliminated. Then combine it with all of the downsides that we already know about: chilling effects, the end of important anonymity, potential privacy violations and leaks and more. What you're left with is a horrible idea all around.

Filed Under: anonymity, crime, house of lords, privilege, uk, undetectable

Saying That You're Not Concerned Because The NSA Isn't Interested In You Is Obnoxious And Dangerous

from the think-again dept

One of the more common responses we've seen to all of the revelations about all of that NSA surveillance, is the response that "Well, I don't think the NSA really cares about what I'm doing." A perfect example of that is long-time NSA defender Ben Wittes, who recently wrote about why he's not too worried that the NSA is spying on him at all, basically comparing it to the fact that he's confident that law enforcement isn't spying on him either:

As I type these words, I have to take on faith that the Washington D.C. police, the FBI, the DEA, and the Secret Service are not raiding my house. I also have to take on faith that federal and state law enforcement authorities are not tapping my various phones. I have no way of knowing they are not doing these things. They certainly have the technical capability to do them. And there’s historical reason to be concerned. Indeed, there is enough history of government abuse in the search and seizure realm that the Founders specifically regulated the area in the Bill of Rights. Yet I sit here remarkably confident that these things are not happening while my back is turned—and so do an enormous number of other Americans.

The reason is that the technical capability for a surveillance event to take place does not alone amount to the reality—or likelihood—of that event’s taking place....

For much the same reason as I am not rushing home to guard my house, I have a great deal of confidence that the National Security Agency is not spying on me. No doubt it has any number of capabilities to do so. No doubt those capabilities are awesome—in the wrong hands the tools of a police state. But there are laws and rules that protect me, and there are compliance mechanisms that ensure that the NSA follows those laws and rules. These systems are, to be sure, different from those that restrain the D.C. cops, but they are robust enough to reassure me.

Julian Sanchez has a blistering response to that, appropriately entitled Check Your Privilege, which highlights that while Wittes, a well-paid, white, DC-based policy think tank worker, may be confident of those things, plenty of other folks are not nearly so confident, and that the NSA has made it pretty clear that they shouldn't be so confident.

In a democracy, of course, the effects of surveillance are not restricted to its direct targets.  Spying, like censorship, affects all of us to the extent it shapes who holds power and what ideas hold sway.  Had the FBI succeeded in “neutralizing” Martin Luther King Jr. earlier in his career, it would hardly have been a matter of concern solely for King and his family—that was, after all, the whole point. 

Instead of a couple wonks comfortably ensconced in D.C. institutions, let’s instead ask a peaceful Pakistani-American who protests our policy of targeted killings, perhaps in collaboration with activists abroad; we might encounter far less remarkable confidence.  Or, if that seems like too much effort, we can just look to the survey of writers conducted by the PEN American Center, finding significant percentages of respondents self-censoring or altering their use of the Internet and social media in the wake of revelations about the scope of government surveillance. Or to the sworn declarations of 22 civil society groups in a lawsuit challenging bulk phone records collection, attesting to a conspicuous decline in telephonic contacts and members expressing increased anxiety about their association with controversial or unpopular organizations. 

As Sanchez notes, it's not just whether or not any of us are direct targets, but the overall chilling effects of how the system is used. And, I should note, that while Wittes is confident that he's safe -- there are a growing number of folks who have good reason to believe that they are not immune from such surveillance. The recent revelation that Tor users are labeled as extremists who get extra-special scrutiny seems like a major concern. Similarly, the story from earlier this year that the NSA targeted the Pirate Bay and Wikileaks as part of some of its surveillance efforts is a major concern. In the process of doing journalism, I've communicated with folks associated with some of those and other similar organizations. In the past, I probably would have similarly noted that I doubted the NSA cared at all about what I was doing, but as each of these stories comes out, I am increasingly less sure. And, more importantly, even if the NSA is not at all concerned with what I happen to be doing, just the fact that I now have to think about what it means if they might be certainly creates a chilling effect, and makes me think twice over certain people I contact, and what I say to them.

It's easy to claim that you're not worried when you're the one out there supporting those in power. It becomes a lot trickier when you're either criticizing those in power, or communicating with those who challenge the power structure. Suddenly, it's not so easy to sit on the sidelines and say "Meh, no one's going to care about me..." And that should be a major concern. The way we keep a strong democracy is by having people who are able and willing to challenge the status quo and those in power. And yes, the US is much more forgiving than many, many other countries to such people, but there are clear biases and clear cases where they are not at all accepting of such things. And the more of a chilling effect the government creates around those things, the more dangerous it becomes to stand up for what you believe in.

Filed Under: ben wittes, chilling effects, concern, julian sanchez, nsa, privacy, privilege, surveillance

Congressional Committee Thinks It Shouldn't Have To Answer The SEC's Questions About Insider Trading

from the we're-electable,-not-accountable dept

"Laws are for other people."
- Too many legislators to count

It's common knowledge that insider trading is illegal. In fact, we have an entire government agency in place to regulate trading and to investigate insider trading allegations. Executives have been sentenced to months (sometimes even years) in plush, well-appointed hellholes for participating in insider trading.

Members of Congress, however, were exempt from insider trading rules until 2012. An 2011 expose by 60 Minutes let millions of Americans know that members of Congress had plenty of access to market-changing information and were acting on it.

In a rare (ha!) show of self-preservation, a united House full of Congresspersons facing reelection battles passed the STOCK Act, which basically made Congress and its staffers play by the same trading rules as every other American.

In 2013, with Congressional members safely re-elected, the House decided to roll back its previous legislative effort in order to get back into the insider trading business. It tore out the stipulation demanding disclosure of trading activity -- the one thing citizens could use to verify adherence to the "no insider trading" rule -- stating that these disclosures were a "security risk." This sailed through with unanimous consent late on a Thursday afternoon (the end of the Congressional work week) and was signed by the President the following Monday.

Now, Congress is again claiming it doesn't need to submit to laws that govern US citizens and, again, it's doing this to avoid any transparency or accountability being applied to its trading activities.

The U.S. House Ways and Means Committee and a top staff member say the panel and its employees are "absolutely immune" from having to comply with subpoenas from a federal regulator in an insider-trading probe.

The committee yesterday responded to U.S. District Court Judge Paul Gardephe's order to explain why it hadn't complied with the U.S. Securities and Exchange Commission's requests for documents, phone records and testimony of aide Brian Sutter for more than a year.

The SEC is investigating a suspicious spike in health insurer trading volumes and prices ahead of a report that announced government payments to insurers would be increased, rather than decreased. This investigation claims that a Green Taureg LLC lobbyist sent the information to a Height Securities LLC analyst ahead of the official government announcement and that House Ways and Means staff director Brian Sutter may have been the originating source.

The Committee's legal rep has responded by claiming Congress is above the law or, if not above, very definitely adjacent to it, but certainly not within in and subject to federal subpoenas.

Kerry W. Kircher, the top lawyer for the House, said the SEC's request should be dismissed because the information it seeks concerns legislative activities protected by the Constitution, which can't be reviewed by federal judges.

Kircher also stated that his client does not and will not (EVER) have time for the SEC's "apply the insider trading rules to everyone" bullshit.

Sutter's connection to the investigation is "tangential" Kircher said, and would also interfere with his work because his schedule is "heavily, and nearly permanently, booked."

So, if anyone thought an SEC insider trading probe would bring more accountability to the House, those thoughts may now be dismissed to make room for more cynicism. There's a slim possibility the SEC may extract damning evidence, but it will have to fight its way through a House full of people with no conceivable reason to be compliant. Insider trading was a great Congressional job perk and its uncontested run helped pad the wallets of future lobbyists, board members and consultants. No one really wants to completely end it, but they'd certainly like people to stop talking about it.

Filed Under: brian sutter, congress, house ways and means committee, insider trading, privilege, sec
Companies: green taureg, heigh securities