Massachusetts' Top Court Says Police Need Warrants To Search Body Camera Recordings

from the no-rummaging-through-the-servers dept

Body-worn cameras were supposed to usher in a new era of police accountability. That hasn't happened. At best, they've generated a ton of additional footage of interactions and arrests that may prove valuable to criminal defendants and people filing civil rights lawsuits. "May" is the operative word. Cops still control the footage, which limits public access and increases the odds that unflattering/unhelpful (to police) footage rarely ends up in the hands of the public. The end result is that prosecutors have been the biggest beneficiary of this so-called accountability tech.

A case in Massachusetts has raised some interesting constitutional questions about body cameras and recordings. Officers responding to a domestic violence call recorded the interior of a home with their body cameras. Weeks after that call, they accessed the footage to find corroborating evidence that was used to apply for a search warrant. One of these is a constitutional violation, Massachusetts' Supreme Judicial Court has ruled. (via Courthouse News)

Here's what happened during that domestic disturbance call, as recounted in the opinion [PDF]:

After the first responding officers had entered the apartment, another officer arrived who was equipped with a bodyworn camera, which recorded the areas of the home through which he moved, as well as his interactions with the defendant, his sister, and others in the apartment, including a number of police officers. The video footage obtained shows that when the officer arrived at the home, the door was ajar; he entered the living room, where at least two other officers were present…

The officer wearing the camera walked past the defendant's sister and ascended the stairs. Standing at the top of the staircase, he spoke with the defendant, who was standing at the threshold of a bedroom. Through the open bedroom door, the camera captured a woman in the background. The woman was zipping her coat. Floral-printed curtains adorned the bedroom window just behind the area where the woman was dressing.

The sister shouted from downstairs, and the defendant yelled "shut up." He explained to the officer with the camera that the girlfriend could not be rushed, as she was getting dressed, but that they would leave shortly. Once dressed, the girlfriend and the defendant moved toward the stairs; they were stopped by the officer.

The "floral-printed curtains" would later prove instrumental in building a case against the defendant. The officer who uploaded the photo informed detectives about its existence, since the defendant was one of several suspects being investigated by the Boston PD's gang task force. He was already under surveillance by the BPD, with a couple of officers managing to successfully "friend" the defendant on Facebook, giving them access to his posts.

Here's where the distinctive curtains resurfaced:

Two weeks after the domestic disturbance call, the detective noticed that the defendant had posted what the officer believed to be a recently created video recording of the defendant holding a firearm in a bedroom, with floral-printed curtains visible in the background. After he saw the posted recording, the detective retrieved the DVD containing the body-worn camera footage from his colleague and reviewed it.

Peering into the defendant's home caught on the body-worn camera footage, the detective saw the defendant's girlfriend zipping her coat in the defendant's bedroom, while standing next to what the detective believed were the same distinctive curtains visible in the posted video recording. This was significant to the detective because it established the location of the posted video recording that had showed the defendant apparently holding a firearm.

Using this information gleaned from the BWC recording made two weeks earlier, detectives obtained a search warrant for home, specifically noting the curtains seen in both the social media post and the officer's camera footage. The house was searched, resulting in the discovery of weapons and some marijuana.

The defendant argued the initial recording violated his Fourth Amendment rights. The court disagrees, noting that the recording of areas in plain view of the officer merely duplicated what the officer could see with his own eyes.

We conclude that, where, as here, the officer was lawfully present in the home and the body-worn camera captured only the areas and items in the plain view of the officer as he or she traversed the home, in a manner consistent with the reasons for the officer's lawful presence, the recording is not a search in the constitutional sense and does not violate the Fourth Amendment or art. 14. This conclusion follows from our jurisprudence regarding the photographic preservation of a crime scene.

Even though a recording is more "permanent" than an officer's memory, there's still no violation. Precedent says officers can document crime scenes and domestic disturbances fall on the long list of criminal acts officers are sent to respond to. The recording was not a violation, even though it could be accessed at any point past its creation by investigators.

However, the court says viewing the footage a few weeks later was unconstitutional.

[W]e conclude that while the plain view observation doctrine extended to the officer's recording of his interactions in the defendant's home in response to the domestic disturbance call, that doctrine cannot be stretched to sanction the subsequent review of the footage for reasons unrelated to the call.

The 21st century is no time to bring back some of the worst aspects of British rule, says the court.

The ability of police officers, at any later point, to trawl through video footage to look for evidence of crimes unrelated to the officers' lawful presence in the home when they were responding to a call for assistance is the virtual equivalent of a general warrant.

The BPD can't do that without a warrant, given the lack of connection between the domestic disturbance and any suspected gun/drug criminal activity.

Moreover, the subsequent review of the footage in connection with the unrelated investigation of the defendant falls outside the rationale justifying the recording in the first instance. Such a review is divorced from protecting police officers from false accusations of misconduct, ensuring police accountability, or preserving a record of police-civilian interaction. Instead, the use of body-worn camera footage in this manner, after the fact, for investigatory purposes unrelated to the domestic disturbance call, had the effect of allowing the gang unit detective to peer into the defendant's home for evidence to support an unrelated criminal investigation.

The government tried to salvage its warrantless search by claiming it was only a very small unconstitutional search. This argument is rejected as well.

[T]he Commonwealth contends that the BPD review of the body-camera footage was not extensive, and that the review was targeted at one specific detail, the floral-printed curtains in the defendant's bedroom. But the constitutional protection against unreasonable, warrantless searches is no less applicable to a targeted search than it is to a more extensive one.

With that detail removed from the warrant, the warrant most likely does not contain enough probable cause to justify the search of the house. The motion to suppress is granted and the case is kicked back down to the lower court, which will give the Boston PD one more chance to salvage its unconstitutionally gotten gains. But the line is clear. Recordings: good. Digging into saved recordings to aid in unrelated investigations: no good… not without a warrant.

Filed Under: 4th amendment, body cameras, massachusetts, recordings, warrant

LA Court Abusing Copyright Law To Take Down (Unauthorized) Recording Of Britney Spears Hearing

from the that's-not-how-copyright-works dept

First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies -- which are quite common in many courthouses -- are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).

Soon after reports of the speech came out, a recording of the hearing showed up on YouTube -- in violation of the court's rules. If you go to the link now, it says the recording was taken down due to "a copyright claim by Superior Court of California, County of Los Angeles" (takedown first spotted by the Twitter account @beka_valentine).

Also, the court has announced that it's shutting down its remote audio program because someone recorded the hearing:

“Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,” read the announcement, which also detailed the rolling back of other COVID-19 protocols. “The Court implemented this temporary program during the pandemic recognizing there may be abuses of the Court’s orders prohibiting recording, filming, and distribution of proceedings. Widespread breaches by the public in a recent court proceeding highlighted the need to return to in person, open courtroom proceedings, which is a welcome development.”

As that Hollywood Reporter article notes, California courts have rules against recording, and you can face a variety of legal consequences for disobeying:

Under California state and local court rules, no recordings of court hearings are allowed (including by members of the press) without advance permission from the judge in the form of a written order. According to the 2019 California Rules of Court, “Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law.”

When asked what is the court’s general policy is on taking action if a proceeding is recorded without permission, L.A. County Superior Court Communications Director Ann E. Donlan said only: “Parties who publish unauthorized recordings of court proceedings in violation of a court order are subject to sanctions and other potential liability pursuant to California Code of Civil Procedure section 1209 and other applicable law.”

But... notice what is not included in the list of potential liabilities? Copyright. That's because there is no legitimate copyright claim by the courts in these recordings. First, as a government entity, it's difficult to think that they can make a legitimate copyright claim. While, technically, the US Copyright Act's prohibition on the government claiming copyright on works it creates only applies to the federal government, other courts have interpreted the prohibition to apply more broadly to other governments as well.

On top of that, it's hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that -- even with the prohibition on recording -- in the copyright context, there would be a strong fair use defense.

And so I understand why the court doesn't want the recording up there. And I agree that whoever recorded it likely broke the law and could face significant legal liability (if they were tracked down). But, that does not mean that the court can then step in and falsely claim copyright to take the video down. That's copyfraud and abuse of copyright. Just because it gets to the ends that may feel more legit doesn't mean you just get to magically invoke a copyright in a work that you have no legitimate copyright over.

Filed Under: britney spears, copyfraud, copyright, courts, recordings, takedown
Companies: youtube

Researcher Buys Axon Cameras On eBay, Finds They're Still Filled With Recordings

from the not-even-using-'password'-for-the-password dept

Data isn't secure just because nothing happened to it when it was still in your possession. It can still "leak" long after the storage device has gone onto its second life in someone else's hands.

The Fort Huachuca Military Police were just apprised of this truism by Twitter user KF, who had purchased some used Axon body cameras on eBay. The cameras still contained their microSD storage cards. And contained on those storage cards were a bunch of recordings (including audio) that hadn't been wiped by the MPs before the cameras ended up on eBay.

The whole thread is worth a read (here's an unrolled version if you prefer to go somewhere other than Twitter). No one seems to know how the cameras ended up on eBay, but it's pretty amazing they ended up in the secondary market with their recordings still intact.

What's more amazing (but somehow simultaneously less surprising) is that the recordings weren't encrypted or protected by a password. Axon responded to the Arizona Mirror's reporting of this secondary-market breach by saying it was "looking into the matter." It also said it would be putting more effort into telling its law enforcement customers what they should already know.

“We are… reevaluating our processes to better emphasize proper disposal procedures for our customers.”

What's more reassuring is that this data disposal carelessness is no longer as much of an issue for Axon customers. The cameras in KF's hands are first-generation models produced in 2015. Axon's latest version encrypts recordings and, presumably, forces officers to select passwords to ensure this encryption isn't rendered useless by a lack of login protection.

eBay also responded to questions from the Mirror, stating that it forbids the sale of surveillance devices like the ones KF was able to purchase. It also said sellers are responsible for making sure internal storage is wiped before making devices eBay says it does not allow to be sold on the site are made available for sale on the site.

Security matters. But situations that demand the utmost in care are too often handled in ways that an octogenarian using their first computer ever would find amateurish. KF's site contains this amusing/scary security test of police in-car camera systems -- cameras the researchers were able to view live after discovering zero authentication was needed to access this stream. And the system itself was only "protected" by the default login/password, which the researchers found in a PDF copy of the device's manual after a little bit of Googling.

For all the talk from law enforcement officials about the need to redact and/or withhold recordings out of concern for people's privacy, they don't seem to be very concerned that these recordings are ending up in the hands of the public. Nor does there seem to be much concern that recordings might be improperly accessed by other personnel with access to the devices while the cameras were still being used by the Fort Huachuca police. The lack of password protection is just as alarming as the apparent lack of proper disposal procedures. This is consumer-grade carelessness exercised by a taxpayer-funded entity with a whole lot of power and the obligation to be better public servants.

Filed Under: body cameras, disposal, encryption, evidence, fort huachuca, recordings
Companies: axon, ebay

New Florida Bill Seeks To Bury Recordings Of Mass Shootings

from the screwing-the-public-to-save-the-government dept

Florida legislators are thinking about handing some opacity back to Florida law enforcement agencies in the wake of the Parkland school shooting. The tragedy of the event was compounded by on-site law enforcement's response: that is, there wasn't any. Faced with increased scrutiny over a handful of mass shootings in the state, at least one legislator's response has been to bury the bad news under a new public records exemption. [h/t War on Privacy]

In less than three years, Florida has seen the second-deadliest mass shooting – Pulse nightclub – and the second-deadliest school shooting – Marjory Stoneman Douglas High School. One gunman killed five at the Fort Lauderdale-Hollywood International Airport. Another killed five at a Sebring bank.

Yet Senate Bill 186 would create an exemption to the state’s public records law for all photographs and audio and video recordings that relate to the “killing of a victim of mass violence.” The bill defines mass violence as the killing of at least three people, not including the perpetrator. Violation would be a third-degree felony, punishable by up to five years in prison.

Senator Tom Lee's bill is a gift to the government at large, even if law enforcement agencies and schools will be the most direct recipients of this largesse. If this "privacy protection" had been in place a few years ago, the public would have had no idea how badly the Broward County Sheriff's Department botched its response to the school shooting. Not only would that have kept the BCSD relatively free of criticism, it would have shielded its oversight -- state legislators -- from being asked what they were doing to prevent school shootings and/or ensure better response from those expected to serve and protect the public.

Supporters of bills like these claim it's all about protecting the privacy of crime victims and their families. But as the excellent Sun Sentinel op-ed points out, most requests to block release of recordings originates with governments and businesses rather than the victims and their loved ones. These requests have prevented the public from accessing key details in everything from Dale Earnhardt's Daytona crash to an inmate's death at the hands of jailers.

The law already blocks the release of recordings containing the death of a law enforcement officer. This addition could be read to cover any deadly incident in which more than one person is killed. Any whistleblower releasing recordings to show the public what really happened -- rather than the official narrative -- will now face felony criminal charges for doing the right thing. This isn't going to restore confidence in government agencies and their response to deadly incidents. All it will do is drive a wedge between them and the people they serve.

Filed Under: florida, mass shootings, recordings

Judge Says Amazon Needs To Hand Over Recordings Created By Murder Victim's Echo Speaker

from the in-every-dream-home,-a-state's-witness dept

New Hampshire investigators will be deposing Alexa in the near future, according to a recent court ruling. The advent of in-home digital, voice-activated assistants has created a wealth of personal recordings law enforcement may now have access to. It's only been a couple of years since we first saw law enforcement attempt to obtain Alexa recordings from Amazon, but as Mike pointed out then, this was going to be the new normal. So the onus is on companies like Apple, Google, and Amazon to give customers more direct control of stored data and recordings.

In this case, prosecutors are seeking recordings made by a murder victim's Amazon Echo speaker. They hope the victim's device captured the attack and the removal of her body. Amazon has issued some boilerplate about "valid legal demands" in response, but it's likely the company won't interject itself into this case.

The key here -- unlike other cases we've discussed -- is that the device belongs to a crime victim, rather than the person who allegedly committed the crime. The short court order [PDF] from the New Hampshire court makes it clear no one but the prosecution is invited to this evidence-gathering party:

After reviewing the motion, the court takes it up and rules on it without waiting for a response from defense counsel, as it appears the defendant would have no standing to assent or object to the State's motion.

Pretty cut-and-dry. The alleged murderer can't object to the search of recordings made by the murder victim's device. Amazon can probably fight the order, but in a case like this, it seems unlikely it will. But maybe it should.

[T]he State's motion to search in lieu of a search warrant is granted.

Law enforcement rarely obtains a warrant to search a crime victim's residence if that's where the crime occurred. It's not that they don't need a warrant to perform this search. It's that the accused criminal usually has no possessory interest in the crime victim's residence and would not be able to challenge the evidence in court.

When it's a murder case, the victim is obviously in no position to challenge the search. But there's a lot of criminal activity that doesn't result in a dead person, so searching someone's house without a warrant just because they were robbed or assaulted still implicates the privacy granted to them by the Fourth Amendment. The judge here is allowing a warrantless search because there's no one to object to the search, not because it's necessarily completely legal to perform a warrantless search in this sort of situation. This paper [PDF] from the Federal Law Enforcement Training Center points out the US Supreme Court has rejected a "murder scene" warrant exception three times over the last 40 years, and yet many in law enforcement believe such an exception exists.

[T]he courts have outlined a number of “established and well-delineated” exceptions to the warrant requirement of the Fourth Amendment, including, but certainly not limited to, consent searches; searches of vehicles; searches incident to arrest; and inventory searches. However, one exception to the warrant requirement which the Supreme Court has expressly and repeatedly refused to recognize is a general “murder scene” exception. Even so, in speaking with numerous Federal law enforcement officers, many of whom have a state or local law enforcement background, it appears that a misconception regarding this point continues to exist. Most of those with whom I have spoken believe that such an exception is alive and well, and that in the course of investigating a homicide, no warrant is required to “process” the crime scene.

If Amazon wants to challenge it based on those grounds, it can try. But it also may not have the standing to challenge the warrantless search of this customer's device since it would have little possessory interest in recordings created by customers. But it's worth a shot, if only to remind law enforcement (and this judge) that there's no warrant exception for murder scenes.

Filed Under: 4th amendment, amazon echo, crime victim, echo, new hampshire, recordings
Companies: amazon

If Police Officials Won't Hold Officers Accountable, More Cameras Will Never Mean More Recordings

from the more-$$$-spent,-but-nothing-changes dept

Cameras have been referred to as "unblinking eyes." When operated by law enforcement, however, they're eyes that never open.

Dash cams were supposed to provide better documentation of traffic stops and other interactions. So were lapel microphones, which gave the images a soundtrack. Officers who weren't interested in having stops documented switched off cameras, "forgot" to turn them back on, or flat out sabotaged the equipment.

Body cameras were the next step in documentation, ensuring that footage wasn't limited solely to what was in front of a police cruiser. Cautiously heralded as a step forward in accountability, body cameras have proven to be just as "unreliable" as dash cams. While some footage is being obtained that previously wouldn't have been available, the fact that officers still control the on/off switch means footage routinely goes missing during controversial interactions with the public.

The on/off switch problem could be tempered with strict disciplinary policies for officers who fail to record critical footage. Or any disciplinary procedures, actually.

Chicago, Dallas, Denver, New Orleans, New York, Oakland and San Diego are among the cities that don't specify penalties when officers fail to record, according to the Brennan Center for Justice at New York University's School of Law.

Body cameras aren't just for big cities anymore, which means countless smaller towns are just as lax when it comes to ensuring body cameras are rolling during stops and arrests.

Samuel Walker, a retired criminal justice professor, notes the problem isn't just limited to body cameras. It's any camera an officer controls.

[Walker] pointed to a study that showed across-the-board low compliance rates of officers in one high-crime Phoenix neighborhood between April 2013 and May 2014, the most recent information available. Officers only recorded 6.5 percent of traffic stops even though the department's policy required cameras to be activated "as soon as it is safe and practical," according to the study, conducted by Arizona State University's Center for Violence Prevention and Community Safety.

With body cameras, the default mode of operations for police officers was supposed to be "always on," with a few exceptions for privacy concerns. Instead, the default mode appears to be "only when an officer feels like it."

The Alameda County Sheriff's Department changed its body-camera policy following a highly publicized incident last November where two deputies were caught on surveillance video using their batons to beat a car theft suspect in the middle of a street in San Francisco's Mission District.

Eleven officers in all responded and 10 failed to turn on their body cameras. The one who did activate his did so by accident.

The problem is endemic. Law enforcement agencies have long felt no one should need more evidence than an officer's word and, for far longer than that, have felt that deployments of force shouldn't be second-guessed by outsiders. Recorded footage far too often runs counter to police reports and official narratives. The problem that needs to be fixed, apparently, is the recording devices.

During a six-month trial run for body cameras in the Denver Police Department, only about one out of every four use-of-force incidents involving officers was recorded.

Cases where officers punched people, used pepper spray or Tasers, or struck people with batons were not recorded because officers failed to turn on cameras, technical malfunctions occurred or because the cameras were not distributed to enough people, according to a report released Tuesday by Denver’s independent monitor Nick Mitchell.

What happens when disciplinary procedures are in place for failing to activate cameras? For one, compliance with camera policies goes way up.

According to data from the Oakland Police Department, of the 504 use of force incidents last year, 24 were not captured on camera. That puts the department a 95 percent success rate of recording use of force incidents.

The other thing that happens is better quality policing.

The Oakland Police Department has seen a 66 percent decrease in use of force incidents since the department started issuing body cameras to all of its officers in 2011.

Agencies that aren't willing to hold officers accountable aren't just (often literally) hurting the public they serve. They're also hurting themselves. They may not care what the public thinks when spokespeople deliver the news that all nine dash cams coincidentally malfunctioned during the beating of an arrestee, but they've also got legislators to answer to -- many of whom are tiring of dumping public funds into lawsuit settlement sinkholes.

Filed Under: accountability, bodycams, police, recordings

Judge Tosses 200 Hours Of Recordings From FBI's Courthouse Bugs

from the both-sides-of-the-judicial-coin,-all-in-one-federal-district dept

The fallout from the FBI's surreptitious bugging of county courthouses in California has coalesced into two motions to suppress -- with two very different outcomes. What makes this even more interesting is that both decisions were issued in the same judicial district.

Judge Phyllis Hamilton denied a motion to suppress last week. While she had concerns about the location of the bugs used in the FBI's investigation of property auction price fixing, she reached the conclusion that the recording of conversations that occurred in a public area did not violate the defendants' expectation of privacy. The decision hinted Judge Hamilton would be hard pressed to find any conversation in public -- no matter what attempts were made to prevent bystanders from listening in -- worthy of an expectation of privacy.

Judge Charles Breyer, however, has reached the opposite conclusion. Breyer dug deeper into the location of the recording devices and questioned whether the FBI was crossing a line by placing them in areas where privileged conversations might occur.

In a decision [PDF] handed down on August 1, Judge Breyer has tossed 200 hours of recordings made by the FBI on the grounds that the eavesdropping violated the defendants' expectation of privacy. (via Joe Mullin at Ars Technica)

The volume of oral communications is relevant to whether the speaker has a reasonable expectation of privacy, as is the proximity or potential of other individuals to overhear the conversation. The key inquiry here, however, “is not whether it is conceivable that someone could eavesdrop on a conversation but whether it is reasonable to expect privacy.” The evidentiary record here confirms that Defendants did not speak at a volume loud enough for an undercover agent or an FBI cooperator to overhear them. Feb. 11 Tr. at 155:7–12 (reflecting that the lead FBI agent testified that “the key observation made in the early part of the case” was that the cooperator and undercover agent “could not hear” Defendants’ conversations).

[...]

The Court thus finds no evidence in the record establishing that bystanders overheard the conversations surreptitiously recorded on the twenty-eight days in question; it does, however, find ample evidence in the record that bystanders could not overhear those conversations. See, e.g., Feb. 11 Tr. at 155:7–12. This factor thus supports a reasonable expectation of privacy.

Unlike Judge Hamilton's case, the defendants took active steps to avoid being overheard -- something that should have been expected, considering the presence of competitors hoping to acquire foreclosed property as cheaply as possible. Not only that, but the FBI testified that its undercover informant somehow managed to get booted from the inside circle, meaning that the government's own man had some idea bidders weren't loudly proclaiming their bidding strategies to all and sundry.

Away goes 200 hours of recordings -- a lot of which apparently captured stuff the FBI didn't care about. Along with it might go the rest of the evidence, if the court comes to the conclusion it's been tainted by the government's bugs.

The court concludes that zero expectation of privacy Judge Hamilton hinted at in her decision may be the new normal in the future, but we aren't there quite yet.

With continuing advances in technology, private conversations may become anachronistic rituals reducing intimate encounters to silent exchanges of notes. But that day has not arrived. Until it does, our Fourth Amendment protections should be defined by traditional circumstances. The Court concludes that Defendants had (1) a subjective expectation of privacy in the conversations recorded by the stationary microphones at the San Mateo County Courthouse, and (2) that expectation was objectively reasonable.

Whether or not efforts to carve out privacy expectations in public spaces will be successful appears to come down to the judge presiding over the case. Hamilton's decision made some scary assumptions about communicating in public areas, but she also had testimony and recordings showing the defendants she dealt with made less effort to keep their conversations secret than those in front of Judge Breyer. This may have been the key difference between the two cases, but Hamilton would have raised fewer privacy concerns if she hadn't expanded her thought process to declare that the privacy-less future Judge Breyer only hinted at has already arrived.

Filed Under: california, courthouse, east bay, fbi, recordings

FBI Found To Be Harvesting Surreptitious Recordings Around Two Other California Courthouses

from the bugging-in-bulk dept

Earlier this year, the FBI was catching heat for some undersupervised and overly-broad surveillance it deployed around the San Mateo courthouse in California. Hoping to catch conversations related to suspected bid-rigging during real estate auctions, the FBI scattered hidden microphones around the courthouse steps where the auctions took place.

The defendants' legal representation raised hell, claiming the surreptitious recordings violated their clients' rights. After all, the Supreme Court had declared in 1967 that closing a phone booth door was not dissimilar to holding a conversation in hushed tones, bringing a limited expectation of privacy to public places.

The FBI couldn't have felt all that confident about its secret recordings as it vowed not to enter any of the conversations it captured into evidence. That wasn't enough for the judge, however, who said he still needed to determine whether other evidence had been tainted by this questionable surveillance.

Not only was there a question about the legality under the Fourth Amendment, but there were unanswered questions about how many completely irrelevant conversations the FBI's bugs might have picked up -- like privileged discussions between lawyers and clients, both of whom are often at courthouses simultaneously.

Apparently, the FBI thought it was going to get away with this, most likely by declaring anything that happens in public to be completely stripped of privacy expectations. The surreptitious recordings in San Mateo didn't go nearly as smoothly as planned and now evidence has been produced showing the FBI targeted more than one courthouse during its bid-rigging investigation. (via Nate Cardozo)

At the Rene C. Davidson Courthouse in Oakland, the FBI planted hidden microphones inside light fixtures on the courthouse’s exterior steps to capture the conversations of people attending the foreclosure auctions. Cameras and microphones were installed in parked Alameda County vehicles next to the courthouse. The FBI even hid a microphone in the AC Transit bus stop on Fallon Street, and dropped a bugged backpack next to a statue inside the courthouse, according to a letter sent by US Justice Department attorney Kate Patchen to Marr's attorneys on March 15. The surveillance was ongoing from March 2010 to January 2011.

And:

In Martinez, the FBI planted microphones in bushes, at a bus stop, on a pole, and inside parked and roving vehicles near the auction site.

Three courthouses. At least a dozen microphones. Hundreds of hours of recordings. And for what?

Tough to say. Multiple prosecutions of suspected bid-riggers are ongoing, but the investigative groundwork is failing to pass inspection. Once again, prosecutors are promising not to use the questionable recordings in court, but they're far less likely to drop any evidence springing from those captured conversations.

In addition, defendants' lawyers in the San Mateo County case are going so far as to claim the FBI committed felonies by recording conversations, as California is a two-party consent state. They might have to settle for some suppressed evidence though, as the state law has a fairly broad "public area" exception, which would cover courthouse steps and bus stops. But that interpretation of the state's wiretap law exceptions may be subject to the government's interpretation of public spaces from its 1967 Katz decision, which would grant hushed conversations in public an expectation of privacy.

The FBI -- through its actions -- is repeatedly demonstrating it cares little for the rules that govern its investigations and intelligence gathering. It only cares when it gets caught. This is its culture, something that traces back -- with only minimal interruption -- to its inception.

Filed Under: california, courthouses, expectation of privacy, fbi, recordings, surveillance, warrants

Law Enforcement Responding More Favorably To ACLU's Recording App, But Some Still Think It Will Make Policing More Dangerous

from the older,-but-no-wiser dept

The ACLU has released three more state-specific versions of its "Mobile Justice" app. The app, which sends audio and video recordings directly to the ACLU's servers to preserve them in case of any law enforcement "interruptions", is now available in Maryland, Minnesota and Virginia.

This time around, the panic surrounding the apps seems to have subsided somewhat. Back in 2012, the release of a New Jersey-based app for recording police encounters resulted in a California police department's speculation that the app's ability to notify other users would lead to officer-endangering "flash mobs."

Perhaps the inevitability of being recorded has finally sunk in. There's no shortage of footage of police interactions available and the addition of the ACLU's app isn't going to cause a spike in citizen recordings. With many photo and video apps already synced to cloud storage, attempts to delete incriminating footage will be unsuccessful in many cases.

For the most part, law enforcement representatives and officials are greeting the new releases with shrugs, if not open acceptance.

In Virginia, sane comments greeted the ACLU's announcement.

“I certainly don’t have a problem with it,” said Chesterfield County Police Chief Thierry Dupuis. “The vast majority of our police officers do a great job. If for some reason we have an officer that isn’t, we want to know about it,” said Dupuy.

But Dupuis says if you are going to use the app, record positive police interactions too, and don’t leave anything out.

“If you’re going to film, include the entire video,” said Dupuis.

In Maryland, where Baltimore law enforcement officials are blaming the city's climbing murder rate on the "Ferguson Effect," reactions are still mostly positive.

"Maryland state troopers are held to a high standard of accountability for their actions in the performance of their duties. Our troopers understand the importance of video and welcome the opportunity to display their professionalism during interactions with the citizens we serve," Maryland State Police spokesman Greg Shipley said.

Baltimore County police released a statement, saying: "The Baltimore County Police Department respects citizens' right to record. Citizens record us every day. This application does not change our practices."

Another Maryland law enforcement agency actually welcomed the additional accountability the app could bring.

47 ABC showed the app to Wicomico County Sheriff Mike Lewis and he doesn't see a problem with it at all.

Sheriff Lewis continues, “Anything I can do better professionalize the Wicomico County Sheriff Office and our profession, I'm all for it. I don't want rogue police officers working for me.”

Minnesota law enforcement officials, however, seem to be pulling their talking points from 2012's "flash mob" memo. Well, more specifically, certain law enforcement-related officials are taking issue with the ACLU's app. The regular police -- as in law enforcement agencies and not law enforcement officers' putative representatives -- seem to have no problem with the new app.

The Minneapolis police department wouldn’t comment on the specifics of the app, but spokesman John Elder said in a statement that officers are already accustomed to working under surveillance from cell phones and public or private cameras. He also noted that the city is in the process of rolling out a police body cam program, expected to begin early next year, which will provide more visual evidence of how police interact with the public.

It's the police unions that view the ACLU's "Mobile Justice" app as a threat to officers.

“If you create a crowd, it is possible that the crowd could turn on an officer,” said Andy Skoogman, spokesman for the Minnesota Chiefs of Police Association. “The mere presence of the crowd could easily make the officer feel intimidated which can quickly increase the tension of the interaction. We have seen such a scenario play out many times.”

Yes, it's the old "flash mob" argument. The app only notifies other users of the app who happen to be in the same area, and the ACLU's app isn't exactly Candy Crush. Chances of the app producing an antagonistic crowd of any size are slim-to-none. Chances of a police interaction in a public area resulting in a crowd not entirely aligned with law enforcement remains at nearly 100%. So, officers should be used to dealing with antagonistic crowds as it's routinely part of the job. That the union would preemptively excuse an "intimidated" officer's reactions is telling.

But it gets even dumber. Another police union spokesman echoed Skoogman's ridiculous assertion.

“It will almost certainly create public safety issues,” said St. Paul Police Federation President David Titus, in a statement. “Encouraging people to flock to an unsecure and possibly dangerous police incident is not responsible or logical. … The ACLU app may require a larger police presence to de-escalate some situations, an outcome neither law enforcement nor the community desire.”

Once again, it's highly unlikely the app will draw a crowd larger than any such public scene would. But the St. Paul Police Federation isn't limiting itself to these paranoid theories. It's contemplating asking the courts to block the app.

The Saint Paul police officers union is looking into whether legal action is possible against the American Civil Liberties Union for a new smartphone app that notifies subscribers of in-progress police actions, so they can witness whether civil rights are being violated.

I'm going to hazard a guess that, while any legal action is theoretically possible, very few of them have a chance at successfully preventing the distribution of the app. The app records video and uploads it to a server -- something countless other cellphone camera apps do already. Cellphones are also communication devices, which means any of them could be used to notify others of an ongoing situation. Other social media apps have a far greater reach than the ACLU's app, which limits notifications only to those with the app installed on their phones, and provides the users with the option to limit notifications to only certain people, like close friends or family members.

At the heart of the matter is the recording of police officers performing their public duties, something most courts have agreed is protected First Amendment activity. It's going to be tough to convince a judge that any fears for officer safety or the privacy bystanders, witnesses, etc. trumps the Constitution. Not that this will necessarily stop the union from blowing its members' money on ridiculous lawsuits. Hopefully, if it does choose to pursue litigation, its members will realize the union really doesn't speak for them and is only interested in walling off law enforcement from the public and ensuring its worst members don't lose their positions or power.

Filed Under: police, recordings, transparency
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