Judge Blocks FBI From Moving Forward With Forfeitures Of Property Seized In US Private Vaults Raid

from the get-your-shit-together,-g-men dept

Earlier this year, the FBI raided a privately owned safety deposit box business in Los Angeles. The business provided secure storage for customers' valuables, which were only accessible via biometric scans. The DOJ accused the company of engaging in drug trafficking and money laundering, but has yet to bring charges against any of the company's employees or its customers.

The FBI obtained a search warrant that limited agents to seizing items belonging to the company but, very expressly, not items belonging to customers. This restriction -- and the FBI's own inventory policy -- was ignored. Over the course of five days, FBI agents searched and seized the contents of nearly 1,000 boxes.

The warrant said the FBI would understandably take temporary possession of the boxes. But it forbade them from searching them for criminal evidence. The FBI's policy limited its inventory of the boxes' contents to doing only what was necessary to find information about the property's owner so they could be notified and allowed to retrieve their contents.

This didn't happen. The FBI walked away with millions of dollars and -- months after the seizures -- has yet to accuse any customer of criminal activity. Several customers sued. And a federal judge has just blocked the FBI from taking possession (via civil asset forfeiture) of some of the property seized in the raid.

In a 7-page ruling Tuesday, [Judge R. Gary] Klausner sided with plaintiffs and granted the temporary restraining order preventing the government from forfeiting Jeni, Michael, Joseph and Travis’ property.

To satisfy due process, the government must provide property owners notice of the statutes buttressing forfeiture proceedings, the ruling said, adding that the notices sent to plaintiffs failed to do so.

“The notices therefore fall woefully short of the government’s duty to provide ‘the specific statutory provision allegedly violated,’” Klausner wrote in the order.

As the judge's order [PDF] points out, the law requires specificity when notifying citizens of the government's desire to forcibly transfer ownership. The notices sent by the FBI weren't specific.

Rather than list the specific statutory provisions the Government maintains justify forfeiture of the specific property seized from each USPV box, the Government notices state:

Forfeiture Authority: The forfeiture of this property has been initiated pursuant to 18 USC 981(a)(1)(C) [sic.] and the following additional federal laws: 19 USC 1602-1619, 18 USC 983 and 28 CFR Parts 8 and 9.

The list of purported statutory bases for forfeiture is anything but specific. Title 18 USC 981(a)(1)(C) lists thirty-five sections of the United States Code. A violation of any one of those code provisions can provide a basis for forfeiture… These include code sections outlawing influencing a loan officer, forgery, counterfeiting, uttering counterfeit obligations, smuggling, loan fraud, computer fraud, and bank fraud, among others.

No specificity, no seizure. The FBI is blocked from moving forward with forfeiture belonging to the four plaintiffs until it can provide them with the proper notice -- one that specifies what criminal activity the government believes the seized property is linked to or the result of.

Given the total of the take from US Private Vaults raid, I would expect the government to give up this property rather than head into some litigation that may result in similar lawsuits or court orders affecting the dispensation of other seizures/searches that haven't been challenged yet. This could have been avoided if the government had followed its own warrant restrictions, its own internal policies, and the contours of the rights enshrined in the Constitution.

Filed Under: 4th amendment, civil asset forfeiture, civil asset seizure, doj, fbi, safety deposit box, seizure

Texas Immigration Lawyer Sues DHS, CBP Over Seizure And Search Of His Work Phone

from the most-likely-place-to-find-plenty-of-privileged-information dept

A Texas immigration lawyer is suing the DHS and CBP over one of its infamous border device searches. His attempt to keep the federal government from accessing privileged attorney-client communications was rebuffed by CBP officers who decided they'd just keep his phone until they were able to access the contents. This is especially problematic considering the lawyer, Adam Malik, is representing clients currently engaged in lawsuits and other legal actions against or involving both the DHS and CBP. (via ABA Journal)

Another troubling aspect of this case is that Malik had already proved his non-terrorist bona fides to the federal government well before CBP officers decided he was in need of some enhanced screening. From the lawsuit [PDF]:

To facilitate his extensive travel, Mr. Malik applied for and received membership in CBP’s Global Entry Trusted Traveler Program (“Global Entry”). DHS approved him for Global Entry on or about November 2014 and approved his renewal in 2019.

To receive membership in Global Entry, Mr. Malik passed a layer of extremely thorough security checks conducted by DHS. Mr. Malik passed a DHS conducted background check against criminal, law enforcement, customs, immigration, agriculture, and terrorist indices, a process that includes fingerprinting. He also passed an in-person interview with a DHS security officer.

Despite being a government-ordained "Trusted Traveler," Malik was detained upon his return from a trip to Costa Rica. During his trip, he had communicated with clients using his law firm issued iPhone. The CBP officers told Malik he had been "randomly selected" for an "eligibility review." Once they had him detained, they questioned him about his personal life, family, and immigration history.

More worryingly, they questioned him about his legal practice and clients, demanding to know who he was representing and which cases he had handled. Obviously, this involved plenty of litigation work involving the same agency now questioning him. Malik refused to answer those questions. That made the CBP unhappy, leading to the incident at the center of this lawsuit.

During interrogation, Officer Sullivan displayed anger to Mr. Malik when Mr. Malik would not reveal Privileged Information. In response to Mr. Malik’s assertion of privilege, Officer Sullivan asked Mr. Malik to place the iPhone on the table. Mr. Malik placed the iPhone on the table.

Officer Sullivan asked Mr. Malik to unlock the iPhone so that the digital contents could be inspected.

Mr. Malik explained to Officer Sullivan that the iPhone contains extensive Privileged Information and allows for the accessing of Privileged Information that is stored remotely. Mr. Malik told Officer Sullivan that he cannot consent to the search of the iPhone.

Texas bar rules prohibit divulging privileged information. Not that it mattered to the CBP officer, who took everything a disturbing step further.

In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network.

Neither Officer Sullivan nor any other employee of Defendants asked Mr. Malik to disable connectivity of the iPhone to the internet or to any network. Had Officer Sullivan or any employee of Defendants offered to permit Mr. Malik to place the iPhone in airplane mode upon or after seizure of the iPhone, Mr. Malik would have done so immediately.

As the lawsuit notes, the CBP is given broad discretion on device searches. It can perform basic or in-depth searches of phones without a warrant and with nothing more than reasonable suspicion evidence of a crime may be found on the devices. It also has some national security powers which give it even more leeway. However, there's nothing reasonably suspicious about someone denying access to privileged communications, especially when doing so means they're abiding by their legal obligations as an attorney, rather than shirking them to avoid further border control nastiness from federal officers with too much power and too little oversight.

Despite all this leeway, Malik says the CBP still violated its very permissive directives. It did not attempt to disconnect the phone from any network, which would have allowed it access to data in motion, rather than just data at rest. It did not make any effort to restrict its search to non-privileged information by use of a filter team. Instead, it seized Malik's phone and searched its contents with it connected to the internet and without the aid of anything that would have steered it clear of information it had no business seeing. According to the lawsuit, the CBP is still in possession of the phone, nearly a month after it seized it.

As evidence of the illegal search, Malik states that he received a request for a verification code from FLYP (a call, text, and voicemail app) one day after he was forced to leave his phone in the CBP's possession. This indicated the phone was still connected to the internet and the CBP had unlocked the device.

Two weeks after seizing the phone, the CBP finally got around to getting a filter team together. It sent an email to Malik demanding a list of clients and their contact info. Supposedly this was to identify who his clients were so the CBP wouldn't access those communications. But, as Malik points out, he is forbidden from providing that information. Not only that, but identifying current and future litigants would compromise them and make them more susceptible to adverse actions by agencies opposing them or targeted by litigation.

Plaintiffs are prohibited from identifying such names because the identification for most, if not all the individuals, are connected inextricably with the privileged and confidential purpose for which the clients sought legal advice.

Part of the Privileged Information contained on the iPhone and on the remote servers is identifiable only by a telephone number of the client. Telephone numbers of the clients are privileged and confidential and will lead to exposure of Privileged Information.

Filter team protocols suck when searches are performed by defendants in lawsuits filed by the lawyer whose phone they've seized.

CBP’s proposed filter team as implemented and as articulated in the Directive, creates the appearance of and potential for improprieties. The Directive authorizes CBP officers to rummage through attorney-client communications. The use of the filter team in these circumstances will chill the free flow of information between clients and lawyers.

Malik asserts a number of First and Fourth Amendment violations. The seizure and search of communications and other information protected by the First Amendment ("expressive content, associational information, and private information") without reasonable suspicion of criminal activity is just one of the problems. The same lack of suspicion carries over the Fourth Amendment, which guards against "unreasonable" searches, no matter what their context.

In addition to findings in favor of his Constitutional claims, Malik is also asking for an independent team to be involved in the search of information on the iPhone and to be given the right to challenge any search that may result in privileged communications being accessed by the government. He also wants CBP blocked from searching the phone until his demands are met and a Special Master put in place to oversee the search. Finally, he asks for a permanent injunction blocking the government from searching the phone at all, which, if granted, would make the intermediate demands unnecessary.

From these allegations, it appears the CBP retaliated against the lawyer because he refused to break his code of ethics. And it appears CBP officers were willing to violate long-held ethics itself if this "Trusted Traveler" wouldn't do it for them. This is the unsurprising side effect of giving border control agencies almost complete control over travelers and their possessions. When there are few restraints, very few will act with restraint. Hopefully a lawsuit like this will start nudging our borders back into Constitutional territory.

Filed Under: 4th amendment, adam malik, attorney client privilege, cbp, dhs, seizure, texas

#NoRightsMatter: US Postal Service, Law Enforcement Team Up To Seize 'Black Lives Matter' Facemasks

from the guaranteed-but-also-fungible-I-guess dept

In this time of coronavirus and social unrest, you'd think the government -- at all levels -- would engage in a little more care not to make either problem worse. Of course they haven't. Cops are arresting journalists and tear-gassing peaceful protesters as the President himself calls for domestic military action targeting US citizens. Dystopian fiction writers have been put on notice: the usual shit just isn't going to sell anymore. The ideas you thought wouldn't sustain suspension of disbelief are swiftly becoming reality.

Stepping into the breach for reasons it will probably never be able to fully explain is the federal government, using nationwide protests as a reason to suspend as many rights as possible until everyone agrees the government is not an oppressive force -- even when personified as a white cop strangling a black man to death by putting his knee on his neck.

Good luck with that. The government needs all the goodwill it can collect. It has apparently failed to realize the importance of harvesting goodwill in difficult times. And when the lawsuit inevitably gets filed, it will have to explain why it chose to do this massively stupid thing. Ryan Reilly reports for the Huffington Post about an apparent First/Fourth Amendment double-punch.

Law enforcement agents have seized hundreds of cloth masks that read “Stop killing Black people” and “Defund police” that a Black Lives Matter-affiliated organization sent to cities around the country to protect demonstrators against the spread of COVID-19, a disease that has had a disparate impact on Black communities.

The Movement for Black Lives (M4BL) spent tens of thousands of dollars on the masks they had planned to send all over the country. The first four boxes, each containing 500 masks, were mailed from Oakland, California, and were destined for Washington, St. Louis, New York City and Minneapolis, where on May 25 a white police officer killed George Floyd, a 46-year-old handcuffed Black man, setting off a wave of protests across the country.

Here's the original post detailing the apparent seizure of free speech d/b/a protective face masks:

This was multiple levels of fucked up, both in terms of what happened and who was involved. It's not clear which law enforcement agency seized the masks but it all started with the US Postal Service's "inspection" unit (USPIS), which apparently flagged the items as somehow illegal and/or dangerous.

The masks Rene Quinonez of Oakland's Movement Ink created never made it any further than the postal depot. The only thing unusual about the face masks -- millions of which have traversed the country unmolested in recent months -- were the slogans they bore.

Heads up, government agents: slogans printed on face masks are protected speech. And deciding to make off with a citizen's personal property because you just don't like what's printed on it doesn't just violate their First Amendment rights. It also violates their Fourth Amendment right to be free of unjustified molestation by the government.

"Congress shall make no law… abridging the freedom of speech…" And it hasn't! Which makes this seizure unlawful. Lot of people who swore to uphold the Constitution are now wandering around acting like rights are privileges that can be completely suspended if stuff starts going sideways. Sure, there's lots of executive power to throw around and everything Congress has handed itself to use during wartime, but civil unrest across the nation isn't the bar for the suspension of guaranteed rights.

When anti-government demonstrations are widespread, it's speech the government doesn't like that needs the most protection. And here, the government (on a number of levels), has failed.

UPDATE: The federal government -- acting incredibly strangely -- has now released the masks and refunded Movement Ink's shipping costs. Sounds like the entities involved were hoping no one would talk about this and are trying to fix things on the sly now that this bullshit has been exposed.

An organizer involved in producing the masks, speaking on the condition of anonymity, said they received a call from a USPIS employee on Friday morning, hours after HuffPost’s initial story on the seizure ran. What was strange about the call, the person said, is that they weren’t the person who mailed the boxes or the point of contact.

The organizer who received the call said the USPIS official said there would be a refund for the cost of express shipping since the boxes wouldn’t be arriving on time, which would have allowed them to be used by protesters on Thursday night and this evening.

All's well that ends well and all that, I guess. But there's still a civil rights lawsuit in here and Movement Ink should go after the government for its decision to violate multiple rights just because no one involved was willing to end this unconstitutional process before it could cause any harm.

Filed Under: 1st amendment, 4th amendment, asset seizure, black lives matter, covid-19, face masks, george floyd, law enforcement, seizure, uspis
Companies: movement ink

Drug Prices Are So Insane That The NY Times Is Recommending The US Gov't Just 'Seize The Patents'

from the seems-like-maybe-we-should-fix-the-patent-system dept

Drug prices are sky high. This is not news. A bunch of incredibly dumb policy decisions have been stacked up for decades and brought us to this place where drug prices -- especially for life-saving drugs -- would bankrupt most people. A huge part of the problem is our patent system and how we literally grant monopolies to companies over these drugs. Combine "life saving" with "monopoly" and, uh, you don't have to have a PhD in economics to know what happens to the price. Add into that our fucked up and convoluted hospital and insurance healthcare system, in which prices are hidden from patients, and you have a recipe for the most insanely exploitative "marketplace" ever.

The NY Times has taken notice of this and its editorial board recently put forth some partial solutions that could be done right away to ease the burden. This includes having the federal government flat-out seize patents:

Consider seizing patents. Two statutes enable the federal government to override patents on F.D.A.-approved medications and produce them at cost. The first, known as Section 1498, works as a sort of eminent domain and allows the government to override any patent if the patent holder is compensated fairly. The provision was invoked frequently in the 1950s and ’60s to obtain crucial medications at a discount. Its use waned in later decades as the drug industry’s influence over government grew.

The second statute, known as march-in rights, allows the federal government to take similar action on any product invented with government money. The United States has never used this power for a prescription drug, but a growing number of policy experts and consumer advocates are pressing the federal government to use it now, for drugs like Truvada (the only drug approved to prevent infection with H.I.V.), which the government funded and holds some patents on. Patent overrides certainly won’t work for every medication, but they have been used successfully in the past to force the drug industry to the negotiating table. Mr. Trump could send a powerful signal to drug makers if he utilized them now.

Of course, the idea that the Trump administration is going to start seizing prescription drug patents is kind of laughable. And, man, the legal battles to watch over that would be quite impressive. But, to me, it shows just how bad things have gotten that a paper like the NY Times would casually toss out having the government seize private company patents to deal with the insanity of drug pricing.

Furthermore, while the Times is correct that this could be "done now," it seems like yet another way of treating the symptoms not the disease. Fix the fucking patent system. Fix our broken healthcare system. Do those two things and you don't have insane drug pricing any more. And, to be fair, at least the NY Times piece does acknowledge the idea that maybe we need to "blow up the patent system and start over" when it comes to pharmaceuticals. But it labels this idea as "fantastical." It may be "fantastical" to those with limited imaginations and focused on living under today's crappy, broken system. But if we want to deal with the real problems, that's one area to start.

Filed Under: drug pricing, drugs, patents, pharmaceuticals, seizure

Court To Law Enforcement: You Can't Seize A House For 15 Hours Before Obtaining A Warrant

from the because-reasons...-a-lot-of-them dept

When you violate the Fourth Amendment so hard it practically becomes the Third Amendment. (via FourthAmendment.com)

Local law enforcement seized Defendant’s home around 7:00 a.m. Defendant spent the next two and a half hours at the police station speaking with Investigator Cooke and others. About 9:30 a.m., Defendant signed a limited consent to search form outside his home authorizing Investigator Cooke to enter the home and retrieve Candice’s medication. Cooke completed his search of Defendant’s home around 10:00 a.m. By 11:30 a.m. Cooke possessed sufficient knowledge to procure a search warrant. He knew Defendant was a convicted felon and had ammunition in his bedroom closet. Cooke did not seek a search warrant, however, until the early evening hours. The only event of sufficient note during the period between the establishment of probable cause that morning and the process of procuring a search warrant that evening was Candice’s autopsy which began at 1:30 p.m. and concluded around 3:30 p.m. A federal magistrate judge issued the warrant at 10:00 p.m. Three federal agents together with Investigator Cooke and another officer executed the warrant beginning at 11:18 p.m. or twelve hours after probable cause arose. Their search concluded at 1:20 a.m.

The Third Amendment says you can't be forced to quarter troops in your house. What about around your house? Here agents of the government took over a man's residence for over 18 hours -- 15 of them without a warrant -- refusing to even allow him to enter his own home for accompanied bathroom breaks.

The timeline above, taken from the 10th Circuit Court of Appeals decision [PDF], followed the discovery of the defendant's wife dead in his home around 5:00 a.m. The defendant, Walter Shrum, was the one who discovered her and it was he who called law enforcement. Three hours later, after being forbidden to enter his home, Shrum signed a limited consent form allowing a Sheriff's Office investigator to enter the home to retrieve his wife's medication prior to an autopsy. The investigator saw a bullet in a closet. Later, the same investigator recalled Schrum was a convicted felon.

It was still several hours before a warrant was secured. During that entire time, Shrum's house was controlled by law enforcement. They may not have been inside, but they prevented the house's owner from re-entering his own residence. He was "interviewed" for three hours by the investigator, who may not have actually gotten consent from Shrum to sign a search consent form. This footnote suggests a request for legal representation by Shrum may have been ignored.

At the suppression hearing, Investigator Cooke testified that after Defendant mentioned he wanted an attorney to review the consent form, Defendant “in what was a joking manner to me initially was, quote, ‘Shit, I’m just kidding,’ and we moved on.” Defendant’s reported statement is inaudible on the interview tape.

The court notes there's no question the Sheriff's department seized Shrum's home. This immediately implicated Shrum's Fourth Amendment rights. Denying him access to his own house for over 18 hours seals the deal, no matter how the government tries to portray it.

We see little difference between a perimeter stakeout and internal securing of a home from the standpoint of a Fourth Amendment seizure. Both interfere to the same extent with the possessory interests of those entitled to occupy the dwelling. The Government cannot reasonably dispute that the “securing” of Defendant’s home during the early morning hours of March 11, 2015 infringed not only on his possessory interest in the home but also on his liberty interest in free movement. The police deprived Defendant of his ability to access his home for his own purposes, in his own way, on his own time, and at a location where concerned friends and well-wishers would surely come calling.

"A man's house is his castle," as multiple court decisions have paraphrased, including ones issued by the Supreme Court. Once this illegal seizure commenced, it tainted everything that came after it, including the supposed "consent" of Shrum.

While the court agrees it is sometimes reasonable to very temporarily secure a suspected crime scene, the 15-hour delay between the home's seizure and the issuance of a search warrant is anything but. And the court drives a significant nail into the government's argumentative coffin: the warrant exception so many law enforcement officers believe exists doesn't actually exist.

[T]he Government has never suggested that probable cause (or any form of articulable suspicion for that matter) justified the initial seizure of Defendant’s home. And we have news for the Government. No such thing as a “crime scene exception,” let alone an “unexplained death scene exception,” to the Fourth Amendment exists.

When the initial seizure is bad, the search is bad, even if limited consent was obtained. As the court points out, without Shrum being denied access to his home, there would be no reason for the investigator to enter to retrieve the medication needed for the autopsy. And if the investigator never enters the home, the bullet is never seen and the search warrant isn't obtained and executed, producing even more evidence of criminal activity.

And the investigator himself steered Shrum towards compliance, leaning on him heavily when it appeared he wouldn't let law enforcement into the house he was forbidden from entering.

By all appearances, Investigator Cooke consciously designed the circumstances under which Defendant provided his consent to convince him that he had no choice but to accede to the investigator’s wishes. When a police officer claims authority to seize your home because your wife died unexpectedly, and tells you the coroner needs medication from the home to perform an autopsy but you cannot go inside the home to retrieve the medication, what choice do you have? Must you allow law enforcement to seize your home indefinitely? Defendant’s lack of choice once again is well illustrated by his statement to Investigator Cooke, “I know you have to,” and Cooke’s subsequent reminder, “I’ll just tell you I can’t let you go in the house, but if you’ll tell me where the stuff is.” Nothing between the time of law enforcement’s illegal seizure of Defendant’s home and Investigator Cooke’s search of the home broke the causal chain. Because Defendant’s consent was tainted, Cooke’s search pursuant to that consent also was tainted.

The taint travels down the line to the late-arriving warrant, resulting in the suppression of every bit of evidence the government used to convict Shrum. The government simply can't do what it did -- turn someone's house into occupied territory for several hours without probable cause  -- and expect its evidence to survive.

Filed Under: fourth amendment, police, seizure, third amendment

DOJ Seizes And Shuts Down Backpage.com (Before SESTA Has Even Been Signed)

from the well,-well,-well dept

So here's a Friday evening surprise: the DOJ has just seized Backpage. If you visit the site now you will see the following graphic:

It notes that additional information will be provided soon, and we'll update this post when that occurs. But first, there are a few important things to note. Before and after SESTA was voted on by Congress, we noted that while supporters of SESTA kept pointing to Backpage as the reason we needed to change CDA 230, there were two reasons why we thought it was premature to make such a change. The first was that there was a court in Massachusetts considering whether or not Backpage had lost its CDA 230 immunity by being an active participant in creating trafficking ads. And the second, more important, one was that there were many reports claiming that a DOJ grand jury was investigating Backpage, and nothing in CDA 230 stopped that from happening (federal crimes are exempt from CDA 230).

Last week the Massachusetts court ruled that Backpage had lost its CDA 230 immunity for at least one victim, and this week a court in Florida ruled the same thing (though for dubious reasons).

And now the DOJ has seized the entire site, suggesting that the grand jury found the evidence it needed to take it down (we'll reserve judgment on that evidence until the indictment is out).

And while SESTA has been approved by Congress, it is still not the law. The President is likely going to sign it next week.

So we have a pretty big open question: if SESTA was supposedly necessary to take down Backpage -- and yet now both of the key reasons many of us noted that Backpage probably wasn't protected have been not just proven true, but resulted in Backpage being seized -- why do we still need SESTA?

We'll be back with more later when the details are out, but for the SESTA supporters out there, let's hear your answers.

Filed Under: cda 230, doj, fosta, intermediary liability, seizure, sesta, sex trafficking
Companies: backpage

Appeals Court Says Gov't Can't Seize Untainted Assets Ahead Of Trial

from the modest-Sixth-Amendment-restoration dept

Using nothing more than one of the easiest things the government can obtain -- a grand jury indictment -- accused criminals can be locked out of their choice of representation. In essence, the government, right up until the Supreme Court's 2016 Luis decision, was allowed to take everything a defendant had, whether or not the property could be linked to criminal activity.

What this did was make a mockery of the Sixth Amendment. Prior to even taking the case to court, much less securing a conviction, the government could leave defendants with no funds to hire a lawyer. The Supreme Court rolled this back, limiting the government to taking tainted assets. It wasn't a complete win. A complete win would have required the government to secure a conviction before taking any assets, or at least not until it was proven certain assets were tied to criminal activity.

It was a limited win for the Sixth Amendment, very much restricted to the facts of the case -- one in which the government had admitted the disputed property was untainted by criminal acts. Still, it was better than leaving it untouched and giving the government the option to bankrupt defendants supposedly considered innocent until proven guilty.

This precedent is starting to play a part in the lower courts. The Fourth Circuit Appeals Court has just struck down previous rulings allowing the government to seize untainted property pre-trial. The government's operating theory has been that, despite the Supreme Court ruling, untainted assets can be seized as a "substitution" for tainted assets to ensure the collection of fines and fees, as well as the replacement of any fraudulently-obtained property.

The government still argued the Luis decision didn't apply. From the decision [PDF]:

[T]he government conceded that the property at issue is not traceable to any alleged crime and is thus subject to pretrial restraint, if at all, as substitute property pursuant to 21 U.S.C. § 853(p). The government also agreed that, following Luis, the Constitution prohibits the pretrial restraint of innocently-obtained property when it is needed by a criminal defendant to obtain counsel. The government nonetheless asserted that the restraining order was proper under our existing rule that the government may restrain a criminal defendant’s “substitute property” pending trial under 21 U.S.C. § 853(e)(1)(A), see United States v. Bollin, 264 F.3d 391, 421–22 (4th Cir. 2001)—a rule, the government maintained, that Luis did not abrogate.

In this case, the government sought to prevent a defendant from selling some property completely unconnected to the fraud charges. The defendant admitted the sale of the property had nothing to do with raising money for legal costs, prompting the government to assert blocking the sale under the "substitute property" clause wouldn't harm the defendant's Sixth Amendment rights. The lower court didn't exactly agree with the government's arguments, but allowed pre-Luis precedent to control its ruling granting the government's restraining order against the sale of assets.

The Appeals Court goes off into the Section 853 weeds for awhile before coming to the following conclusion: the government can still seize "substitute" assets, but not the way it's doing it here -- not after the Supreme Court's Luis decision. While the government can attempt to deter the dissipation of tainted assets prior to trial, locking defendants out of their untainted assets isn't the solution. Deliberate dissipation of assets opens defendants to more criminal charges or, at minimum, a greater chance of an adverse ruling. That is the deterrent. Depriving the accused of assets the government acknowledges are untainted isn't.

[A]lthough we have interpreted Section 853(a) to permit courts to issue money judgments covering a convicted defendant’s substitute assets, United States v. McHan, 345 F.3d 262, 272 (4th Cir. 2003), it does not follow that Section 853(e) is similarly permissive. Indeed, Section 853(p) authorizes courts to order the forfeiture of substitute property only where property “described in [Section 853(a)]” is rendered unavailable “as a result of any act or omission of the defendant.” 21 U.S.C § 853(p). Framed in the past tense, this provision means that a forfeiture order covering substitute property may issue only upon a showing, after conviction, that directly forfeitable assets have been rendered unavailable.

The use of Section 853 to seize substitute assets now comes with a conviction requirement.

In sum, the Supreme Court has signaled that there is a firm distinction between the government’s authority to restrain tainted and untainted assets in construing Section 853 and related restraint provisions. Consistent with this important distinction, when Congress intends to permit the government to restrain both tainted and untainted assets before trial, it has clearly provided for such authority. Lacking such express authorization, Section 853(e) does not by its terms permit pretrial restraint of substitute assets.

Conviction requirements are good. The government has plenty of leeway already when it comes to taking control of people's assets. In most places, civil asset forfeiture is just that: a judicial process that pretty much eliminates the input of the seized property's owner and hardly requires the government to prove anything about the property's "guilt." Pre-trial seizures of assets the government has yet to prove are derived from criminal activity allows the government to perform what amounts to civil forfeiture based on nothing more than some unproven accusations. By helping lock people out of obtaining the best possible legal representation, the government increases the odds it will be able to hold onto everything it has seized, whether criminally-derived or not. Now, if only the courts would apply this thinking to actual civil asset forfeiture...

Filed Under: asset seizure, fourth circuit, seizure

Federal Judge Upholds Magistrate's Ruling, Says Google Must Hand Over Data From Overseas Servers

from the worldwide-service,-domestic-delivery dept

Earlier this year, a Pennsylvania magistrate judge decided Google needed to turn over data to US law enforcement despite it being housed (possibly temporarily) in overseas servers. The overseas housing was simply part of Google's data flow, which routes communications around the world for efficiency, rather than to keep them out of local governments' hands.

This contradicted an earlier decision by the 2nd Circuit Appeals Court, which ruled Microsoft did not have to turn over data held in overseas servers in response to a US search warrant. The fact that Google does not explicitly hold certain data in certain servers was key to this decision. The conclusion the magistrate reached was no seizure of the data took place until Google stopped the data flow and gathered it up locally. That decision seemed to rewrite the definition of the word "seizure," as the warrant compelled Google to grab the data and compile it domestically. Stopping the flow of data traffic to grab stuff certainly sounds like Google is "seizing" it -- and it's only doing so because the government has ordered it to.

Google asked for a judicial review of the magistrate's decision. Unfortunately, the Pennsylvania federal judge one step up from the magistrate has upheld the magistrate's order. (h/t Brad Heath) From the memorandum [PDF]:

Although Google and each of the account holders in question are based in the United States, Google contends it is the physical location of the data to be retrieved—which Google, not the account holder, controls, and which Google can change at any time for its own business purposes—that determines whether the statute is being applied extraterritorially. Because this Court agrees with the government that it is the location of the provider and where it will disclose the data that matter in the extraterritoriality analysis, and because Google can retrieve and produce the outstanding data only in the United States, the Court agrees with the Magistrate Judge’s conclusion that fully enforcing the warrants as to the accounts in question constitutes a permissible domestic application of the SCA. The Order granting the government’s motions to compel will therefore be affirmed.

The memorandum runs several pages, but basically reiterates the magistrate's findings. The warrant is lawful under the Stored Communications Act and provides for the seizure of the data requested. That the data is located extraterritorially would normally pose a problem, but Google's overseas data stores are only filled for Google's convenience, rather than being a place where any of the sought data resides permanently. This decision basically lays it all out for US service providers, stating that because warrants are served to their domestic offices, data located anywhere in the world is within reach of a US search warrant.

The court gets around the contradictory nature of its conclusion by quoting heavily from the dissenting judges in the 2nd Circuit Appeals Court decision.

Although the panel decision in the Microsoft case was unanimous, the decision drew vigorous opposition from other judges of the Second Circuit when the case came before the full court on the government’s petition for rehearing en banc. The petition was denied by an equally divided court, but the denial generated four separate dissents by judges who agreed that enforcing an SCA warrant to require a domestic service provider to disclose information in the provider’s possession, which the provider can access within the United States, constitutes a domestic application of the statute’s warrant provision, regardless of where the provider has elected to store the information. See Microsoft Reh’g, 855 F.3d at 61-62 (Jacobs, J., dissenting); id. at 66-68 (Cabranes, J., dissenting); id. at 70-73 (Raggi, J., dissenting); id. at 75-76 (Droney, J., dissenting). The Microsoft court’s analysis has also been rejected by every magistrate judge and district court that has considered the issue to date, including the Magistrate Judge in this case.

However, there's nothing in the memorandum that even hints at the dangerous precedent the court is helping set. The Pennsylvania court views the Second Circuit decision as an anomaly and will afford it zero respect when discussing challenged warrants. Presumably, ignoring an outlier will continue through any suppression hearing once this case moves forward. Google will certainly appeal this decision, but the absence of favorable rulings from within this circuit (Third Circuit) likely make this non-starter. As it stands now, one circuit in the nation holds the government to the letter of the law when issuing SCA warrants. For everyone else, it's still up in the air, with more courts likely to side with the 2nd Circuit dissent, which will result in more US law enforcement demanding data from overseas simply because they have a US entity to hand the warrant to.

Filed Under: seizure
Companies: google, microsoft

Kurt Eichenwald Sues Twitter Troll Over Alleged 'Epileptic' Image Assault

from the legal-issues dept

So, just to be upfront about stuff, reporter Kurt Eichenwald doesn't like us here at Techdirt very much. We've written about him a few times, and he's never been at all happy with our coverage because the two times we've written about him it was to call into question his reporting. The first time was a few years ago, when he made some ridiculous logical leaps in asserting that Ed Snowden was a Chinese spy and all of his leaks was just to cover up Chinese cyberattacks. Then, just a few months ago, we called him out for massively overselling a story, where he falsely claimed (and later deleted his tweets claiming this) that he had proof that Wikileaks was connected to the Russians. This was based on a long and convoluted series of events that proved no such thing. It may be true, but Eichenwald had no proof. He massively oversold a story that later turned out to just be that a part time writer based in DC at a Russian-owned publication made a mistake in misattributing a quote -- and Eichenwald assumed all sorts of ridiculous things.

Suffice it to say, Kurt Eichenwald is not a fan of us at Techdirt and has me blocked personally on Twitter after I tried to point out that he was overselling his story. These aren't the only times that Eichenwald has run into trouble for his reporting. Back in 2007, there was an incredible story that came out concerning Eichenwald writing a NY Times article about child porn, where he left out the fact that he'd paid the subject of the article thousands of dollars. And, then, last week, Eichenwald appeared on Tucker Carlson in an interview that can just be described as... very, very odd. I'm not a fan of Carlson either, but they quickly get into a weird debate where Carlson wants to attack Eichenwald for "fake news" by pointing to some tweets that Eichnewald made about Donald Trump allegedly being institutionalized. Carlson keeps asking Eichenwald to explain this tweet and Eichenwald... goes all over the place, including something about his contacts at the CIA and a binder full of what he calls Tucker Carlson's "falsehoods" but he never actually answers Carlson's question. Again, I think Carlson tends to be ridiculous, but Eichenwald comes off as much, much, much more ridiculous here. He continued to make himself look worse, by later claiming that he was joking and "signaling" a source with the bogus tweet -- an excuse that makes absolutely no sense at all.

And, apparently, some internet trolls agreed, but decided to take it up a notch. Back in October, Eichenwald had written an article claiming that some internet trolls tried to give him an epileptic seizure by sending him a graphic that has been known to induce seizures in epileptics (Eichenwald has epilepsy). It appears that the combination of the Carlson interview and Eichenwald's attempted defense of the interview resulted in a troll using the handle @jew_goldstein (subtle!) posting a tweet with a flashing image claiming that he deserved a seizure. Eichenwald's account later tweeted out a claim, supposedly from his wife, that the image had worked and he'd had a seizure -- and that he was pursuing legal action. This kind of attack isn't particularly new. There was a story about a decade ago of a bunch of internet trolls descending on an epilepsy forum to do the same thing -- which is really kind of fucked up.

Then, Monday morning Eichenwald released a copy of some legal documents in the lawsuit, seeking expedited discovery. In short, he's suing and trying to use the discovery process to unmask who is behind the troll @jew_goldstein account, demanding that Twitter hand over the information. I think it's reasonable to question whether or not an actual lawsuit will follow or if the goal here is just to unmask the troll.

Now, there are all sorts of legal questions about this -- and, thankfully, since Eichenwald wrote about this back in October, a bunch of experts have already weighed in. And the answer seems to be a combination of "well, there's an interesting legal scenario" and "yeah, it seems like he might actually have a case." Law professor Elizabeth Joh explains the basics here:

Had this Twitter troll walked up to Eichenwald and pointed what appeared to be a loaded gun at the journalist, most would agree that the troll would be guilty of assault. Had the troll walked up to Eichenwald and surprised him with a tablet displaying the video, the result would likely be the same. After all, not all weapons are guns. It’s the same thing with the tweet—the distance does not change the analysis. For instance, the intentional hacking of a networked connected medical device, like an insulin pump, resulting in a person’s death would be criminal homicide even if the perpetrator were hundreds of miles away.

Criminal defense and free speech lawyer Mark Bennett also sees the elements of a misdemeanor in Texas:

But this assault on the journalist is interesting for another reason. It’s not only a threat to commit imminent harm — indeed, it’s arguably not even a threat to commit harm — but an attempt to cause bodily injury. That’d be a class B misdemeanor in Texas, with a maximum 180-day jail sentence and $2,000 fine. It’d be a third-degree felony — up to 10 years in prison — if the assailant intended to cause serious bodily injury.

Weaponized tweets, resulting in physical harm, are cyberpunk stuff: long-distance brain hacking. The brain has a tremendous deal of influence over how we feel, and people can manipulate our brains with electronic messages. (For a really-bad-case scenario, see the chapter on electronic slot machines in Matthew Crawford’s The World Beyond Your Head).

I can’t think of a good reason an electronic message sent with the intent to cause an epileptic seizure should not be treated like any other attempt to cause bodily injury.

Criminal defense lawyer Scott Greenfield also concludes it's quite possible:

Yes, even Twitter can be used to commit an assault, regardless of whether Eichenwald was a victim. No, it doesn’t have to be that way if you choose not to commit a crime using twitter. Just don’t do it.

Lawyer Keith Lee put all of this together and looks at whether or not all of the elements of assault were accomplished here and also concludes that there's a viable claim with this lawsuit:

In the situation involving Eichenwald: were the mechanics of an internet medium (Twitter) able to act as a delivery system for an assault (an intentional attempt or threat to inflict injury that places another person in fear of imminent bodily harm)?

Given that the offending user (((Ari Goldstein))):

1. Used the Twitter network system;
2. to transmit/deliver an intentional attempt/threat;
3. that they knew would be likely to inflict injury; and
4. placed Eichenwald in fear of imminent bodily harm.

I’d say that it’s likely that Eichenwald has some merits to his claims.

Lee notes that there are some possible defenses, but again, it does make you wonder if Eichenwald actually intends to follow through on the lawsuit, or just try to expose the troll. Still, as pretty much everyone agrees, whoever did this is pretty obnoxious. I'm obviously not a big fan of Eichenwald, and find him to be a terrible reporter, an unreliable narrator and kind of a jackass but I still think whoever did this to him is a much bigger jackass -- and potentially a criminal. Eichenwald looked foolish enough with his rantings. There's simply no reason to go further to try to harm the guy physically.

Filed Under: assault, epilepsy, kurt eichenwald, seizure, trolls

Cops Who Repeatedly Treated Refusal As Consent Watch Their Seized Evidence Vanish

from the 'just-say-no'-campaign-fails-again dept

Some people just don't work well without direct supervision. When not responding to calls, officers are often left to their own discretion. Some do well with this freedom. Others… well, others do this sort of thing. [PDF]

Officers Biandudi and Wyle were patrolling a Pinellas County neighborhood in a marked police car. They saw twelve-year-old F.C. and his friend, Pedro, playing in the grassy common area of their mobile home park. Officer Biandudi testified that the boys looked like they were just playing around and having fun. He saw nothing alarming. Nevertheless, he pulled over and stopped the patrol car. He and Officer Wyle exited the car. They were uniformed and armed. They approached the boys and asked if they could search them. The boys consented. The officers found small amounts of marijuana on each boy. The State charged each with possession of cannabis.

No probable cause, much less reasonable suspicion. Just a couple of cops with nothing better to do and a couple of easy targets -- ones they knew from previous, apparently questionable interactions -- out in the open.

A motion to suppress the evidence was rejected by the lower court. The court expressed dismay at the officers' actions but still felt there was no precedent to support suppression.

There is no case law in here that says that if a person feels like they have no choice, then they're coerced. . . . .

[T]he reason why he felt that he needed to do it was because the officers had on a uniform and he felt that if he would have said no that it was going to happen anyway. But there's no case law that you've given me that said if a person says yes and they're saying yes because an officer has on a uniform that they have been coerced into doing that.

Both boys testified they felt compelled to consent to the search. More importantly, they felt that refusing consent -- which was well within their rights -- was futile. According to their previous experiences with these same officers, refusal had never resulted in them being left alone. Searches were performed anyway.

The Florida appeals court disagrees with the lower court's assessment, fortunately. Citing case law the teen's defense lawyer apparently couldn't locate, the appeals court notes that the state must reach a higher bar when claiming to have obtained consent from juveniles for searches. The state didn't meet it here. The lower court's inability to locate supporting case law caused it to arrive at the wrong conclusion: that the juveniles should have known they could have refused consent -- placing the burden on the juveniles for not trying harder to deter the officers from obtaining consent.

The appeals court points out that this conclusion misses a very key aspect of this interaction -- and others -- between the teens and these two police officers. The juveniles knew they could refuse consent. They also knew it would make no difference.

Here, in addition to F.C.'s young age, he and Pedro both testified that these same officers searched him in a previous encounter, ignoring F.C.'s refusal to be searched. The trial court considered these circumstances and concluded that F.C. and Pedro were not "green" because they had been stopped and searched before. The implication is that where juveniles have experience with law enforcement, they will know their rights. However, the opposite applies here—their experience taught them that saying no would not deter the police.

It doesn't matter if you know your rights when the police are just going to ignore them. That's what these two boys had concluded from their multiple interactions with these two officers. Refusing consent was no different than giving it. The appeals court gets it right: suppressing evidence is a deterrent to police misconduct, and these two officers are severely in need of judicial discouragement.

Filed Under: 4th amendment, consent, pinellas county, police, searches, seizure