With 5G arriving, the Supreme Court needs to rule on what digital privacy means – Pacific Legal Foundation (PLF)

The introduction of 5G data networks promises unbelievable advancements in the tech capabilities of every area of our lives. But 5G will also make it possible for government and law enforcement to use technology to gather data and information about Americans.

The Supreme Court has not yet ruled definitively on what qualifies as our constitutionally protected digital privacy. But there are two past Supreme Court decisions that set the stage for answering this question based on property rights on the one hand and societal expectations on the other.

The Court will likely use these two cases for guidance when deciding what digital privacy rights are protected by the Fourth Amendment, but privacy advocates should hope that the property rights approach will take precedence.

Katz v. United States

Katz v. United States was a 1967 Supreme Court case where Charles Katz sued the government because the FBI wiretapped a public phone booth to record him making illegal bets on basketball games. Katz sued claiming that the government violated his right to privacy because they wiretapped a public phone booth to gather evidence against him.

The Court ruled in favor of Katz and in their ruling set a precedent governing electronic wiretaps using peoples reasonable expectations of privacy. In short, the government isnt allowed to record a person if that person is somewhere where they can reasonably expect that their conduct will remain private (i.e., a public phone booth).

However, one of the biggest problems with this decisionespecially as technology has advancedis that its largely up to a judge to decide what qualifies as a reasonable expectation of privacy.

The Katz reasonable expectation of privacy test is not useful in terms of defining privacy in todays world (or the soon-to-be world of 5G), because it largely fails to defend conduct and data generated in public spaces or shared with businesses. And increasingly, everything is shared with businesses, especially internet and technology service providers. Under Katz, then, is it reasonable to expect privacy from a public traffic camera? Is your Facebook network public or private? What about the data that mobile phone applications share with marketing companies? The biggest problem with the precedent set by Katz is that all these questions are circumstantial and change almost constantly as technology advances and as societal expectations evolve. The governments own misconduct can even reduce constitutional protections under this rule.

United States v. Jones

In 2012, in United States v. Jones, the Court considered whether it was constitutional for law enforcement officers to attach a GPS device to a vehicle and track a drug trafficking suspects movements. The Court ruled that by attaching the device to the suspects car without a warrant, the government conducted an illegal search.

The Jones decision reinforced the trespass theory of Fourth Amendment law, which defines a search or seizure as any government interference with a person, house, papers, or effects. So when the police attached a GPS tracking device to Jones vehicle, they unconstitutionally trespassed on Jones effect (his vehicle). One advantage of the trespass theory is that it is not reliant on a judges channeling of societal opinions. Instead of having to decide what qualifies as a reasonable expectation of privacy, a court simply has to know whether the government trespassed on someones person, house, papers, or effects.

Because 5G will increase the amount of data and information people can transmit digitally, the trespass theory from Jones can guide the court by focusing efforts on defining the contractual relationships and property interests at play between service providers and end users.

Who owns data about you?

The court has not ruled definitively what aspects of a persons data they own in the constitutional privacy context. Do you own your internet search history? Do you own the GPS data from your phone showing where you travel throughout the day?

Justice Neil Gorsuch gave some insight into how the Court might view these issues from a Fourth Amendment perspective when he wrote about whether cellular location data deserves constitutional protection from warrantless searches. The Fourth Amendment protect tenants who lease a house from warrantless government entry, Gorsuch explained in his dissent from Carpenter v. United States, and a person has never been required to completely own something for it to be protected by the Fourth Amendment. In other words, if you live in a rented apartment (with a signed lease agreement), you dont have any fewer protections from the police breaking into your home without cause than does a homeowner. So the Fourth Amendment still protects peoples privacy in digital records over which they do not have complete ownership.

There are still questions about how much of a persons data they own and which contractual terms or property rules define this area. By understanding that the word papers applies to digital files and person applies to ones likeness (which is protected by a patchwork of intellectual property laws), the trespass theory can keep easy cases easy. If the government wants your credit card records, they should get a warrant, because theyre your papers. If the government wants to track your face around the country, they should get a warrant, because its your face.

Gaining clarity

Technology evolves quickly over the course of weeks and months. The law evolves slowly over the course of years and decades. Because of this, when it comes to protecting Americans digital privacy under the Fourth Amendment, there should be a clear and predictable benchmark that people, law enforcement, and the courts can use to know what digital privacy is constitutionally protected and what is not.

As we get closer to a 5G world, and as the courts consider more cases that deal with digital privacy, advocates for individual liberty should champion moving more toward Jones and away from Katz.


With 5G arriving, the Supreme Court needs to rule on what digital privacy means - Pacific Legal Foundation (PLF)

A doorbell cam captured the confession of a suspect accused of murder – TechSpot

In context: Connected video doorbells are everywhere, and like it or not, police are using them to catch criminals. Some see it as the state trampling the Fourth Amendment rights of citizens, while agencies see it as another tool for catching bad guys. In a recent case, a doorbell recorded the confession of an alleged murderer.

According to Texas authorities, a video doorbell similar to Amazons Ring captured the confession of a murderer.

Former college football player Michael Egwuagu was apprehended on Friday for allegedly stabbing his sister to death last week. An autopsy revealed that 32-year-old Jennifer Chima Ebichi was stabbed multiple times and was three-months pregnant at the time of her death.

Fox News notes that the former University of Texas at San Antonio football player was captured by a doorbell cam leaving his sisters house shortly after the murder uttering the words, I killed Jennifer.

Neighbors said they heard screams and yelling at the womans house. When they went to investigate, they claim to have heard Egwuagus unrealized confession. The eye-witnesses also told KEYE-TV he was smiling when he left the house carrying a bloody kitchen knife.

A Travis County Sherriffs Office spokeswoman told reporters that first responders attempted to resuscitate Ebichi and her unborn child but were unsuccessful.

A judge indicted Egwuagu and set his bail at $500,000.

Earlier this year, Amazons Ring doorbells were the center of a privacy controversy when it was revealed that a company policy allowed police to obtain video footage from the devices when requested. Privacy advocates, including the ACLU, view it as a violation of the Fourth Amendment. Amazon admitted that it currently has video-sharing partnerships with more than 400 US law enforcement agencies.

Masthead credit: BrandonKleinVideo via Shutterstock

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A doorbell cam captured the confession of a suspect accused of murder - TechSpot

Worthington law enforcement continued to face litigation in 2019 | The Globe – The Globe


The ACLU filed a civil lawsuit against the Nobles County Sheriffs Office and Sheriff Kent Wilkening in August 2018 on the grounds that Wilkening was refusing to release inmates who met state release requirements without a warrant or probable cause at the behest of Immigration and Customs Enforcement.

The ACLU filed the lawsuit on the basis that immigration is a federal concern, and Minnesota sheriffs have no authority to enforce immigration law. Only ICE agents can arrest someone on immigration law charges.

Additionally, immigration is a civil matter, not a criminal one, the ACLU said in court documents.

Following the initial filing, the U.S. Department of Justice issued a statement saying that Wilkening detaining inmates on ICE holds is an efficient way to transfer custody. The DOJ claimed that under the Fourth Amendment to the U.S. Constitution, Wilkenings actions were lawful.

While the case is being argued, Minnesota District Court issued a temporary restraining order requiring Wilkening to release inmates who have satisfied their release requirements. Wilkening and NCSO disputed this ruling in the Minnesota Court of Appeals, but the order was upheld.

The case is still active.

Mid-October saw the filing of a second suit, this time against the city of Worthington, the Worthington Police Department, Worthington Director of Public Safety Troy Appel, Officer Mark Riley and ride-along Evan Eggers regarding an incident in January in which law enforcement allegedly used excessive force during an arrest.

The ACLU complaint claims that plaintiff Kelvin Rodriguez of Sheldon, Iowa was driving through downtown Worthington when he spotted a police car. Seeing the vehicle made Rodriguez fearful because he understood Worthington to be a difficult place to be a person of color, the suit said, so he pulled into the Scholtes Auto World parking lot and fled on foot.

Seeing Rodriguez running, Riley and Eggers chased after him in the squad car. Dashcam footage shows Eggers and Riley get out of vehicle and chase Rodriguez behind a row of cars, where all that is visible is Rodriguez approaching the men with his hands up, then getting on the ground. After that, the video is obscured.

In the complaint, Rodriguez says that Eggers got to him first, kicking him in the back and holding his arm. When Riley arrived, the complaint says he put all of his weight on Rodriguez by kneeling on his back.

Rodriguez passed a breathalyzer test and was taken to jail because he ran from the police. Before transporting Rodriguez to Nobles County Jail, though, Riley learned that there had been an assault at The Tap earlier that evening, and one of the suspects had fled the scene.

The victim and a witness identified Rodriguez as the suspect, although Rodriguez claimed he had been driving a co-worker home from work. He accounted for his swollen left hand by saying he worked with knives at JBS.

A week after the lawsuit with the ACLU was filed, Rodriguez was convicted of disorderly conduct for the bar incident, for which he received a 90-day jail sentence that was stayed in favor of six months of probation and a $300 fine.

The ACLU suit claims that although Rodriguez was ultimately convicted, at the time that Riley and Eggers encountered him, they had no reason to suspect Rodriguez of a crime.

The lawsuit alleges that during Rodriguezs arrest, he made repeated requests for medical care, which were ignored for nearly an hour. When he finally did get medical attention, Rodriguez discovered he had four broken ribs that had pierced his liver and pancreas, a partially collapsed lung and internal bleeding. He spent five days in intensive care and amassed about $150,000 in medical expenses.

The ACLU is also concerned that Eggers, a civilian, acted as a police officer, and Riley made no attempt to subdue him.

Following Rodriguezs conviction, the police report from his arrest became publicly available. Riley said he couldnt see what was happening, either, but thought he heard Rodriguez slip and fall on the ice.

Eggers was not interviewed until five days later, at which time he corroborated Rileys claim that Rodriguez slipped on the ice.

The new information did not change the ACLUs position. An amended complaint states that the claim that Rodriguez slipped and fell on ice implies that that was the cause of his injuries. Both the ACLU and Rodriguez maintain that his injuries occurred as a result of the actions of Eggers and Riley. They assert that the dash cam footage clearly refutes the defendants claim.

The ACLUs desired outcome is a jury trial to seek both financial compensation and a declaration that the Worthington Police Department violated Rodriguezs Fourth Amendment rights.

The defendants deny each accusation in the complaint.

The matter will be settled in a five-day jury trial scheduled to begin April 20 unless the parties are otherwise able to come to an agreement.

The ACLU of Minnesota listed its Top 10 Victories of 2019 over the weekend. The Court of Appeals ruling in respect to the Nobles County case and the beginning of the suit against WPD were numbers five and six, respectively, on the list.

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Worthington law enforcement continued to face litigation in 2019 | The Globe - The Globe

Prosecutor slams Krafts appeal to block Orchids of Asia tapes – Boston Herald

A Florida prosecutor slammed New England Patriots owner Robert Krafts arguments to suppress surveillance tapes made at a Florida spa allegedly recording sex acts, calling the case a significant Fourth Amendment ruling in filings submitted Tuesday.

Kraft, who pleaded not guilty to two prostitution charges in February for sex acts allegedly recorded in January at the Orchids of Asia Day Spa in Jupiter, Fla., earned a victory in May when a Palm Beach County judge suppressed police surveillance evidence, calling filming of non-criminal massages unacceptable.

Prosecutors appealed the May decision to suppress video, and Florida Deputy Solicitor General Jeffrey Paul DeSousa refuted Krafts arguments to support the May decision in a 23-page reply brief filed last night.

(Kraft) urges that massages should not have been recorded at any time other than the end of a massage; but the first of his offenses came at the end of a massage, DeSousa wrote. And he insists that recording was improper when men left on their underwear at the start of a massage; but he removed his own underwear immediately.

DeSousa also argued Jupiter Polices nonstop covert surveillance over a five-day period was necessary to gather all facts, and it would have been a difficult burden for police to determine when to film and not film activities for signs of prostitution.

The sides have argued case law surrounding video surveillance in briefs filed since October, and DeSousa wrote in a motion attached to his reply brief the appeals decision in Floridas Fourth District Court of Appeals will be the first state appellate court to resolve the Fourth Amendment questions at play here.

Krafts misdemeanor case has been on hold since the appeal filed in May, and another appeal by the women charged with running the Orchids of Asia Day Spa is locked in a similar appeal battle.

Also in the brief, DeSousa says third parties have filed at least one federal lawsuit for monetary damage alleging the Orchids of Asia tapes violated their own Fourth Amendment rights.

A civil lawsuit by Kraft in a Florida court alleging denial of investigative documents by prosecutors is also pending a ruling on a motion to dismiss by the state.

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Prosecutor slams Krafts appeal to block Orchids of Asia tapes - Boston Herald

Did Schiff Poke a Hole in the First Amendment? – The New York Times

Last week, the House Judiciary Committee debated articles of impeachment drawn from a densely argued, sharply worded 300-page report that the Democratic majority on the House Intelligence Committee produced. It is an investigative tour de force, written for posterity. In considerable detail, using interviews and records, it describes, for example, how President Trumps top personal adviser, Rudolph W. Giuliani, traipsed across Europe, circumventing diplomats as he furthered the presidents direct political interests. It also delves into the circumstances behind Mr. Giulianis repeated contacts with a reporter, John Solomon of The Hill, and marshals a case that Mr. Solomons reporting helped push a false and damaging narrative about the then-serving American ambassador to Ukraine, Marie Yovanovitch.

The committee chairman, Representative Adam Schiff, believed that a detailed description of Mr. Solomons contacts with Mr. Giuliani and with Ukrainians were germane to the core of the case for impeachment against Mr. Trump, because the report speaks to the flood of misinformation that may have persuaded President Trump to act so recklessly.

But those who care about the vitality of journalism should here take a pause and ask why they dont feel disturbed. John Solomons investigative articles for The Hill may have been wrong, they were often misleading, and they were (judiciously, unwittingly?) used to further a conspiracy to oust a respected American ambassador. Mr. Solomon is a dogged, prideful investigator who worked with The Associated Press and The Washington Post before his political inclinations became more manifest and his penchant for accepting conclusions congenial to Republican partisans became a calling card.

But in revealing whom Mr. Solomon talked with, and when, Mr. Schiff and his committee have created a new pathway for the government to find and reveal a reporters sources and to question his or her motives. That is wrong. The legislative branch should not use its subpoena power to police journalism.

Mr. Schiffs pathway could easily be considered a precedent. And the government does not need more encouragement to out a journalists sources. The executive branch, in the institutions of the Department of Justice and the F.B.I., has used metadata call records and routing information not protected by the Fourth Amendment to document reporters contacts with their sources in a number of cases in which the source has subsequently been imprisoned. The public interest case for prosecuting leakers is easy to make. But we should note that the governments obligation to protect national security and a reporters duty to uncover abuses of executive power often clash. Whom you side with at those junctures depends on which tribe you belong to. Im a journalist, so I often side with the journalists.

I do have a big problem when journalists wittingly or unwittingly collude with foreign governments to degrade the institutions of democracy that we rely on. And while Im tempted to assert that Congress has no business ever poking its nose into reporting, I cant deny the circumstances that collided here; Mr. Solomon is part of this story. But to deny him any First Amendment protection of his work is to fail to see beyond the immediate ramifications of Mr. Schiffs decision. If Republicans regain control of the House, what would prevent them from using the same tactic to pummel the press for stories its members dont like? Ah, but what if the reporters have been consorting with liars and cons, as seems to be the case here?

Well, the worst people often have the best available information, and judgment calls are a humble part of the journalistic enterprise. Congress should recognize this and acknowledge that it is important.

Mr. Schiff did not subpoena Mr. Solomon directly, and his staff seems to believe that this settles the matter. But it should not. Mr. Schiff has effectively punished a reporter for reporting. And punishments that might be levied for errors in reporting and for apparent partisan bias should never come from the government. Journalists who dont object to this investigative practice will conspire to make it much easier for future entities in government to harass reporters who are pursuing the truth.

It pains me to see some of our most respected advocates for press freedom default to the view that Congresss procedures were duly followed and, while there may be some ickiness in the air, Republicans who have complained about Mr. Schiffs methods have no right to complain about intrusive government. This argument does not track, though, especially during a week when the Justice Departments inspector general revealed serious and potentially material deficiencies in the F.B.I.s application to renew a Foreign Intelligence Surveillance Act order against Carter Page, a low-level Trump foreign policy aide whom the F.B.I. suspected might have a been a conduit for the Russian government to control or influence the Trump campaign. (There is no evidence that Mr. Page, a serial entrepreneur with some dubious friends, served in this role.)

Another way to minimize the First Amendment implications of Mr. Schiffs decision is to note that President Trump represents (and indeed has become) a far worse threat to a free press than any consequence of a procedurally appropriate congressional investigation. I agree with the statement of value: that Mr. Trump has beguiled, bewildered and bullied the press to a point of real danger. Labeling the press the enemy, arguing for looser libel laws, threatening broadcast licenses, gleefully encouraging his followers worst assumptions about the role of reporters all but invites us to consider him a national security threat the way some of his own appointees came to. But Trump being Trump is not an excuse for lowering the threshold for First Amendment vigilance elsewhere. Indeed, we should raise our voices even louder when other institutions of government make public a more casual appreciation of the First Amendment. Making sure that Congress passes rules that limit the use of subpoenas to inspect or reveal reporter-source relationships should be a priority.

Much of what the public knows about President Trumps conduct in office comes from journalists who have not been cowed by the enormous power wielded by the executive branch and its investigative capabilities. The civic emergency within which we are working will be exacerbated if we excuse or brush off an abuse of power because it supports our side.

Marc Ambinder (@marcambinder) leads the Annenberg digital security initiative at the University of Southern California. He also teaches national security reporting.

The Times is committed to publishing a diversity of letters to the editor. Wed like to hear what you think about this or any of our articles. Here are some tips. And heres our email: letters@nytimes.com.

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Did Schiff Poke a Hole in the First Amendment? - The New York Times

TSA drops fine against Texas man who refused search – Overton County News

Transportation Security Administration (TSA) has agreed to withdraw a fine against a Texas man who, after successfully passing through an airport security metal detector and then being randomly selected to pass through a whole-body imaging scanner, chose not to board a flight rather than be subjected to a third search an invasive pat-down by TSA agents.

Jonathan Cobb was fined $2,660 by TSA and charged with interfering with airport screening after he politely refused, based on past traumatic experiences with TSA, to be subjected to a pat-down search at George W. Bush International Airport and opted instead not to board his ticketed flight. Attorneys for The Rutherford Institute came to Cobbs defense, challenging the $2,660 fine as excessive and successfully arguing that Cobb had a Fourth Amendment right to opt out of the search and elect not to travel.

What we are witnessing is an unofficial rewriting of the Fourth Amendment by government agencies and the courts that essentially does away with any distinctions over what is reasonable when it comes to searches and seizures by government agents, said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.

The rationale, of course, is that anything is reasonable in the war on terrorism. By constantly pushing the envelope and testing the limits of what Americans will tolerate, the government is thus able to ratchet up the level of intrusiveness that Americans consider reasonable.

As Justice Robert H. Jackson, the chief U.S. prosecutor at the Nuremberg Trials, recognized, Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart.

Jonathan Cobb was scheduled to travel to Chicago from Houstons George W. Bush International Airport on February 25, 2019. Prior to boarding his ticketed flight, Cobb entered a TSA screening area. After passing through the metal detector without any alarms, Cobb was randomly selected for additional screening and told to proceed through the Advanced Imaging Technology (AIT) scanner.

Although Cobb offered to remove his belt because he feared it would cause an alarm, the AIT operator instructed him to leave the belt on. The machine did alarm and Cobb was told that he must submit to a third search a pat-down of his body.

Cobb politely and calmly refused, telling the agents that he would rather leave the airport and miss his flight than submit to a pat-down.

After Cobb refused to submit to the pat-down, he was taken to a private area, where a TSA supervisor told him he must submit to a pat-down because of the AIT alarm.

Cobb explained that his refusal to endure a pat-down search was based upon a traumatic TSA screening in 2012 when he was selected for a pat-down, which he found excessively invasive and demoralizing; however, Cobb offered to allow a full visual inspection of his person or to reenter the AIT scanner without his belt. TSA agents reported the matter to local law enforcement.

When Cobb continued to insist, calmly and firmly, that he would not submit to the pat-down and would instead choose to miss his flight, police escorted Cobb out of the airport.

Two months later, Cobb received a notice that he was being fined $2,660 dollars for interfering with TSA screening.

In coming to Cobbs defense, Rutherford Institute attorneys argued that Cobb had a Fourth Amendment right to opt out of traveling rather than be subjected to an objectionable pat-down search by TSA screening agents. Affiliate attorney Jerri Lynn Ward of Garlo Ward assisted The Rutherford Institute in defending Cobb.

Founded in 1982 by constitutional attorney and author John W. Whitehead, The Rutherford Institute is a civil liberties organization that provides free legal services to people whose constitutional and human rights have been threatened or violated.

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TSA drops fine against Texas man who refused search - Overton County News

When They Come for You – Sharyl Attkisson

The following is from Full Measure with Sharyl Attkisson. Watch the video by clicking the link at the end of the page.

If you think youre hearing more accounts than ever about improper government intrusion into our lives, youre a lot like author and journalist David Kirby. He researched that for new book When They Come For You: How Police and Government Are Trampling Our Liberties and How to Take Them Back.

Sharyl: When you say, When They Come for You, who is the They?

Kirby: The they can be anything from a local social services agent in your community, to the president of the United States. This goes on at the state, federal and local level. It goes on in red states and blue states, rich states, and poor states, big cities, and small towns. I found violations of the Fourth Amendment, the First Amendment, freedom of speech, people having their homes raided without a warrant. People having their cars taken away from them because they were suspected of a crime even though they didnt commit a crime. People in debtors prison because they cant pay their court fees and fines, and of course child protective services that come in the middle of the night, and just yank your kid away.

Sharyl: Do you think theres been an escalation in events like this, or are we just able to find them, and notice them more?

Kirby: Its a very good question. Theres not a lot of hard data unfortunately. There is more monitoring. Social media, people have cameras with them everywhere so its more noticeable. But I do think it is getting worse. I think particularly with surveillance, with the First Amendment, with freedom of the press, freedom of protestors. I think it started after 911, the PATRIOT Act. It got worse under Obama, as you well know, with surveillance of the media. Now I think its getting even worse, particularly cracking down on protesters, spying on protestors, and doing things like threatening to sue media outlets for libel, or wanting to change the libel laws.

Sharyl: Many Americans say, I obey the law. If the government wants to surveil me, look at my computer, I dont really care. Is there a counterpoint to that?

Kirby: I mean thats the Fourth Amendment. Its the most threatened amendment in our country, I think, after the First Amendment, which is a close second. But we need to protect those protections for everybody, and once you just acquiesce and say, Well, its okay if theyre listening in on my phone call, then the door starts opening wider and wider.

Sharyl: Is it fair to say you consider yourself a liberal, or a liberal Democrat?

Kirby: Im a lefty. Yes. Left of center.

Sharyl: Do you notice any division? Is one party or the other better or worse at any of this?

Kirby: Theyre both bad to be honest. I can pick apart, and my book does, and Im equally critical of the Obama Administration as the Trump Administration. A lot of my stories take place in blue states.

Sharyl: But what do you attribute that to, if there isnt even an ideological divide into where this happens?

Kirby: Well, I think when you talk about ideology, I think people on the far left and on the far right are actually a lot more united over these issues than they realize. People on the left dont like government intrusion any more than anybody else does. It is more of a libertarian point of view. I call myself a lefty libertarian, which sounds oxymoronic, but I figured it out. I would say people like Rand Paul is certainly bringing these things up once in a while. He has sponsored some bills in Congress. They go absolutely nowhere. He does get Democratic cosponsors. There are people, progressives, who are interested in reforming these issues, and reigning in the government. But like I said, it goes nowhere.

Sharyl: What would you say is the takeaway message you would like people to walk away from reading your book with?

Kirby: Know your Bill of Rights. Read them, study them, know what protections you are offered under them in case you ever need to use them, and if you are concerned about these things, its up to us. These are our personal freedoms, and they are under attack.

A new report from Pew Research Center says a majority of Americans, 64%, are concerned about how much data is collected about them by the government online.

Watch the interview by clicking the link below:


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When They Come for You - Sharyl Attkisson

Snowden: A Whistle-Blower Who Lived to Tell About It – lareviewofbooks

DECEMBER 15, 2019

I GENERALLY CARE relatively little for the personal lives of people of note, but something that always nagged me just slightly about Edward Snowdens 2013 revelations that the NSA was spying on pretty much everyone was how angry was his girlfriend?

After all, we all knew Snowden had a girlfriend, since it didnt take long for the media to uncover that her name was Lindsay Mills, that (much to their infinite delight) she had photos of herself in lingerie, and that her significant other had suddenly turned up in Hong Kong halfway through a business trip and started to fill the world in on US mass surveillance without running it by her first.

It must have been quite the shock.

I therefore found it uncharacteristically satisfying that Permanent Record included a chapter composed of extracts from Lindsay Millss diary. It was genuinely interesting to get an insight into how someone might cope with this very unusual situation being thrust upon them in a more candid tone than we generally get from the guarded Snowden throughout the rest of the book. These excerpts were all the more necessary, as this really is a book about the personal no further details of public significance are released in this title, which is a work primarily of analysis and reflection.

The general schema of the book is precisely what one might expect: Snowdens childhood in North Carolina and the DC Beltway; his decision to enlist in the US Army following 9/11; his roles as a defense contractor in the United States, Switzerland, and Japan; his ultimate decision to blow the whistle on mass surveillance and subsequent temporary asylum in Russia. Prior reviews have been accompanied by a few snarky remarks: The New Yorker, for example, claimed that Snowden saw the early internet as a techno-utopia where boys and men could roam free, although I cannot recall Snowden making such exclusionary gendered distinctions. Presumably it complements Malcolm Gladwells earlier piece on why Snowden is not comparable to Pentagon Papers leaker Daniel Ellsberg (since he is a hacker not a leaker) in flat contradiction to Ellsbergs own defense of Snowden published in the Washington Post:

Many people compare Edward Snowden to me unfavorably for leaving the country and seeking asylum, rather than facing trial as I did. I dont agree. The country I stayed in was a different America, a long time ago. [] Snowden believes that he has done nothing wrong. I agree wholeheartedly.

So eager has everyone been to snipe and show their moral fiber as good little citizens, that they have rarely found the time to dig into Permanent Records main themes. Rather than spilling more facts, Snowdens aim seems to have been to contextualize his previous disclosures and explain their significance. Thus, while many parts of the book are truly gripping a goodly portion of it details how Snowden removed information detailing surveillance from his workplace under a pineapple field in Hawaii and arranged to share it with documentary filmmaker Laura Poitras and journalist Glenn Greenwald in Hong Kong it is the authors underlying themes and motivations that truly deserve our attention.

It is apparent early on that Snowden pursued two main purposes in releasing Permanent Record: 1) to convince skeptics that he acted for the good of the country and to defend the US Constitution (indeed the books release was timed to coincide with Constitution Day on September 17), and 2) to educate readers about technology, or at least that part of it related to mass surveillance.

Early on, while still describing his 80s childhood and initial fascination with what he then termed Big Masheens, Snowden recalls imbibing lessons from his Coast Guard father Lonnie about the potential for technology to bring its own form of tyranny with it. According to Snowden:

To refuse to inform yourself about the basic operation and maintenance of the equipment you depended on was to passively accept that tyranny and agree to its terms: when your equipment works, youll work, but when your equipment breaks down youll break down, too. Your possessions would possess you.

Technological tyranny is a theme Snowden comes back to later in the book, reflecting on Mary Shelleys Frankenstein he was after all posted to Geneva, where part of the novels action is set.

That may sound a bit clich, until you learn that Snowdens sales partner during his time at Dell literally nicknamed the cloud system they developed for the CIA Frankie because its a real monster. That wasnt just a private office joke, but how he tried to convince the agency to greenlight the project during a sales pitch. Its these little pieces of not-exactly-earth-shattering, but still pleasantly informative detail that help the book keep ticking over and compensate for the often distant tone of its author. Snowden frequently describes his feelings, but rarely does he make the reader feel them.

Snowden also lavishes attention on explaining how he interacted with the internet as a child and teen. While many have interpreted these lengthy passages as either nave utopianism or pathetic addiction, his point is much more important than that. Im much of an age with Snowden and therefore remember many of the things he recalls: phreaking, personal homepages, chat rooms, and the days when you could just ask perfect strangers for advice and theyd give it to you. What I think I hadnt fully considered before reading this book is that at least some people in this rather narrow cohort absorbed some knowledge of modern technology. Despite being nowhere near as interested in computers as Snowden (and having a positive antipathy to Big Masheens), I learned how to build circuits and program from Basic to Java as part of my general education. That gave me the ability to learn more later in life and to form a better (if still far from expert) understanding of the nuts and bolts of computing infrastructure.

By contrast, many people today know how to use tech, but they dont understand it. Just like few people who use money understand economics. And just like an ability to grasp finance creates an enormous power differential, so does the ability to understand tech.

Snowden is at pains to redress this balance, methodically explaining everything from SD cards, to TOR, to smart appliances, to the difference between http and https, to the fact that when you delete a file from your computer, it doesnt actually get deleted. He bestows the same attention to detail on these subjects as he does describing the labyrinthine relationships of his various employers and the intelligence agencies, and this clarity helps turn the book into a relatable story about issues rather than a jargon-stuffed, acronym-filled nightmare.

Only by understanding how technology works on a basic level, so argues Snowden, can journalists ask the right questions of power and regulators regulate effectively. He strengthens this case by noting examples of times when major announcements (construction of enormous data storage facilities; a CIA presentation in which the speaker literally admonished the journalists present to think about their rights) were simply ignored.

They did not make waves, Snowden thinks, because journalists and regulators simply didnt realize their significance. There is, as he says repeatedly in the book, a lag between technology and regulation.

It is an issue that others in a position to know, like Elon Musk and Stephen Hawking, have pointed out. Everything from advances in robotic warfare to artificial intelligence to total surveillance aided by facial recognition is dismissed as alarmist until well after it is happening, when its then dismissed in true Nineteen Eighty-Four style with a shoulder shrug as inevitable.

And when that doesnt happen, tech tends to be treated as an entirely new phenomenon requiring heavy-handed, and often counterproductive, regulation.

While it is entirely true that people are bullied on social media, for example, we shouldnt forget that people were bullied in real life in the past, too. And threatened. And the victims of fraud. And defamation. And child abuse. As a result, we shouldnt lose sight of the fact that we often do already have a well-developed arsenal of remedies that can be adjusted for the internet era without the need to jettison constitutional values in the name of protection and safety.

There are ways to apprehend criminals effectively without the total take of information that intelligence agencies so lazily demand. Vigilante pedophile-hunting groups have been quite successful in luring would-be predators to justice by posing as minors on social media sites. While it is beyond question that such activities should be left to properly trained and authorized police forces not righteous citizens who can do as much harm as good it does show that the individualized pursuit of crime can still be very effective in the social media age. Indeed, in regards to some crimes, like forms of child abuse, detection may well be easier than in earlier times with many culprits unable to resist the temptation to groom potential victims online.

Rather than veering between complacency and panic, we should be thinking about the various ways in which to update our legal framework for the modern digital age something Snowdens revelations about the warrantless mass surveillance programs he uncovered have given us a particular urgency to do.

The part of the law most significant to Snowden, and which he quotes in the book, is the US Constitutions Fourth Amendment, which reads:

The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

According to Snowden, the NSA sought to circumvent the Fourth Amendment by creating a huge database of all online activity the permanent record of the books title ideally stored in perpetuity and which they would only search when [the organizations] analysts, not its algorithms, actively queried what had already been automatically collected. Intelligence agencies also argued that because individuals have already given permission to third parties, particularly telecommunications companies, to host their data, that data no longer resided in the private sphere and thus constitutional privacy had been forfeited.

After all, the magic of what feels private sitting in front of your computer or scrolling through your phone at home can only happen by connecting to distant servers.

Those who support a living document interpretation of the Constitution may see this as an eventual opportunity to expand the scope of the terms papers, and effects for the modern era, something Snowden himself suggests; originalists might argue that only a constitutional change itself can suffice to fully address privacy rights in a digital age.

Some of the actions that Snowden describes monitoring people through their webcams in their homes via XKEYSCORE would certainly seem like unproblematic violations if committed against US citizens or persons on US soil under present wording and interpretations. Others like hunting through the vast reams of information we sign over to private companies may prove more difficult. Justice Scalia, the nations most well-known originalist prior to his death in 2016, is alleged to have refused to be drawn on whether or not computer data was an effect in the sense of the Fourth Amendment at a public lecture in 2014.

In more practical terms, the Court of Appeals for the Second Circuit decided in 2015 (ACLU v. Clapper) that bulk collection was not covered by Section 215 of the Patriot Act, stating in part, Congress cannot reasonably be said to have ratified a program of which many members of Congress and all members of the public were not aware, a decision followed shortly by the passing of the USA Freedom Act, under which telecoms companies keep records that law enforcement may then request.

However, it is somewhat doubtful whether legal remedies alone will effectively stop the political-intelligence agency complex that Snowden describes so adroitly in his book. He recalls the panic he witnessed at Fort Meade and outside the Pentagon during 9/11, and later the blame as politicians emphasized the prevention of terror attacks as the standard for measuring their own competence. Intelligence agencies felt both the horror of having to develop some way to guarantee safety and the power of being able to extort huge budgets from Congress in the interests of doing so. Once an agency has the capability to engage in mass surveillance and is under significant pressure to maintain security, its difficult to imagine it failing to indulge regardless of legalities.

Snowden mentions encryption, SecureDrop, and the European Unions General Data Protection Regulation (GDPR) as potential ways for citizens to uphold their own privacy, but Im less than convinced. Encryption is not readily available to the average person working on an average budget; few people will ever have any reason to use SecureDrop, and I doubt many of the alleged positive effects of the GDPR, which has mainly led to Europeans agreeing to any and every pop-up in order to get to their content ASAP while introducing barriers to sharing and advertisement for small businesses (precisely not the threat).

In this context, perhaps the right to be forgotten (in fairness, now enshrined in Article 17 of the GDPR, although the principle derives from an earlier 2014 court case) is more relevant. After all, Snowdens main fear is the creation of the unforgiving permanent record, where every mistake, minor trespass, and ill-considered comment remains preserved for all time and just waiting to be used against one. Indeed, he contrasts this with the early days of the web, where one could develop opinions freely and cast aside identities that one had outgrown. Snowden regards this freedom as pivotal to development and maturation, as we all tend to curate our lives over the years, forming the identity we want to have at the expense of conflicting past actions.

Despite the fact that he never made it to his intended destination Ecuador Snowden remains, much like Ellsberg, a powerful example of a person who blew the whistle on state abuses and not only lived to tell about it, but is living an apparently well-adjusted life. As he lets us know at the end of the book, Lindsay eventually joined him in Moscow, refrained from slapping him silly (as Snowden admits he deserved), and agreed to marry him. Its a fitting low-key end for a book, and a story, that is more about substance than style.

Roslyn Fuller is author of Beasts and Gods: How Democracy Changed Its Meaning and Lost Its Purpose and In Defence of Democracy and is the director of the Solonian Democracy Institute.

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Snowden: A Whistle-Blower Who Lived to Tell About It - lareviewofbooks

Power on Trial: Judge mentions Burke 45 times in jury instructions – Newsday

The wait begins

"OK, you may deliberate," U.S. District Court Judge Joan Azrack told jurors Monday in the trial of Thomas Spota, Suffolk's former district attorney, and Christopher McPartland, former head of Spota's anti-corruption unit.

It was 11:34 a.m., after she'd read the panel 41 pages of instructions more like 40, actually, since the last page contained a single sentence and after she'd consulted with prosecutors and attorneys in the panel's presence, perhapsfor one last time.

Attendance in the courtroom was sparse.

Supporters for Spota, including family members, sat on the benches behind the defense table.

On the prosecution side, in contrast to other days during the trial, a single prosecution-witness-turned-observer sat and he left after the jury filed out to begin deliberating.

About an hour later the panel received a giantstack of materials entered by prosecutors and defense attorneys at trial.

By then, the courtroom was almost empty.

Get inside the courtroom during the trial of ex-Suffolk County District Attorney Thomas Spota.

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And so it wasthat thewait began.

Jurors heard mention of James Burke, former Suffolk police chief of department, about 45 times during Azrack's instructions.

They heard mention of Christopher Loeb, the man Burke assaulted, about13 times.

Much of that came as Azrack detailed the elements of "Accessory After the Fact to the Deprivation of Christopher Loeb's Civil Rights," which is the fourth of four counts charged against both Spota and McPartland.

(The others are conspiracy to tamper with witnesses and obstruct an official proceeding, witness tampering and obstruction of an official proceeding, and obstruction of justice.)

Burke did plead guilty to charges stemming from Loeb's assault.

And that fact was brought up numerous times during the trial.

In considering the accessory after the fact charge against Spota and McPartland, however, the judge instructed jurors that prosecutors had to establish that Burke had committed a crime.

With that, the judge's instructions, in a way,offered a closer look into Burke's actions.

Burke, in assaulting Loeb on Dec. 14, 2012, would have had to beacting "under color of law," that is, that Burke "acted or was clothed with" authority.

"An individual who acts under color of law may be a state officer , Azrack read.

Burke had to have "deprived the victim of a federal right," Azrack read.

"I instruct you that The Fourth Amendment to the U.S. Constitution protects persons from being subjected to excessive force while being arrested , she read.

"In other words, a law enforcement official may only employ the amount of force reasonably necessary under the circumstances to make the arrest," she told jurors.

In addition to the first two elements, she read, Burke had to have "acted willfully."

Willfully means that Burke acted voluntarily and intentionally, with the intent to deprive a person of a federal right made definite by court decisions and other rule of law , Azrack read.

In testimony during the trial, Anthony Leto, a former Suffolk detective,described Burke's assault onLoeb.

"You have had the opportunity to observe the witnesses," Azrack read. You must decide what testimony to believe and what not to believe."

Over six weeks, jurors heard from 30 witnesses.

Some of them were cooperating witnesses, that is, they have pleaded guilty to charges stemming from the investigation into Loeb's assault and are seeking leniency in return for cooperating with prosectors.

Others testified under a grant of immunity, that is, under an order from the judge that bars their testimony from being used against them in a criminal case (except perjury, giving a false statement or otherwise failing to comply with the immunity order).

The government's key witness, former Suffolk Det. Lt. James Hickey, was criticized early and often by defense attorneys questioning whether alcohol abuse and a hospital stay for an "impaired mental state" impacted his credibility.

Soit wasno surprise to see this, among the lengthy section ofinstructions regarding witness credibility to jurors:

Consider what effect, if any, a witness's alcohol use or abuse may have had on that witness' ability to perceive, remember, or relate the events in question," Azrack read.

In testimony, Emily Constant, Spota's former second in command, told prosecutors that she did not want to see either her former bossor McPartlandfound guilty.

Which may (or may not) be why the instructions on witness credibility also included this:

"Does the witness have a relationship with the government or one or more of the defendants which may affect how he or she testified?" Azrack read.

Constant was neither a cooperating nor immunized witness.

She testified under subpoena.

"The testimony of cooperating and immunized witnesses should be examined by you with great care and caution," Azrack read.

Those witnesses include Hickey, as well as other former Suffolk detectives including Leto, who also admitted assaulting Loeb.

"You should ask yourselves whether the witness would benefit more by lying or by telling to truth," Azrack read. "If you believe the witness was motivated by hopes of personal gain, was the motivation one that would cause the witness to lie, or was it one that would cause the witness to tell the truth ?

After a quietmorning, the panel fired off three notes.

The first, at 3:13 p.m., said: "Please provide Hickey testimony, Day 2 and Day 3."

Defense attorneys for Spota and McPartland began questioning Hickey during his second day on the stand.

The jury's request also would cover redirect from both prosecutors and defense attorneys.

At 4:23 p.m. as transcripts of the requested Hickey testimony was being prepared there came a second note:

"Can we get Spiros Moustakas' testimony?"

Moustakas, a former Suffolk assistant district attorney, initially was assigned to handle Loeb's prosecution on charges stemming from robbing vehicles belonging to Burke and others.

The last note of the day as prosecutors and defense attorneys began working on the Moustakas testimony came at 4:34 p.m.:

"We'd like to look at Spota pressconference re: Newsday."

The video, a defense exhibit, showed a portion of a 2014 Spota news conference,during which he slammed Newsday (thoughnot by name) for publishing a story that he said put police in danger.

Jurors were brought back into the courtroom to see the video and then they returned to the jury roomfor the last few minutes before a 5 p.m. dismissal.

As they rose to leave, Azrack promised that the Hickey and Moustakas testimony transcripts would be ready for them on Tuesday morning, when deliberation is set to resume.

Joye Brown has been a columnist for Newsday since 2006. She joined the newspaper in 1983 and has worked as a reporter, an editor, newsroom administrator and editorial writer.

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Power on Trial: Judge mentions Burke 45 times in jury instructions - Newsday

Democrat can read minds, that’s how they know Trump committed impeachable offenses (PODCAST) – Sharyl Attkisson

You are here: Home / Podcasts / Democrat can read minds, thats how they know Trump committed impeachable offenses (PODCAST)

December 17, 2019 by Sharyl Attkisson 1 Comment

When it comes to President Trumps alleged impeachable offenses, with the factual record lacking, Democrats say they can read minds.

Listen to this short podcast by clicking the arrow in the player below. Or listen on iTunes or your favorite podcast distributor under The Sharyl Attkisson Podcast and Full Measure After Hours. And follow the podcasts on Twitter @TheSharylPodcast @FullMeasureAH

Fight improper government surveillance. Support Attkisson v. DOJ and FBI over the government computer intrusions of Attkissons work while she was a CBS News investigative correspondent. Visit the Attkisson Fourth Amendment Litigation Fund. Click here.

Filed Under: Podcasts Tagged With: Trump impeachment

Emmy-Award Winning Investigative Journalist, New York Times Best Selling Author, Host of Sinclair's Full Measure

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Democrat can read minds, that's how they know Trump committed impeachable offenses (PODCAST) - Sharyl Attkisson

The Agitator #307: Judges and our faith in the Constitution – MDJOnline.com

I dont recall in my lifetime a period where federal judges at all levels have been under attack, both direct and indirect. Any media report of a decision worthy of national attention invariably includes which president appointed the deciding judge, and/or the makeup of a panel of judges identifying the president or political party the judges can be traced back to.

The obvious implication is that judges are biased---unless they rule your way. We have lost trust in our judiciary, something that can only undermine our commitment to support the Constitution. For 230 years, the Civil War excepted, Americans have willingly or grudgingly supported the Constitution and observed the rule of law knowing that it is the glue that holds our society together.

Today we have a president who attacks judges when they dont go his way. Probably the most notorious example was referring to Judge Gonzalo Curiel as Mexican, Hispanic, and Spanish when Curiel presided over the class action fraud suit against Trump University. As it turns out, Curiel is American born, but his nationality or ethnicity should never have been in question. At other times related to Trumps travel ban on Muslims entering the U.S. from certain countries, Trump identified the judge(s) by the president who appointed them to infer he wasnt being treated fairly, earning a rebuke from U.S. Supreme Court Justice John Roberts.

President Barack Obama in his 2010 State of the Union address, slammed the five justices (not by name) who voted to overturn longtime precedent related to campaign finance laws. It was inappropriate and indefensible, and while not minimizing it, it was the decision he criticized versus singling out any one or several judges for a personal attack.

The first person who doesnt hold political, religious, or other beliefs that shape who we are has yet to be born. I suspect people forget that when they judge our judges and other professionals of every variety who work in government. But by definition a professional can set aside these biases and do their job effectively keeping in mind the oath they took to their profession or the Constitution.

Judges at every level take an oath to support, defend and preserve the Constitution and the laws of the land. As human beings, they will naturally disagree with some interpretations of the Constitution that have been handed down, and they will disagree with various laws passed by legislative bodies. They are expected, though, to adhere to various rules and procedures in following precedent and in interpreting laws as applied to difficult factual scenarios that are not black and white obvious.

If interpretation was so clear, we would need only one justice on the Supreme Court, and one judge on each appellate court. Then again, perhaps we wouldnt need appellate courts at all if trial courts had mathematical formulas in which to decide every case correctly.

Just a few examples illustrate my point. Where does the language of the First Amendment limit someone from shouting fire in a crowded theater? Where does the Second Amendment allow the ban of all convicted felons, which includes nonviolent offenders, from possessing a firearm to defend himself? Where the Fourth Amendment does mention expectation of privacy concerning the issuance of search warrants, a standard we accept today, it was for a much longer period of time based only on physical trespass.

The president under our Constitution gets to nominate all federal judges with the advice and consent of the Senate. Its become a messy process. Both parties are carrying it to new extremes, although I would argue that Senate Majority Leader Mitch McConnell has brought it to new heights. Either way, this is not good for America. We cant have a country that is divided over trust in our courts just because judges are appointed by one party or the other.

I, like every American, differ with any number of decisions emanating from the courts at all levels, especially the Supreme Court. There are plenty of examples to choose from. But overriding my differences is that social contract, that we as Americans will fall in line and obey the law in order to live in peace with our neighbor. The processes to overturn decisions we disagree with, to include legislation or constitutional amendments, is no doubt difficult. But it has been done, and that it has been done for more than two centuries is proof that our system works.

Dissent is as American as apple pie, and disagreeing with judicial decisions is perfectly legitimate. Personal attacks on judges because of their political, ethnic, religious or other affiliations, without evidence of intentional bias to ignore the law, is not legitimate. The Constitution will become a relic of better days that have come and gone if we only support it and our government when it is aligned with our views.

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The Agitator #307: Judges and our faith in the Constitution - MDJOnline.com

The Other Access To Justice Rulings That Mattered In 2019 – Law360

As the top legal arena in the country, the U.S. Supreme Court tends to hog the publics attention to legal news. But decisions by state courts and federal appellate courts often have an even greater impact on the ways the justice system directly affects people.

Sometimes, a high court ruling calls for input from the lower courts, as happened in February, when the Supreme Courts Indiana v. Timbs ruling extended constitutional protections from excessive fines, but left it to the Indiana Supreme Court to develop a procedure by which excessiveness should be determined.

Other times, a high court ruling is only the most recent development in a dispute thats been bubbling for decades, as exemplified by this summers Flowers v. Mississippi decision. Justice Brett Kavanaughs opinion on racially motivated jury selection generated reams of headlines, but the underlying prosecutorial misconduct was first identified by the state Supreme Court nearly two decades ago.

This year, Law360 rounded up four key, non-U.S. Supreme Court decisions that could shape battles over topics like indigent defense, juvenile sentencing, police misconduct and more for years to come.

Indiana Outlines Excessive Test

In Februarys Indiana v. Timbs ruling, the U.S. Supreme Court unanimously held that state governments must follow the constitutional bar on excessive fines, a part of the Bill of Rights that had not previously been incorporated against the states.

But the high courts landmark decision stopped short of outlining how a court should determine how much is too much when it comes to fines, fees and, in the case at hand, civil forfeitures.

That task was left to the Indiana Supreme Court, which ruled in October that fines should be proportional to both an underlying offense and an offenders economic situation.

To hold the opposite would generate a new fiction: that taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally, the majority opinion by Chief Justice Loretta Rush stated.

The Oct. 28 decision emerged from a long-running legal dispute over the Land Rover that Indiana authorities seized from Tyson Timbs after he pled guilty to drug crimes. The seizure was achieved through civil forfeiture, a controversial legal proceeding in which law enforcement can take someones property after alleging it was used in a crime. In Timbs case, hed used the Land Rover to transport heroin.

Civil forfeiture has generated controversy in recent years after reports that many defendants mostly people of color lose their property without any underlying criminal charges ever being filed. Since 2014, 33 states plus Washington, D.C., have reformed their civil forfeiture laws. North Carolina, New Mexico and Nebraska have abolished the practice entirely, relegating seizures to criminal courtrooms, where indigent defendants have the right to counsel.

The Indiana Supreme Courts ruling in Timbs did not ultimately declare whether taking Timbs car worth more than four times as much as the maximum fine associated with his crimes was excessive under the Constitution, instead outlining the criteria to be considered and leaving it to a lower court to apply its test.

According to Lisa Foster, co-founder of the Fines and Fees Justice Center, the tests focus on proportionality is a big win for reformers who hope to change the way other punitive economic sanctions are meted out.

As an example, she cited a flat surcharge that is imposed on every New York traffic ticket, misdemeanor or felony.

Its hard to argue that its anything other than punitive, because why is that money being assessed in the justice system and not against all New Yorkers? she said. Well, because we are punishing people in the justice system.

Going forward, she said Indianas test for excessiveness could be applied to such charges.

Its a recognition of how one needs to look at money in the justice system and that is, through a proportionality lens, both the economic consequences and the underlying nature of the offense, Foster added.

Ninth Circuit Details How to Consider Youth

A Supreme Court case involving the notorious D.C. Sniper Lee Boyd Malvo brought juvenile life sentences into national headlines in October.

But while the pending decision could lead to the resentencing of nearly a dozen Virginia lifers who were sentenced for crimes that occurred before they were 18 years old, another recent decision out of the 9th Circuit could have a potentially greater impact.

Issued en banc on July 9, USA v. Briones clarified the process by which sentencing courts must consider the unique social and psychological characteristics of juvenile offenders, as required by two landmark Supreme Court decisions, Miller v. Louisiana and Montgomery v. Alabama .

Miller, issued in 2012, held that life sentences cannot be mandatory for juveniles because hallmark features of youth like susceptibility to peer pressure, underdeveloped brains and increased likelihood of rehabilitation reduce the justification for incarcerating them until they die. Four years later, the high courts Montgomery ruling made Millers requirement retroactive and ordered the resentencing of an estimated 2,800 teen lifers.

One of those lifers was Riley Briones Jr., a man sentenced in 1997 at age 17 for his role as the getaway driver in a robbery that proved fatal. After Montgomery, Briones had a shot at resentencing, but U.S. District Judge Douglas L. Rayes reimposed a life sentence on the grounds that some decisions have lifelong consequences.

His ruling noted that he considered Briones youth, immaturity [and] his adolescent brain at the time of the murder as mitigating factors, but Rayes emphasized the leadership role that Briones played in organizing the crime.

An appellate panel affirmed the reissued life sentence, but an en banc Ninth Circuit vacated it after finding that the judge had failed to prioritize Briones transformation over the past two decades.

The district courts sentencing remarks focused on the punishment warranted by the terrible crime Briones participated in, rather than whether Briones was irredeemable, the en banc ruling states.

According to Marsha Levick, a founder and chief legal officer of the Juvenile Law Center, the July 9 decision clarified that, when resentencing men and women who received juvenile life without parole sentences, the facts and circumstances of the crime must take a back seat to the offenders youthful characteristics, capacity for change and rehabilitation, and whether their crime reflected transient immaturity.

The principle that must guide resentencing in these cases is that youth are different, and even those who commit heinous murders are constitutionally ineligible for a life without parole sentence unless they are permanently incorrigible and incapable of rehabilitation, Levick said.

The Department of Justice has asked the Supreme Court to take up the Briones case, pending a decision in Malvos case. If the petition is granted, the ensuing arguments could shape the framework for resentencing hundreds of juvenile lifers who still await their court-mandated hearings.

Qualified Immunity Saves Police From Theft Allegations

Few legal doctrines generate as much bipartisan opposition as qualified immunity, a controversial concept that holds law enforcement and other government officials to be immune from legal liability for civil rights violations as long as no previous court case on the same context and conduct exists.

Libertarian groups like the Cato Institute and The Institute for Justice have joined forces with the likes of the American Civil Liberties Union in repeated attempts to convince the Supreme Court that the doctrine needs rethinking and may be worth abolishing altogether.

In September, the Ninth Circuit drew attention to the ways in which qualified immunity can counter common sense in its Jessop v. Fresno decision. Brought by two California residents whose properties were searched during an investigation into illegal gambling, the case involved allegations that Fresno police officers seized $225,000 more than they reported to their superiors while carrying out a warrant.

Siding with the police, the appellate court held that, even assuming the allegations were true, there was no case law on the matter.

Whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment is a different question from whether theft is morally wrong, the opinion states. We recognize that theft is morally wrong ... that principle does not, however, answer the legal question presented in this case.

According to Clark Neily, vice president at the Cato Institute, the decision really grabs the publics attention.

The more outrageous the conduct, the less likely youll find a preexisting case with sufficiently similar facts and the more likely the police will get away with it, he said.

Justice Elena Kagan has extended the time within which the residents must file a petition to the Supreme Court, giving them until Feb. 14 to appeal the Ninth Circuits ruling. Neily noted that the justices may seek to stack up several qualified immunity challenges in order to handle them all at once.

Veterans Get Class Action Status

For decades, there was no court for veterans to appeal the denial of government benefits theyd been promised for their service. And even after the Court of Appeals for Veterans Claims was created in 1989, veterans could not join together to bring class actions in the court every case had to proceed on an individual basis.

That all changed in August 2018, when the CAVC announced it would begin entertaining class actions after the U.S. Court of Appeals for the Federal Circuit said there was no reason not to do so.

In June, the CAVC made good on its promise by granting class action status to veterans alleging the U.S. Department of Veterans Affairs violates their due process rights by delaying appeals over denied benefits for an average of three years.

The CAVC also granted class action status in another suit three months later, ordering the VA to pay out up to $6.5 billion to thousands of veterans who were wrongly denied medical reimbursements for non-VA hospital emergency care.

Together, the first two grants of class action status mark a massive improvement in access to justice for veterans, according to Bart Stichman, a founder of the National Veterans Legal Services Program who helped litigate both cases. He said veterans can now obtain relief without having to initiate a case themselves.

These are not lawyers these are disabled veterans, he told Law360. A lot of them are not going to appeal things like denied reimbursements because they dont know theres a legal infirmity in the VAs decision.

Having the right to file and participate in class action litigation over benefits is particularly important for veterans. Due to the odd ramifications of Civil War-era statute that barred egregiously high legal fees then considered to be anything more than $10 veterans have long struggled to get representation.

The 1862 law became an economic bar on attorneys. Although specialists from organizations like the American Legion and the Disabled American Veterans stepped in to fill the gap with nonlawyers, more than 8,500 veterans had no representation at all in handling their benefits claims in fiscal year 2018.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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The Other Access To Justice Rulings That Mattered In 2019 - Law360

Who Is Missing In Action After IG Horowitzs FISA Abuse Findings? The FISA Court. – Sara A. Carter

The most important voice regarding the extensive Foreign Intelligence Surveillance Application (FISA) abuse revealed by Department of Justice Inspector General Michael Horowitz is missing in action. Its the very secretive Foreign Intelligence Surveillance Court.

The court was founded in 1978, under the enactment of the U.S. Foreign Intelligence Surveillance Act. It was created to authorize the most intrusive surveillance techniques modern technology allows and many contend it conflicts with the basic tenants of the Fourth Amendment, noted criminal defense and civil rights attorney David Schoen.

The FISA court power is so great that many civil libertarians and lawmakers have called for it to be either dismantled or completely reformed. Those calls to reform or end the FISA court have grown greater since Horowitz released his 435 page report this week, revealing 17 gross violations, which included withholding exculpatory information, altering documents and basically lying to the court happened in the case of Trump foreign policy campaign advisor Carter Page.

Those violations against Page were initiated by former FBI Director James Comeys Crossfire Hurricane Team and Horowitzs scathing report on the team was reminiscent of the J. Edgar Hoover era, where the bureaus spying on American citizens was rampant.

Pages life was turned upside down when the Crossfire Hurricane team. Other FBI agents and sources associated with the FISA against Page, leaked erroneous stories about the Trump campaign volunteer to the media, in an effort to create a narrative that the Trump campaign conspired with Russia. It, of course, was all based on a foundation of lies.

What has been missing say civil libertarians and legal scholars is accountability at the court level. In March, 2020 FISA will be back up for reauthorization. It is expected to face scrutiny from both Republicans and Democrats with the intelligence community lobbying for its necessity in the war against terror and enemy state actors.

However, with the IG report making clear that the system was abused to surveil Page. The bigger question is was Page the only one? Or is Page one of possibly many that had their rights abused or were used to weaponize the system against opponents by federal authorities.

The next step, should be a full investigation of FISA applications submitted to the court. It must be a deep dive into what appears to be incredible malfeasance by the FBI.

The Court itself has been far too silent, said Schoen. What action will it now take, given the IGs finding concerning the abuses of the process that occurred here. There is a FISA Court of Review that also was created in 1978 and it was created expressly to review the actions of the lower FISA Court. The Court has the power on its own to convene hearings into the violation of its rules and to take actions against transgressors. But will it take action, remains the question.

Horowitz identified in his report, 51 Woods procedure violations from the FISA application that was submitted from the FBI on Page beginning in October 2016.

Supporting document shows that the factual assertion isinaccurate, said the Horowitz report regarding nine of the violations. Basically, theFBI lied nine times to the court in the applications to get permission to spy on Page.

Ranking member of the House Intelligence Committee Devin Nunes, R-CA, warned that the breach of trust with the American people is so great that the FISA courts very survival is in peril if the Justices dont take action soon.

They ran people into Trumpcampaign officials over andover and over again and so whenyou hear [former FBI director]James Comey talk abouthis mosaic, thats what it was, Nunes told Fox News. It was the Democrats dirtfollowed by fake news, followedby spies that they ran againstTrump campaign officials andthen they decided, even thoughthere was exculpatory evidence,not to turn it over to the [FISA] court.

The FISA court has to eitherbe shut down in its entirety orthey have to take action andsoon, Nunes added.

Glenn Greenwald, with The Intercept, put it this way for those who believe that there was no wrongdoing by FBI officials in their quest to target the Trump campaign.

In this case, no rational person should allow standard partisan bickering to distort or hide this severe FBI corruption. The IG Report leaves no doubt about it. Its brimming with proof of FBI subterfuge and deceit, all in service of persuading a FISA court of something that was not true: that U.S. citizen and former Trump campaign official Carter Page was an agent of the Russian government and therefore needed to have his communications surveilled.

Horowitzs report is clear what the FBI did to Page and its failure to be truthful and candid to the FISC leaves little room for doubt that the bureaus targeting of the Trump campaign was filled with corruption.

IG Report:we identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.

The court operates in secret and its decisions as to whether to authorize the government to intrude on our most private activities are based exclusively on representations of facts unilaterally submitted to the court in secret by a government official with an agenda. The potential for abuse is limited only by ones imaginations. It is past time for Congress, working with judicial branch officials and civil libertarians, to reform the process, Schoen added.

Hes not the only one. Many senior lawmakers are now calling for the FISA court to speak out, and if not for there to be a reformation of the court or have it dismantled all-together.

But there are checks already in place right now in the Courts Rules of Procedure, all of which were well known the officials who were involved in the Carter Page application and related applications.

Those checks, however, depend entirely on the integrity of the government officials making the application or supervising those who made them. In the so-called Russia collusion investigation it appears that all involved simply chose to ignore the Courts rules and have faced no penalty for doing so, said Schoen.

For example, Rule 13 of the FISC Rules expressly requires the immediate correction of any misstatement or omission of any material fact presented to the court by the government. The officials involved here simply ignored the courts rules. They must be held accountable, he added.

Rule 13. Correction of Misstatement or Omission; Disclosure of Non-Compliance. (a) Correction of Material Facts. If the government discovers that a submission to the Court contained a misstatement or omission of material fact, the government, in writing, must immediately inform the Judge to whom the submission was made of: (1) the misstatement or omission; (2) any necessary correction; (3) the facts and circumstances relevant to the misstatement or omission; ( 4) any modifications the government has made or proposes to make in how it will implement any authority or approval granted by the Court; and (5) how the government proposes to dispose of or treat any information obtained as a result of the misstatement or omission. (b) Disclosure of Non-Compliance. If the government discovers that any authority or approval granted by the Court has been implemented in a manner that did not comply with the Courts authorization or approval or with applicable law, the government, in writing, must immediately inform the Judge to whom the submission was made of: (1) the non-compliance; (2) the facts and circumstances relevant to the non-compliance; (3) any modifications the government has made or proposes to make in how it will implement any authority or approval granted by the Court; and ( 4) how the government proposes to dispose of or treat any information obtained as a result of the non-compliance.

Go here to see the original:

Who Is Missing In Action After IG Horowitzs FISA Abuse Findings? The FISA Court. - Sara A. Carter

Trump involved in marathon session of his own on Twitter – NBCNews.com

NBC News

4d ago / 2:34 AM UTC

The day is still not over, but as of 9:30 p.m., Trump has tweeted or retweeted 115 times on Thursday most of them centered on impeachment.

Its been a prolific last few days for the president's thumbs. OnSunday, he tweeted and retweeted 105 times.

NBC News

4d ago / 2:05 AM UTC

After the fifth amendment was voted down, Nadler announced a half-hour recess.

Rebecca Shabad

4d ago / 2:20 AM UTC

After roughly two hours of debate, the Judiciary Committee defeated the GOPs fifth amendment to the articles of impeachment in another 23-17 party-line vote.

The amendment from Rep. Jim Jordan, R-Ohio, would have removed the last eight lines of both articles of impeachment, which both end with language about how Trump has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office and has acted in a manner grossly incompatible with self-governance and the rule of law.

In response, it says that Trump warrants impeachment and trial, and removal from office.

Dartunorro Clark

4d ago / 6:35 AM UTC

As we approach the 12th hour of this debate, a frustrated Rep.Tom McClintock, R-Calif., had somewhat of a breaking-the-fourth-wall moment and said what many are thinking: Does anyone have anything new to say?

The same talking points have been repeated over and over againad nauseam by both sides, he said. "Repeating a fact over and over doesn't make it true and denying a fact over and over doesn't make it false - everybody knows this, everybody watching knows this."

He added: "This hearing's been enough of an institutional embarrassment without putting it on an endless loop so if I could if could just offer a modest suggestion if no one has anything new to add that they resist the temptation to inflict what we already heard over and over again."

NBC News

4d ago / 3:05 AM UTC

At the congressional ballmentioned earlier,President Trump made brief remarks while the Judiciary Committee members continued to debate the articles of impeachment.

He began by calling it a very exciting month in Washington, D.C., to laughter.

Our country is doing really great, he said, while touting the stock market records andthanking the Pences and the first lady.

He said his family calls the White House a home, but some presidents called it a house and some called it much worse.

'Were going to have a fantastic year, he said. The best year in decades.

Dartunorro Clark

4d ago / 1:01 AM UTC

Rep. Jim Jordan, R-Ohio, introduced a fifth amendment aiming to strike the last eight lines of both articles of impeachment.

Both articles have the same language: "Wherefore President Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States."

The other four amendments introduced by Republicans have each failed with a party-line vote.

Dartunorro Clark

4d ago / 1:02 AM UTC

The fourth GOP amendment was killed in another party-line 23-17 vote. The three other amendments introduced by Republicans were also killed after lengthy debates.

The fourth amendment was introduced by Rep. Guy Reschenthaler, R-Penn., to strike the entire second article of impeachment: obstruction of Congress.

Alex Moe

4d ago / 12:12 AM UTC

If things continue to come together on schedule, we are looking at votes Tuesday on appropriations, Wednesday on impeachment, and Thursday on USMCA. With again, a caveat this could all change.

NBC News

4d ago / 11:58 PM UTC

Dartunorro Clark and Alex Moe

4d ago / 11:02 PM UTC

The fourth GOP amendment has been introduced by Rep. Guy Reschenthaler, R-Penn., to strike the entire second article of impeachment: obstruction of Congress.

The three other amendments introduced by Republicans have been killed along party lines by a vote of 23-17.

Rebecca Shabad

4d ago / 10:26 PM UTC

The committee voted 23-17 along party lines against the third GOP amendment, which was offered by Rep. Andy Biggs, R-Ariz., chairman of the House Freedom Caucus.

The amendment would have inserted language into the articles for impeachment that says the U.S. aid to Ukraine that was held up over the summer was eventually released.

The rest is here:

Trump involved in marathon session of his own on Twitter - NBCNews.com

A usurpation of Fourth Amendment rights – BayStateBanner

Whenever they change police policies, you know were the ones who will be targeted.

Prior to 1968 it would have been a constitutional violation for a policeman to stop-and-frisk anyone unless he had a warrant for that individuals arrest. However, the U.S. Supreme Court altered that restriction with its decision in the case of Terry vs. Ohio. It became permissible for a police officer to stop-and-frisk if it was his judgment that the person was carrying a gun or was about to commit a crime. The question then became whether the police force was judicious in the implementation of its stop-and-frisk policy. Former Mayor Michael Bloomberg of New York is now forced to account for the policy when he was in office.

The primary objective of stops by police in New York was to discover and remove guns thus reducing the number of shootings. Bloomberg served as mayor from 2002-2013. In 2002 there were 97,296 stops and 1,892 victims of gunfire. In 2011 the number of stops had climbed to 685,724 but there were still 1,821 gunfire victims. Clearly the stops were ineffective.

The disastrous aspect of the policy is that blacks and Latinos were the primary victims of the stops. They were nine times more likely to be stopped than were whites. And with all this police harassment, very few guns were taken off the street. During the Bloomberg era only 14 guns were found in every 10,000 stops.

Now that Bloomberg plans to run for president, blacks seem to be concerned that the apology for his support of stop-and-frisk is sincere, and well it should be. But little attention has been given to the loss of our Fourth Amendment rights. This constitutional amendment prohibited any unwarranted violations by the police. It states in part that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

In the process of defying this right, the police have alienated their relationship with blacks and Latinos. Without the support of the community, the police are less effective at their primary objectives, the protection of citizens and the deterrence of crime. Nonetheless there has been no serious outcry against the loss of Fourth Amendment rights.

Compare this with the protest from the National Rifle Association over any restriction on the unfettered right to buy guns, even firearms intended for military use. The NRA has imposed upon the American public an interpretation of the Second Amendment that would have required the Founding Fathers to anticipate in the late 1700s the availability of AR-15 style rifles as a common weapon of choice. The slow reloading flint locks were common back then.

The loss of Fourth Amendment rights did not end with stop-and-frisk. The technology industry in its many forms has now felt free to alienate whatever rights of privacy remain, regardless of the citizens race. Industry leaders insist that the loss of privacy is a modest price to pay in order for the high tech media to be affordable. Perhaps, but it is still a crime to record a telephone call without permission.

Bloombergs apology is an admission that stop-and-frisk has failed. Black leaders who oppose the practice should present their protest from the perspective of an excessive violation of the Fourth Amendment rights to privacy. This is an important grievance to pursue now because many people of all ethnicities are concerned with the massive loss of Fourth Amendment rights created by digital technology.

Go here to read the rest:

A usurpation of Fourth Amendment rights - BayStateBanner

Why is Adam Schiff sniffing around the phone records of reporters and congressmen? – Washington Examiner

Adam Schiff owes the public some answers.

The House Intelligence Committee chairman should explain why and under what authority he obtained and then publicized phone records that included calls involving the president's personal attorney Rudy Giuliani, ranking Intelligence Committee Republican Devin Nunes, journalist John Solomon, and others. It is far from clear when, or even whether, House subpoena powers extend so far without a court-ordered search warrant.

The California Democrat has used the records to hint at attempts by the Trump team and by Nunes, Schiffs bitter rival, to coordinate a pressure campaign against Ukraine for Trumps personal benefit. Solomon, meanwhile, was the conduit for much of the reporting, some of it from dubious sources, that Trumps defenders have cited as the reason Trump wanted certain Ukrainian actions investigated.

The exact scope of congressional subpoena power is a legal gray area, frequently fought over in the courts without clear resolution. In Schiffs favor, Congress arguably deserves more latitude amid impeachment proceedings. And as Giuliani and his associate Lev Parnas are both reportedly under investigation by divisions of the Justice Department, it is possible, if one stretches the imagination, that Schiff was somehow just piggybacking on those investigations to secure their phone logs.

But Schiff is on dangerous ground by publicizing phone calls by fellow members of Congress and journalists. Perhaps Schiff merely stumbled across Nunes's and Solomon's calls because they involved Giuliani or Parnas. But it sets a dangerous precedent that journalists, protected with good reason by the First Amendment, or members of Congress, protected with good reason by the Constitution's speech or debate clause, should be thus exposed by a committee chairman just to score what appears to be a few extra political points.

Nunes's phone calls probably do not merit speech or debate protection. But they might, and it is not a frivolous question. If a member of Congress takes an action connected to oversight for example, speaking on the phone with someone tasked by the president to do something in Ukraine the courts have ruled that the pertinence of this action to the speech or debate clause does not hinge on the formality of the investigation but on "whether information is acquired in connection with or in aid of an activity that qualifies as legislative in nature. Maybe it's a crazy idea, but there probably ought to be a presumption against leaking a political rival's phone activity in this manner. In fact, Schiff's behavior in this regard resembles that for which he now hopes to impeach the president.

There are other concerns here, as well. In the context of executive law enforcement, Fourth Amendment protections against unreasonable searches and seizures generally require permission from judges or magistrates. In other words, the checks and balances of the system require two of the three branches, not just one, to agree that the search is necessary and lawful. If Congress, meaning Schiff, acted without judicial imprimatur, then the legitimacy of his phone-records search is certainly questionable.

Meanwhile, if he did subpoena Solomons calls again, this is not entirely clear that would also raise serious issues related to press freedoms, in addition to the Fourth Amendment concerns. Schiff needs to clear up why Solomons calls were included in his dragnet. Their release appears to be an act of petty vengeance against someone whose reporting followed the wrong narrative.

Schiff owes the public absolute transparency here about his methods, and he must provide legal justifications that clear a fairly high bar. Yes, his exercise of power may conceivably have been legitimate, but count us unconvinced. Absent a full and convincing explanation, the phone-records search was presumptively invalid.

The rest is here:

Why is Adam Schiff sniffing around the phone records of reporters and congressmen? - Washington Examiner

Can the Police Be Trusted to Apply This Arrest Tactic? – The National Interest Online

But his apology, made at a predominantly black church in Brooklyn, puzzled many observers. That included scholars of criminal justice like ourselves.

Bloomberg has long been a vocal supporter of a policy the city police department officially called Stop, Question, and Frisk, including during his time as New Yorks mayor. In an effort to control crime, police aggressively and indiscriminately stopped and questioned people on the streets or in public housing projects. Police also often patted down suspects to check for weapons.

His apology was confusing because that phrase, often shortened to stop and frisk, is used to describe two different things.

As we wrote in our book, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic, one is a legitimate, constitutionally sanctioned tactic, grounded in a police officers reasonable suspicion that a particular person is engaged in criminal activity.

The other is an illegitimate, broad crime-control strategy that, more often than not, ignores the laws requirement that a particular person be reasonably suspected of breaking the law.

For centuries, the English common law tradition, which undergirds U.S. law, has recognized a police officers right to stop a member of the public to inquire about potentially criminal behavior. They can do this without needing to meet the legal standard for arresting the person and charging them with a crime provided the officer had reasonable grounds to be suspicious in the first place.

In 1968, the U.S. Supreme Court codified that practice in its decision in Terry v. Ohio. In that case, a police officer saw two black men walking up and down a Cleveland street and repeatedly peering into a particular stores windows. A white man joined them, after which the police officer approached the group, identified himself and patted down the mens clothes effectively, stopping and frisking them. The pat-down revealed that two of them were carrying illegally concealed firearms and burglars tools.

The men challenged the constitutionality of the initial stop and the subsequent pat-down.

When the case got to the Supreme Court, the justices established that stop-and-frisk was a practice fundamentally different than a search or seizure as specified by the Fourth Amendment. They concluded that the police officer had what they called a reasonable suspicion that the suspects were preparing to burglarize the store.

The court also ruled that police could pat down suspects to ensure they arent armed with weapons that could be used against the officers.

Taken together, the ruling gives police broad authority to decide when, whether and why to stop, question and frisk people.

In several rulings since 1968, the Supreme Court has expanded officers power to stop members of the public. That expanded power includes stopping someone in the open concourse area of an airport and requesting to see persons ticket and identification, briefly searching a car for hidden weapons, stopping people for minor infractions while really investigating more serious crimes and even frisking people under the pretext of looking for weapons in hopes of finding drugs.

Left unchecked, all that discretion could lead to discriminatory, racially unjust and unconstitutional behavior in which blacks and Hispanics are targeted more often than their proportion of the population would suggest they should be.

At its core, the stop-and-frisk approach is supposed to rely on more than a hunch. But the low burden of proof, the large discretion granted to police and the relatively invisible nature of these sorts of encounters combine to create real potential for abuse. Indeed, several U.S. police departments turned stop-and-frisk tactics into a wider, more aggressive strategy to cut down on crime.

Since 2002, New York City police officers, for instance, have stopped, questioned and often frisked hundreds of thousands of people each year. Police conducted more than 685,000 stops in 2011 alone. Over 82% of the people stopped were black or Hispanic, in a city where 52% of the population is black or Hispanic. Just 12% of all stops of people of any race resulted in an arrest or a summons.

Based on that data, a federal judge ruled in 2013 that the New York Police Department had unconstitutionally racially profiled its stop-and-frisk targets.

That year, New York police stopped 191,851 people; since 2014, under Bloombergs successor Mayor Bill DeBlasio, the number has dropped steadily. In 2018, just 11,008 people were stopped, and 31% of the stops resulted in an arrest or a summons.

As mayor of New York City, Michael Bloomberg warned that a judges 2013 ruling restricting stop-and-frisk policing could bring rising crime rates. Since the ruling, crime has stayed historically low. AP Photo/Seth Wenig

New Yorks aggressive stopping-and-frisking practices happened at the same time as changes within the citys police department, including a strategy in which police commanders identified what they called high-crime areas and flooded those locations with officers on foot patrols.

During that same time frame, the citys crime rate dropped especially its murder rate.

But crime rates stayed historically low even after officers dramatically reduced the frequency of stop-and-frisk encounters, signaling that other circumstances not stop-and-frisk drove the crime rate lower.

Despite those problems in New York, we believe that it is possible for stop-and-frisk to succeed in contemporary policing so long as it is not used broadly and indiscriminately.

Officers can be fair to suspects if they stop and question a person only when objective circumstances give rise to reasonable suspicion of criminal activity and if they frisk that person only when clear facts suggest the person may be armed.

For instance, it could be appropriate for an officer to stop and frisk someone on the street for wearing a trench coat in hot weather. Another example that could warrant a stop-and-frisk would be if an officer sees someone repeatedly entering and leaving a bank or store without doing any business inside.

Those situations dont depend on the race or ethnicity of the potential suspect. Racial or ethnic characteristics should be part of an officers decision to stop someone only if the person in other ways matches a description of a criminal suspect police are seeking.

Given the pervasiveness of racism and implicit bias, we believe that police departments that use stop-and-frisk tactics should be actively on guard against officers misuse of police power.

That includes careful recruitment and selection of new officers, excellent training and clearly written policies. Moreover, officers must be supervised in ways that increase accountability and transparency, potentially involving external oversight.

Body-worn cameras offer an opportunity for police departments to monitor and control officer decision-making during stop-and-frisk activities. Supervisors, training officers and even community members could systematically review body-worn camera footage as part of efforts to hold officers accountable for staying within the bounds of department policies and constitutional limitations.

If used properly, we believe, stop-and-frisk can be successfully and legitimately used while treating people with dignity and respect and giving suspects fair opportunities to tell their sides of the story. By making decisions fairly and acting with trustworthy motives, officers can ensure public safety while honoring citizens constitutional rights.

[ Expertise in your inbox. Sign up for The Conversations newsletter and get a digest of academic takes on todays news, every day. ]

Henry F. Fradella, Professor and Associate Director, School of Criminology and Criminal Justice, Arizona State University and Michael D. White, Professor of Criminology and Criminal Justice, Arizona State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Image: Reuters

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Can the Police Be Trusted to Apply This Arrest Tactic? - The National Interest Online

Facial Recognition Technology: Is There Anything to Be Afraid Of? – DevPro Journal

Over the past year, the debate over facial recognition technology has heated up. On one hand, facial recognition technology, like other forms of biometric identification, can greatly benefit systems in which the users identity must be flawlessly verified. Ravi Raj from Passage AI explains, Increasingly weve seen leaks of sensitive private information including credit card numbers, passwords and social security numbers, through data hacks, often resulting in identity theft. Facial recognition technology can increase the security of sensitive accounts by requiring a biometric scan to access an account in place of a password.

Raj says when its used ethically and accurately, facial recognition technology can also provide consumers with greater convenience. Raj says, for example, Facial recognition could be used to identify a passenger when they use public transit and automatically debit their accounts.

And there are numerous other uses or potential applications for facial recognition technology.

Identifying people in photos posted on social media is a familiar use case. This technology can also provide an efficient and secure solution to unlock mobile devices, target dynamic advertising based on a consumers age and gender, automatically track school attendance, and streamline airline check-in processes.

While some industries are exploring the promising potential, there is also ample concern over how facial recognition technology could create risks so much so that some legislators have passed laws to ban or limit its use, including San Francisco, Oakland, and the Boston suburb of Somerville.

Raj says concerns over facial recognition technology center on three general areas:

Raj says if businesses, enterprises or organizations use facial recognition for applications beyond what they publicly disclosed, it could lead to privacy and ethical issues.

He points out, however, Consumers do not have to give up privacy as long as their data is used solely for the reason described and nothing else.

Beyond privacy, Raj says, security of the data is very critical to ensure that hackers and other bad actors dont make malicious use of the data.

A report on the 2019 BioStar2 security breach brought some of these issues front and center. One of the biggest concerns is that unsecured biometric data cant be changed once its stolen its easier to update a password than change a face. Also, if account and personal information are stolen with biometric data, cybercriminals can take over accounts even exchange the account owners facial and fingerprint records for their own.

Raj comments, There could also be bias in the data that is used for training the deep learning models for facial recognition. Since the data sets used in a particular country would underrepresent minorities, it could lead to bias and algorithm errors when dealing with recognition of minorities.

The American Civil Liberties Union (ACLU) also raises questions about the use of facial recognition technology for surveillance, which could be carried out without peoples knowledge or consent. The ACLU warns that driver license photographs or other images could be used with surveillance systems to build systems that can track people.

The American Bar Association points out that using facial recognition technology for some use cases could violate the Fourth Amendment, which protects US citizens from unlawful search in places where people have a reasonable expectation of privacy. In 2018, the Supreme Court ruled that collecting historical cell site location information (CSLI) from cellular providers, which could be used to track a person, required a warrant. In its decision, the Supreme Court stated that as technology advances, courts would have to work to protect peoples privacy.

Facial recognition technology could also interfere with First Amendment rights to freedom of association if people know theyre being watched, they may begin to self-censor their activity.

If you are considering providing your users with identity, user authentication, or access control solutions using facial recognition technology, Raj advises you to vet solutions carefully.

It is extremely important that facial recognition technology be 100 percent accurate, he says. Even a small amount of inaccuracy can lead to inconvenience for consumers, and worse, violation of civil rights and the likelihood of innocent individuals being punished, especially in law enforcement applications.

He advises, Software developers should be very clear on how this technology is used in the solutions they provide and make sure their users are also aware.

Continued here:

Facial Recognition Technology: Is There Anything to Be Afraid Of? - DevPro Journal

Bill Would Constrain Some Police Use of Facial-Recognition Tools Across the US – Defense One

A 72-hour limit on tracking individuals would become the first, and somewhat arbitrary, federal line in the sand.

Police would need a warrant to use facial-recognition tools to track an individual for more than three days under a proposed law that would place the first federal limits on law enforcements use of thetechnology.

The bills sponsors, Sen. Chris Coons, D-Delaware. and Mike Lee, R-Utah, say their Facial Recognition Technology Warrant Act would prevent the sorts of governmental abuses common in China andelsewhere.

Under the new law, a police officer could, for instance, run footage from her body camera device against a database of people with outstanding warrants and use facial recognition to find matches. But that officer would not be able to use networks of closed circuit cameras to track an individual for longer than threedays.

The bills sponsors admit that the 72-hour limit is somewhat arbitrary. But they are seeking to strike a tricky balance between law enforcement groups that say facial recognition is a useful tool for solving and preventing crimes and privacy advocates who are pushing for more regulation or outright banning of the technology by policedepartments.


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China shows why limits are important, the senators said Thursday at a Brookings Institution event. That government uses facial-recognition and other technology to monitor dissidents and suppress public activism. Russia, too, has been weaving the tech into its surveillance nets in Moscow and other cities, aiming to help suppressdissent.

In the United States, courts have ruled that people cant expect privacy when they appear in public. However, some rulings suggest the use of technology to track individuals can be regulated. In 2018s Carpenter v. the United States, the Supreme Court ruled that police had violated the plaintiffs Fourth Amendment right against unreasonable search and seizure when they obtained digital location data from his phone without a warrant. Another is 2012s Jones v the United States, in which the government secretly placed a GPS tracker on the plaintiffs car and followed him for a month. Both rulings held that the government runs a clear risk of violating Fourth Amendment rights when it uses technology to track peoples location without a warrant even if that tracking is occurring in public. Coons and Lee aim to curb specifically the use of facial recognition for thispurpose.

The growth in facial recognition software for law enforcement in the United States is forecast to nearly triple from $136 million in 2018 to $375 million in 2025. Business forecaster IHS Insight predicts that the world will be watched by more than a billion surveillance cameras by 2021, nearly one-third more than today, thanks largely to China. A majority of Americans, about 56 percent, trust law enforcement to use the technology wisely. But examples of racial bias in the outputs of facial recognition searches, and other civil liberties concerns, have led some cities, such as San Francisco and, most recently Portland, to ban thetechnology.

Yet closed circuit camera footage is almost always of private property, owned by building managers or security companies. Right now, there are no laws that prohibit the way they collect image data on people in the public domain and there are no laws to prevent them from applying simple machine learning algorithms on that data to run their own tracking onindividuals.

See the rest here:

Bill Would Constrain Some Police Use of Facial-Recognition Tools Across the US - Defense One

Funniest/Most Insightful Comments Of The Week At Techdirt – Techdirt

from the double-double dept

I'm not sure when or if this has happened before: this week we've got cross-category winners in both the first and second place spots, both in response to the latest example of a SLAPP suit filed by a supposed free speech supporter. Norahc won first place for both insightful and funny by putting a name to this increasingly common hypocritical phenomenon:

Hereafter, this should be referred to as the Nunes Effect.

Meanwhile an anonymous comment took second place for both insightful and funny with a response to someone misusing the notion of "freedom of speech does not mean freedom of consequences" as though it was meant to include lawsuits:

Interesting theory. Then for the US, I propose a new civil law that allows people to sue others for owning guns. Like, if you are unhappy that someone owns a gun, you can sue them for up to a million dollars. Thankfully this would not infringe on the 2nd Amendment, since they are still free to own guns, just not free from the consequences.

And since that's all the winners right there, we now move straight on to editor's choice for both categories! On the insightful side, we've got a pair of comments about the ongoing privacy wars on multiple fronts. First it's That One Guy responding to the states that argued against the Pennsylvania ruling that compelled password production violates the 5th amendment:

A telling, and worrying, argument

"In a joint amicus brief in support of the Commonwealth, various states provide an interesting history of modern encryption, press the troubling consequences of Appellants position including the altering of the balance of power, rendering law enforcement incapable of accessing large amounts of relevant evidence and warn that adopting Appellants position could result in less privacy, not more, in the form of draconian anti-privacy legislation."

'If you don't let us violate constitutional rights we'll pass unconstitutional laws in order to let us do so' is really not the sort of thing you want multiple states arguing, as that shows a mindset that considers constitutional protections and privacy of the public not limits to be respected and something to uphold respectively, but obstacles to be worked around and/or undermined.

Law enforcement has never had access to all of the evidence they've wanted, and the fact that there are more ways for people to protect their privacy, even if that includes really terrible people, is not grounds to start giving them that which they have never had and never will have, especially when it will come at such a great cost to the general public.

Next, it's Bergman responding to our post about the EU telling the US to ban strong encryption:

Nerding Harder

The US government has over a hundred times greater access to people's communications, personal papers and everything else now than it did when the Fourth Amendment was written. The US government has surveillance capabilities beyond the worst nightmares of our founders.

Our law enforcement has never had a problem finding anyone from petty thieves to traitors, from illegal immigrants to foreign spies. But they're saying now that their incredible wealth of information is insufficient, that we are at risk of them being unable to catch all these bad people if we return to a level of government surveillance that persisted for most of our history, that they had zero problems with then.

The answer is as simple as it is obvious. The tech sector is not the group that needs to nerd harder. They people who need to nerd harder are the government agencies that are apparently slacking off, because with greater capacity to find bad guys they are claiming a reduced ability to actually pursue them.

Giving them more tools when they aren't fully utilizing the ones they already have is silly, they just won't fully utilize those either.

They just need to nerd harder at the NSA, DOJ and ICE.

On the funny side, we start out with allengarvin responding to our post about the court that tossed 82 pounds of marijuana because of the deputy's pretextual traffic stop:

"The rental car was only doing 60 mph in a 70-mph speed zone"

That crime is far worse than carrying 82 lbs of marijuana. If you're not passing someone, GET OUT OF THE DAMN PASSING LANE!!

And finally, we've got an anonymous response to our post about cord-cutting in which we accused cable execs of sticking their heads in the ground:

Pretty sure that is NOT where they are sticking their heads...

That's all for this week, folks!

View post:

Funniest/Most Insightful Comments Of The Week At Techdirt - Techdirt