Brindle

A number of statutes and practices have created perverse incentives for law enforcement, but none are nearly so blatant as this Alabama state law governing the feeding of inmates. The law, passed over 100 years ago, says law enforcement personnel -- mainly sheriffs -- can keep whatever's left over from state and federal inmate food stipends. This doesn't mean the leftover money is routed to a general fund or used to defray law enforcement/jail-related expenses. No, this means the money flows from taxpayers, (mostly) bypasses prisoners, and ends up in sheriffs' personal checking accounts. (via Radley Balko)

This legalized skimming has resulted in the obvious: underfed inmates and sheriffs with overfed bank accounts. The law first received national attention in 2008, when Morgan County sheriff Greg Bartlett found himself in federal court, defending himself against a lawsuit brought by his prisoners. Inmates were dropping weight and going hungry while Bartlett increased his personal income by $212,000 over three years, taking home a great deal of the $1.75 per prisoner per day state funds. (Federal prisoners housed in state jails are allowed $3 per day, which can also be rerouted to sheriffs' checking accounts.)

This resulted in Bartlett spending one night in his own jail. Even then, Sheriff Bartlett was violating an earlier consent decree with the federal government, which ordered his office to use *all* food funds for feeding inmates. The agreement Bartlett reached with the court (after a night in jail) promised his office would do the same thing: spend all the funds on food, rather than diverting them for personal use.

Even with two consent decrees in place and a previous sheriff being hauled into court for personally profiting from inmates' hunger, another Morgan County sheriff (Ana Franklin) has repeated her predecessor's misdeeds.

At that hearing, the sheriff's attorneys are expected to argue that a years-old consent decree in a lawsuit against the county does not apply to Franklin and she shouldn't be held in contempt. The decree says the Morgan County Sheriff must spend all food funds on inmate meals. The decree was issued in 2009 after Franklin's predecessor was jailed for contempt. Former Sheriff Greg Bartlett was dubbed "Sheriff Corndog" because he profited more than $200,000 while inmates ate corndogs twice a day for weeks. The consent decree stemmed from a 2001 lawsuit against the county and then-Sheriff Steve Crabbe by inmates decrying conditions inside the jail.

A court hearing was scheduled last month when the Center filed a motion saying Franklin should show cause for why she shouldn't be held in contempt of the decree. The center argued that Franklin should have been held in contempt after removing $160,000 from the inmate food account. The sheriff loaned $150,000 of the money to a now-bankrupt, corrupt used car dealership, Priceville Partners, LLC, that was co-owned by Greg Steenson, a convicted felon.

Franklin is trying to convince the court she should be allowed to continue starving inmates and financing criminal business ventures. While Sheriff Franklin was helping prop up localbusiness corruption, inmates were dealing with this reality:

The [Southern Center for Human Rights] is arguing Franklin should not be allowed to keep any of the food funds and has included in court documents statements from inmates who describe inadequate food portions and unappetizing or hazardous servings. Inmates reported finding rocks, a nail and mold in food served at the jail.

"Many grievances note that entire cell blocks were fed reduced or watered-down portions -- a tiny amount of soup, a spoonful of grits, five or six green beans or carrot slices as a vegetable serving, a sandwich with half of a slice of cheese on it, and the like -- because the kitchen lacked enough food to serve everyone the portions listed on the menu," according to court records filed by the Center.

Starving prisoners to fund personal business ventures isn't the only thing Sheriff Franklin's accused of doing, though. A longtime critic of Franklin -- blogger/business owner Glenda Lockhart -- has also filed a lawsuit against the sheriff, alleging a number of constitutional violations.

The lawsuit accuses Franklin of illegally obtaining information to convince a judge to issue a search warrant for Lockhart's home and business. Franklin has said her office seized computers and various other devices during an investigation into fired jail warden Leon Bradley, who has been accused of leaking documents to Lockhart for publication on the blog.

Lockhart's blog was where Sheriff Franklin's payments to the corrupt car dealership first appeared. In apparent retaliation, the sheriff allegedly engaged in some incredibly underhanded -- and illegal -- tactics in her attempt to obtain the blogger's personal communications.

Lockhart claims Franklin illegally gathered information for a search warrant by paying an informant to break-in, hack and steal data from her home and business offices. Lockhart owns Straightline Drywall and Acoustical, LLC in Falkville.

The informant, Lockhart's grandson Daniel, said in a sworn statement that he was paid to install keylogger software on his grandmother's computer. The software, he said, was provided by the sheriff's office, according to a transcript from a November 2016 deposition.

Daniel Lockhart's statement also said the sheriff told him she was only interested in going after the former warden who was leaking documents and that Daniel's grandmother wouldn't be targeted. His statement also points out he was paid directly by the sheriff and one of her deputies a total of $500 to perform this "investigative" work for them.

There appears to be corruption all over the place in Morgan County, Alabama. But it all starts with a bad law state lawmakers are in no hurry to take off the books. Despite multiple federal lawsuits stemming from sheriffs' starve-and-skim tactics, the incredibly perverse incentive remains intact. There are probably plenty of taxpayers who don't like the idea of their money being used to food and house convicted criminals, but I doubt any of those taxpayers are happier knowing they're padding sheriffs' bank accounts and investing in shady businesses.

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It will never be said that the Trump presidency began with a presumption of openness. His pre-election refusal to release his tax returns set a bit of precedent in that regard. The immediate post-election muffling of government agency social media accounts made the administration's opacity goals… um… clearer.

So, in an unsurprising move, the Trump administration will be doing the opposite of the Obama administration. The American public will no longer have the privilege of keeping tabs on White House visitors. (h/t Alex Howard)

The Trump Administration will not disclose logs of those who visit the White House complex, breaking with his predecessor, the White House announced Friday.

The administration is justifying this reversal with the usual: favorable interpretations of FOIA lawsuit rulings and "national security" mumbling.

White House communications director Michael Dubke said the decision to reverse the Obama-era policy was due to “the grave national security risks and privacy concerns of the hundreds of thousands of visitors annually.” Instead, the Trump Administration is relying on a federal court ruling that most of the logs are “presidential records” and are not subject to the Freedom of Information Act.

Yes, it's sadly true. The administration can use this ruling to lock the public out of this small layer of transparency. The rest of it, however, is bullshit.

Whatever "national security risks" may exist during White House visits should be addressed by intelligence agencies and the Secret Service rather than being withheld from the public. The White House hosts top foreign government officials all the time and it is always a "national security risk." Disclosing who's visited the White House AFTER THEY'VE ALREADY LEFT does zero damage to national security.

Additionally, there are likely several visitors to the White House every year that aren't logged for security reasons, and if it's really that much of a concern, the administration could release the logs with redactions, like Obama did.

As for visitors who aren't government officials (domestic or foreign), it's pretty imaginative to assume visits to the most well-known home of public servants in the free world carry with it some form of unbreachable privacy.

On top of everything else, it's extremely hypocritical for the administration to pretend this is about privacy and security when the president has been hosting government official get-togethers at resorts -- a place where logs aren't kept and "national security risks" seem to be less of a concern than how many holes Trump can fit in between government business.

So, to further distance himself from the people he serves (and the people who elected him), Trump and his administration have shut down the transparency portal put in place by the previous Commander-in-Chief:

White House officials said the Administration is ending the contract for Open.gov, the Obama-era site that hosted the visitor records along with staff financial disclosures, salaries, and appointments.

The administration can't even perform this move without meaningless, self-justifying dissembling. It's not about keeping secrets, of course. It's about saving taxpayers money [eyeroll]:

An official said it would save $70,000 through 2020 and that the removed disclosures, salaries and appointments would be integrated into WhiteHouse.gov in the coming months.

Thanks, Trump. I love the phrase "coming months," which means anytime between 2018 and never. The smart money's on not seeing any financial disclosures until nearly a year from now, at the earliest. The only way we'll see anything sooner is if some White House cabinet scandal manages to dislodge it first. Plus, there's this, from Trump himself, who obviously has no idea his past tweets are accessible by everyone:

If you can't see the tweet, it's Trump calling out Obama for doing the same thing Trump is now doing: rolling back a predecessor's openness.

Why does Obama believe he shouldn't comply with record releases that his predecessors did of their own volition? Hiding something?

President Obama was better talking about transparency than engaging in it. President Trump, on the other hand, has expressed zero interest in transparency and appears to be rolling back anything "open" Obama grudgingly put into place. Maybe it's better to have White House animosity towards openness and accountability right there on the surface. But right now, it really doesn't feel like an improvement.

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Trump's DOJ -- led by Jeff Sessions -- is rolling the clock back… on everything. Sessions has problems with the country's interest in decriminalizing personal marijuana use. Weed has been a big moneymaker for the FBI and DOJ, and no one likes losing paying customers -- especially not the private prisons that bad drug laws have kept full of taxpayer-supported "guests."

He also wants to roll back the DOJ's Civil Rights Division to the good old days. You know, before it actually existed and/or did anything about unconstitutional policing. Even though crime rates in most cities are still at historical lows, Trump and Sessions believe the country is under siege by violent criminals, who must be dealt with in the harshest, most expensive way.

Now, there's this: Spencer Hsu of the Washington Post reports the DOJ will be reversing course on the junk science it so often refers to as "forensic science."

Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.

In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013.

The DOJ's reliance on sketchy forensic science has long been a problem -- one the FBI even admitted to after its lab techniques and expert witness overstatements were examined by outside forensic scientists. Government "experts" were routinely overstating the "scientific certainty" of DNA matches of lab-tested evidence, resulting in the wrongful convictions of hundreds of people. The evidence given an appearance of authenticity by the government's "experts" on the stand was anything but:

• a 2002 FBI re-examination of microscopic hair comparisons the agency’s scientists had performed in criminal cases, in which DNA testing revealed that 11 percent of hair samples found to match microscopically actually came from different individuals;

• a 2004 National Research Council report, commissioned by the FBI, on bullet-lead evidence, which found that there was insufficient research and data to support drawing a definitive connection between two bullets based on compositional similarity of the lead they contain;

• a 2005 report of an international committee established by the FBI to review the use of latent fingerprint evidence in the case of a terrorist bombing in Spain, in which the committee found that “confirmation bias”—the inclination to confirm a suspicion based on other grounds—contributed to a misidentification and improper detention; and

• studies reported in 2009 and 2010 on bitemark evidence, which found that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter.

The committee reexamining the DOJ's lab practices got off to a rocky start when a federal judge appointed to the committee resigned after it became apparent the DOJ wasn't interested in seeing all of its junk science undone. The committee's work continued, but the DOJ publicly stated it wouldn't be changing much about how it handled forensic evidence. It would simply ask government witnesses to dial back their assertions of "scientific certainty."

On the (formerly) bright side, the DOJ had been reviewing its forensic work, hopefully with the intent of improving it. That's over now. Anyone involved with making the government's forensic science better is being replaced with more "traditional" lab staffers who will make sure the government always wins.

A path to meet needs of overburdened crime labs will be set by a yet-to-be-named senior forensic adviser and an internal department crime task force, Sessions’s statement said.

So long, reexamination. Hello, "crime task force."

This turns any examination of DOJ forensic science into a wholly internal affair. This confirms the conclusion Judge Rakoff came to when he resigned from the examination committee: the government wants its dubious evidence to remain unquestioned and its submitted evidence to be safe from examination by defense experts. "Trial by ambush," as Judge Rakoff referred to it.

With Sessions' latest move, the DOJ moves even further away from the word "justice."

In suspending reviews of past testimony and the development of standards for future reporting, “the department has literally decided to suspend the search for the truth,” said Peter S. Neufeld, co-founder of the Innocence Project, which has reported that nearly half of 349 DNA exonerations involved misapplications of forensic science. “As a consequence innocent people will languish in prison or, God forbid, could be executed,” he said.

The move is, of course, being applauded by prosecutors. Eliminating any questioning of the DOJ's forensic science and evidence allows them to obtain more convictions. The fact that the underlying evidence may be flawed doesn't appear to matter. The National District Attorneys Association is completely behind a closed shop operation -- one that allows the DOJ to start with conclusions and mold the "science" to fit its predetermined ends.

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This is a 10-minute timelapse (plus some individual closeups of certain sections) of a 1-million pixel collaborative digital painting constructed by users of subReddit /place. Over the course of 72 hours all users were allowed to alter the pixels, but only one pixel per user per five minutes. I watched the whole thing live, and I've got to admit, I've never been glued to the edge of my seat so hard for 72 hours. I mean, besides those other 72 hours. "You mean the 72 hours you were actually glued to a toilet seat." The doctor was afraid I was going to lose my balls. Keep going for the video. Thanks to Kika, who agrees the best art projects are the ones undertaken with friends, like those painting-and-wine-nights where everybody paints their own crappy sunrise.

Canadian law enforcement brought down a massive criminal conspiracy. Now, thanks to information it doesn't want to release to the court, most of what was brought down will be re-erected by the suspects it's cutting loose. (h/t Techdirt reader Pickle Monger)

Thirty five people accused of serious crimes like kidnapping and drug trafficking saw the cases brought against them in a major RCMP investigation into the Montreal Mafia dropped on Tuesday because the Crown no longer wants to prosecute them.

The Crown’s sudden change of stance in an investigation dubbed Project Clemenza meant there are only 11 accused left with cases pending following three series of arrests made between 2014 and May last year. Federal prosecutor Sabrina Delli Fraine informed Quebec Court Judge Lori Renée Weitzman of the Crown’s position during a hearing at the Montreal courthouse.

One of the defendants released is believed to be one of the leaders of the Montreal Mafia (which sounds like a Chicago mob farm team). The suspects were snared through the interception of communications, many of which appeared to originate on BlackBerry phones. As was covered here a year ago, the RCMP used a built-in BlackBerry "feature" to intercept and decrypt over "one million messages" during its investigation of a Mafia killing.

Here's the key part of the interception effort:

The RCMP maintains a server in Ottawa that "simulates a mobile device that receives a message intended for [the rightful recipient]." In an affidavit, RCMP sergeant Patrick Boismenu states that the server "performs the decryption of the message using the appropriate decryption key." The RCMP calls this the "BlackBerry interception and processing system."

This is part of the reason these Mafia defendants are seeing their charges dropped. The RCMP does not want to publicly discuss its BlackBerry interception methods. The other reason has to do with how the RCMP tracked down the phone numbers it wanted to intercept.

The RCMP used a mobile device identifier and Stober ordered that the Crown disclose information like the device’s signal strength and its potential impact on a BlackBerrys ability to make or receive phone calls while text messages are being intercepted from it.

This would likely be RCMP Stingray devices. Just like here in the US, Canadian law enforcement would rather see perps walk out of courtrooms than turn over information on interception efforts to defendants.

This is the largest of the RCMP's catch-and-release efforts, but it isn't the first. The National Post points out a similar dumping of defendants occurred last year for the same reason.

The Crown apparently does not want to disclose the investigative techniques used with the device. Last year, it did an about face in a murder trial and six men who were about to go on trial for the first-degree murder of Mafioso Salvatore Montagna were able to plead guilty to the lesser charge of conspiracy to commit murder.

At least in that case, law enforcement still ended up with a few convictions -- albeit on charges lower than what it had hoped to obtain going in.

Cell tower spoofers are resulting in a lot of contradictory law enforcement behavior. Cops say they don't want to turn over info on Stingrays to public records requesters for "public safety" reasons, claiming it could compromise methods and techniques and allow criminals to stay out of their reach. They make the same claims in court when refusing to turn over information to defendants, which results in freshly-caught criminals being put back on the streets -- something that certainly doesn't make the public any safer.

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In the wake of yesterday's unfortunate Congressional vote to kill broadband privacy protections (which had only just been put in place a few months ago, and hadn't yet taken effect) we've been seeing a lot of... bad ideas. People are rightfully angry and upset about this. The privacy protections were fairly simple, and would have been helpful in stopping truly egregious behavior by some dominant ISPs who have few competitors, and thus little reason to treat people right. But misleading and misinforming people isn't helpful either.

The story that's getting the most attention and seems to be going viral (or at least on the verge) is this GoFundMe campaign set up by Misha Collins to buy and release Congress's internet data:

Congress recently voted to strip Americans of their privacy rights by voting for SJR34, a resolution that allows Internet Service Providers to collect, and sell your sensitive data without your consent or knowledge. Since Congress has made our privacy a commodity, let’s band together to buy THEIR privacy.

This GoFundMe will pay to purchase the data of every Congressperson who voted for SJR34 and to make it publicly available.

PS: No, we won't "doxx" people. We will not share information that will impact the safety & security of their families (such as personal addresses). However, all other details are fair game. It says so right in the resolution that they voted to approve.

Game on, Congress.

As I type this, the campaign is rapidly approaching $30,000 raised (though it claims it has a $500 million goal). The campaign also promises that any leftover money will go to the ACLU — and I love the ACLU, but I'd argue that other organizations were much more involved in this particular fight than they were, so that's an odd choice). Update: Turns out this isn't the only such campaign. There's another one here that has raised even more and doesn't say what it will do with the money if it can't buy the data.

But here's the real problem: you can't buy Congress' internet data. You can't buy my internet data. You can't buy your internet data. That's not how this works. It's a common misconception. We even saw this in Congress four years ago, where Rep. Louis Gohmert went on a smug but totally ignorant rant, asking why Google won't sell the government all the data it has on people. As we explained at the time, that's not how it works*. Advertisers aren't buying your browsing data, and ISPs and other internet companies aren't selling your data in a neat little package. It doesn't help anyone to blatantly misrepresent what's going on.

When ISPs or online services have your data and "sell" it, it doesn't mean that you can go to, say, AT&T and offer to buy "all of Louis Gohmert's browsing history." Instead, what happens is that these companies collect that data for themselves and then sell targeting. That is, when Gohmert goes to visit his favorite publication, that website will cast out to various marketplaces for bids on what ads to show. Thanks to information tracking, it may throw up some demographic and interest data to the marketplace. So, it may say that it has a page being viewed by a male from Texas, who was recently visiting webpages about boardgames and cow farming (to randomly choose some items). Then, from that marketplace, some advertisers' computerized algorithms will more or less say "well, I'm selling boardgames about cows in Texas, and therefore, this person's attention is worth 1/10th of a penny more to me than some other company that's selling boardgames about moose." And then the webpage will display the ad about cow boardgames. All this happens in a split second, before the page has fully loaded.

At no point does the ad exchange or any of the advertisers know that this is "Louis Gohmert, Congressional Rep." Nor do they get any other info. They just know that if they are willing to spend the required amount to get the ad shown via the marketplace bidding mechanism, it will show up in front of someone who is somewhat more likely to be interested in the content.

That's it.

* Amusingly, Rep. Gohmert voted to repeal the privacy protections, which makes no sense if he actually believed what he was saying in that hearing a few years ago...

Now, what is true is that it's still a bad thing to have companies holding this much data about our private internet usage. And there are real privacy risks of data leaking, and potentially then being tied back to individuals, because it's basically impossible to anonymize that kind of data entirely. But no one is out there "selling your browsing history" in a way that someone else can go buy it.

I know that some people don't care about this distinction, and even some people I know and trust are cheering on this crowdfunding campaign, at the very least to try to make a point about how Congress is voting against their own privacy in favor of some of their largest campaign donors. And that point is not wrong. But if we continue to push this myth that companies are selling direct dossiers on each individual surfer, people will start believing other wrong and misleading stuff, and that makes it more difficult to tackle the actual problems here.

And that's not the only kind of myth we've seen. We've already talked about people now falsely believing that VPNs are a solution here (they are not, and at best might solve some small problems while creating others). But then you have MSNBC, with a TV news correspondent (who you'd think would know better) tweeting out complete nonsense, telling people to "delete" their browsing history hourly:

That's just... embarrassingly uninformed, to the same level as the people insisting you can walk up to Comcast or AT&T and buy Louis Gohmert's browsing history (or, for that matter, Louis Gohmert's belief that the government can just buy advertising data to find terrorists).

We don't solve problems by misrepresenting what the real scenario is. It's true that ISPs have way too much power over these markets, and they can see and collect a ton of information on you which can absolutely be misused in privacy-damaging ways. But let's at least be honest about how it's happening and what it means. That's the only way we're going to see real solutions to these issues.

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Judge William Alsup certainly continues to make himself known for how he handles technology-intensive cases. In techie circles, he's mostly known for presiding over the Oracle/Google Java API copyright case, and the fact that he claimed to have learned to program in Java to better understand the issues in the case (in which he originally ruled, correctly, that APIs were not subject to copyright protection, only to be overturned by an appeals court that simply couldn't understand the difference between an API and functional code). He's also been on key cases around the no fly list and is handling some Malibu Media copyright trolling cases as well.

And, last month, he was handed another big high-profile case regarding copying and Google: the big self-driving car dispute between Google's (or "Alphabet's") Waymo self-driving car company and Uber. In case you weren't following it, Waymo accused a former top employee of downloading a bunch of technical information on the LiDAR system it designed, only to then start his own self-driving car company, Otto, which was then bought up by Uber in a matter of months. Most of the lawsuit is focused on trade secrets, with a few patent claims thrown in as well.

Either way, Judge Alsup appears to want to be educated on LiDAR before the case begins. In two orders last week, Judge Alsup first asked lawyers for each side to present a basic tutorial on the basics of self-driving car technology:

For a tutorial for the judge, counsel shall please make presentations to set forth the basic technology in the public domain and prior art bearing on the trade secrets and patents at issue on the motion for provisional relief. Please do not refer to the actual systems or subsystems used by either party. (Those will be presumably covered in the motion papers.) For the tutorial, please refer only to what is in the public domain or prior art, regardless of whether or not one side or the other actually practices it. That is, in the tutorial, please do not say what the parties actually practice but if the item is in the public domain, you may reference the public domain part, even if one side or the other practices it. Make sure that all points in the tutorial reside in books, treatises, articles, public interviews, public videos, blogs, websites, seminars, presentations, Form 10-Ks, or other publicly verifiable sources. Please exchange approximate scripts beforehand so that each side may vet the other. Each side will have forty minutes on APRIL 12 AT 10:00 A.M. The public may attend the entire presentation. The judge is interested in learning the basic technology and learning publicly known art.

I'm kinda disappointed that I've got something else that I can't get out of that day so that I can't attend. Oh, and Judge Alsup also got some press attention for then asking that each side might want to send "young lawyers" for the tutorial:

This would be a good opportunity for a young lawyer to present in court.

Of course, Judge Alsup actually has a bit of a history of doing similar things. If I remember correctly, he made a similar suggestion in the Oracle/Google case as well, and people have noted he's done it before as well. The idea is that he wants to encourage firms to enable younger, less experienced lawyers to get more courtroom experience and find areas where you don't necessarily need the veteran partner, even in a high-profile clash among mutli-billion dollar behemoths.

Still, it was another request that came a few days later that has gotten more attention (first spotted by Julia Carrie Wong), in which Judge Alsup also asked each side to recommend a book for him to read about LiDAR. But not just any book. You see, Judge Alsup wants you to know that he's not a total noob when it comes to light and optics, so don't feel the need to send him "LiDAR for Dummies" or whatever:

The judge requests each side to name one (and only one) book, treatise, article or other reference publicly available that will inform him about LiDAR, and particularly its application to self-driving vehicles.

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

Now I'm just waiting to find out that Judge Alsup, tinkering alone in his garage (or, better yet, at the Courthouse), will build his own damn LiDAR system, just to better understand the technology at play.

I don't always agree with Judge Alsup on stuff (I don't always agree with anyone), but I respect his desire to go deep in trying to understand the core technologies when he's reviewing cases on those subjects. That's (unfortunately) quite different than many other judges. Hopefully more judges adopt Judge Alsup's practices on cases like these.

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We've been noting for a while how numerous states have been pushing so-called "right to repair" bills, which would make it easier for consumers to repair their own products and find replacement parts and tools. Not surprisingly, many tech companies have been working overtime to kill these bills. That includes Apple, which recently proclaimed that Nebraska's right to repair bill would turn the state into a nefarious playground for hackers. Opposition also includes Sony and Microsoft, which both tend to enjoy a repair monopoly on their respective video game consoles.

Whether coming from Apple, Sony, or Microsoft, opposition to these bills usually focuses on the three (false) ideas: the bills will make users less safe, somehow "compromise" intellectual property, and open the door to cybersecurity theft.

But it's easy to lose track of what started the recent groundswell of consumer support for these bills: the lowly tractor.

It was John Deere's decision to implement a draconian lockdown on "unauthorized repairs" that has magically turned countless ordinary citizens into technology policy activists. A lengthy EULA the company required customers to sign last October forbids the lion-share of repair or modification of tractors customers thought they owned, simultaneously banning these consumers from suing over "crop loss, lost profits, loss of goodwill, loss of use of equipment … arising from the performance or non-performance of any aspect of the software."

Needless to say, most of the company's customers weren't particularly impressed by the restrictions, which let companies monopolize repair, but hurt farmers' livelihoods by forcing them to visit only "authorized" repair shops that may be countless miles away from the farm. As a result, many of these folks have amusingly turned toward using unauthorized tractor firmware pirated and modified in Eastern Europe to free themselves of arbitrary, obnoxious and unnecessary restrictions on what they can do with gear they technically own:

"There's software out there a guy can get his hands on if he looks for it," one farmer and repair mechanic in Nebraska who uses cracked John Deere software told me. "I'm not a big business or anything, but let's say you've got a guy here who has a tractor and something goes wrong with it—the nearest dealership is 40 miles away, but you've got me or a diesel shop a mile away. The only way we can fix things is illegally, which is what's holding back free enterprise more than anything and hampers a farmer's ability to get stuff done, too."

As a result, tractor owners visit various forums to not only buy pirated and modified repair software, but the cables required to perform diagnostics and install updates. In 2015, we noted how the Library of Congress authorized some vehicle-focused exemptions allowing for this kind of legal tinkering, but saddled the exemptions will all manner of bizarre and unnecessary caveats. Right around that time, John Deere began requiring that farmers sign licensing agreements giving the company the right to sue for breach of contract (they haven't yet).

Of course, if you ask the company why a "black market" specifically tailored for annoyed farmers has blossomed, you're simply told there's nothing to see here, there are no repair issues, and the company makes it perfectly easy for farmers to diagnose issues and repair their vehicles. But actual farmers and folks fighting for right to repair legislation say that's simply not the case. For example, tractor owners who say they modify their tractors using anaerobic digesters to fuel them with pig methane, say they're technically violating John Deere's terms of service:

"They require buyers to accept an End User License Agreement that disallows all of the activities they say are allowed in their statement," (Gay Gordon-Byrne, executive director of Repair.org) said. "Deere is a monopolist and has systematically taken over the role of equipment owner, despite having been paid fairly and fully for equipment. Their claims to control equipment post-purchase are inconsistent with all aspects of ownership including accounting, taxation, and transfer of products into the secondary market."

These farmers also say they're worried that if a company like John Deere is sold, they could wind up stuck without the ability to modify or repair older hardware they likely made a significant investment in. As a result, these annoyed farmers are the cornerstone of the right to repair push currently winding its way through the Nebraska, New York, Minnesota, Wyoming, Tennessee, Kansas, Massachusetts, and Illinois state legislatures. And the companies fighting these bills simply refuse to publicly acknowledge they're doing so, which tells you everything you need to know about the "value" these restrictions actually provide.

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We've written a number of times about Carl Malamud and his organization Public.Resource.org, a nonprofit that focuses on making the world's laws more readily accessible to the people governed by those laws. You'd think that people would be excited about this, but instead, Carl just keeps getting sued. All the way back in 2013, the state of Georgia first threatened Carl for daring to publish online the "Official Code of Georgia Annotated." Two years later the state did, in fact, sue Carl for copyright infringement.

The case is, at least somewhat tricky and nuanced -- even if it shouldn't be. The key issue is the annotations and other additions to the official laws created by the legislature (the state of Georgia claims that "names of titles, chapter, articles, parts and subparts, history lines, editor notes, Code Commission notes, annotations, research references, cross-references, indexes and other such materials" are all covered by copyright). Obviously, it's crazy to think the underlying law itself is covered by copyright and unpublishable, but this has to focus on the annotations -- which are the various notes and links to relevant case law that add important context to the code itself. As people studying the law quickly learn, "the law" is not just the regulations written down by legislators, but also the relevant caselaw that interprets the laws and sets key standards and makes decisions that influence what the written code actually means. I don't think anyone disagrees that a private party who develops useful and creative works as annotations could potentially hold a copyright on the creative elements of that work (merely listing relevant cases, probably not, but a deeper explanation, sure...). And here, these annotations are developed by a private company: LexisNexis. The issue is the "official" part. Under contract with the state, LexisNexis creates the annotations, gets the copyright, and then assigns the copyright to the state of Georgia on those annotations, with Georgia releasing it as "the Official Code of Georgia Annotated."

It's also worth noting that every new bill in the Georgia legislature says that it's "an Act to amend the Official Code of Georgia Annotated" -- not to just amend the code. I just grabbed the first bill I could find, and this is what you see:

Also, as noted above, it's not just the "annotations" here -- but as the state claims, the "Code Commission" notes. That seems like fairly relevant information created by the government. Either way, the state of Georgia views the entire "Official Code of Georgia Annotated" as its one true source of law, and it's not available to the public. While the state has responded that (via LexisNexis) it does offer a website with the unannotated code, that website requires that you agree to LexisNexis' overly broad terms and conditions, which include all sorts of crazy demands, including insisting that if they ask you not to link to them, you have to stop linking. Also, even though this is Georgia's state laws, you agree that any dispute over the website will be in a New York jurisdiction. Oh, and the actual website with the law is basically unusable.

Malamud and his legal team argued that (1) due to the nature of this odd relationship, the work cannot be covered by copyright and (2) that, if it was covered by copyright, republishing this annotated code was fair use. Unfortunately Judge Richard Story, in the federal district court in Atlanta, has rejected both these arguments and found that the posting of the work was infringing.

On the question of whether or not this work could be covered by copyright, the court shows how legal annotations have long been considered copyright-eligible. In response to the argument that this is different, since it's the government itself now claiming these annotations as "official," the judge... just doesn't buy it:

Here, Defendant argues that these annotations to the O.C.G.A. are not copyrightable, but the Court disagrees. The Court acknowledges that this is an unusual case because most official codes are not annotated and most annotated codes are not official. The annotations here are nonetheless entitled to copyright protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in which the Court found annotations in a legal reporter were copyrightable by the publisher, is instructive. Defendant itself has admitted that annotations in an unofficial reporter would be copyrightable, and the Court finds that the Agreement does not transform copyrightable material into non-copyrightable material.

The court further notes that the State of Georgia, while still publishing this as the "official" code, has bent over backwards over the years to remind everyone that the annotations themselves do not carry the force of law. This is probably the right legal conclusion as copyright law currently stands, even if it's an unfortunate legal conclusion. What it means is that, in Georgia, professional practitioners, with access to the expensive official annotated code, are the only ones able to truly understand the law -- and the average everyday Georgian cannot. From a public policy perspective, that just seems like a bad idea.

The fair use argument is a bit more interesting, and seems more viable to me, but the judge doesn't seem to think so. As always, the court runs through the four factors test for fair use, and weighs them... saying that they tip towards the state, rather than Malamud (and the public). For test one, on the nature of the work and whether or not the use is transformative, the court says there's no transformative use here at all, since it's just reposting the work as is.

Defendant does not transform the annotations. It does not add, edit, modify, comment on, criticize, or create any analysis or notes of its own. Defendant's justification in support of its verbatim copying and free distribution without authorization is that it purports to provide wider distribution of the annotations. Courts have routinely rejected arguments that this is transformative use

The fact that Public.Resource.org is a nonprofit and doing this for the benefit of the public still doesn't tilt the scales. In fact, in a rather troubling part of the ruling, Judge Story actually claims that because Carl "profits" from attention, he shouldn't even be considered a nonprofit.

In this case. Defendant's business involves copying and providing what it deems to be "primary legal materials" on the Internet. Defendant is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials. Defendant has also published documents that teach others how to take similar actions with respect to government documents. Therefore, the Court finds that Defendant "profits" by the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor educational.

That's... insane. I mean, just about any nonprofit doing anything gets "recognition" for the work they do, and most nonprofits survive on grants and contributions. It seems quite troubling to argue that just because a nonprofit gets attention for doing the work it set up to do, that you can ignore that the use of a work was for nonprofit purposes.

The second factor is the nature of the work. Without much analysis, the judge calls this one even, saying that it's "at best, neutral, as between these parties." This was a surprise to me. At the very least, I figured this factor would fall towards Malamud, as it's pretty easy to point out that "the nature" of the work is the official laws of the state of Georgia and the officially "blessed-by-the-state" annotation for what those laws mean. It seems like that should definitely push the ledger to the "fair use" side. But, for unclear and unexplained reasons, the judge says this one is even.

The third factor was almost certainly going to go against Carl: it's for the "amount and substantiality" of the work. While we've covered multiple important fair use cases where it was determined that even using the entire work can be fair use, in this case, that was going to be a hard argument, and the judge gives this one easily to the state of Georgia: "In this case. Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner." I'm not sure why the "bulk industrial electronic scanner" needs to be called out here, as that's really kind of unrelated to the fair use question, but the judge went with it.

Finally, there's the fourth factor, about the impact on "the market." And, again, this one goes to Georgia:

Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted. A judicial decree that Defendant's wholesale copying of the copyrighted annotations constitutes a fair use would hinder the economic viability of creating and maintaining the O.C.G.A. because people would be less likely to pay for annotations when they are available for free online.

The judge goes on to note that poor, poor LexisNexis won't have any economic incentives at all if this sorta thing keeps up. Of course, LexisNexis is part of the RELX Group conglomerate that "only" brought it somewhere around $8.5 billion dollars in revenue last year. How will they ever survive if the one-man shop of Carl Malamud puts the official annotated code of Georgia online? And, of course, this also ignores the fact that the State of Georgia doesn't need to set up a relationship with LexisNexis whereby LexisNexis gets paid based on sales of the code. It could, just as easily, pay LexisNexis for the annotations and then make them freely available to help its own citizens. But, nope, the judge is quite worried about the profits of this mega-conglomerate, which might be hurt by this one man nonprofit who dares to profit from "attention."

Even if you agree that this is an accurate fair use determination, the whole situation seems unfortunate. Georgia suing someone for helping to make its own laws more accessible just feels pretty damn sleazy and against what a government should be doing for its citizens. Either way, in this round, Malamud, Public.Resource.org and the citizens of Georgia have lost big time, while the state of Georgia (and LexisNexis) have won. Over the weekend, Malamud told me that he will be filing a notice of appeal shortly.

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As you may recall, there was a giant fuss last year, when an Australian guy named Craig Wright not only claimed that he was "Satoshi Nakamoto" -- the pseudonymous creator of Bitcoin -- but had convined key Bitcoin developer Gavin Andresen that he was Nakomoto. That was a big deal because Andresen was one of the first developers on Bitcoin and regularly corresponded with Nakamoto (Andresen's own name sometimes popped up in rumors about who Nakamoto might be). Even with Andresen being convinced, plenty of others soon picked apart the claims and found the claims severely lacking in proof.

Then, last summer, Andrew O'Hagan published an absolutely massive profile of Wright that only served to raise a lot more questions about Wright, his businesses, his claims to having created Bitcoin, and a variety of other things. However, as we noted at the time, buried in that massive article was a bizarre tidbit about how Wright was actively trying to patent a ton of Bitcoin related ideas. As we noted, the article stated that Wright's plan was to patent tons of Bitcoin stuff, reveal himself as Nakamoto and then sell his patents for a billion dollars.

Of course, part of that plan fizzled because basically no one believes Wright was Nakamoto. But, apparently the patenting has continued. Earlier this months, Reuters released a big "investigation" showing that Wright is rushing to get as many Bitcoin-related patents as possible, and has partnered with an online gambling mogul who's a fugitive because of his business dealings (add this to the long list of sketchy connections between Wright and other businesses):

Craig Wright, the Australian computer scientist who made the Satoshi claim, has the backing of Calvin Ayre, a wealthy Canadian entrepreneur, according to people close to Wright and documents reviewed by Reuters. Ayre has been indicted in the United States on charges of running online gambling operations that are illegal in many U.S. states – an accusation he rejects.

Wright’s expertise combined with Ayre’s support make a potentially formidable force in shaping the future of bitcoin and blockchain, the ledger technology that underlies digital currencies. Wright and his associates have lodged more than 70 patent applications in Britain and have plans to file many more, according to documents and emails reviewed by Reuters and sources with knowledge of Wright’s business. The patents range from the storage of medical documents to WiFi security, and reflect Wright's deep knowledge of how bitcoin and blockchain work.

Their total compares with 63 blockchain-related patents filed globally last year and 27 so far this year by multinationals from credit card companies to chipmakers, according to Thomson Innovation.

And, because it's patents we're talking about, there's a shell company here, because shell companies are quite popular in the patent trolling world. But Reuters claims that Ayre and Wright are behind this particular shell company and point to lots of close connections between the two. The report further notes that there are plans to file 150 patent applications, and maybe up to 400, and again repeats the claim from last year about the "ONE BILLLLLLLLLION DOLLARS!" sales plan:

The range of patent applications lodged by Wright and colleagues is wide. Five, registered on Dec. 14, were made by EITC Holdings with the bland description “computer-implemented method and system,” public filings show. One, registered on Dec. 28, was described as “Determining a common secret for two blockchain nodes for the secure exchange of information” - apparently a way to use the blockchain to exchange encrypted data. Other applications by Wright and his associates relate to sports betting and a blockchain-based operating system for simple electronic devices.

Emails from Wright to Ayre’s associate Matthews, reviewed by Reuters, set out plans to file 150 patents. A person with direct knowledge of Wright’s businesses said he and associates ultimately aim to file closer to 400. None has been approved so far and it’s not clear whether the patents would be enforceable if granted, but Wright’s associates have been quoted as saying the patents could be sold “for upwards of a billion dollars.”

The Reuters article argues that this "rush to patent applications poses a threat to the original conception of bitcoin as a technology available to all." Of course, that also seems like a pretty big strike against the idea that Wright is Nakamoto.

But it also seems like a misunderstanding about patents themselves. First off, just because you file for a ton of patents, it doesn't mean you're going to get them. And, thankfully, lately the USPTO has actually gotten much, much better at rejecting really bad patents. These things may be worth talking about if he's actually granted these patents -- and, even then, it may only really matter if he (or any later holder of the patents) seeks to enforce them. The really crazy thing, though, is that this once again demonstrates the sheer silliness of our patent system. Rather than actually trying to build a viable business by leveraging the useful features of Bitcoin/blockchain, you have someone trying to lock it up by putting tollbooths wherever possible. Tons of work is being done to advance Bitcoin and blockchain these days, because of all the opportunities it will create... not because of patents. And, once again, it shows the folly of believing that patents are a key incentive for innovation. That's rarely the case. Often, they're a key incentive for putting hurdles in the way of actual innovations, so that you can shake the actual innovators down for cash.

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More than 100 phones taken from arrested Inauguration Day protesters have had their data exfiltrated, apparently in hopes of pinpointing perpetrators of damage and additional (but unarrested) suspects. As Buzzfeed reports, the unusual investigative step doesn't appear to have been hampered by device encryption.

Prosecutors are extracting data from more than 100 locked cell phones seized during arrests in downtown Washington, DC, on President Trump’s Inauguration Day, according to court papers prosecutors filed on Wednesday.

Prosecutors said they had search warrants to pull data from the phones, which were taken from individuals arrested on Inauguration Day, including some who were not indicted. All of the phones were locked, according to the government, “which requires more time-sensitive efforts to try to obtain the data.” But the filing appeared to indicate that they were successful in accessing information on the phones.

Presumably, prosecutors are looking for communications and photos that will nail down charges against protesters who directly caused $100,000 worth of damage. (Or maybe they're just looking for paystubs?) Another clue can be found in the Motion for Protective Order [PDF] filed by the US prosecutor before turning over the data to defendants' lawyers.

The police were able to arrest approximately 230 of the rioters that day; all of them were charged with violating DC. Code 22-1322 (Rioting or inciting to riot). However, many other rioters evaded arrest by forcibly charging police officers and fleeing.

It looks like the government prosecutor isn't satisfied with the 214 indictments it already has. Cell phones of "unindicted arrestees" have also been searched. Unusually, the data collected isn't being separated. Instead, defense attorneys will have all the access prosecutors have: a full dump of everything and the responsibility to sort out what is or isn't relevant to their case.

According to the filings on Wednesday, the government plans to produce the information it collects from the seized phones to the defendants by way of an electronic database that would be made available to defense counsel. The extracted data includes irrelevant personal information, prosecutors said, so they’re seeking an order from the court that would prohibit defense lawyers from copying or sharing information unless it’s relevant to defend their client.

The cell phone searches sound sketchy, especially when law enforcement has apparently acquired 100 cell phone-sized warrants or, worse, one warrant to search them all. The cell phones searches aren't the government's only bulk operation. Prosecutors are also hoping to prosecute in bulk, dividing the 200+ indictees into four categories for faster processing. One of the defense lawyers involved is fighting this move, pointing out the Constitution takes precedence over the government's convenience.

Christopher Mutimer, a defense lawyer representing one of the defendants, told BuzzFeed News by email on Wednesday that he would oppose efforts by the government to hold joint trials.

“These cases should be tried individually in a manner that protects each individual defendant’s constitutional rights,” Mutimer said. “Not in groupings that make the trials most convenient for the government. Grouping individuals for trial creates a danger of wrongful convictions based on guilt by association.”

Other constitutional inconveniences will have to wait as well. The presiding judge hasn't granted the data dump court order yet but has told arrestees any unconstitutional searches will have to be sorted out during their trials, not prior to prosecution. Expect statements of expertise from law enforcement officers where the word "drug dealer" has been replaced with "protester" to explain the likelihood of finding evidence of drug dealing felony rioting on more than 100 seized and searched cell phones.

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Is it possible to arrest an unarmed homeless person without destroying the residence he's hiding in? To the Fresno County Sheriff's Department and Clovis PD (and far too many other law enforcement agencies), the question remains rhetorical.

David Jessen's farmhouse felt the full, combined force of two law enforcement agencies and all their toys last June. According to his lawsuit [PDF], a homeless man was rousted from a nearby vacant house after he was discovered sleeping in the closet. He left peacefully but was soon spotted by the construction crew breaking into Jessen's house. The construction worker, god bless him, called the police because he thought they could help.

Jessen was notified shortly thereafter. He returned home to find four sheriff's office cars parked at his residence (one of them "on the lawn," because of course it was) and a deputy yelling at his house through a bullhorn. According to the deputies, the homeless man refused to come out and threatened to shoot anyone who came in. Jessen was asked if he had any guns in the house. He replied he did, but two were unloaded and had no ammo and the third was hidden so well "only he could find it."

Jessen was asked to move his pickup truck and leave the area for his own safety. The deputies also asked for a house key and for the garage to be opened before he left. Jessen and his family went to a friend's house about a quarter-mile away. Several hours later, he was told he could return home. This is what Jessen returned to:

As David was driving toward the home from Jensen David counted approximately fifty-five (55) or more law enforcement vehicles. David was then ordered to park along Rolinda Avenue north of his home and instructed to walk to his home. On his way to his home David was stopped by a SWAT person who told him the “operation” was concluded, A second Fresno County Deputy Sheriff, that Jessen’s are informed and believe and upon information and belief allege was a Lieutenant, handed David a card and said “we have insurance for this.”

We'll pause there for a moment and consider the effect this must have on recipients. This is basically a message telling them their stuff has been damaged/destroyed. Not that the law enforcement agency cares. It might end up with higher premiums, but each officer involved still has an undamaged residence to go home to, unlike "civilians" like Jessen, whose houses happen to be at the wrong place at the wrong time. Insurance in the hands of officers like these is a permission slip, rather than a liability buffer.

Continuing on…

A third Fresno County Deputy Sheriff showed David the damage and David was overwhelmed by the severity and extent of the damage to the residence. The damage to the Jessens’ residence was massive and extensive. The magnitude of the damage to the Jessen’s’ home was unreasonable and unjustified, needlessly implemented to capture a singular, surrounded, unarmed, hungry, homeless person who posed no danger to anyone, and cooperated in leaving the neighbors residence earlier.

Here's the full list of what local law enforcement deployed to handle a single, resistant homeless person:

a. Utilized over 50 vehicles;
b. A K-9 unit,
c. Two helicopters;
d. Two Ambulances;
e. One Fire Truck;
f. A Crisis Negotiation Team arriving in a large motor home, that Plaintiffs are informed and believe included communications equipment and other support equipment;
g. A Robot;
h. SWAT Team; and
I. Back Up SWAT Team — Clovis City Police.

Now, the officers might have been concerned the homeless person had armed himself with one of Jessen's weapons, despite his assurances they were well-hidden/unloaded. Even so, they had plenty of options available that didn't include doing all the things they did instead.

a. Ripped out the wrought iron door and interior door to the Jessen’s home office;
b. Pulled the wall of the office off the foundation;
c. Broke the window to the office;
d. Teargassed the bathroom near the office;
e. Shattered the sliding glass door to the home for “robot” entry;
f. Ripped the wrought iron door off the laundry room;
g. Teargassed the laundry room;
h. Flash bombed the laundry room and the business office that resulted in breaking six (6) windows;
i. Teargassed the kitchen;
j. Teargassed the master bathroom;
k. Teargassed the sewing room;
l. Teargassed the bedroom in the northeast corner of the home; and
m. Destroyed over 90 feet of exterior fencing with a SWAT vehicle.

For reasons only known to the Sheriff's Department, a deputy continued to search for hidden handgun on Jessen's effed-up residence. He was only able to "recover" after receiving specific directions over the phone from Jessen to locate it. All guns were immediately returned to Jessen, making this last search -- which occurred nearly two hours after Jessen was given an insurance card and a broken home -- especially pointless.

In total, the interloping homeless person cost Jessen one window, an ice cream bar, some milk, and half a tomato. According to the lawsuit's allegations, the two law enforcement agencies rang up more than $150,000 in damaged property. Jessen alleges a long list of constitutional violations but also something a bit more whoa if true:

All of this military-like activity was implemented and completed without Jessen's request, approval, or consent. Jessens are informed and believe the training operation was undertaken because the Fresno County Sheriff’s Department and/or Clovis Police Department had found, by accident, the perfect location to conduct a training exercise on a rural home, on a dead-end street, in rural Fresno County, where “civilians” were not present, “civilians” were not going to congregate, “civilians” were not going to observe or interfere with the military training assault on the Jessen’s home and the situation posed no risk of injury to the officers. The Fresno County Sheriff‘s Department and Clovis Police Department seized upon this fortuitous opportunity to engage in a real-life training exercise.

Unless something amazing comes out of discovery during litigation, this claim is unlikely to survive. And chances are it won't survive an initial reading. Jessen is probably safer staying the Constitutional lane. But there is a hint of truth to the allegation, even if there was no provable intent to use Jessen's house as a SWAT team training ground. Law enforcement agencies spend a lot of money on tools and tactics which are rarely deployed. Recognizing a chance to take all the toys out for a spin isn't necessarily a conspiracy… it's just what happens when you have more power than restraint. That's what turns a "standoff' in which the suspect is armed with half an ice cream bar into a mostly-unusable house.

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Despite a last-ditch effort by the EFF and other consumer and privacy groups, Congress today voted to dismantle privacy protections for broadband subscribers in a 50-48 vote. The rules, passed last October by the FCC, simply required that ISPs clearly disclose what subscriber data is being collected and sold by ISPs. It also required that ISPs provide working opt out tools, and required that consumers had to opt in (the dirtiest phrase imaginable to the ad industry) to the collection of more sensitive data like financial info or browsing histories.

Another part of the rules, which simply required that ISPs were transparent about hacking intrusions and data theft, had already been killed off quietly by new FCC boss Ajit Pai.

The rules were seen as important in the face of greater consolidation in an already uncompetitive broadband market, where said lack of competition eliminates any organic market punishment for bad behavior on the privacy front (unlike the content or other industries). Now, with neither broadband competition -- nor meaningful regulatory oversight -- privacy advocates are justifiably worried about the repercussions to come.

The rules were killed by using the Congressional Review Act, which allows Congress to dismantle recently approved regulations with a simple majority vote. While the rules really were relatively straightforward, telecom lobbyists spent months deriding the rules as "onerous regulations" that would be "too confusing" for consumers, potentially stifling sector "innovation." Industry lobbyists also consistently pushed "studies" proclaiming that ISPs really don't collect much consumer data, in stark contrast to, you know, the truth.

One of the proposals sponsors, Arizona Senator Jeff Flake, went so far in a speech Wednesday night to suggest that the rules somehow "restricted constitutional rights" (of giant ISPs like Comcast, apparently):

"In a speech on the Senate floor Wednesday night, Sen. Jeff Flake (R-Ariz.), who introduced the bill, said the FCC regulations were an example of a “bureaucratic power grab.” "Passing this CRA will send a powerful message that federal agencies can’t unilaterally restrict constitutional rights and expect to get away with it,” Flake said."

ISP lobbyists had spent countless hours trying to convince lawmakers that FCC oversight of privacy was unnecessary, and that the FTC alone was well-equipped to handle consumer privacy complaints in the broadband sector. But in a recent interview, former FCC boss Tom Wheeler made it abundantly clear that this was largely bullshit -- and the goal is to shovel off privacy oversight to an FTC without rule making abilities, already overloaded by other enforcement obligations:

"It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices."

In other words, the goal is quite simply to gut oversight of one of the least competitive (and most anti-competitive) sectors in American industry. First by hamstringing the FCC's oversight of the sector, then by inevitably pushing bills that hinder the FTC's oversight as well. All told, today's vote is one of the more embarrassing examples of our broken, cash-compromised legislative process in recent memory.

Update: Here's the roll call breakdown of who voted for or against the measure, in case you're the type that actually likes accountability.

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This is the $20 Zelda Hydration Cartridge available from ThinkGeek. It's a flask in the form factor of the original gold Legend Of Zelda NES cartridge (same idea as these but with official licensing). Plus it comes with a straw. Not a krazy straw though, just a straight red one. I would have preferred a krazy straw. Not that it would affect my purchase decision, because I already have a flask. "That's a tequila bottle." I cut out the middle man. Keep going for two more shots. Thanks to Ty, who wants a flask that looks like a CapriSun pouch or Juicy Juice Box.

This is a video introduction to Miso Robotics' Flippy, a burger-flipping robot that can identify burger patties and other ingredients on a grill (ie chicken, buns, burgers with cheese on top) and flip and cook them all accordingly. International burger chain CaliBurger plans to roll Flippys out in all their restaurants over the next few years. I do not. GW's Burger Shack will continue doing things the way we always have: by human hand, and with a low C health inspection rating. "Did you just drop that patty on the floor?" Ten second rule. "Isn't it the five second rule?" It's ten when it's somebody else's food. Keep going for a video of Flippy doing his thing (taking our jobs). Thanks to Jerm, who prefers his burgers flipped by a human who can toss them over their shoulder and catch them on a plate behind their back. Showmanship!

The Third Circuit Court of Appeals has ruled that passwords can be compelled with All Writs Orders. Handing down a decision in the case of Francis Rawls, a former Philadelphia police officer facing child porn charges, the court finds the order lawful, but doesn't go quite as far as to determine whether compelling password production implicates the Fifth Amendment.

The Third Circuit doesn't touch the Fifth Amendment implications because Rawls failed to preserve them.

Even if we could assess the Fifth Amendment decision of the Magistrate Judge, our review would be limited to plain error. See United States v. Schwartz, 446 F.2d 571, 576 (3d Cir. 1971) (applying plain error review to unpreserved claim of violation of privilege against self-incrimination). Doe’s arguments fail under this deferential standard of review.

Orin Kerr highlights a footnote from the order [PDF], which shows even if the court had addressed the Fifth Amendment implications, it likely would have sided with government based on its interpretation of the government's "foregone conclusion" argument.

It is important to note that we are not concluding that the Government’s knowledge of the content of the devices is necessarily the correct focus of the “foregone conclusion” inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is “I, John Doe, know the password for these devices.” Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion.

However, because our review is limited to plain error, and no plain error was committed by the District Court in finding that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Doe’s knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine.

This interpretation limits what the government has to assert to avail itself of this argument -- one that's sure to become more common as default encryption comes to more devices and communications services. As applied here, the government only has to show the defendant knows the password. It doesn't have to make assertions about what it believes will be found once the device/account is unlocked. (That being said, the DHS performed a forensic scan of the one device it could access -- the MacBook Pro -- and found data and photos suggesting the locked external drives contained more child pornography.)

The court also addresses the All Writs Act being used to compel password production in service to a search warrant that still can't be fully executed.

Doe asserts that New York Telephone should not apply because the All Writs Act order in that case compelled a third party to assist in the execution of that warrant, and not the target of the government investigation. The Supreme Court explained, however, that the Act extends to anyone “in a position to frustrate the implementation of a court order or the proper administration of justice” as long as there are “appropriate circumstances” for doing so. Id. at 174. Here, as in New York Telephone: (1) Doe is not “far removed from the underlying controversy;” (2) “compliance with [the Decryption Order] require[s] minimal effort;” and (3) “without [Doe’s] assistance there is no conceivable way in which the [search warrant] authorized by the District Court could [be] successfully accomplished.” Id. at 174-175. Accordingly, the Magistrate Judge did not plainly err in issuing the Decryption Order.

This shows just how malleable the New York Telephone decision is. This 1977 Supreme Court decision paved the way for widespread pen register use. Since that point, it has been used by the DOJ to argue for the lawfulness of encryption-defeating All Writs Orders (as in the San Bernardino iPhone case), as well as by criminal defendants arguing these same orders are unlawful.

In Apple's case, the government argued the company was not "far removed" from the controversy, despite it being only the manufacturer of the phone. Apple's distance as a manufacturer provided its own argument against the DOJ's application of this Supreme Court decision.

In this case, the key words are "third party": Rawls is arguing this isn't nearly the same thing as forcing a phone company to comply with pen register orders. This is a "first party" situation where compliance may mean producing evidence against yourself for use in a criminal trial. The government likes the New York Telephone decision for its Fourth Amendment leeway. The defendant here is arguing this isn't even a Fourth Amendment issue.

As the court points out, it can't really assess the Fifth Amendment argument -- not when it hasn't been preserved for appeal. But even so, the court says law enforcement already has enough evidence to proceed with prosecution. If so, the only reason the government's pressing the issue -- which has resulted in Rawls being jailed indefinitely for contempt of court -- is that it wants a precedential ruling clearly establishing the lawfulness of compelling the production of passwords. The court doesn't quite reach that point, but the ruling here seems to suggest it will be easier (in this circuit at least) to throw people in jail for refusing to hand over passwords, since all the government is really being forced to establish is that it knows the defendant can unlock the targeted devices/accounts.

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Another "ag gag" law is in the works in Arkansas. These bills are brought under the pretense of safety -- both for the person supposedly breaking them, as well as for the employees of the entity "trespassed" upon. The unspoken aim of these laws is to prevent whistleblowing, and they often spring into existence after someone has exposed horrible practices at local businesses -- in most cases, the mistreatment of animals. The other consequence of most of these laws -- unintended or not -- is to deter employees from speaking up about questionable business practices, as there often is no exception carved out for employees of the companies protected by these laws.

Kaleigh Rogers of Vice reports another ag gag bill has passed the Arkansas state House and is on its way to a Senate vote. And once again, the bill's wording would deter whistleblowing and make journalistic efforts a civil violation.

Arkansas senators are considering a bill that would allow private businesses to sue whistleblowers that expose abuse or wrongdoing. The bill has already passed the house, but not without receiving plenty of dissent from Republican lawmakers, free speech proponents, and animal rights groups.

The law would make it legal for businesses to sue anybody who goes onto a business's private property and, among other acts, "records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer." This include undercover investigators, but also employees: unless an employee is just doing his or her job, any recordings or information that exposes wrongdoing could be grounds for a lawsuit.

In between all the wording [PDF] that would be expected in a normal trespassing law (unauthorized access, theft, damage to property) are clauses that make exposing wrongdoing grounds for a lawsuit. This section makes the law's deterrent to whistleblowing explicit.

Records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer.

That's combined with an earlier phrase that applies the law to employees, not just muckraking interlopers.

An act that exceeds a person's authority to enter a nonpublic area of commercial property includes an employee who knowingly enters a nonpublic area of commercial property for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and without authorization…

Excepted from the law are all sorts of government agencies, which are apparently welcome to damage places of employment at will. In addition to damages and fees assessed as the result of a civil action, the state has the option to hit violators (which includes anyone who "directs or assists" the whistleblower/journalist) with $5,000/per day in fines.

The representatives pushing this bill are pretending it's about safety.

Representative Aaron Pilkington (R), who voted in favor of the bill, said the language is intended to prevent people from trespassing and potentially putting themselves in danger.

"It's just about going into places you're not allowed to be in," Pilkington told me. "If you work in a daycare center and there are problems going on, you have every right to whistleblow on that. But if you hear there's a daycare three towns over where something's going on and you're sneaking in there with a video camera, that's not right."

That's a really weird -- and really dangerous -- assertion to make. Violations should be unseen and unheard, apparently… unless they happen to occur at your place of employment. And even then, the wording of the bill contradicts the protections Pilkington alludes to. The bill specifically forbids employees from entering areas not directly-related to their job description and making any sort of recording that "damages" their employer. Whistleblowing always results in some sort of "damage," even if that damage is purely reputational and can be repaired by swift corrective action.

The only reason to pass a bill like this (rather than use existing trespassing laws to punish unauthorized entry) is to deter reporting and whistleblowing. It serves no purpose otherwise. Supporters of the bill know this, though they'll never publicly acknowledge this fact. If it passes, it should expect an immediate constitutional challenge. The bill does too much damage to accountability and protected speech to survive a second read by the courts.

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As we've noted, the main reason the Sci-Hub site is so popular with academics is not because it is free -- researchers generally have free access to papers anyway -- but because it is so easy to use. Among other things, it provides a centralized store of a huge number of papers -- 58 million at the time of writing -- that can be downloaded with a single click. But an interesting post on the Green Tea and Velociraptors blog points out Sci-Hub's holdings are beaten by the total number of papers available on the ResearchGate site, which has 12 million members:

The platform boasts that 2.5 million published outputs are uploaded by its users every month, equivalent to around the total number of published scholarly research articles each year. The site claims to have around 100 million published articles, which is very impressive seeing as only around 20-25 million have ever been published Open Access [OA].

The same post points out that many of those 100 million articles seem to be unauthorized copies:

Based on a random sample of English language articles drawn from ResearchGate, the study [published last month] showed that 201 (51.3%) out of 392 non-OA articles infringed the copyright and were non-compliant with publishers' policy. While this sample size was small, there is no reason to think that the same cannot be said if we scale up to consider the entire corpus of articles shared on RG. This means that around half, or approximately 50 million, research papers on RG are most likely illegally hosted.

If that analysis is correct, it would seem that ResearchGate holds roughly as many unauthorized copies of academic papers as Sci-Hub. Despite that fact, ResearchGate has just revealed that back in November 2015, it received investments totalling $52.6 million from some rather starry names, including that famous hater of pirates, Bill Gates:

Wellcome Trust, Goldman Sachs Investment Partners, and Four Rivers Group with participation from Ashton Kutcher, Groupe Arnault, Xavier Niel, and existing investors Bill Gates, Tenaya Capital, Benchmark, and Founders Fund.

ResearchGate says it is the responsibility of the uploader to make sure that they have the necessary rights to post material to the site:

As we do not have any information about rights you may hold, or any license terms or other restrictions which might apply to such content, we necessarily rely on you to understand your rights and act accordingly. For this reason, we request that you fully investigate and confirm that you have sufficient rights to post particular content to ResearchGate before you post such content. As a general matter, if you are an author publishing in a journal, you may be allowed to publish certain versions of your article, but not others, and privately share certain content with others. However, many journals restrict publication of final versions and impose limitations on private sharing.

As that notes, authors are typically only allowed to post certain versions of their papers -- usually early ones. But most researchers don't bother with that detail, and simply upload the final version to ResearchGate, which is probably why the recent analysis mentioned by the Tea and Velociraptors blog found so many unauthorized copies. Along with laziness, or ignorance of the niceties here, another factor driving this phenomenon may be that academics are aware that much of their work has been paid for by the public, and therefore feel the definitive results should be disseminated as widely as possible.

Still, the contrast between ResearchGate, which has received major investments from some rather big names, and Sci-Hub, which is currently being pursued in the courts by Elsevier, is stark, given that their respective holdings turn out to be so similar. It's another indication that the academic publishing system is broken, and that copyright is an irrelevance as far as millions of researchers are concerned.

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

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A couple of years ago, the Freedom of the Press Foundation sued the DOJ over its refusal to release its secret rules governing spying on the nation's journalists. This was prompted by revelations the FBI had used National Security Letters to obtain information on AP and Fox News journalists. The DOJ then issued new rules on the do's and don'ts of surveilling journalists, but once again (a) redacted them into uselessness and (b) granted the FBI an NSL exception, undercutting the entire point of the recrafted rules.

The OIG report -- in which the Inspector General disputed the DOJ's extensive redactions -- still has yet to be released in a less-redacted form. Sadly, it now appears it will never be any less redacted than the unintelligible mess the DOJ handed over a few years ago. A federal judge has sided with the government, finding its investigative techniques and methods are too sensitive to be handed over to the public, much less journalists it may or may not have surveilled using NSLs. (h/t Trevor Timm, Mike Scarcella)

Underlying everything is the government's barely-contested assertion that these rules contain information of national security interest. It's a handy assertion because it means the DOJ doesn't even have to explain why the redactions it made are relevant to its national security claims. From the opinion [PDF]:

Recognizing the Court’s “limited institutional expertise on intelligence matters,” the Court accords substantial weight to Hardy’s representation that “any greater specificity in the descriptions and justifications . . . could reasonably be expected to jeopardize the national security of the United States.” Hardy Decl. ¶ 46. In the area of national security, “it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.”

This same argument appears later in the decision when dispensing of the plaintiff's challenge to yet another FOIA exception deployed by the FBI:

[T]he Court finds Defendant has met its burden and properly withheld documents under Exemption 7(E) for all five categories of documents. Defendant described with particularity that the withheld documents all contained non-public information about the FBI’s investigative techniques and procedures. These pages not only identified NSLs as an investigative technique, but also described information such as the circumstances under which the techniques should be used, how to analyze the information gathered through these techniques, and the current focus of the FBI’s investigations. As in Hamdan, the Court concludes that the declarations, which state that further detail would “reveal[] the very information it seeks to protect,” are sufficient to satisfy Defendant’s burden.

The court's also uninterested in double-checking the DOJ's secrecy assertions. As always, the court has the option to review contested documents behind closed doors (and away from plaintiffs) to see if the government's claims of national security/investigative concerns are valid. The court here declined to exercise this privilege.

The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn Index.

The FBI is still free to use NSLs to obtain information -- including call records -- about journalists. The DOJ may have reined in other options, but NSLs have always been the FBI's go-to form when it's stymied by the FISA court, magistrate judges, or internal guidelines. Nothing about that will change. As for what's actually changed at the DOJ as a result of this public outing of journalist surveillance, the public apparently can't be trusted with that information.

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The Constitution -- which has always been malleable when national security interests are in play -- simply no longer applies at our nation's borders. Despite the Supreme Court's finding that cell phone searches require warrants, the DHS and CBP have interpreted this to mean it doesn't apply to searches of devices entering/leaving the country.

For the past 15 years, the government has won 9/10 constitutional-violation edge cases if they occurred within 100 miles of our borders -- a no man's land colloquially referred to as the "Constitution-free zone." But the pace of device searches has increased exponentially over the last couple of years. The "border exception" is no longer viewed as an "exception" -- something to be deployed only when customs officers had strong suspicions about a person or their devices. Now, it's the rule, as NBC News reports.

Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016.

According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015.

Given the current state of immigration policy, this will get a whole lot worse before it gets better… if it ever does. Expanding government power is easy. Contracting it is almost impossible.

In practical terms, boots-on-the-ground travelers are being subjected to intrusive searches just because there's nothing effectual in the law to prevent it. Asserting your rights at the border is a non-starter. You simply don't have any. No one's going to be playing Twenty Quasi-Relevant Questions with travelers hoping to luck into consent. Officers and agents are seizing and searching devices by force.

A couple who had traveled to Canada twice in a period of three days were subjected to invasive device searches both time. The second time much more force was applied to ensure compliance.

Three days later, they returned from another trip to Canada and were stopped again by CBP.

"One of the officers calls out to me and says, 'Hey, give me your phone,'" recalled Shibly. "And I said, 'No, because I already went through this.'"

The officer asked a second time..

Within seconds, he was surrounded: one man held his legs, another squeezed his throat from behind. A third reached into his pocket, pulling out his phone. McCormick watched her boyfriend's face turn red as the officer's chokehold tightened.

Then they asked McCormick for her phone.

"I was not about to get tackled," she said. She handed it over.

The coercion doesn't have to be a chokehold. It can just be the fact that government agents stand between you and your home and aren't willing to let you get back to the part of the country where your rights still exist without you handing over PINs and passwords.

On February 9, Haisam Elsharkawi was stopped by security while trying to board his flight out of Los Angeles International Airport. He said that six Customs officers told him he was randomly selected. They demanded access to his phone and when he refused, Elsharkawi said they handcuffed him, locked him in the airport's lower level and asked questions including how he became a citizen. Elsharkawi thought he knew his rights and demanded access to legal counsel.

"They said if I need a lawyer, then I must be guilty of something," said Elsharkawi, and Egyptian-born Muslim and naturalized U.S. citizen. After four hours of questioning in detention, he unlocked his smartphone and, after a search, was eventually released. Elsharkawi said he intends to sue the Department of Homeland Security.

This is how certain government agents and agencies view constitutional rights: as luxuries only needed by people with something to hide. This mindset -- combined with Trump's "gloves off" approach to immigration enforcement -- helps explain the 5,000 device searches in the last 30 days. Device searches were always considered intrusive, despite the Constitution-free aspect of US borders. These were saved for criminal suspects and watchlisted travelers. Now, it's everyone.

The only good news to come out of this is a potential change in applicable laws. Sen. Ron Wyden is introducing a bill to create a warrant requirement for device searches at the border. Unfortunately, it's being introduced into an ecosystem now streamlined to reject affirmations of existing rights. If it somehow makes it to the President's desk without being amended into uselessness, there's almost zero chance Donald Trump won't veto it. Given the current makeup of Congress, it's unlikely there's enough support for a bill that might give "bad hombres" more rights to override a veto.

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How much do "Blue Lives" matter? More than non-Blue Lives, apparently, given the national legislative enthusiasm for generating stupid, easily-abused, redundant legislation.

Louisiana -- one of the few states where legislators have agreed to extend greater protections to an incredibly-protected group -- has already seen its newly-minted "Blue Lives Matter" law abused by law enforcement. It's been abused so badly that even law enforcement's best friend -- local prosecutors -- has refused to pursue charges under the statute.

But most state legislatures have yet to entertain this ridiculous idea to its illogical conclusion. As Julia Craven reports for Huffington Post, fourteen states have floated "Blue Lives Matter" laws -- a total of 32 legislative trial balloons.

The good news is most of these have gone nowhere. The data compiled by Craven shows a majority of these have died shortly after introduction -- most likely due to them being both (a) bad laws and (b) redundant. All 50 states already have some sort of sentencing enhancement on the books for perpetrators of violent acts against law enforcement officers. Trying to twist legislation meant to protect underprivileged groups to include some of the most privileged members of our society hasn't found much support beyond police unions and others similarly self-interested.

For whatever reason, Mississippi's legislature is the nation's leader in failure and redundancy, as far as "Blue Lives" legislation goes.

Any bills that have managed to pass make things worse for anyone who has the misfortune of interacting with police. Existing laws already engage in book-throwing when it comes to violence against police officers. "Blue Lives" laws just add more severity, for no tangible reason.

[U]nlike hate crime laws, they don’t require prosecutors to prove motive.

“In the vast majority of states, you will get life or considerably less in prison for murder; but if you murder a police officer, you are almost certain to get death,” said Mark Potok, a senior fellow at the Southern Poverty Law Center. “So the truth is that including police in hate crime laws is merely a political statement ― and an unnecessary one at that.”

In most cases, "Blue Lives" laws add sentencing enhancements to normal violations. Crimes like resisting arrest (and assaulting an officer, which tends to be handcuffed to resisting charges) are treated as acts of "hate," rather than as the basic, bog standard criminal acts they are.

It's also important to point out -- as Craven does in her article -- that the "Blue Lives Matter" movement was borne of law enforcement misconduct and use of excessive force. As public confidence in law enforcement decreased, some people felt compelled to intercede on behalf of a pretty much legally-unassailable group.

The national focus on police violence has put officers and their more avid supporters on the defense. Supporters created the Blue Lives Matter campaign as a direct response to the Black Lives Matter movement and the growing protests against police violence.

The other aspect that makes these laws particularly ridiculous is the "hate crime" aspect of it. Hate crime laws deal with human traits that are mostly involuntary or unchangeable, like race or sexual preference. No one is born a cop and no one forces anyone to take the job. Hate crime laws themselves are generally redundant, but adding more layers of redundancy to shelter a certain subsection of Americans who are completely free to remove their "cop" status at any time is a solution in search of a problem. And the problem with problem-less solutions is that problems will be created out of thin air to fit them.

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New Attorney General Jeff Sessions has just sent another message about the future of US law enforcement: there will be no policing of the police during the Trump Years. In his first on-the-record briefing, Sessions flat-out stated the DOJ's many civil rights investigations of local police departments mean nothing.

[Sessions] said he had not read the Obama Justice Department's scathing reports on unconstitutional policing practices in Ferguson, Mo., or in Chicago, reasoning that he found the summaries "pretty anecdotal."

Nothing is more useless than deliberately ignored facts. Summing up multi-year investigations as "anecdotal" goes far beyond willful ignorance into dangerously-smug territory. At least when FBI director James Comey said he hadn't bothered reading the CIA Torture Report, he had the excuse that the info included did not directly reference his area of control.

Sessions doesn't have this excuse. But his focus isn't on what's wrong with America's law enforcement. He's only interested in what's wrong with Americans. He wants tougher sentencing and tougher laws. He's looking at moving forward with federal prosecutions targeting legal marijuana sales. He wants to ease restrictions on asset forfeiture. He has shown no concern about the policed, only for the police.

Sessions also called police officers cowards during his briefing.

Sessions said police officers in Chicago were arresting people less frequently, which he speculated may be out of fear their interactions could be recorded and spread on the internet.

"The officer feared for his observation." That's the jist of this statement by Sessions. He may think this is a perfectly acceptable reason for Chicago PD officers to not do the job they're paid to do, but only a coward would shy away from doing their job because it might be witnessed by others. What a bunch of shit.

But back to the "anecdotal" shrug off of the DOJ Civil Rights Division's work. Here's some of the stuff Sessions has the audacity to call "anecdotal."

From the DOJ investigation of the Ferguson PD:

We spent, collectively, approximately 100 person-days onsite in Ferguson. We participated in ride-alongs with on-duty officers, reviewed over 35,000 pages of police records as well as thousands of emails and other electronic materials provided by the police department. Enlisting the assistance of statistical experts, we analyzed FPD’s data on stops, searches, citations, and arrests, as well as data collected by the municipal court. We observed four separate sessions of Ferguson Municipal Court, interviewing dozens of people charged with local offenses, and we reviewed third-party studies regarding municipal court practices in Ferguson and St. Louis County more broadly. As in all of our investigations, we sought to engage the local community, conducting hundreds of in-person and telephone interviews of individuals who reside in Ferguson or who have had interactions with the police department. We contacted ten neighborhood associations and met with each group that responded to us, as well as several other community groups and advocacy organizations. Throughout the investigation, we relied on two police chiefs who accompanied us to Ferguson and who themselves interviewed City and police officials, spoke with community members, and reviewed FPD policies and incident reports.

Also "anecdotal:" (from the Chicago investigation)

First, we reviewed thousands of pages of documents provided to us by CPD, IPRA, and the City, including policies, procedures, training plans, Department orders and memos, internal and external reports, and more. We also obtained access to the City’s entire misconduct complaint database and data from all reports filled out following officers’ use of force. From there, we reviewed a randomized, representative sample of force reports and investigative files for incidents that occurred between January 2011 and April 2016, as well as additional incident reports and investigations. Overall, we reviewed over 170 officer-involved shooting investigations, and documents related to over 425 incidents of less-lethal force.

We also spent extensive time in Chicago—over 300 person-days—meeting with community members and City officials, and interviewing current and former CPD officers and IPRA investigators. In addition to speaking with the Superintendent and other CPD leadership, we met with the command staff of several specialized units, divisions, and departments. We toured CPD’s training facilities and observed training programs. We also visited each of Chicago’s 22 police districts, where we addressed roll call, spoke with command staff and officers, and conducted over 60 ride-alongs with officers. We met several times with Chicago’s officer union, Lodge No. 7 of the Fraternal Order of Police, as well as the sergeants’, lieutenants’, and captains’ unions. All told, we heard from over 340 individual CPD members, and 23 members of IPRA’s staff.

Our findings were also significantly informed by our conversations with members of the Chicago community. We met with over ninety community organizations, including non-profits, advocacy and legal organizations, and faith-based groups focused on a wide range of issues. We participated in several community forums in different neighborhoods throughout Chicago where we heard directly from the family members of individuals who were killed by CPD officers and others who shared their insights and experiences. We also met with several local researchers, academics, and lawyers who have studied CPD extensively for decades. Most importantly, however, we heard directly from individuals who live and work throughout the City about their interactions with CPD officers. Overall, we talked to approximately a thousand community members. We received nearly 600 phone calls, emails, and letters from individuals who were eager to provide their experiences and insights.

The DOJ Civil Rights Division won't be given this long of an investigative leash under Sessions. The Trump Administration is already planning to cut this division's budget, and the man at the top of the organizational chart is just going to dismiss the findings without even reading them. Sessions says he's "not sure" if he'll pursue a consent agreement with the Chicago PD, which strongly suggests he won't. He seems more concerned about the criminal activity in the city and fails to see how unconstitutional and abusive policing may be making it worse.

Police accountability is off the table for the next four years minimum. Whoever inherits this mess will have to make up a lot of lost ground. Under this administration, law enforcement officers will be untouchable, as least at the federal level. The groundwork has begun on Police State, USA.

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This is a video of The Dudesons from Finland taking turns riding a log being swung around by the massive robotic arm of a Ponsse Scorpion tree harvester. It looks incredibly dangerous (it only looks dangerous though, they're actually tethered to the log so they can't hit the ground). It also looks incredibly fun, now hand me one of those waivers so I can sign my life away. I don't want the tether though, I want to do it au naturel. What's the worst that could happen? "You could fall and die." Please, that could happen any time of any day. You know how many times I've just been walking down the sidewalk and accidentally tripped into the street? Enough for my mom to pull me to the school bus stop in a little red wagon every morning. The other kids make fun of me, but deep down, I know they're just jealous really, really sorry for me and don't know how to express their emotions. Keep going for the video, with bonus tar and feathering for the two losers at the end. Thanks to JC, who could have gone a full ten minutes and not spilled a single drop of his cocktail.

The good news is the Supreme Court's Riley decision forces law enforcement to obtain warrants before searching cell phones. The bad news, apparently, is everything else. To begin with, particularity remains a problem. As the Supreme Court pointed out in its decision, people's entire lives are contained in their cell phones. When searching for what's relevant to the suspected criminal activity, the government is pretty much free to dig through these "lives" to uncover what it needs to move forward with prosecution.

The lack of strict parameters (perhaps an impossibility given the nature of digital communications/data) leads to fishing expeditions operating under the cover of Fourth Amendment adherence. There's no way to prevent trolling for evidence of unrelated criminal activity. The only recourse is to challenge it after it happens. Sometimes the courts find the government has gone too far. Other times, courts say the evidence would have been "inevitably discovered" in the course of the search and prevent it from being suppressed.

Then there are decisions like the one reached by a federal court in South Dakota -- one that says just because one law enforcement agency deployed a warrant to image the contents of a cell phone doesn't mean other law enforcement agencies can take a look at it without obtaining a warrant of their own.

Volokh Conspiracy's Orin Kerr snagged the decision and added some brief analysis. A cell phone seized by local police was also apparently of interest to the federal Bureau of Alcohol, Tobacco and Firearms (ATF), which was running its own investigation on the same subject. The local cops were looking for counterfeiting evidence, while the ATF was interested in firearms-related evidence.

The locals obtained a warrant and imaged the phone's contents. In the course of its investigation, the ATF pulled up the suspect's file and noticed the recent arrest and seizure of the suspect's cell phone. The Huron (SD) police department helpfully informed the ATF that it had a copy of the cell phone's contents that the ATF could take a look at. The ATF accepted the offer, but did not perform the crucial step of obtaining a warrant. That misstep cost the ATF its evidence.

According to the government, all evidence seized -- even if unrelated to the investigation at hand -- should be accessible to any law enforcement agency without obtaining another warrant. Because teamwork. The court disagrees [PDF], pointing out that the government's asking the court to grant it an open-ended fishing license for all electronic devices seized with a warrant:

The government argues that this conclusion is “impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies.” The government’s position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482.

According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the government’s argument is taken to its natural conclusion, then this opens the door to pretextual searches of a person’s cell phone for evidence of other crimes. Under the government’s view, law enforcement officers could get a warrant to search an individual’s cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the government’s use or retention of unresponsive cell phone data collected under a valid warrant.

The court also disagrees with the government's plain view defense. In order for the "plain view" exception to work, there has to be justification for the "view" itself. In this case, the ATF had no justification for viewing the contents of a cell phone seized by another agency for an unrelated investigation.

The government also argued that the exclusionary rule shouldn't be applied to the evidence it obtained without a warrant. The court again disagrees, pointing out that the government will suffer minimally from the exclusion of evidence it apparently wasn't planning to introduce anyway. In addition, a failure to enforce the exclusionary rule in cases like these would just result in more governmental fishing trips.

Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The government’s actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fair’s search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.

In contrast, the benefits of applying the exclusionary rule in this case are clear. If the exclusionary rule is not applied, law enforcement agencies will have carte blanche authority to obtain a warrant for all data on a cell phone, keep the unresponsive data forever, and then later use the data for criminal prosecutions on unrelated charges—erasing the protections specifically contemplated in Riley.

All well and good as far as it goes for upholding Fourth Amendment protections, but as Orin Kerr points out, the court seems to be balancing the government's losses against the plaintiff's rights before arriving at this conclusion.

As I have written before, I don’t think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isn’t important, the government isn’t going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.

They don't call the exclusionary rule a RULE for no reason. When rights are violated, exclusion is the proper remedy. Whether or not it damages the government's prosecution should be a distant secondary concern.

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A new leak reveals the model numbers, color options, and pricing for the Galaxy S8 and S8 Plus. The suggested retail price for the Galaxy S8 is at $950, and the S8 Plus is at $1050.

Bees: they're all dying. Yet wasps and hornets seem to be doing just fine. WTF Mother Nature, your ass is BACKWARDS. Nobody like a front-butt. Thankfully, scientists in Japan have created small drones to act as pollinators since all the real bees seem to be buying the farm. Did something happen to Old MacDonald?!

The system, described in the journal Chem, is nowhere near ready to be sent to agricultural fields, but it could help pave the way to developing automated pollination techniques at a time when bee colonies are suffering precipitous declines. In flowering plants, sex often involves a threesome [EDITOR'S NOTE: Please continue in great detail]. Flowers looking to get the pollen from their male parts into another bloom's female parts need an envoy to carry it from one to the other. Those third players are animals known as pollinators -- a diverse group of critters that includes bees, butterflies, birds and bats, among others. Animal pollinators are needed for the reproduction of 90% of flowering plants and one third of human food crops, according to the U.S. Department of Agriculture's Natural Resources Conservation Service. Chief among those are bees -- but many bee populations in the United States have been in steep decline in recent decades, likely due to a combination of factors, including agricultural chemicals, invasive species and climate change. Just last month, the rusty patched bumblebee became the first wild bee in the United States to be listed as an endangered species.

Basically these drones (seen above, upside-down) use a combination what what appears to be hair gathered from my shower drain (actually horsehair) and a sticky gel to gather pollen from a male plant, then deposit said pollen into the lady parts of a female plant. Quite simple biology really, I remember learning about that in middle school science class. I also remember yelling 'PLANTS HAVE PENISES!' and repeatedly hitting myself in the head with a textbook until I fell out of my desk. I've always been an entertainer. Thanks to TittyMcNippleFondler, hands down my favorite secret menu item at McDonald's.

We've written plenty about CCTV here on Techdirt, and its creeping normalization around the world, but particularly in the UK. So it's good to read a story on the legal news site outlaw.com about a rather unusual ruling from a Scottish court pushing back against the use of an intrusive CCTV system. It concerns a dispute in Edinburgh between the individuals Nahid Akram and Debbie and Tony Woolley. The latter couple live above a guest house run by Akram. For various reasons, both parties decided to install CCTV systems, but with rather different scope:

While the Woolley's equipment "records images of their own external property only", Akram installed "video and audio recording equipment" which allowed her, and her husband, to monitor comings and goings at the Woolley's property and to listen in to conversations in their private garden, according to the ruling. The equipment used by Akram was capable of storing five days' worth of data at any one time.

The [Scottish court's] Sheriff described "the regime of surveillance" that the Woolleys were subjected to as "extravagant, unjustified and highly visible" and as "an effort to oppress". He said that the Woolleys and their family had "suffered considerable distress" since Akram's equipment had been installed in about October 2013 and that it is "difficult to conceive" a more intrusive case of surveillance.

Until recently, suffering "distress" from CCTV would not have been enough in order to receive damages: there needed to be an actual financial loss. But an important 2015 case in the UK involving Google ruled that:

the claimants can claim for distress without having to prove pecuniary loss. This greatly increases the scope for compensation claims in the future given an invasion of privacy will rarely be accompanied by actual monetary loss.

Aside from the award of over $21,000 to the Woolleys, the Sheriff's judgment is also noteworthy for how he spelled out the distress they suffered:

"They have all been severely restricted in the use and enjoyment of their own home," Sheriff Ross said. "They voluntarily restrict their external movements. They restrict their conversations, both inside and outside their home, as they are aware that they are being recorded and do not know the extent of the coverage."

Although he is talking about surveillance in the physical world, his concerns have obvious parallels in the online world, which is under growing government surveillance, not least in the UK. Already, some people are starting to restrict their digital movements and their conversations as they are "aware that they are being recorded and do not know the extent of the coverage." The question is: why should such "distressing" surveillance be punished in the real world, but permitted in the digital one?

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