Phoenix City Council Says PD Can Have Surveillance Drones Without Any Policy In Place Because Some Officers Recently Got Shot

from the I-guess-there-will-always-be-time-to-regret-things-later dept

The Phoenix Police Department wants drones and it wants them now. And, according to this report by the Phoenix New Times, it's going to get them.

After several hours of debate and spirited public response during the Phoenix City Council meeting this week, local officials agreed to authorize the police department to purchase public safety drones right away.

Late Wednesday night the Phoenix City Council voted 6-3 after a lengthy, and at times heated, discussion.

The request was submitted to the city council at the last minute, fast-tracking the agency’s plans to implement the technology.

Why the rush? Well, according to a letter [PDF] signed by Mayor Kate Gallego and two council members, having a drone in the air would have… not changed anything at all about a recent incident where officers were shot.

In the early morning hours of February 11, our officers were ambushed when responding to a call for service at a two-story home in Southwest Phoenix near 54th Avenue and Broadway. Nine of our police officers were injured but thankfully all of them are recovering.

During this incident was determined for the safety of our officers drone would need to be utilized to neutralize the situation. Currently, Phoenix does not own any drones for use by our Police Department, therefore we had to rely on the grace of our neighbor, the City of Glendale, to provide our department with a drone.

News reports about the ambush shooting make no mention of a deployed drone or describe what difference it made in resolving the deadly situation. But that shooting that happened to have a late-arriving drone is being used to justify the sudden acquisition of drones by the PD, which will presumably be deployed as soon as they're obtained.

Since it's apparently a matter of life and death, the request made by the council for the police to develop a drone policy and deployment plan before seeking funding and permission to acquire them has been abandoned. It's apparently now far too urgent a problem to be slowed down by accountability and transparency.

The committee agreed to allow Phoenix Fire to go ahead with its drone purchases — so it could roll the tech out by the summer — but asked Phoenix police to come back for approval separately, with a more fleshed-out plan.

This new proposal will circumvent that, instead allowing Phoenix police to go ahead with the drone purchase “as soon as possible,” according to a memo, without presenting a policy first to the council.

That gives the Phoenix PD permission to send eyes into the skies without meaningful restrictions or oversight. Far too much slack is being cut for a police department that is currently being investigated by the Department of Justice following years of abusive behavior by its officers. Here's what the DOJ -- which announced this investigation last August -- will be digging into:

This investigation will assess all types of use of force by PhxPD officers, including deadly force. The investigation will also seek to determine whether PhxPD engages in retaliatory activity against people for conduct protected by the First Amendment; whether PhxPD engages in discriminatory policing; and whether PhxPD unlawfully seizes or disposes of the belongings of individuals experiencing homelessness. In addition, the investigation will assess the City and PhxPD’s systems and practices for responding to people with disabilities. The investigation will include a comprehensive review of PhxPD policies, training, supervision, and force investigations, as well as PhxPD’s systems of accountability, including misconduct complaint intake, investigation, review, disposition, and discipline.

Not exactly the sort of thing that inspires trust. And certainly not the sort of thing that warrants a free pass on surveillance policies until long after new surveillance tech has been deployed. The Phoenix PD may have recently been involved in an unexpected burst of violence (I mean, committed by someone else against police officers), but that hardly justifies a careless rush into an expansion of the department's surveillance capabilities.

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Censr: Alt-Right Twitter Alternative Gettr Bans Posts, Accounts Calling One Of Its Backers A Chinese Spy

from the no-bettr-than-the-alternatives dept

As so-called "conservatives" (a decently large number of them appearing to actually be white supremacists and bigots engaged in harassment) complained Big Tech was slanted against them, a host of new services arrived to meet the sudden demand. Gab, Gettr, etc. hit the marketplace of ideas, promising freedom from the "censorship" of "liberal" social media platforms, ignoring evidence that indicated "conservatives" weren't actually being "censored," but rather extremists calling themselves "conservatives" were being booted for multiple violations of site policies.

New services arrived, promising unabridged speech and a safe space for bigots, transphobes, disgruntled MAGAts, and everyone else who felt oppressed because they frequently went asshole on main. But as soon as these sites debuted, they began moderating all sorts of speech, starting with the clearly illegal and ramping things up to eject trolls and critics.

Moderation at scale remains impossible. And it's not much easier when you're dealing with thousands of users rather than millions or billions. Decisions need to be made. While it was clear to see the upstarts were unfamiliar with the moderation issues bigger platforms have struggled with for years, it was also clear to see the upstarts were more than happy to "censor" speech they didn't like, despite claiming to be the last bastions of online free speech.

"You're free to say whatever you want," platforms like Gab and Gettr proclaimed, muttering asterisks under their breath. You were indeed free to say what you wanted, but that would not prevent your content or your account being banned, deleted, etc.

Gettr has experienced the growing pains of platform moderation. This has happened despite its initial guarantees (*offer void pretty much everywhere) that it would only remove illegal content. Porn is not illegal, yet Gettr seemed to have a problem with all the porn being posted by users, perhaps because a majority of it involved animated animals.

It also had problems keeping trolls from impersonating the illustrious conservative figures it hoped to host exclusively. Aggressive trolling resulted in Gettr temporarily banning Roger Stone's actual account under the assumption it couldn't possibly be the real Roger Stone. It followed this up a few months later by banning the term "groyper" in an effort to limit the amount of white supremacist content it had to host. This too was somewhat of a failure. First, it told white supremacists their awful (but not illegal) speech wasn't welcome on the "free speech" alternative to Twitter. Then it became apparent the ban on "groyper" could be easily evaded by adding an o or two.

Now, there's even more "censorship" to be had at Gettr. One of its financial backers is Guo Wengui, a (former) billionaire and supposed anti-communist who recently filed for bankruptcy. There are reasons to believe Wengui isn't the most trustworthy of online associates. Wengui left China and has spent several years living in a New York City hotel overlooking Central Park. He has applied for asylum but has yet to be granted this request. Despite apparently distancing himself from China, he is still hounded by claims that he's only in the US to obtain information he can deliver to the Chinese government. These allegations were made by Strategic Vision US during a lawsuit over business dealings the company had with Wengui.

Strategic Vision said it concluded Mr. Guo was seeking information on Chinese nationals who may have been helping the U.S. government in national-security investigations or who were involved in other sensitive matters, according to the filing.

“Guo never intended to use the fruits of Strategic Vision’s research against the Chinese Communist Party,” the court filing said. “That is because Guo was not the dissident he claimed to be. Instead, Guo Wengui was, and is, a dissident-hunter, propagandist, and agent in the service of the People’s Republic of China and the Chinese Communist Party.”

Others have echoed this allegation. While it has yet to be proven true, Gettr is insulating its bankrupted backer from online criticism by deleting content that insinuates Wengui is a Chinese spy.

Journalists at the Daily Beast spent a few days running accounts on Gettr to see if the "free speech" site had a problem with criticizing Wengui. Unsurprisingly, the "we won't censor" platform engages in plenty of moderation when it comes to speech it doesn't like.

In an attempt to test the claims that even so much as mentioning the allegations of Guo being a “spy” would result in a permanent suspension from the platform, The Daily Beast created six separate Gettr accounts critical of Guo over the past two weeks.

These accounts posted variations on the question of whether the platform’s billionaire benefactor is a “Chinese spy.” For example, one of the accounts asked, “Does Chinese spy Miles Guo fund Gettr?” It was banned from the platform just 19 minutes after its creation. “Guo a spy??” another Daily Beast-operated account asked in response to a post from the businessman.

All six accounts were promptly banned, with 83 minutes being the longest span of time a single critical post remained live. They were banned without notice of wrongdoing or explanation for the permanent suspensions.

The hypocritical chickens have come home to roost. You're free to run your mouth on Gettr with copious exceptions. And one of those exceptions is the repeating allegations about someone who put some money into Gettr. Meanwhile, over on Twitter, users are free to insinuate the company's principals and backers are in bed with the Chinese government without running afoul of the terms of service.

Gettr will undoubtedly continue to pretend it's a free speech champion, even as it engages in actions that show it's really no more protective of speech than any other platform. It will continue to disappoint refugees from other, more heavily-trafficked social media platforms by engaging in (completely lawful!) moderation of speech it would rather not see on its platform. And while it may be more inviting of general harassment of people with alternative viewpoints (which is generally a lot less fun in Gettr's echo chamber) and election/COVID misinformation, it sees absolutely nothing wrong with silencing dissent and criticism. Its promises of a social media Wild West are as empty as its promises to give Twitter users a better place to express their "conservative" views.

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Former Employees Say Mossad Members Dropped By NSO Officers To Run Off-The-Books Phone Hacks

from the pretty-sure-NSO-has-already-liquidated-its-benefit-of-a-doubt-to-service-its-deb dept

Oh, NSO Group, is there anything you won't do? (And then clumsily deny later?). If I were the type to sigh about such things, I surely would. But that would indicate something between exasperation and surprise, which are emotions I don't actually feel when bringing you this latest revelation about the NSO's shady dealings.

The Mossad used NSO’s Pegasus spyware to hack cellphones unofficially under the agency’s previous director, Yossi Cohen, several NSO Group employees said.

The employees, who asked to remain anonymous because of their confidentiality agreements with the company, said that Mossad officials asked NSO on several occasions to hack certain phones for them. The employees didn’t know why these hacks were requested.

There's plenty that will shock no one about these allegations. First off, NSO Group has an extremely close relationship with the Israeli government. Top-level officials have paved the way for sales to countries like Saudi Arabia and the UAE, leveraging powerful spyware to obtain diplomatic concessions.

Second, NSO -- like other Israeli malware merchants -- recruits heavily from the Israeli government, approaching military members and analysts from intelligence agencies Shin Bet and the Mossad. Given this incestuous relationship, it's unsurprising visiting Mossad members would feel comfortable asking for a few off-the-books malware deployments.

It appears these alleged hacking attempts were requested to obscure the source of the hackings, eliminating any paper trail linking the Mossad to the information obtained as a result of these malware deployments. As the Haaretz article points out, the Mossad doesn't really need NSO's tools or expertise. It had the capability to compromise cellphones well before NSO brought tools like Pegasus to market.

A generous reading of these informal requests would be that the Mossad was having problems compromising a target and wanted to see if NSO had any recent exploits that could help. A more realistic reading is that these requests were meant to evade the Mossad's oversight.

Experts in the field of phone exploitation are still trying to verify these claims and ascertain whether or not NSO could actually do what was requested. Evidence of these allegations has yet to be discovered. But it's apparent NSO's hard rules about who could or couldn't be targeted were actually portable goal posts.

NSO has sold plenty of spyware to governments with the understanding it can't be used to target US numbers. But then it showed up in the United States with a version of Pegasus called "Phantom" that could be used to target US numbers. It pitched this to FBI (with live demonstrations using dummy phones purchased by the agency) but left empty-handed when DOJ counsel couldn't find some way to use this malware without violating the Constitution or (far more likely) keeping the particulars of the hacking tool from being discussed in open court.

NSO also claims malware cannot be deployed against Israeli numbers. This, too, has been shown to be false. So, there's really no reason to believe NSO when it claims everything about its malware products is so compartmentalized Mossad officials would not be able to waltz into the building and ask for unregulated malware deployments.

Indeed, the answer given by an NSO spokesperson is so ridiculous it may prompt a sudden burst of laughter from all but the most credulous readers.

When asked what prevents an executives from spying on, say, a competitor by using an in-house server, the NSO representative stressed that even if such a system existed, the legal risks posed by such a scenario would serve as a serious deterrent.

They added that the question is tantamount to asking what prevents workers in a munitions factory from stealing guns and using them illegally, or what stops a police officer from abusing their power.

On one hand, I can see this is NSO saying you have to trust your employees and that no policy is capable of eliminating all wrongdoing. On the other hand, it offers no meaningful denial about alleged wrongdoing. The answer is at least as meaningless as the question. It basically says NSO can't really prevent malfeasance, which is definitely not a direct denial of the allegations made in this report.

NSO Group is in an unenviable position: it can't disprove allegations without opening up scrutiny of its operations and its clients. On the other hand, it can't do that without risking existing contracts or future sales. But as much as I'd like to express sympathy, the company has spent years making itself unsympathetic by selling to human rights violators and blowing off legitimate criticism of its business model. It made itself millions by selling to authoritarians and getting super cozy with Israel's government. Now it has to pay the piper. And it seriously looks like it will be as bankrupt as its morals by the time this is all said and done.

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San Francisco Cops Are Running Rape Victims' DNA Through Criminal Databases Because What Even The Fuck

from the converting-rape-victims-to-grist-for-the-jail-mill dept

There are things people expect the government to do. And then there are the things the government actually does. The government assumes many people are comfortable with things it does that are technically legal, but certainly not how the average government user expects the system to behave.

Some of this can be seen in the Third Party Doctrine, which says people who knowingly share information with third parties also willingly share it with the government. But very few citizens are actually cool with this extended sharing, no matter what the Supreme Court-created doctrine says. This tension between people's actual expectations and the government's portrayal of the people's expectations is finally being addressed by the nation's top court. Recent rulings have shifted the balance back towards actual reasonable expectations of privacy, but there's still a whole lot of work to be done.

So, when rape victims report sexual assaults to law enforcement, they certainly don't expect their DNA samples will be run through crime databases to see if these victims of crimes have committed any crimes. But that's exactly what the San Francisco PD has been doing, according to this report from Megan Cassidy of the San Francisco Chronicle.

The San Francisco police crime lab has been entering sexual assault victims’ DNA profiles in a database used to identify suspects in crimes, District Attorney Chesa Boudin said Monday, an allegation that raises legal and ethical questions regarding the privacy rights of victims.

Boudin said his office was made aware of the purported practice last week, after a woman’s DNA collected years ago as part of a rape exam was used to link her to a recent property crime.

Shocking to the conscience, as the courts say? You'd better believe it. No one reporting a crime expects to be investigated for a different crime. And there are already enough logistical and psychological barriers standing between rape victims and justice. Knowing their rape kit might be processed in hopes of finding the accuser guilty of other crimes isn't going to encourage more victims to step forward.

On top of that, it might be illegal. California has pretty robust protections for crime victims. The state has a "Victims' Bill of Rights" that guarantees several things to those reporting crimes. Nothing explicitly forbids police from running victim DNA through crime lab databases, but this clause directly addresses the outcome of successful searches, which would result in publicly available records as police move forward with arresting and prosecuting the crime victim for crimes they allegedly committed.

To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.

Prosecuting a crime creates plenty of paperwork and arrest records are public records. A defendant could easily access records about their accuser -- records that wouldn't have existed without the assistance of this completely extraneous search.

Fortunately, this revelation has prompted an internal investigation by the SFPD. Unfortunately, an internal investigation is also the easiest way to bury incriminating documents, stiff-arm outsiders seeking information, stonewall requests from city officials for more information, and, most importantly, find some way to clear anyone involved of wrongdoing.

SFPD police chief Bill Scott at least has the presence of mind to comprehend the problem this practice poses.

Scott said, “We must never create disincentives for crime victims to cooperate with police, and if it’s true that DNA collected from a rape or sexual assault victim has been used by SFPD to identify and apprehend that person as a suspect in another crime, I’m committed to ending the practice.”

Good. And: whatever. Don't be "committed" to "ending the practice." Just fucking do it. You're the police chief. There's no reason you can't issue a mandate immediately forbidding running DNA searches on rape victims. I'm no expert on police protocol, but it seems like a memo beginning with "EFFECTIVE IMMEDIATELY" would end the practice, um, immediately and inform future violators of the potential consequences of their action. A wishy-washy "commitment" that's accompanied by no action tells the rank-and-file they're free to do whatever until the internal investigation is completed and its results handed over to city officials. Waiting until the facts are in (and thoroughly massaged) is a blank check for months or years of abuse.

And this sort of thing may not be an anomaly localized entirely within the SFPD. Other law enforcement agencies may be doing the same thing. The only difference is the SFPD was the first to successfully hit the middle of the Venn diagram containing rape victims and alleged criminals. Any other agency doing the same shady searching should probably knock it the fuck off. While it may seem like good police work to run searches on any DNA samples willingly handed to them, the optics -- if nothing else -- should be all the deterrent they need, especially when it comes to victims of sexual assault who are already treated with something approaching disdain by far too many law enforcement officers.

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Clearview Pitch Deck Says It's Aiming For A 100 Billion Image Database, Restarting Sales To The Private Sector

from the just-shamelessly-laying-it-all-out-there dept

Clearview AI -- the facial recognition tech company so sketchy other facial recognition tech companies don't want to be associated with it -- is about to get a whole lot sketchier. Its database, which supposedly contains 10 billion images scraped from the internet, continues to expand. And, despite being sued multiple times in the US and declared actually illegal abroad, the company has expansion plans that go far beyond the government agencies it once promised to limit its sales to.

A Clearview pitch deck obtained by the Washington Post contains information about the company's future plans, all of which are extremely concerning. First, there's the suggestion nothing is slowing Clearview's automated collection of facial images from the web.

The facial recognition company Clearview AI is telling investors it is on track to have 100 billion facial photos in its database within a year, enough to ensure “almost everyone in the world will be identifiable,” according to a financial presentation from December obtained by The Washington Post.

As the Washington Post's Drew Harwell points out, 100 billion images is 14 images for every person on earth. That's far more than any competitor can promise. (And for good reason. Clearview's web scraping has been declared illegal in other countries. It may also be illegal in a handful of US states. On top of that, it's a terms of service violation pretty much everywhere, which means its access to images may eventually be limited by platforms who identify and block Clearview's bots.)

As if it wasn't enough to brag about an completely involuntary, intermittently illegal amassing of facial images, Clearview wants to expand aggressively into the private sector -- something it promised not to do after being hit with multiple lawsuits and government investigations.

The company wants to expand beyond scanning faces for the police, saying in the presentation that it could monitor “gig economy” workers and is researching a number of new technologies that could identify someone based on how they walk, detect their location from a photo or scan their fingerprints from afar.

Clearview is looking for $50 million in funding to supercharge its collection process and expand its offerings beyond facial recognition. That one thing it suggests is more surveillance of freelancers, work-from-home employees, and already oft-abused "gig workers" is extremely troubling, since it would do little more than give abusive employers one more way to mistreat people they don't consider to be "real" employees.

Clearview also says its surveillance system compares favorably to ones run by the Chinese government… and not the right kind of "favorably."

[Clearview says] that its product is even more comprehensive than systems in use in China, because its “facial database” is connected to “public source metadata” and “social linkage” information.

Being more intrusive and evil than the Chinese government should not be a selling point. And yet, here we are, watching the company wooing investors with a "worse than China" sales pitch. Once again, Clearview has made it clear it has no conscience and no shame, further distancing it from competitors in the highly-controversial field who are unwilling to sink to its level of corporate depravity.

Clearview may be able to talk investors into parting with $50 million, but -- despite its grandiose, super-villainesque plans for the future -- it may not be able to show return on that investment. A sizable part of that may be spent just trying to keep Clearview from sinking under the weight of its voluminous legal bills.

Clearview is battling a wave of legal action in state and federal courts, including lawsuits in California, Illinois, New York, Vermont and Virginia. New Jersey’s attorney general has ordered police not to use it. In Sweden, authorities fined a local police agency for using it last year. The company is also facing a class-action suit in a Canadian federal court, government investigations in Canada, Sweden and the United Kingdom and complaints from privacy groups alleging data protection violations in France, Greece, Italy and the U.K.

As for its plan to violate its promise to not sell to commercial entities, CEO Hoan Ton-That offers two explanations for this reversal, one of which says it's not really a reversal.

Clearview, he told The Post, does not intend to “launch a consumer-grade version” of the facial-search engine now used by police, adding that company officials “have not decided” whether to sell the service to commercial buyers.

Considering the pitch being made, it's pretty clear company officials will decide to start selling to commercial buyers. That's exactly what's being pitched by Clearview -- something investors will expect to happen to ensure their investment pays off.

Here's the other… well, I don't know what to call this exactly. An admission Clearview will do whatever it can to make millions? That "principles" is definitely the wrong word to use?

In his statement to The Post, Ton-That said: “Our principles reflect the current uses of our technology. If those uses change, the principles will be updated, as needed.”

Good to know. Ton-That will adjust his company's morality parameters as needed. Anything Clearview has curtailed over the past two years has been the result of incessant negative press, pressure from legislators, and multiple adverse legal actions. Clearview has done none of this willingly. So, it's not surprising in the least it would renege on earlier promises as soon as it became fiscally possible to do so.

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Hertz Ordered To Tell Court How Many Thousands Of Renters It Falsely Accuses Of Theft Every Year

from the oh-well-it's-just-customers-whose-money-we-already-have dept

It all started with Hertz being less than helpful when a man was falsely accused of murder. Michigan resident Herbert Alford was arrested and convicted for a murder he didn't commit. He maintained his innocence, claiming he was at the airport in Lansing, Michigan during the time the murder occurred. And he could have proven it, too, if he had just been able to produce the receipt showing he had been renting a car at Hertz twenty minutes away from the crime scene.

It wasn't until Alford had spent five years in prison that Hertz got around to producing the receipt. Three of those years can be laid directly at Hertz's feet. The receipt was requested in 2015. Hertz handed it over in 2018. Alford sued.

That's not the only lawsuit Hertz is facing. It apparently also has a bad habit of accusing paying customers of theft, something that has resulted in drivers being accosted by armed officers and/or arrested and charged.

Nine months later, another lawsuit rolled in. A proposed class action suit -- covering more than 100 Hertz customers -- claimed the company acts carelessly and engages in supremely poor recordkeeping. The lawsuit, (then) representing 165 customers, contains details of several customers who have been pulled over, arrested, and/or jailed because Hertz's rental tracking system is buggier than its competitors'. Hertz takes pain to point out these incidents only represent a very small percentage of its renters. But that's essentially meaningless when this small error rate doesn't appear to occur at other car rental agencies.

This lawsuit is forcing Hertz to disclose exactly what this error rate is and how many renters it affects. It's a much larger number than the 165 customers the lawsuit started with last November.

In a ruling Wednesday, a federal judge in Delaware sided with the request from attorneys for 230 customers who say they were wrongly arrested.

The total still depends on whom you ask. Hertz said it reports to police 0.014% of its 25 million annual rental transactions - or 3,500 customers. Attorneys for the renters said they believe the number is closer to 8,000.

It may look like only a rounding error to Hertz, but each of these 3,500-8,000 incorrect reports represents a possible loss of liberty, if not a possible loss of life. Law enforcement officers treat auto thieves as dangerous criminals. Being falsely accused by a rental company's software doesn't alter the threat matrix until long after the guns have been drawn.

Sometimes the problem has a human component. If a rental agent does not see a vehicle they thought was returned, they may file a report. And when humans aren't involved, it's Hertz's computer system doing the dirty work.

Other times, [the attorney representing Hertz customers, France Malofiy] said, the confusion is caused by a customer swapping cars during their rental period or extending the time frame. If the credit or debit card charge fails to process correctly, he said Hertz's system generates a theft report.

Malofiy said the company does not update its police reports if a payment ultimately processes - leaving customers to flounder in the criminal justice system. In 2020, a spokesperson for Hertz told the Philadelphia Inquirer that a stolen-vehicle report "was valid when it was made" and that it was "up to law enforcement to decide what to do with the case."

And there's another data point to add to Hertz's perhaps inadvertent but very fucking real infliction of misery on thousands of renters every year. A man who has spent over $15,000 with Hertz since 2020 is currently sitting in jail thanks to yet another bogus Hertz theft alert.

All of this is at odds with Hertz's repeated claim it only issues stolen vehicle notices to law enforcement following "extensive investigations." If it did actually engage in thorough investigations of every generated theft report, it would not be currently facing a lawsuit from hundreds of drivers who've been arrested and jailed over bogus theft allegations. And the problem it claims isn't really a problem wouldn't still be getting people locked up for crimes they didn't commit.

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Massachusetts Court Says No Expectation Of Privacy In Social Media Posts Unwittingly Shared With An Undercover Cop

from the going-to-need-to-have-a-deeper-discussion-about-expectations dept

Can cops pretend to be real people on social media to catfish people into criminal charges? Social media services say no. Facebook in particular has stressed -- on more than one occasion -- that it's "real name" policy applies just as much to cops as it does to regular people.

Law enforcement believes terms of service don't apply to investigators and actively encourages officers to create fake accounts to go sniffing around for crime. That's where the Fourth Amendment comes into play. It's one thing to passively access public posts from public accounts. It's quite another when investigators decide the only way to obtain evidence to support search or arrest warrants involves "friending" someone whose posts aren't visible to the general public.

What's public is public and the third party doctrine definitely applies: users are aware their public posts are visible to anyone using the service. But those who use some privacy settings are asking courts whether it's ok for cops to engage in warrantless surveillance of their posts just because they made the mistake of allowing a fake account into their inner circle.

Accepting a friend request is an affirmative act. And that plays a big part in court decisions finding in favor of law enforcement agencies. Getting duped isn't necessarily a constitutional violation. And it's difficult to claim you've been unlawfully surveilled by fake accounts run by cops. You know, due diligence and all that. It apparently makes no difference to courts that cops violated platforms' terms of service or engaged in subterfuge to engage in fishing expeditions for culpatory evidence.

Massachusetts' top court has been asked to settle this. And the state justices seem somewhat skeptical that current law (including the state's constitution) allows for extended surveillance via fake social media accounts. No decision has been reached yet, but lower courts in the state are adding to case law, providing additional precedent that may influence the final decision from the state's Supreme Court.

This recent decision [PDF] by a Massachusetts Superior Court indicates the courts are willing to give cops leeway considering the ostensibly-public nature of social media use. But it doesn't give the Commonwealth quite as much leeway as it would like.

Here's how it started:

After accepting a "friend" request from the officer, the defendant published a video recording to his social media account that featured an individual seen from the chest down holding what appeared to be a firearm. The undercover officer made his own recording of the posting, which later was used in criminal proceedings against the defendant. A Superior Court judge denied the defendant's motion to suppress the recording as the fruit of an unconstitutional search, and the defendant appealed. We transferred the matter to this court on our own motion.

Here's how it's going:

Among other arguments, the defendant suggests that because his account on this particular social media platform was designated as "private," he had an objectively reasonable expectation of privacy in its contents. The Commonwealth contends that the act of posting any content to a social media account de facto eliminates any reasonable expectation of privacy in that content.

The competing arguments about expectation are (from the defendant) "some" and (from the Commonwealth) "none." It's not that simple, says the court.

Given the rapidly evolving role of social media in society, and the relative novelty of the technology at issue, we decline both the defendant's and the Commonwealth's requests that we adopt their proffered brightline rules.

In this case, Boston police officer Joseph Connolly created a fake Snapchat account and sent a friend request to a private account run by "Frio Fresh." Fresh accepted the friend request, allowing the officer access to all content posted. In May 2017, Officer Connolly saw a "story" posted by "Frio Fresh" that showed him carrying a silver revolver. Connolly recorded this and passed the information on to a BPD strike force after having observed (but not recorded) a second "story" showing "Frio Fresh" in a gym. The strike force began surveilling the gym and soon saw "Frio Fresh" wearing the same clothes observed in the first story (the one the officer was able to record with a second device). Strike force members pursued "Frio Fresh" and searched him, recovering the revolver seen in the Snapchat story.

The court recognizes the damage free-roaming surveillance of social media can do to constitutional rights, as well as people's generally accepted right to converse freely among friends.

Government surveillance of social media, for instance, implicates conversational and associational privacy because of the increasingly important role that social media plays in human connection and interaction in the Commonwealth and around the world. For many, social media is an indispensable feature of social life through which they develop and nourish deeply personal and meaningful relationships. For better or worse, the momentous joys, profound sorrows, and minutiae of everyday life that previously would have been discussed with friends in the privacy of each others' homes now generally are shared electronically using social media connections. Government surveillance of this activity therefore risks chilling the conversational and associational privacy rights that the Fourth Amendment and art. 14 seek to protect.

Despite this acknowledgment, the court rules against the defendant, in essence saying it was his own fault for not vetting his "friends" more thoroughly. The defendant seemed unclear as to Snapchat privacy settings and, in this case, willingly accepted a friend request from someone he didn't know who used a Snapchat-supplied image in his profile. In essence, the court is saying either you care about your privacy or you don't. And, in this case, the objective expectation of privacy is undercut by the subjective expectation of privacy this user created by being less than thorough in his vetting of friend requests.

Nonetheless, the defendant's privacy interest in this case was substantially diminished because, despite his asserted policy of restricting such access, he did not adequately "control[] access" to his Snapchat account. Rather, he appears to have permitted unknown individuals to gain access to his content. See id. For instance, Connolly was granted access to the defendant's content using a nondescript username that the defendant did not recognize and a default image that evidently was not Connolly's photograph. By accepting Connolly's friend request in those circumstances, the defendant demonstrated that he did not make "reasonable efforts to corroborate the claims of" those seeking access to his account.

[...]

Indeed, Connolly was able to view the defendant's stories precisely because the defendant gave him the necessary permissions to do so. That the defendant not only did not exercise control to exclude a user whose name he did not recognize, but also affirmatively gave Connolly the required permissions to view posted content, weighs against a conclusion that the defendant retained a reasonable expectation of privacy in his Snapchat stories.

The final conclusion is that this form of surveillance -- apparently without a warrant -- is acceptable because the surveilled user didn't take more steps to protect his posts from government surveillance. There's no discussion about the "reasonableness" of officers creating fake accounts to gain access to private posts without reasonable suspicion of criminal activity. Instead, the court merely states that "undercover police work" is "legitimate," and therefore not subjected to the same judicial rigor as the claims of someone who was duped into revealing the details of their life to an undercover cop.

The defendant may get another chance to appeal this decision if the state's Supreme Court decides creating fake accounts to trawl for criminal activity falls outside the boundaries of the Constitution. Until then, the only bright line is don't accept friend requests from people you don't know. But that's still problematic, considering there's no corresponding restriction on government activities, which may lead to officers impersonating people from targets' social circles to gain access to private posts. And when that happens, what recourse will defendants have? The court says it's on defendants to protect their privacy no matter how many lies law enforcement officers tell. That shifts too much power to the government and places the evidentiary burden solely on people who expect their online conversations to be free of government surveillance.

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LA Sheriff Threatens To 'Subject' City Council To 'Defamation Law' If They Won't Stop Calling His Deputies 'Gang Members'

from the pretty-much-the-legal-competence-you-would-expect-from-a-gang-leader dept

The man presiding over a law enforcement agency filled with gangs and cliques would prefer city officials stop referring to his employees as gang members.

Los Angeles County Sheriff Alex Villanueva has stated that there are no gangs within the Sheriff's Department, a claim he is obviously unable to back up with facts, because the facts make it clear that the LASD has been (and apparently still is) home to multiple gangs composed of deputies. There's even a Wikipedia page dedicated to the gangs infesting the Sheriff's Department.

If you distrust the info on the anyone-can-edit Wikipedia page, there's also this comprehensive database compiled by journalist Cerise Castle for Knock LA -- one that pulls info from public records and court documents to list suspected and verified members of LASD gangs.

Sheriff Villanueva continues to claim there are no gangs within his department. He has also instituted a policy to address the problem he says doesn't exist, forbidding deputies from "joining any group that commits misconduct." You'd think this policy would forbid any deputy from being employed by the Los Angeles Sheriff's Department, but I guess that's not how Villanueva reads his edict.

As for Villanueva's claim gangs and cliques don't exist within his department? Well, let's take a look at what his employees say:

Hundreds of Los Angeles County sheriff’s deputies said they have been recruited to join secretive, sometimes gang-like cliques that operate within department stations, according to the findings of a survey by independent researchers.

The anticipated study into the problematic fraternities — which L.A. County officials commissioned the Rand Corp. to conduct in 2019 — found 16% of the 1,608 deputies and supervisors who anonymously answered survey questions had been invited to join a clique, with some invitations having come in the last five years.

Well, all evidence to the contrary aside, Sheriff Villanueva is no longer going to stand idly by while city officials continue to make accurate statements about his problematic agency. He's issued a… well, not really a "cease and desist" letter [PDF] to the Los Angeles Board of Supervisors demanding (but not really) they stop saying his department has a gang problem. (h/t Adam Steinbaugh)

The letter is a fun read, even more so because Sheriff Villanueva definitely did not want his vaguely threatening fluff to be considered enjoyable for all the wrong reasons. Behold the semi-coherent wrath of a pissed off public servant.

As the elected Sheriff of Los Angeles County, I demand you and other elected leaders, as well as your appointees, immediately cease and desist from using the derogatory term “deputy gangs” when referring to members of the Los Angeles County Sheriff's Department (Department). This willful defamation of character has injured both individuals and the organization. It also serves no purpose other than to fuel hatred and increase the probability of assault and negative confrontations against our people.

So, it looks like a cease-and-desist (it even uses the words!), but the Sheriff has no power to make this demand. And Villanueva is hopefully using the phrase "defamation of character" in the colloquial, no-relation-to-the-legal-meaning sense of the words, because there's plenty of evidence out there that would make any accusations about LASD gangs "substantially true" and, therefore, not defamation at all. I know we (and by "we," I mostly mean courts) don't expect law enforcement officers to be legal experts, which is good, I guess, because they clearly fucking aren't.

The letter continues in the same vein: Villanueva bitching, mostly ineffectively, that it's unfair to his department when city officials say bad things about him and his employees. The next paragraph of the letter basically says the Sheriff's Department has all the heroes and the Board of Supervisors has all the hypocritical assholes.

My personnel routinely place themselves in harm's way while serving our community and ask nothing in return, other than a paycheck and maybe a little respect for the tough job they perform. Elected officials have no problem attending the funeral of a peace officer killed in the line of duty and often fight for the opportunity to speak at the podium, but the manner in which some have enthusiastically branded my personnel as "gang members” every opportunity they get is disgusting.

It is completely possible for officials to show their respect for an officer killed in the line of duty while still suspecting the law enforcement agency they work for is home to groups of officers who commit serious misconduct while engaging in gang-like behavior: violent acts, tattoos/clothing/insignias/etc., codes of silence, et al. You know, just like it's possible for officers of the law to recognize the War on Drugs harms more than it helps.

According to the sheriff's letter, the only reason board members might refer to deputies as gang members stems from a dismissed lawsuit brought by a former LASD deputy. The letter claims this is the only "evidence" anyone has ever had and that other research arriving at the same conclusions is completely undermined because a single source of information was declared to be untrustworthy by a court decision. That willfully ignores the years of data that shows deputies have formed cliques/gangs within the department. And while that may not be the sole contributing factor to large amounts of misconduct, it certainly hasn't helped neutralize the "us vs. them" mentality that is the root of so many casual abuses of rights.

From there it gets truly laughable, with Sheriff Villanueva again demonstrating his inability to understand speech-related laws before claiming that referring to LASD gangs is actually a form of bigotry.

Those who want to further undermine the perception of law enforcement use it as hate speech to promote their own agendas, such as defunding law enforcement and redirecting those funds to their own non-profit organizations, many of which are nothing more than sham corporations who operate with virtually zero accountability. Further use of the term will be evidence of your actual underlying intent, which appears to be a campaign to inflict harm upon the reputation of the Department and myself.

First off, calling someone a gang member or implying there are gangs in the LASD isn't hate speech. It's not even hate speech in the most ignorant sense of the word. Speech someone doesn't like is not hate speech, and that's all that's really happening here. The Sheriff and his deputies aren't a protected class, nor is being employed by the LASD an immutable characteristic that can trigger hate crime laws when derogatory language is used. The rest of this is no less stupid. "Further use… will be evidence of your actual underlying intent" to harm the Department. Whatever. This isn't legally binding and further use will be evidence of nothing.

So very stupid.

As the first fluently Spanish speaking Latino Sheriff in over a hundred years, who supervises a majority Latino workforce, I hope you can see the blatant racial inferences your conscious bias displays every time you choose to attack our Department with this derogatory term.

Um, people were saying the LASD was gang-infested long before you took office, Sheriff. That they're still saying it doesn't reflect on you or your multilingual skills. All it says is that the problem persists and it's now your problem, Sheriff.

Finally, the Sheriff appears to believe this somehow is a valid legal threat, despite the fact he's unlikely to prevail in a defamation lawsuit against city council members. Here's how the letter wraps up:

I openly challenge every elected leader, or their appointees, to provide facts to me and name individuals who they can prove are "gang members," as defined by California Penal Code Section 13670, and subject yourself to defamation laws if wrong.

LOL. Well, this shouldn't be too hard. Here's the relevant part of the California Code:

"Law enforcement gang" means a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to, matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of professional policing, including, but not limited to, excluding, harassing, or discriminating against any individual based on a protected category under federal or state antidiscrimination laws, engaging in or promoting conduct that violates the rights of other employees or members of the public, violating agency policy, the persistent practice of unlawful detention or use of excessive force in circumstances where it is known to be unjustified, falsifying police reports, fabricating or destroying evidence, targeting persons for enforcement based solely on protected characteristics of those persons, theft, unauthorized use of alcohol or drugs on duty, unlawful or unauthorized protection of other members from disciplinary actions, and retaliation against other officers who threaten or interfere with the activities of the group.

To sum up: the Los Angeles Sheriff's Department is a gang associated with an identifying symbol that engages in all of the listed behavior. Therefore, it should be declared illegal under state law and disbanded.

There are few things more enjoyable than sternly-worded letters that are 50% bluster, 50% unintentionally hilarious. Recipients of this letter should take the Sheriff up on his dare and let him know just how many bad apples he's overseeing. If nothing else, council members should send Villanueva a "Thanks for the laugh. I really needed that." in response to his declaration of keyboard war.

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Letter From High-Ranking FBI Lawyer Tells Prosecutors How To Avoid Court Scrutiny Of Firearms Analysis Junk Science

from the cheating-to-win-is-how-the-FBI-defines-'justice' dept

Law enforcement -- including the FBI -- like to claim they're heavily invested in science. The use of forensic "science" has been with us for years, but nowhere is it more sketchy than in law enforcement labs, where zero accountability rubs elbows with zero outside review of methods.

For years now, evidence historically claimed to be almost certain indications of guilt has been shown to be, in many cases, no better than a coin flip. Even DNA has its problems, especially when "expert" witnesses overstate their ability to exclude "innocent" DNA from cluttered crime scenes. The unwillingness of police to police themselves has been aggravated by the unwillingness of courts to question statements made by forensic techs -- ones that include things like claiming a person can be positively identified by the wrinkles and creases in their mass-produced clothing.

One judge -- Jed S. Rakoff -- did speak up. He excused himself from the DOJ's examination of law enforcement forensics once it became clear the Justice Department was more interested in finding supporting claims than dissenting voices. The DOJ's Deputy Attorney General informed Judge Rakoff that examination of pre-trial evidence procedures was beyond the "scope" of the Commission, resulting in Rakoff's resignation.

Blood pattern analysis, bite mark patterns, hair matching, etc. Nearly every supposedly inarguable form of forensic evidence has been determined to be junk science under closer examination. Even the FBI has admitted its forensic experts have routinely overstated the certainty of their findings during sworn testimony.

You would think all of this would add up to a major overhaul of forensic procedures and requirements that testing methods be subjected to peer review or blind testing or literally anything other than the zero scrutiny it has enjoyed for years. You'd be wrong. Instead, law enforcement officers and officials have been putting their energy into finding ways to keep their junk science from being rejected by courts.

A letter obtained by The Daily Beast shows the FBI would rather lie to courts than give up the use of yet another questionable forensic technique: bullet matching. Investigators claim bullet fragments contain unique markings from the barrel of the gun they're fired from and these can be used to uniquely identify the weapon used to fire the bullet. This, of course, assumes there are no similarities between mass-produced weapons and mass-produced bullets that might result in "matches" that say nothing more than a certain kind of gun fired a bullet designed to be fired from that model of gun.

This supposed form of evidence was called into question by the Obama Administration:

The most damning criticism of the field came in a 2016 report by the President’s Council of Advisers on Science and Technology, or PCAST, which found that “firearms analysis currently falls short of the criteria for foundational validity,” and that the studies the field’s practitioners often cite to support their work are poorly designed and “seriously underestimate the false positive rate.”

Following this report, some judges began to push back against this questionable evidence. Law enforcement is pushing back, led by none other than a high-ranking lawyer representing the FBI's forensic team.

Late last year, a forensic firearms analyst in Wisconsin emailed a remarkable document to more than 200 of her colleagues across the country. It was a handout from an online lecture given by Jim Agar, the assistant general counsel for the FBI Crime Lab.

[...]

In the two-page handout, Agar instructs firearms analysts on how to circumvent judges’ restrictions on unscientific testimony. He even suggests dialogue for prosecutors and analysts to recite if challenged. Most controversially, Agar advises analysts to tell judges that any effort to restrict their testimony to claims backed by scientific research is tantamount to asking them to commit perjury.

The letter [PDF] is quite the read. The FBI lawyer refuses to even consider the idea that bullet-matching forensics might be faulty. Instead, he instructs prosecutors and expert witnesses to work together to undermine any attempt the court (or defense lawyers) might make to depict these findings as questionable. It starts by implying courts are wrong to even question the expertise of forensic techs.

So far, no court has excluded the testimony of a firearms identification expert witness. The greater likelihood is that the court will attempt to compromise and craft some kind of language that weakens or neuters the expert’s identification opinion, substituting that terminology for the examiner’s identification opinion. Some courts have put in place so-called “limitations” to that testimony, which fundamentally alter the examiner’s opinion. However, these are not true limitations because they make material and substantive changes to the expert’s testimony. These are wholesale attempts to rewrite the firearm expert’s testimony by a layman with no experience in forensic science. This practice is not supported by either science or the law.

And it wraps up by suggesting forensic experts opt out of testifying completely rather than have their expertise and statements called into question:

If the court insists on limiting the firearms expert testimony to GRC or class characteristics, I probably would not call the examiner at all. Instead, I would put on a lay witness such as the case agent or an armorer for the police department to testify about the similar class characteristics of the weapon and the bullets and/or cartridge cases.

Does this sound like science to you? Anything backed by actual science would be able to survive evidentiary challenges. Since this isn't, it's not strong enough to even survive cursory examination. Any case relying solely on this junk science should be doomed. But by forcing the court to play by the FBI's terms (or, conversely, preventing the forensic expert from being questioned), the agency can still roll the dice on bypassing scrutiny of its means and methods.

The problem for the FBI now is that this letter is out there in the public domain. Judges paying attention to these issues will know exactly why the prosecution is asking leading questions of its forensic expert or why there's no forensic expert being asked to testify. This letter alone should cause most firearms analysis to be tossed immediately. It probably won't, but it should, unless the law enforcement agency can definitively show it uses methods not used by the FBI or has completely disregarded the suggestions of the FBI's counsel.

Real evidence should be able to survive scrutiny. It should be able to stand on its own without the prosecution playing "hide the witness." This letter is a tacit admission that firearms analysis is more guesswork than science. As such, it should be considered damning evidence of its own -- something that will force law enforcement experts to thoroughly and scientifically justify their assertions. And it should definitely encourage the DOJ to consider halting the use of firearms forensics until it can find a scientifically sound way of doing so. But, if history is any indicator, the DOJ would rather score cheap wins that use forensic evidence backed by sound science.

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Seattle Public Radio Station Manages To Partially Brick Area Mazdas Using Nothing More Than Some Image Files

from the may-we-offer-you-a-tote-bag-bearing-our-logo.null dept

Welp. This isn't going to help future fundraising drives. Not when a public radio station is negatively affecting, you know, driving.

Drivers of certain vehicles in Seattle and other parts of Western Washington are shouting at their car radios this week. Not because of any particular song or news item that’s being broadcast, but because an apparent technical glitch has caused the radios to be stuck on public radio station KUOW.

The impacted drivers appear to all be owners of Mazda vehicles from between 2014 and 2017. In some cases the in-car infotainment systems have stopped working altogether, derailing the ability to listen to the radio at all or use Bluetooth phone connections, GPS, the rear camera and more.

Behold the collision of OTA and IO(car)T. This unique situation -- limited solely to drivers in the Upper West -- presented a host of new problems and a lot of speculative answers. The radio station had absolutely no idea why this was happening. One local dealership told a customer it had something to do with 5G, which apparently meant affected Mazdas were now infected with a car-borne form of COVID, presumably necessitating plenty of expensive diagnostics and what have you.

Fortunately, the cars' manufacturer was actually able to pinpoint the cause of the malfunction -- which left some drivers staring at in-car systems stuck in a perpetual "loading…" loop. The answer arrived roughly a week after the problem presented itself. The problem -- discussed in this entertaining Reddit thread -- had nothing to do with network upgrades or an unexplained bug in Mazda software.

Instead, the public radio station had done something completely unexpected, sending affected vehicles into in-car entertainment purgatory. This is the statement Mazda gave to Geekwire.

“Between 1/24-1/31, a radio station in the Seattle area sent image files with no extension, which caused an issue on some 2014-2017 Mazda vehicles with older software,” the Mazda statement said. “Mazda North American Operations (MNAO) has distributed service alerts advising dealers of the issue.”

While it's somewhat troubling to note that Mazdas manufactured within the last eight years are running what Mazda considers to be outdated software, the good news is that it can be fixed. The bad news follows the good news: due to shipping constraints affecting goddamn everything, drivers affected by this oddity shouldn't expect to see a fix anytime soon. "Part delays" cited by Mazda could put permanent fixes months off.

On the other hand (good news!), even older models will be covered by these repairs, whether or not they're still under warranty. The company has instructed dealers to honor "goodwill requests" for free repairs of affected vehicles. Back to the bad news: the part that apparently needs to be replaced is the ominous-sounding "connectivity master unit," which indicates a whole lot of connectivity will be affected until dealers get the part in stock and start dealing with the backlog of semi-bricked Mazdas. Some users have reported in-car entertainment systems stuck in permanent loops, non-functioning GPS systems, and bricked back-up cameras.

This isn't going to go well for Mazda, considering it's the only manufacturer whose systems have been rendered useless by a misconfigured file distributed by a radio station. While this situation is certainly an outlier, there's likely a reason other in-car entertainment systems weren't similarly affected, which suggests a crucial shortcoming in the tech installed in those models -- one that could be exploited by entities far more nefarious than local public broadcasters.

44 Comments

Arizona Prosecutor Who Brought Bogus Gang Charges Against Protesters Files Ridiculous Defamation Suit Against Her Boss

from the going-to-be-hard-surmounting-the-'truth'-defense dept

Protests against police violence erupted around the country following the killing of an unarmed black man, George Floyd, by Minneapolis (MN) police officer Derek Chauvin. Chauvin ended Floyd's life by placing his knee on his neck for nearly nine minutes… and for more than three minutes after another officer informed Chauvin he could no longer detect Floyd's pulse.

The protests continued for months. Some were in solidarity. Others were provoked by recent acts of police violence. Protests in Phoenix, Arizona were nothing out of the ordinary. But the law enforcement response certainly was. It wasn't that the cops did anything that was unusual, per se. They did the normal stuff: they responded violently to protests against police violence, attacking protesters, stripping them of their belongings, and justifying these actions with overblown claims about fearing for their safety.

But it was prosecutors in Maricopa County, Arizona who took things to the next level. Apparently working in conjunction with a number of law enforcement entities, lead prosecutor April Sponsel, an attorney with the Maricopa County Attorney's Office, lied to a grand jury and abused local laws to add gang enhancements to the criminal charges brought against 15 arrested protesters. Sponsel, working with the Phoenix PD, claimed the use of black umbrellas (which protesters used to deflect tear gas canisters and "non-lethal" ammunition) and the acronym "ACAB" ["All Cops Are Bastards"] made the arrested protesters gang members.

This was serious shit. People arrested for rioting, failure to disperse, resisting arrest, or disorderly conduct were being saddled with (completely bullshit) gang charges that had the potential to add another 10 years to their sentences if convicted.

Prosecutor April Sponsel appeared to have been integral to the addition of gang crime sentence enhancements. The wife of a state trooper, Sponsel was the one who presented allegedly false information to a grand jury for the purpose of portraying the arrested protesters as a violent gang, rather than people coincidentally united by their desire to protest police violence. Shortly after the news broke about these bullshit prosecutions, Sponsel was placed on administrative leave while an outside investigation -- requested by Maricopa County prosecutor Allister Adel -- commenced.

Sponsel has been in the public eye for months. And she doesn't appear to like it. She may have enjoyed the backchannel support of local law enforcement as she found ways to stick it to people who were upset with the law enforcement status quo, but she apparently feels litigious about being called out over her gang enhancement bullshit.

April Sponsel, the lead prosecutor who handled the now-dismissed criminal case, filed a lawsuit against Maricopa County Attorney Allister Adel and the county itself in superior court on Friday seeking $10 million.

The Arizona Republic obtained a copy of the lawsuit on Tuesday, which asserts Adel defamed Sponsel in the media, invaded her privacy and caused the county to breach Sponsel’s employment contract.

Inexplicably, the Arizona Republic has decided not to share the obtained copy with readers. Instead, the copy of the lawsuit, embedded below, comes courtesy of Paul Weich, who is running for a position in the Arizona House. He also runs a blog covering area political activity.

Back to the matter at hand: Sponsel is claiming [PDF] the County Attorney defamed her by turning her into a scapegoat for prosecutions that resulted in significant political and public blowback. She claims Adel was fully aware of what was happening and never made any move to alter the course of the prosecution. She also claims she had full support of law enforcement when making the decision to treat the ACAB protesters as a gang. This is unsurprising. But it won't do much to help her win her lawsuit. All it really does is make involved law enforcement members look as petty and ignorant as Sponsel.

For instance:

The claim says she called Phoenix police Sgt. Doug McBride, a gang expert, who agreed the protesters should be classified as a gang on Oct. 20, 2020.

Of course a cop would want this to happen. It was, after all, a protest against law enforcement. If given the opportunity to make anti-police violence protesters suffer, law enforcement officers will opt to do so nearly every time. And it wasn't just this so-called "gang expert." It was every law enforcement agency involved in the arrests.

The lawsuit describes a meeting on Oct. 21, 2020 where “there were more than 30 law enforcement officers in the room, including a number of FBI and Phoenix Police Sergeants, Lieutenants, Commanders and Assistant Chiefs. No one in the meeting was opposed to the criminal street gang charges, and all agreed the charges were appropriate.”

Welcome to the herd and its mentality, April. Surely you were already aware of it. And you must also realize it isn't an adequate defense of your actions, nor does it further the defamation claims being brought against someone who apparently wasn't in the room during this discussion: County Attorney Allister Adel.

Making this battle even more uphill is the fact that an independent judicial review [PDF] of the arrests and prosecutions delivered by an Arizona judge last August contains plenty of evidence Sponsel pushed for gang charges and crafted her prosecution to bring the full pain of these sentence enhancements.

There's a lot in there that points to Sponsel being the person pushing for gang enhancements, over the protests of others. And there's evidence that she moved ahead with a grand jury presentation before a scheduled meeting with the County Attorney's office during which the disposition of these cases was supposed to be discussed.

On Friday October 23, 2020, according to his statement, [Maricopa County Attorney's Office Division Chief] Vince Goddard got a call from April Sponsel informing him there was going to be a press conference at the Phoenix Police Department and they wanted MCAO Allister Adel to attend. The chief of police was also asked and/or was scheduled to attend. He was told this was going to be the “big gang” case that she had talked about in September. Since he only heard about approximately 4 people, he was not sure what she was talking about. He again told her he did not like the “big case theory” where you have limited targets and you charge a large group people. He did not attend the press conference nor did he know if the County Attorney did. No information was provided if a press conference was held.

[...]

During the call with Vince Goddard, the subject of “warrants” was discussed, however, [Chief Deputy County Attorney] Ken Vick assumed he meant search warrants for houses and/or phone records. He was not aware nor was he told a Grand Jury presentation was scheduled for October 27th which would have been before the meeting on October 30th. He provided me the email exchange between Vince Goddard and himself which showed Ken Vick’s surprise and dismay that they had gone to the Grand Jury prior to the meeting.

This is going to make it very difficult to prove Adel was aware of the charges Sponsel was seeking and at least tacitly approved of them by not making any effort to stop her. So is this, from the report released last August:

Based upon the information given to the undersigned, the County Attorney Allister Adel was not briefed on the Grand Jury presentation in this case in the ten (10) days prior to the Grand Jury presentation. CA Adel never got a head's up that the case was going to a Grand Jury nor the charges April Sponsel would be seeking in a draft indictment. The County Attorney did not know a Grand Jury presentation was taking place on October 27th for arrests made on October 17th. The County Attorney was made aware on October 30th about the October 27th Grand Jury Indictment after the media made an inquiry with the office's communication director on Thursday, October 29th. The County Attorney did not attend the ‘incident review” on October 30th since she had been hospitalized on October 28th and she was not discharged until October 31st. This is collaborated by Ken Vick who was not told about the Grand Jury, nor the charges being sought and he did not know what was presented until the day before the October 30th “incident review”.

This lawsuit looks like the flailing of a suddenly toxic prosecutorial asset who thinks she was treated unfairly when the rest of Maricopa County Attorney's Office distanced itself from her and her overzealous prosecutions. The judicial investigation shows Sponsel went a bit rogue, bypassing most of the Attorney's Office to pursue her own vendetta. Unsurprisingly, when it blew up in her face, Allister Adel distanced herself from Sponsel and her actions.

So, this debacle will continue to make headlines for a few more years. No matter how this lawsuit goes, it's not going to rehabilitate Sponsel's image. Win or lose, it's already on the record she was the one that came up with the idea of saddling arrested protesters with gang charges. And she was the one who decided the interests of justice should take a backseat to her vindictive prosecutions.

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FOIA Lawsuit Featuring A DC Police Whistleblower Says PD Conspired To Screw Requesters It Didn't Like

from the affidaviting-the-quiet-part-loud dept

It's no secret government agencies love to screw with FOIA requesters. This is especially true when the responding agency doesn't care for the requester's attitude or thinks the release of information might lead to future negative reporting or embarrassment.

Most agencies, however, are careful not to set up any policies -- formal or informal -- that serve to deter certain requesters. And those that do have, so far, been lucky enough to not employ a whistleblower in their FOIA departments.

That's what happened to the Washington DC Metro Police Department, according to a recently filed lawsuit. Here's Elizabeth Nolan Brown with the details for Reason:

Did D.C. cops conspire to keep damning information from people and groups critical of them? That's what criminal defense lawyer Amy Phillips alleges in a new federal lawsuit, filed in the U.S. District Court for the District of Columbia.

The suit stems from a whistleblower's account of life inside the D.C. police department's Freedom of Information Act (FOIA) office. The whistleblower said she was instructed to flag for higher-ups any records requests coming from certain individuals and groups, as well as requests regarding certain sensitive topics. They would then strategize about ways to discourage, delay, or deny these requests.

Those targeted by this informal policy included reporters, activists, and members of local advisory groups. This is from former DC Metro PD FOIA officer Vendette T. Parker's sworn affidavit, which is attached to the defense lawyer's lawsuit [PDF]:

Some examples are Eric Flack, WUSA9 reporter; Marina Marraco, Fox5 reporter; the ACLU; Denise Krepp ANC [Advisory Neighborhood Commission] Commissioner; Lorenzo Greene, ANC Commissioner; Benjamin Douglass, Anti-Defamation League (ADL); Emily Barth, Public Defender's Office; and Amy Phillips, Public Defender's Office; among others.

This list was compiled by Parker and Metro PD Chief Operating Officer, LeeAnn Turner. As head of the FOIA office, Parker was expected to stonewall requests from requesters on the list as well as shield the department and its Chief of Police from embarrassment.

Although Ms. Turner did not name any specific individual in this meeting, she made it clear that I should bring to her attention any request coming from a person he has previously published a negative media article about Chief Newsham or MPD, if he uses the records for litigation if he is outspoken in City Council or community meetings in a negative way toward Chief Newsham or MPD, if the requester is the subject of a high profile incident, or if he repeatedly requests records that have the potential to be detrimental to Chief Newsham or MPD, regardless is of whether or not what is currently being requested is potentially detrimental.

The list of documents that might trigger this informal policy (no matter who requested them) were requests targeting the PD's controversial Gun Recovery Unit, personnel records, emails involving the police chief, use of force records, stop and frisk records, and anything involving "recent negative high profile events."

The list of requests and requesters was forwarded to Turner and the police chief and a weekly meeting was held to discuss how best to thwart requests that satisfied the unwritten criteria established by the PD's Chief Operating Officer.

Amy Philips first suspected something might be up after attending an Adverse Action Hearing for Officer Sean Lojocano, who was accused of conducting "unnecessarily invasive genital searches" of people he stopped. Despite this meeting being attended by other members of the public (including an ACLU rep and a local journalist), the Metro PD rejected Philips' request for recordings and transcripts of the hearing. And it did so in record time.

Less than ninety minutes after Phillips submitted her Lojocano request through the District’s online FOIA portal, she received a response denying her request in full. The response came from Latrina Crumlin, who identified herself as a “Staff Assistant, FOIA” for MPD. The response read “A release of such records would constitute as a [sic] clearly unwarranted invasion of personal privacy and is exempt from disclosure pursuant to D.C. Official Code § 2-534(a)(2) and (a)(3)(C).”  

This was wrong, and it was strange. Usually, MPD takes weeks or months to provide any substantive response to FOIA requests. And Crumlin’s position appeared to be that the records of a public hearing—one that Phillips and many others attended—were categorically excludable as invasions of someone’s privacy, which does not make any sense.

As Philips' lawsuit points out, a policy like this -- whether official or unofficial -- violates her First Amendment right to access this information. She's seeking an injunction forbidding the PD from engaging in future viewpoint and content based discrimination when handling FOIA requests.

While it's almost certain other public agencies are engaging in similar practices to thwart pesky requesters or delay public embarrassment for as long as possible, this is the first time a FOIA litigant has secured a sworn affidavit from someone who participated in FOIA keep away at the behest of their supervisors. That's going to go a long way in litigation like this and with any luck, the Metro PD won't be able to jerk people around in the future just because it doesn't like them or their requests.

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California Sheriff, US DOJ Sued For Seizures Of Cash Generated By Legal Pot Businesses

from the putting-the-'joint'-back-in-'joint-task-force' dept

A lawsuit filed against both California and federal law enforcement agencies claims the San Bernardino County Sheriff's Department is exploiting the disagreement between state and federal marijuana laws to stop and seize cash being transported from legal marijuana dispensaries.

Marijuana is legal in many forms in multiple states. Unfortunately, the federal government has yet to legalize marijuana in any form, putting purveyors of legal products at risk of being prosecuted by the federal government despite their adherence to local laws.

Empyreal -- a cash transport business -- has experienced the SBSD's abuse firsthand on multiple occasions.

The driver of an armored car carrying $712,000 in cash from licensed marijuana dispensaries was heading into Barstow on a Mojave Desert freeway in November when San Bernardino County sheriff’s deputies pulled him over. They interrogated him, seized the money and turned it over to the FBI.

A few weeks later, deputies stopped the same driver in Rancho Cucamonga, took an additional $350,000 belonging to legal pot stores and gave that cash to the FBI too.

The transport company says it complies with all federal laws pertaining to handling of cash generated by legal pot businesses -- something that is supposed to allow the cash to travel unmolested to banks willing to handle this cash. The banks also have to perform their own due diligence, which encompasses those entrusted with moving the cash from businesses to banks and vice versa.

Despite everything being on the apparent up-and-up, this particular sheriff thinks his department is doing the right thing by targeting vehicles officers can safely assume are full of cash and walking away with that cash while mumbling things about drug trafficking and money laundering. The department also sends out drug dogs to guarantee deputies have "permission" to perform warrantless searches, since it's highly likely proceeds from marijuana businesses will smell like marijuana.

(On top of that, a large percentage of cash in circulation contains trace amounts of drugs, which would logically be detected by drug dogs. This should be seen as evidence of nothing more than a bill being in circulation, but cops pretend it means the cash could only have come from drug sales. It's all extremely -- and conveniently -- stupid.)

San Bernardino Sheriff Shannon Dicus (one of the defendants in Empyreal's lawsuit) and his department are some of the main beneficiaries of cash seized during operations like these -- ones that involve federal agents to sidestep local marijuana legalization laws and ensure the retention of a majority of every dollar seized. That's because his department heads the Inland Regional Narcotics Enforcement Team (IRNET). IRNET's relationship to federally adopted forfeitures is extremely profitable.

Through the U.S. Department of Justice’s equitable sharing program, the Sheriff’s Department’s participation in IRNET enables it to receive up to 80% of the proceeds recovered from civil forfeitures, he said.

IRNET has obtained nearly $18 million in equitable sharing funds since 2016, according to the Department of Justice.

If these seizures were made without federal adoption, they'd be illegal. But with the FBI's help, the Sheriff's Department can continue to make millions a year by taking legally earned cash from cash transport trucks.

All this adds up to a suin', one being handled by the Institute of Justice, which has been instrumental in securing dozens of returns of property illegally seized by law enforcement. The lawsuit [PDF] notes that the San Bernardino sheriff isn't alone in his targeting of Empyreal cash trucks. The same Dickinson County (KS) deputy, Kalen Robinson, stopped Empyreal drivers twice and seized over $165,000 during the second stop, turning it over to the DEA.

San Bernardino Sheriff Dicus hasn't offered much in support of these stops and seizures -- none of which were accompanied by citations or criminal charges. What he has offered is something that exists solely within the boundaries of pure speculation.

In response to the lawsuit over the armored cars, Dicus released a statement claiming that more than 80% of the marijuana sold in licensed dispensaries is grown illegally, but he provided no evidence that any of the eight businesses whose cash deputies seized from Empyreal’s vans were selling black-market cannabis.

“My deputies are professional, and I am confident we will prevail,” Dicus said.

No one's doing any due diligence here, least of all Sheriff Dicus. His department isn't researching dispensaries and targeting them with searches and criminal charges. Instead, his department has decided to do the easiest and most profitable thing: allow dispensaries to sell allegedly illegally grown marijuana and then take their cash once it's conveniently located in the back of a transport van. This shows the department is far less interested in disrupting illegal drug sales and far more interested in profiting from illegal behavior it seemingly has no desire to stop.

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Alabama Speed Trap Town's PD Called Out On Its Bullshit By Nearby Sheriff, Limps On Without Most Of Its Officers

from the please-let-the-door-hit-you-in-the-ass-repeatedly dept

No one cuts cops more slack than other cops. You really have to be an impressive kind of awful to lose the support of your Thin Blue Line brothers and sisters.

But the police department in Brookside, Alabama has managed to do exactly that. For years, no one had heard of or cared that the town of Brookside even existed… and that possibly includes a percentage of the town's 1,253 inhabitants.

That all changed when a new sheriff rolled into town, so to speak. It wasn't a sheriff (because the county already had one) but a new police chief, Mike Jones. Where town leaders may have seen nothing more than a vacancy in its two-employee department, Jones saw opportunity. He soon turned Brookside into Nottingham, Alabama, patrolling nearby highways to hit drivers passing by the small town with multiple fines and fees. Officers also engaged in unnecessary towing of vehicles over minor traffic violations, and apparently made up laws to justify stops, seizures, and traffic citations.

Chief Jones was hired in 2018. From 2018 to 2020, fines and fees from traffic citations rose 600%. This windfall went directly to expanding the revenue stream. Chief Jones hired seven more officers, obtained two drug dogs, one MRAP, and the disdain of nearby law enforcement officials. He also incurred the wrath of an untold number of Alabama residents, who were soon making trips to Brookside to attend once-a-month traffic court sessions -- sessions that resulted in Brookside officers being forced to route traffic and oversee parking for this monthly influx of out-of-towners.

The county sheriff had already received several complaints about the traffic enforcement extortion being performed by Brookside officers, who often operated in unmarked vehicles while wearing uniforms that gave no indication which law enforcement agency employed them. A nearby district attorney called the town a "black hole" where drivers are subjected to rights violations, harassment, and bogus citations.

National exposure caused this real life Boss Hogg to resign his position as police chief. And the Brookside PD is experiencing something most law enforcement agencies never do: criticism from their supposed brothers in arms.

As a local lawmaker held a second town hall to focus on policing in the tiny town of Brookside, the stories kept coming. Many told about being stranded on the side of the road. People spoke of stolen money, seized guns, towed cars and lost jobs. People shared stories of getting 11 or even 12 tickets in one traffic stop.

And the sheriff of Jefferson County, Mark Pettway, encouraged them to fight the charges in court.

“If you have a ticket and have not gone to court yet,” he told the crowd, “when you do go to court, plead not guilty.”

Again, he said, “When you go to court, plead not guilty.”

When other cops are telling civilians how to beat the rap, you know you've fucked up. The fact that "multiple state agencies" are now investigating the department is another clue.

It's not just cars Brookside cops were after. They'd take any property they could get their hands on.

One man, Jordan Cole, said Brookside was investigating his brother for car theft but ended up seizing his family’s home and arresting his elderly and disabled mother on a charge of hindering prosecution.

“They made us leave and we were told that if we step foot back on the property, we would be arrested,” Cole said. He said his family had to find somewhere else to live and ended up renting a run-down mobile home.

So far, the small town's governance has yet to turn on the PD. In fact, the town's officials have refused to step down, offering their far-from-tacit approval of the abuses that went on under Chief Jones. Not that their endorsement of the PD matters at this point. The exposure of the PD as a group of thieves and thugs wandering nearby roads has been enough to result in the resignation of most of the police force. Brookside will have to adjust to being just another insignificant dot on the road map, rather than an insatiable predator willing to convert residents of other towns into ATMs the PD's band of thieves could hit again and again.

17 Comments

Nonprofit Forced To Delete Thousands Of Court Documents Obtained With A Fee Waiver Because PACER Is Greedy And Stupid

from the if-you-can't-pay-us-twice-for-these-documents,-then-I-guess-you-can't-ha dept

If you're not familiar with the Free Law Project, you should be. It's a nonprofit that does everything it can to make access to court documents free. It all starts with the RECAP extension, which automatically saves copies of documents downloaded from PACER to CourtListener.com, giving people without PACER accounts and/or the funds (or patience!) to utilize the federal government's broken-down, overpriced system, access to federal court documents.

Unfortunately, the Free Law Project still has to play by PACER's exceedingly stupid rules, even when it's doing nothing more than automatically archiving documents accessed by PACER users with the RECAP extension enabled. The US Courts system continues to believe it needs to generate a profit, even when it does nothing more with millions in PACER fees than purchase new perks for the people who work for the court system or have the ability to actually visit federal courthouses.

That's not what PACER fees are supposed to be used for. They're supposed to be used to modernize the PACER system and eliminate barriers to online access -- the chief among those being fees. Instead, fees have increased while the front end of PACER -- along with its completely broken search function -- have mostly remained unchanged.

The US Courts PACER program has always been extremely mercenary, even when it's engaging in acts of temporary benevolence. Users can sometimes obtain fee waivers to lower the cost of accessing multiple documents. In this case, a researcher obtained a waiver and accessed thousands of court records. Great news for the beneficiaries of the Free Law Project's CourtListener site… or so you would think.

But that's not how this works, as the Free Law Project recently tweeted. [Threadreader version.] It had to delete thousands of court records this researcher legally obtained with a fee waiver because the federal court system says users with waivers can't do what they want with the data and documents they've obtained.

We scraped these records for a researcher using a fee waiver they got. According to the fee schedule, any content that you get while using such a waiver cannot be shared. This is the extremely absurd official policy:

If you can't read/see the embedded picture, it contains a portion of the restrictions on users who secure fee exemptions:

- the user receiving the exemption must agree to not sell the data obtained as a result and must not transfer any data obtained as the result of a fee exemption, unless expressly authorized by the court…

This means the Free Law Project downloads the content as instructed by the RECAP extension. Then it has to delete the content to comply with the user's fee exemption. Why does it have to do this? Because the federal court system says so. And why does the court system say users with fee exemptions can't share the documents with others? Well, I'm sure court reps would say several things in response to this question, but none would be as true as the answer once given to the Free Law Project:

Once, in a fit of honesty, a high-level member of the AO [Administrative Office] explained that the reason for this was because otherwise it would undermine the fee schedule.🤯

In other words, if researchers could share their raw data, the AO wouldn't make as much money off court data

PACER is here to provide access to court documents. But not without making some money first. Hence the numerous restrictions on seldom-granted fee waivers. As the Free Law Project points out, this is not how PACER is supposed to work.

Obviously, this contravenes the goal of PACER. It also makes reproducing research largely impossible.  

The documents were obtained legally. But the court system says it's against the rules for another party to continue to retain them. And now documents that could have increased the public's understanding of the court system have been vaporized because the government doesn't want the PACER money train even slightly derailed. And stupidity like this is only going to continue until PACER is deprived of its revenue stream with legislation making PACER access free.

19 Comments

Some Senators Are Freaking Out Because The White House Is Pitching Some Extremely Minor Police Reforms

from the fainting-couches-all-around! dept

Some senators are getting all angried up about proposed police reforms President Biden possibly might deliver as an executive order. Reporting earlier this month indicated Biden had something planned, but no one involved in breaking the news appeared to have any details.

President Joe Biden plans to sign executive actions on police reform as early as this month, three people familiar with the plans said, as his administration seeks to unilaterally jump-start an issue that is a top priority for a key constituency.

The executive actions would follow Biden’s uphill battle to advance voting rights legislation, and they could coincide with a similar effort by some Democratic lawmakers to revive the George Floyd Justice in Policing Act, which stalled on Capitol Hill after attempts to craft a bipartisan measure failed.

NBC spoke to two people "familiar with the discussions" and got nothing useful at all out of them.

The executive actions on policing are still being finalized, the sources said. They did not know how the actions would differ from steps the Justice Department took last year when it imposed new restrictions on chokeholds and “no-knock” warrants.

Really powerful reporting. Apparently a few senators have seen a draft of the proposed executive order and they've decided to peremptorily respond to something that may never happen or may be altered extensively before its issued. This is from Senator Chuck Grassley's site, which implies something horrible is coming and that he and other "Senate Republicans" aren't having any of it.

A group of Senate Republicans, led by Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa), today are expressing serious concern about a proposed executive order (EO) by the Biden Administration that would limit law enforcement access to nonlethal and lifesaving resources, and impose greater restrictions on federal grant dollars. The planned executive order comes amid a national surge in violent crime while the “defund the police” movement has eroded morale and curbed recruiting in police departments across the country.

Fortunately, the letter [PDF] these senators sent to the White House actually has a few details in it. Once again, we have no idea if, when, or in what state the executive order will arrive, but this is apparently what has been seen in the draft version.

Specifically, according to screenshots of a draft of such EO, the Administration would unilaterally impose the following new policies on law enforcement: restrictions to the 1033 program, expanding pattern and practice authority, planned expansion of 18 U.S.C § 242 prosecutions, and conditioning state and local law enforcement grants.

Leaked screenshots of the alleged EO can (barely) be seen here. But what's contained in these accusations (I guess??) doesn't indicate a wholesale disruption of law enforcement enterprise. In fact, most of this has already been done before, issued by presidents and rescinded by their successors or vice versa.

1033 restrictions have been tried before. They've never lasted. And those put in place are usually far from effective in preventing local law enforcement agencies from acquiring military gear. President Obama tried it about a human lifetime ago and that effort didn't even survive his term as Commander in Chief.

"Expanding pattern and practice authority" most likely means removing the handcuffs placed on federal investigations of local law enforcement agencies by President Trump. It's not an expansion. It's just a return to form for the DOJ, which has engaged in "pattern and practice" investigations for decades.

The same can be said for "expansion" of 18 USC 242 prosecutions. These "deprivation of rights under color of law" prosecutions have long been part of the DOJ's daily business. It's only in recent years -- under a very pro-law enforcement president -- that they've been dialed back. If anything, this will just be a regression to the mean, rather than the creation of some souped-up prosecutorial machine that goes after bad cops.

This all dovetails into some cherry-picked stats stripped of context and served up as a justification for allowing cops to do whatever they want and acquire whatever they want.

Such potential restrictions on the 1033 program would come at a time when law enforcement needs our support more than ever. We have spoken about the unprecedented 30-percent spike in murders that began in the summer of 2020. It continues to this day. In 2021, police officers recorded the highest number of on-duty deaths on record. According to the Fraternal Order of Police, 63 officers were murdered and 346 officers were shot. They also reported ambush-style attacks on law enforcement officers spiked 115 percent in 2021. Police officers will face a grim reality if this EO is enacted and their lifesaving equipment is restricted from them. Violent crime will continue to skyrocket when police officers are unable to stop these crimes and save innocent lives. We cannot understand why any elected official would want to stop law enforcement from safely doing their jobs other than to be able to tell their base of voters they are defunding the police.

There is no effort to defund local law enforcement agencies contained in this executive order. First of all, the federal government simply cannot do that. Funding is a completely local function. It can deny access to federal grants, but this is something that almost never happens. Grants earmarked for law enforcement agencies receive almost zero oversight, much like the 1033 program the Biden Administration may or may not alter. Grassley also appears to have forgotten the previous president threatened to withhold federal grants all the time if cities or their law enforcement agencies angered him.

A spike is not a trend and the reason more officers are dying than ever is because of COVID. And it will continue to get worse for officers since so many of them are involved in fighting vaccine mandates and other COVID-related safety measures. And if agencies are having trouble re-staffing, they might want to take long looks in the mirror to understand why that might be. Spending decades destroying trust and community relationships tends to cause recruitment problems. Playing the eternal victim while simultaneously rejecting common sense safety measures during a pandemic isn't going to win the hearts and minds of anyone worth hiring.

The letter wraps up with this incredible paragraph:

These hard-left policies are extremely ill-advised, dangerous to Americans, and would only further demoralize law enforcement. Along with the alarming rise in violence against officers, police departments continue to report low morale among officers that is directly related to the dangerous “defund the police” rhetoric. This is careless rhetoric that has lasting consequences to the men and women who risk their lives every day to keep our communities safe, and the EO’s policies are simply an extension of that rhetoric.

These are far from "hard-left" policies. The DOJ has engaged in plenty of what's being proposed while working for right-wing administrations. There's nothing about this that's dangerous to Americans. The only threat it possibly poses is to bad cops. Those are the people these senators are defending by calling any small change to current policies (or reversions to old policies) permanently damaging to law enforcement. To be sure, law enforcement is in mid-crisis. But it's not going to emerge from that crisis using a blend of hands-off oversight and zero accountability. These senators are just shilling for the worst of the worst while pretending it's nothing more than a left-wing power grab designed to grab the attention of Biden's voter base.

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Israeli Police (Mostly) Cleared Of NSO-Related Wrongdoing While NSO Issues Legal Threats To Calcalist Over Cover-Up Claims

from the certainly-not-the-last-we'll-be-hearing-about-all-of-this dept

This won't change much for NSO Group, but at least it helps the Israeli Police rehab its image a bit. An "initial investigation" has (mostly) cleared the Israeli police of wrongdoing in one of the latest surveillance scandals tied to NSO's malware.

The Israeli broadcaster Channel 12 said a police investigation ordered by Israel’s public security minister, Omer Barlev, had concluded that of 26 individuals named in recent reports as having been targeted using NSO Group’s Pegasus software, three named individuals were targeted, with the police successfully hacking only one of the phones.

The investigation apparently is still ongoing, so these early positive results might be undone after further examination. Fortunately, the Israeli police aren't investigating themselves. Instead, the federal police agency is being scrutinized by officers from Israeli intelligence agencies Shin Bet and Mossad.

This doesn't mean Israeli police haven't targeted Israeli citizens with NSO hacking tools. It just means that what's been discovered so far has been lawful, contradicting earlier reports that suggested targets were subjected to attempted (or successful) hacking without the proper paperwork in hand.

Of course, earlier reports also said the police were able to do this by exploiting a "loophole" in the law. And that means the spirit of the law can be violated without anyone engaging in anything that's actually illegal. This is how state-ordained surveillance programs work: by playing right up to the edges of what the law permits.

But that doesn't mean nothing illegal happened.

The only possible illegal hacking was regarding Shlomo Filber, a former director-general of the Communications Ministry and longtime confidant of Netanyahu, according to Hebrew-language television reports.

The Israeli police are apparently hoping that this illegal hacking will be excused because law enforcement never accessed or made use of the data and communications obtained with the use of phone hacking tools. But the police have admitted investigators went beyond what was authorized in the court order.

Police brass told justice officials that the data was downloaded accidentally and was never given to investigators in the Netanyahu cases.

This possibly illegal hacking was discovered during the course of another investigation entirely unrelated to the current investigation about police use of NSO phone exploits.

Filber’s phone was reportedly accessed in 2017, and had the entirety of its content drained using unnamed spyware. The discovery that Filber’s phone had been targeted was made in the course of an unrelated investigation, ordered by the attorney general, into alleged police abuse of the controversial NSO Group’s Pegasus software, though a different technology was used to access Filber’s phone.

NSO Group, for its part, has decided it's time to start suing. Calcalist -- which has broken news of NSO-related hacking several times -- released a list of alleged Israeli targets of NSO malware. This report -- along with a follow-up by Calcalist -- has triggered legal threats from NSO.

Calcalist on Monday published specific, but unsourced, allegations of hacking against 26 targets by police. The bombshell report said NSO Group’s Pegasus program was deployed against senior government officials, mayors, activist leaders, journalists and former prime minister Benjamin Netanyahu’s family members and advisers, all without judicial authority or oversight.

To be clear, NSO doesn't deny the listed names were targets of NSO malware. Instead, it is taking issue with Calcalist's claim that NSO provided customers with malware deployment tools that could be configured to prevent the creation of data logs during deployment and use, thus preventing the creation of digital footprints that could indicate the use of NSO's Pegasus spyware. NSO denied this allegation in a letter threatening legal action, stating that it never provided customers with systems that offered plausible deniability as undocumented feature.

In response to Thursday’s report, NSO wrote to Calcalist that the relevant systems “include full documentation of the actions performed in them,” and that the records are kept for legal purposes and to prevent tampering with evidence. It further denied the newspaper report’s claim that it had sold client software that does not include the documentation feature or only in a limited way.

We'll see what becomes of this legal threat. NSO is already defending itself against two lawsuits brought by US tech companies. It may not be wise to press forward with one of its own and roll the dice on discovery for a third time. Given the nature of NSO and the those it has chosen to sell to, it's not all that unreasonable to believe it may have offered cover-up solutions to certain customers at a comfortable markup.

4 Comments

ID.me Doesn't Have Enough Humans To Backstop Its AI, Allowed A Guy In A Bad Wig To Illegally Obtain $900,000 In Benefits

from the congrats-on-the-windfall,-McLovin dept

ID.me -- the facial recognition company that has managed to snag several lucrative contracts -- has gotten the brushback from perhaps its most lucrative government partner, the IRS. ID.me promised government agencies better control over distributions of unemployment benefits and other payments to the public, citing its own (unexamined) prowess at recognizing faces as well as an astounding claim that governments have been duped out of $400 billion in unemployment benefits by fraudsters -- a claim it has yet to back up with actual evidence.

That the pitch worked so well isn't a surprise. After all, governments hate to give money to taxpayers and most governments have deficits they'd like to trim down. Anyone promising millions in savings is bound to be given a second, third, or fourth chance even after it's become obvious claims about fraud are, at best, dubious, and that the company can't really do the job it promised to do: eliminate fraud.

Misspending tax dollars is a national pastime. The bizarre embrace of ID.me is no exception. The IRS may have walked back its reliance on ID.me for identity verification, but problems persist. States are still relying on ID.me, even if the feds aren't. And ID.me doesn't seem to have the personnel on hand to backstop questionable calls by its facial recognition tech, as Corin Faife reports for The Verge.

Internal documents and former ID.me employees say the company was beset by disorganization and staffing shortages throughout 2021, as shortcomings in the automated systems created tensions among the company’s workforce, particularly the human verification workers who have to step in when the algorithms fail. Even now, the company plays a central role in how claimants access benefits across the United States — working on behalf of 27 state-level uninsurance employment programs to verify applicants — and the underlying issues are far from settled.

Current and former employees who spoke to The Verge paint a picture of a company described as being in “permanent crisis mode,” changing policies rapidly to keep up with fluctuating demand for its services and fight a slew of negative press. In particular, they say a lack of human review capacity has been a chokepoint for the company, leading to stress, pressure, and a failure to meet quality standards.

This verifies accusations raised earlier by other critics of ID.me -- critics who were forced to become users of faulty systems due to several states making ID.me the barrier between claimants and their benefits. Those locked out of their benefits complained the company offered few options for review of their supplied info. ID.me claimed it was performing reviews on the regular, but social media comments suggested this simply wasn't true. Actual humans were nearly impossible to reach. This report confirms what was suspected: the company simply did not have enough humans employed to deal with the problems generated by its verification processes.

Claimants were given no option but to put all their biometric eggs into one malicious hacker-tempting basket owned and operated by ID.me. When glitches separated people from their payments, the company's CEO blamed users for not being better at using an entirely new verification system. When these problems persisted, the CEO claimed most false negatives were actually the company thwarting fraudsters.

But ID.me can be duped. And it can be duped fairly easily it seems. A Washington Post report shows one person illicitly secured nearly $1 million in unemployment benefits using little more than an extremely obvious wig.

[D]espite the scale of the data gathering by the company, ID.me, revealed in newly released records, the system has been exploited by scammers. Federal prosecutors last month said a New Jersey man was able to verify fake driver’s licenses through an ID.me system in California as part of a $2.5 million unemployment-fraud scheme.

ID.me has pointed to the scam as an example of how well its systems work, noting that it referred the case to federal law enforcement after an internal investigation. But the criminal complaint in the case shows that ID.me’s identification systems did not detect bogus accounts created around the same day that included fake driver’s licenses with photos of the suspect’s face in a cartoonish curly wig.

I mean… [images via DOJ criminal complaint]:

Humans might have been able to shut this fraud down immediately. But it's clear ID.me doesn't have enough humans and is relying on mostly unproven tech to decide who is or isn't entitled to government benefits.

The IRS's walk-back on ID.me use may end up causing at least as many problems as it solves, unfortunately. The IRS also suffers from a shortage of humans and now they will be expected to do more with less outside assistance as tax return season shifts into high gear. By the time the IRS was forced by public and Congressional pressure to make a change, it was already up to its eyeballs in returns. Taxpayers can now expect delays ranging from several weeks to several months at least partially as a result of the agency's regrettable decision to do business with ID.me and its questionable track record.

16 Comments

Eleventh Circuit Smacks Georgia Sheriff Around For Posting 'Don't Trick Or Treat Here' Signs In Sex Offenders' Yards

from the this-is-the-First-Amendment...-perhaps-you-two-should-get-acquainted dept

In 2018, the sheriff of Butts County, Georgia (no, really), Buford T. Justice Gary Long instructed deputies to ruin the Halloween holiday spirt by planting damning signs in the yards of released sex offenders. The sheriff cited no reason for doing this -- not even extremely anecdotal "evidence." Instead, the signs -- which warned trick or treaters away from the homes of certain county residents -- appeared to be purely punitive: a way to continue to punish criminals who'd already served their time.

The sheriff's deputies wandered onto private property and planted signs printed by the department -- ones that said nothing more than "NO TRICK-OR-TREAT AT THIS ADDRESS." The signs were signed (so to speak) by the sheriff, passing themselves off as a "community safety message."

In a now-deleted, self-congratulatory post, Sheriff Gary Long claimed this invasion of privacy and property was lawful good:

As Sheriff, there is nothing more important to me than the safety of your children. This Halloween, my office has placed signs in front of every registered sex offender's house to notify the public that it's a house to avoid. Georgia law forbids registered sex offenders from participating in Halloween, to include decorations on their property. With the Halloween on the square not taking place this year, I fully expect the neighborhoods to be very active with children trick-or-treating. Make sure to avoid houses which are marked with the attached posted signs in front of their residents. I hope you and your children have a safe and enjoyable Halloween. It is an honor and privilege to serve as your sheriff.

(These signs are placed In accordance with Georgia Law O.C.G.A. 42-1-12-i(5) which states the Sheriff shall inform the public of the presence of sexual offenders in each community)

Nothing in the law requires this, despite the sheriff's half-assed appeal to authority. The public is already made aware of these facts by sex offender registries, which are accessible with or without Sheriff Long's assistance. If the law truly required the posting of signs like this, they would already have been posted by these residents in order to comply with the conditions of their release. There are plenty of laws in place that deter sex offenders from using a once-a-year celebration to further their sex offending. The lack of evidence or data pointing to a spike in sex offenses against children during Halloween suggests the laws on the books are working. This was nothing more than Sheriff Long being an asshole for no other reason than he could.

Four years later, the uppance has finally come for Sheriff Long and his deputies. The Eleventh Circuit Court of Appeals has ruled [PDF] these signs were nothing more than cheaply printed rights violations. (h/t Volokh Conspiracy)

The plaintiffs in this case posed a minimal, if not entirely nonexistent, threat to the communities they reside in. Here's how the court describes the three men suing Sheriff Long and his deputies:

Plaintiffs Reginald Holden, Corey McClendon, and Christopher Reed are residents of Butts County and are required to register as sex offenders under O.C.G.A. § 42-1-12, et seq. The Georgia statute not only requires individuals with certain convictions to register as sex offenders, but also requires Georgia to classify registrants based on whether they pose an increased risk of recidivism. Id. § 42-1-14. None of the three plaintiffs have been classified as posing an increased risk of recidivism.

In 2004, Holden was convicted of lewd and lascivious battery in Pinellas County, Florida. He has been a homeowner in Butts County since May 2017. He lives by himself and works as a warehouse coordinator.

In 2001, McClendon was convicted of statutory rape of a minor in Butts County. He lives with his daughter and his parents who own the home where they all reside. He holds a commercial driver’s license.

In 2007, Reed was convicted of sexual assault of a minor in Cook County, Illinois. He works as a truck driver and has lived with his father, who owns their home, since 2011. In the 2020 order now on appeal, the district court found that all three plaintiffs “have, by all accounts, been rehabilitated and are leading productive lives.”

Sheriff Gary Long was aware of this when he made and posted the signs.

The Sheriff does not dispute this, nor does the record support a contrary finding.

Sheriff Gary Long was also aware that sex offenders don't offend more often on Halloween.

Since 2013, Long had been Sheriff in Butts County and in that time did not know of any incidents in Butts County involving registered sex offenders on Halloween. In fact, during his six-year tenure as Sheriff, there were no issues with any registered sex offenders in Butts County having unauthorized contact or reoffending with minors at any time.

So, the signs were clearly made and distributed under the color of law for the sole purpose of heaping more stigma on stigmatized residents -- all under the guise of public safety. The sheriff had no lawful authority to do this. But he did it anyway.

The court is not happy with Sheriff Long's actions. Despite being constrained by the limits of the lawsuit, which does not seek damages or dispute any finding of qualified immunity, the Eleventh Circuit makes it clear this is some bullshit, Constitutionally speaking. This is compelled speech, forced on certain members of Butts County by Sheriff Gary Long. And there's nearly 50-year-old Supreme Court precedent on hand that made it clear the sheriff should never have engaged in this activity.

In Wooley, the Supreme Court held that it was unconstitutional for the State of New Hampshire to prosecute a citizen for covering the State motto, “Live Free or Die,” on his license plate. Specifically, the Court held that a state could not “constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.” The Court stated that the New Hampshire statute “in effect requires that appellees use their private property as a ‘mobile billboard’ for the State’s ideological message or suffer a penalty.”

This case is materially similar to Wooley. The Sheriff’s warning signs, like the State motto on the New Hampshire license plate, are government speech. Indeed, the signs expressly bore the imprimatur of government, stating that they were “a community safety message from Butts County Sheriff Gary Long.” The deputies placed the signs despite the homeowners’ and/or residents’ objections. The deputies explained, both verbally and through the accompanying leaflet, that only the Sheriff’s Office could remove the signs.

To sum up:

The Sheriff’s warning signs are a classic example of compelled government speech.

Sheriff Gary Long had no justification for this imposition on county residents, even given the state's obvious (and justifiable) desire to prevent the sexual abuse of children. The sheriff's office had other ways of informing Butts County residents of where sex offenders were located. The signs were completely unnecessary. Nothing the sheriff's office submitted to the court shows this punitive measure was the only (or least intrusive) way to ensure the safety of trick-or-treating children.

Assuming that yard signs alerting people to the residences of registered sex offenders on Halloween would prevent the sexual abuse of children (which, we repeat, is not supported by any record evidence), the signs are not tailored narrowly enough. Sheriff Long testified that the sex-offender registry, which contains each registrant’s name, address, and photograph, is available on the State of Georgia’s website, on the Butts County website, at Butts County administrative buildings, and at the Butts County Superior Court Clerk’s Office. The Sheriff has made the sex offender registry widely available through government sources, diminishing the need to require residents to disseminate the same information in yard signs on their private property. And, while “narrowly tailored” does not mean “perfectly tailored,” the Sheriff has not met his burden to show the yard signs were narrowly tailored because he has not offered evidence that any of the yard signs would accomplish the compelling purpose of protecting children from sexual abuse.

Sheriff Long tried arguing the government had the right to post whatever it wanted in "public rights of way," his way of describing the areas (towards the end of driveways or near sidewalks) where deputies posted signs. This footnote makes it clear this is the sheriff's Hail Mary play -- one the court easily bats down in the 11th Circuit end zone.

Before placing the signs in 2018, the deputies did not conduct research to assure themselves the signs would be placed in rights-of-way. In 2019, for the preliminary injunction hearing, the Sheriff introduced some poorly scanned copies of subdivision plats that do not include any keys, legends, or labels; the plat maps are not self-explanatory. He also introduced aerial Google Maps photos of roads with lines drawn across them. But those maps do not indicate who owns the underlying fee where the lines are drawn, or that the lines represent right-of-way easements—much less who possesses any easements or for what purpose.

The end result is a reversal of the lower court's decision in favor of Sheriff Long and his Halloween-adjacent dickishness. The case travels back down the federal pipe to the district court with instructions to find in favor of the plaintiffs and their request for a permanent injunction prohibiting the sheriff from pulling this stunt in the future. The ruling is clear: the government can't force people to say things they don't want to by planting signs in their yards. Sheriff Long will just have to find some other, more constitutional way to harass residents he doesn't like next Halloween.

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Law Firm Sues US Citizen And Immigration Service After It Tries To Claw Back Docs Obtained Legally Thru A FOIA Request

from the how-it-actually-works-v.-how-USCIS-wishes-it-worked dept

Once someone legally obtains documents from a government entity through a public records request, the government simply cannot demand to have them returned just because it screwed up when it fulfilled the request.

That unalterable fact hasn't stopped government agencies from trying (or even [temporarily] succeeding). The NYPD botched its handling of a public records request twice, handing out information it didn't want to disclose to facial recognition researchers on two separate occasions. Both times, it tried to get a court to help it demand the mistakenly released information be returned. One request was granted (then rescinded). The second time the NYPD screwed up it didn't even bother to see if a court would oblige it twice.

US Citizenship and Immigration Services (USCIS) is being sued for trying to do exactly this same thing. It fulfilled FOIA requests pertaining to Hoppock Law Firm clients, sending the firm the "alien files" compiled by the agency. (h/t National Security Counselors)

At the time, the USCIS told Hoppock Law Firm it was aware it was over-fulfilling the request. From Hoppock Law's lawsuit [PDF] against USCIS:

In the Determination Letter, defendant USCIS wrote that it was intentionally releasing portions of the records that would otherwise be considered “exempt” under the FOIA statute after discussion between agency personnel and a member of its staff. It purported to release this exempt material “as a matter of administrative discretion.” And it said that the released records may also include other “discretionary releases of exempt information.”

These statements confirmed that even if portions of the records released were subject to any exemption under the FOIA, such release was intentional, not inadvertent.

Seven months later, USCIS had a new Director of FOIA Operations. And Hoppock Law had a new letter from USCIS demanding the "return" of information the agency had already voluntarily released.

The Demand Letter stated that, as for request number NRC2021092780, the USCIS had now decided that it had “inadvertently released personally identifiable information of third parties and/or law enforcement sensitive information.” It did not identify what pages or portions of the release the defendants were now claiming to be exempt or address its previous statements that it was releasing exempt information on purpose, as a matter of administrative discretion.

The Demand Letter did not identify any specific statutory exemption under the FOIA statute that the Defendants believed should apply to these records.

Although the request was for Plaintiffs’ client’s own A-file and the records released included only those found in the client’s A-file, the Demand Letter said that “improper use” of the records Plaintiffs received could “harm” the individuals “whose information was mistakenly sent.”

The demand letter [PDF] also hinted the law firm could be subject to criminal charges if it did not immediately comply. The letter claimed that any "any use or disclosure" of information (information not specified in the letter) might "impede or interfere with law enforcement activities." That's called obstruction when the feds are bringing charges. And like any federal charge, it's serious and can result in lengthy sentences.

The letter went on to demand compliance by January 18, 2022, which would be the same day the law firm received the letter. On January 19, the law firm responded, asking USCIS to identify which FOIA request this demand letter covered and noted that it needed other information from the agency if it was even going to begin complying with its demands, including identification of every person and entity the documents might have been shared with.

Despite the implicit threat of criminal charges and the demand for immediate action, the law firm's questions have yet to be answered. To prevent it from being accused of federal crimes or improper dissemination of sensitive information, the law firm is suing USCIS, seeking an order that would strictly define what the law firm is obligated to do in response to this letter, especially given its implication of criminal charges.

And it points out USCIS has no legal right to demand the things it's demanding.

The FOIA statute includes no authority for the responding agency to demand that a requester return records it has disclosed under the FOIA or to furnish information to the agency about who has been provided access to those records.

Even if there were some implied claw-back power in the FOIA statute, it would not apply to records the agency has intentionally disclosed, as it said explicitly here in the June 2021 disposition letter.

Because of that, the law firm is also seeking declaratory judgment stating that the demand letter violates FOIA law and that the law firm is under no obligation to comply with an extremely belated letter that, in effect, orders the firm to disclose the names of others who've viewed the documents and any attorney-client privileged communications compliance with the letter might reveal.

The law firm should prevail. FOIA law simply does not work this way. And USCIS's earlier statements that it knew it was providing information normally considered exempt from disclosure shows the agency was fully aware of what it was handing over to the law firm. A change at the top of the FOIA org chart doesn't suddenly make all of the agency's past public records actions null and void. And it sure as shit doesn't change how this law works.

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