Alabama Supreme Court Rules Law Enforcement Can Withhold Almost All Records Indefinitely

from the everything-is-an-investigation-when-you're-a-cop dept

Here's what you need to know about Alabama and its public records laws before we head to a depressing state Supreme Court opinion that makes everything worse:

Alabama has one of the weakest public records laws in the nation. Public bodies are not required to respond to requests from citizens and can charge exorbitant fees for producing documents. The only way to force an agency to produce a public document it refuses to release is to file a lawsuit.

As this opinion [PDF] shows, filing a lawsuit doesn't work either. Here's a summary of what the case involved, as well as its disappointing outcome, via the Montgomery Advertiser.

The Alabama Supreme Court on Friday ruled against a Mobile media outlet seeking law enforcement files related to a fatal police shooting, sparking a fervent dissent from the court's own chief justice regarding the state's public records law.

The court upheld a Baldwin County ruling in the case, in which Lagniappe Mobile sued for investigative records from the Baldwin County Sheriff’s Office related to the 2017 shooting of motorist Jonathan Victor. The high court ruled the records Lagniappe sought, including dash and body camera footage from the shooting, are all exempted from open records law due to their "investigative" nature, even though the investigation in the shooting has been closed.

That's right. The court said records that merely documented what had happened -- essential to an investigation but not investigatory records as most people would define the term -- can be withheld forever simply because they were once part of an investigation. Closing an investigation does not prevent law enforcement agencies from withholding records under the investigative privilege exemption.

This is, of course, an abhorrent translation of the state's public records statutes by the state's top court. It completely undermines the presumption of openness that guides public records laws, even those as terrible as Alabama's.

The dissent, written by Chief Justice Tom Parker, excoriates the majority for deciding the state's laws give state law enforcement permission to withhold almost all records forever. A long discussion of the majority's misreading of the statue culminates with this succinct summary:

Putting the pieces together from the above textual and precedential analysis, I believe that the best interpretation of "related investigative material" is as follows. "[R]elated investigative material" includes only records, created by law-enforcement officers, that reflect their efforts in an investigation. It does not include records that merely document an incident or records that are merely part of a process of observation and information collection.

As Justice Parker sees it, the investigative privilege exemption cannot possibly cover the camera footage sought by the newspaper as its nothing more than recorded observation. It also shouldn't have been given blanket coverage to other records sought, like coroner's reports (which are not compiled by law enforcement officers) or communications related to the case (because not all communications would be of an investigatory nature). But the Supreme Court said everything requested could be denied under this exemption.

Justice Parker says court precedent requires the court to define exemptions narrowly. Here, the court has done the opposite, expanding it to cover almost any record created, compiled, or held by a law enforcement agency.

The sweep of those pronouncements is breathtaking. In essence, all evidence in the possession of law-enforcement agencies, whether created by the agency or received from others, is now exempt from citizens' statutory right to access public records. Whatever that interpretation of the statute can be called, it cannot be called a narrow construction in favor of open records that Allen requires. [...] Under today's decision, to be exempted, a record need only be given to law-enforcement personnel and be somehow "related," no matter how tenuously, to a criminal investigation.

As Parker points out, the government officials being sued didn't even try to argue the statute provided coverage this broad. This is from the Sheriffs' brief:

To be clear, the [Sheriffs] are not asserting that [the investigative-privilege statute] provides a blanket exception for any and all materials that have been gathered by a law enforcement entity during the course of an investigation. Clearly, such a position would run afoul of this Court's instruction that the exception[] set forth in [the statute] should be narrowly construed. [Allen], 32 So. 3d at 1271.

But that's what the state's top court decided they should have: a blanket exception that denies the public access to almost every law enforcement record.

Justice Parker's dissent signoff is furious:

With one sweeping stroke, today's decision spells the end of public access to law-enforcement records that are connected in any way to an investigation. Hidden now from the public eye are body-cam videos, dashcam videos, 9-1-1 recordings, and anything else that is remotely connected to a crime or even potential crime. After today, as to law-enforcement agencies at least, the statute might as well be titled the Closed Records Act.

The special concurrence's protestations do nothing to lighten this heavy shroud. Of course government agencies are free to disclose records voluntarily, but that is not the point of the Open Records Act. Like law in general, the Act exists to compel people to do what they will not do voluntarily. So the fact that some people do not need the prod of the law in no way lessens the harm of removing that prod from those who do.

As furious as it is, it does nothing to change the new status quo. Justice Parker knows this, but isn't going to let this terrible decision escape the courthouse without noting his disappointment.

I cannot sit idly by while this Court shrinks a legal right of the people of Alabama to the vanishing point. And I especially cannot do so when that shrinkage flies in the face of text and precedent.

This leaves it up to the legislature to repair the damage done by the court. But Alabama has had terrible public records laws for years so it seems unlikely state legislators are in any hurry to make them better, much less decide they know better than the state highest court on how the current laws should be interpreted or altered.

Filed Under: alabama, law enforcement, public records, records, transparency

DOJ Makes It Official: No Gathering Of Journalists' Records During Leak Investigation

from the your-move,-Congress dept

For years, the Department of Justice has used its bespoke "balancing process" to decide whether or not to target journalists during investigations of criminal acts or to hunt down the source of leaked documents. This was intended to make the DOJ take into consideration the impact on protected speech and press freedoms when issuing subpoenas targeting journalists. Far too frequently, the DOJ has told itself it's ok to collect journalists' phone and email records in hopes of identifying the actual targets of leak investigations.

With Donald Trump in the White House (a self-avowed enemy of the press) overseeing a short procession of suck-ups holding the title "Attorney General," the DOJ seemed to feel the balancing test was more of a suggestion than a rule and proceeded to attempt to acquire journalists' communications records to sniff out a multitude of leakers.

The first half of this year has been filled with news about journalists caught up in DOJ leak investigations. Freed of gag orders applied during the Trump years, multiple news organizations reported their employees' phone and email records had been subpoenaed by the DOJ.

There's a new President in town, along with a new attorney general. And both made statements claiming the DOJ would stop seeking journalists' records when pursuing leak investigations. Attorney General Merrick Garland also claimed he would support legislation that would block the DOJ from targeting journalists.

We're no closer to seeing this legislation enacted. But the DOJ has finally made it official: it is abandoning the balancing test and wlll no longer seek journalists' records in cases like these. Here's how the Attorney General puts it in the recently-released memorandum [PDF] announcing the change in tactics.

The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of ‘newsgathering activities, as set out below.

This new prohibition applies to compulsory legal process issued to reporters directly, to their publishers or employers, and to third-party service providers of anyof the foregoing. It extends to the full range of compulsory process covered by the current regulations, specifically, ‘subpoenas, warrants, court orders issued pursuant to 18 U.S.C. § 2703(d) and § 3123, and civil investigative demands. Further, it applies regardless of whether the compulsory legal process seeks testimony, physical documents, telephone toll records, metadata, or digital content.

There are exceptions, of course. Journalists' records can be sought when they're the target of a DOJ criminal investigation. This includes criminal acts not related to their day jobs and also criminal acts committed to obtain government information, like breaking and entering or (one presumes) the number of things considered illegal hacking by the DOJ. The DOJ also has an emergency exception to exploit -- one that says the DOJ can ignore this new guidance if demanding journalists' records is "necessary" to prevent "imminent risk of danger or bodily harm."

But receiving and publishing leaked documents is not considered a criminal act and the DOJ says as much in its memo.

The prohibition does apply when a member of the news media has, in the course of newsgathering, only possessed or published government information, including classified information.

And the memo reaffirms the AG's commitment to backing legislation that would ensure this lasts past his tenure at the DOJ.

To ensure that protections regarding the use of compulsory legal process for obtaining information from or records of members of the news media continue in succeeding Administrations, the Department will support congressional legislation to embody protections in law.

So, this is obviously a first for the DOJ. And, of course, the offer only stands for as long as this regime is in power. Legislation could make it permanent, but there are still enough Trump fans littering the halls of Congress who believe to be a journalist is to be innately untrustworthy, if not an actual criminal, so pushing this past these obstacles might be difficult.

And, again, we're left to speculate who the DOJ believes is covered by this. Is it only members of large press outlets or clearly-defined press entities that are well-established? Or will it cover the constantly-expanding field of citizen/independent journalists who provide the same service, albeit without the masthead? Hopefully, the DOJ will recognize that journalism is an act, not just an occupation, and extend protection to those operating without editors and deadlines.

Filed Under: 1st amendment, 4th amendment, doj, journalism, journalists, leaks, merrick garland, records, surveillance, whistleblowers

After Multiple Reports Of DOJ Targeting Journalists' Communications, The DOJ Finally Says It Will Stop Targeting Journalists

from the free-press-(temporarily)-removed-from-the-govt's-shitlist dept

The DOJ -- following President Biden's lead -- has declared targeting journalists' communications is officially off-limits. Biden's statement followed reports of two separate instances where his predecessor's DOJ tried to obtain email and phone records belonging to journalists working for the Washington Post and CNN.

More recently, it was revealed a leak investigation instigated by Trump's DOJ targeted New York Times' journalists. That one continued into 2021 under new Attorney General Merrick Garland. In that case, the government was seeking the source of leaks involving the FBI's investigation of Hillary Clinton's private email server but was unable to obtain anything after Google challenged the subpoena.

The subpoenas for the NYT journalists' records were withdrawn by the DOJ hours after that story broke, with Biden's press secretary claiming the Administration was not aware the DOJ and FBI were still pursuing this information.

As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night [June 4]. While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President's policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward.

This would align the DOJ with Biden's statement on targeting journalists. But there's another group of people in need of some protection from the DOJ's investigative methods: readers of news sites. Yet another DOJ investigation involving journalism was exposed late last week. In that one, the FBI targeted readers of USA Today reporting on a child porn raid that ended in the deaths of two FBI agents and the suspect they were seeking. Gannett News attempted to quash the subpoena, noting the FBI had apparently violated the DOJ's rules on targeted First Amendment activity.

That subpoena has now been officially withdrawn by the DOJ. And the FBI has admitted it was able to identify the suspect it was seeking by using other methods, which does nothing to explain why an agent working for the FBI's child exploitation task force thought it was a good idea to obtain information about readers of a story where a child porn suspect opened fire on agents (killing two of them) prior to being killed himself.

That last withdrawal accompanies the DOJ's first public statement on the subject. It appears this DOJ will be the first in a long, long time (or perhaps ever) to respect the First Amendment, rather than look for ways to work around it.

In a separate statement, Justice Department spokesman Anthony Coley said that “in a change to its longstanding practice,” the department “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”

He added: “The department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists."

What's left unsaid here is how the DOJ will define journalism and journalists. There are plenty of independent journalists who cultivate sources and report on events that involve ongoing federal investigations. Leakers will continue to leak and presumably -- given Biden's tour as VP for noted leak-hunter Barack Obama -- the government will still seek to identify and prosecute them.

But this is the first public statement made by a DOJ official that says something other than the DOJ will respect free speech rights to the extent its internal guidelines suggest it should. Historically, that range has been "barely" to "not at all." If the DOJ is serious about respecting these rights, it's obviously going to make it more difficult to hunt down leakers. But constitutional rights are rights, not things to be set aside whenever they inconvenience federal law enforcement agents. Hopefully, this pledge will last longer than the current administration.

Filed Under: 1st amendment, 4th amendment, doj, journalists, leaks, records, subpoena, whistleblowers

Louisville PD Hid Thousands Of Records Detailing Officers' Abuse Of Minors, Deleted Backups When Local Paper Asked For Them

from the move-along-nothing-to-see-here dept

The people who are supposed to be the bulwark standing between regular society and criminal society are, far too often, criminals themselves. They promise they're doing everything they can to end the sexual exploitation of children but often aren't willing to address the exploitation committed by officers.

The Louisville Metro Police is still dealing with the fallout of a botched no-knock raid, which ended with officers killing Breonna Taylor in her own apartment. Six of the 32 bullets fired by LMPD officers -- some blindly through covered windows -- hit Taylor. No officers were charged in Taylor's death.

The PD is now dealing with another scandal involving its officers. Criminal charges have been brought against three officers who sexually abused minors participating in the PD's "Explorer Program."

A third Louisville Metro Police officer has been indicted on charges of sexually abusing a juvenile in the department's now-defunct Explorer Program for youths aspiring to be in law enforcement.

A federal grand jury indictment accuses Brad Schuhmann, while acting as a police officer, of sexually abusing a minor in 2010, saying he "willfully deprived” a juvenile identified as Jane Doe “of liberty without due process of law, which includes the right not to have her bodily integrity violated by a person acting under color of law."

This side project of the Boy Scouts of America has produced nearly as many sexual abuse allegations as the Boy Scout program itself. What happened in Louisville isn't an aberration. Putting cops in close contact with minors appears to be a bad idea.

In recent decades, more than 100 police officers have had sex with Explorers they were entrusted with mentoring, the vast majority of them underage. In just the past year, two sheriff's deputies in San Bernardino, California, were arrested for having sex with underage girls; a New York City cop was charged with child sex abuse after sending racy text messages to a 15-year-old; an officer in Bremerton, Washington, was reprimanded for sleeping with an 18-year-old; and a former cop in Burlington, North Carolina, pled guilty to taking indecent liberties with a minor after being accused of having sex with a 14-year-old he'd taken on ride-alongs.

That's from a 2011 report. There have been numerous other incidents since then. The Louisville Courier Journal's coverage of this current scandal -- which dates back to 2017 -- shows the problem infects law enforcement agencies around the nation.

In the wake of Louisville’s own Explorer scandal, in which two former officers have been accused of sexually abusing Scouts and the police department of covering it up, the Courier-Journal found that over the past 40 years, at least 137 girls and 26 boys have been allegedly raped, seduced, fondled, kissed, dated or otherwise exploited in 28 states by at least 129 law enforcement officers, firefighters and other advisers.

The youngest victims were 13. One was in the sixth grade.

One officer tried to set up three-way sex with Explorers. Another took surreptitious photographs of Explorers’ underwear. A third took bondage photos of boys he took on Civil War re-enactment camping trips. In Warick, Rhode Island, six officers had sex with one girl. In Bandon, Oregon, five officers made a sex tape featuring two girls and two boys.

Seventy-five cases resulted in criminal charges and 19 in lawsuits, including one that cost Irwindale, California, a city of only 1,422 people, $2.75 million to settle.

The latest twist in the LMPD's ongoing scandal is its apparently deliberate attempt to hide documents related to this abuse from journalists. And the department did this with the county and city's approval.

Louisville Metro Police concealed at least 738,000 records documenting the sexual abuse of Explorer Scouts by two officers — then lied to keep the files from the public, records show.

The Courier Journal last year requested all records regarding sexual abuse of minors by two officers in the Explorer Scout program for youths interested in law enforcement careers.

Police officials and the Jefferson County Attorney’s Office said they couldn't comply, insisting all the records had been turned over to the FBI for its investigation.

But that wasn't true, according to records The Courier Journal recently obtained in the appeal of its open records case.

In fact, the department still had at least 738,000 records, which the city allowed to be deleted.

While it's true the FBI is in the middle of an investigation, the PD still had its own copies of those files on hand. Or, at least it did until the Courier Journal started asking for them. The PD then insisted it had turned everything over to the FBI. This assertion was backed up by the Assistant County Attorney. Supposedly, the FBI had "taken control" of everything, including any physical or digital copies the LMPD might have had on hand.

This assertion by County Attorney Annale Taylor was directly contradicted by the LMPD's own statements in emails to the attorney.

Three months earlier, in June, Louisville Sgt. Robert Banta, a task force member, had told Taylor in an email he could provide "any and all documents involved in the Explorer investigation up until April 1, 2017, when the federal investigation was initiated."

“All that information still resides in the PIU (Professional Integrity Unit) case file and is available to the county attorney’s office,” Banta said in his June 6, 2019, email, which he also sent to then-Chief Steve Conrad and LMPD legal adviser Dennis Sims.

And the denial any records still existed was contradicted by the county attorney's office in another email to the attorney general's office. This email said the LMPD had found thousands of documents in a "hidden folder." A letter sent to the paper's attorneys made it clear the PD had retained almost everything it had previously claimed the FBI was in sole possession of.

In an Oct. 21 letter to The Courier Journal's lawyers "amending previous factual statements made in error,” Assistant County Attorney Roy Denny acknowledged 9,700 folders containing 738,000 documents — 470 gigabytes of data — had been found on the secret folder.

The catch was these had been backed up to the city's servers, but only temporarily. These had been turned over to the FBI as well -- months after the paper had asked for them -- and wiped from city's backup.

The paper is now accusing the LMPD and city of destroying records. The county attorney office's legal representative, Kenyon Meyer, insists no destruction has occurred. The paper still has the option of demanding these records from the FBI.

Just little intra-government coverup, apparently. The city and PD seem more than willing to deal with accusations of records destruction and open records law violations if it means they won't immediately have to deal with whatever's in the thousands of files related to multiple officers' sexual abuse of minors. Sending these away to the FBI -- and deleting their own copies -- places the paper back at square one. It will take another set of FOIA requests -- and more litigation -- to acquire the records these two entities seemingly want buried.

Filed Under: louisville, louisville metro police, minors, police, records, transparency

CBP Is Asking The National Archives For Permission To Destroy Misconduct Records

from the FILE-NOT-FOUND dept

The CBP and ICE likely have loads of misconduct records. Not that they mean much. These records are compiled and stashed someplace where it's inconvenient to find them for FOIA requesters. No one at the CBP or the DHS seems to have much interest in punishing misconduct, much less investigating it, so the records are far from complete and tend to be rubberstamped with EXONERATED.

The records do exist and the public should be able to access them. But DHS agencies do everything they can to keep these records and the public separated. Responses are dragged out to the point of litigation and then the litigation gets dragged out for as long as possible in hopes of deterring not only the requester suing, but others who might think about asking the agency for records.

The CBP wants to make its refusal to part with misconduct records a feature, rather than an all-too-common federal agency bug. It has asked the National Archive to treat many of its misconduct records as "temporary," giving it permission to discard these as soon as possible rather than having them preserved for posterity.

The Border Patrol’s proposal to the National Archives, which makes decisions about the retention of U.S. government documents, would designate as temporary all records regarding CBP’s dealings with DHS’s Office for Civil Rights and Civil Liberties: a recipient of complaints of civil rights abuses from across the department. These records include reports on concluded investigations, sworn witness statements, and transcripts of interviews — material that constitutes invaluable testimony of CBP’s conduct. The proposal would also mark as temporary internal records concerning administrative and criminal investigations of CBP agents, as well as records collected by CBP in connection to the Prison Rape Elimination Act, or PREA.

If granted this request, the CBP could start shredding some records in as little as four years. Others would have to be retained for 25 years, but the CBP would have no obligation to turn records over to the Archives, where they would become part of the agency's permanent record.

History isn't always written by the winners. Sometimes it's written by those who can find a way to control the narrative in perpetuity. The record of the CBP's wrongs will be allowed to vanish into the ether. With a four-year plan for some documents, the CBP has a shot at destroying records before requesters know they exist or before litigation commences.

The problem here is that the National Archives has already allowed ICE to selectively edit its history, which the CBP is hoping will pave the way for its history-erasing proposal to be accepted by the federal government's historians.

In their review of CBP’s proposal, National Archives officials referred to the designation of ICE’s abuse complaints records as temporary to justify marking CBP’s complaints records the same way. The officials argued that “these records do not have value beyond their functional use for tracking complaints and ensuring fulfillment of obligations.”

And the CBP isn't the only problem here. Somehow the National Archives has convinced itself that a running record of civil liberty abuses and other misconduct isn't historically significant enough to preserve.

None of this may ultimately matter. The National Archives has been pretty much ignored by multiple administrations. It has been gradually stripped of funding as the amount of documents created by the government has increased. As the Intercept's article notes, it's been years since Congress has shown any interest in preserving the preservers. No hearings have been held and no effort made to shore up an entity swamped with other agencies' paperwork.

If Congress won't act, it's aiding and abetting in the destruction of historically significant records. It's allowing federal agencies to whitewash their abusive pasts. This shouldn't be acceptable but somehow the National Archives has become less than an afterthought in Washington. Without more oversight, it's just going to become the Ministry of Truth, housing only records agencies feel show them in the best light.

Filed Under: border patrol, cbp, dhs, ice, misconduct, national archive, records, transparency

L.A. Newspaper Sues Sheriff's Department Over Its Repeated Refusal To Comply With The Law

from the law-ignorement-officers dept

Very few California law enforcement agencies welcomed a new state law that finally lifted the ordained opacity that shielded misbehaving cops from the public's scrutiny. The law that went into effect at the beginning of 2019 gave California residents access to records dealing with misconduct, use-of-force, and other "bad apple" behavior for the first time in decades.

State law enforcement agencies responded to the new transparency by obfuscating, stonewalling, and suing. The smartest agencies destroyed records with their cities' blessing before the public could get to them. The state's top cop even claimed the law did not affect records created before the law went into effect, directly contradicting the legislation's author. Public records requesters sued back, knowing they were in the right. After all, not a single court in the state has aligned itself with law enforcement's fervent belief it should never be accountable ever, no matter what laws are on the books.

The Los Angeles Times is suing the Los Angeles Sheriff's Department for refusing to follow the new law. But who could blame the gang-infested LASD for being evasive, what with its unusually large number of reasons to keep the public in the dark about its activities?

Eighteen months after making a very detailed request for information about misbehaving officers, the LA Times is asking a court to benchslap the Sheriff's Department around a bit. As additional leverage, the Times is quoting the law, which makes compliance mandatory, rather than something whose nuances should be sorted out in front of a neutral party.

Before we get into the LA Times' lawsuit [PDF], let's just warm up with a statement from the LASD:

A county spokeswoman… said in a statement that L.A. County is “committed to fulfilling its responsibilities” under the California Public Records Act.

is it tho?

[T]the Sheriff’s Department denied The Times’ first and second CPRA requests for electronic records and letters of discipline, claiming that The Times’ requests were overbroad. LASD claimed that it was “unable to assist … with your request as it is too broad in scope” and that The Times had not made requests that “reasonably describe the identifiable record or records.” The Sheriff’s Department claimed that The Times would have to identify specific names to obtain SB 1421 records, even though SB 1421 has no such requirement and the names of deputies disciplined were not public before the Legislature enacted SB 1421.

First, the LASD demanded the LA Times request records using officers' names -- information that had been unavailable for years until this law was passed. Then it decided to keep playing hard to get even after the newspaper came up with the names the law didn't say it had to have in its possession to request these records.

While Cmdr. Scott Johnson of the Sheriff’s Department stated on April 5 and 8, 2019, in communications by phone and email, that the Sheriff’s Department would provide records on a rolling basis regarding the 325 named individuals, the County has failed to provide responsive information on more than 300 of them even though more than 18 months have passed since SB 1421 went into effect.

Out of the 325 officers' records requested, the LASD has only bothered responding with info on nine of them. And, despite claims that a shortage of manpower was keeping them from complying with the new law, the department had time to shower the LA Times with tons of bullshit-laden digital paper.

On February 6, 2020, the Sheriff’s Department sent several hundred identical emails claiming that “stays … prohibited the Department from releasing records until they were lifted,” even though the stays had been lifted eleven months earlier.

After screwing around for another couple of months with supposedly limited resources, the LASD asked the Times if it really wanted the records it had spent most of 18 months asking for. The answer is this lawsuit.

For a few more months, the LA Times continued to request more records. And the LASD continued to claim it was "gathering" records while failing to produce any evidence of this "gathering" or, indeed, the records themselves. And so the narrative continues for several more pages, part of the Times' 155-page lawsuit.

But, hey, taxpayers: this is all fine. The LASD doesn't just blow off newspapers and their public records requests. It's also sticking it to The Man!

L.A. County’s chief law enforcement watchdog, the Office of Inspector General, also sought documents — through a subpoena — related to allegations that Villanueva directed the coverup. The Sheriff’s Department did not comply.

God bless the boys in whatever-the-fuck-color they're wearing now, who are willing to spend our tax dollars thwarting the oversight we're paying for and ignoring the laws we want them to comply with.

Filed Under: bad apple, california, lasd, police misconduct, records, transparency
Companies: la times

Minnesota's Top Court Says Hotel Guest Records Are Protected By The State's Constitution

from the take-your-bait-and-tackle-elsewhere,-coppers dept

Minnesota's top court has redefined the contours of the Third Party Doctrine for the betterment of the state's residents and visitors. [h/t FourthAmendment.com] The case deals with hotel/motel guest records, which have historically been given almost no legal protection.

The argument against protection is that guests give up this information voluntarily to private companies. But you can't get a room without giving up this information, so it's not nearly as voluntary as the government portrays it. This came to head in the US Supreme Court back in 2015. The nation's Supreme Court decided -- very narrowly -- that a Los Angeles ordinance giving police officers warrantless access to guest records violated hotel owners' rights by not giving them any way to challenge demands (other than going to jail).

The Minnesota Supreme Court does not rely on this decision despite reaching a conclusion that results in better protections for hotel guests. The difference between the two cases is the entity petitioning the court. In the US Supreme Court case, it was motel operators arguing warrantless access violated the Fourth Amendment, if not California's own Constitution. In this case, it's a guest arguing against the warrantless access to his records -- something the Minnesota court points out in a footnote. From the decision [PDF]:

The court of appeals also concluded that Leonard erroneously relied on City of Los Angeles v. Patel, 576 U.S. 409, 135 S. Ct. 2443 (2015). State v. Leonard, 923 N.W.2d 52. Patel involved a challenge by hotel operators, not hotel guests, concerning the operators’ constitutional rights, therefore avoiding the issue of the third-party doctrine.

Nevertheless, the Third Party Doctrine is explored by the state court, leading it to a conclusion that narrow that doctrine's reach. The resulting conviction for check forgery began with nothing but a fishing expedition.

Law enforcement officers arrived at a Bloomington hotel on August 14, 2015, for a hotel interdiction. The officers were not responding to a particular call. Without a warrant and without any individualized suspicion of criminal activity, the officers told the clerk on duty that they wanted to examine the guest registry and to be provided with the name of any guest who paid in cash.

State law says all hotel operators must collect this information and make it available to law enforcement. If they don't (like in the city of Los Angeles), the hotel operators can be charged with a crime. But this isn't about the hotel operator, who wasn't involved in this challenge of a law enforcement search. It's about the defendant, who argued a warrantless, suspicionless search of hotel records violated the state's Constitution.

This was the end result of the officers' perusal of hotel records.

The officers then ran a background check and found that Leonard had prior arrests for, among other things, drugs, firearms, and fraud. Based on this information, the officers developed an individualized suspicion that Leonard was involved in criminal activity and decided to conduct a “knock and talk” at the door of Leonard’s hotel room. When Leonard heard the officers knock, he opened the door and gave them limited consent to search the room, but withheld access to his laptop, cell phone, and a file folder where several checks were visible. The officers subdued Leonard through a physical struggle after he tried to flee. After securing a search warrant, the officers discovered over $2,000 worth of suspicious checks paid to the order of “Spencer Alan Hill,” over $5,000 in cash, and check-printing paper.

Paying in cash shouldn't be treated as reasonable suspicion of criminal activity. Perfectly innocent people often engage in this activity, if only to lower their digital footprint. Here's another excellent footnote from the court:

The dissent contends that Leonard did not exhibit a subjective expectation of privacy in his sensitive location information. We disagree. In a world of electronic money transfers using debit cards, credit cards, and other electronic means of payment, Leonard’s cash payment evidences an intent to conceal his presence at the hotel.

Both the trial court and the state appeals court found in favor of the government. They said warrantless, suspicionless searches of hotel guest records did not violate the state's Constitution, which prohibits "unreasonable searches." The top court disagrees.

First off, the officers had no compelling reason to show up at the hotel to demand records.

The Bloomington Police officers had never heard of Leonard when they arrived at the hotel. They had not procured a warrant to search anything. Nor were they called to the hotel by its employees because of concerns regarding any particular guest. Thus, it is undisputed that they acted without individualized suspicion when they conducted the hotel interdiction and examined the guest registry.

The court goes on to say that even though this fishing expedition resulted in the discovery of criminal activity, there are several reasons for people to conceal their identity from hotel operators and several reasons one's privacy might be unreasonably invaded by a suspicionless search of hotel records.

Imagine instead that Leonard had stayed overnight at the hotel to attend a political or religious conference in the hotel ballroom, or that he had stayed overnight before a medical appointment in hopes of keeping a diagnosis private. In these examples, the guest’s highly sensitive location information is revealed, regardless of what actually occurred in the hotel room. That such information would be accessible to the government through a fishing expedition, where the hotel guest was a stranger to law enforcement before the officers’ random search, offends our core constitutional principles.

The court says guest records are sensitive information. As such, they cannot be swallowed up by the Third Party Doctrine. The court doesn't create a warrant requirement, but does say officers need to have something more than an excessive amount of free time on their hands before demanding access to guest records.

We hold that the law enforcement officers conducted a search under Article I, Section 10 of the Minnesota Constitution when they examined the guest registry. We hold further that law enforcement officers must have at least a reasonable, articulable suspicion to search a guest registry.

Part of the underlying discussion pits society's view of the term "reasonable" versus the government's very liberal interpretation of this term. The government comes out on the losing end here.

Simply put, we think that most Minnesotans would be surprised and alarmed if the sensitive location information found in the guest registries at hotels, motels, or RV campsites was readily available to law enforcement without any particularized suspicion of criminal activity.

The court further points out that its declaration that access to guest records does not mean "access without any articulable suspicion" will not keep cops from busting criminals.

Nothing about our decision prevents law enforcement from partnering with hotels to help staff members recognize signs of trafficking or other crimes. And nothing about our decision prevents hotel operators from contacting law enforcement to relay suspicious observations. If such observations provide the officers with reasonable, articulable suspicion of criminal activity, they may examine the sensitive location information found in a guest registry.

The conclusion is this: the state's Constitution prohibits suspicionless searches, even when read in conjunction with ordinances regulating the hotel/motel industry. While this industry may be subject to more law enforcement scrutiny than most, that fact does not eliminate Constitutional protections granted to residents and visitors. The evidence disappears, along with this source of law enforcement fishing expeditions. Staying somewhere other than your own home does not eliminate privacy protections.

Filed Under: 3rd party doctrine, hotel records, law enforcement, minnesota, records, third party doctrine

This Is My 50,000th Techdirt Post, And I'm Busy Working On 50,001

from the milestones dept

So here's a bit of a fun milestone. This blog post will be my 50,000th blog post on Techdirt, which is kind of insane when you think about it. I noticed last year that I was approaching that number and have checked back periodically to see where I was. Last month I realized I was 100 posts away, and have been watching the counter move along until now, the 50,000th post on the site.

For what it's worth, the Guinness World Records folks still claim that the world record for "most prolific professional blogger" was Darren Murph and his measly 17,212 posts for Engadget in 2010. By that time I already had over 30,000 posts, but apparently Guinness is not too concerned about accuracy. In 2014, I had reached out to Guinness just to suggest that their record there was wrong, but rather than investigating the matter themselves, they sent me a huge form to apply for my own record, which would involve a ton of work to "document" all my posts, and, honestly, who the hell has time for that, when there are more blog posts to write.

Anyway, just for fun, I thought I'd link back to some other "milestone" posts, starting with my very first post, which was actually a copy of an email newsletter I sent out in August of 1997. For the first few years, it really was mostly just a newsletter, and I'd take the emails and post them to the website as well. The first "real" blog post to the site came on March 12, 1999, and was about E*Trade launching a corporate venture fund. Exciting stuff, I know. The 10,000th post came on January 2nd of 2003, discussing how American kids weren't texting as much as kids elsewhere (of course, back then we called it "wireless messaging" because "texting" hadn't been invented yet in the old times). The reasoning? More use of instant messaging on computers at home as compared to in other countries (and less use of public transportation). I'd imagine crappy phones had a role as well.

The 25,000th post was in November of 2006 and was about banks acting surprised that insiders were a big data breach threat -- again, not the most exciting of Techdirt fare, but I don't make the rules. I just write the posts. Anyway, given that I got to 25,000 posts by 2006, it's pretty clear that my prolific nature has slowed quite a bit in my later years. Those first 25,000 or so came in about 7 years, and it took another 14 to get the next 25,000 posts. I'm going to have to pick up the pace to get to 100,000 posts.

At least I know I have more than 17,212.

Anyway, a special thanks to everyone who has visited Techdirt over the years, whether you've read all 50,000 of my posts, or this is your first one. It's been quite a journey, and it wouldn't have happened if no one ever read anything I wrote...

Filed Under: 50000, posts, records, techdirt

Since The National Archives Can't Keep Up With Incoming Records, Agencies Have Been Given Permission To Rewrite Their Own Histories

from the build-your-own-Greatest-Hits-collection-on-the-public-dime dept

The federal government's recent past is disappearing alarmingly quickly. And the only thing that can stop this from happening is a collection of legislators who've collectively shown for years they just don't care. The National Archives has been given the monumental task of housing billions of records. It has no more room to store paper documents and has demanded federal agencies only send it digital records going forward.

This has only created more problems. Federal agencies aren't being given extra funds or staff to convert existing paper documents and the National Archives has seen its budget cut by Congress for three straight years. The amount of incoming material has tripled since 1985 but the National Archives has fewer employees than it did more than three decades ago and its budget has not even kept up with inflation.

So, what's the end result? Evidence of government wrongdoing is being purged, as Matthew Connelly reports for the New York Times.

In 2017, a normally routine document released by the archives, a records retention schedule, revealed that archivists had agreed that officials from Immigration and Customs Enforcement could delete or destroy documents detailing the sexual abuse and death of undocumented immigrants. Tens of thousands of people posted critical comments, and dozens of senators and representatives objected. The National Archives made some changes to the plan, but last month it announced that ICE could go ahead and start destroying records from Mr. Trump’s first year, including detainees’ complaints about civil rights violations and shoddy medical care.

Thanks to an unwillingness to treat archiving as essential, Congress is encouraging future abuses by federal agencies. If agencies know there's no room in the archives, records of their actions will simply vanish once they hit the federally-approved expiration date. Given the stonewalling that tends to greet records requests for evidence of government wrongdoing, some of the government's sins may never be exposed. All agencies have to do is make it to the destruction date without being hit with a preservation order. Very few public records requesters have the means to take the government to court and without any significant modification to destruction protocols, the government has the Archives' blessing to whitewash its past.

ICE is only one agency directly benefiting from an underfunded and overworked agency. Other agencies engaged in questionable behavior are being allowed to rewrite their own history by excising the worst parts.

The Department of the Interior and the National Archives have decided to delete files on endangered species, offshore drilling inspections and the safety of drinking water. The department even claimed that papers from a case where it mismanaged Native American land and assets — resulting in a multibillion-dollar legal settlement — would be of no interest to future historians (or anyone else).

If any agency has particularly troublesome documents on hand, it can seek "temporary" designation for them, removing its obligation to archive them. As it has become evident over the years, Congress (for multiple sessions under multiple presidents) doesn't really care what happens to these public records. Consequently, federal agencies have been destroying more and archiving less.

Connelly's report says the CIA has released fewer than 10% of its estimated 160 million paper records to the National Archives and the percentage released each year has been decreasing steadily. The report also notes the State Department is attempting to do more with less -- turning over the whole process to machine learning which will perform a nuanced task of designating files with "historic" interest mechanically. This may eliminate any employee's personal interest in vanishing documents, but just as easily could make it worse by introducing new biases that result in increased purging.

The Archives can't reverse this trend on its own. It needs the backing of Congress and the President. But it's unlikely a regime change will change anything. This downward trend is nearly four decades old at this point and the appointment of new department heads only seems to result in additional "temporary" designations, piling new exemptions on top of those that already exist. History may be written by the winners, but at the National Archives, history just simply isn't being written by anyone.

Filed Under: archives, congress, destruction of records, funding, ice, lost history, national archives, records, rewriting history

Billy Mitchell Threatens To Sue The Guinness World Record Folks For Removing His Records

from the not-how-it-works dept

Last time we wrote about Billy Mitchell -- a man who appears to be famous for playing video games and pissing people off -- he was losing his legal fight against Cartoon Network for having a character that was a parody of Mitchell named Garrett Bobby Ferguson on its "Regular Show." The court was not impressed.

The GBF character resembles Plaintiff because both have long black hair and a beard. GBF also has a similar backstory to Plaintiff’s portrayal in The King of Kong, in that both held records at video games, and both are portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles. But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does GBF’s story exactly track Plaintiff’s biographical details. GBF holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. GBF attempts to maintain his universe record through crying and lying about his backstory; Plaintiff maintained his world record by questioning his opponent’s equipment and the authenticity of his submission of a filmed high score. Plaintiff himself acknowledges that GBF is not a literal representation of him when he states that “[t]he actions of this character . . . make me look like some sort of monster, or creature, with no heart or decency. This is simply not me.”

The court also noted that, unlike Mitchell, when Ferguson lost his video game record "the character literally explodes, unlike Plaintiff." So there's that.

Apparently, in early 2018, there was a big controversy when Twin Galaxies, who tracks video game records (including for the Guinness Book of World Records), stripped Mitchell of his various records after claiming that an investigation showed evidence that Mitchell did not follow the rules. The Guinness folks later removed Mitchell's records as well, and later included Mitchell in a section called "The Records That Never Were":

Now, a year and a half later, Mitchell had a law firm send a threat letter to both Guinness and Twin Galaxies, demanding a retraction. There's also the, um, 156-page "evidence pack." Notably, despite the legal threat letter demanding a "retraction" for "their defamatory statements made against him," nowhere in the letter does it lay out which specific statements are actually defamatory. That's kind of a key thing that you're supposed to do if you have a legitimate claim of defamation. What actual statements the letter does mention don't seem to come close to the standard for defamation. Instead, Mitchell's lawyers are nitpicking about Guinness' specific word choice. For example:

Notably, Guinness World Records then published its 2019 Gamer’s Edition Book (see Figure 1). Titled “THE RECORDS THAT NEVER WERE,” Guinness World Records specifically cites the disqualification of Billy Mitchell’s “highest score on PAC-Man and the first perfect score on PAC-Man.” Following that, Guinness stated that Mitchell’s “submitted scores were obtained while using MAME.” In this statement, not only did Guinness World Records assert that Mitchell’s records, specifically his Pac-man records, “NEVER WERE,” but its use of the generalized phrase, “submitted scores,” also asserted that all his achievements were obtained while using MAME. These statements are factually false.

Defamation has to be pretty specific. Merely using a "generalized phrase" that might imply a conclusion that is different than what you want is not defamatory. The letter also demands that every record Mitchell had be restored, and insists that only partially restoring the scores won't be enough to avoid litigation:

This request for retraction is for all of Billy Mitchell’s records; a partial retraction will not suffice. Both Twin Galaxies and Guinness World Records must retract their claims impugning Mitchell's scores publicly, so the damages done to him will finally begin to reverse. There was a press release against Billy Mitchell, and there must be a reciprocal release in his favor.

Each corporation has a 14-day deadline to review the information and issue the retraction, or we will resort to legal recourse, our final option.

But, uh, not giving you a world record is not defamatory. What would they be suing over? I don't see what kind of legal claim there might be. There are also at least some questions about the statute of limitation. The Guinness World Record people are based in NY. The Twin Galaxies boss appears to be in California -- both of which have a 1-year statute of limitations for defamation. Of course, it's possible that he could file elsewhere with a longer statute of limitations. Either way, it's difficult to see what's defamatory here, or what the actual legal claims are. We'll wait and see what is said in response and if any litigation is actually filed.

Filed Under: billy mitchell, cease and desist, cheating, defamation, opinion, records, threats, video games
Companies: guinness world records, twin galaxies