Brindle

Another large batch of Snowden docs have been released by The Intercept. The new documents are part of the site's "SID (Signals Intelligence Directorate) Today" collection, a sort of interoffice newsletter featuring discussions of intelligence-gathering efforts the agency has engaged in, as well as more mundane office business.

The one discussed in this Intercept post details some careless opsec by Intelligence Community (IC) employees. Like anyone in any office anywhere, IC employees use their office computers to send personal email, shop online, and fritter away the downtime with some web surfing.

That's where they're running into problems. This SID Today document [PDF] deals with the IC's personal use of company computers -- namely, the "attribution" problem that develops when outside websites are accessed using IP addresses that can be traced back to the NSA and other IC components.

The IC uses a system called AIRGAP to provide internet access for IC employees while supposedly still preventing outsiders from tracing IP addresses back to sensitive locations. Set up in 1998 by "one of the world's largest internet providers," the system was supposed to provide non-attributable access to the outside internet world.

Unfortunately, as is detailed by the SID Today doc, the execution of AIRGAP was lacking.

One early concern about the firewall was that it funneled all internet traffic through a single IP address, meaning that if any activity on the address was revealed to be associated with U.S. spies, a broad swath of other activity could then be attributed to other U.S. spies. More IP addresses were subsequently added, but “occasionally we find that the ISP reverts to one address, or does not effectively rotate those assigned,” Speight wrote.

Speight added that the “greater security concern” was the very intelligence agents the system was designed to protect. “Despite rules and warnings to the contrary, all too frequently users will use AIRGAP for registering on web sites or for services, logging into other sites and services and even ordering personal items from on-line vendors,” Speight wrote in a classified passage. “By doing so, these users reveal information about themselves and, potentially, other users on the network. So much for ‘non-attribution.'”

It's the sort of simple carelessness that's almost unavoidable in large organizations. The NSA's effort to distance itself from its employees' internet use was thwarted by the ISP's funnel and IC employee sloppiness. As The Intercept points out, this mirrors some of the brainlessness exhibited by Russian hackers, who used a system designed to obscure their origin, but constantly undermined that protection by using the same system to log in to personal social media accounts.

The difference between the two is AIRGAP was just there to open a portal out of the IC's closed system. The Russian's system was designed to obscure the source of attacks. But the personal use of the IC's firewall/AIRGAP is still a violation of internal policy, as the document points out.

Rather than work towards preventing the unpreventable (personal web use), the IC set up another system -- OUTPARKS -- which provided more than 200 random IP addresses, all of which would be registered to an ISP, rather than the IC itself. Confusingly, the new system -- put in place in 2005 -- is also referred to as AIRGAP, primarily because IC employees are creatures of habit and referred to OUTPARKS as AIRGAP despite it being an entirely new, NSA-owned operation.

Ultimately, the document shows NSA employees are just like the rest of us: periodically bored and prone to using work computers for personal reasons.

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You may have noticed that the shift to solar is happening whether traditional utilities like it or not, and attempting to stop solar's forward momentum is akin to believing you can thwart the Mississippi with a fork and a few copies of Mad Magazine. Said futility clearly hasn't discouraged Florida utilities, who have gone to numerous, highly-creative lengths to try and hinder or curtail solar use. When last we checked in with legacy Florida utilities, they were busy using entirely fake consumer groups to push a law that professed to help the solar industry while actually undermining it.

Fortunately Florida consumers ultimately saw through this effort, though this was just one of a steady stream of similar bills aimed at stalling progress. Many Florida Power and Light customers obviously lost power in the wake of the devastation caused by Hurricane Irma, despite promises by the company that endless rate hikes would help harden the utilities' lines. But customers thinking they could use the solar panels on their roofs to help keep themselves afloat until traditional power was restored were in for a rude awakening.

Thanks to the fact that Florida utility lobbyists are being allowed to quite literally write the state's energy laws, many locals discovered they weren't able to use their solar panels in the wake of the storm lest they violate state law:

"FPL's lobbying wing has fought hard against letting Floridians power their own homes with solar panels. Thanks to power-company rules, it's impossible across Florida to simply buy a solar panel and power your individual home with it. You are instead legally mandated to connect your panels to your local electric grid. More egregious, FPL mandates that if the power goes out, your solar-power system must power down along with the rest of the grid, robbing potentially needy people of power during major outages.

In the broadband industry, we consistently let giant incumbents like Comcast and AT&T write shitty protectionist state laws -- then stand around with a dumb look on our collective faces wondering why U.S. broadband is shitty and expensive. The same problem plagues the utility sector across countless states. In Florida, the average household spends $1,900 a year on power, 40% higher than the national average. Yet incentives or other measures designed to spur solar power adoption are either absent or illegal, in large part thanks to utility lobbying.

Needless to say, Irma appears to be acting as a wake up call to Florida utility customers unfamiliar with how the American lobbying and political system actually works:

The problem, again, is that legacy companies across numerous sectors are very effective at using partisan patty cake to convince consumers to root against their own best self interests. That's why Florida, a state perfectly suited to take advantage of solar power, remains well behind the curve when it comes to solar adoption. And again, that's courtesy of folks like State Representative Ray Rodrigues, who takes notable campaign contributions from utilities like FPL, then consistently fields bills that profess to aid the solar revolution while covertly sabotaging what should be the obvious path forward.

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You'll recall that earlier this year, AT&T, Verizon and Comcast successfully lobbied the GOP and Trump administration to kill consumer broadband privacy protections that were supposed to take effect last March. While big ISPs engaged in breathless hysteria about the "draconian" nature of the rules, the restrictions were quite modest -- simply requiring ISPs be transparent about what user data gets collected and sold. They also made it more difficult for big ISPs to charge users significantly more money just to opt out of private data collection, an idea both AT&T and Comcast have already flirted with.

But in quickly axing the rules, big ISPs --- and the regulators and lawmakers paid to love them -- got a bit more than they bargained for. The ham-fisted rush to kill the protections quickly resulted in more than a dozen states passing a patchwork collection of new state laws aimed at protecting broadband consumers. Among the most notable was California Assemblyman Ed Chau's AB 375 (pdf). The proposal largely mirrors the FCC's proposal, though it took an even harder stance against ISPs looking to abuse the lack of competition to effectively make privacy a paid, premium option.

The law quickly received praise from the EFF, which argued that the law would be a good template for other states moving forward, lessening the chance for over-reaching, inconsistent, and poorly written state measures. But large ISPs, Facebook and Google lobbyists quickly got to work demonizing Chau's proposal too, falsely claiming it would somehow weaken user security and magically increase pop ups all over the internet. These and other claims were recently picked apart in an EFF blog post:

"The prediction of "recurring pop-ups" is also false because if anything, the bill would "likely result in fewer pop-ups, not to mention fewer intrusive ads during your everyday browser experience," Gillula wrote. "That’s because A.B. 375 will prevent Internet providers from using your data to sell ads they target to you without your consent—which means they’ll be less likely to insert ads into your Web browsing, like some Internet providers have done in the past.."

But the lobbying had its intended effect, and California lawmakers voted to kill the effort in a night vote over the weekend:

"It is extremely disappointing that the California legislature failed to restore broadband privacy rights for residents in this state in response to the Trump Administration and Congressional efforts to roll back consumer protection,” EFF Legislative Counsel Ernesto Falcon said. “Californians will continue to be denied the legal right to say no to their cable or telephone company using their personal data for enhancing already high profits. Perhaps the legislature needs to spend more time talking to the 80% of voters that support the goal of A.B. 375 and less time with Comcast, AT&T, and Google's lobbyists in Sacramento.”

While the proposal can be reintroduced next year, fighting upstream against the collective lobbying firepower of massive ISPs and Silicon Valley giants like Facebook and Google has proven no easy task. And there have been some comments from FCC Commissioners that they may try and use FCC authority to hamstring these efforts as well. You see, it's a "states rights" issue if you try to prevent states from letting ISP lobbyists write protectionist law hamstringing competition, but those concerns magically disappear when states move to actually protect consumers from duopoly harm.

It's worth re-iterating that ISPs spent years arguing consumers didn't need added privacy protections because the sector would self-regulate. Of course, Verizon subsequently highlighted the folly of such claims when it was busted modifying user packets to track users around the internet without telling them. AT&T similarly did the same when it began charging users $400 to $550 more per year to opt out of behavioral advertising. And other, smaller cable companies like CableONE joined the fun when they proclaimed they'd be using consumer financial data to provide worse customer service to bad credit customers.

The origins of this aggressively bad behavior? The lack of competition in the broadband space. And with the Trump administration looking to effectively gut all oversight of one of the least-competitive and least-liked sectors in American industry, anybody thinking these privacy issues will magically resolve themselves (instead of say, just getting progressively worse) hasn't been paying attention.

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No job too small. That's asset forfeiture for you. But small jobs are the safest jobs when it comes to the government keeping someone else's property. Keeping the seizures small makes it less likely they'll be challenged by those whose property was taken.

The year-end totals may look impressive, but behind those totals are lots and lots of tiny cash grabs. In the cases where agencies' forfeitures have been itemized and examined (which is a rarity -- there's a ton of opacity in forfeiture reporting), the largest number of forfeitures are for the smallest amounts, usually well under $1,000.

Officers take what they can because they can. A video going viral on Twitter shows a California police officer rummaging through the wallet of an unlicensed street vendor and taking the vendor's cash and debit card. A citation and a shutdown of the hot dog stand should have been enough. But it wasn't. Officer Sean Aranas decided -- with the only citation handed out during the football game -- to take the man's earnings.

The backlash has been swift. A crowdfunding page for the vendor -- identified only as "Juan" -- has already raised more than $30,000. A petition demanding the firing of Officer Aranas has gathered 11,000 signatures. And it's gotten the attention of his employer:

UC Berkeley spokesman Dan Mogulof offered a brief statement Sunday evening: “We are aware of the incident. The officer was tasked with enforcing violations related to vending without a permit on campus. UCPD is looking into the matter.”

The UCPD says the money taken from the vendor has been booked into evidence. If so, it's just another way the PD can keep Juan's money, even after he's paid his fine and obtained a permit. This can happen even if the citation is dropped. Money booked into evidence just stays there unless someone's willing to fight uphill against a system designed to keep citizens from their seized property. It's not quite as difficult or expensive as fighting a forfeiture in court, but it's still an arduous process involving a lot of people (cops, prosecutors) with zero interest in returning people's property.

There will be a number of people pointing out Juan should have just secured a permit. True, that would have prevented this from happening, but it's a bit like saying cops are justified in taking cash from anyone at any time if a law has been violated. Juan's violation is a misdemeanor. It's like saying a cop should be able to take cash/debit cards from people who've been cited for traffic violations. It's unnecessarily punitive and far more of a punishment than a misdemeanor should warrant.

The outrage won't budge the needle at the University of California Police Department. Everything done here likely has a corresponding policy allowing it. Calling it "evidence" rather than a forfeiture may make it feel a bit more legit, but it's still just policy-enabled theft that allows the government to stack punishment on top of punishment and possibly enrich itself in the process.

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We've written a bunch over the past few years about the so-called Inter Partes Review (IPR) process at the US Patent Office. In short, this is a process that was implemented in the patent reform bill back in 2010 allowing people and companies to ask a special "review board" -- the Patent Trial and Appeal Board (PTAB) -- at the Patent Office to review a patent to determine if it was valid. This was necessary because so many absolutely terrible patents were being granted, and then being used to shake down tons of companies and hold entire industries hostage. So, rather than fix the patent review process, Congress created an interesting work-around: at least make it easier for the Patent Office to go back and check to see if it got it right the first time.

Last year, part of this process was challenged at the Supreme Court and upheld as valid. However, the whole IPR is still very much under attack. There's another big Supreme Court case on the docket right now which argues that IPR is unconstitutional (the short argument is that you can already challenge patents in court, and by taking them to an administrative board, it creates an unconstitutional taking of property without a jury). There are also some attempts at killing the IPR in Congress.

While those play out, however, never underestimate the ability of sketchy lawyers to find loopholes and dive through them in ways that are clearly sticking a giant middle finger up at the law. Such is the case with the pharmaceutical company Allergan, who just "sold" some of its patents for the dry-eye drug Restasis to the St. Regis Mohawk Tribe based in upstate New York. There are currently challenges against the Restasis patents both in court and via the IPR at the PTAB -- and the PTAB has indicated that Allergan is likely to lose its patents. But Allergan has basically short circuited the process just days before the PTAB was set to hear arguments over the patent, and will now tell the PTAB it can't review these patents because of (no joke) the sovereign immunity of the Mohawk tribe.

The reasoning goes back, first, to a ruling at the beginning of this year where the PTAB dismissed some reviews of patents held by the University of Florida after the University -- a part of the state of Florida -- made a claim of sovereign immunity, saying it's exempted under the 11th Amendment of the Constitution. While there are some arguments against this, the PTAB agreed. The lawyers representing the University of Florida in this case apparently saw this as an opportunity. They're the same lawyers representing Allergan in this "sale."

Of course, it's a sale in name only. The only reason for the sale is to be able to avoid the IPR process. In all other ways, Allergan appears to retain control. From the NY Times article on the deal:

Under the deal, which involves the dry-eye drug Restasis, Allergan will pay the tribe $13.75 million. In exchange, the tribe will claim sovereign immunity as grounds to dismiss a patent challenge through a unit of the United States Patent and Trademark Office. The tribe will lease the patents back to Allergan, and will receive $15 million in annual royalties as long as the patents remain valid.

So, yeah. This is an insanely blatant attempt at avoiding a process put in place under the law, and where this pharmaceutical company is basically paying off a Native American tribe for the right to avoid a process that might invalidate some patents. As a side note, the tribe's quote on this to the NY Times is pretty ridiculous:

“The tribe has many unmet needs,” Dale White, the tribe’s general counsel, said in an interview. “We want to be self-reliant.”

Being "self-reliant" means doing something of actual value yourself. It doesn't mean abusing an already questionable loophole in patent law to help giant pharma companies keep their dubious patents and limit the ability of more affordable medicine to get on the market. And, of course, lots of people are predicting that there will be more deals like this in the near future.

Either way this is a big deal. Law professor Rachel Sachs has already pointed out that this could go way beyond just the IPR process and could impact claims in federal court as well. And you can be sure that if that's true it will be exploited. There is no "legitimate" reason for this patent sale and license-back other than to avoid having the patent reviewed. It's a sickeningly blatant attempt to avoid the law and to keep a patent from possible invalidation. Even those who support the patent system should be concerned when obvious games like this are played to abuse the system. It doesn't make the system look any stronger. It just shows how desperate some companies are to avoid having their patents looked at closely.

Of course, there is some more history on this issue going back quite a while. Almost exactly 10 years ago, we wrote about the ridiculousness of letting state universities claim sovereign immunity to avoid being sued for patent infringement (even while asserting patents against other entities). And, back in 2011, we saw a similar issue pop up with a Native American nation (in that case, the Quapaw Tribe in Oklahoma) able to have a patent infringement case dropped entirely by using sovereign immunity. At the time, we wondered if this might enable a creation of patent-free autonomous zones -- but that didn't really happen. Instead, we get something much, much worse: patent holding giants totally abusing the system to make sure that bad patents can be used to inflate prices and limit competition, even in the field of important life-saving drugs.

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The government loves taking people's money. It likes it so much it gets pretty weird about it. Even considering all we've covered here on the subject of forfeiture, the legal theory deployed by the government in this case is astounding. From the Ninth Circuit Court of Appeals decision [PDF]:

The panel reversed the district court's judgment of civil forfeiture of $11,500 under 21 U.S.C. § 881(a)(6) from claimant Charles Guerrero, and remanded for a new trial.

When Guerrero, through a friend, tried to post the $11,500 as bail for his wife, the government seized the cash. At trial, the government alleged two theories: that the money was proceeds from the claimant's drug deals, and that the claimant used or intended to use the money to facilitate drug transactions.

Charles Guerrero and his wife were no angels. But neither were they high-level drug dealers. Both apparently had crippling heroin addictions and engaged in a small amount of dealing to ensure the incoming flow of heroin.

But that's not enough to excuse the government nabbing bail money under the theory it probably came from drug dealing or -- more spuriously -- that it might have been used to purchase drugs if it hadn't been spent on bail.

Guerrero had his friend take the cash to pay the bail because Guerrero had no valid ID. Guerrero claims he had about $14,000 in cash in his home obtained from insurance settlements and the sale of a vehicle. The government made its own claims, based on the discovery of drugs in the vehicle Guerrero was sitting in, along with a dog that said, "Yes. That is drug money."

While Charles waited outside, Wood went to the MCDC’s bail window and told an officer he was there to post the cash to free Rosalie. Jail officials ran Wood’s records and discovered that he had a criminal history. Coupled with the fact that Wood was attempting to bail out a repeat drug offender with a wad of cash, this prompted jail officials to call Agent Guy Gino of the federal Department of Homeland Security. Agent Gino went to the MCDC, asked Wood a few questions regarding the origin of the $11,500, and requested permission to have a drug sniffing dog smell the currency. Wood agreed.

The dog (Nikko) alerted to a drug odor on the money. Agent Gino asked Wood if Nikko could sniff his car. Again, Wood agreed. On the way to the car, the group encountered Charles, who was waiting for Woods to come out of the jail. Charles objected to law enforcement searching the car but Wood nonetheless permitted Nikko to do so. Nikko alerted to a black bag in the vehicle—which, the officers later discovered, belonged to Charles—containing 3.6 grams of heroin. Officers also found an additional $2,971 in cash on Charles. Agent Gino arrested Charles and seized the drugs, the $2,971 found on Charles, and the $11,500 Wood had tried to post as bail.

The government seized it all. Guerrero challenged the seizure. The jury at the lower level let the government keep it. Guerrero appealed and the Ninth Circuit Court reversed on the issue of the $11,500. On remand, the government restated its assertions about the $11,500, claiming the Guerrero's had no proof the money had been obtained legally. Failing that, the government claimed the money -- even if obtained legitimately -- would only be used to purchase more controlled substances. Heads, I win. Tails, you lose. But not this time.

The Appeals Court will send this case back to the lower court a second time. As it noted during its first pass, there were genuine questions about the origin/destination of the $11,500, but it needed far more than the government's speculative assertions to make this call. Unfortunately, the lower court dismissed Guerrero's argument that the jury's split verdict allowed the government to punish him for thinking, rather than for what he actually did. The district court basically gave the government an unearned win, stating the money's origin was clean but its intended use wasn't.

This makes a mockery of due process, even more so than civil forfeiture already does. If someone socks away some cash intending to purchase drugs at some point, but then attempts to pay bills with it instead, the government could theoretically seize the cash before the bills are paid based on the person's arrest history, apparent drug dependency, etc. Given free reign, no one's money is safe, least of all those with criminal pasts.

Unsurprisingly, the court finds this theory of future "guilt" a violation the Eighth Amendment. Americans are supposed to be free of cruel and unusual punishments. Taking money from people because they might use it to commit a legal act in the future is cruel and unusual, especially when no actions have been taken indicating the cash is headed for an illegal destination. As the concurring opinion points out, the $11,500 was in process of being handed over to pay bail, making any illegal future use of that $11,500 impossible.

The court points out the law simply cannot be read the way government would like it to be. To do so would make any amount of cash seizable from anyone, simply because cash and the possibility for bad things to be done with it are both things that will always exist.

On its face... § 881(a)(6) contains no limiting principle and appears to apply whenever anyone, at any point in time, so much as thinks about using money to purchase drugs. One need not look any further than this case to realize how far the literal language of § 881(a)(6) could reach. The only evidence from which the jury could have concluded that the Guerreros intended to use the $11,500 for drugs shows that the couple were heavy heroin addicts who bought and sold drugs regularly. The government offered no specifics. Although it should surprise no one that an addict might think of spending whatever money he has to sustain his addiction, the Guerreros, so far as the evidence indicates, did not act on any such thoughts with respect to the $11,500. 4 In fact, at the time Agent Gino seized their money, the Guerreros had entrusted it to Virgil Wood, who was standing at a bail window in the MCDC asking to bail out Rosalie. Was there some possibility that, prior to Wood walking in the MCDC, the Guerreros intended to use the money for drug transactions? Of course. And is there a likelihood that if the Guerreros got the bail money back they would have used some part of it in the future for drugs? Again, it seems reasonable to answer “of course.” Does § 881(a)(6) reach either back in time to unrealized intentions or forward in time to speculative, inchoate plans? We think not.

Because the government's assertions came before the jury instructions, the forfeiture is being overturned on a procedural issue, rather than the governing statute being innately unconstitutional. The government will get a third chance to take $11,500 from the Guerreros, unfortunately. But it won't be able to argue quite as vehemently that a drug user's cash will only be spent on drugs.

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When Google Fiber first arrived back in 2010, it was heralded as a gamechanger for the broadband industry. Google Fiber would, we believed, revolutionize the industry by taking Silicon Valley money and using it to disrupt the viciously uncompetitive and anti-competitive telecom sector. Initially things worked out well; with the mere mention of a looming Google Fiber target market resulting in a much-needed conversation about why the United States consistently languishes in mediocrity when it comes to our broadband networks (pro tip: it's because AT&T, Verizon and Comcast all but own state and federal lawmakers).

Seven years later, however, and the Google Fiber bloom appears to be off the rose. There's little doubt that Google Fiber brought some much-needed competition to countless markets, driving down costs and spurring deployment of gigabit networks in key areas (though these benefits are often over-hyped, and broadband competition in countless markets is actually getting worse). There's also no doubt that Google Fiber has been of great benefit to disadvantaged communities, thanks to free deployment of gigabit broadband to anchor institutions and low-income housing developments.

That said, the company has gone through two CEOs in a matter of months, laid off an unspecified number of employees during a restructuring last fall, and has begun to show signs that the company's dedication to the project is wavering at best, and notably derailed at worst. Reports began to circulate last fall that high-level Alphabet execs were bored with the slow pace and high cost of fiber deployment, and were considering pivoting the entire Google Fiber business model to wireless. But the company's messaging regarding this transition has been anything but clear, only driving unease among those waiting for the promised revolution.

Kansas City, Google Fiber's first launch market, was hyped as nothing short of a looming connectivity Utopia at launch. But the better part of a decade later and many locals say Google Fiber has cancelled their installations after years of waiting. And one Kansas City local made headlines recently when she revealed that the company cancelled her broadband service over a 12 cent dispute, a rather Comcast-esque failure by the company. And a local Motherboard report highlighted further how the honeymoon phase of Google Fiber is most decidedly at an end:

"Kansas City expected to become Google's glittering example of a futuristic gig-city: Half a decade later, there are examples of how Fiber benefitted KC, and stories about how it fell short. Thousands of customers will likely never get the chance to access the infrastructure they rallied behind, and many communities are still without any broadband access at all. Many are now left wondering: is that it?

"We were saying that in all likelihood this is too good to be true," said Isaac Wilder, co-founder of the Free Network Foundation and a Kansas City native..."Lo and behold, just a few years later and it's beginning to become clear that [Google Fiber] was just a lot of lip service," Wilder told me.

To be clear a lot of Google Fiber's problems are not the company's fault. AT&T, Comcast, and Charter have filed numerous nuisance lawsuits designed to slow the company's use of city and telco-owned utility poles, and protectionist state laws pushed by these same companies often hinder attempts at public/private partnerships with cities. Meanwhile, the company's murky messaging is in part thanks to the fact that Google Fiber has so many various wireless experiments in the oven, it's not really sure which of these technologies are going to pan out -- making publicly communicating the project's future direction a notable challenge.

That said, Google Fiber's momentum stall comes as Alphabet and Google as a whole are notably veering away from some of the more revolutionary traits that characterized the company a decade ago. Much like the way Google's net neutrality support has magically all-but-dissappeared during this period, numerous reports have indicated that there's a contingent of executives at Alphabet like Larry Page that frankly just got bored by the whole costly telecom disruption thing.

In short, it's possible that Google Fiber successfully pivots to next-generation wireless and fulfills at least some of the lofty promises made early on in the Google Fiber life cycle. But based on the conversations I've had with industry insiders, there would be little surprise if in a few years Google Fiber sold off the entire project to a second-tier telco like CenturyLink, then shifted its focus -- like countless hugely-successful giants before it -- more toward turf protection of its legacy markets.

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Trump's pick for attorney general unsurprisingly holds the same ideals as his boss. He also holds the same misconceptions and misplaced nostalgia for tough-on-crime policing that went out of vogue as soon as it became apparent it wasn't doing anything but filling up prisons.

Attorney General Jeff Sessions has been going hot and heavy on a 1980s-esque law enforcement policy revival. He booted the DOJ off the civil rights beat, telling states and cities to solve their own police misconduct problems -- something they were clearly unwilling to do on their own, hence the DOJ's intercession. He told cops they're getting back their access to war gear, rolling back the Obama administration's minimal 1033 program reforms.

He's been touting tougher policing and tougher sentencing, using a false narrative of a country under siege by drug dealers and criminal border-jumpers. In a time of historic lows -- both in violent criminal activity and violence towards police officers -- AG Sessions is acting like a street corner preacher, promising an impending apocalypse to anyone who will listen.

Sessions is also peeling away federal reforms to asset forfeiture. He's opened the federal safety valve for civil forfeitures, allowing local PDs to dodge state laws limiting the amount of property they can take from uncharged citizens.

Given the makeup of Congress, one would assume Sessions' ongoing effort to raise US law enforcement to "a law unto itself" level would ride on rails, at least up until midterm elections. Instead, Sessions is facing a literal House divided -- not against itself exactly -- but against him.

In a stunning move, the House of Representatives on Tuesday approved an amendment to the Make America Secure and Prosperous Appropriations Act that will roll back Attorney General Jeff Sessions’s expansion of asset forfeiture.

Amendment number 126 was sponsored by a bipartisan group of nine members, led by Michigan Republican Rep. Justin Amash. He was joined by Democratic Reps. Ro Khanna of California; Washington state’s Pramila Jayapal, a rising progressive star; and Hawaii’s Tulsi Gabbard.

If this passes the Senate untouched, the amendment will roll things back to 2015 -- once again prohibiting federal adoption of local forfeitures. It would make state and local agencies play by the rules set for them by their legislatures, rather than allow them to bypass protections put in place to discourage abuse of programs loaded with the most perverted of incentives.

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Senator Ron Wyden, as a member of the Senate Intelligence Committee, spent half a decade trying to get President Obama's Director of National Intelligence, James Clapper, to answer some fairly straightforward questions about NSA surveillance on Americans. As you may recall, this got so bad that Clapper flat out lied to Wyden in an open Senate hearing, which inspired Ed Snowden to leak documents to Glenn Greenwald. With the Trump administration, Dan Coats took over Clapper's job... and Clapper's role of obfuscating in response to important questions from Wyden concerning NSA surveillance. Despite promises to the contrary, Coats (like Clapper before him) has refused to share just how many Americans have their information sucked up under Section 702. Since that program is up for renewal later this year, that kind of information seems quite relevant to the debate.

However, as we noted back in June, Wyden has also been asking a different, and much more specific question of Coats. At a hearing in June, Wyden asked:

Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

This seems like a kind of important question. 702 on its face, says that it can't be used to target domestic communications. Literally, the law says this: "An acquisition authorized under [this statute]... may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States."

But, as we've learned, when Senator Wyden asks an "is this happening?" question -- the answer is always "yes." And, once again, it appears that Coats is playing games. Coats responded to that question at the time saying: "Not to my knowledge. It would be against the law." That seems like a pretty clear and definitive answer: "no." Which is as it should be.

But then... something weird happened. The very next day, Coats' office put out a "clarifying" statement (ruh roh...), saying that Coats had "interpreted" Wyden's question to be referring specifically to Section 702(b)(4) (the part that says you can't spy on domestic communications). But, that's not what Wyden had asked. He had asked about the entirety of 702. So this "clarification" certainly seemed to suggest that Coats' original answer was incorrect in regards to the actual question, and instead, his staff was rewriting Wyden's question to make sure he had answered it accurately.

In other words, it appears that Coats put himself in a Clapper-position, of mistakenly claiming that the NSA isn't spying on Americans under a specific authority when it absolutely is -- and the reinterpretation of the question was his retroactive attempt to make his answer "truthy."

Not surprisingly, this didn't please Wyden, who quickly asked Coats to officially answer the original question with a yes or no, and not the reinterpreted question his office claimed he had answered.

Coats has now sent "an answer" but not a good one. He's now claiming that it's classified, and also takes some weird shots at Wyden for asking such a question in the first place:

Dear Senator Wyden:

In response to your letter of July 31, 2017, I would note that I responded to your question publicly both at the Senate Select Committee on Intelligence's open hearing on June 7, as well as in an unclassified letter to you on June 8. However, in further conversations with you and your staff, including at a closed budget hearing on June 15, it became clear that you already had the specific information that you were seeking, but this information was classified. In an effort to be responsive to you, I committed to assessing whether the sources and methods information you were asking for could be publicly released.

After consulting with the relevant intelligence agencies, I concluded that releasing the information you are asking to be made public would cause serious damage to national security. To that end, I provided you a comprehensive classified response to your question on July 24. This response also discussed, at length, why the information is properly classified and cannot be publicly released.

I want to stress that the Intelligence Community takes seriously its obligation to faithfully execute collection under Section 702 consistent with the Constitution and statutory requirements. We also take seriously our obligation to ensure Congress has all the information - both publicly available and classified it needs to conduct oversight of this program. While I recognize your goal of an unclassified response, given the need to include classified information to fully address your question, the classified response provided on July 24 stands as our response on this matter.

Sincerely,

Daniel R. Coats

Now, for those of you thinking "okay, it makes sense that we can't reveal classified information that might harm national security," let me remind you of the question that Wyden asked:

Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

Okay. So please explain how a simple yes or no answer to that can be classified -- especially given the plain language of the law itself? And, of course, this answer -- or, more specifically, the refusal to say "no" -- more or less confirms that the answer is a resounding "YES!" the government believes that it can use Section 702 to collect purely domestic communications, in clear contradiction to the plain language of the law.

Furthermore, if this question is so scary and so dangerous, why didn't anyone -- including Coats himself -- have any problem answering it when it was initially posed back in June? It didn't seem like such a risk to national security then. It's only a risk to national security after Coats' staff realized he misspoke? How, exactly, does that work?

As you might imagine, Senator Wyden is not pleased with this turn of events:

It is hard to view Director Coats' behavior as anything other than an effort to keep Americans in the dark about government surveillance. I asked him a simple, yes-or-no question: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

What happened was almost Orwellian. I asked a question in an open hearing. No one objected to the question at the time. Director Coats answered the question. His answer was not classified. Then, after the fact, his press office told reporters, in effect, Director Coats was answering a different question.

I have asked Director Coats repeatedly to answer the question I actually asked. But now he claims answering the question would be classified, and do serious damage to national security.

The refusal of the DNI to answer this simple yes-no question should set off alarms. How can Congress reauthorize this surveillance when the administration is playing games with basic questions about this program?

This is on top of the administration's recent refusal even to estimate how many Americans’ communications are swept up under this program.

The Trump administration appears to have calculated that hiding from Americans basic information relevant to their privacy is the easiest way to renew this expansive surveillance authority. The executive branch is rejecting a fundamental principle of oversight by refusing to answer a direct question, and saying that Americans don't deserve to know when and how the government watches them.

So, uh, who in the NSA is going to play the role of Snowden this time? Once again, it appears we have a Director of National Intelligence claiming no surveillance on Americans under a specific authority, when everything that Wyden is saying indicates that he damn well knows that's not true. Sooner or later someone's going to leak the fact that the intelligence community is lying to the American public in order to spy on the American public.

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Harvard is one of the most prestigious universities in the world (and its graduates often feel the need to remind you of that). But apparently Harvard is more worried about protecting its reputation from the elite than actually fulfilling its stated mission of "educating the citizens and citizen-leaders for our society." In an act of utter cowardice, it withdrew a Visiting Fellowship that it gave to Chelsea Manning just a couple days after announcing it -- all because the CIA and its friends got upset. Harvard caving in to the CIA is not a good look.

Two days ago, Harvard's Institute of Politics at the Kennedy School announced that Chelsea Manning would be a "Visiting Fellow" for the 2017-2018 school year. She was joining others -- including former Trump press secretary Sean Spicer, former Trump campaign manager Corey Lewandowski and Clinton campaign manager Robby Mook. The Visiting Fellows program is basically a high falutin' way of saying that these people would come give some talks at the school. But the point of the program -- in theory -- is to expose people to a variety of ideas from a variety of different perspectives. Personally, I think honoring Spicer, Lewandowski and Mook is fairly ridiculous, but I respect and support Harvard wishing to bring them -- or anyone -- in to talk about their experience

But, of course, anything having to do with Manning is controversial to some -- mostly those who have bought into a misleading line of tripe from cable news. And thus people freaked out that Harvard was including her. Among those most triggered by Harvard planning to have Manning come talk to students was the CIA. On Thursday, former CIA depute director (and former acting director) Michael Morell resigned from his own fellowship (in a different program) at the Kennedy School in protest. His letter is full of debunked bullshit.

Unfortunately, I cannot be part of an organization -- The Kennedy School -- that honors a convicted felon and leaker of classified information, Ms. Chelsea Manning, by inviting her to be a Visiting Fellow at the Kennedy School's Institute of Politics. Ms. Manning was found guilty of 17 serious crimes, including six counts of espionage, for leaking hundreds of thousands of classified documents to Wikileaks, an entity that CIA Director Mike Pompeo says operates like an adversarial foreign intelligence service.

Senior leaders in our military have stated publicly that the leaks by Ms. Manning put the lives of US soldiers at risk. Upon her conviction, then Rep. Mike Rogers and Rep. Dutch Ruppersberger, the top Republican and Democrat on the House Intelligence Committee at the time, praised the verdict, saying "Justice has been served today." They added "Pfc. Manning harmed our national security, violated the public's trust, and now stands convicted of multiple serious crimes."

This statement is hogwash. Yes, she was convicted of various crimes including espionage, but only because the Espionage Act is a complete unconstitutional joke that makes no distinction between leaking to the press and spying for a foreign government -- and under which you're not allowed to share your motives for leaking information. Saying she was "convicted of espionage" without context is misleading bullshit and Morell, of all people, knows that and is exploiting it.

The claim that Pompeo now says that Wikileaks is acting like an "adversarial foreign intelligence service" is bullshit and misleading in two ways. First, Pompeo is not exactly an unbiased observer. He's long been a massive surveillance state cheerleader -- who was one of the biggest supporters of having the NSA illegally spy on nearly every American, and who has a long history of grandstanding against those with the courage to blow the whistle on the unconstitutional activities Pompeo himself has championed (more on him in a moment).

Separately, even if you accept Pompeo's recent statements about how Wikileaks acts today, anyone with any knowledge of the history (which Morell certainly has) knows that Wikileaks was a very different kind of operation back when Manning first leaked the documents to the site. Manning's leaks to Wikileaks were really its first big "government" leak. Earlier leaks had been more targeted at corporate malfeasance, and the site's reputation at the time was as a general home for hosting whistleblowing documents of all kind.

As for Ruppersberger and Rogers' statements, they are in the Pompeo camp as long time defenders of the surveillance state. Ruppersberger's district was where many NSA employees lived, and Rogers' reputation was largely built around acting like a tough guy on "law and order" and surveillance. So, big whoop.

The really obnoxious and bullshit part of Morell's letter, though, is the claim that "our military have stated publicly that the leaks by Ms. Manning put the lives of US soldiers at risk." Note Morell's careful choice of words. He didn't say that she put people's lives at risk. Or that anyone was harmed by Manning's whistleblowing. He says that some in the military publicly stated that lives were put at risk. His careful choice of words is because he knows full well that at Manning's sentencing hearing, those same military officials admitted there was no evidence of any lives harmed as a result of the leaks. It was also admitted that the earlier claims of harm were misleading, in that some of the names that the military had claimed had died... had actually died before the Wikileaks disclosures.

Back to Pompeo. Soon after Morell's letter became public, CIA director Pompeo refused to give a planned speech at Harvard, giving a similarly bullshit statement:

"My conscience and duty to the men and women of the [CIA] will not permit me to betray their trust by appearing to support Harvard's decision with my appearance at tonight's event," Pompeo wrote, referring to the Thursday engagement. "Ms. Manning betrayed her country and was found guilty of 17 serious crimes for leaking classified information to Wikileaks."

"Leaders from both political parties denounced Ms. Manning's actions as traitorous and many intelligence and military officials believe those leaks put the lives of the patriotic men and women at the CIA in danger," Pompeo continued. "And those military and intelligence officials are right."

Again, this is bullshit for all the same reasons that Morell's letter was bullshit.

But Harvard, as an academic institution that supports differences of opinion and free speech, stood up to these CIA spooks, right? Nope, they immediately caved and withdrew the fellowship, but tried to appease people by saying she could still come to speak.

We are withdrawing the invitation to her to serve as a Visiting Fellow — and the perceived honor that it implies to some people — while maintaining the invitation for her to spend a day at the Kennedy School and speak in the Forum.

I apologize to her and to the many concerned people from whom I have heard today for not recognizing upfront the full implications of our original invitation.

What a bullshit, cowardly statement in response to concern trolling from surveillance state supporters with actual blood on their hands. Mike Morell, among his many claims to fame, defended torture, and droning innocent civilians.

Here's something else: Morell has accepted responsibility and apologized for playing a large role in providing incorrect intelligence that led the US to attack Iraq, leading to the actual deaths of thousands of US soldiers. For Havard to rescind its offer to Manning, over false claims of putting US soldiers at risk from a guy who has admitted his own decisions lead to the deaths of thousands of US soldiers, is a total travesty.

What's more, this comes just a day after it came out that Harvard administrators deliberately overruled a decision to admit a woman who was about to be released from prison for killing her child. The story is heartbreaking in many ways -- but it reminds us that prison is supposed to be a place of redemption, but the cowards at Harvard overruled what some said was "one of the strongest candidates in the country last year, period," over fears of how it would look. One of the quotes from a Harvard professor in the article is quite incredible:

But frankly, we knew that anyone could just punch her crime into Google, and Fox News would probably say that P.C. liberal Harvard gave 200 grand of funding to a child murderer, who also happened to be a minority. I mean, c’mon.

It takes courage to stand up for what's right. It takes courage to stand up for redemption after one has served their time for crime. Harvard has no courage. Harvard is made up of cowards.

As an aside: last night was the EFF's Pioneer Awards, in which I had the honor and privilege of standing with Chelsea Manning, who gave a truly inspirational speech about redemption and the ability to face adversity with dignity, just minutes before Harvard showed that it had no dignity at all.

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With the iPhone X revealed, we really have to start talking about its processor and SoC - the A11 Bionic. It's a six-core chip with two high-power cores, four low-power cores, and this year, for the first time, includes an Apple-designed custom GPU. It also has what Apple calls a Neural Engine, designed to speed up tasks such as face recognition. Apple already had a sizeable performance lead over competing chips from Qualcomm (what Android phones use) in single-core performance, and the A11 blasts past those in multicore performance, as well. Moreover, the A11 also performs better than quite a number of recent desktop Intel chips from the Core i5 and i7 range, which is a big deal. For quite a few people it's really hard to grasp just how powerful these chips are - and to a certain extent, it feels like much of that power is wasted in an iPhone, which is mostly doing relatively mundane tasks anyway. Now that Apple is also buildings its own GPUs, it's not a stretch to imagine a number of mobile GPU makers feeling a bit... Uneasy. At some point, these Apple Ax chips will find their way to something more sizable than phones and tablets.

The DOJ and Attorney General Jeff Sessions have offered up their official plea for a clean reauthorization of Section 702 surveillance powers. These are due to expire at the end of the year, but so far there's been no concerted effort to subject it to greater restrictions -- at least nothing as cohesive as the opposition to Section 215 renewal that began shortly after the Snowden leaks started.

Unlike Section 215 phone records collections, the Section 702 collections at least appear to be somewhat useful in harvesting communications relevant to national security efforts. But these collections should be subjected to even greater scrutiny because of what they contain: communications. While the NSA may have ended its supremely vague "about" email collection program (which harvested emails talking about targets/keywords, along with those to and from actual targets), it appears to only have done so because it couldn't make it stop harvesting US persons' communications.

But none of that is mentioned in the Attorney General's letter to Congressional leaders. Instead, the request asks not only for a "clean" reauthorization, but a "forever" one as well.

We are writing to urge that the Congress promptly reauthorize, in clean and permanent form, Title VII of the Foreign Intelligence Surveillance Act (FISA), enacted by the FISA Amendments Act of 2008 (FAA), which is set to sunset at the end of this year.

Title VII of FISA allows the Intelligence Community, under a robust regime of oversight by all three branches of Government, to collect vital information about international terrorists, cyber actors, individuals and entities engaged in the proliferation of weapons of mass destruction and other important foreign intelligence targets located outside the United States. Reauthorizing this critical authority is the top legislative priority of the Department of Justice and the Intelligence Community. As publicly reported by the Privacy and Civil Liberties Oversight Board, information collected under one particular section of FAA, Section 702, produces significant foreign intelligence that is vital to protect the nation against international terrorism and other threats.

Whether or not the collections produce useful intel is beside the point. Congress very definitely should not remove the periodic renewal period for surveillance powers. Doing so would subject the powers to even less oversight. A periodic review period allows Congress to take recent events into account when determining how much surveillance power the government should have going forward. It also permits examination by fresh sets of eyes, some of which won't have been fully assimilated into the "national security above all else" way of thinking.

The reasons Congress shouldn't grant a clean, in-perpetuity re-auth are the very reasons Sessions wants Congress to never examine Section 702 collections again. The DOJ refers to a "comprehensive regime of oversight" in its letter, but that phrase greatly overstates the quality of surveillance oversight that's been provided over the past 15 years.

Given the administration's view -- along with the views of most of the party in power -- Sessions may get what he wants. If nothing else, he's relatively assured of walking away with a clean reauthorization -- barring the leak of any damning NATSEC documents between now and the end of the year. It may turn out the only reform effort put in place will be the NSA's voluntary ditching of the "about" collection.

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In the lead up to Hurricane Irma hitting Florida over the weekend, Tesla did something kind of interesting: it gave a "free" upgrade to a bunch of Tesla drivers in Florida, extending the range of those vehicles, to make it easier for them to evacuate the state. Now, as an initial response, this may seem praiseworthy. The company did something (at no cost to car-owners) to help them evacuate from a serious danger zone. In a complete vacuum, that sounds like a good idea. But there are a variety of problems with it when put back into context.

The first thing you need to understand is that while Tesla sells different version of its Model S, with different ranges, the range is actually entirely software-dependent. That is, it uses the same batteries in different cars -- it just limits how much they'll charge via software. Thus, spend more on a "nicer" model and more of the battery is used. So all that happened here was that Tesla "upgraded" these cars with an over the air update. In some ways, this feels kind of neat -- it means that a Tesla owner could "purchase" an upgrade to extend the range of the car. But it should also be somewhat terrifying.

In some areas, this has lead to discussions about the possibility of hacking the software on the cheaper version to unlock the greater battery power -- and I, for one, can't wait to see the CFAA lawsuit that eventually comes out of that should it ever happen (at least some people are hacking into the Tesla's battery management system, but just to determine how much capacity is really available).

But this brings us back to the same old discussion of whether or not you really own what you've bought. When a company can automagically update the physical product you bought from them, it at least raises some serious questions. Yes, in this case, it's being used for a good purpose: to hopefully make it easier for Tesla owners to get the hell out of Florida. But it works the other way too, as law professor Elizabeth Jo points out:

And, of course, there's the possibility that one of these over-the-air updates goes wrong in disastrous ways:

So, yes, without any context, merely upgrading the cars' range sure sounds like a good thing. But when you begin to think about it in the context of who actually owns the car you bought, it gets a lot scarier.

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When faced with First Amendment activity they don't care for, some legislators attempt to gerrymander this right until it only contains the speech they like. This can take the form of cyberbullying bills, hate speech legislation, and, lately, anti-protesting laws.

The problem with these efforts is they routinely run afoul of the Constitution. Some do better than others trying to stay within the confines of what can actually be controlled by the government, but in most cases, the proposed laws are badly-written rush jobs attempting to paper over the current issue du jour.

Another anti-protesting law is in the works, prompted by oil pipeline demonstrations both in North Dakota and, closer to home, in the district of the state rep introducing the bill, Scott Martin of Lancaster County, Pennsylvania.

Under the terms of the bill, “a person is responsible for public safety response costs incurred by a State agency or political subdivision as a result of the State agency’s or political subdivision’s response to a demonstration if, in connection with the demonstration, the person is convicted of a felony or misdemeanor offense.”

In other words, they could be on the hook for costs, such as police overtime, medical or emergency response, or other basic public services associated with protests. Whatever felony or misdemeanor offense the protester was convicted of would come with its own independent penalty.

Because the state's laws concerning damage to property and the usual assortment of rioting-related charges apparently isn't enough to deter people from complaining about stuff in Martin's district, a new law must be put in place to hold demonstrators responsible for the actions of others, as well as anything the state might want to add to the final post-protest invoice.

The bill cites -- in support of its First Amendment-chilling efforts -- the millions of dollars spent by government agencies in response to the Dakota Pipeline protests. It's a slick move, one that might convince more bottom-line-oriented legislators to hop aboard despite the obvious Constitutional implications.

In practice, this law could saddle someone picked up during a protest for blocking a sidewalk (a misdemeanor) with a sizable chunk of the costs incurred by the government during the protest. This will discourage most people from showing support for any controversial cause or, indeed, for any cause at all. Any protest of any size will result in additional expenditures by government agencies, all of which can now be passed on directly to the protest's participants.

And it won't be spread evenly among participants. The costs will be borne only by those arrested, which creates an incentive to arrest as many protesters as possible to offset projected expenses. This, in turn, will push prosecutors towards ensuring even the most bullshittiest of charges sticks, as they'll have to answer to lawmakers waving ledger books filled with red ink if they don't.

Sure, this bill won't survive a Constitutional challenge, but someone's going to have to spend their own money to correct the Pennsylvania government's error. Hopefully, the bill will get laughed out of the legislature immediately -- especially since Rep. Martin's intentions may be less than honorable.

DeSmog Blog notes that Martin has close ties to pipeline lobbyists. Prior to joining the Pennsylvania Senate, Martin worked for a firm called Community Networking Strategies. CNS is a subsidiary of the lobbying firm, McNees, Wallace & Nurick — which lobbies for Gulf Oil Ltd, Industrial Energy Consumers of Pennsylvania, and Sunoco Logistics.

If it does somehow become law, it will be a statewide embarrassment and a vehicle for government abuse. And it will give the state the ability to rob Peter twice to pay Officer Paul's protest-related overtime.

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Remember when Scotty Allen built his own iPhone from parts bought in Shenzhen? This time around, he ups the ante and adds a headphone jack to an iPhone 7. He had to design his own custom circuit board, have it printed, and build it into his iPhone 7. It's an amazing project, and it's an incredibly interesting 30 minute video. I've spent the past four months in Shenzhen, China, modifying an iPhone 7 to add a fully functional headphone jack. To the best of my knowledge, this is the first time anyone has done anything like this. In April, I decided to finally upgrade my iPhone 6s to an iPhone7 to get better camera quality for the videos I was shooting when I was out on adventures in the industrial markets and manufacturing world. But I was super annoyed that it doesn't have a headphone jack! I already have headphones I really liked, and I didn’t like the idea of having to keep track of an adapter just to use them. So I figured I'd add my own - after all, how hard could it be? It turns out, really really hard. But possible. He sent the circuit board he designed and built to Apple, and open sourced all the schematics needed so those with the right tools and expertise can build it at home.

Sheriff Grady Judd of Polk County, Florida, spent most of Wednesday morning letting America know what an awful person he is. With Hurricane Irma bearing down on Florida, Judd helpfully suggested sex offenders or those with outstanding warrants would be better off lashing themselves to a nearby tree rather than seeking shelter.

If you go to a shelter for #Irma, be advised: sworn LEOs will be at every shelter, checking IDs. Sex offenders/predators will not be allowed

This part of it is awful enough, even as it's lawful enough. Florida law bans sex offenders from hurricane shelters, even though lots of registered sex offenders pose no threat to anyone around them. Some sex offenders are unrepentant pedophiles and rapists. But many, many others have been rung up for things like statutory rape, sexting, and other violations that should have zero effect on their ability to find housing, seek shelter, become meaningfully employed, etc.

But Judd didn't stop there. He probably should have. But Sheriff Grady Judd -- like other infamous sheriffs (Joe Arpaio, David Clarke, Of Nottingham, etc...): -- appears to thrive on hate and negative press coverage. So, Judd amped it up. Rather than make it appear his deputies would simply be enforcing the state's ridiculous sex offender laws, he piled on, adding everyone who might have an outstanding warrant, something that covers stuff as innocuous as unpaid parking tickets.

If you go to a shelter for #Irma and you have a warrant, we'll gladly escort you to the safe and secure shelter called the Polk County Jail

So, lots and lots of locals might consider possibly drowning, rather than being arrested, tossed into Judd's jail… and possibly drowning there. After all, it's not as though law enforcement officers feel obliged to ride out the storm while keeping an eye on people they barely consider to be people.

When Katrina hit, the Orleans Parish sheriff's office abandoned one of its jails, leaving 600 inmates to fend for themselves. Cells flooded, toilets backed up, the power went out, and by the end of it, the sheriff's department couldn't account for 517 of those inmates. In the aftermath of Harvey, the same thing is happening in Houston's jails, although officials there have been following through with better evacuation efforts. Still, prisoners are resorting to drinking contaminated toilet water as the water supplies have ceased functioning and inmates are reporting cells with standing water 4-6" deep.

So, a jail is not a "safe and secure shelter" by any stretch of the imagination. It's not even "safe and secure" outside of the hurricane context. Multiple inmates have died in Judd's jail -- none of them of old age. Polk County deputies also allegedly abused arrested children (yes, the state's effed-up laws allow children to be jailed in adult prisons) and engaged in sexual misconduct with arrestees.

But this sort of thing is what one expects of Sheriff Judd. The man has built quite a reputation on destroying lives. Most of this comes through Judd's bizarre obsession with sexual crimes. His office runs sting operations even prosecutors have backed away from because they border on entrapment. He has repeatedly engaged in extraterritorial arrests, sending his deputies all over the nation to arrest alleged pedophiles.

That's what he engages in when not grandstanding around making statements like "I'm going to go lock the CEO of Apple up" if Apple won't help him break into an encrypted iPhone or iPad. And now there's this: Judd letting everyone know they'll need to pass an impromptu background check to be allowed to escape the brunt of Hurricane Irma's landfall.

But the last laugh may belong to everyone but Judd if he carries through on this threat. Those who don't -- or won't -- seek shelter may have to be rescued by members of his department. And several of those are going to include people he hates, like sex offenders and people who won't pay their parking tickets. Because, unlike Judd, we're not cruel: we legitimately hope that none of his deputies lose their lives rescuing people who might have been safely inside a shelter if not for Judd's awful threats to lock people up.

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Jolly new Attorney General Jeff Sessions can't wait to put the screws to all those Americans who didn't have the sense to seek employment as law enforcement officers. Sessions wants harsher drug sentencing, less oversight, and the revival of programs abandoned in the 80s and 90s after they proved to have zero effect on rising crime rates.

Sessions, with the support of the Trump Administration, is rolling back the last administration's minor reforms to the 1033 program, which allowed local law enforcement agencies to obtain MRAPs, assault rifles, grenade launchers… whatever it took to defend the annual Mule Day Parade from terrorist attacks. Fun fact: these same items are apparently crucial components of flood rescue efforts in Houston, TX. [Cue shooting star and the words "The More You Know," soon to be riddled with bullet holes for startling MRAP-riding 1033 recipients with their sudden appearance…]

Asset forfeiture is coming back, too. Sessions has opened the federal loophole closed by his predecessor, allowing local agencies to give the finger to legislators and the people they serve as they bypass local reform efforts and cash in on other people's property. Sessions appeared to be this close to visible arousal when discussing the return of the Federal Forfeiture Loophole during a law enforcement conference in Alabama.

"I love that program," Sessions said. "We had so much fun doing that, taking drug dealers' money and passing it out to people trying to put drug dealers in jail. What's wrong with that?"

It's a rhetorical question, but only because Sessions is completely uninterested in the answer. What's wrong with civil asset forfeiture could fill several publications (and has!) but there's no talking to a man who's paid to revel in his deliberate ignorance. Putting people in jail is a concept wholly divorced from civil asset forfeiture, which is why it's been abused so often and so thoroughly. Once law enforcement was freed from the burden of actual proof, anything found anywhere near anyone possessing any amount of drugs was fair game for opportunistic officers. (Note: drug possession is completely optional! A dog can tell cops to take stuff, even if there are no drugs present. And you can't cross-examine a dog to see if it actually smelled drugs or just wanted to make its uniformed human happy.)

Sideloading forfeitures through the federal adoption program allows cops to bypass forfeiture efforts in several states. That would include those which have established a conviction requirement, basically eliminating civil asset forfeiture altogether. Unfortunately for Sessions, there are still a few troublemakers on Capitol Hill hoping to undercut the improper advances made by the new AG towards Americans' personal property. Civil rights watchdog FreedomWorks has compiled a list of amendments to the DOJ appropriations bill that would suck the fun right out of taking money from people just because.

Amendment 46 to Division C: Submitted by Rep. Tim Walberg (R-Mich.), this amendment would prohibit the use of funds from being used to carry out Attorney General Sessions' directive. The problem with this amendment is there were some minor positive aspects to the otherwise terrible directive, such setting a minimum value of $10,000 before seized property or cash can be adopted, requiring more proof of criminal activity, and doubling the time required for the property owner to receive notice of their rights. Because the amendment would prohibit funding for the directive, it would prevent the positive reforms from being implemented.

[...]

Amendment 70 to Division C: Submitted by Rep. Justin Amash (R-Mich.), this amendment would prohibit funds from being used to facilitate adoptive seizures of property or cash. The amendment references the directive from the previous administration, but it's tailored to address the specific activity, adoptive seizures, for prohibition. Presumably, it would leave the minor positive reforms in Attorney General Sessions' directive in place.

Amendment 87 to Division C: Submitted by Rep. Darrell Issa (R-Calif.), the amendment would reduce the appropriation for the Justice Department's Assets Forfeiture Fund by $10 million and increases funding by the same amount to the Debbie Smith DNA Backlog Grant Program, which deals with forensic kits in cases of sexual assault. The merits of the DNA program notwithstanding, the amendment doesn't directly address Attorney General Sessions' directive.

Amendment 127 to Division C: Submitted by Rep. Warren Davidson (R-Ohio), the amendment would prohibit the use of funds appropriated from being used for adoptive seizures. It's similar to Rep. Amash's amendment, but it isn't directly tied to a specific directive or order.

Unfortunately, the attachment of amendments to a "must-pass" bill doesn't guarantee any of the riders will make it past preliminary discussions. If they were allowed to make it out for a vote, FreedomWorks posits they have a good chance of passing. Given the support they might gather if allowed into the wild, these amendments likely have a slim chance of becoming anything more than excess weight to be shed in favor of more powerful lawmakers' pet boondoggles and President-pleasing riders.

But there's still a small chance Sessions' love affair with legalized theft will be broken up by interloping Congressmen. And that would be a joy to behold: AG Sessions having to turn away law enforcement agencies desperate to have the shaky seizures legitimized by federal adoption procedures… and Sessions having the power -- but not the funds -- to do it.

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Remember, back in December 2016, when there were rumours Oracle was killing Solaris? And how a month later, Solaris effectively switched to maintenance mode, and then to a "continuous deliver model"? The news from the ex-Sun community jungle drums is that the January rumours were true and Oracle laid off the core talent of the Solaris and SPARC teams on Friday. That surely has to mean a maintenance-only future for the product range, especially with Solaris 12 cancelled. A classic Oracle "silent EOL", no matter what they claim. With the hardware deprecated, my guess is that's the last of the Sun assets Oracle acquired written off. Just how good were Oracle's decisions on buying Sun? Sun's Solaris is dead. Bryan Cantrill on this news (this Bryan Cantrill): As had been rumored for a while, Oracle effectively killed Solaris on Friday. When I first saw this, I had assumed that this was merely a deep cut, but in talking to Solaris engineers still at Oracle, it is clearly much more than that. It is a cut so deep as to be fatal: the core Solaris engineering organization lost on the order of 90% of its people, including essentially all management. [...] Judging merely by its tombstone, the life of Solaris can be viewed as tragic: born out of wedlock between Sun and AT&T and dying at the hands of a remorseless corporate sociopath a quarter century later. And even that may be overstating its longevity: Solaris may not have been truly born until it was made open source, and - certainly to me, anyway - it died the moment it was again made proprietary. But in that shorter life, Solaris achieved the singular: immortality for its revolutionary technologies. So while we can mourn the loss of the proprietary embodiment of Solaris (and we can certainly lament the coarse way in which its technologists were treated!), we can rejoice in the eternal life of its technologies - in illumos and beyond!

Back in 2012, we wrote about Onity, the company that makes a huge percentage of the keycard hotel door locks on the market, and how laughably easy it was to hack its locks with roughly $50 of equipment. Surprisingly, Onity responded to the media coverage and complaints from its hotel customers with offers of fixes that ranged from insufficient (a piece of plastic that covered the port used to hack the door locks) to cumbersome (replacing the circuit boards on the locks entirely) and asked many of these customers to pay for these fixes to its broken product. Many of these customers wanted to sue Onity for obvious reasons, but a judge ruled against allowing a class action suit to proceed. That was our last story on the subject.

So... what happened? Well, Onity ended up springing for the fixes for some of their larger chain hotel customers, but not all of them. For the rest, it was on each hotel to decide to pay for the fix or not. Many, many of them absolutely did not and did nothing about the Onity locks on their doors, while those that did get the fix involving the plastic port cover quickly found out that the fix wasn't much of a fix at all. To see the fallout from all of that, one need only look at Wired's longform piece on the hellacious crime spree undertaken by one troubled young man, Aaron Cashatt, who managed to steal hundreds of thousands of dollars worth of stuff from hotel rooms using the afore-mentioned $50 worth of gear.

The entire post is worth your time, with its fascinating look into Cashatt's background, the revelations of the Onity lock's failures, and where those two stories converged. One of the key points in all of this was that even before Cashatt started his crime spree, everyone, from Onity to the hotel chains to any member of the public that cared to know, was aware of how laughably insecure Onity's locks were, except that, for the most part, nobody bothered to do anything about it.

Instead of Brocious' research protecting millions of hotel rooms from larceny-minded hackers, it served up a rare, wide-open opportunity to criminals. Soon other hacker hobbyists were posting YouTube videos of themselves demonstrating the vulnerability on real hotel doors, refining Brocious' gadget to work far more reliably. One security researcher in Chicago managed to miniaturize the components of the lock-hacking device until it fit inside the body of a dry-erase marker, with its plug hidden under the marker's cap. The attack became so notorious that it even made a brief cameo in the first season of USA Network's show Mr. Robot.

But out of everyone who learned about the Onity keycard hack, only one person, perhaps, had the right mix of desperation, tech savvy, and moral flexibility to use it to its full criminal potential: Aaron Cashatt.

Cashatt saw a news segment about the Onity flaw and began to use his own hacking device to exploit it almost immediately. With equipment that cost less than a AAA video game, Cashatt began hacking into hotels, starting at a Marriott. While perfecting his hacking tool and managing to hide it in a sunglasses case that he kept slung around his neck, he worked a waiter job during the day and smoked meth and broke into hotel rooms at night. Using the tool, Cashatt would walk out of hotel rooms with everything the visitor owned and much of what was owned by the hotels as well, including not just towels and toiletries, but flat-screen televisions as well. After deciding to skip a court hearing, he took his show on the road, leaving his corner of Arizona and trekking to the Midwest, where the spree continued. Even when he was arrested on completely unrelated drug charges, police had no idea that the string of hotel room robberies in progress across the country was his doing. When he was carted back to Arizona and let out on bail, he went right back to work.

Now with no job to hold him back, Cashatt, his friends, and an on-and-off girlfriend spent the next four months hitting hotels at a frenzied pace, sometimes as many as four in a day...working his way methodically across central Arizona.

It was a month into that run that Onity began rolling out the plastic port-blocker fix to its locks. Onity had finally begun distributing this fix for free to at least some of its hotel customers. But this barely slowed Cashatt down. Instead, he used a screwdriver to open the panel of the door lock and was able to access the port once more, the plastic blocker circumvented. With enough practice, he was able to do this in under half a minute. He went right back to work, fencing stolen goods through a network of friends and a jewelry store whose owner he trusted. It was only after one of his friends got pinched that the police managed to get wind of just how big Cashatt's operation had become. He once more hit the road and began breaking into hotels in Tennessee before trekking back west to California and hitting hotels there. It was there that the feds finally caught him, after he managed to steal an estimated half-a-million dollars worth of goods.

Now in prison, Cashatt doesn't think much has changed.

"I guarantee you that if you tried this at some hotel in the Midwest, it would still work 19 out of 20 times," he says. For that, he blames Onity's negligence. "They just don't get it."

For its part, Onity remains opaque on how many fixes have been rolled out to how many hotel door locks, as well as exactly what form those fixes take, either the plastic port-blocker variety or an actual circuit board replacement. The fact that the company isn't screaming about how many circuit board replacements its doled out should tell you all you need to know about the answer to that question. The Wired author himself tested it out and managed to get his own hacking tool to unlock a hotel door on his fourth try. This isn't hard data of any kind, but with Onity itself ducking any kind of transparency, it's the best that can be done.

What should stick out most to everyone about this story is how the flaws in Onity's locks were uncovered only through the help of security researchers, oft maligned, whose work then went largely ignored. That willful ignorance allowed someone like Cashatt to go bananas on the hotel industry, all because Onity couldn't be bothered to fix its flawed product.

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This is a short video of some good ol' boys trying to launch an unmanned ATV off a cliff, presumably in an attempt to appease the gods of chewing tobacco and cheap domestic beer. However the Skoal god deemed their sacrifice unworthy that day and sent the ATV into a group of predominately vertical-filming bystanders before throwing itself off the cliff on its own terms. Admittedly, I admire that ATV's tenacity, which is saying a lot considering we're talking about an inanimate ATV here and not a hungry lion. Keep going for the video. Thanks to Brian, who agrees these kids are lucky the ATV decided it didn't want to take any of them with it.

A federal court in Oakland, California has come to a conclusion the DOJ definitely didn't want it to reach, as Cyrus Farivar reports for Ars Technica.

In the 39-page ruling, US District Judge Phyllis Hamilton notably found that the use of stingray to find a man named Purvis Ellis was a "search" under the Fourth Amendment—and therefore required a warrant.

The DOJ -- despite issuing its own guidance requiring warrants for Stingrays in 2015 -- argued in court earlier this year that no warrant was needed to deploy the Stingray to locate a shooting suspect. It actually recommended the court not reach a conclusion on the Fourth Amendment implications of Stingray use, as it had plenty of warrant exceptions at the ready -- mainly the "exigent circumstances" of locating a suspect wanted for a violent crime.

Unfortunately for the federal government (and all other law enforcement agencies located in the court's jurisdiction), the court declined the DOJ's offer to look the other way on Constitutional issues. It found a Stingray's impersonation of cell tower to obtain real-time location information is a search under the Fourth Amendment.

The court adopts Judge Koh’s reasoning in In re Application for Telephone Information, 119 F. Supp. 3d at 1026, to hold that cell phone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable. While Judge Koh limited her analysis to the privacy interest in historical CSLI, the court determines that cell phone users have an even stronger privacy interest in real time location information associated with their cell phones, which act as a close proxy to one’s actual physical location because most cell phone users keep their phones on their person or within reach, as the Supreme Court recognized in Riley. In light of the persuasive authority of Lambis, and the reasoning of my learned colleagues on this court recognizing a privacy interest in historical cell site location information, the court holds that Ellis had a reasonable expectation of privacy in his real-time cell phone location, and that use of the Stingray devices to locate his cell phone amounted to a search requiring a warrant, absent an exception to the warrant requirement.

The court also has something to say about the FBI/Oakland PD's use of a pen register order as a stand-in for a warrant specifically detailing the type of device to used to obtain these so-called "phone records."

The government contends that since the Stingray devices used in this case were configured in compliance with the pen register statute, then the provisions of the pen register statute, including the “emergency” provisions, govern their operation. Doc. no. 321 at 9 (citing 18 U.S.C. § 3125). The government does not address the key issue in dispute, namely, whether the provisions of the pen register statute and the SCA provide the appropriate standard for using a CSS to locate a cell phone in real-time. The court follows Judge Illston’s determination in Cooper, 2015 WL 881578, that the provisions of the pen register statute and the SCA do not authorize the use of a CSS to disclose realtime information about a cell phone user’s physical location, and that such location monitoring must be authorized by a showing of probable cause.

It also points out the DOJ's reliance on the Stored Communications Act to salvage its warrantless Stingray use is misplaced -- something that could be gathered by the name of the statute.

[C]ongress intended that the SCA “was to be used as a means to obtain data which has already been stored at the time the government seeks to obtain it,” as opposed to real-time data.

Ultimately, though, the court denies the suppression of the evidence, allowing the government's "exigent circumstances" argument to prevail. This may prove to be a good thing in the long run (although it does little for the defendant). Allowing the government to keep its evidence gives it no reason to appeal the decision. And this decision implements a warrant requirement for obtaining real-time cell site location info and gives certain third-party records an expectation of privacy.

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Let's not mince words: the FCC's plan to gut net neutrality protections in light of severe public opposition is likely one of the more bare-knuckled acts of cronyism in modern technological and political history. That's because the rules have overwhelming, bipartisan support from the vast majority of consumers, most of whom realize the already imperfect rules are some of the only consumer protections standing between consumers and giant, uncompetitive companies like Comcast. Repealing the rules only serves one interest: that of one of the least liked, least-competitive industries in America.

That said, the broadband industry and the FCC keep trying to obfuscate this reality, and failing. The latest example: a new study funded by the industry itself took a closer look at the 21.8 million comments filed with the FCC so far on its plan to roll back the rules, and found, once again, the vast majority of the citizens the agency is supposed to represent oppose the FCC's plan. The full study was conducted by consulting firm Emprata and funded by Broadband for America, a lobbying front organization backed by Comcast, AT&T, Verizon, Charter and most large wireless carriers.

As we've consistently reported, somebody has been backing an attempt to fill the FCC's comment proceeding with entirely bogus, bot-crafted support for the FCC's plan. There have even been bogus comments filed in support of killing net neutrality made in my name (which the FCC has said they'll do nothing about). The Emprata study found that even including this farmed detritus, the majority of the comments are in favor of retaining the rules. Including spam, bot-posts, and form letters (the latter being used by both sides), the study found 60% were opposed to the FCC's plan.

But when the firm only analyzed original comments coming from actual human beings, it found that 98.5% of original comments filed support keeping the rules intact. And while form letters are utilized by both sides of this asymmetrical debate to galvanize public action, the study also found very few original comments in support of Ajit Pai and friends' handout to the telecom sector:

"[T]here are considerably more "personalized" comments (appearing only once in the docket) against repeal (1.52 million) versus 23,000 for repeal. Presumably, these comments originated from individuals that took the time to type a personalized comment. Although these comments represent less than 10 percent of the total, this is a notable difference."

The overwhelming majority of comments for and against repealing Title II are form letters (pre-generated portions of text) that appear multiple times in the docket. The form letters likely originated from numerous sources organized by groups that were for or against the repeal of Title II. Form letters comprise upwards of 89.8 percent of comments against Title II repeal and upwards of 99.6 percent of the comments for Title II repeal.

Again, this supports numerous, previous studies indicating that net neutrality protections have broad, bipartisan support. Other cable industry funded studies have found the same thing. There's no debate here: the FCC is engaged in killing rules solely so it's easier for entrenched duopolists to abuse the lack of competition in the broadband space. And while ISPs and the FCC like to idiotically frame this as restoring freedom or other such nonsense, the public -- after years of abuse by this dysfunctional sector -- doesn't appear to be quite as stupid as the industry and its allies hoped.

Meanwhile, the study also zooms in more closely on the scope of the fraudulent comment problem the FCC seems intent on ignoring, claiming that bogus bots are submitting comments to the FCC both in support and opposition to rule repeal. In fact, 7.75 million comments appear to be completely bogus:

"More than 7.75 million comments... appear to have been generated by self-described 'temporary' and 'disposable' e-mail domains attributed to FakeMailGenerator.com and with nearly identical language. Virtually all of those comments oppose repealing Title II. Assuming that comments submitted from these e-mail domains are illegitimate, sentiment favors repeal of Title II (61 percent for, 38 percent against)."

Who's doing this isn't clear, and the FCC has refused to investigate. Someone that supports net neutrality could have crafted a bot to spam the system with comments opposing the FCC's plan. But it's also possible an industry-linked opponent to net neutrality is trying to pollute the entire comment system to invalidate the entire public forum. That's why former FCC staffers like Gigi Sohn are urging the FCC to do its own analysis of the comments instead of relying on data from the telecom industry:

"August 30th could very well mark the official beginning of the end for the Open Internet. With the closing of the public comment period for the FCC’s proceeding to repeal the 2015 Net Neutrality rules, the record is now full of tens of millions of comments, many of them demonstrably fake. Incredibly, it doesn't even matter if the facts are real or alternative because Chairman Pai intends to ignore them all so that he can eliminate the rules and protections for Internet users and innovators as quickly as possible - which also explains why he refuses to make public information that is critical to his FCC's decision making."

Any real FCC inquiry is unlikely to happen, and the FCC appears poised to use the bogus comments to justify ignoring public feedback entirely when it votes to finally kill the rules in the next few months. That's when the real fun begins, as all of the agency's efforts to downplay vicious public opposition to its plan (including apparently fabricating a DDoS attack) will be front and center in the inevitable lawsuits to come.

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Earlier this week, we wrote about Donald Trump and Jeff Sessions bringing back the Defense Department's 1033 program, which helped militarize local police forces with surplus military equipment. We've been covering all sorts of problems with the 1033 program over the years, and people like Radley Balko have written entire books on the problem. And the previous ban on the 1033 only put a fairly narrow limit on the practice of militarizing police -- but now even those modest limits are gone.

What's truly incredible, however, is the complete nonsense being used to justify this. Attorney General Jeff Sessions gave a speech about this on Monday, in which he trotted out his standard misleading and out-of-context stats, falsely claiming that there's some massive new crimewave across the country, when there's really just been a tiny bump after decades of decline in crime rates (the use of percentages by Sessions shows the he likely knows the absolute numbers are so meaningless that he has to mislead with percentages working off a small base).

But, even with the usual misleading claims about violence and violence directed towards police, I still never expected him to... point to Houston and the impact of Hurricane Harvey as a reason for increased police militarization. But that's exactly what he did:

Those restrictions went too far. We will not put superficial concerns above public safety. All you need to do is turn on a tv right now to see that for Houstonians this isn’t about appearances, its about getting the job done and getting everyone to safety.

Wait. Law enforcement in Houston needs surplus military equipment to rescue people? Last I've seen it's been tons of good hearted people using boats of all kinds going around and rescuing people. I don't see much need for military equipment.

Once again, this looks like law enforcement using "any means necessary" to justify getting their military surplus toys, despite tremendous evidence of how this process is abused, how it harms community relations and how it leads to civil rights of the public being violated. To point to the disaster in Houston as a reason for restarting the program is not just frivolous, it's dangerous.

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As multiple Techdirt stories attest, farmers do love their "ag-gag" laws, which effectively make it illegal for activists to expose animal abuse in agricultural establishments -- although, strangely, farmers don't phrase it quite like that. Big Ag -- the giant seed and agricultural chemical companies such as Monsanto, Bayer, and DuPont -- seem to have decided they want something similar for seeds. As an article in Mother Jones, originally published by Food and Environment Reporting Network, reports, it looks like they are getting it:

With little notice, more than two dozen state legislatures have passed "seed-preemption laws" designed to block counties and cities from adopting their own rules on the use of seeds, including bans on GMOs. Opponents say that there's nothing more fundamental than a seed, and that now, in many parts of the country, decisions about what can be grown have been taken out of local control and put solely in the hands of the state.

Supporters of the move claim that a system of local seed rules would be complicated to navigate. That's a fair point, but it's hard to believe Big Ag really cares about farmers that much. Some of the new laws go well beyond seeds:

Language in the Texas version of the bill preempts not only local laws that affect seeds but also local laws that deal with "cultivating plants grown from seed.” In theory, that could extend to almost anything: what kinds of manure or fertilizer can be used, or whether a county can limit irrigation during a drought, says Judith McGeary, executive director of the Farm and Ranch Freedom Alliance. Along with other activists, her organization was able to force an amendment to the Texas bill guaranteeing the right to impose local water restrictions. Still, the law's wording remains uncomfortably open to interpretation, she says.

You would have thought that farmers would welcome the ability to shape local agricultural laws according to local needs and local factors like weather, water and soil. But apparently ag-gagging activists to stop them doing the same is much more important.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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A case involving a bogus arrest stemming from a citizen's attempt to record officers has resulted in the denial of qualified immunity to the officers involved. The Eighth Circuit Appeals Court upheld the lower court's decision on both First and Fourth Amendment issues.

Plaintiff Brian Hoyland was awakened by the sound of police activity in his front yard. Opening his door, he found officers trying to arrest his wife, who was the passenger in a car suspected of being involved in reported drag racing. This is what Hoyland did from 30-40 feet away, ultimately resulting in him being arrested for obstruction. From the opinion [PDF]:

Out of concern for their safety, Hoyland moved his children to the back of the house and retrieved a cell phone to record the incident outside. He intended to remain inside but changed his mind when he believed he heard the officers yell “shoot” or “shooting.” He proceeded to switch the porch light on, open his front door, and hold his phone, which was recording, out in front of him.

And this is the reaction he got:

Within seconds, an officer shouted, “Drop the camera!” McMenomy yelled at Hoyland to go back inside the house. Hoyland remained where he stood and began screaming at the officers. He shouted, “You are in my yard!” and “What is this, a DWI stop, and you guys are doing this? Are you kidding me?” Hoyland also yelled that his wife was handicapped and demanded that the officers do their jobs “the right way.” McMenomy again ordered Hoyland to “stay inside.” Immediately following this command, with Hoyland remaining in the doorway, “the arrest decision was made” by McMenomy who shouted “you are under arrest,” and ordered Hoyland to raise his hands. About thirty seconds of time elapsed between Hoyland’s emergence from his house into the doorway and McMenomy’s pronouncement that he was under arrest. Hoyland did not resist, raised his hands and laid down on the ground, following the instructions given by the officers. He was taken into custody by McMenomy and Cho without incident.

Since the confrontation was recorded, there is little room for variances between Hoyland and the officers' testimony. As the court sees it, there is no question Hoyland did nothing even remotely approaching "obstruction."

Throughout this encounter, Hoyland never left the area around his front door, failing to ever come closer than 30-40 feet from the officers. He never told his wife or Illetschko to disobey the officers’ commands. He never ran away or resisted the officers as he himself was arrested. Finally, he never physically intervened, and never attempted to physically intervene, in the arrest of anyone.

The local prosecutor found the charge baseless. The prosecutor stated it was clear Hoyland came out to inform officers of his wife's disability while recording the event. At best, Hoyland's actions were nothing more than a "fleeting interruption." The Appeals Court comes to the same conclusion.

Having failed with the "it was obstruction" argument, the officers attempted to portray Holyand's arrest as a necessity for officer safety. The court finds this no more convincing.

Any fear of danger the officers felt due to Hoyland’s presence cannot justify an arrest for obstruction. McMenomy asserts that his mind raced in fear of an ambush when Hoyland emerged from the house. This fear, according to the officers, made Hoyland’s arrest reasonable after he refused to go back inside his home. But the officers are mistaken. However reasonable the command for Hoyland to go back inside may have been, his refusal to do so did not constitute obstruction. As Minnesota law makes abundantly clear, obstruction must be either physical obstruction or verbal conduct, such as fighting words, that has the effect of physically obstructing officers in the performance of their duties. Nowhere in Minnesota law does mere physical presence at a distance constitute obstruction. So arresting Hoyland for obstruction due to his continued presence in his doorway was unreasonable under state law.

Even when we consider his verbal conduct, no reasonable officer could construe his shouting as “physically obstructing or interfering” in the officers’ performance of their duties. See Krawsky, 426 N.W.2d at 877. Admittedly, he was shouting criticisms at the officers. But “[i]n a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions.” See Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). And none of Hoyland’s comments could be reasonably interpreted as rising above scrutiny to create a threat or a danger to police or to constitute obstruction.

This allows Hoyland to continue pursuing his Fourth Amendment claim. The court moves on to the First Amendment. Again, the officers argued there was no stifling of Hoyland's First Amendment rights because a) he was obstructing officers, and b) even if he wasn't, he had no Constitutional right to record a traffic stop. The court spends barely any time discussing the officers' obstruction bullshit. Instead, it concentrates on the officers' misguided assertions, which are backed by a previous court decision that's not nearly as helpful as the officers believe it is.

[T]he officers argue that, under Colten v. Kentucky, Hoyland “had no constitutional right to observe a [felony traffic stop] or to engage the [arresting] officer[s] in conversation at that time.”

[...]

But the officers’ reliance on Colten is misplaced for three reasons. First, the location of the traffic stop in Colten—a busy highway—implicated important concerns of public safety. Here, the arrest took place in a residential area with no other vehicles or persons around. And Hoyland was not standing on the side of a highway observing a traffic stop, but rather standing in the doorway of his own home trying to tell the officers that his wife was handicapped…

Here, Hoyland is not challenging the constitutionality of a statute; he is bringing a § 1983 claim against the officers for retaliating against him for exercising his First Amendment rights. Colten, on the other hand, was simply “refusing to move on after being directed to do so . . . without more.”

[L]ater Supreme Court cases make it clear that the First Amendment protects verbal criticism directed at police officers. See, e.g., Hill, 482 U.S. at 461. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. Thus Hoyland’s communications were protected activity.

The court goes on to point out Hoyland has a possibly legitimate argument the arrest was made to prevent him from exercising his First Amendment rights.

McMenomy’s deposition testimony clearly shows that the arrest decision was not made after Hoyland had ignored the initial order to go back inside. It was only after Hoyland had stood in the doorway shouting criticisms and messages about his wife’s physical disability that the arrest decision was made… The arrest decision was not made when Hoyland first disobeyed an order, but only after he had begun exercising his First Amendment rights.

Because the charge was bogus and the officers had no probable cause for Hoyland's arrest, both his Constitutional claims will have to be faced by the government defendants. As the court concludes, immunity is a privilege, not a right, and should be treated as such by courts and those seeking to avail themselves of it.

Police officers have a tough job. They must confront dangerous situations and make difficult decisions in short time frames. This is why we offer the protection of qualified immunity—to insulate officers from the constant threat of litigation while serving and safeguarding their fellow citizens. But to receive that protection, we must find as a matter of law that the officers acted within the confines of the Constitution. They must avoid arresting persons without at least arguable probable cause. They must not take adverse actions against persons for exercising their First Amendment rights. Looking at the facts of this case, we cannot hold as a matter of law that the officers acted constitutionally.

The court doesn't go so far as to establish a right to record police, but it does offer up enough precedential cases to make any arguments to the contrary unlikely to find sympathy with the judges. As for Hoyland, he at least has a chance to make his case at the lower level and receive some sort of compensation for an interaction with officers that began with them ordering him to stop filming and ended in a bogus arrest.

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The NYPD has to scrap the 36,000 smartphones it gave cops over the past two years because they're already obsolete and can't be upgraded, The Post has learned. The city bought Microsoft-based Nokia smartphones as part of a $160 million NYPD Mobility Initiative that Mayor Bill de Blasio touted as "a huge step into the 21st century". In 2014. They bought these in 2014. In 2014.

This is a 15-minute timelapse video (feel free to skip around) of Youtuber Steve Richter building a Jumanji board game from scratch. Like, from scratch scratch. If it was any more from scratch he would have had to grow the trees and cut them down himself. He does a really impressive job, including installing magnets under the board's game token start locations so all you have to do is throw the players in and they stand up (clip of that at 14:50). Man, I wish Jumanji was a real magical game that actually worked, I'd play it all the time. But sadly, it isn't, and all my friends want to do is play spin the 2-liter and make out with each other all the time. "Gross." Right? If I wanted to kiss somebody so bad I'd go to the kissing booth at the county fair like a normal person. I heard for an extra quarter they'll even swap gum with you. Keep going for the video.

As part of his ongoing effort to reverse everything President Obama ever did, President Trump will be rolling back the previous administration's 1033 program ban. The program allowed local law enforcement agencies to help themselves to Defense Department equipment -- often paid for with federal grants -- as long as they said the magic words (terrorism/drugs) on the application.

Attorney General Jeff Sessions, who led the campaign for the program's reinstatement, outlined the President Trump's new executive order Monday in an address at the annual meeting of the Fraternal Order of Police, the nation's largest police union.

The administration's action, first disclosed by USA TODAY, would restore "the full scope of a longstanding program for recycling surplus, lifesaving gear from the Department of Defense, along with restoring the full scope of grants used to purchase this type of equipment from other sources,'' according to a administration summary of the new program recently circulated to some law enforcement groups.

"Assets that would otherwise be scrapped can be re-purposed to help state, local and tribal law enforcement better protect public safety and reduce crime."

Attorney General Sessions loves rolling things back. This will give police departments access to mine-resistant vehicles, grenade launchers, and firearms, which should "assist" them in fighting the Drug War 1980s-style and/or pitching in with ICE's efforts to pitch migrants back over the wall Trump can't seem to get built.

This is prime law-and-order stuff. Trump has made it clear law enforcement is on the right side of history. Everyone who doubts or criticizes cops is simply wrong. A ban put in place as a reaction to militarized police responses is being reversed because no one up top cares how police are perceived. AG Sessions has already killed off federal civil rights investigations of local law enforcement agencies. Now, police will find it easier than ever to dude up as war-fighters, rather than easily-identifiable public servants.

As Radley Balko pointed out on Twitter, Obama's rollback didn't put a huge dent in military gear acquisitions. But it did attempt to head off further development of law enforcement's "us vs. them" mentality by making it a bit more difficult to look and act like an occupying force, rather than law enforcement agencies. Balko notes plenty of gear can still be obtained from other sources, like the DHS, state agencies, and donations. But the ultimate point of the ban was to reduce the gap between public servants and the people they serve -- something explicitly noted by Obama's law enforcement guidance task force.

The Task Force on 21st Century Policing, chaired by former Philadelphia Police Commissioner Charles Ramsey and Laurie Robinson, a former assistant attorney general, called on law enforcement officials to "minimize the appearance of a military operation'' when policing mass demonstrations.

"Avoid using provocative tactics and equipment that undermine civilian trust," the task force urged.

The previously-banned equipment also included tracked armored vehicles, bayonets and grenade launchers.

Trump's ban reversal sends the opposite message. Combined with his public statements, proclamations, and executive orders, the future of policing will make cities and towns feel like occupied territory and turn citizens into civilians.

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Seamus Hughes, the Deputy Director of George Washington University's Program on Extremism, happened across an extraordinary story -- told in warrant affidavit form -- of a man who faked up a research lab and started scoring himself truckloads of free equipment from the US government.

According to the allegations in the warrant [PDF], Patrick R. Budic discovered a nifty way to exploit government excess equipment giveaways, utilizing a nonexistent company to make off with nearly $11 million in equipment ranging from GPS units to aircraft radios to hospital beds. The figure might have been much, much higher. The affidavit shows Budic tried (but failed) to acquire aircraft on more than one occasion.

The setup echoes the sting operation the Government Accountability Office performed as part of its investigation of the Defense Department's 1033 program. The GAO set up a fake law enforcement agency and was able to obtain over $1 million in excess military gear before wrapping up its investigation. In that case, there appeared to be almost zero follow-up by the agencies in charge of disbursement. No one called. No one visited the fake address to verify the fake law enforcement agency's existence.

Some of that appears to have come into play here. Budic -- along with David G. Rosseau, a US Navy engineer -- allegedly set up a fake nonprofit called Northridge National Laboratories (NNL) in Wyoming. According to the state's Department of State, Wyoming does not engage in much regulation of registered nonprofits. No follow-up was done to ensure the nonprofit actually existed and the only verification the state required for its nonprofit status was… the declaration it was a nonprofit on the registration paperwork. However, the principal address for NNL was Milwaukee, Wisconsin, where Budic lived.

Budic also set up a for-profit company, PMR Research, and got it registered with the Government Services Administration's (GSA) award management system.

Using these two companies and some allegedly false claims about being a Defense Department contractor, Budic went to work. He began exploiting the GSA's surplus property program, which allows government agencies (at all levels) and their contractors to obtain excess equipment for little to no cost.

It all began to fall apart when Budic started thinking big. He ran into problems trying to acquire a Learjet. Closer vetting apparently begins when the requested property runs into the millions of dollars per unit. The specialist assisting Budic couldn't find anything verifying Budic's claim NNL was a Defense Dept. contractor "working on top secret research." Budic admitted NNL wasn't a federal laboratory "yet," but was "on its way" to becoming one. "This is how you get there," he told the specialist.

Actually, this is how you get got.

The GSA Inspector General stepped in and made a recorded call to Budic. Budic claimed he needed the aircraft for Defense Dept. research, claiming he had research labs "all over the place," but principally operated out of Wisconsin.

Following that, Budic was interviewed by an undercover GSA agent and a Defense Criminal Investigative Service (DCIS) agent. Budic thought he was there to complain about the holdup on his aircraft order. The story started to change the more Budic talked. The million-square-foot lab Budic said NNL already owned in his earlier phone call became a lab NNL was trying to acquire. Asked where all the government equipment he already had obtained was, Budic said some was in Wisconsin but the rest of it was in California.

Based on this information, the agents were able to locate the Wisconsin storage unit. Talking to the unit's owner, the GSA discovered Budic was behind on his rent and was locked out. The owner also said Budic had "offered him a laptop" in an effort to get back into his storage space. According to the owner, the storage unit contained computers, a large printer, docking stations, more than a dozen servers, and "a lot of other stuff."

Undeterred by his inability to score an airplane, Budic next tried to acquire a 27' boat. He claimed in his request he was authorized to receive it under law and it would be used for "development projects pertinent to national security."

As the investigation continued, Budic became more evasive. He refused to divulge the location of his apparently fake lab, citing national security reasons. He did the same when asked for proof of the lab's ties to the DoD. When asked where the requested aircraft was headed, Budic said operational security prevented him from speaking about it. Those asking questions were told to take it up with other agencies. Budic called someone "Colonel" to imply he was close to DoD officials but couldn't provide a name.

The conversations -- many of them partly-transcribed in the warrant application -- are an amazing read. Budic dodged questions by stating he was on medication or replied with veiled threats more questioning would rain down DoD hell on the people standing between him and "his" aircraft.

Apparently, Budic was quite the bullshitter. For a brief period of time, he talked his way into office space on a military base. When not hauling away whatever the GSA would part with, Budic was going after the GSA for "unfairly" denying him millions of dollars worth of equipment, including a plane, a boat, and a $10 million supercomputer.

Among the things Budic was able to obtain were chemicals from a Defense Dept. chemical disposal facility, a seismograph from the Dept. of the Interior, and pharmacy equipment from Veterans Administration.

The entire affidavit reads like a spec script for an unmade blockbuster. Sadly, it also shows what someone can get away with using little more than some letterhead, a plausible backstory, and a decent knowledge of government acquisition programs.

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