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Court Analogizes Coinbase To ‘Traditional Bank’ For Purposes of Fourth Amendment Privacy Protection – Lexology

In the context of a search warrant in a criminal case, the Fifth Circuit Court of Appeals in the United States held that the virtual currency exchange Coinbase was like a traditional bank. The details of the case, U.S. v Gratkowski, Case No. 19-50492 (5th Cir. June 30, 2020), are as follows.

Richard Gratkowski became the subject of a federal investigation when federal agents began investigating a child-pornography website. To download material from the website, some users, like Gratkowski, paid the website in Bitcoin.

Federal agents used an outside service to analyze the publicly viewable Bitcoin blockchain and identify a cluster of Bitcoin addresses controlled by the website. Once they identified the websites Bitcoin addresses, agents served a grand jury subpoena on Coinbase for all information on the Coinbase customers whose accounts had sent Bitcoin to any of the addresses in the websites cluster. Coinbase identified Gratkowski as one of these customers. With this information, agents obtained a search warrant for Gratkowskis house. At his house, agents found a hard drive containing child pornography; Gratkowski admitted to them that he was a customer of the website. Gratkowski moved to suppress the evidence obtained through the warrant.

The case presented the novel question of whether an individual has a Fourth Amendment privacy interest in the records of their Bitcoin transactions. The right against unreasonable searches applies when a person has a reasonable expectation of privacy. But, under the so-called third party doctrine, there is no legitimate expectation of privacy in information voluntarily turned over to third parties. In applying that doctrine, the U.S. Supreme Court has previously held bank records were not subject to Fourth Amendment protections. The Supreme Court has also held that the third-party doctrine applies to telephone call logs.

However, in Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the Supreme Court held that individuals had a privacy interest in their cell phone location records, because that provides officers with an all-encompassing record of the holders whereabouts and provides an intimate window into a persons life, revealing not only [an individuals] particular movements, but through them [their] familial, political, professional, religious, and sexual associations. In so holding, the court remarked that cell phones had become almost a feature of human anatomy.

The Fifth Circuit rejected Gratkowski analogy of the Bitcoin blockchain to Carpenter. It said that the Bitcoin information is limited and that transacting through Bitcoin is not a pervasive [or] insistent part of daily life.

The court further held that hat the Coinbase records are more akin to the bank records than to cell phone data. It said that Coinbase is a financial institution that provides Bitcoin users with a method for transferring Bitcoin. The main difference between Coinbase and traditional banks, is that Coinbase deals with virtual currency while traditional banks deal with physical currency. But both are subject to the Bank Secrecy Act as regulated financial institutions. Both keep records of customer identities and currency transactions.

Finally, the court noted that Bitcoin users are not required to use third parties. They can conduct Bitcoin transactions on their own. However, since that requires a high level of technical expertise, many people chose to use a third party intermediary instead, such as Coinbase. In making that choice, a person voluntarily agrees to sacrifice some privacy.

The court held that Gratkowski did not have a privacy interest in the records of his Bitcoin transactions on Coinbase. It therefore affirmed the district courts denial of Gratkowskis motion to suppress. The decision should also stand as a lesson to all those who believe that their Bitcoin transactions are anonymous.

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Court Analogizes Coinbase To 'Traditional Bank' For Purposes of Fourth Amendment Privacy Protection - Lexology

Do We Have Privacy Rights Anymore? – Lawyer Monthly Magazine

Back in the 14th century through to the 18th century, people went to court for eavesdropping and for opening and reading personal letters[1] and from the end of the 19th century, this shifted to personal information being controlled in order to protect ones privacy.

It has been mooted for decades and extends outside what we may deem as our privacy rights today. When we mention privacy, we may be taken to early 2018, to the Facebook Cambridge Analytica data scandal, or to the EUs GDPR regulation which was implemented, again, in 2018. But privacy extends further than that, to issues involving contraception, interracial marriages and abortion (think Roe v. Wade). And it is such cases that have shaped our society and law around privacy today[2].

A brief history into privacy

A major article written by Samuel Warren and his legal partner Louis Brandeis advocating privacy rights was published in 1890 in the Harvard Law Review. The Right to Privacy argued that privacy is inherent in common law and generates various privacy torts, such as the disclosure of private facts (such as the aforementioned examples). Where some counter-argued that such rights can offer protection for the privileged, Warren and Brandeis still managed to pave the way for future legal cases regarding privacy.

And while the US Constitution, to this day, does not specifically mention a right to privacy, the Supreme Court has noted that it believes this right exists in the penumbra of several other, enumerated rights

William O. Douglas an American jurist and politician who served as an Associate Justice of the Supreme Court quoted Brandeis in thePublic Utilities Commission v. Pollak case in 1952, regarding whether the radio broadcasts on public transport was a violation of freedom and privacy: The beginning of all freedom is the right to be let alone thus the right to privacy. The right to be let alone, Brandeis who was an Associate Judge at the time- quoted this in the Olmstead v. United States case in 1928, where Roy Olmsteads conviction was in part based on evidence gathered through government wiretaps, is the most comprehensive of rights, and the right most valued by civilized men. Even though the Court originally held that neither the Fourth Amendment nor the Fifth Amendment rights of the defendant were violated, the decision was later overturned by Katz v. United States in 1967[3]. This case somewhat altered privacy rights in America, as the decision expanded the Fourth Amendments protections from the right of search and seizures of an individuals persons, houses, papers, and effects, as defined in the Constitution, to include what [a person] seeks to preserve as private, even in an area accessible to the public as a constitutionally protected area[4].

And while the US Constitution, to this day, does not specifically mention a right to privacy, the Supreme Court has noted that it believes this right exists in the penumbra of several other, enumerated rights, such as the Third, Fourth, Fifth, and Fourteenth Amendments, and as such, citizens are entitled to it under the catch-all provision of the Ninth Amendment. This has shaped privacy, in the US, to this day.

How much risk is posed here if we mindlessly click agree, or how much of our lives are now actually private?

What is privacy today?

So, the right to privacy has been a much-debated issue for a very long time and it seems as society develops, so does our concern for privacy. Once upon a time, postcards were seen as a threat to our privacy and now, we dont give them a passing thought as we have bigger qualms at hand: should we accept cookies, allow our phones to track our movement, or download the latest craze, such as TikTok and risk our precious data being shared amongst strangers? How much risk is posed here if we mindlessly click agree, or how much of our lives are now actually private?

If I take myself, as an example: I dont post a vast amount on social media I could be abroad and my Facebook friends would be none the wiser as I like to exercise my right to privacy. But, simultaneously, my phone will sift through my emails and recognise I booked a flight and it needs to notify me when I ought to leave the house so I make my flight on time; it will recommend sights for me to see, hotels to stay at, it will keep track of where I visited, how long for, how many steps I did that day, what restaurants I visited, what photos I took at that specific location, so when I land back home, it can collate all this information and email me a mini 21st-century scrapbook on my adventure. My tiny phone is more aware of what I did on my holiday than my own mother. Does it bother me? Not so much, because all of these features are convenient and I am actively deciding what I share and what I keep private which seems to be the centre of many debates and legal cases (such as the aforementioned Katz v. United States case). If my phone was hacked, however, and all my information was leaked, even though I lead a very boring life, I would be concerned to how my privacy was violated and who now has all that information at hand, yet I would have to still acknowledge that I allowed my phone to track my every move and that information was always available and at risk of being available to somebody else. It is not until external parties, such as the government, want to access that data that everything becomes a little too 1984 and we feel like our privacy rights are being breached.

The global pandemic is the perfect example of this constant battle we have with privacy and our control over it.

As written more succinctly in The New Yorker, people tend to invoke their right to privacy when it serves their best interests: People are inconsistent about the kind of exposure theyll tolerate. We dont like to be fingerprinted by government agencies, a practice we associate with mug shots and state surveillance, but we happily hand our thumbprints over to Apple, which does God knows what with them.

Freedom vs. privacy: What do we want more?

The global pandemic is the perfect example of this constant battle we have with privacy and our control over it. When governments across the world began to consider or release contact-tracing apps, many very apprehensive for obvious reasons: it screams a movement towards an Orwellian era. The app, which works by recognising when two phones are close together for longer than a set period of time (and if one user is later diagnosed with the coronavirus, an alert can be sent to the other), would enable the government to potentially track where you were and who you were with. The idea that the government would have a mass amount of data in their hands, didnt sit right with people, including many people close to me. But as soon as I questioned their reasoning and asked but do you care what cookies you accept or what information apps can access? they soon came to realise that they are not as concerned with their right to privacy as they thought, as they all simply dont take any notice to what Instagram is tracking.

There is clearly a societal need and purpose for utilising location-based data for the greater good.

Nonetheless, it was understandable why they were apprehensive. Norways health authority had to delete all data gathered via its COVID-19 contact-tracing app and suspend further use of the tool as the Smittestopp app represented a disproportionate intrusion into users privacy. The UK government was also forced to abandon a centralised coronavirus contact-tracing app after spending three months and millions of pounds on its development and switched to an alternative designed by the US tech companies Apple and Google after being promoted as more privacy-focussed, leaving epidemiologists with access to less data.

Speaking to Mike Ingrassia, President and General Counsel at Truata, he explains that the COVID-19 pandemic seems likely to enhance this sense of unease among consumers regarding the use of their data. On the one hand, consumers digital footprints are being expanded at a record-breaking pace as their lives move ever more from the physical to the digital realm. This is quickly increasing the amount of personal data that companies hold regarding their customers and incentivising those companies to monetise that data more aggressively in order to thrive during the pandemic-induced recession, he shares.

On the other hand, Mike expands, The response from governments to the COVID-19 pandemic has already raised many concerns when it comes to contact tracing apps, mobile location data tracking and increased surveillance. However, as the world continues its fight against the spread of COVID-19, it has become vital for governments to assess how they can use data for social good.

But why do we mindlessly allow Zuckerberg to store our data, but panic when the government wants access?

There is clearly a societal need and purpose for utilising location-based data for the greater good. But only if it is used responsibly. Governments must ask themselves whether appropriate safeguards and technologies are being applied so that they are not, in using that data to benefit society, failing to protect the rights of the individuals behind that data. Questions that need to be considered include what type of personal data is being shared, for what purposes and for how long?, says Mike.

There is no doubt that consumers have a growing awareness of the value of their personal information, and they are increasingly concerned with how its being used, both by public and private entities. It is not yet clear whether the introduction of GDPR and other more stringent global privacy laws has moved the dial on customer trust, as there still appears to be widespread confusion and distrust amongst consumers on how their data is being collected and who it is being shared with.

At the end of the day, the government is trying to do what it has always done: conduct surveillance of individuals and groups if they suspect they are presenting a danger to society. But why do we mindlessly allow Zuckerberg to store our data, but panic when the government wants access? Is our data in better hands when Facebook is using it, or with the government?

But in this day and age, when privacy almost correlates with data and our online activity, we lack full control over how private everything is.

And as Mike explains to us, even though most governments will in good faith want to use data responsibly, they will likely lack the tools and expertise to do so on their own. Private sector assistance, such as the provision of cutting edge, privacy-enhancing data analytics technologies so governments can responsibly get powerful insights from their data, will be needed. One of the most effective ways for governments to obtain such powerful insights from unique, large data sets responsibly will be to fully anonymise those data sets first, better enabling them to extract value from their citizens data without compromising the privacy of the individuals behind that data, Mike tells us.

Taking an approach such as this, leveraging the best privacy-enhanced data analytics technologies available from the private sector, such as powerful anonymisation solutions and related analytics tools, will allow governments to unlock life-saving insights from data, without sacrificing the privacy rights of its citizens.

In the aftermath of the COVID-19 pandemic, this might be one of the greatest opportunities for responsible coordination among the public sector and the private sector. If they can both embrace this opportunity if governments have the courage to use their data innovatively, and the self-restraint to do so responsibly, and if technology companies have the creativity to offer governments the tools to do so we will all benefit.

It is a fickle scale, where our need for control lies on one scale, and our trust in the technology lies in another. Perhaps we are more concerned with our right to freedom and liberty, as that is what shaped Roe v. Wade and Public Utilities Commission v. Pollak. And if we really think about privacy in this day and age (data, data and more data), we do somewhat lack full control of who has it and where it goes.

Do we care about privacy or are we actually aiming for liberty and freedom?

Rethinking what privacy actually means

Lets think about one of the most discussed laws of 2018: GDPR. Privacy was at the heart of this EU regulation, but in reality, the new measures were partially rolled out to help people better understand the way in which information is collected and used and was designed to harmonise data privacy laws, providing greater protection and rights to individuals. It gave the average citizens more control and freedom over what they choose to share and left organisations with more liability if they breached privacy rights. It wasnt to restrict companies access to our data per se (although companies were given less mobility in this area), it was to allow us to decide what we wanted to remain private. It is the same point that was mooted when postcards were invented if you felt threatened that your mail was going to be read and thus breach your privacy rights, you had the option to use an alternative method; if you dont trust a website with your cookies, you now have the option to refuse access. We have some control over our data and what we keep private but if we want to fully enjoy the world of Siri, we have to trust in the technology and be aware that our device is constantly listening and waiting for you to call its name.

The government is aware of our right to privacy. The Fourth Amendment in the US acknowledges that. The UKs Data Protection Act acknowledges that. The right to be let alone is the most comprehensive of rights, and authorities will recognise that if we feel like our privacy is being violated, we will speak about it. But in this day and age, when privacy almost correlates with data and our online activity, we lack full control over how private everything is. In a survey conducted by EY, they found that nearly half (46%) of survey respondents number one or two concern is not having a clear picture of where personal information is stored or processed outside of their main systems and servers[5]. Once data enters the internet, it will be accessed and logged and stored and analysed and compared with a billion other pieces of data, it is almost impossible to legislate data access away[6]. So, is any of our data truly private anymore? Do we care about privacy or are we actually aiming for liberty and freedom? Is it time for us to rethink what privacy means to us now and what it truly is in the current age?

[1] https://link.springer.com/content/pdf/10.1007/978-3-642-03315-5_2.pdf

[2] https://www.newyorker.com/magazine/2018/06/18/why-do-we-care-so-much-about-privacy

[3] https://en.wikipedia.org/wiki/Olmstead_v._United_States

[4] https://en.wikipedia.org/wiki/Katz_v._United_States

[5] https://www.ey.com/Publication/vwLUAssets/ey-can-privacy-really-be-protected-anymore/$FILE/ey-can-privacy-really-be-protected-anymore.pdf

[6] https://www.computerworld.com/article/3135026/does-privacy-exist-anymore-just-barely.html

Excerpt from:

Do We Have Privacy Rights Anymore? - Lawyer Monthly Magazine

Philly Lawyers Prepping Massive Lawsuit Against City Over Tear Gas and Other Incidents – Philadelphia magazine

City

Police and other officials need to be held accountable for these military-style assaults, says Center City lawyer Paul Hetznecker.

The Philadelphia Police Department using tear gas against protesters along I-676 on June 1st. Philly lawyers are now preparing to file a massive lawsuit or lawsuits against the city and police. (Photo by Mark Makela/Getty Images)

A roundup of Philly news. This post may be updated at any time as new information becomes available.

The decision to use tear gas against protesters in Philadelphia has become one helluva bad PR nightmare for city officials.

If you havent seen the damning New York Times investigation into the June 1st tear gas incident on I-676, watch it now, and youll see what I mean.

But that decision could also wind up becoming an incredibly costly one for the city. Philly Mag has learned that lawyers will soon file a lawsuit or multiple lawsuits in federal court against various city and police officials as well as individual police officers on behalf of numerous plaintiffs.

One of the lead lawyers, Paul Hetznecker, says he expects the defendants to include the city, individual city officials, the police department, Philly police commissioner Danielle Outlaw, and police officers themselves once the team of lawyers can identify who those police officers are, in certain cases.

There were so many incidents where we cant really identify the police officers right now, because many of them did not have their names or badges displayed, explains Hetznecker, who has represented countless protesters throughout his career, including from incidents surrounding the 2000 Republican National Convention in Philadelphia and the Occupy movement. And others, its hard to identify them with riot gear on. So we will probably file the lawsuit and name them later on once we discover their identities. They should be named personally. They should be held accountable along with those in charge.

Paul Hetznecker (photo provided) and Michael Coard (file photo), two of the attorneys organizing the tear gas lawsuit in Philadelphia.

Prominent activist and attorney Michael Coard, one of the lawyers working with Hetznecker, says that he expects controversial Philly cop Joseph Bologna to be at the front of the line in terms of cops named individually as defendants. Philly district attorney Larry Krasner has charged Bologna with assaulting a protester.

According to Hetznecker, the use of tear gas on I-676 and in West Philly will certainly be at the center of any legal actions filed. But he notes that there were plenty of other examples of police actions like Bolognas during the protests that constitute violations of protesters First and Fourth amendment rights.

Police and other officials need to be held accountable for these military-style assaults, he insists.

The First Amendment is sacrosanct, adds Coard. It is not to be praised one day as this glorious document and then used like a piece of toilet paper the next day even if the city and police think that peaceful protesting is a shitty way to petition your government. What happened here is blatant, obvious and egregious. There should not only be civil liabilities but also more criminal prosecutions.

A lot of people out there have been hoping that Philly would move into the Green Phase of reopening this Friday, July 3rd. After all, its Fourth of July weekend. And officials had previously said that July 3rd was the target date. But it sounds like the Green Phase may be farther away than we expected.

Philadelphia health commissioner Thomas Farley took to Fox 29s Good Day Philadelphia on Monday morning to talk about Phillys reopening (or not reopening) plans.

As of late last week our numbers were rising rather than falling, Farley told anchors Alex Holley and Mike Jerrick. And thats in the context of numbers rising a lot around the country. Its looks like were not going to meet the targets we had laid out to go to green. So were reevaluating now

Farley added that officials are particularly concerned about restaurants. He said to expect a final decision on Tuesday.

Heres the full interview:

While Philadelphia considers pulling back on its reopening plans, a much different scene is playing out at the Jersey Shore. The state is allowing Atlantic City casinos to reopen at 25 percent capacity as of Thursday.

Hard Rock is reopening on Thursday. Ballys, Caesars and Harrahs reopen on Friday. The Borgata will begin allowing guests to enter by invitation only on Thursday prior to opening to the public on Monday.

For a full list of Atlantic City casino reopening dates and the new guidelines they have in place to try to prevent the spread of the coronavirus, go here.

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Philly Lawyers Prepping Massive Lawsuit Against City Over Tear Gas and Other Incidents - Philadelphia magazine

Tucker Carlson’s Fanciful Defense of What He Imagines Qualified Immunity To Be – Cato Institute

A good sign that apolicy is indefensible is when its proponents cannot bring themselves to describe it accurately. Such is the case with the doctrine of qualified immunity, which is currently the subject of afurious disinformation campaign led by the lawenforcement lobby (see here, here). The most recent mouthpiece for this campaign was Tucker Carlson, who two nights ago mounted aspirited defense of an imaginary legal rule that he called qualified immunity, but which bears only the faintest resemblance to the actual doctrine. Reasons Billy Binion and IJs Patrick Jaicomo have already done agreat job explaining some of Carlsons biggest mistakes, but there is so much here that is either highly misleading or outright false that its worth unpacking in full. Strap in!

By way of background, the inciting incident for Carlsons segment on qualified immunity was the Reforming Qualified Immunity Act introduced by Senator Mike Braun (R-IN) earlier this week. As Idiscussed here, what this bill would effectively do is eliminate qualified immunity in its current form and replace it with limited safeharbor provisions. The main effect would be that people whose rights are violated would no longer need to find prior cases where someone elses rights were violated in the same way before being allowed to proceed with their claims. However, if defendants could show that either (1) their actions were specifically authorized by astate or federal law they reasonably believed to be constitutional, or (2) their actions were specifically authorized by judicial precedent that was applicable at the time, then they could avoid liability.

In other words, this bill doesnt go far as the AmashPressley Ending Qualified Immunity Act, which would eliminate the doctrine entirely. But it is still asignificant proposal that both meaningfully addresses and corrects the core absurdity of the current qualified immunity regime (the clearly established law standard), while preserving immunity in those relatively rarebut more sympatheticcases in which defendants are specifically acting in accordance with applicable statutes or judicial precedent. And, unlike the Justice in Policing Act, Senator Brauns bill would reform qualified immunity across the board for all government agents, not just members of law enforcement.

So, what did Tucker Carlson have to say about this bill?

Braun has introduced legislation in the Congress that will make it easier for leftwing groups to sue police officers.

I wont dwell on this point, because Carlson is clearly just being snarky here. But suffice to say, Brauns proposal is not specific to leftwing groups, and indeed, not specific to police at all. Rather, it just amends Section 1983,our primary federal civil rights statute, which permits all citizens to sue government agents who violate their rightsto clarify that defendants cannot escape liability, just because there is no prior case with similar facts.

Under current law, police officers in this country benefit from something thats called qualified immunity.

Again, qualified immunity is not limited to police officers. The defense can be raised by all state and local public officials who have civil rights claims brought against them, including corrections officers, public school officials, county clerks, and other municipal employees. Still, the reason qualified immunity is such ahot topic right now is because of its application to law enforcement, so Ill stop harping on this issue. Also, the suggestion that police officers actually benefit from qualified immunity is highly suspect, but well get to that later

Qualified immunity means that cops cant be personally sued when they accidentally violate peoples rights while conducting their duties. They can be sued personally when they do it intentionally, and they often are.

Here is where Carlson plunges headfirst into fantasy. This accidental/intentional distinction hes describing has no basis in qualified immunity case law. Indeed, under the clearly established law standard, adefendants state of mind has no bearing whatsoever on whether they are entitled to qualified immunitya defendant could be explicitly acting in bad faith, with the express intent to violate someones rights, and still receive immunity, so long as there was no prior case involving the precise sort of misconduct they committed.

The best illustration of this point is the Ninth Circuits recent decision in Jessop v. City of Fresno, where the court granted immunity to police officers alleged to have stolen over $225,000in cash and rare coins while executing asearch warrant. The court noted that while the theft [of] personal property by police officers sworn to uphold the law may be morally wrong, the officers could not be sued for the theft because the Ninth Circuit had never specifically decided whether the theft of property covered by the terms of asearch warrant, and seized pursuant to that warrant, violates the Fourth Amendment. In other words, it didnt matter that the officers were intending to break the law; not even the defendants here claimed that they accidentally stole from this suspect. All that mattered was that the court hadnt confronted this particular factual scenario before.

In other words, police officers are not above the law.

It is true that police officers are not literally immune from liability for their misconduct (unlike prosecutors, who actually do receive absolute immunity for violating peoples rights). But police officers are held to avastly lower standard of accountability than the citizens they police. For regular people, its awellknown legal maxim that ignorance of the law is no excuse. Even in cases with serious criminal penalties, courts routinely permit the prosecution and conviction of defendants who had no idea they were breaking the law. If anything, you would expect law enforcementpublic officials specifically charged with knowing and enforcing the lawto be held to ahigher standard of care than ordinary citizens. But in fact, theyre held to afar lower standard. Ignorance of the law is no excuseunless you wear abadge.

Cops who commit crimes can be punished . Cops who make lesser mistakes can be disciplined, suspended, or fired, and they often are. Thats the system that we have now. It works pretty well.

If this assertion doesnt cause you to burst out laughing, then you havent been paying attention to our criminal justice system for the last several decades. Suffice to say, no, our system is not working pretty well. It is extraordinarily difficult to convince prosecutors to bring charges against police officers, much less to obtain convictions (see here for alist of especially notable nonconvictions). And internal discipline measures are laughably feeble, due in large part to the power of police unions. The inadequacy of both criminal prosecution and internal discipline as meaningful accountability measures is exactly why we need arobust civil remedyand therefore exactly why qualified immunity is such aserious problem (weve argued this point in much more detail in our crossideological amicus briefs before the Supreme Court).

Civil immunity, by the way, has precisely nothing to do with anything that happened in the George Floyd case, just in case youre wondering. That cop is in jail.

Qualified immunity applies in civil law suits, not criminal prosecutions, so its true that qualified immunity will not limit the criminal prosecution of Derek Chauvin. But Carlson is wrong that the doctrine has nothing to do with anything that happened in the George Floyd case, for two reasons.

First, if George Floyds family does decide to bring acivil rights claim against Chauvin and the other officers on the scene, it is entirely possible that the officers would be able to invoke qualified immunity, depending on whether theres aprior case in the Eighth Circuit with similar facts (i.e., an officer kneeling on anonresisting suspects neck for along period of time while the suspect says he cant breathe). Even if Chauvin is convicted of murder, thats no guarantee that he wouldnt be entitled to immunity in acivil suit. Whether aprosecutor can prove the elements of murder beyond areasonable doubt is simply adifferent legal question than whether prior case law would make the violation of George Floyds rights clearly established, under modern qualified immunity doctrine.

Second, the senseless violence committed by Derek Chauvin and the stunning indifference of the other officers standing nearbyare the product of our culture of nearzero accountability for law enforcement. While that culture has many complex causes, one of the most significant is qualified immunity. Section 1983 was supposed to be the primary means of holding accountable government agents who violate our constitutional rights. Qualified immunity has severely undermined the deterrent effect of that statute, and thereby contributed to an environment where police simply do not expect to be held to account when they commit misconduct.

Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult splitsecond decisions on the job, and alot. They do it constantly. Whether to arrest someone, whether to conduct asearch, whether to use force against asuspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional.

Here, Carlson regurgitates what is probably the most commonly invoked defense of qualified immunity:that it is necessary to protect the discretion of police officers to make splitsecond decisions. And, no surprise, it is profoundly mistaken. This was the very first issue Iaddressed in my previous post on The Most Common Defenses of Qualified Immunity, and Why Theyre Wrong, but the short answer is that our substantive standards for determining what actions do and do not violate the Fourth Amendment already incorporate substantial deference to onthespot police decisionmaking. In other words, when police sincerely and reasonably make adecision about whether to arrest someone or use force, they almost certainly will not have broken the law in the first place. Qualified immunity is therefore unnecessary to protect this discretion, because the doctrine, by definition, only applies when adefendant has committed aconstitutional violation.

Moreover, as aI discussed above, qualified immunity has nothing to do with whether an officer sincerely and reasonably believed their actions to be lawful. It doesnt turn on their state of mind at all. All that matters is whether acourt determines that the facts of prior cases were sufficiently similar to hold that the law was clearly established.

The Reason article by Billy Binion aptly notes that Carlsons assertion here can only be explained by alack of familiarity with qualified immunity case law, and provides numerous examples of the sort of egregious injustices this doctrine regularly permits:

Take the cop who received qualified immunity after shooting a10yearold while in pursuit of asuspect that had no relationship to the child. The officer, sheriffs deputy Matthew Vickers, was aiming at the boys nonthreatening dog. There were also the cops who were granted qualified immunity after assaulting and arresting aman for standing outside of his own house. And the prison guards who locked anaked inmate in acell filled with raw sewage and massive amounts of human feces. And the cop who, without warning, shot a15yearold who was on his way to school. And the cops who received qualified immunity after siccing apolice dog on aperson whod surrendered. It doesnt take much thought to conclude that those courses of action were morally bankrupt.

Just so. Okay, back to Carlsons defense of whathecallsqualifiedimmunity:

Sometimes the very laws [police officers] enforce are struck down. Thats not their fault, obviously, but without qualified immunity, police could be sued for that personally.

Only atiny fraction of lawsuits against police involve claims that the laws theyre enforcing are themselves unconstitutional. But Carlson actually is correct that, without qualified immunity, police officers could be held liable for enforcing unconstitutional statutes. Indeed, that sort of application was probably the principal evil that Congress had in mind when it enacted Section 1983in 1871, as part of the Ku Klux Klan Act. Congress was well aware that southern states would continue passing laws infringing on the constitutional rights of recently freed slaves, and they wanted to deter state and local officials from carrying out such laws. Executive officersno less than legislators or judgeshave an independent obligation to enforce and respect constitutional limitations.

Still, one can understand the seeming unfairness in holding defendants personally liable when the only conduct alleged to be unlawful was executing astatute they reasonably believed to be valid. But,for that very reason, this is one of the two explicit safe harbors included in Brauns bill! His proposal specifically states that adefendant will not be liable under Section 1983 when the conduct alleged to be unlawful was specifically authorized or required by aFederal statute or regulation, or by astatute passed by the primary legislative body of the State in which the conduct was committed. In other words, Carlson is either entirely unaware of or willfully concealing the fact that Braun agrees with his own argument here, and has already incorporated it into his bill.

[Police officers] could be bankrupted, they could lose their homes. Thats unfair. It would also end law enforcement. No one would serve as apolice officer.

This is another issue Ialready addressed in my common defenses post, but Ill repeat the main points here. First, its crucial to understand that even today, police officers are nearly always indemnified for any settlements or judgments against them in civil rights claims. This means that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, aUCLA law professor and probably the foremost scholar of qualified immunity, demonstrated in a2014 article called Police Indemnification that, in her study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. In other words, even when plaintiffs do overcome qualified immunity, the individual police officers rarely pay adime.

I have written elsewhere about how this practice of nearautomatic indemnification is itself problematic, because it fails to provide for individualized accountability for officers who violate peoples rights. Abetter practice, as my colleague Clark Neily has also discussed, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. Nevertheless, as things currently stand, officers are almost never required to pay anything personally, and that wont change if we eliminate qualified immunity. The idea that police would be bankrupted or lose their homes is reckless fearmongering.

Also, with regard to the idea that eliminating qualified immunity would end law enforcement, Iwonder whether Carlson is aware that hes made atestable prediction? After all, as Idiscussed here, Colorado recently enacted acivil rights law that effectively removes the defense of qualified immunity for officers who violate peoples rights under the state constitution. Will this end law enforcement in Colorado? If Tucker Carlson or anyone who agrees with him would like to make abet on this question, Ill give generous odds.

And thats why the Supreme Court has upheld the principle of qualified immunity for decades now, often unanimously, both sides agreeing.

I will give Carlson thisheis absolutely right that the Supreme Court has shown remarkable tenacity in sticking to one of the most embarrassing, egregious mistakes in its history. Section 1983 clearly says that any state actor who violates someones constitutional rights shall be liable to the party injured, and the commonlaw history against which that statute was passed did not include any acrosstheboard defenses for all public officials. The Supreme Courts invention of qualified immunity was abrazen act of judicial policymaking that effectively rewrote this statute, and its shameful that the Justices have repeatedly declined the opportunity to correct this error.

What is surprising, however, is why Tucker Carlson approves of such blatant judicial activism in this case. After all, Carlson himself recently bemoaned how courts increasingly have come to see themselves not as interpreters of the law, their constitutional role, but as the countrys main policy makers. So, does he want the Supreme Court to faithfully interpret the text and history of Section 1983, or to continue imposing their own policy preferences?

But now, in order to placate the rioters, who he believes have more moral authority than the police, Senator Mike Braun of Indiana would like to gut qualified immunity, and make it easier for cops to be sued personally for mistakes.

I already discussed above how Senator Brauns bill does not wholly abolish qualified immunity, but rather replaces the clearly established law standard with two limited, principled safeharbors. Ialso discussed how Section 1983 doesnt make cops liable for mistakes,it makes them liable for constitutional violationsand the Fourth Amendment itself is already incredibly deferential to police decisionmaking. An officer hasnt violated the Fourth Amendment because they made the wrong call with regard to an arrest or use of force; they only violate the Fourth Amendment when they act objectively unreasonable, under the circumstances known to them at the time.

But Ido want to address this idea of moral authority. Setting aside the nonsense about placating rioters, how does it affect the moral authority of the law enforcement community when we hold police officers to alower standard of liability than any other profession? As Ive discussed previously, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. If you want to restore the moral authority of the police, you cant let police officers escape liability for egregious and immoral misconduct. If you want people to respect officers as professionals, then the law has to hold them to professional standards.

Qualified immunity, more than any other single rule or decision, has eroded the moral authority of the police, not protected it. And that is exactly why the more thoughtful members of law enforcementsuch as the Law Enforcement Action Partnership and the National Organization of Black Law Enforcement Executiveshave explicitly called for the elimination of qualified immunity. As Major Neill Franklin (Ret.) has explained: Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. Theres no better way to restore community trust. And we cannot do our jobs without trust.

* * *

Carlson finishes his segment with arant about Charles Koch that would make Nancy MacLean blush, and then asks whether Senator Braun would be willing to defend the absolute immunity that members of Congress enjoy. This latter question is interestingenough on its own, but Carlson obviously just intends it as a gotcha, not as aserious point of discussion.

But the bottom line is that Tucker Carlson has done aprofound disservice to his viewers and to the country by further propagating blatant misunderstandings of what qualified immunity actually is. Its honestly hard to say whether Carlson himself has been duped, or whether he is willfully joining the disinformation campaign of the lawenforcement lobby. But either way, nobody should take what hes saying at face value. Iremain interestedto see whether any selfprofessed advocate of qualified immunity will defend the actual doctrine.

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Tucker Carlson's Fanciful Defense of What He Imagines Qualified Immunity To Be - Cato Institute

Home Invasion: Warrantless Searches in Brazil and the United States – Justia Verdict

In November 2015, officers of the State of So Paulo received a tip from an informant reporting that an individual (named J.S.) kept weapons and drugs in his residence in a neighborhood of Guarulhos, State of So Paulo. The police carried out in loco investigations over a month, but did not observe any suspicious activity.

A few weeks later, after receiving a new tip, officers returned to the place and, upon seeing police arrival, J.S. quickly entered his house and tried to flee through a back door. The officers arrested J.S. inside his house and undertook a warrantless search. The police seized nine guns (including assault rifles and military-grade firearms), more than a thousand rounds of ammunition, drugs, and chemicals used in the illicit manufacture of narcotic drugs.

The Public Prosecutors Office of the State of So Paulo filed drug charges against J.S. in 2013 (according to article 33 of Federal Law No. 11,343/2006) (Case No. 3046559-20.2013.8.26.0224) and gun possession charges in 2015 (after receiving ballistic reports) (according to article 16 of Federal Law No. 10,826/03) (Case No. 0006327-46.2015.8.26.0224). and he was convicted by So Paulo State Courts of drug trafficking and illegal possession of a firearm to 12 years and 10 months imprisonment.

State Courts dismissed J.S. claims under the exclusionary rule. The Criminal Judge in Guarulhos stated that a warrant was not necessary because there was a reasonable suspicion of an ongoing drug offense in the house and previous anonymous tips confirmed such suspicion. The Court of Appeals, by rejecting a habeas corpus requested by J.S. attorneys (Habeas Corpus No. 2078076-14.2017.8.26.0000), also held that the warrantless search was lawful and anonymous tips are the only means informants living in the vicinity of the underworld of drug trafficking have to alert police authorities. The attorneys sought habeas relief. The Superior Court of Justice (STJ) denied, in 2018.

Finally, J.S. attorneys appealed to the Brazilian Supreme Court (STF) and Justice Edson Fachin remanded the case for further proceedings consistent with the merits of a landmark STF decision in Public Prosecutors Office of the State of Rondonia x De Lima (Extraordinary Appeal No. 603616). The STJ issued a second decision in 2020 in favor of J.S. unexpectedly concluding that police infringed the inviolability of J.S. home. The Court stated that the anonymous tip and the suspect behavior (running after police approach) did not give police a probable cause.

The described situation illustrates the big picture of Brazilian problems related to insufficient systematization of legal concepts and principles; as a result, judicial decisions in Brazil are unpredictable. The Brazilian Federal Constitution is partly to blame: it simply states that the home is the inviolable refuge of the individual, and no one may enter therein without the consent of the dweller, except in the event of flagrante delicto or disaster, or to give help, or, during the day, by court order (article 5, XI).

The STF decision (Extraordinary Appeal No. 603616, mentioned above) about home inviolability is basically a play on words: it basically states that a warrantless entry into a private home is lawful only if there is a clear showing of probable cause (well-founded presumption) shown after the fact that the suspect is committing a crime (flagrante delicto).

The Court did not define well-founded presumption and it did not elect review standards; as a result, it failed to reduce indeterminacy of an open textual legal principle. The STJ (second highest federal court in Brazil) jurisprudence (case law) reflects such disorientation: although it has accepted J.S. allegations reaffirming recent holdings e.g. Habeas Corpus n 435.465 (2018), Habeas Corpus n 83.501 (2018) and Habeas Corpus n 512.418 (2019) (a suspect quickly entering a house after noticing police approach and/or an anonymous tip do not give police a probable cause), it has also decided in a doublethink fashion that police are not required to carry out in-depth, but rather a brief investigation in order to ratify information anonymously received of informants (steps observed in J.S.).

By limiting the scope of protection offered by home inviolability the Court has also ruled that police had probable cause when (i) officers smelled marijuana couple with suspect nervousness; (ii) officers received an anonymous tip and, by nearing the scene, saw suspects leaving the residence in possession of drugs; (iii) officers received an informant tip and saw paraphernalia inside suspects apartment; (iv) officers were dispatched to the scene after an anonymous tip and saw people using drugs at the window; and (v) a suspect ran into his house after seeing a police unit dispatched after an anonymous tip.

The two-way road of Brazilian courts interpretation about home inviolability is apparently shared by American courts. Many conflicting decisions regarding Fourth Amendment interpretation (and syllogistically of probable cause and exigent circumstances) may be identified. For example, the U.S. Court of Appeals for the Tenth Circuit decided in United States v. Mongold and Moore that the officers observation of the odor of marijuana provided them with sufficient probable cause; on the other hand, the Supreme Court ruled in Kentucky v. King that the smell of burning drugs and the sound of movement inside the suspect apartment did not create an exigent circumstance to justify a warrantless entry.

The Fourth Amendments broad scope may be a source of diverging interpretations as it simply states that [t]he 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.

Due to the amendment, any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings (Exclusionary Rule), except for a few exceptions (e.g., exigent circumstances) and as long a probable cause is present. Thus, if the State does not adequately establish both probable cause and exigent circumstances, or another recognized exception to the warrant requirement, then evidence obtained as a result of the warrantless entry will be excluded from evidence (Gutierrez v. State, 221 S.W.3d 680).

The problem (or fact) is that it has been broadly left to judges to decide whether exigent circumstances and probable cause are present in a real situation, and judges are not mere rule appliers and unbiased fact finders. Legal uncertainty is a feature of Brazilian and American legal systems, but it should have some rational limitations. Kit Kinports believes that the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendments warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as reasonable to believe in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

Therefore, some interpretation standards are indispensable for defining the scope of protection of home inviolability and some additional reasonableness (influenced by a realistic rationality) should have a greater influence on judicial decisions: as ruled by a Canadian Court of Appeals, both a justice and an arresting officer must assess the reasonableness of the information available to them before acting and the law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant (R. v. Golub).

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Home Invasion: Warrantless Searches in Brazil and the United States - Justia Verdict

German Regulator Softens the Tone with Online Casino and Poker – GamblingNews.com

The Regional Council of Darmstadt was effectively forced to reconsider its enforcement policies regarding online casino and poker operators in the country, after a test court case brought by an operator successfully challenged a prohibition order issued by the regulatory body under the Third Amendment on the State Treaty on Gambling. The council is now more willing to develop transitional regulations to pave the way towards the Fourth Amendment coming into force, instead of issuing blocking orders.

The Deutscher Verband fur Telekommunikation und Medien (DVTM) informed that both the plaintiff and the Council requested the suspension of proceedings, to provide time for the development of transitional regulatory environment alongside private gaming operators. The operator will not be subjected to enforcement actions during the suspension period.

The DVTM also pointed out any continuation of the enforcement policies against payment providers such as Visa contravenes European Law and all German states face millions in financial sanctions, with the sums getting bigger the longer the prohibition order is in effect. As the Lower Saxony operates collectively for all states, all of them are facing the risk of legal action.

The regulatory body from Lower Saxony issued its first prohibition order in the summer of 2019 against Paypal, effectively forcing the payment processor out of the country. In February 2020 another unnamed operator was issued a blocking order, with the Ministry of the Interior and Sport in the state seeking to demonstrate its resolve to deal with illegal online gambling.

Besides payment providers, sports betting operators are also liable to sanctions from the regulator, despite the licensing process being halted in court in April, when Austrian sports book operator Vierklee argued and managed to convince the judges the process was lacking transparency and was discriminatory against businesses that were not already active in the market. The Council announced in May, though, it will continue to accept license applications and will appeal the court ruling.

The report in DVTM pointed out some court proceedings in other German states are already taking into account the incoming changes agreed by the State Ministers in Berlin in May 12, 2020, along the terms of which operations that are now subdued to sanctions will be legal, effective July 1, 2021.

Moreover, DVTM Chairman Renatus Zilles insists Lower Saxony immediately suspend any enforcement actions and start working on transitory regulatory framework to facilitate the implementation of the incoming new gaming rules as per the Fourth Amendment of the State Treaty on Gambling. Otherwise, they all work in favour of the offshore operators from Asia and Russia who besides anything else, do not pay state taxes.

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German Regulator Softens the Tone with Online Casino and Poker - GamblingNews.com

Evaluating the GOPs JUSTICE Act – National Review

Senator Tim Scott (R., S.C.) speaks about his new police reform bill during a news conference on Capitol Hill in Washington, D.C., June 17, 2020.(Yuri Gripas/Reuters)Its better than the Democrats proposal, but it goes too far on neck restraints and not far enough on no-knock warrants, and it fails to address qualified-immunity doctrine.

George Floyds tragic death at the knee of Minneapolis police officer Derek Chauvin has sent shockwaves through an America understandably outraged and traumatized by the unnecessarily fatal episode. Public unrest has spurred political action. In Washington, both Democrats and Republicans have pulled together fast-track legislation aimed at police reform the Justice in Policing Act and the JUSTICE Act (Just and Unifying Solutions To Invigorate Communities Everywhere Act), respectively.

The lead sponsor of the Republican bill, Senator Tim Scott (S.C.), is one of only two African-American men in the upper chamber (and the only black Republican). Hes done an admirable job on a short timeframe. His bill is a better approach overall than the Democratic alternative, a well-intentioned effort that nevertheless overreaches in some areas, with very real public-safety costs in the balance. The Republican bill is generally more modest seeking data and transparency when solutions arent clear but is still a significant effort aimed at addressing more clearly defined problems.

Still, the GOP bill could be improved. There are some ways in which the bill probably does not go far enough, and others in which it may go too far. And it omits an important area of focus, included in the Democrats bill, that Republicans should address.

Where could the Republican bill go further? It could do more to constrain no-knock warrants, which authorize police to enter a dwelling forcefully, and without notice, often in the late-night or early-morning hours. There is certainly a case for such tactics in at least some cases. Organized-crime hideouts, for example, are often heavily armed. The Democrats approach a complete ban on no-knock raids in all drug cases would unnecessarily risk officer safety.

No-knock warrants are probably overused sometimes tragically, including in the case of Breonna Taylor, whose name is affixed to the corresponding section of Senator Scotts legislation. Consider also a 2014 raid in which police threw a flashbang grenade into the bedroom of Alecia and Bounkham Phonesavanh in Wisconsin. The grenade landed in the crib of their 18-month-old toddler, who took the brunt of the flashbangs blast, suffering a collapsed lung as well as severe burns to his face and chest; the child was in a medically induced coma for more than five weeks, and the family faced $1 million in medical bills. The target of their investigation did not live at the residence and was not there when police performed the raid.

The Republicans JUSTICE Act uses Congresss spending powers to encourage police departments to meet various reporting requirements relating to no-knock warrants. Such data would be useful, but there is room for more here. Congress should also push police departments to require a high-level commanding officer to sign off on any no-knock warrant. Judges already must approve, as required by the federal Constitutions Fourth Amendment, but they may lack the capacity to weigh safety-risk tradeoffs and may give police undue latitude. Requiring a commanding officer to sign off and assume public accountability in the event things go awry would help deter overuse of no-knock warrants.

While the JUSTICE Act could go further on no-knock warrants, it may go too far on the controversial use of neck restraints or chokeholds, as theyre more commonly known. Theres certainly no case for applying full body pressure on an unresisting suspects neck for eight minutes and 46 seconds the indefensible use of force that killed George Floyd. But just as no-knock warrants probably have legitimate uses in at least some cases, neck restraints can be a way for a police officer to gain control of a resisting suspect, avoiding deadlier applications of force.

We dont have a lot of data here. We dont really know, for example, just how likely it is that temporary application of a neck restraint, for the purpose of securing a suspect, will result in serious injury or death. Its vital to gather more data.

We do know one thing, however: Shooting a suspect with a gun is much deadlier than using a neck restraint. The JUSTICE Act doesnt go as far as the Democrats bill, which would ban neck restraints in all cases; the JUSTICE Act limits such restraints to cases in which deadly force is required. But such deadly-force situations also would offer a complete defense to officers shooting a suspect. If officers options for securing a resisting suspect are limited, either the Democrats or the Republicans bill could unintentionally lead to more police shootings. The dramatic reduction of such shootings over time is an unappreciated success. In New York City, for example, the number of individuals wounded and the number of individuals killed by police using a firearm each fell 90 percent between 1971 and 2016. We dont want to see that trend reverse itself.

Conspicuously absent from the JUSTICE Act is any mention of qualified immunity, a legal doctrine that the Democrats bill would eliminate as applied to police. The Democrats bill may go too far, but the Republicans should nonetheless address the issue.

Qualified immunity shields police officers (and other government officials), under certain conditions, from lawsuits based on an 1871 federal law. The 1871 statute enables citizens to collect money damages from state and local government for violations of constitutional rights. In 1967, the Supreme Court ruled that government officials couldnt be sued for actions that were not known to be unconstitutional at the time: It wouldnt allow a lawsuit against police officers for acting in 1961 to enforce a law that was declared unconstitutional in court four years later.

Both critics and defenders of qualified-immunity doctrine tend to overstate its practical importance at least with respect to police use of force. The doctrine does nothing to shield officers from criminal prosecution or disciplinary actions. Most lawsuits against police uses of force and other alleged misconduct dont involve the federal constitution. And even when they do, qualified immunity usually doesnt matter: In a 2017 article in the Yale Law Journal, professor Joanna Schwartz (a critic of the doctrine) found that qualified immunity was the basis for dismissal or summary judgment in less than 4 percent of the cases she sampled.

That qualified immunity isnt used often doesnt mean that it doesnt matter at all. It also doesnt mean that the Supreme Court got it right, or that Congress should avoid the issue. As mentioned, the underlying statute was enacted in 1871 decades before the modern Federal Rules of Civil Procedure made federal lawsuits much easier to file, imposing sizable discovery costs on defendants, win or lose. Congress should legislate a standard, rather than leave it up to unelected judges.

It makes little sense to hold government officials liable for actions based on changes in the law. When the Supreme Court announced, in the 1966 case of Miranda v. Arizona, that police officers had to read criminal suspects their rights, it would have made little sense to allow lawsuits against officers who hadnt done so in 1965. Police departments arent Supreme Court seers, and they wont change their behavior based on unknown future changes in the law. Such lawsuits would act as little more than a tax on policing one ultimately borne by the taxpayers.

In some cases, however, the doctrine of qualified immunity has been used to shield police from liability when the contours of the general legal concepts at issue are clear, but the specific factual circumstances are different. Judges have dismissed lawsuits based on trivial factual distinctions between an officers actions and earlier cases that established a clear legal principle. Congress might helpfully clarify that the qualified-immunity doctrine applies only to clear changes in legal rights not idiosyncratic fact patterns.

Although we think the JUSTICE Act could be improved, we appreciate the effort Senator Scott has made to craft a thoughtful legislative reform proposal in such a short time. In a country of 330 million people, well never eliminate the possibility of police misconduct, any more than well be able to eliminate violent crime. That doesnt mean we cant do better.

James R. Copland is a senior fellow and the director of legal policy at the Manhattan Institute for Policy Research. Rafael A. Mangual is a fellow and the deputy director of legal policy at the Manhattan Institute and a contributing editor of City Journal.

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Evaluating the GOPs JUSTICE Act - National Review

Barr sides with Idaho on preventing transgender women from playing women’s sports | TheHill – The Hill

Attorney General William BarrBill BarrBarr: 'Developments' likely in Durham investigation this summer More than 100 former Manhattan prosecutors condemn Berman firing Low voter registration poses a threat to American democracy MORE filed a statement of interest Friday defending Idahos law that bans transgender female athletes from competing in womens sports.

In the statement, Barr referred to transgender women as biological males and says that allowing them to compete inwomen's sport leagues is fundamentally unfair to female athletes.

In March, Idaho Gov. Brad Little (R) approved legislation to prohibit sex changes on birth certificates and ban transgender girls and women from competing in women's sports leagues. Civil rights groups promptly filed a federal lawsuit challenging the law.

Barr wrote that under the Equal Protection Clause of the Constitution, Idaho is allowed to recognize the physiological differences between the biological sexes in athletics.

Because of these differences, the Fairness Acts limiting of certain athletic teams to biological females provides equal protection, he wrote. This limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place namely, the goal of ensuring that biological females have equal athletic opportunities. Single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.

The ban applies to all teams associated with or sponsored by public schools, colleges and universities and cites different athletic capabilities between men and women. It is set to be enacted on July 1.

The American Civil Liberties Union (ACLU) has argued that the state law is unconstitutional, citing violations of the 14th Amendments Equal Protection Clause and the Fourth Amendment's protections against invasions of privacy.

The ACLU also argues that the law opens the door for any women to be probed about their gender, potentially in the form invasive genital and genetic screenings.

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Barr sides with Idaho on preventing transgender women from playing women's sports | TheHill - The Hill

What Is Qualified Immunity and Why Do Some Want To End It? – Snopes.com

Rumors are surging in the wake of George Floyds death and resulting protests against police violence and racial injustice in the United States. Stay informed. Read our special coverage, contribute to support our mission, and submit any tips or claims you see here.

Viral video of former Minneapolis police officer Derek Chauvin pressing his knee into the neck of George Floyd, a Black man, for nearly nine minutes before his death resulted in widespread outrage and weeks of civil rights protests across the U.S. Amid a groundswell of popular pressure, prosecutors took the unusual step of arresting and charging Chauvin with second-degree murder and also charging three other officers at the scene with aiding and abetting him.

But even if Chauvin is found guilty, attorneys we spoke to who are experts in a legal doctrine called qualified immunity told us it would still be an uphill battle for Floyds family to successfully sue for restitution.

Thats because qualified immunity, though obscure, is a significant legal hurdle for civilians who try to sue police for claims of constitutional violations, such as the Fourth Amendment protection against unlawful search and seizure, when police kill or injure someone. To get past it, plaintiffs in lawsuits have to show that the exact manner in which a police officer violated their rights has been clearly established as wrongful by legal precedent. That means they must be able to point to another court case with circumstances nearly identical to theirs, and in which a court ruled that an officer had violated the Constitution.

This doctrine encourages police to act with impunity because they know there will be no consequences, said Scott Michelman, legal director for the American Civil Liberties Union of Washington, D.C.

Though the immunity has been in place for more than 50 years, opposition to it is growing, with Floyds death driving discussions about police accountability and violence, particularly against the Black community. Protesters at Black Lives Matter rallies have carried signs calling for an end to qualified immunity, as have legislatorsand professional athletes. But when the matter came before the U.S. Supreme Court on June 15, 2020, the high court punted, leaving the issue to Congress.

Nonetheless, on June 19, 2020, the state of Colorado took matters into its own hands, with Gov. Jared Polis signing into law a bill that ends qualified immunity as a defense for violent police officers.

Qualified immunity grants government officials like police officers legal protection from financial liability in civil cases. It was invented out of whole cloth by the U.S. Supreme Court, meaning it represents judicial policy making, Clark Neily, vice president of criminal justice for the Cato Institute, a libertarian think tank, told us, adding that the judicial branch making public policy goes against the Constitution.

The way the Constitution does it, is it allocates responsibility among different branches of government. People who are elected and have to stand for reelection are the ones who should make policy, Neily said. People who have lifetime appointments and serve in a branch of government that the Constitution doesnt give any policy making power to [i.e., the judicial branch], shouldnt because they are not politically accountable. And simply because the Constitution doesnt give them that authority. The Constitution is 100% clear on that.

Writing for the legal website The Appeal, Amir Ali and Emily Clark, the deputy director for the Supreme Court and the appellate program at the MacArthur Justice Center and appellate research specialist at the Center, respectively, trace the history of qualified immunity to 1967, writing that over time, the interpretation of qualified immunity has become more narrow, favoring police:

The Supreme Court invented qualified immunity in 1967, describing it as a modest exception for public officials who had acted in good faith and believed that their conduct was authorized by law. Fifteen years later, in Harlow v. Fitzgerald, the Court drastically expanded the defense. The protection afforded to public officials would no longer turn on whether the official acted in good faith. Instead, even officials who violate peoples rights maliciously will be immune unless the victim can show that his or her right was clearly established. Since the Harlow decision, the Court has made it exceedingly difficult for victims to satisfy this standard. To show that the law is clearly established, the Court has said, a victim must point to a previously decided case that involves the same specific context and particular conduct. Unless the victim can point to a judicial decision that happened to involve the same context and conduct, the officer will be shielded from liability.

The difficulty of meeting this standard, and the dearth of other options for seeking justice, leaves many plaintiffs in such cases with no recourse, even when video evidence would seem to make the case clear.

Qualified immunity has the effect of closing off all avenues of redress for citizens who accuse police of violating their constitutional rights, Neily told us.

This is important because it is extremely rare for police who kill people on duty to be convicted of a crime, according to research. While a database maintained by The Washington Post since 2015 has logged an average of nearly 1,000 fatal police shootings every year, criminologist Philip Stinson determined that between 2005 and 2019, out of 104 state and local law enforcement officers who have been arrested for murder or manslaughter for fatal on-duty shootings since 2005, 36 have been convicted of a crime.

The only time you see a police officer prosecuted criminally is when the thing they did was caught on video or gets picked up by the media, Neily told us by phone. Prosecutors have a massive conflict of interest. They work together. They depend on cops to bring them cases and testify in court. So criminal law is not going to do it.

Police can also conduct internal investigations into an officers behavior, but Neily noted they are ineffective because youre asking police to decide if the police did anything wrong. And they almost always say no.

Lawsuits, then, are the only route citizens can initiate themselves to seek justice. But qualified immunity throws up a hurdle so big, most cases never see their day in court.

In May 2020, Reuters conducted a study in which reporters analyzed 529 federal circuit court opinions published from 2005 through 2019 on appeals of cases in which cops accused of excessive force raised a qualified immunity defense. Reuters concluded:

Our analysis of this data showed the appellate courts growing tendency, influenced by guidance from the Supreme Court, to grant police immunity. More than ever, they are ignoring the question of whether cops have violated a plaintiffs constitutional rights, thereby avoiding establishing a precedent for future cases and making it harder to win cases against the police. The failure to set precedents is particularly challenging for plaintiffs because the data also showed that appellate courts are increasingly requiring a nearly identical case from the past to serve as a precedent that clearly establishes an officers actions as illegal a high standard that again makes it hard to win against the police.

The hardest thing for lawyers to do is try to get their clients to understand how they can never even get to a trial even though the evidence is clear that their rights were violated, said Jeremy Beaver, an Oklahoma-based attorney who represented the family of Johnny Leija. Leija was a 34-year-old man hospitalized for pneumonia. Police were called when Leija became disoriented and tried to leave the hospital to go home. He died of suffocation when responding police officers tackled him and used stun weapons on him.

You have to find a case with exactly the same facts where another court has said this is a violation, or you cant get past qualified immunity, Beaver said. In the case of Leijas family, Beaver told us the case was eventually thrown out because there wasnt another case in which a mentally, physically compromised patient wanted to leave a hospital against medical advice, and had been shot with a taser and died.

On a very basic level, even if youve been wronged and everyone agrees youve been wronged in a very harmful way, you cant have a remedy. Not because of a legislative process or law, but because of a Supreme Court doctrine that says you cant, Beaver continued. There is no deterrent to the police, and the people who have been wronged have no recourse.

In testimony before the U.S. Senate on June 16, 2020, Fraternal Order of Police President Patrick Yoes said that his organization, a lobbying group that represents 330,000 member police officers, is strongly opposed to any legislative effort to end qualified immunity, because in the field, police are often faced with a wide range of split-second decisions.

Every single factual scenario an officer encounters is different and unknown, Yoes said during his testimony. It is extremely difficult for an officer to determine how a legal doctrine will apply to a split-second factual scenario that the officer confronts. Thus, unless there is existing precedent that squarely governs the facts [laid out] before the officer, the reasonable officer needs to be afforded a certain degree of discretion to make split-second decision in situations that could put lives, including their own, at risk. Officers should not be punished for doing so.

According to the legal blog Lawfare, the Supreme Court justified qualified immunity by stating broadly that it gives government officials breathing room to avoid fear of being sued when performing public services, but in regards to police:

Also at the core of the Supreme Courts jurisprudence is the contention that it would be unfair to hold government officials to constitutional rules they were not aware of at the time of the violation. The court first articulated this idea in a pre-Harlow decision, stating that [a] policemans lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Then in Harlow, the court wrote: If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to know that the law forbade conduct not previously identified as unlawful. And a recent case described the focus of qualified immunity as whether the officer had fair notice that her conduct was unlawful.

The phrase qualified immunity was probably unknown to most until the protests of spring 2020. But in a phone interview, Ali told us he is somewhat optimistic that recent increased public awareness and engagement could bring change.

Once people understand what it is, its not hard for them to see it makes very little sense and is in fact quite perverse, Ali, the MacArthur Justice Centers deputy director of the Supreme Court and Appellate Program, told us by phone.

Qualified immunity has opponents from the full spectrum of political ideology, with liberal Supreme Court Justice Sonia Sotomayor and conservative Justice Clarence Thomas voicing opposition to it, and organizations like the libertarian Cato Institute and the NAACP fighting to overturn it in court.

The Supreme Courts decision not to hear a case challenging qualified immunity has left the question to Congress, Ali noted. As protests against institutional racism and police violence swept the country in 2020, both the U.S. House of Representatives and the Senate set upon crafting police-reform legislation.

But U.S. Sen. Tim Scott, R-South Carolina, said any legislation addressing qualified immunity is a poison pill for Republicans, who control the Senate. And thats because the White House has stated the President will not sign a bill that repeals Qualified Immunity, said Sean Smith, a spokesman for Scott, in an email.

I think [President Trump] will reconsider, and I think so will the Republicans on the Hill once they truly understand what were talking about here, Ali told us by phone.

Ali also said that local and state governments can also create their own laws, independent of the federal government, so that qualified immunity is no longer used in defense in cases of alleged police misconduct, like the state of Colorado did.

Ali connected qualified immunity to the death of Floyd, stating he believed the ongoing lack of accountability for police who commit acts of misconduct had created an environment in which they dont view themselves as being accountable for their actions:

If you study qualified immunity cases, you cant help but draw a pretty clear connection to what we all saw in the video tape of Derek Chauvin murdering George Floyd. You can find cases of police officers putting their knees on peoples necks in the absence of a threat. And when people have tried to hold these precursors to Chauvin accountable, they have been kicked out of court, not because anyone thinks the officer acted reasonably or constitutionally, but because the [the court says] the officer is entitled to immunity even if what he did violated the Constitution.

So when you look into the eyes of Derek Chauvin and see that he didnt have a care in the world many observed he had his hands in his pocket, sunglasses peacefully resting on his head as he slowly took the life of George Floyd, the question is, why does this officer clearly think he can get away with murder? Part of the answer to that is that courts through qualified immunity have communicated to officers that they can get away with this. I think we all cant help but be shocked and should be shocked when we see the video. But at the same time I dont think that we can pretend to be surprised.

Read the rest here:

What Is Qualified Immunity and Why Do Some Want To End It? - Snopes.com

GBI Says Fulton DA Blindsided Agency Amid Investigation in Brooks Case – All On Georgia

The Georgia Bureau of Investigation says it was unaware that Fulton County District Attorney Paul Howard planned to file charges against the officers involved in the Rayshard Brooks case while the agency was still conducting its investigation.

Approximately an hour after Howard announced the charges Wednesday, the agency posted on social media:

The GBI was not aware of todays press conference before it was conducted. We were not consulted on the charges filed by the District Attorney. Despite todays occurrence, the GBI will complete its mission of completing an impartial and thorough investigation of this incident and we will submit the file, once completed, to the Fulton County District Attorneys Office.

The now-former Atlanta police officer involved in the officer-involved shooting that resulted in the death of Rayshard Brooks has been charged with felony murder and 10 other criminal charges.

Fulton County District Attorney Paul Howard announced Wednesday that Garrett Rolfe, who was fired over the weekend, would stand trial on 11 counts including felony murder and a number of assault charges.

Howard said Wednesday that Brooks never displayed any aggressive behavior toward the officers during the nearly 42-minute exchange with officers, while referring to Brooks as jovial. He went on to say that the officers failed to provide timely medical attention to Brooks after he was shot and that Rolfe kicked Brooks as he was lying on the ground, fighting for his life.

The second officer at the scene, Devin Brosnan, faces three charges, including aggravated assault for standing or stepping on Brooks shoulder after he was shot. He has already agreed to serve as a witness for the state and testify against Rolfe, according to Howard. They also offered him a bond of $50,000 in exchange for his cooperation.

Atlanta officers responded to a call Friday night due a man, later identified as Rayshard Brooks, asleep in his vehicle and blocking the drive-thru lane. Body camera footage shows Brooks move his vehicle to a parking spot where he hits several bushes. After conducting a field sobriety test for possible DUI, officers decided to take Brooks into custody but Brooks resisted. A scuffle ensued and Brooks began resisting. Officers attempted to restrain him and to tase him, but Brooks took possession of the taser and began to flee. Surveillance from the Wendys shows Brooks turn around and point the taser at Officer Rolfe, who fired his duty weapon. The autopsy concluded that Brooks was shot twice in the back.

Pundits and activists alike have contended that Rolfe should have used a different form of force of the less-than lethal variety or allowed Brooks to flee with his taser. Case law on the matter sets a different precedent, however.

In the 1994 Supreme Court case Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994) the Plaintiff argued that an officer should have used alternate measures prior to deadly force, basically asserting that deadly force wasnt necessary. The Court stated:

as the text of the Fourth Amendment indicates, the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them. Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgmentImposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.

Attorneys for the Brooks family have stated that police should have called family members or an Uber for Brooks instead of arresting him.

The charges by Howard, who is under investigation by the Georgia Bureau of Investigation himself and is embroiled in a contentious primary election, are a substantial shift from last weeks press conference during which Howard said that a taser is a deadly weapon under Georgia law. The clip of that video is below.

The district attorneysaidthis is the 40th time his office will be prosecuting a police officer for misconduct and the 9th time a police officer has beencharged in a homicide.

See more here:

GBI Says Fulton DA Blindsided Agency Amid Investigation in Brooks Case - All On Georgia

HART: Wow! The reopening of our country has been a riot – Odessa American

It has been a terrible year so far. We had a pandemic that crashed a great economy, then a mixed-messaged lockdown and skyrocketing unemployment, followed by riots, looting, destruction of monuments and talk of defunding the police. My dad always told me that he was going to slap me into next year. I wish he were around to do it today.

Woke millennials in Philadelphia protested, demanding the city take down the statue of Sylvester Stallone as Rocky when word circulated among them that he reportedly beat up two black guys in the 1980s.

In retrospect we can get a sense of just how odd a year it has been. Tiger King is starting to seem normal. Now the country is torn apart with hatred, but back then the country united, all hating Carole Baskin.

Suddenly, fashionable cocktail party chatter is all about defunding the police. As a libertarian, I believe that if a service can be found in the Yellow Pages, government should not be doing it. So lets defund the entirety of government with its $1 trillion-a-year deficits, see what we miss, and hire it back. My guess it the police might be the only thing we miss.

All I know is that if Democrats abolish the police, driving my sports car drunk is going to be a lot less dangerous for me.

Our taxpayer-funded government workers, who get their full pay while staying home, tell the rest of us we cannot go to work or to our businesses to make our living. We are in a world where government arrests business owners for opening their businesses but will not arrest looters who destroy someone elses business.

It might be easier to defund bad schools now that kids are being homeschooled and taking tests online. If this keeps up much longer, liberal teachers unions fear that kids might start questioning their value and, even worse, might start thinking for themselves. I think kids will be better off being taught at home by day-drunks than being entrusted to the liberal education system that indoctrinates rather than educates.

Peaceful and mindful protests are great. And governments need to standardize rules on the use of force and weed out bad cops. We all agree. But it is hard to have a reasoned conversation with groups that are looting Nike stores and are frustrated trying to figure out that HDMI setting on their new 75-inch Vizio TVs.

Was it Dr. King, Rosa Parks or Gandhi who said that in order to change society and effect true change, you must burn down the only Wendys willing to open in your neighborhood?

Now those who want to take down statues, rather than contextualizing them, also want to decide what movies we can watch. Gone with the Wind in Atlanta will soon be replaced with Gone with the Wendys.

To make matters worse, Washington is getting involved. Now, when emotions are raw and folks are reactionary, is NOT the time to layer another hastily contrived law upon the heap of laws we have now. Lets take time and reason it out. Knee-jerk reactions by Washington to the attacks of 9-11 got us two worthless, trillion-dollar Middle East wars, the NSA, TSA and Homeland Security, and trampled the Fourth Amendment to give us FISA Court warrants to spy on U.S. citizens.

Government and the media told us for decades that when African-Americans and more women ran cities, police forces, etc., things would get better. It seems eerily odd that in these Democrat cities with black women mayors, police chiefs are the ones with problems. How does systemic racism escalate in a black-run city? Dems are worse off in Dem-controlled cities, yet they have somehow succeeded in offloading the perception of their problems onto white Republicans.

We are in this bizzaro world where millennials, celebs and the media are trying to out woke each other. White hipster art history majors with $125,000 of student loan debt and no jobs are there to interpret for us what African-Americans are feeling. Its nice that these kids have taken it upon themselves to interpret the race dialogue we should be having. If successful, it may be the best articulation of black-to-white jive interpretation since Barbara Billingsleys role as a passenger in the movie Airplane!

While we are distracted, our enemies conspire. U.S. intelligence agencies say they uncovered a plot by Russia, China and the Taliban to just sit back and enjoy watching us implode.

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HART: Wow! The reopening of our country has been a riot - Odessa American

Google stokes GOP allegations of tech bias – Politico

With help from Cristiano Lima and John Hendel

Programming announcement: This 10 a.m. version of Morning Tech will end daily publication this fall and move to a week-ahead style newsletter that publishes on Monday mornings. The daily 6 a.m. version will continue for POLITICO Pro subscribers. For information on how you can continue to receive daily policy content, as well as information for current POLITICO Pro subscribers, please visit our website.

GOP vs. Google: Googles dominance of online advertising is already under Justice Department scrutiny. Now, Republicans are pointing to Googles move to cut off ad revenue to a right-wing blog as proof of alleged anti-conservative bias and reason to roll back Section 230.

Facebook and the election: Facebook is launching a sweeping get-out-the-vote effort as critics accuse the company of not doing enough to address potentially dangerous or misleading content on the platform.

MT scoop: More than 100 leading civil rights and civil liberties groups are demanding House leaders cut off federal funding for law enforcement surveillance technologies that are antithetical to the First and Fourth Amendment.

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ITS WEDNESDAY; WELCOME TO MORNING TECH! Im your host, Alexandra Levine. A friendly reminder that fellow tech reporter Cristiano Lima is interviewing Microsoft President Brad Smith on Thursday at 2 p.m. Sign up for that discussion here; watch live here. What are you most interested to hear about? Send us your questions at the info below.

Got a news tip? Write me at [emailprotected], or follow along @Ali_Lev and @alexandra.levine. An event for our calendar? Send details to [emailprotected]. Anything else? Full team info below. And don't forget: Add @MorningTech and @PoliticoPro on Twitter.

GOP VS. GOOGLE Googles decision to block right-wing website ZeroHedge from using the Google Ad platform (and its threat to do the same for The Federalist) has added fuel to GOP calls to roll back Section 230 protections for tech giants for alleged anti-conservative bias and at a time when theyre already feeling emboldened by President Donald Trumps recent social media executive order. Google said Tuesday that the comments sections on those sites contained derogatory, racially fueled content, and our policies do not allow ads to run against dangerous or derogatory content, which includes comments on sites.

Republicans react: The House Judiciary Committees top Republican, Rep. Jim Jordan of Ohio, raised alarm on Twitter about tech companies taking action against conservative sites during an election year. House Minority Leader Kevin McCarthy (Calif.), who alleged on Twitter that activist journalists at NBC (which had earlier reported the story) pressured Google into censoring The Federalists website, adding: When will Big News and Big Tech #StopTheBias?! And FCC Commissioner Brendan Carr, who has thrown his weight behind the presidents executive order targeting Section 230, said Tuesday evening that Google makes one of the strongest arguments yet for Section 230 reform.

Whats next: Googles dominance over online ads is already raising eyebrows at the Justice Department, as Leah has reported. But Googles decision to penalize websites based on their comments sections could spark another big debate: That kind of content is protected by the First Amendment, while Googles right to take down that content is protected by the so-called good samaritan clause of Section 230, which states the company can make good faith attempts to crack down on objectionable material without opening itself up to liability. Watch for these concerns to potentially come up today during an Information Technology and Innovation Foundation webinar with FCC Commissioner Geoffrey Starks on the agencys role in reforming Section 230.

AHEAD OF ELECTION, FACEBOOK PLEDGES MAJOR VOTER REGISTRATION DRIVE Facebook aims to help 4 million people register to vote in the months leading up to November's presidential election, a major get-out-the-vote drive that comes as critics assert the social network has not done enough to stamp out misleading posts that undermine the democratic process, Steven reports.

Pre-empting the critics: In a USA Today op-ed Tuesday evening, Zuckerberg acknowledged that these new actions wont satisfy everyone. "Everyone wants to see politicians held accountable for what they say and I know many people want us to moderate and remove more of their content," he wrote in the editorial. "But accountability only works if we can see what those seeking our votes are saying, even if we viscerally dislike what they say."

Critics have accused Zuckerberg of abdicating responsibility on content moderation, particularly in its recent decision not to take down inflammatory and potentially dangerous posts from Trump. (Backlash against that decision prompted Zuckerberg to announce the social media giant would re-examine its policies against violent threats and voter suppression.)

FIRST IN MT: GROUPS URGE CONGRESS TO DROP SURVEILLANCE TECH FUNDS More than 100 civil rights and civil liberties groups today are calling on House leaders to cease federal funding for the surveillance technologies that are being used to militarize our communities and criminalize dissent. In a letter going out today to top lawmakers in the House and its Judiciary Committee, the groups say law enforcement use of cutting-edge tools to monitor protests against the killing of George Floyd has chilled activists' free expression rights.

What theyre pushing for: The groups which include the ACLU, Color of Change, Free Press and the Center for Democracy & Technology also call for dramatic changes to our surveillance infrastructure, which has also contributed to increased militarization and policing abuses. They urged legislators to stop agencies from using their intelligence assets for general policing, including surveillance of protests.

The background: The push comes as Democratic lawmakers have increasingly sounded the alarm on law enforcement surveillance, including the use of emerging technologies like facial recognition software and drones, at the recent wave of racial justice protests.

Where talks stand on the Hill: The bicameral Democratic police reform package included some narrow checks on such tools, including banning warrantless federal law enforcement use of facial recognition software on body-cam footage. But the incoming Senate GOP policing package includes no mentions of facial recognition software, biometric identification or surveillance more broadly, according to bill text obtained by POLITICOs Marianne LeVine signaling daylight on the issue between the two sides.

INDUSTRYS MIXED MESSAGING ON THE FIGHT AGAINST RACIAL INJUSTICE The Internet Association is out this morning with a statement stressing the industrys commitment to diversity and inclusion and sharing guidelines for lawmakers working to address racial injustice. The catch-22: Several of the trade groups member companies have been accused in recent weeks of projecting messages of racial solidarity and progressive values to the outside world that some employees say do not mirror the firms internal culture or business decisions.

Former workers from one member company that had declared solidarity with the Black Lives Matter movement, Pinterest, went public this week with stories about racism and gaslighting they said they endured under leadership there. Members Amazon and Microsoft were called out for expressing solidarity while also providing surveillance tools to law enforcement. (Theyve since bent to public pressure to take temporary timeouts from facial recognition.) Airbnb, also a member, on Monday announced Project Lighthouse, a joint effort with racial justice group Color of Change to identify bias (around first names or profile photos, for example) and measure discrimination when booking or hosting on the platform.

IA believes that Black Lives Matter, the trade association said today in what it described as a value statement. It stressed the sectors commitment to creating a more diverse and inclusive online community and workforce and outlined steps the industry is taking to get there. Those include IAs second annual survey examining existing diversity and inclusion efforts at member companies and a soon-to-launch job referral site, meant to be a centralized hub for diverse job applicants to apply to open positions at those firms. IA also called on Congress to reform accountability measures and transparency in policing; demilitarize law enforcement; and invest in alternatives to incarceration.

LIGADO FIGHT REDUX Tuesdays reconfirmation hearing for GOP FCC Commissioner Mike ORielly turned into another tussle over the agencys April order approving satellite company Ligado Networks 5G plans, which critics like the Pentagon say will disrupt GPS. Senate Commerce Chairman Roger Wicker (R-Miss.) played ORielly off of two other nominees, for positions at the departments of Transportation and Commerce, who expressed alarm about Ligado.

Quote du jour: Im not sure my fellow colleague at the table is right to say NTIA has been uniformly opposed to the situation. My conversations with multiple people suggest that NTIA has had a different viewpoint over the time period, and it wasnt until the dismissal of an administrator that the position was as it is now. Translation: ORielly is saying the Trump administration was less hostile to Ligado prior to the resignation of former Administrator David Redl in May 2019.

FCC Chairman Ajit Pai, meanwhile, defended the Ligado decision in a letter to several Senate Commerce members.

MEANWHILE: WICKER PLANS BROADBAND LEGISLATION? During that hearing, the Commerce chairman revealed hes now focused on how to speed up the disbursement of rural broadband subsidies from the FCCs October Rural Digital Opportunity Fund auction of $16 billion. Although he previously had expressed interest in speeding up when that auction begins, Wicker says hes turned his attention to how to fast-track getting the broadband subsidy money out the door to telecom providers after the first phase of that auction happens.

I may have a proposal, Wicker told ORielly. Once phase 1 auction occurs, I think we can help you with some extra funds and some incentive from the administration, on a bipartisan basis, to move this ahead.

A message from Facebook:

How Facebook is preparing for the US 2020 election

Tripled safety and security teams to 35,000 people Implemented 5-step political ad verification Providing greater political ad transparency Launching new Voting Information Center

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Cheryl Bruner, previously a longtime in-house lobbyist for IBM, is joining Red Hats Washington office as public policy director. Shes expected to focus on information technology and telecommunications issues as well as lobbying Congress.

Will tech CEOs testify?: The CEOs of Amazon, Facebook and Google have said they would testify before the Houses antitrust panel if all CEOs of those companies, and Apple, collectively agree to, POLITICO reports but Apple remains a holdout.

EU antitrust spotlight: Apple now has a target on its back, POLITICO reports, On Tuesday, the iPhone maker found itself on the wrong side of the law when the European Commission opened two antitrust investigations one into whether the company treated rivals like the music-streaming service Spotify unfairly in its popular app store; the other into how other competitors were treated in its mobile payments service.

Meanwhile: Apple faced harsh criticism on Tuesday from regulators and the companies behind some of the most popular apps in its App Store, including Tinder and Fortnite, a sign of the growing discontent with Apples grip on the mobile economy, WaPo reports.

Opinion: How Iran Became the New Battle Line Between Conservatives and Twitter, via POLITICO Magazine.

If I had $5 billion: Reed Hastings, the billionaire founder of Netflix, is quietly building a mysterious 2,100-acre luxury retreat ranch in Colorado for American public school teachers, Vox Recode reports.

Zynn, de-platformed: TikTok rival Zynn, which in recent weeks had been the top free iPhone app on Apples U.S. App Store, has been removed from both the iOS and Android app stores, Business Insider reports.

ICYMI: T-Mobile is laying off hundreds of Sprint employees, TechCrunch reports.

Tips, comments, suggestions? Send them along via email to our team: Bob King ([emailprotected], @bkingdc), Heidi Vogt ([emailprotected], @HeidiVogt), Nancy Scola ([emailprotected], @nancyscola), Steven Overly ([emailprotected], @stevenoverly), John Hendel ([emailprotected], @JohnHendel), Cristiano Lima ([emailprotected], @viaCristiano), Alexandra S. Levine ([emailprotected], @Ali_Lev), and Leah Nylen ([emailprotected], @leah_nylen).

TTYL.

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Google stokes GOP allegations of tech bias - Politico

Homeland Security used aircraft to surveil BLM protests in 15 cities – CNET

Black Lives Matter protests continue across the United States.

A New York Times report Friday revealed the extent to which the Department of Homeland Security useddrones, helicopters and planes to conduct surveillance of Black Lives Matter protests acrossthe country. The aircraft logged around 270 hours of surveillance footage from 15 cities and it was broadcast live in a Customs and Border Protection control room, according to the Times report, which CBP confirmed. CBP is an agency of Homeland Security.

CBP used Predatordrones in Minneapolis-- where protests kicked off following the death of unarmed Black man George Floyd while in the custody of Minneapolis police -- and Del Rio, Texas. The drones had no facial recognition capabilities and weren't armed. They were requested by an Immigration and Customs Enforcement agent, according to the Times report.

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Black Lives Matter protestsare continuing across the US and globally as people demonstrate against the recent deaths of Floyd, Breonna TaylorandAhmaud Arbery, and against systemic racism.

CBP also used aircraft, including helicopters and planes, in 13 other cities: New York; Chicago; Washington DC; Philadelphia; Detroit; El Paso, Texas; Miami; Aurora, Illinois; Buffalo, New York; Dayton, Ohio; El Centro, California; San Luis, Arizona; and Uvalde, Texas. CBP confirmed 5.6 hours were logged from drones out of the total 270 hours of surveillance footage.

The aircraft were providing "situational awareness, maximizing public safety, while minimizing the threat to personnel and assets," CBP said in a statement on May 29.

Earlier this month, 35 congressional Democrats demanded that CBP, as well as the FBI, the Drug Enforcement Administration and the National Guard Bureau, permanently cease surveilling peaceful protests. They said the use of Predator drones to collect live video feeds of protestswas an overreach of power.

The Congress members said surveillance of these protests breaches the First Amendment right to protest and the Fourth Amendment, which is designed to protect Americans from unreasonable searches and seizures.

The FBI said it's not conducting surveillance of First Amendment-protected activity. Rather, it's "focused on identifying, investigating, and disrupting individuals that are inciting violence and engaging in criminal activity." Similarly, the National Guard Bureau said it used an aircraft "to provide situational awareness" to National Guardsmen posted in Washington, DC, overnight on June 2 and 3.

Correction, 4:51 p.m PT:This story initially misstated the number of cities where drones were used to surveil protests. They were used in two cities.

Black Lives Matter. Visitblacklivesmatter.carrd.coto learn how to donate, sign petitions and protest safely.

Now playing: Watch this: How to protect your phone (and your privacy) at a protest

4:31

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Homeland Security used aircraft to surveil BLM protests in 15 cities - CNET

Armed Agents of the State Shouldn’t Be Enforcing Traffic Laws – Reason

Police officers have difficult jobs, going up against murderers, rapists, muggers, thieves, and hardened traffic violators.

Which of those groups doesn't belong?

The question is especially relevant as protesters take to the streets over unaccountable, abusive policing. A majority of Americans now support police reform. And some of the most important reforms we could be enacting are changes that would simply reduce interactions between the public and armed agents of the state.

Cops pull over 20 million motorists a yearby far the most common form of police interactions with the American people. Those encounters occasionally end violently and tragically. Consider the cases of Darrius Stewart, Samuel DuBose, Philando Castile, and Maurice Gordon, all of whom were shot during routine traffic stops. Gordon was killed by a New Jersey state trooper just last month.

Those traffic stops often evolve into drug searches, which carry serious Fourth Amendment concerns. They also disproportionately impact black and Hispanic people. (Blacks are four times more likely to be arrested for drug offenses and 2.5 times more likely to be arrested for drug possession, though whites use drugs at comparable rates.) Those with fewer means are more likely to be fined, arrested, and shuffled through the legal system, notwithstanding the fact that they're less able to afford getting trapped in that cycle.

In Colorado and Washington, where marijuana has been legalized, search rates at traffic stops have dramatically declined, a testament to how often those arbitrary searches are tied to drug laws that have no impact on traffic safety.

But even traffic safety doesn't necessarily need to be enforced by the police. "Don't use a hammer if you don't need to pound a nail," writes economist Alex Tabarrok at Marginal Revolution. "The responsibility for handing out speeding tickets and citations should be handled by anunarmed agency. Put the safety patrol in bright yellow cars and have them carry a bit of extra gasoline and jumper cables to help stranded motorists as part of their jobmake road safety nice."

It's a worthy idea. But it'll be tough to get state and local governments to accept it. Police departments, many of them furnished with weapons fit for a battlefield, often act as revenue raisers for the cities in which they serve.

"A Police Executive Research Forum report on St. Louis law enforcement found that local governments within the county were using police to 'plug revenue gaps' by running up the number of traffic citations, which coincided with many low-level arrests," writes Derek Thompson in The Atlantic. "As one St. Louis County resident told the report's authors: 'It's no secret that a lot of these municipal police officers are only supposed to be revenue drivers for their cities.'"

Relieving cops from traffic duty isn't the only way to reduce police encounters with the public. Eric Garner died at the hands of New York City police officer Daniel Pantaleo after Garner was approached for selling loose cigarettes. A Louisville cop shot Breonna Taylor during a no-knock drug raid. Taylor was not a drug dealer, but had previously dated someone who had been suspected of using her address to receive packages. Nevertheless, her killing was not unlike that of Osama Bin Laden's. She was shot 8 times after police broke into her home.

We could minimize such encounters just by having fewer laws. "Things like the war on drugs, they've given police officers multiple reasons to be present in [minority] communities,"Reason's Zuri Davis recently told the Washington Examiner's Siraj Hashmi. That "gives rise to a lot more interactionand negative interaction." If we want fewer innocent people to die at police officers' hands, we need to cut back on the encounters that keep spiralling into such deaths.

Excerpt from:

Armed Agents of the State Shouldn't Be Enforcing Traffic Laws - Reason

Buffalos Police Brutality Didnt Start With Martin Gugino – The Nation

(Hsa htaw / Shutterstock) '>

Protesters march through Buffalo, N.Y., in response to George Floyd's death. (Hsa htaw / Shutterstock)

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BuffaloOn June 4, two cops shoved this segregated and poor city into the center of the month-long national uprising precipitated by the killing of George Floyd.Ad Policy

The spotlightthe harsh glare that erases nuancehas moved on to new outrages in bigger cities. The local aftermath has fallen into familiar and frustrating tropes: police circling the wagons, a package of ill-defined reform proposals, and attempts at scapegoating that serve politics rather than progress.

The particulars of the incident have been well covered.

Shortly after 8 that night, the Buffalo Police Departments Emergency Response Team was ordered to clear the square in front of City Hall. In response to unruly protests the weekend beforesome isolated vandalism on the citys relatively affluent and predominantly white West Side, a violent and chaotic police charge on the citys predominantly black East SideMayor Byron Brown had imposed a weeklong curfew.

As they had each night that week, a handful of protesters, all of them peaceful, took their time complying.

Among them was Martin Gugino, 75, a Catholic Worker active with the Western New York Peace Center. Gugino, a motorcycle helmet in one hand and a cellphone in the other, stood before the ERTs advancing line, engaging a couple of copsmaybe taunting them, maybe asking questions, definitely too close for comfort.

One of the cops, Aaron Torgalski, cross-checked Gugino with his club. Another, Robert McCabe, shoved Gugino with one hand. Gugino fell backward, struck his head on the pavement, and began bleeding from one ear. He lay stiff and still, except for his fingers, which curled and uncurled eerily. His skull was fractured.Current Issue

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Torgalski, McCabe, and other ERT members marched past Guginos prone body. One broke ranks momentarily, intending to see to Gugino. He was stopped by another officer, John Losi, who pulled the errant cop back into line. Just the day before Losi had made local news by taking a knee in Niagara Square with protestersthe first Buffalo cop to take part in that symbolic ritual. Hed presented the act as a transaction: Ill kneel with you if you want me to, Losi told demonstrators, if in exchange youll clear out at curfew.

No such bargain was on offer the following evening.

New York State Police medics, following ERTs advance, put Gugino into an ambulance, which took him to a trauma center. Two weeks later, he remains hospitalized.

The police departments communications directorwho is also the mayors communications directorquickly issued an explanation of the incident: Gugino tripped and fell.

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That lie was exposed before it had even been told.

The whole scenethe shove, the fall, the seemingly callous march forward, the would-be good Samaritan whose generous instinct was thwartedwas captured on video by a reporter for WBFO, the local NPR affiliate. The video circulated widely on social media and local news sites.

The mayors communications director reversed and apologized for the initial lie, explaining that police officials had not seen the video, which was quickly going viral. The mayor repeated that explanation first to local media and then in a succession of appearances on national television: with CNNs Chris Cuomo, MSNBCs Rachel Maddow, and CBSs Jeff Glor, a Buffalo native.

The mayor also used those media opportunities to identify the root problem with policing in Buffalo: He blamed the police union.

The police union is on the wrong side of history, Brown told Maddow. This union has been on the wrong side of history for a very long period of time. And they have been a real barrier to the reform of policing in the City of Buffalo.

Certainly, Buffalos police union stubbornly defends officers accused of unwarranted violence. And the union and its attorneys take full advantage of a contractand New York State civil service lawsthat make it difficult to discipline or fire police.

But according to activists circulating a petition demanding his immediate resignation, Brown has never demonstrated an inclination to change the way police operate.

In fact, those activists say, the opposite is true. Under three police commissioners named by Brown in his 14 years as mayor, the department has instituted policies embodying the specific brand of racism that fuels protests across the country.

Some examples:

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Setting up police checkpoints in poor, mostly black and Latino neighborhoods, which were discontinued after their constitutionality was challenged in a lawsuit.

Raising revenue for Browns cash-strapped administration by targeting motorists in those same neighborhoods for minor infractionsbusted headlights, expired registrations or insurance cards, rolling stops.

Creating special units with a reputation for brutality and disregard for the Fourth Amendment.

More to the point, in the past three years alone, Buffalo police have killed four young men of color under questionable circumstancesWardel Meech Davis, Jose Hernandez-Rossy, Rafael Pito Rivera, and Marcus Nealwith no consequences to the officers involved. Earlier this year, the city paid $4.5 million to settle a lawsuit by Wilson Morales, who was paralyzed from the waist down after being shot by Buffalo police officers in 2012. The 17-year-old was out picking up pizza. The officers who shot him have since been promoted; one made captain last year.

Indeed, the creation of Buffalos Emergency Response Teamthe unit whose members fractured Guginos skull belies any frustrated reformist agenda. The ERT unit was formed in response to the 2014 local protests over the police killing of Michael Brown in Ferguson, Mo.

In some cities, Ferguson precipitated a hard look at racist and militaristic policing practices.

Here in Buffalo, the Brown administration invested in a new crowd control unit.

The ERT is a kind of junior varsity to the departments SWAT team, according to John Evans, president of the citys police union. Its 57 members are trained for three days at a FEMA camp in how to hold their clubs, march in a phalanx, and make mass arrests.

Its an on-call unit, not a permanent one: Most of its members are young patrol officers looking for a little bump in their paychecks by pulling extra duty. The ERT is seldom deployed. After the first weekend of protests in Buffalo, Evans said his officers were ill prepared to deal with demonstrators.

Within hours of the incident, Torgalski and McCabe were suspended without pay. The next day, Erie County District Attorney John Flynn announced that he would charge the officers with assault.

More than 200 officers from law enforcement agencies across the region showed up at the arraignment of Torgalski and McCabe. Fire engines with lights flashing blocked traffic, allowing their supporters to spill into the street. Some came with umbrellas that they opened in front of TV camera crews to prevent them from capturing Torgalski and McCabe exiting the city court building.

Evans said in an e-mail to union membership the officers were simply executing orders and the suspensions and charges were an attempt to fuck over these guys. Evans also warned his members that the union was not in a financial position to pay legal fees for officers charged in civil suits as a result of such incidents.

In response, all 57 members of the ERT resigned from the unit, though not from the police force. Brown blamed the union for the resignations, saying Evans had effectively blackmailed ERT members to refuse to work the protests.

Here, too, the truth is more complicated.

In the past, the City of Buffalo has assumed legal costs for police officers facing civil suits. Last November, however, the states Court of Appeals ruled the city was not obligated to pay for the civil defense of an officer caught on video in 2014 striking a man repeatedly with a baton outside a bar.

Because the officer, Corey Krug, violated the departments use-of-force policies, the court ruled, he was not working within the scope of his duty. Therefore, the city could opt out of providing his defense, though the city would remain on the hook to pay if the plaintiff won a judgment.

But complexity has no place in a campaign fought by press release, which is what the Brown administration seems to have in mind as it seeks a way around this crisis. When Brown released some tepid reform proposals last weekat a press event that included NFL players and a pair of singing copsamong them was a pledge that the department would no longer deploy the ERT to quell protests.

Of course, it wouldnt: The ERT had disbanded itself five days earlier.

And that, it turned out, is a cause for celebration. In the days since, the citys demonstrationswhether large or small, contained to downtown or sprawling into marches through the citys neighborhoodshave been peaceful. There has been no violence, no vandalism. And zero arrests.

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Buffalos Police Brutality Didnt Start With Martin Gugino - The Nation

CBS 2 Chicago Wins Peabody Award For [un]warranted: A Series That Exposed Chicago Police Pattern Of Raiding Homes Of Innocent Families – CBS Chicago

CHICAGO (CBS) CBS Chicago won the prestigious Peabody Award for [un]warranted, an investigative project and documentary exposing an alarming pattern of Chicago Police officers raiding the wrong homes, traumatizing innocent families, and, in the process, violating citizens Fourth Amendment rights.

CBS Chicago was the only local news winner of the award.

The reporting discovered that CPD officers routinely violated department policies during these raids, yet none of the officers involved were investigated or disciplined. In 2019 alone, the project included more than 25 investigative news reports and a 30-minute documentary examining the impact of these wrongful raids on families of color in Chicago. It resulted in a new state law to protect children, two city probes into how officers obtain and execute search warrants, and nearly a dozen federal civil rights lawsuits.

The police department also changed its search warrant policy to ensure more oversight and accountability and additional protections for children. Newly appointed Superintendent David Brown also committed to tracking wrong raids for the first time in the departments history.

As a result of this exhaustive, moving report, the Governor of Illinois signed the Peter Mendez Act into law. Named for a boy whose home was wrongly raided, the legislation instructs police departments to train officers on how to de-escalate force if children are present during a raid. For its tenacity, thoroughness, and impact, CBS Chicago wins a Peabody Award, wrote the Peabody Board of Jurors in its winning citation.

According to the Peabody website, Judging for the Peabody Awards is a rigorous, deliberative process based on the belief that face-to-face discussions among board members is the best possible way to adjudicate more than 1,200 entries that Peabody receives each year. The Peabody Awards judging process ensures that each and every entry receives full attention in its pursuit of excellence.

The Peabody Awards recognixed 30 programs as the most compelling and empowering stories released in broadcasting and digital media during 2019.The Peabody 30 are the best of nearly 1,300 entries submitted from television, radio/podcasts, and the web across the genres of entertainment, news, documentary, childrens and public service programming. All winners are chosen unanimously by a board of 19 jurors. The Peabody Awards are based at the Grady College of Journalism and Mass Communication at the University of Georgia.

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CBS 2 Chicago Wins Peabody Award For [un]warranted: A Series That Exposed Chicago Police Pattern Of Raiding Homes Of Innocent Families - CBS Chicago

Bipartisan resistance to reining in the surveillance state – OCRegister

Have you been on the Internet lately? Where did you go? What did you do there?

If you think the answers to these questions are nobodys business, be grateful that the House of Representatives didnt pass a new reauthorization of the governments power to conduct warrantless surveillance of Americans.

March 15 was the expiration date for three Foreign Intelligence Surveillance Act authorities: the foreign surveillance authorities known as Section 215 of the PATRIOT Act, the lone wolf authority and the authority for a roving wiretap. During that same month, the House passed a reauthorization bill, and the Senate made a few changes and sent it back to the House.

While the reauthorization of surveillance authorities has often stirred debate, in the end, something was always worked out to keep the authorizations in force.

This time it was different. Privacy advocates, including the American Booksellers for Free Expression, formed a coalition to call for the adoption of a privacy amendment. It would have aligned the law with court rulings to make clear that internet browsing and search history was not to be collected under Section 215, which allows the government to peruse records without meeting a probable cause standard.

The amendment introduced by Senators Steve Daines, R-Montana, and Ron Wyden, D-Oregon, was replaced by a negotiated amendment that was weaker, and Sen. Wyden announced his opposition.

Opposition also came from President Trump, who threatened to veto the bill. Warrantless surveillance of Americans is wrong! he tweeted, later adding, Our country has just suffered through the greatest political crime in its history. The massive abuse of FISA was a big part of it!

Support from House Republicans who had voted for reauthorization in March fell away, and they were joined by some Democrats. Congressional Progressive Caucus co-chair Rep. Mark Pocan, D-Wisconsin, said, the people of this country are over-policed and over-surveilled.

On the opposite side, Rep. Liz Cheney, R-Wyoming, said the privacy amendment to restrict the collection of internet browser searches was too great a risk to national security. Acknowledging that FISA authorities had been abused, Cheney said the House should still not pass a bill which would fundamentally weaken our ability to keep the nation safe.

Speaker Nancy Pelosi couldnt pull the votes together, and she pulled the bill off the floor.

The House has now referred the FISA reauthorization bill to a conference committee, where House majority Democrats will negotiate with Senate majority Republicans on a compromise version of the legislation.

Warrantless, secret surveillance of the phone and Internet records of Americans has always been unsettling, more so now that we have had multiple reports from the Justice Department inspector general documenting that the FBI and DOJ presented the secret FISA court with seriously flawed applications in order to obtain warrants for spying. Following an investigation that found 17 inaccuracies, omissions and significant errors in four applications for surveillance of Trump campaign associate Carter Page, IG Michael Horowitz looked at warrant applications in 29 other cases and found an average of 20 errors in each.

Before Americans again trust the government with the power to override Fourth Amendment protections in the name of national security, the failings that allowed these abuses to happen must be corrected.

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Bipartisan resistance to reining in the surveillance state - OCRegister

Contact Tracing Shouldn’t Upend 4th Amendment Protections – Law360

By Lara Yeretsian

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.

Law360 (June 8, 2020, 2:14 PM EDT) --

Contact tracing works by identifying where people who have tested positive for the virus have traveled and with whom they've interacted.

The intent of these programs, which have shown positive results in other countries, is to alter the trajectory of the pandemic. It's an unobjectionable undertaking, but it could end up becoming a criminal justice nightmare.

Contact tracing requires that the information of more than one person is collected. A subject who has opted to participate in the program allows his or her geolocation and proximity data to be tracked. That person's friends, colleagues and acquaintances may now show up on the government's radar screen, whether they've agreed to be tracked or not, and without any forewarning.

Without probable cause for a search warrant, law enforcement could, absent legal restrictions, use geolocation data to build a case for probable cause against a criminal suspect. Proximity data could provide police with new tools for tracking cohorts against whom there isn't reasonable suspicion, simply by using other parties' location information.

It's not unlike DNA that has been submitted to a genealogical site for purposes of uncovering one's ancestry. The person submitting a DNA sample does not agree to its use by law enforcement to track down and arrest relatives who may have committed unsolved crimes. The implications of extending the same legal sophistry to law enforcement's use of COVID-19 data to go after criminal suspects should be troubling to everybody who cares about our system of justice.

At the end of April, U.S. Sens. Roger Wicker, R-Miss., John Thune, R-S.D., Jerry Moran, R-Kan., and Marsha Blackburn, R-Tenn., introduced the COVID-19 Consumer Data Protection Act, whose intent is to "provide all Americans with more transparency, choice, and control over the collection and use of their personal health, geolocation, and proximity data."

The act would require covered companies to obtain express consent from individuals to collect, process or transfer their personal health, geolocation or proximity information for the purposes of tracking the spread of COVID-19. Companies would have to tell consumers how their data will be handled, to whom it will be transferred, and how long it will be retained. They would also be required to delete or deidentify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency.

Covered companies those subject to Federal Trade Commission jurisdiction, as well as not-for-profit entities and common carriers would be obligated to disclose to consumers at the point of collection how their data will be handled, to whom it will be transferred, and for how long it will be retained.

They would be required to publish transparency reports every 30 days describing their data collection activities related to COVID-19 and to delete or deidentify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency.

Companies would also be required to have an effective opt-out mechanism for individuals to revoke their consent for the collection, processing and transfer of personal information, and they would need to adhere to prescribed data minimization and data security requirements for all personally identifiable information they collected.

Information that is aggregated, deidentified or publicly available is not considered covered data under the proposed law. Significantly, the bill would provide no private right of action, authorizing state attorneys general to enforce its provisions.

The act defines "precise location data" and "proximity data" as a person's past or present physical location. There are important public safety benefits to tracking the location of individuals who have received a positive COVID-19 diagnosis, as well as the identity and location of others with whom they've come into contact.

It's critical to understand who has been exposed to a COVID-19 carrier so that those people can be notified and can take immediate precautionary steps to prevent further exposures.

At the same time, however, the specter of Big Brother arises when we talk about tracking people's exact whereabouts. Without clear legal boundaries, geolocation and proximity data could become weapons in law enforcement's arsenal, used to track down people suspected of crimes in direct contravention of more than two centuries of protections against unreasonable search and seizure. Once the data is collected, how do we ensure that it isn't used for a different purpose?

The text of the CCDPA doesn't answer the question. Section 3(a) provides as follows:

During the COVID19 public health emergency, it shall be unlawful for a covered entity to collect, process, or transfer the covered data of an individual for a purpose described in subsection (b) unless. ... (3) the covered entity publicly commits not to collect, process, or transfer such covered data for a purpose other than the purpose described in subsection (b) to which the individual consented unless (A) such collection, processing, or transfer is necessary to comply with the provisions of this Act or other applicable laws. (emphasis added)

Notwithstanding subsection (a), a covered entity may collect, process, or transfer the covered data of an individual or group of individuals for a purpose described in subsection (b) during the COVID19 public health emergency without obtaining the affirmative express consent of the individual if such collection, processing, or transfer is necessary to allow the covered entity to comply with a Federal, State, or local legal obligation.

Relying on attorneys general to monitor and assess penalties for alternative uses of the information especially to give a leg up to law enforcement in prosecuting suspected criminals is unrealistic.

Location data could give police another mechanism for pursuing suspects, despite laws against unreasonable search and seizure. Just as with other violations of Fourth Amendment rights, evidence gathered as a result of geolocation or proximity tracing must be thrown out of court as unlawfully obtained.

Unless a suspect's relationships and location are public knowledge or are obtained through a valid search warrant, evidence obtained as a direct result of contact tracing data must be deemed inadmissible.

When society stops protecting the rights of criminal suspects, it stops protecting all of our rights.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

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Contact Tracing Shouldn't Upend 4th Amendment Protections - Law360

Felony DUI charge dismissed due to illegal breath test – Idaho Mountain Express and Guide

In accordance with an Idaho Supreme Court decision handed down last year, a charge of felony DUI has been dismissed for a Hailey man due to a violation of his Fourth Amendment protection against unlawful searches and seizures.

Jeremy Sean Matthews, 32, was charged with felony DUI on Dec. 29 after a Sun Valley police officer approached his parked vehicle in the Sun Valley Figure Skating Club parking lot. According to a probable-cause affidavit, the officer was responding to a report of an intoxicated driver on Sun Valley Road around 12:30 a.m.

According to the affidavit, Matthews was detained and transported to the Sun Valley Police Department to give a breathalyzer test. Prior to that, the affidavit says, the officer informed Matthews that he was under arrest for misdemeanor DUI.

Matthews public defender, Justin McCarthy, filed a motion on April 7 to suppress evidence of the breathalyzer test.

The Idaho Supreme Court ruled last year in the case Clark v. Idaho that officers cannot make misdemeanor arrests without a warrant or without witnessing the offense. According to court documents, the Sun Valley officer was not informed of Matthews prior DUI convictions, which raised the alleged offense to a felony, until after the breathalyzer test was conducted.

Because the vehicle was parked and off at the time of the detainment and because the officer did not witness Matthews driving, the misdemeanor arrest was illegal, according to McCarthys argument in his motion to suppress.

Court records indicate that the Blaine County Prosecutors Office filed a motion to dismiss the case on May 20.

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Felony DUI charge dismissed due to illegal breath test - Idaho Mountain Express and Guide

Privacy Org Presses 5th Circ. To Veto Border Phone Searches – Law360

Law360 (June 9, 2020, 8:07 PM EDT) -- The Fourth Amendment shields travelers from having their phones and laptops rifled through during routinesearches at the border, a civil rights group is telling the Fifth Circuit in defense of a Texas immigration attorney who is challenging the warrantless searches as unconstitutional.

Because of their ability to contain massive amounts of information, digital devices don't fall under the Fourth Amendment's exception for warrantless and suspicionless routine searches at the border, the Electronic Frontier Foundation said Monday in an amicus brief.

"All border searches whether manual or forensic of the data stored on electronic devices are 'non-routine' searches that fall...

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Privacy Org Presses 5th Circ. To Veto Border Phone Searches - Law360


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