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Techdirt has naturally been following closely the battles over government attempts to bring in ever-more intrusive surveillance laws, particularly in the US, UK, and China, which are some of the worst culprits in this regard. But it's important to remember that this is a struggle that is taking place all around the world, even in the smaller countries that often get overlooked by mainstream media. For example, Georgia -- the country, not the state -- is witnessing exactly the same tussle between the politicians and the courts that we find elsewhere, as reported here on the civil.ge site: Georgia's Constitutional Court ruled on April 14 that legislation allowing security agency to have direct, unrestricted access to telecom operators' networks to monitor communications is unconstitutional. As the article explains, the key issue is over the use of "black boxes" sitting on communication service providers' networks. In 2014, efforts were made to address concerns that the system would be abused, by adopting the following approach: Legislation gave the office of personal data protection inspector the right to electronically authorize law enforcement agencies' lawful interception of communications once there was a relevant court warrant -- this system, involving security agency having direct access to telecom operators servers and personal data inspector having power to authorize monitoring is informally called "two-key" model. The passage of the the two-key legislation was fraught: it was adopted by the Georgian Parliament, vetoed by the Georgian President and then reinstated by the Parliament. As a result, complaints were lodged with the country's Constitutional Court, which has just handed down its judgment against the two-key system. One of the problems, the judges said, was the following: The State Security Service possesses technical capabilities for eavesdropping and monitoring online communications, which allow mass (actually unrestricted) collection of personal information in real time. The court was also unhappy with the metadata retention allowed by the legislation: The court said that retention of metadata for 2 years represents "unreasonably lengthy period of time, which results into disproportionate interference into [constitutional] rights." After making both of those reasonable comments, the judges went on to give the Georgian politicians a reasonable amount of time to sort things out: The Constitutional Court said that it understands "fundamental legislative amendments, as well as institutional and technical application of the new system", stemming from this verdict, requires time and for that reason it set March 31, 2017 as the deadline for implementing this decision of the court. All in all, Georgia emerges rather well from this episode, with democratic processes working as they should, and constitutional judges doing a good job. If only the same could be said for all the other countries going through the same painful experience. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We don't see nearly enough good trademark rulings, especially concerning Fair Use, that it's worthwhile in highlighting those that do occur. A nice recent example of this is a court tossing a trademark action started by several horse racing tracks against a gambling gaming company over the latter's use of track names. To get just a bit of background on this, Encore Racing Based Games makes electronic gambling games, including video slots and video poker. You see these types of machines in bars and restaurants wherever this type of gaming has become legal. But they also make a more innovative type of game in which players are presented with historical races and given the option to bet on them in a parimutuel fashion. The results, as best as I can tell, are based on the real-world outcomes of what I assume are obscure enough races that people aren't able to simply look up the results on their smartphones in whatever the allotted time is that they're given. Those results and races, naturally, include the names of the venues in which they were run. Some well-known racetracks, such as Oak Lawn, sued over this, claiming trademark infringement. The court didn't buy it, apparently. The Court dismissed the suit in its entirety, stating that Encore is “fully within their rights to describe where an event took place in their wagering system without implying the owners of the racetrack are sponsoring the game…[Encore is] protected by the fair use defense when describing where an event took place, even when the location described is most commonly conveyed using a registered trademark…Plaintiffs have failed to allege plausible facts which would justify this matter proceeding beyond this motion to dismiss…Therefore, the Court grants Defendants' motion and dismisses Plaintiffs' claims in their entirety.” And it's quite easy to see the court's side of things in this case. The use of a trademark primarily to portray historical fact is certainly Fair Use. A race run at Oak Lawn can be described as having been as such. Still, I'm somewhat surprised at the ruling. These electronic games are a form of gambling, after all, and it isn't hard to understand why horse tracks, which are largely struggling nationally, wouldn't want potential bettors to find themselves betting on historical races in this way. Still, the fact that these games are dealing with matters of factual history means Fair Use does indeed come into play. And, honestly, it's not like what Encore does is necessarily harmful to the tracks in the way they might think. “We are grateful that the Court once again dismissed a lawsuit that would have severely limited growth in the historic horse racing market,” commented Encore President Jeremy Stein. “Encore is committed to the long term health of the racing and breeding industries, and we are proud that the Encore system and games continue to generate record handle numbers and significant revenue for the horse industry in Kentucky and Wyoming. Monday's ruling will allow us to continue growing while looking to bring historic horse racing revenue to new racing jurisdictions.” For those of us that love horse racing, anything that brings more people into the fold is a good thing. If people playing these electronic games like them enough to then go out to the actual track, it's a building block for the industry. There's no substitute for going to a nice track, after all, least of all by sitting in front of a glowing machine. Regardless, it's nice to see a court get a Fair Use question right. Permalink | Comments | Email This Story

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Genetically modifying animals and plants is a growing concern -- with some people totally against the idea. And there are now a variety of biotech tools that make defining GMOs a bit less clear-cut for the general public. Taking a gene from a sea animal and putting into a pig sounds extremely unnatural, but does simply removing a gene sound as bad? Or what if farmers used traditional breeding techniques to get to a particular genetic end goal that was discovered by less "natural" genetic experimentation? If scientists merely remove genes, not add any new genes, does that qualify as a genetically modified organism? Using CRISPR/Cas9 techniques, a researcher created a button mushroom that doesn't brown after it's cut -- by removing some genetic material to turn off an enzyme -- and the USDA says that's not a GMO mushroom. (However, this decision may change.) [url] There are at least a couple engineered genetic "kill switches" for genetically modified microbes. Have researchers not seen/read Jurassic Park? Or Blade Runner? [url] Off-patent generic GMO soy beans are starting to enter the market since it's been about 20 years since Monsanto developed them. Out of about 84 million acres of soybeans planted in the US, only a couple thousand or so acres will be seeded with generic Roundup Ready knockoffs. Monsanto has a Roundup Ready 2 variant that's still under patent protection (as well as another version still pending approval), so don't worry about not being able to buy the authentic stuff. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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If you recall, the FCC and DOJ blocked Comcast's acquisition of Time Warner Cable, in large part because of the sheer volume of nonsensical benefits Comcast tried to claim the deal would bring consumers. When Charter Communications subsequently announced its own acquisition of the company, it decided to take a different tack; most notably by taking a more congenial tone with regulators, dialing back the tone-deaf rhetoric and astroturf, and even hiring long-time net neutrality and consumer advocate Marvin Ammori to help seal the deal. And it's now apparent that Charter's approach paid off. After months of meetings with regulators, both the FCC and the DOJ have announced they intend to approve the deal -- with a few conditions. After Bloomberg leaked word of the looming approval, FCC boss Tom Wheeler issued a statement saying (pdf) that most of the conditions being attached to the deal will focus on preventing Charter from harming Internet video competitors. According to Wheeler, Charter won't be able to impose caps, engage in interconnection shenanigans, or bully broadcasters into withholding content from streaming providers (something Dish complained about) for a period of seven years:"In conjunction with the Department of Justice, specific FCC conditions will focus on removing unfair barriers to video competition. First, New Charter will not be permitted to charge usage-based prices or impose data caps. Second, New Charter will be prohibited from charging interconnection fees, including to online video providers, which deliver large volumes of internet traffic to broadband customers. Additionally, the Department of Justice’s settlement with Charter both outlaws video programming terms that could harm OVDs and protects OVDs from retaliation– an outcome fully supported by the order I have circulated today. All three seven-year conditions will help consumers by benefitting OVD competition. The cumulative impact of these conditions will be to provide additional protection for new forms of video programming services offered over the Internet."The FCC's ban on usage caps is probably the most interesting or the proposed conditions. The agency has by and large turned a blind eye to usage caps and zero rating of content so far. In part because it was unsure whether or not the courts would uphold the regulator's new net neutrality rules (which should be settled any day now), but also because the FCC has been hesitant to engage in broadband rate regulation. Like net neutrality, usage caps are a sign of a lack of competition in the broadband market, and streaming competitors like SlingTV worried that the Charter merger would simply result in yet another giant like Comcast -- with a vested interest in using the lack of broadband competition to hammer emerging streaming TV evolution. Granted the conditions aren't all that revolutionary in that while Charter has flirted with usage caps, it currently doesn't impose them anyway. And on the interconnection front, the devil will be in the condition details (the threat of neutrality rule enforcement appears to have solved many of these disputes, for now). Meanwhile, consumer groups like Free Press say they aren't impressed, arguing the debt created by the deal will be passed on to Charter customers in still-uncompetitive markets, one way or another:"Customers of the newly merged entity will be socked with higher prices as Charter attempts to pay off the nearly $27 billion debt load it took on to finance this deal. The wasted expense of this merger is staggering. For the money Charter spent to make this happen it could have built new competitive broadband options for tens of millions of people. Now these billions of dollars will do little more than line the pockets of Time Warner Cable’s shareholders and executives. CEO Rob Marcus will walk away with a $100 million golden parachute."And while it's probably true that Charter will just find some other way to impose rate hikes on these subscribers, the conditions are at least an interesting signal from the FCC (and the DOJ, that issued its own statement on the approval) that it recognizes the growing threat usage caps are posing to the future of innovative services. Still, the conditions will be no substitute for real broadband competition, the lack of which a bigger, badder Charter will simply have to find new and creative ways to abuse.Permalink | Comments | Email This Story

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Police body cameras aren't the cure-all for bad policing. However, they are an important addition to any force, providing not only a means for accountability (albeit an imperfect one) but also documentation of day-to-day police work. They can help weed out those who shouldn't be cops as well as protect officers from bogus complaints. It's not enough to just have the cameras, though. Effort must be made to keep them in working order (and to prevent intentional damage/disabling). The footage must also be preserved and provided to the public when requested. This does mean there's additional workload and expenses to be considered, but the potential benefits of increased documentation should outweigh the drawbacks. Not so, apparently, for the Minooka Police Department in Illinois. The agency has decided to end its body camera program because accountability and transparency are just too much work. Minooka Police Chief Justin Meyer said Friday the issue was not with the functionality of the cameras, but that it became a burden for staff to fill the many requests for video footage. How much of a burden? "I was happy [with the body cameras]," Meyer said. "It just became a bit burdensome for our administrative staff." That's all it takes to let cops off the accountability hook: "a bit" of a burden. King Camera has been overthrown and the public's access to information is first against the wall. Chief Meyer might want to hire a spokesperson because he's not exactly doing a great job explaining how burdensome the cameras were. Meyer described a hypothetical example of the extra work it created for department staff. "You could have four officers on a call for a domestic incident," Meyer said. "If they are on scene for an hour -- whether there's an arrest or not -- that's four hours of video that has to be uploaded." Meyer could possibly be referring to redaction efforts, which could be time-consuming. He couldn't possibly be referring to the "burden" of uploading film because that's, well, non-existent. The cameras could record up to nine hours of continuous footage with 16 GB of storage. They were plugged into a USB port at the department after a shift to collect the footage and recharge the battery. Because the state doesn't mandate the use of body cameras, the Minooka PD -- which was the first in its county to deploy the technology -- may be the leading edge of a new wave of abandonment, both of body cameras and the accountability that goes with them. All because of an increased workload deemed by the abandoning agency as "a bit burdensome." When the going gets tough, the tough say, "Fuck it," apparently. Policing is adversity defined. I can't muster up much sympathy for a law enforcement agency that calls it quits the moment it faces a logistical hurdle. To me, this abandonment says the department's heart was never in it. Meyer may say he "liked" the cameras, but he sure didn't put up much of a fight when someone in the office complained about the extra work. This is an agency that was looking for an excuse to ditch the cameras and took the first "offer" that came along: a bit of a burden. Permalink | Comments | Email This Story

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A couple of years ago, Techdirt wrote about Brazil's Marco Civil -- variously called a "constitution for the Internet," and a "Magna Carta for the Web." Whatever you want to call it, the Marco Civil was a heartening example of the rights of Internet users being strengthened for a change. In June 2015, one year after it passed, an article on the Council on Foreign Relations site noted its wide-ranging impact: The Marco Civil has been instrumental in curbing the power of the Brazilian government from having undue influence over the net and its content. The law prevents the government from taking down or regulating content, or exercising any pressure on online platforms (e.g. the Twitters and YouTubes of the world) or Internet service providers. Only the courts, by means of due process, and limited by clear legal thresholds, can actually take action regarding online content when it infringes on other rights. Of course, this was too good to last. As Andrew McLaughlin explains on Medium, the Marco Civil is in danger: Amid the tumult and chaos of Brazil's current (and colossal) political crisis, the moment of counter-attack has arrived. Under the guise of fighting "cybercrime", a group of Brazilian legislators, acting via a Parliamentary Commission of Inquiry, has introduced 8 bills that, to state it directly, would give the Brazilian government sweeping powers to censor and control the Internet. The EFF has a summary of what those bills propose: Allowing police warrantless access to IP addresses; Requiring sites and apps to monitor content to prevent new sharing of materials already deemed offensive by court decision; Criminalizing improper computer system access that presents a "risk of misuse or disclosure" of data, even if no actual misuse or disclosure occurs -- broad and vague terms that also apply to actions with no criminal intent, jeopardizing legitimate security research that might never be done if obtaining prior permission were a legal requirement; Allowing judges, in direct violation of net neutrality rules, to block sites and applications that are used for criminal purposes or that don’t comply with demands for user information. Clearly, if these bills pass in their present form, they will nullify many of the safeguards found in the Marco Civil. The key vote is expected to take place on April 27, and the EFF has a page where you can ask Brazilian lawmakers to reject the proposals. There is also a joint statement to the Brazilian congress, which companies active in the country are invited to sign. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Lower courts appear to be taking the Supreme Court's Riley decision seriously -- give or take the occasional "there's no Constitution at the border" decision. If the Supreme Court says there's a warrant requirement for cell phone searches, there's a warrant requirement for cell phone searches. The Central District of Illinois has just handed down a decision that makes it clear, in no uncertain terms, that any examination of a cell phone's contents, no matter how brief, is a search covered by Riley. The Pekin Police Department participated in a couple of FBI-assisted controlled buys of weapons and drugs involving defendant Demontae Bell. Shortly thereafter, Bell was arrested. Upon Bell’s arrest, a black mobile flip phone was located on his person. After Bell was arrested, he was transported to the Peoria Police Department and placed in an interview room. Shortly thereafter, Officer Sinks arrived at the police station (he was not the arresting officer). At the suppression hearing Sinks testified that before interviewing Bell with agent Nixon, he opened the door to the interview room, grabbed Bell’s cell phone from a bag or container outside the door, opened the phone (purportedly to turn it off) and showed the home screen depicting the rifle to Bell with an inquisitive look. Officer Sinks then powered off the phone. He handed it over to FBI Special Agent Nixon and told him about the photo he had seen. Sinks then removed the phone's battery and recorded the serial number. A little more than a week later, the FBI obtained a warrant to search the phone. Five months later, another search warrant was obtained specifically targeting date/time information related to the photo Officer Sinks saw on Bell's phone. Seems like a cursory examination of a flip phone would be covered, but Judge James Shadid points out the Supreme Court only allowed warrantless examination of cell phones if there were exigent circumstances or to ensure the phone did not pose a threat to officers (i.e., contain a concealed weapon). The government argued that opening a flip phone is not a "search" and that the photo of a gun the officer saw was in "plain view." The court disagrees, pointing out that "plain view" means "plain view" without law enforcement interaction of any sort. The government’s response to Bell’s Motion asserts that Officer Sinks’ opening of the flip phone did not constitute a search. While it is true that a “cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes,” Officer Sinks’ opening of Bell’s cell phone exceeded a “cursory inspection” because he exposed to view concealed portions of the object—i.e., the screen. See Arizona v. Hicks, 480 U.S. 321, 328-29 (1987). The Supreme Court specifically addressed this issue in Hicks, noting that the “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches is much more than trivial for purposes of the Fourth Amendment.” Id. at 325. Officer Sinks’ opening of the flip phone, like the officer moving the stereo equipment in Hicks, “exposed to view concealed portions of the [object]” and thus “produced a new invasion of [defendant’s] privacy.” Even though the court finds Bell to have a diminished expectation of privacy in the home screen of his phone (as opposed to its contents), that's still not enough to ignore the stipulations of the Riley decision. Lock screens or homescreens may only show limited information in relation to the contents of a phone, but they can still display a wealth of information law enforcement can only obtain with a warrant. The lens through which all information on a cell phone is observed is the screen. On both flip phones and more modern, advanced devices, “notifications” are regularly displayed on the home screen or lock screen indicating text messages, missed calls, and other alerts. The position that the government advances here—that officers can always open a phone and look at the screen to turn the phone off without conducting a “search” at all—is inconsistent with Riley’s requirement that “unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.” Just as Riley analyzed and rejected California’s attempt to create across the board exceptions, such as a rule allowing police to search call logs, without a warrant, the Court sees no reason to allow law enforcement to circumvent the warrant requirement in every case under the guise that they discovered evidence when they opened the phone or turned on the screen to turn the phone off. The government attempted to use two exceptions provided by the Riley decision: officer safety and threat of remote destruction of evidence. Both of these arguments are dismissed just as quickly and soundly as the government's "plain view" argument. The court notes that Officer Sink's actions gave no indication he was worried about a concealed weapon or data being wiped from the phone. In any case, if remote wiping was a concern, officers could have removed the battery without opening the phone, as was clearly demonstrated by Officer Sinks himself. Officer Feehan testified that the policy was put in place partly because snooping software could be used to listen in on conversations when the phone is turned off but still connected to the battery, and other methods could “compromise data” on the phone. While the procedure may be outdated as applied to modern cell phones that lack removable batteries, that problem was not present here, and the video later showed Officer Sinks removing the battery. Where officers have two equally effective options to turn off a phone, they should choose the less intrusive option. That was not done in this case, and as a result, incriminating evidence was found. The result is suppression of the evidence specific to the Constitutional violation: the picture of an AK-47 Officer Sinks saw when he opened the phone. Because warrants were obtained for a more thorough search, supported by probable cause unrelated to the photo Sinks saw, the suppressed evidence is pretty much reinstated in whole as the incriminating photo was located on Bell's phone. While it doesn't do much for Bell, it does at least send a message to law enforcement that the Riley decision is to be respected and that cutting corners or skirting around the edges of the ruling won't be tolerated. Permalink | Comments | Email This Story

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If you want to get a feel for the gobsmacking amount of information being collected by UK surveillance agencies (MI5, M16, GCHQ), all you have to do is see how it's being misused. Privacy International, which has been steadily suing the UK government over domestic surveillance, has received another set of documents that show the banality of dragnet surveillance evil. The banality is not so much the dragnet itself (although that's not to say it isn't its own form of evil) as it is the uses it's put to. Ryan Gallagher, writing for The Intercept, points out that spies are using surveillance collections as backup Day-Timers -- apparently with enough frequency they've had to be warned to knock it off. The documents include internal guidance codes for spies who have access to the surveillance systems. One memo, dated June 2014, warns employees of MI6, the U.K.’s equivalent of the CIA, against performing a “self-search” for data on themselves, offering a bizarre example that serves to illustrate the scope of what some of the repositories contain. “An example of an inappropriate ‘self search’ would be to use the database to remind yourself where you have traveled so you can update your records,” the memo says. “This is not a proportionate use of the system, as you could find this information by another means (i.e. check the stamps in your passport or keep a running record of your travel) that would avoid collateral intrusion into other people’s data.” The information collected includes data that could reveal political preferences, sexual orientation, religious beliefs, memberships in associations or groups, mental/physical health along with biometric data and financial documents. With a little digging, the massive database could be used to uncover journalists' sources and privileged communications. The wealth of information at the fingertips of British spies helps explain why they never seem to forget important dates. “We’ve seen a few instances recently of individual users crossing the line with their database use, looking up addresses in order to send birthday cards, checking passport details to organise personal travel, checking details of family members for personal reasons…" The world's greatest search engine isn't Google. It's GCHQ. Of course, the documents also point to various levels of oversight, none of which appear to have much of a deterrent effect. A monitoring system of some sort appears to be in place and it's likely what flagged agents' self-searches. But it's unlikely to catch other inappropriate searches involving someone other than the person performing the search. These, too, are forbidden, but it's likely these violations were part of a pattern of sustained abuse, rather than one-off searches -- which would likely have slipped under the radar as being just another intelligence-related search. What's worse is access to these vast data stores apparently went oversight-free for several years, and it's not entirely clear from what's been released that comprehensive oversight is even in place at this point in time. One 2010 policy paper from MI6 states there is “no external oversight” of it or its partners’ “bulk data operations,” though the paper adds that this was subject to review. This may not seem completely terrible -- after all, six years government time is like 30 days real time -- until you realize the GCHQ has data sets dating back nearly 20 years (harvesting began in 1998) and MI5's bulk collection is more than a decade old at this point. And it continues onward, getting more massive by the moment. The GCHQ wants to collect 50 billion records every day, utilizing people's web browsing, phone calls, and email. While the agencies insist this is all for fighting terrorism and international crime, the cold reality is that it's just as useful for reconciling travel expenses and making sure Mom always gets her birthday card on time. Permalink | Comments | Email This Story

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We know the FBI isn't willing to share its investigative techniques with judges. Or defendants. Or the general public. Or Congress. The severely restrictive NDAs it forced law enforcement agencies to sign before allowing them to obtain IMSI catchers is evidence of the FBI's secrecy. Stingray devices were being used for at least a half-decade before information starting leaking into the public domain. The FBI doesn't want to hand over details on its hacking tools. Nor does it want to discuss the specifics of the million-dollar technique that allowed it to break into a dead terrorist's phone (which held nothing of interest). USA Today's Brad Heath has obtained documents showing the FBI's tech secrecy extends even further than its nominal opponents (judges, defense lawyers, defendants). Its secrecy even involves freezing out other players on the same team. A supervisor also cautioned the bureau’s “technically trained agents” in a 2003 memo not to reveal techniques for secretly entering and bugging a suspect’s home to other agents who might be forced to reveal them in court. “We need to protect how our equipment is concealed,” the unnamed supervisor wrote. The records, released this year as part of a Freedom of Information Act lawsuit, offer a rare view of the extent to which the FBI has sought to keep its most sensitive surveillance capabilities secret, even from others within federal law enforcement. Yes, the FBI is so determined to keep its techniques secret that it won't even share it with high-ranking prosecutors, like Assistant US Attorneys (AUSAs). But it gets even better. The reason stated in the memo for locking out AUSAs is schadenfreuderiffic. In case you can't see or read the picture above, here's what the memo says: Over the past few months, ERF [Engineering Research Facility] has expressed concern about Tech Agents revealing technical details to Case Agents and especially to AUSAs. There have been several instances of AUSAs becoming familiar with our techniques, then resigning and becoming defense lawyers. There also is concern about retiring Agents performing investigative work for defense counsel (i.e. right here in MP). One conclusion that could be drawn from AUSAs "becoming familiar" with FBI surveillance techniques, then switching sides to work as defense lawyers, is that the FBI's techniques are so intrusive and pervasive that AUSAs no longer find it conscionable to act on the behalf of the FBI. That's not the only damning paragraph in the two-page set of responsive documents. There's also this, which again shows the FBI openly encourages obfuscation and omission in federal courtrooms. Over the past week, I have received two ECs [electronic communications] form the field which describe in GREAT detail surreptitious entries and special project concealments installed in the target locations. These ECs describe the equipment concealed, item in which the equipment was concealed, and where the concealments were placed. These ECs were drafted by case agents, uploaded in ACS, and placed in the case file. TTAs [technically trained agents] should not be providing such detail to case agents. One reason TTAs do not testify is to protect our trade craft. If the case agents have this information, they will be required to reveal it during cross examination at trial. Also, an AUSA may require the EC be turned over during discovery before trial. We need to protect how our equipment is concealed and where our is concealed. It is sufficient for the case agent to simple state that, pursuant to a court order, equipment was installed in the target location. So, the FBI will hide information from their own case agents in order to prevent defendants from obtaining the details of the surveillance used to build a case against them. Needless to say, preventing the defense from obtaining these details also prevents judges and juries from hearing them and using those to weigh the Constitutionality of the techniques. This secrecy undercuts defendants' rights by denying them the opportunity to challenge the evidence or the methods used to obtain it. It also blows right by the Fourth Amendment by obfuscating the techniques used, a process that begins with search warrant affidavits that deliberately leave out essential details in order to protect the FBI's surveillance secrets. The FBI's cavalier attitude towards the rights of Americans traces back to the days of J. Edgar Hoover. While the agency has moved ahead in terms of technical prowess, the underlying "ends justifies the means" attitude appears unchanged. Permalink | Comments | Email This Story

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Way back before Ed Snowden became a household name, Senator Ron Wyden kept pushing James Clapper, the Director of National Intelligence, to reveal more details on how the NSA was interpreting certain provisions in the PATRIOT Act to spy on Americans. You probably recall the infamous exchange in a 2013 Senate hearing in which Wyden asked Clapper "does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" and Clapper said "No sir... not wittingly." Snowden himself later noted that this particular exchange was part of what inspired him to leak documents to reporters just a couple months later. However, that question had some history. Two years earlier, in 2011, we wrote about James Clapper's ridiculous response to a letter from Wyden about this topic. Wyden had asked Clapper to answer some questions about NSA authorities to collect information on Americans and Clapper had refused to answer on the basis of he didn't really want to. A year later, in the summer of 2012, Wyden got more explicit, saying that he would block the FISA Amendments Act until Clapper gave an estimate of how many Americans had their information sucked up by the NSA. This time, Clapper responded in December of 2012 by saying that it would be impossible to actually say how many Americans had their information scooped up by the NSA. We now know why -- because six months later, Ed Snowden revealed the answer to be "basically everyone." But in December, Clapper sent a letter saying to Wyden: We cannot provide additional answers to your questions in an unclassified format. Rather than provide you with imprecise, unclassified information, I reiterate our offer to meet with you -- and any other Members of Congress -- in a classified setting to discuss these authorities and answer any questions you might have. Wyden (along with a few other Senators) pointed out that their question shouldn't reveal anything classified: First, we asked if any entities have made any estimates -- even imprecise estimates -- about how many US communications have been collected under section 702 of the FISA statute (which is the central provision of the FISA Amendments Act). You did not answer this question. Please provide an answer. We would expect this answer to be unclassified, but if you disagree please provide your reasons for keeping this answer secret. Second, we asked if it was possible to estimate the order of magnitude of this number. (For example, is the number of US communications collected under section 702 closer to 100. or 100.000. or 100 million?) You did not answer this question directly, however the Director of the NSA has made public statements that appear to estimate this order of magnitude. Specifically, the NSA Director has said that "the story that [the NSA] has millions or hundreds of millions of dossiers on people is absolutely false." Please explain whether this statement should be understood to mean that the number of US communications collected under section 702 is less than "millions or hundreds of millions." Since the NSA Director made this statement publicly, we would expect this answer to be unclassified as well. Third, we asked if any wholly domestic American communications had been collected under section 702 authorities. Your response was classified. We do not understand how simply stating whether any wholly domestic communications have been collected under section 702 authorities would have any impact at all on US national security interests. if you believe that it would, please explain why. And if you agree that it would not, please provide an unclassified answer to this question. Fourth, we noted that the FISA Amendments Act does not prohibit searching through communications collected under section 702 to find the communications of particular Americans, and asked if the US government has ever attempted to search for the communications of a specific American in this way without a warrant or emergency authorization. Your response was classified. We do not understand how providing a 'yes' or 'no' answer to this question would impact US national security interests in any way, and we ask that you provide an unclassified response. Eventually, after getting a lot of pressure from other Senators, Wyden agreed to lift his hold on the bill. At first he offered an Amendment saying he would lift the hold if only the NSA would release a number about how many Americans had their information collected by the NSA. However, with folks like Dianne Feinstein and Saxby Chambliss screaming about how terrorists would blow up everything if the spying didn't continue, the bill eventually passed. And while some tried to bravely follow up on the questions raised by Wyden, once the bill passed there was no legislative leverage any more -- and nothing much happened. It was just a couple months later that Wyden asked his now famous question and Snowden released his documents. But a bunch of Representatives on the other side of the Capitol, all members of the House Judiciary Committee, have realized that James Clapper has still never answered the question, and thus they've now sent him a letter, asking him to finally answer at least some sort of question concerning how many Americans have their data sucked up by the NSA: In order that we may properly evaluate these programs, we write to ask that you provide us with a public estimate of the number of communications or transactions involving United States persons subject to Section 702 surveillance on an annual basis. We note that we are not the first to ask you for this basic information. Since at least 2011, Senators Ron Wyden and Mark Udall have "sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but [they] have not been able to obtain even a rough estimate of this number." They also note that the PCLOB -- the Privacy and Civil Liberties Oversight Board -- that looked into the big NSA surveillance programs suggested that the NSA should reveal this number -- and the NSA and Clapper have ignored this recommendation. As the Reps note, they recognize that Clapper is "reluctant" to provide such information, but... First, we understand that an exact count of how many United States persons have been swept up into Section 702 surveillance efforts may not be feasible. The leadership of the intelligence community has long held this View, and the Inspector General for the National Security Agency--who is an administrative appointee, and not an independent inspector general--has deferred to your office on this issue. We understand that limited resources and technical barriers may prevent you from making an exact count. We are not asking you for an exact count. Today, our request is simply for a rough estimate. You have already demonstrated that such an estimate is feasible. An October 3, 2011 opinion of the Foreign Intelligence Surveillance Court reports that the NSA, in an effort to address the court's concerns about the collection of domestic communications under certain applications of Section 702, "conducted a manual review of a random sample consisting of 50,440 Internet transactions taken from the more than 13.25 million Internet transactions acquired through upstream collection during a six month period." In that case, the court found: NSA knows with certainty that the upstream collection . . . results in the acquisition of wholly domestic communications. By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA has, as a practical matter, circumvented the spirit of [the statute] with regard to that collection. That case looked at a particular problem with "upstream" collection. A similar but broader analysis may be necessary here. We are willing to work with your office to determine the exact methodology for such a survey. We acknowledge that this estimate will be an imperfect substitute for a more precise accounting--but surely the American public is entitled to some idea of how many of our communications are swept up by these programs. The letter also addresses another argument that the NSA made previously in response to Wyden's questions: claiming that (get ready for this one) the process to figure out how many Americans' privacy had been violated would... violate their privacy. It's a dumb argument, but perhaps not quite as dumb as it sounds. In short, the NSA wants to argue that it's not doing anything wrong in collecting this information, so long as the searches on the data are within the bounds of the law and the Constitution. Yet, because of that, they want to argue that doing the search to count the records would potentially violate the restrictions on when they can search the data. See? They can't tell you if your privacy has been violated, because to do so would violate your privacy! In some ways, this is kind of a middle finger to the civil liberties crowd. It's the NSA's smirking response of "see? we can't tell you how much data we have because you put these privacy restrictions on how we can use that data -- and we take your privacy seriously." But this letter addresses that concern as well, saying that basically no one thinks a "one-time" search solely for the purpose of counting violates anyone's privacy: Second, we understand that producing an estimate might require reviewing actual communications acquired under Section 702, which could itself raise privacy concerns. On this point, we refer you to the judgment of the many civil liberties organizations that support conducting "a one-time, limited sampling of these communications," if necessary. They believe it would be "a net gain for privacy if conducted under appropriate safeguards and conditions." We agree, and we are willing to work with your office to implement those safeguards if necessary. This, too, is a problem we can solve. And, finally, they close with a stick, reminding Clapper that this entire program is scheduled to sunset at the end of December, 2017, and if he wants the FISA 702 program (which covers both PRISM and upstream collection) to continue, he might want to actually respond. The letter is then signed by 14 members of the House Judiciary Committee. It's not everyone, but it's a pretty good list of folks, including some of the more powerful members, including ranking member John Conyers and the author of the PATRIOT Act and the USA Freedom Act, Jim Sensenbrenner. Other signatories include Reps. Zoe Lofgren, Darrell Issa, Blake Farenthold, Jason Chaffetz, Jim Jordan, Ted Deutch, Suzan Delbene, Ted Poe, Hank Johnson, Jerry Nadler and David Cicilline. This is not just a pointless letter dashed off by one or two Reps. It's a big chunk of the Judiciary Committee (less than half, but still a significant amount). I'm sure that Clapper will do his best to avoid actually answering, but at the very least it sets up what appears to be the next big fight on the horizon: over the renewal of Section 702.Permalink | Comments | Email This Story

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Last year we noted that Comcast was refusing to let the company's customers access HBO's streaming video service on certain platforms. In order to watch a service like HBO Go on your Roku or, say, gaming console, you need to log in using your cable credentials, as with most "TV Everywhere" type services. Most cable operators had no problem quickly enabling this authentication, but when it came to say -- HBO Go on Roku or the Playstation 3 or 4, Comcast refused to let the services work. Why? If users can't access this content via a third-party app, they're more likely to watch the content on Comcast's own apps, devices, and services. Of course Comcast can't just come out and admit this, so when asked why they have so much trouble getting this kind of authentication to work, it offers a rotating crop of excuses to news outlets, including claims such efforts just take "time and resources":"With every new website, device or player we authenticate, we need to work through technical integration and customer service which takes time and resources. Moving forward, we will continue to prioritize as we partner with various players."Right. The problem is that nearly every other cable operator has made this kind of authentication work without problems nearly instantaneously. For example if you head to the HBO Go activation page and select Playstation 4, you'll note that no other cable operator appears to be having these kinds of problems. Roku actually needed to file an FCC complaint to get Comcast to stop doing this (years after customers started complaining). But it's still a problem for Playstation 3 or 4 users trying to use HBO Go; those annoyed users now being told over at the Comcast forums that the apps won't work due to some unspecified "business terms" that have yet to be agreed upon:"HBO Go availability on PS3 (and some other devices) are business decisions and deal with business terms that have not yet been agreed to between the parties. Thanks for your continued patience."Again though, these ambiguous "business disputes" are apparently specific to Comcast's unique way of doing business, since no other major cable operator appears to be having them when it comes to third-party authentication. And this is a problem that just keeps happening. Starz recently announced that it was launching its own, shiny new streaming video service. According to the Starz announcement, non-cable customers can pay $9 a month to access the app, but cable customers can access the application for free. Well, once again, except for Comcast customers, who are being "blocked" from accessing the app:"Comcast disagrees with Starz's one-app-fits-all approach. The biggest U.S. cable operator and a key Starz affiliate has opted not to participate in the TV-everywhere aspect of Starz's new app. For now, at least, Comcast is declining to enable the authentication (or verification) of Starz subscribers on Comcast Xfinity who want to use the new app. Representatives of Comcast and Starz both say they are "great partners" and hope something can be worked out to resolve the situation, though it is unclear what might cause Comcast to change its view on the matter.But because this exists in the murky periphery of telecom and television services and not the general Internet, it's not technically a net neutrality violation. It's just another, vanilla example of Comcast behaving anti-competitively in the hopes of herding its customers away from alternative content access methods and toward its own services. And that's par for the course for Comcast, which is now using usage caps to exempt its own streaming video services, giving them yet another leg up in the marketplace. How outrageous you'll find Comcast's latest crippling of a third-party app appears to vary from person to person. I've seen more than a few people argue it's Comcast's prerogative to engage in these kinds of ambiguous business disputes, though I've seen just as many argue that if the Starz app offers paying customers a better way to access the same content -- it should be up to the consumer to make that decision, not Comcast. Either way, it's this kind of behavior that not only contributes to Comcast's historically-bad customer service rankings, but the slow but steady rise in traditional cable cord cutting.Permalink | Comments | Email This Story

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While so much of the attention had been focused on the case in San Bernardino, where the DOJ was looking to get into Syed Farook's iPhone, we've pointed out that perhaps the more interesting case was the parallel one in NY (which actually started last October), where the magistrate judge James Orenstein rejected the DOJ's use of the All Writs Act to try to force Apple to help unlock the iPhone of Jun Feng, a guy who had already pled guilty on drug charges, but who insisted he did not recall his passcode. There were some oddities in the case. Feng had pled guilty and there was some issue over whether or not there was still a need to get into the iPhone. The DOJ insisted yes, because Feng's iPhone might provide necessary evidence to find others involved in the drug ring. The other oddity: Feng's iPhone was running iOS7. While the device itself was a newer model iPhone than the one in the Farook case, it still has an older operating system, where it was known that Apple (and others) could easily get in. So it made no sense that the FBI couldn't get into this phone. In fact, Apple's latest filing in the case, just over a week ago was basically along those lines, noting that the DOJ claimed Apple's assistance was "necessary," but that seemed unlikely. And... late on Friday, the DOJ did the exact same "run away!" move it did in the Farook case, telling the judge that it had suddenly been given the passcode, so there was no need to move forward with the case at all. The government respectfully submits this letter to update the Court and the parties. Yesterday evening, an individual provided the passcode to the iPhone at issue in this case. Late last night, the government used that passcode by hand and gained access to the iPhone. Accordingly, the government no longer needs Apple’s assistance to unlock the iPhone, and withdraws its application. According to a (paywalled) WSJ article, Feng, who has been waiting for his sentencing, and thinking that his case was otherwise over, only just found out that there was this big fuss around his own case... and told the DOJ he miraculously remembered the passcode. Hallelujah. A miracle... and the DOJ was magically saved from a precedent it didn't want. The Wall Street Journal reported last week that Mr. Feng only recently learned his phone had become an issue in a high-stakes legal fight between prosecutors and Apple. Mr. Feng, who has pleaded guilty and is due to be sentenced in the coming weeks, is the one who provided the passcode to investigators, according to people familiar with the matter. Of course, it's worth noting, however that while this particular case may be effectively over, it's not that great for the DOJ, in that no one got to officially review magistrate judge James Orenstein's fairly epic smackdown of the DOJ earlier in the case. That, of course, has no value as a precedent, but that doesn't mean it won't be quoted or pointed to in other, similar cases. On the flip side, of course, there's the argument that every time the case starts looking bad for the DOJ, they miraculously get into the phone in question. At this very least, this ought to raise questions about why the DOJ keeps insisting that it needs Apple's help... But the fact is these cases are going to keep coming.Permalink | Comments | Email This Story

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This week, after a lab tech was caught faking drug test results, calling over 7,800 prosecutions into question, That Anonymous Coward delivered our first place winner for most insightful comment of the week, in the form of a rightfully outraged tirade: Because to protect the image of the system outweighs the rights of the convicted. So what if they were convicted on contrived evidence. So what if the details were not released. So what if anyone finally managed to get exonerated, we've limited their recourse for compensation. So what if the system is rigged. So few people will care because it hasn't happened to them. It has happened to a population they've been taught to fear and expect the worst of. This only happens to bad people who deserve it, not good people like me. We got the bad people locked away, so what if the lab results were fake they probably did it anyways. Allowing the liar to retire, probably with all benefits intact & allowed to move elsewhere, shows how little the system cares about the law. They cheated the law, they violated their oaths, and when confronted with it they drag their feet and leave thousands of people screwed to protect their win rating. "Regular" people need to wake up to the very simple truth that the system routinely does screw innocent people, and that the system does nothing to punish those who did it or compensate people who had their lives stolen. That they are paying the price for faked worked, incompetent workers, keeping innocent people in prison, and paying a pittance in oh sorry we fucked you money, and keep these cheating cogs working. Yes Skippy it hasn't happened to you, but perhaps consider what happens when the system targets you incorrectly and magically the evidence says you did it. Imagine the rest of society discounting what you say and not giving a shit because you had to have done something wrong and need to be punished. In second place, we've got another strong response to a terrible law enforcement situation, this time in the form of one of the worst and most violating traffic stops we've ever seen. Anomylous had a lot of support in calling it exactly what it was: If there was no reason for the stop... and no reason for the searches... why aren't they pressing rape charges? Sure, they're cops, but they violated the law to essentially rape 2 people, in public. These cops are rapists. The female officer may be an accessory if the other officers lied to her, but its still rape. For editor's choice on the insightful side, we stay with that post for one more comment, this time from DannyB in response to the question of whether the victims had a history of criminal activity: Suppose someone did have a history of criminal activity. Are you suggesting that they should probably choose to remain a criminal for the rest of their life because the police have a right to treat them that way for life? Is it a worthy goal of the police to discourage anyone from ever getting their act together and becoming a law abiding citizen? It is probably worth extending this thinking to family relations as well. If your grandfather had any criminal activity, then you might too. Or your cousin, etc. Next, we head to a post about the latest broadband company shenanigans, where TheResidentSkeptic scored high on both the insightful and funny sides by pointing out that we may need to adjust our nomenclature: Incorrect classification of companies As the FCC has now classified "broadband" as 25MB+, most of these companies no longer qualify to be called broadband providers... Over on the funny side, we start out on our post about the absurd legal fight over one artist's painting of a nude Donald Trump, where we commented that nothing about the story makes sense. Our very own Tim Geigner aka Dark Helmet took first place for funny by correcting us on that: Except for the idea that Trump has a tiny, infinitesimally sized dong, which actually makes every last bit of sense ever.... For second place, we head to the story of law enforcement's utter failure at social media outreach about encryption with the #unlockjustice hashtag. Jeremy Lyman proposed they continue with the excellent campaign: Surely we can help Vance out and come up with an untainted hashtag for his crusade. Here's a few never-been-used tags to get the ball rolling... all for FREE! #CriminalizePaperShredders #NeverDeleteAnythingOrGoToJail #PrivateConversationsMakeCopsCry #SeriouslyThoughYouCanTrustUsThisTime For editor's choice on the funny side, we've got a pair of comments in response to the Authors Guild's ongoing whining about Google Books. First, it's a second nod to DannyB for a little acerbic sarcasm: If people can now freely read short snippets from out of print books that will never be in print ever, ever again, then how will the authors of those books get paid? Wait, did I call that sarcasm? No, no, this is sarcasm: If only there was a group representing authors, a guild of sorts, that would digitize the books for the benefit and profit of the authors. Too bad nothing like that exists. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2011, the cracks in Righthaven's facade were starting to widen. One judge explained that their demands were silly then slammed their tactics and unsealed a damning document, which revealed that Righthaven's copyright assignments from Stephens Media were a sham, only assigning the "right to sue". Meanwhile, the company was defending itself before another highly skeptical judge. YouTube was facing a lot of criticism over its problematic copyright school (though it wasn't as bad as some "educational" offeringsthe associated quizzes, to the point that Public Knowledge was offering $1,000 to anyone who'd create a better one. The RIAA lawyer fighting the Limewire lawsuit was recommended as a federal judge while Grooveshark was defending its own legality and the MPAA was contradicting itself on the subject of protecting culture. This was also the week that we saw the birth of Kopimism. Ten Years Ago In the world of copyright lawsuits this week in 2006, we took a closer look at why MP3.com never appealed the ruling against it, while one federal judge was considering possible defences against RIAA filesharing lawsuits. The FCC commissioner was pushing for DRM for no real reason, one economist was trying to blame piracy for the high price of concerts, and Mike was heading to Washington to discuss copyright at the CATO Institute. Laws against driving while using a cellphone were still proving popular, even if that required misrepresenting studies that actually said all distractions are bad. And in the world of completely unsurprising studies, we also learned that people use the internet, especially internet users and kids can find their way around web filters. Fifteen Years Ago This week in 2001, people were grappling with predictions about emerging technologies, from the mostly-doomed (interactive TV) to the partially-successful (RFID tags are everywhere even if they never fully replaced barcodes) to the still-emerging (augmented reality) to the we-really-should-have-this-all-sorted-by-now (fiber to the home). A not-particularly-funny New York Times was calling for relationship counselling for the music industry and its customers while an always-funny Douglas Adams was delivering the keynote at the Embedded Systems Conference. Those who looked ahead with a bit more concern were noting that mass online victimization via data theft and hacking were just around the corner (and UK intelligence agencies couldn't even stop losing laptops). Eighty-Six Years Ago We've all seen the absurd lengths cable news networks will go to in order to keep something on screen 24 hours a day, even when they have nothing interesting to talk about. On April 18th, 1930, BBC Radio took a slightly different approach that's almost unimaginable today: they simply announced that there was no news, and played some piano music instead. Of course, there actually was news, just as there's plenty the cable networks should be turning their attention to today, but at least then they had the reasonable excuse that said news couldn't possibly have reached them in time. Permalink | Comments | Email This Story

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High-quality precision engineering enables the creation of remarkable tools and machines, but once in a while it gets applied to something more frivolous, with extremely appealing results. This week, we're looking at a pair of ultimately not-that-useful toys which are nevertheless very cool, thanks to unmatched detail and precision. MOON This one is sure to make space geeks salivate, though only the hardcore among them will actually part with £300+ to get their hands on one. What makes MOON special? Well, while the non-detail-oriented might think a volleyball makes a sufficient lunar globe, the MOON is there for those who demand more: it's a completely accurate and faithful 3D reproduction of the moon, not based on 2D photos of the surface but on actual topographical data from NASA's Lunar Reconnaissance Orbiter. You can see — and even touch — every single perfectly-rendered ridge and crater, or just watch as they are cast into shifting relief by the ring of white LEDs that orbits the globe to create stark shadows and highlights and accurately simulate lunar phases. The rotocasted polyurethane resin globe comes in a couple of different sizes but, as mentioned, none of them are cheap. Spin Spinning tops are one of those funny pieces of simple engineering that most people can't help but find pleasing and intriguing for no immediately obvious reason, and this one might be the top to end all tops. It's huge — 3 inches tall by 2 inches in diameter — and hefty, made from high-quality aluminum with a precisely machined 2mm tip. After hitting full speed with the help of a kevlar pull-string, it's capable of some nifty feats for a spinning top: it can spin upside-down or on your fingertip almost as confidently as the normal way on a flat surface, and its high weight and speed make it function like a gyroscope and do tricks like spinning on its side (seemingly defying gravity) while hanging from the launching string. Essentially, it's an age-old toy made impressive by being engineered like an important machine — and while it's a slightly more accessible purchase than the lunar globe above, it still carries a $65 price tag (and that's just for Kickstarter backers — the intended retail price is over $100). Permalink | Comments | Email This Story

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The Supreme Court declared in 2014 that law enforcement could no longer perform searches of cellphones incident to arrest without a warrant. The exceptions to this ruling are making themselves apparent already. The area of the United States where the Constitution does not apply -- while still being fully within the borders of the US -- apparently exempts law enforcement from following this ruling in regards to cellphone searches. The Southern District of California has come to the conclusion that border searches are not Fourth Amendment searches and that the government has no need to seek a warrant before searching a cellphone. The court notes the Riley decision says one thing but the "border exception" says another. Heading in one direction is the Supreme Court’s bright line rule in Riley: law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. Heading on a different course is the border search exception. The border search exception describes an exception to general Fourth Amendment principles. It is the notion that the government may search without a warrant anyone and anything coming across its border to protect its national sovereignty. Balancing the two competing interests in this case, the court ultimately finds the government's national security interest outweighs citizens' privacy interests. As it weighs this against cases dealing with more elaborate and lengthy device searches at the border, the court basically finds that if the Fourth Amendment is violated by "cursory" searches of devices, it is only violated a little. Reviewing the totality of the circumstances, the Caballero cell phone search: (1) took place at a port of entry; (2) was based on reasonable suspicion of criminal activity; (3) was conducted manually and appeared to be a cursory search of the device’s contents; (4) did not involve the application of forensic software; (5) did not destroy the cell phone; (6) was performed in minutes, as opposed to hours or days; (7) was performed upon a device being brought into the country, rather than being taken out of the country; and (8) was performed approximately four hours after Caballero was placed under arrest. Other than the last factor, each of these factors was either similar to or less intrusive than the warrantless search Cotterman decided was reasonable. The "border exception" the court carves out for a warrantless search of cellphones at the border somehow relies on exceptions carved out in the original Riley decision, despite saying Riley doesn't control border searches. The two cases can be reconciled. The most obvious path for reconciliation is to conclude that the border search exception is among the traditional exceptions to which Riley’s warrant requirement does not apply. This approach finds safe footing in the Supreme Court’s statement that “other” “exceptions” may continue to justify a warrantless search. Riley, 134 S. Ct. at 2494 (“Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.”). It also is consistent with the observation from Montoya de Hernandez, (473 U.S. at 539), about when balancing individual privacy rights against rights of the sovereign, the balance “is qualitatively different . . . than in the interior” and the balance is “struck much more favorably to the Government.” This approach also avoids the spectacle of deeming that Riley undercut 200 years of border search doctrine without even a mention. Not as much of a "spectacle" as the California court would think, considering the Riley decision set aside years and years of the government relying on dubious analogies like "containers" or "pair of pants" to justify the search and seizure of anything carried on or near a person (like in their vehicle) incident to arrest. It may not date back 200 years, but it does date back to the Fourth Amendment itself, which is a controlling authority with more than 200 years worth of history. The case here deals with an actual border crossing (Calexico, California) but the government has basically declared any area within 100 miles of a border can be called "the border" for the sake of searches and detainments predicated on reasonable suspicion or, in many cases, law enforcement hunches. As for this case, it's hardly the ideal test for balancing Riley against the border search exception. For one, the defendant challenging the warrantless cellphone search was already neck-deep in reasonable suspicion, thanks to the discovery of drugs in his vehicle. Officers on scene had more than enough reason to detain him and likely had uncovered enough damning evidence to support a warrant affidavit. Of course, they did not seek one. Instead, they briefly browsed his phone until they found further suspicious content. Some courts refuse to give officers a pass when they could have gotten a warrant but choose not to. Those courts are in the minority. This court is part of the majority. Here, illicit narcotics had been discovered. Caballero had been arrested. Reasonable suspicion had jelled into probable cause. For the time being, he and his cell phone were safely in the hands of government agents. Other than the increased administrative work required, there is no apparent reason why Riley’s search warrant requirement could not be applied without undercutting the interests supporting the border search doctrine. One can certainly say that Riley casts doubt on Cotterman’s approval of warrantless searches where an arrest is made. Nevertheless, as long as this Court can apply circuit precedent without running afoul of intervening authority, it must do so. Being within 100 miles of the border means never having to seek a warrant, even if the government has both the time and the probable cause to do so… at least until someone manages to push a challenge up to the appeals court level or beyond. Permalink | Comments | Email This Story

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For many years we've pointed out that the fees charged by PACER were clearly outside what the law allows. If you don't know, PACER is the electronic filing system for the federal court system. It is great that all filings in federal cases are available online, but the interface looks like it was designed in 1998, the search is ridiculous, and (worst of all) the system charges you 10 cents per page of download -- excluding judicial opinions, but including HTML pages including search results and docket reports. There is a cap of $3 per document, but that means that every time I call up PACER on a big case -- say the Apple/DOJ encryption battle, there are so many filings that just to look at the docket is basically $3. That adds up. And, as we noted all the way back in 2011, this appears to violate the law that authorizes PACER to exist. The law makes it clear that the Judicial Conference can only charge "reasonable fees" and that those fees should only be for the purpose of operating PACER itself. Yet PACER makes a lot more money than it takes to maintain the system. The courts do actually use this revenue for good purposes -- such as updating technology in courtrooms -- but it's still troubling that it's violating the law to get that money, and putting many of the fees on the back of the public (and reporters who are trying to inform the public). A few years ago Aaron Greenspan filed a pro se lawsuit about this issue, and while I appreciate where his heart is, he always seemed to have trouble managing the various pro se lawsuits he had filed (some of which I still argue were just downright nutty). Earlier this year, we highlighted another lawsuit over PACER, arguing that when it charges "per page" fees for HTML results (search, dockets, etc...) that it was overcharging. But now it looks like we finally have a real lawsuit over the fees themselves, filed by a few different legal advocacy groups: the National Veterans Legal Services program, the National Consumer Law Center, and the Alliance for Justice. Despite this express statutory limitation, PACER fees have twice been increased since the Act’s passage. This prompted the Act’s sponsor to reproach the AO for continuing to charge fees “well higher than the cost of dissemination”—“against the requirement of the E-Government Act”—rather than doing what the Act demands: “create a payment system that is used only to recover the direct cost of distributing documents via PACER.” Instead of complying with the law, the AO has used excess PACER fees to cover the costs of unrelated projects—ranging from audio systems to flat screens for jurors—at the expense of public access. This noncompliance with the E-Government Act has inhibited public understanding of the courts and thwarted equal access to justice. And the AO has further compounded those harms by discouraging fee waivers, even for pro se litigants, journalists, researchers, and nonprofits; by prohibiting the free transfer of information by those who obtain waivers; and by hiring private collection lawyers to sue people who cannot afford to pay the fees. It's good that the court system is investing in technology, but it should (1) do so within the law and (2) figure out a way to make PACER information free to the general public already. These documents are critical for the public to understand the judicial system that impacts them on a daily basis. There have been many suggestions for better ways to do this, including making the filing fees for lawyers higher (with exemptions for plaintiffs without means to pay for such lawsuits). You could easily cover the cost of PACER with slightly higher filing fees for corporate plaintiffs, and then still make the overall PACER system better and faster. We have seen companies stepping into this space trying to make better interfaces for the awful PACER system -- companies like PacerPro, Plainsite and Sqoop -- but all of them still rely on the fee-based PACER on the backend.Permalink | Comments | Email This Story

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Sometimes, the key to kicking off a whole new world of technology is a brand new material. The discovery and/or creation of new materials with useful properties is pursued in engineering, chemistry and physics — sometimes with world-changing results, and other times producing only curiosities. Lately, it seems like a lot of the most interesting material advances have to do with flexibility in one way or another, like these four creations that might end up enabling the devices of the future: An elastic material that goes from matte to shiny when stretched could have future applications in flexible displays. But there are a lot of tests to be done to see if that's really a possibility — for now, it looks like this substance might be more useful as a passive strain sensor for other materials. [url] MIT researchers have taken very early steps towards creating "fabric" that can capture images like a camera lens. The system captures images with a distributed fabric mesh, though all it's captured so far is a rudimentary smiley face. [url] "Flexiramics" is an ultra-thin, foldable and flexible material that shares a lot of key properties with ceramics and might help create flexible circuit boards. It's non-conductive and can withstand over 24 hours in a 1,200°C oven. [url] This newly-created metallic glass is both hard and elastic, thanks to an almost-completely-disorganized atomic structure. It has the highest impact resistance of any material in its class, and goes by the not-so-memorable name of SAM2X5-630. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff. Permalink | Comments | Email This Story

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The Seventh Circuit Appeals Court has done something few courts do: told law enforcement it can't have that sweet, sweet "drug" money it lifted from two brothers for no other reason than that it felt there was something shady about its very existence. Police responded to a call about a home invasion at the residence of Pedro and Abraham Cruz-Hernandez. While inside the house, officers came across a handgun, a small amount of marijuana and a scale. This apparently prompted the arrival of two drug dogs, considering they're not usually standard equipment for home invasion investigations. When searching the brothers' van, police found $276,080. So, they took it. Why? Because their dogs said they could. A police drug dog signaled the presence of drugs in Pedro’s van, which was parked outside the house. After obtaining a search warrant, the police discovered in the van a safe containing $271,080 in currency and two pages of handwritten notes including dates and numbers. The cash was bundled with rubber bands in stacks of $5,000. A second dog alerted to the safe. No drugs, however, were found in either the van or the safe. It didn't matter that neither drug dog could adequately perform the single task required of them. The "alerts" were all the justification law enforcement needed to rob the brothers of their money. As is standard operating procedure in asset seizures, no charges were brought but the "guilty" money remained in the possession of law enforcement. The brothers challenged the forfeiture. The government then tried to use a mistake any person could have made to justify its possession of the brothers' money. The government also pointed to two alleged disavowals of ownership by Abraham: (1) a record created by U.S. Immigration and Customs Enforcement (ICE) six weeks before the police seized the safe, in which Abraham had said that he did not have any “equities” in the United States, and (2) Abraham’s application for cancellation of removal, filed with the assistance of immigration counsel six months after the seizure, in which he lists only $2,000 in “cash assets.” The government represented that Pedro and Abraham, when deposed, had testified that they told the truth to the police and to immigration officials. The problem here is that Abraham was asked to list his cash assets. A normal person not versed in the convoluted fuckery that is asset forfeiture would reasonably conclude that his assets only include what's actually in his possession. As the government was still in possession of the $276,080 at the point Abraham was asked, he reasonably concluded he could only legally claim the $2,000 he had access to. The government took this reasonable conclusion and twisted it to mean Abraham had relinquished his claim on the $276,000. In legal terminology, the government claimed the contradictory statements constituted a "sham affidavit." The court doesn't see it the government's way, though. (Emphasis in original.) Changes in testimony normally affect the witness’s credibility rather than the admissibility of the testimony, and thus the sham-affidavit rule applies only when a change in testimony “is incredible and unexplained,” not when the change is “plausible and the party offers a suitable explanation such as confusion, mistake, or lapse in memory.” [...] Abraham’s explanation for his answer on the immigration form is not only plausible, but is correct. We suspect that many people—in particular immigrants completing a form for ICE—would not be aware that a legal claim is an asset. But whether they would or not, a legal claim—even a claim to money—is not itself a “cash asset.” See CASH, Black's Law Dictionary (10th ed. 2014) (defining cash as “1. Money or its equivalent; 2. Currency or coins, negotiable checks, and balances in bank accounts.”). Moreover, when deposing Abraham the government’s lawyer did not ask about his understanding of a “cash asset” or whether his attorney had explained the definition of that term. There is no reason, therefore, to reject out-of-hand Abraham’s deposition testimony that he had been truthful in his immigration filings. Not only that, the court notes, but an element common to nearly all asset forfeitures doesn't help the government's case much. It is also telling that the government has presented virtually no evidence that the brothers are involved in drug trafficking. There was nothing to indicate past or current drug dealing by the brothers or anyone else living with them in the house, nor was there any suggestion that either brother used the bedroom where the apparent drug paraphernalia was found. Though drug dogs had alerted to the safe and currency, the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance. (Given this limited sampling includes both dogs "claiming" drugs were present when no drugs were, it's likely the government felt records on training, methodology and field performance would only have made its case weaker.) Neither did the government point to evidence (e.g., an experienced drug investigator’s opinion) to substantiate its assumptions that the notes found in the safe were a “drug ledger” or that counting and bundling currency is something that only drug dealers would do. “Absent other evidence connecting the money to drugs, the existence of money or its method of storage are not enough to establish probable cause for forfeiture,” much less enough to meet the now-heightened standard of a preponderance of the evidence. And, finally this little kick to the government's ribs: Courts have concluded that the government failed to meet its burden in cases with better evidence than this [one]... And with that, the Appeals Court sends it back to the lower court with the judgment in favor of the government vacated. Considering the brothers appear to have "substantially prevailed," the government may find itself cutting a check for legal fees. In hindsight, it would have been smarter to have returned the money when it became apparent there was no basis for a criminal case. But that's not how the government rolls. Cash is presumed guilty until proven innocent, even when it's little more than two underperforming drug dogs and a small baggie of marijuana "justifying" the seizure. Permalink | Comments | Email This Story

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Back in 2011, Microsoft officially filed an antitrust complaint against Google in the EU. At the time, we noted how silly this was, given that the company itself had spent years battling EU antitrust regulations. It almost felt like a "well, if we had to go through that hellish process, let's put it on Google too..." kind of thing. Within less than a year, Google filed its own antitrust complaint back against Microsoft. As we noted at the time, both claims seemed kind of ridiculous and overblown -- and it bothered us greatly that these companies were resorting to stupid political games, rather than just competing in the market. So, now, just days after the EU officially took that ball and ran with it, Microsoft and Google have announced that they've buried the hatchet and agreed to drop all antitrust complaints against each other around the globe. They insist this has nothing to do with the EU's move earlier this week. In fact, the writing has been on the wall for some time here. The two companies had ended the patent battle last fall, with everyone dropping all complaints and lawsuits. And, just a couple of months ago there were reports that Microsoft was cutting back on supporting the very coalitions that it had put together and funded: ICOMP and FairSearch. It had always been obvious and well-known that both groups were Microsoft front groups, and now it's official... and over. According to Re/code: “Microsoft has agreed to withdraw its regulatory complaints against Google, reflecting our changing legal priorities,” a Microsoft representative said in a statement to Re/code. “We will continue to focus on competing vigorously for business and for customers.” Google, meanwhile, offered up a similar statement, affirming that it too will withdraw any regulatory complaints it has made. “Our companies compete vigorously, but we want to do so on the merits of our products, not in legal proceedings.” Of course they could have, and should have, done that five years ago, rather than going through this wasteful process for all involved. The Re/code report suggests a big reason for the shift is the new leadership atop both Google and Microsoft, leading to less animosity and a willingness to work together in some areas and compete directly in the market. It was disappointing that the two ever bothered to focus on trying to dump bureaucratic nightmares on each other in the first place, so it's good that that part is over. However, the antitrust investigations and potential outcomes won't stop just because the companies have stopped supporting them. Once those launched, they'll keep on going.Permalink | Comments | Email This Story

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We've seen a lot of silliness this political season, most of which I happily lay the blame for at the feet of what has to be the lamest group of candidates for President this esteemed country has ever seen. What these good-for-nothings have bred is a deeper level of hateful rhetoric and toxic partisanship than what was present already, which I didn't even think was possible. Yet they achieved it anyway, meaning that my social media feeds are overflowing with the kind of know-nothing memes and claims about all of the candidates that have me thinking about downing a bottle of rat poison just to make my brain stop hurting. Add to all of it the involvement of SuperPACs for all of these candidates, with their un-subtle messages and self-serving advertising, and it's enough to wonder if we should scrap this whole America thing and try to start something new from scratch. Well, those two worlds are apparently colliding as we speak, with information about the new strategy being taken by one pro-Clinton SuperPAC coming to light. Citing “lessons learned from online engagement with ‘Bernie Bros,’” a pro-Hillary Clinton Super PAC is pledging to spend $1 million to “push back against” users on Twitter, Facebook, Reddit and Instagram. Correct the Record’s “Barrier Breakers” project boasts in a press release that it has already “addressed more than 5,000 people that have personally attacked Hillary Clinton on Twitter.” The PAC released this on Thursday. I'll get the obligatory XKCD out of the way, because there was simply no way not to include this comic in this post. So, yeah, this Hillary PAC is spending a million dollars to apparently argue with people on social media, which is the kind of thing some of us do for free every day, because we're obsessive jack-wagons unable to let anyone anywhere say something stupid and think they got away with it. But I know that I'm almost certainly wasting my time, whereas this superPAC is boasting about all of this. But why is it a time-waster? Well, because the kind of people saying the kinds of messages about Hillary Clinton that this campaign is likely to try to rebut aren't going to be swayed by paid web-trollers and their arguments, factual or otherwise. “This explains why my inbox turned to cancer on Tuesday,” wrote user OKarizee. “Been a member of reddit for almost 4 years and never experienced anything like it. In fact, in all my years on the internet I’ve never experienced anything like it.” So the targeted rebuttal is deemed to be "cancer." Victory? More interesting is that the PAC in question, Correct the Record, claims it is coordinating directly with the Clinton campaign in doing all of this. And it claims that this is all perfectly legal, despite the infamous Citizens United ruling resting on the claim that PACs are private interests and do not coordinate with the campaigns of politicians. What logic is Correct the Record relying on in claiming that its coordinating is legal? Well, these rebuttals aren't paid spots, so campaign finance rules don't apply. Due to FEC loopholes, the Sunlight Foundation’s Libby Watson found this year that Correct the Record can openly coordinate with Clinton’s campaign, despite rules that typically disallow political campaigns from working directly with PACs. “SuperPACs aren’t supposed to coordinate with candidates. The whole reasoning behind (Supreme Court decision) Citizens United rests on (PACs) being independent, but Correct the Record claims it can coordinate,” Watson told The Daily Beast. “It’s not totally clear what their reasoning is, but it seems to be that material posted on the Internet for free—like, blogs—doesn’t count as an ‘independent expenditure.’ Usually places like MMFA and CTR are defending her against the media and established figures. This seems to be going after essentially random individuals online,” she said. “I don’t know that they’ve done anything like this before.” It's an interesting argument by the PAC, but one that reportedly is raising eyebrows among lawyers involved in campaign finance law. Some are claiming that this tactic is a cynical undermining of the spirit of campaign finance laws, using a loophole to get around the laws' original purpose. There are also claims floating around that the Federal Election Commission should do something about this, but isn't over a lack of understanding of whether any of this is legal. Which ultimately may not matter all that much because, as I noted above, I just can't see how this is a productive use of this PACs time and resources. I argue with people online all the time, because I'm an idiot, and rarely do those arguments end with minds changed. And those arguments are often on topics far less divisive than American politics. Why should this PAC think any of this will turn out any better for them? Permalink | Comments | Email This Story

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We've written quite a lot about National Security Letters (NSLs) over the years. This widely abused tool allowed the Justice Department/FBI to issue simple letters (technically administrative subpoenas) demanding information from companies with no prior judicial review -- and frequently with a perpetual gag order, so that a company can't even say that it had received an NSL. The FBI hands these out by the dozens. Back in 2013, there was a somewhat surprising, but important, district court ruling in California saying that national security letters were unconstitutional, and that legislation was needed to fix them. The government appealed -- and while that appeal was going on, Congress passed the USA Freedom Act, which included some modifications to the NSL provisions in the PATRIOT Act. Based on that, the 9th Circuit appeals court sent the case back down to the district court to review based on the new law. And, unfortunately, in a newly unsealed opinion (from the end of March), Judge Susan Illston found National Security Letters to now be constitutional. As Illston notes, under the old NSL rule, courts were limited in being able to review NSLs. However, under the version amended by the USA Freedom Act, there is at least some potential for judicial review, and that now makes them constitutional in the eyes of the court: The Court concludes that as amended, section 3511 complies the constitutional requirements and curses the deficiencies previously identified by this Court. Section 3511 no longer contains the "essentially insurmountable" standard providing that a court could modify or set aside a nondisclosure requirement only if the court found there was "no reason to believe" that disclosure may result in enumerated harm. The government argues, and the Court agrees, that in the USAFA, Congress implicitly ratified the Second Circuit's interpretation of section 3511 as "plac[ing] on the Government the burden to persuade a district court that there is a good reason to believe that disclosure may risk one of the enumerated harms, and that a district court, in order to maintain a nondisclosure order, must find that such a good reason exists."... The Court rejected the argument, presented by the EFF which brought the case, that even this new standard is unconstitutional because it remains incompatible with the First Amendment in gagging speech not based on necessity, but rather on the mere possibility of harm. The Court doesn't buy it, though, saying that since the court can now review any NSL gag order, it's okay. The EFF, as you might imagine, is not happy about this and will be appealing to the 9th Circuit, where the case had been before, prior to the USA Freedom Act pushing it back down. In its new order in our cases, the district court acknowledged that USA FREEDOM’s kludgy reciprocal notice procedure does not live up to the high First Amendment standards in Freedman, but it still called this new procedure good enough. That’s because the court agreed with the Second Circuit that NSLs are not “classic prior restraints” because they do not gag “those who customarily wish to exercise rights of free expression,” such as movie exhibitors and book publishers. This might have seemed plausible when the Second Circuit first wrote it in 2008, as it was less common for companies to speak publicly about government requests for customer information. But these days, after the immense public debate caused by the Snowden revelations, service providers regularly publish transparency reports about government data requests, and companies like Apple, Microsoft and Google engage in public fights against overbroad requests and gag orders. Users are very concerned about the privacy and security of their data held by these companies. And contrary to the court’s assumption, many providers—like our clients—want to talk about these requests. But even if it were true that gagged communications providers aren’t “classic speakers,” NSLs are classic prior restraints. The First Amendment has never reserved its highest speech protections for only the most talkative—just the opposite, in fact. Prior restraints arise when the government preemptively tells someone they cannot engage in speech, which is exactly what NSL gag orders do. The EFF does note that there is a silver lining in this ruling, in that the gag order for one of its clients does not meet the new standard, meaning that, so long as the DOJ does not appeal the ruling, one of the anonymous EFF clients may be able to reveal who they are and that they received an NSL years ago...Permalink | Comments | Email This Story

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I already wrote a post about how the FISA Court rejected the arguments of the public advocate that it appointed to review the legality and constitutionality of the infamous backdoor searches. However, I wanted to put up a second post as well, digging a little deeper into what the ruling itself means, rather than just focusing on the public advocate part of it. Because it's pretty scary. We already knew that, once that data was collected under the Section 702 PRISM program, the NSA opened it up to both the CIA and FBI to search on for other purposes. However, as Elizabeth Goitein explains over at Just Security, even then there were some limitations:  The Justice Department, having worked Section 702 into the foreign intelligence exception by certifying that the government’s targets were not Americans and that the surveillance had a foreign intelligence purpose, and having met the constitutional reasonableness requirement by noting that incidentally collected information about Americans would be “minimized,” was allowing the FBI to run queries of Section 702 data to obtain information about Americans in ordinary criminal cases. Edward Snowden’s disclosures confirmed this practice, and the Privacy and Civil Liberties Oversight Board’s (PCLOB) report on Section 702 revealed that it was routine. Many commentators (myself included) have noted that this loophole creates an end run around the warrant requirement in ordinary criminal cases. Until recently, however, there was at least one substantive limitation on the FBI’s ability to query Section 702 data. As reported by the PCLOB, the FBI’s minimization procedures provided that queries must be “reasonably designed” to “find and extract” either “foreign intelligence” or “evidence of a crime.” This was a far cry from the probable cause that would be needed to obtain a warrant, but it was something. The FBI, at least on paper, could not simply go on a fishing expedition through the warrantlessly obtained data. But the details of this newly revealed ruling show that that limitation has gone away -- basically because the FBI changed its own minimization procedures in part to pretend English words don't mean what they really mean. In the past, the NSA has reinterpreted many English words to mean things different than their plain English meaning. In this case, the FBI has decided to redefine the word "query": Displaying the intelligence community’s penchant for defining well-understood terms to mean something entirely different, the FBI’s most recent minimization procedures, in the FISC’s words, “clarify that a search of an FBI storage system containing raw-FISA acquired information does not constitute a ‘query’ within the meaning of the procedures if the user conducting the search does not receive access to unminimized Section 702-acquired information in response to the search.” This includes instances in which the search does return unminimized Section 702-acquired information, and the agent is notified of that fact but is not authorized to access the data. Because such searches are deemed not to constitute “queries,” they presumably are not subject to the requirement that “queries” must be reasonably designed to return foreign intelligence or evidence of a crime. The new procedures also “clarify” what happens if an agent performs a search that returns Section 702 information the agent is not authorized to access. In such cases, an agent who is authorized to access the information may re-run the search and determine whether the information “reasonably appears . . . to be foreign intelligence information, to be necessary to understand foreign intelligence information, or to be evidence of a crime.” If so, the information is passed along to the original agent. This “clean team” approach is no substitute for a limitation on the initial search. It is analogous to claiming that searches of homes are not “searches,” and thus do not require warrants, if the agents performing the search find nothing – or if an elite team steps in to perform the search and can turn over what it finds to prosecutors only if it is evidence of a crime. Previously, the procedures did not allow fishing expeditions; now they do, and it seems somewhat beside the point that the fisherman only gets to keep the fish if he catches one. Got that? A query is no longer a query and the FBI has much broader authority to do backdoor searches than was previously known. As the EFF notes in response to this, this seems to fly in the face of legal precedent and the Constitution: This is a constitutional problem. Quite apart from the bait and switch opportunities it creates for the FBI, it's like saying it's OK for school officials to set up a drug testing program for non-law enforcement purposes, and then once it’s set up, they can completely abandon that purpose and start testing students to simply to put them in jail. Or that the government can set up a program to test pregnant women for drugs with a goal to get them into treatment, but also hand the information over to the police and use the threat of prosecution as additional leverage. The Supreme Court rejected the latter scenario as unconstitutional in Ferguson v. City of Charleston in 2001. Other Supreme Court cases make clear that even holistic, programmatic assessments of Fourth Amendment "reasonableness"—like the one the FISC engages in here—must take into account the invasiveness of these programs. Searching vast databases containing the full content of emails and every website visited by nonsuspect Americans without a warrant is about as invasive as it gets. And it's not just the FBI that gets much broader access to these backdoor searches. Marcy Wheeler points out that the decision reveals that the NSA and CIA basically wrote themselves a note last summer saying that they no longer needed to follow minimization procedures... and the judge is cool with that. Here's the paragraph in the ruling: The NSA and CIA Minimization Procedures included as part of the July 15, 2015 Submission each contain new language stating that “[n]othing in these procedures shall prohibit the retention, processing, or dissemination of information reasonably necessary to comply with specific constitutional, judicial, or legislative mandates.” See NSA Minimization Procedures at 1; CIA Minimization Procedures at 4-5. These provisions were not included in the draft procedures that were submitted to the Court in June 2015, but appear to have been added by the government thereafter. They are not discussed in the July 15, 2015 Memorandum. As Wheeler notes, this is just the NSA and CIA deciding unilaterally that they can ignore minimization. The judge even pointed out that this move "could undermine the Court's ability to find the procedures satisfy the above-described statutory requirement." However, the judge, Thomas Hogan, then decides that this is kind of okay because government lawyers told him informally (yes, really!) that they don't intend to abuse this very much: The Court understands based on informal communications between Court staff and attorneys for the government that NSA and CIA intend to apply the similar provisions at issue here in the same narrow manner. Wheeler has a lot more on this particular part of the ruling and how troubling it is. But, in short, it has also broadened the ability of the government to snoop through these massive troves of data. The reliance on informal promises not to take it too far mean very little. As former NSA and CIA director Michael Hayden has said, his job was to push up as close to the boundaries of what was legal as possible. Once Congress or the courts told him what was legal (or, in some cases, the President unilaterally), he would make use of that. Why would that not be the case here? Or, as Wheeler explains more vividly: I’m not sure how that’ll be effective when President Trump decides he can pass an Executive Order requiring NSA to keep all the US person data it collects but not tell FISC about it, because the order they report on this to him is part of the minimization procedures they say they can blow off. And, of course, none of this can be appealed, because even though there are the arguments from the public advocate (which didn't include this last part about ignoring minimization), only the government itself can appeal a ruling, and they got everything they wanted here (and possibly more). The only actual way to fix it at this point is for Congress to step in and rewrite the law, but the chances of that happening appear to be slim to none.Permalink | Comments | Email This Story

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