Crime Rates Drop After The City Of Baltimore Decides It's Not Going To Waste Resources Prosecuting Minor Offenses

from the do-you-want-to-help-or-do-you-just-want-to-look-busy dept

The argument against anything perceived as "defunding" cops or going just a bit lighter on suspected criminals (like decriminalization of drug possession or the elimination of cash bail) is that the criminals will win. Apparently all they've been waiting for is fewer laws so they can break more laws… or something.

A few disingenuous people (some of them holding very powerful offices) have claimed it takes nothing more than people being angry at law enforcement to make crime rates rise. Others claim the only way to keep crime rates down is to harshly police every minor infraction.

There's no real answer here. Crime rates rise and fall. Mostly, they've been falling. Here in the United States, we've been enjoying historically low crime rates for most of the last decade. But law enforcement opportunists insist on viewing every deviation from this pattern as the start of an alarming trend, one that can be traced to almost any attempt to introduce accountability to policing.

Over in Baltimore -- where cops have been on a rampage -- crime rates continue to fall. The backlash from rampant law enforcement corruption has resulted in some changes meant to level the criminal justice playing field and direct law enforcement resources towards more serious crimes. The wild card was a worldwide pandemic. Here's Elizabeth Nolan Brown for Reason:

Baltimore State's Attorney Marilyn Mosby announced in March 2020 that her office would dismiss all pending charges for drug possession, prostitution, trespassing, open container, public urination, paraphernalia possession, attempted distribution of drugs, and minor traffic offenses. It would also stop prosecuting new cases for these offenses—a decision born out of the desire to thwart COVID-19 spreading through jails.

Critics of this action claimed this would embolden criminals. But the opposite has happened. Perhaps partially aided by COIVD-related restrictions, crime rates have fallen in the city.

Between March 2020 and March 2021, violent crime in Baltimore dropped 20 percent and property crime dropped 36 percent. Homicides were also down slightly (13 fewer compared to the previous year).

And, as a direct result of this action (which included dismissing nearly 3,000 pending cases and warrants), the city's jail system is no longer such a drain on residents and their tax dollars. According to the data, incarceration is down 18% and a 40% drop in people "entering the criminal justice system."

Whatever the underlying reasons, this is better for the city. Crime rates are going down one way or the other. And it's not due to aggressive enforcement or giving cops permission to run people in for minor legal infractions. Crime rates may increase as COVID restrictions roll back, but critics can't ignore the results of this criminal justice experiment. And it's not just that fewer people are out or that prosecutors are pushing as many prosecutions. Even citizens seem fine with these relaxed conditions:

The data showed that 911 calls about drug use, public intoxication and sex work (a proxy for public concern) did not increase following the policy; rather, from March – December 2020, there was a 33% reduction in calls mentioning drugs and a 50% reduction in calls mentioning sex work compared to the prior 2 years.

There was also a drop in recidivism, which indicates tons of nickel-and-dime prosecutions aren't essential to curbing crime rate growth. The good news is this is now permanent. The action taken during the beginning of the pandemic will be the way forward for the city of Baltimore. If the city can maintain this new status quo going forward, it should produce a useful dataset that may show the way to a safer nation is less law enforcement, rather than more.

Filed Under: baltimore, crime, defunding police, minor offenses, police, prosecution

Current Whistleblower Scandal Shows (Again) That The Official Channels Are Useless

from the no-sense-fixing-what-no-one-really-wants-fixed dept

The official channels for whistleblowing are meant to deter whistleblowers. Just look at what has happened to the whistleblower currently at the center of accusations against President Trump. Despite raising concerns urgent enough the IC's Inspector General felt compelled to notify Congress, the Office of the Director of National Intelligence decided the allegations were too sensitive to be shared with its oversight.

Ed Snowden saw how useless the official channels were. That's why he and a ton of sensitive documents headed to Russia via Hong Kong. The United States government has no time for whistleblowers. Hunting down and punishing whistleblowers is the national pastime -- one that Barack Obama particularly enjoyed.

The Trump Administration isn't any better. Obama may have passed some mostly-worthless protections for IC whistleblowers before he left office, but the current administration is engaging in a demonstration of just how worthless those protections are.

Nick Baumann's detailed examination of the flawed whistleblower procedures is worth a read. It shows exactly why Snowden chose the path he did, and why the whistleblower behind this latest report is probably headed towards a premature exit from public service.

This system, in which even those who follow the rules are persecuted for talking out of turn, is not new, [former DOJ legal ethics advisor Jesselyn] Radack noted. “Thomas Drake — an NSA surveillance whistleblower pre-Snowden — was prosecuted under the Espionage Act after following the procedures in the Intelligence Community Whistleblower Protection Act,” she said. Seeing what happened to Drake, she added, led “Snowden to correctly conclude that using the same channels that entrapped Drake to make his disclosures ... would be an exercise in futility.”

Snowden’s government critics should have known this better than anyone. Obama’s administration used the Espionage Act against more alleged leakers than any administration before or since. An interagency review panel later found that Ellard, the NSA inspector general who said Snowden should’ve come to him, had himself retaliated against a whistleblower. The panel, composed of inspectors general from outside the Defense Department, recommended Ellard be fired; the Defense Department later overruled that decision.

The basic problem with government whistleblowing, as Snowden noted in October 2013, is that “you have to report wrongdoing to those most responsible for it.”

In this case, the person involved in the alleged wrongdoing is none other than the President himself. The person making the allegations comes from the same governmental branch they're making accusations against. It's little surprise the ODNI -- an executive agency -- is in no hurry to allow Congressional oversight to examine the report or speak to the whistleblower. The ODNI may not be directly involved in the alleged wrongdoing, but it made a decision to protect the alleged violator, rather than the person utilizing the proper channels to have their concerns addressed.

The only thing going for the whistleblower now is that the publicity surrounding this report will likely prevent direct retaliation from the President and the administration. But that still leaves the agency the whistleblower works for, as well as the ODNI itself. Both of these could engage in direct retaliation without it being noticed (at least not immediately) by anyone outside of these entities. By the time anyone gets around to addressing these violations, the whistleblower will likely be out of a job and informally blacklisted by the federal government. In the United States, whistleblower protections are just another way to ensure no good deeds go unpunished.

Filed Under: ed snowden, espionage act, intelligence community, leaks, proper channels, prosecution, whisteblowers, whistleblowing

Prosecutor On Forfeiture Reforms: Making Us Prosecute Drugs Cases Will Make It Harder To Prosecute Drug Cases

from the catch-22-is-non-fiction dept

I thought I had read the worst defense of civil asset forfeiture when I read a former Michigan police chief's argument against a conviction requirement being instituted in his state. Former Police Chief Robert Stevenson's argument was basically this: a conviction requirement makes it too hard for cops to take property from people without proof.

Law enforcement will be severely handicapped if state lawmakers succumb to the misconception that no forfeiture should take place without a conviction on proceeds under $50,000.

[...]

Drugs may not be present, but everything else confirms and indicates drug trafficking, i.e., ledger books, scales, pre-recorded narcotics buy funds and packaging materials. In this particular scenario, as well as a multitude of others, the police and prosecutors could not establish a case to seize anything if Michigan adopts the $50,000 threshold.

All this evidence and nothing to do with it, I guess. Like many in the law enforcement field, Stevenson clings to the myth that robbing random people at gunpoint somehow cripples drug cartels. This belief is backed by far less evidence than the long list of stuff Stevenson claims can't be cobbled into a successful prosecution. We're more than 40 years deep into a War on Drugs and the only thing that's changed for the positive is the public's attitude towards civil asset forfeiture.

Michigan's legislature is considering adding a conviction requirement for forfeitures under $50,000. Opponents of property rights and due process keep crawling out of the woodwork, offering up increasingly nonsensical defenses of forfeiture. But nothing is stupider than this prosecutor's objection:

”Since a conviction is now required, it will make it extremely difficult to prosecute high level drug dealers,” Wayne County Prosecutor Kym Worthy said via email.

REQUIRING PROSECUTORS TO PROSECUTE DRUG DEALERS WILL MAKE IT HARDER TO PROSECUTE DRUG DEALERS.

This kind of reasoning suggests the real problem with closing the deal, prosecution-wise, might be the prosecutor's arguments.

It doesn't get worse from there. But it certainly doesn't get any better. Allowing Worthy to expand on this theory does not bring enlightenment or clarification. It just makes the theory bigger and dumber.

“Often in these cases, witnesses are intimidated to the point that they do not show up for trial, sometimes losing their lives because of the retaliation,” Worthy said. “It is our fear that this will get worse now that drug dealers know that if there are no witnesses, there will be no conviction and they can get their property back.”

How in fuck do you draw the line from "taking cash from some dude cops pulled over" to "witness intimidation?" This is the brilliant legal mind handling prosecutions for Michigan's largest city. All this says is that forfeiture was never about keeping drugs and drug dealers off the street. It was always about the cash. We know this, but cops and prosecutors will never say it out loud. Worthy's attempt to portray almost-suspicionless cash seizures as leverage in prosecutions the government NEVER PLANS TO PURSUE is inadvertently transparent.

The only argument that could be worse than Worthy's defense is the truth: cops and prosecutors prefer taking property because it's easier and it enriches them personally. But we should expect nothing less (nothing more?) from a prosecutor who once asserted there's a link between real-life and video game violence, stating "no one" could "convince" her otherwise, no matter what evidence they presented. Seems like evidence and assertions are never in the same place when Worthy's in charge. I can see why she's so opposed to doing a job she's clearly not qualified to perform.

Filed Under: asset forfeiture, drugs, kym worthy, legalized theft, michigan, prosecution, wayne county

US Government Rings Up Another Whistleblower On Espionage Charges

from the criminalizing-government-accountability dept

Because our government enjoys punishing people far more than it enjoys accountability, the DOJ is prosecuting another whistleblower. A former language analyst for the Air Force and NSA has been charged with espionage for leaking documents detailing the government's drone assassination program to The Intercept.

31-year-old David Hale is the whistleblower at the center of the DOJ's latest prosecution. This now puts the Trump Administration at the top of the list for most journalist sources prosecuted for espionage, according to the Freedom of the Press Foundation.

President Trump’s Justice Department has arrested and charged former intelligence analyst Daniel Everette Hale for allegedly sharing classified national security information with a reporter. Hale is at least the sixth alleged journalistic source charged by the Trump administration in just over two years in office. The Justice Department has previously indicated dozens more leak investigations are ongoing.

The documents Hale allegedly handed to The Intercept provided the basis for the site's multi-part "Drone Papers" report. The Drone Papers exposed the breadth of the United States' program for extrajudicial, extraterritorial killings. This included operations in Yemen and Somalia where targeted killings were carried out despite lengthy gaps in intelligence and surveillance. The papers also showed the military referred to collateral damage from drone strikes as "enemies killed in action" without verifying whether or not everyone killed was actually a combatant.

Hale is unusual among prosecuted whistleblowers in that his investigation rolled out in a more public fashion than most. Hale was featured in the drone warfare documentary "National Bird," in which he discussed his reluctant participation in intelligence gathering that enabled drone strikes, as well as the risk he was taking talking about his intelligence work with the documentary crew.

Hale wasn't being overly dramatic. His home was raided by the FBI during the documentary's filming in 2014. According to the indictment [PDF], Hale's printing and removal of top secret documents began in early 2013 -- just a couple of months before the first Snowden leak. The indictment's timeline appears to be correct. In "Citizenfour," the documentary about Snowden's first meetings with Glenn Greenwald, Greenwald discusses another leak source that is most likely Hale.

At the end of the documentary “Citizenfour,” Intercept founder Glenn Greenwald tells NSA leaker Edward Snowden the Intercept has a new source of confidential information on the U.S. drone program.

“That’s really dangerous on the source’s side,” Snowden said, looking at some of the revelations. “That person is in­cred­ibly bold . . . Do they know how to take care of themselves?”

Greenwald reassures him “they’re very careful.”

Not careful enough, apparently. The indictment makes mention of encrypted communications and the possible use of Tor, but it does not seem to have prevented the government from accessing texts and chat messages sent from Hale to others about the leaked documents.

Hale is facing a total of five espionage-related charges, according to the indictment. What's somewhat surprising and/or depressing is how long this indictment took to arrive. The FBI's raid happened nearly five years ago (August 2014), but the indictment wasn't filed until March of this year. That's almost five years Hale was in limbo, waiting for the DOJ's next move.

What Hale exposed was a program that allowed the US to rain death on people around the world based only on gathered intelligence, rather than courtroom prosecutions. The US government has developed a taste for drone killings, which have only continued to escalate with each administration since their introduction during George W. Bush's presidency.

What we saw was information the government never wanted us to have. It wanted to keep these facts secret -- partly for national security reasons, but mainly because it knew the public would not wholeheartedly support point-and-click killings of people halfway around the world. Hale isn't a criminal. He's a whistleblower. But the government only likes whistleblowers it can keep from taking their problems outside its closed loop. Everyone else is just prosecution-bait.

Filed Under: air force, daniel hale, doj, drones, espionage act, leaks, nsa, prosecution, whistleblower
Companies: the intercept

It Looks Like The FBI Thought About Prosecuting FOIA Requesters After Influx Of Automated Requests

from the nice-optics,-g-men dept

Emma Best of MuckRock has unearthed some disturbing details in an FBI response to an FOIA request: apparently the agency considered -- however briefly -- the investigation and prosecution of people filing requests.

The nature of the requests may shed some light on the FBI's thought process because the heavily-redacted email included in the response certainly doesn't. Each year, the FBI updates its Dead List -- the names of people the FBI has files on who have passed away. Death increases the chances of released files because this major life event tends to terminate investigations.

The FBI claims it can't find its updated Dead List. This seems odd, if not downright unbelievable, but the DOJ has backed the FBI's claim and FOIA requests for the latest copy are being rejected. No problem, said MuckRock. It went to work with an older version of the list which included 7,000 names.

To accomplish this, the names of the subjects were extracted from the Dead List and a simple script written to submit FOIA requests for them. The requests were submitted on February 29th 2016, with the script and data made available online so that others could make their own requests and trigger the DOJ’s “rule of three” for frequently requested records, which would see the files posted online by the FBI.

Rather than follow its own rule for publication of frequently-requested files, the FBI decided to stop responding altogether.

The FBI acknowledged a large number of them before they began ignoring them. Over a month later (after the Bureau had exceeded legal time limit), the FBI sent a letter stating that they had “received an exceedingly high volume of submissions” which they would not accept.

Which led to this amazing bit of government agency shitposting:

According to the Bureau, fulfilling the FOIA requests would have prevented the FBI from fulfilling FOIA requests. Their letter stated that the “manner of submission interfered with the FBI’s ability to perform its FOIA and PA statutory responsibilities as an agency. Accordingly, the FBI did not accept these submissions on February 29th, 2016.”

A new FOIA request was sent requesting communications discussing the voluminous requests for files on Dead List subjects. That's when things went from slightly obstructionist to downright ominous.

One of the emails contained in this document dump arrived with all but one word redacted. The FOIA exemption cited for the redaction of the entire body of the email was b(7)e: "techniques and procedures for law enforcement investigations or prosecutions." All that remained of the email is the word "Options." Everything underneath it was apparently a discussion about investigating/prosecuting FOIA requesters who participated in MuckRock's automated FOIA requests. CCed on the email are officials from the Criminal Justice Information Services, which handles the FBI's multiple criminal/investigation target databases.

No one knows for sure what basis the FBI thought it had for prosecuting FOIA requesters, but it's pretty easy to imagine it had something to with the CFAA. It's almost impossible to abuse the FOIA process in a fashion that would result in criminal charges, but give the government some automated computer activity it doesn't like, and the CFAA can be read imaginatively enough to support at least an investigation. Another email in the batch received by the requester contains a heading that appears to show the mass requests had been passed on to the government's ESOC (Enterprise Security Operations Center) as "suspicious."

But this isn't the end of the FBI's bad faith FOIA response "efforts." It took plenty of care to protect the people involved in this prosecution discussion but showed far less interest in protecting FOIA requesters when releasing this batch of documents.

Despite redacting the names and email addresses of the public servants handling the case, the FBI released not only the author’s name and address in the file (technically improper since there was no waiver, albeit understandable) but the name, email address and home address of another requester who also used the script to file requests. Their name along with their email and physical addresses were left unredacted not once, not twice, not thrice - but seven times, not including the email headers, several of which also showed their name and email address.

Given the nature of the FBI's response to the mass request for Dead List files, this careless redaction effort appears to be no accident.

It’s hard to imagine that the Bureau, which once hung a sign in their FOIA office instructing people that “when in doubt - cross it out” would fail to redact this information so many times by accident. In context, it’s hard to see it as anything but retaliatory.

On top of that, the FBI appears to have deliberately ignored the requester's supporting info for his fee waiver request, charged the requester duplication fees for documents it had previously compiled and released to other requesters, and stated -- with the DOJ's support -- there was no "public interest" in Dead List documents, despite the massive number of requests (the ones the FBI chose to ignore en masse) clearly showing otherwise.

This is nasty, petty stuff and it's coming from one of the most powerful law enforcement agencies in the world. People with access to vast databases of information on American citizens are seeking to leverage this access to chill First Amendment-protected activity. The government as a whole barely fulfills it obligations (and almost never in a timely fashion) when it comes to the Freedom of Information Act. Agencies like the FBI are taking it several steps further, shirking obligations while engaging in small-scale vindictive acts.

Filed Under: chilling effects, fbi, foia, prosecution, transparency

This Machine Kills Accountability: The Ongoing Persecution Of Good Cops

from the reason-for-termination:-did-the-right-thing dept

There are several ways the many problems with American policing could be addressed, but maybe a good starting point would be the way good cops are treated. It takes a concerted effort to remove a bad officer from the force. And, far too often, an ousted officer simply finds a new agency to work for.

Good cops are a relative rarity. There are several who go through their career with a minimal number of sustained complaints, but that alone isn't enough to earn them the label of "good." Far too many are unwilling to speak up when misconduct occurs. Of course, the entire system discourages officers from speaking up. Those that do are ostracized, at best. At worst, they're pressured into giving up their law enforcement career.

There's no better example of law enforcement's skewed priorities than the follow cases. In the first, officers who leaked body cam footage to the press to expose an officer's abusive behavior are facing more serious consequences than the cop they exposed. (via PoliceMisconduct.net)

The officers are accused of downloading and leaking body camera video and confidential records on Officer William Martin. The video shows Martin’s controversial arrest of Jacqueline Craig – the Fort Worth mother who called police to report an assault on her son, back in December.

Officer Martin received a suspension for his actions, but Pridgen and Keyes were demoted. As a result of that demotion the two are no longer a part of Chief Fitzgerald’s executive team and both have been busted down to the rank of police captain.

The video released went viral, and for good reason. It showed Officer Martin assaulting someone who had called the police to report a neighbor had choked her 7-year-old son for littering. If there's anyone to blame for how an attempt to file a police report became a viral example of inappropriate use of force, it's Officer Martin:

“My son is 7-years-old, [he] don’t have the right to grab him and choke him,” Craig tells Martin, referring to the neighbor.

“Why don’t you teach your son not to litter,” asks Martin in a mocking and accusatory tone.

“He can’t prove to me that my son did or didn’t, but it doesn’t matter,” Craig says. “That doesn’t give him the right to put his hands on him.”

“Why not,” Martin asks.

A bystander's video, posted to Facebook, was damning. The officer's own body camera footage was even worse. And yet, it's the officers who leaked the footage losing their titles and pay, rather than the officer who deployed the excessive force.

At the press conference this morning Craig’s attorney, Lee Merritt, talked about the punishment for Officer Martin versus the punishment for the FWPD officers. “Martin amassed a series of felonies on that day from assault, to aggravated assault, to perjury, official corruption, false arrest [and] to each of these he received no criminal investigation, no criminal prosecution. He received a 10-day vacation and he was returned to the force with a scheduled promotion,” Merritt said.

What hurts more, a demotion from the chief's executive force, or ten days off and the gentle reminder not to escalate routine policework into a viral media event?

The second incident is even worse, in terms of changing cop culture. An officer who didn't kill someone is suing his former employer.

A West Virginia police officer who was fired after not shooting an emotionally disturbed man with an unloaded gun filed a civil rights lawsuit Wednesday against his former department.

Mader's lawsuit, filed Wednesday on his behalf by the American Civil Liberties Union of West Virginia and the law office of Timothy O'Brien, claims he was wrongly terminated, and that the county, city and police department violated his First and Fourteenth Amendment rights. He is seeking compensatory and punitive damages in excess of $75,000.

Rather than view a suicidal person as an unfinished story just waiting for cops to write the final chapter, the officer talked to the man and attempted to resolve the situation without violence. This plan was ruined by the next cop through the door, who immediately shot and killed the suicidal man. The gun the man was holding was unloaded. Sure, the next officer through the door didn't know that, but it's not as though the officer took any time to assess the situation -- something that might have included speaking to the officer who was already present in the room with the "dangerous threat."

Officer Mader was fired. The other cop was praised. According to the department, Mader "put two other officers in danger" by not immediately killing the suicidal man. In his notice of termination, Mader was let go for "failing to neutralize a threat." Oddly, the only person who spent any time talking to the suicidal man didn't see him as a threat. It was only the other officers -- who had spent zero time interacting with the man -- who felt "endangered" and "threatened."

For this decision, Mader was not only fired, but dragged through the mud by his supervisors and fellow officers:

The department said Mader did not attempt to deescalate the situation, first yelling profanity at Williams and then freezing. City officials also said Mader was fired due to "multiple" prior incidents, including performing a search of a car without probable cause. Mader's lawsuit says those statements are false. Officials also called him a "disgruntled employee" and "a bad cop."

The officer who shot Williams texted Mader after the press conference, according to the lawsuit, and called him a "coward" who "didn't have the balls to save [his] own life."

This is the thanks officers get for attempting to protect and serve their community. Far too many officers act as though the world's out to get them -- a mindset that becomes a self-fulfilling prophecy when they treat everyone else not dressed in blue as a threat.

Being a good cop gets you nowhere. Or, rather, it gets you demoted or fired. Until the internal attitude changes, the external behavior of law enforcement officers will only get worse.

Filed Under: good cops, law enforcement, police, prosecution

DOJ Officials Express An Interest In Prosecuting Leakers And Whistleblowers

from the taking-a-stand-against-accountability dept

We've already discussed a memo read by some FBI officials that supposedly was a record of an Oval Office conversation between former FBI Director James Comey and Donald Trump apparently contains the president asking after the possible prosecution of journalists for publishing leaks. Hearsay squared, but still in line with Trump's antagonistic relationship with free speech.

There's not much popular support for treating journalists like criminals just for doing their job, but there appears to be plenty of administrative support for the idea. Comey claimed he wouldn't go after journalists for publishing leaks -- something he said with one side of his mouth while redefining journalism to exclude Julian Assange and Wikileaks, which the DOJ is apparently considering pursuing charges against.

But that's not the extent of the new administration's Bullets For Messengers™ program. As Betsy Woodruff reports for The Daily Beast, the DOJ is looking to crack down on leaks, leakers, and -- given its inability/unwillingness to subject itself to accountability -- whistleblowers.

Under intense pressure from the White House, the Justice Department is prepared to aggressively prosecute government officials who leak classified information. Justice Department officials told The Daily Beast that targeting leakers will be a priority during Jeff Sessions’ time as attorney general—a posture that will hearten national security hawks, while concerning advocates of whistleblower protections.

“As the Attorney General has said, the Department of Justice takes unlawful leaks very seriously and those that engage in such activity should be held accountable,” an official told The Daily Beast.

Officials may not directly state they're going after whistleblowers, but the FBI and DOJ have never shied away from direct retaliation against those bringing complaints up through the proper channels. The Obama DOJ was particularly unfriendly to whistleblowers, which means many in the DOJ are already well-trained in the art of hunting down leakers.

This new DOJ also makes it clear it will only tolerate leaking it approves of.

“The fact that the president shared classified information with a foreign government official, in and of itself, is classified,” a former senior intelligence official told The Daily Beast. “So whoever was trying to burn him for thinking he’s doing something wrong actually is the only one that committed a crime here.”

The president possibly exposing an undercover ISIS source to Russian officials? Not a big deal. Someone talking to the press about it? Round up a grand jury! New DOJ boss Jeff Sessions is tough on crime -- all of it. He's just as unhappy as Trump that US press outlets continue to be fed inside info directly contradicting White House statements, stances, and tweets, often within minutes of the president or his press secretary opening their mouths.

“I expect we’ll get to the bottom of this,” Sessions replied. “This is not right. We’ve never seen this kind of leaking. It’s almost as if people think they have a right to violate the law, and this has got to end, and probably it will take some convictions to put an end to it.”

If there are internal memos related to the DOJ's full court press on leaking, expect it to be leaked. As tough as the DOJ may want to be on leakers and whistleblowers, a president who's failed to earn the respect and trust of so many of the people he supposedly leads only encourages the sort of behavior we're witnessing. No doubt the president and the DOJ would like to get some heads on pikes ASAP to staunch the bleeding, but there's no way this can be done without doing tremendous harm to legitimate whistleblowers and the very important individuals who could only be heard by operating outside a deliberately broken system.

Filed Under: doj, free speech, journalism, leaks, prosecution, whistleblowing

DOJ Finally Releases Its Internal, Mostly-Vague CFAA Prosecution Guidelines

from the DOJ-knows-'unauthorized-access'-when-it-sees-it,-apparently dept

The government often engages in very dubious CFAA prosecutions, but it takes a lawsuit to get it to talk about how it decides what cases are worth pursuing.

[T]hanks to a legal challenge to the CFAA, the Department of Justice is for the first time releasing its 2014 guidelines on how prosecutors should charge computer crimes — when someone exceeds “authorized” access on a computer. (First Look Media, the publisher of The Intercept, is a plaintiff in the case.)

The Department of Justice acknowledges that “laws addressing the misuse of computers have not kept pace uniformly with developments in technology and criminal schemes” though it maintains that the law remains “important” in prosecuting cybercrimes.

I'd imagine the DOJ is more concerned about crafty cybercriminals beating them in the tech arms race than it is about legislators' inability to reform the CFAA (something the DOJ routinely opposes). The "Intake and Charging Policy" memo [PDF] for the DOJ's prosecution of cybercrimes lists a number of factors to be considered before pursuing federal charges.

The first key is the sensitivity of the information or system accessed "without authorization," followed by national security considerations and economic impact. Public safety is also a factor. The document points out that information obtained without authorization can be deployed to stalk and harass officials and lower level members of the general public.

But the definition of "unauthorized access" isn't explored adequately in the legal memo, leaving this to be answered on a case-by-bad case basis. The prosecutions of Aaron Swartz and Andrew "Weev" Auernheimer suggest the DOJ allows this definition to be set by the complainant rather than by policy. When MIT or AT&T complain, the government listens.

Also of note is the DOJ's willingness to turf questionable cases to the local boys if that seems more likely to result in a conviction.

Where criminal activity risks these broad harms or has a substantial effect in several parts of the country, federal prosecution may be warranted. In other circumstances, if the effect of a violation is geographically focused and limited, deference to state or local authorities may be warranted, where they have the legal tools and resources to act.

The DOJ also reserves the right to take local prosecutions federal.

Where an offense causes particularly significant harm to a single District or community, federal prosecution may be warranted.

And then there's this part, which is what worries security researchers and white hat hackers:

[F]ederal prosecution may be warranted even where the offender did not actually obtain any such information; in other words, in certain aggravated circumstances, mere access to a computer system that stores these types of sensitive information may weigh in favor of prosecution.

On the plus side, the DOJ memo does make it clear that it would rather have evidence of malicious intent than mere "unauthorized access" to work with. It also states that it should take more than violations of Terms of Service or other "contracts" with websites/service providers to trigger federal prosecution.

Unfortunately, the law is still outdated (30 years old this month!) and "unauthorized access" prosecutions are still being handled inconsistently. The DOJ is prone to letting victims steer prosecutions, resulting in completely ridiculous outcomes like the two-year prison sentence handed to Matthew Keys for a 40-minute website defacement he didn't even perform.

The memo somewhat ominously concludes with the statement that this legal memo -- pried out of its hands by litigation -- isn't intended to be "all inclusive." Given the law hasn't aged terribly well and is predicated on a slippery term like "unauthorized access," the DOJ will likely be pursuing questionable edge cases for years to come.

Filed Under: cfaa, doj, guidelines, prosecution