Brindle

The US government is comprised of three branches: legislative, judicial and executive. The branches are supposed to work to balance the government, with each one acting as a check against excesses by the others. As a theory, it's impeccable. In practice, it's a mess.

At a hearing today on a lawsuit seeking to make videotapes of force-feedings at Guantánamo public, Justice Department attorneys argued that the courts cannot order evidence used in trial to be unsealed if it has been classified by the government. “We don’t think there is a First Amendment right to classified documents,” stated Justice Department lawyer Catherine Dorsey.

The judges, of course, reserve the right to tell the DOJ it's full of crap. It hasn't yet, but that may be coming. It did, however, get off a shot of its own in response.

“Your position is that the court has absolutely no authority (to order disclosure), even if the government is irrational?” [Judge Merrick] Garland asked, pointedly raising a scenario in which the government classifies a copy of the Gettysburg Address.

The information being argued over is recordings of Guantanamo Bay detainees being force-fed. These were ordered to be released last October by District Judge Gladys Kessler, who granted a stay while it was appealed.

In the arguments presented here, the government claims to be the sole arbiter of any information it deems classified -- something that's only going to lead to more classification and more secrecy. Judge Garland pressed the US attorney on this disturbing claim and found the government was saying exactly what he thought it was saying.

Chief Judge Merrick Garland characterized the government’s position as tantamount to claiming the court “has absolutely no authority” to unseal evidence even if it’s clear the government’s bid to keep it secret is based on “irrationality” or that it’s “hiding something.”

“That is our position,” Dorsey agreed.

Dorsey did, however, point out an option that didn't include the judicial system. (Well, at least not immediately…)

She added that a more appropriate tool to compel the release of the videos was through a Freedom of Information Act request.

Hilarious.

The government is trying to prevent these videos from being released, citing national security concerns. Does anyone actually feel a FOIA request will result in anything more than a rejection on the same grounds? And when it happens, the FOIA request refusal will eventually end up in court… where the government's "right" to declare information too secret to be released will still keep these recordings out of the public's hands.

The executive branch's position is clear: it feels it should have sole control over the release of classified documents. The courts are welcome to ensure its assertions remain unchallenged, but in no way is it invited to second guess its secrecy efforts, or the motivations behind them.

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So things just keep getting stranger and stranger online. A bunch of mobile operators are apparently planning to start automatically blocking all mobile ads. Now, for those of you who hate ads online, this might seem like a good thing, but it is not. If you want to disable ads on your own, that should be your call. In fact, as we've noted before, we think people on the web have every right to install their own ad blockers, and we find it ridiculous when people argue that ad blocking is some form of "theft."

But this is different... and this is dangerous.

As the reports make clear, this move has nothing to do with actually protecting the public from malicious or annoying ads... and everything to do with the mobile operators hoping to shake down Google.

The plan – which would be devastating to companies reliant on advertising – is not limited to a single European network. Its apparent aim is to break Google’s hold on advertising.

The FT report says that “an executive at a European carrier confirmed that it and several of its peers are planning to start blocking adverts this year” and will be available as an “opt-in service” however they are also considering applying the technology across their entire mobile networks.

And, the clear plan is to then go to Google and say "give us money or else":

The unnamed European carrier in the Financial Times article is reportedly planning to target Google and block its ads to force the company into giving up some of its revenue.

The companies are using a product called Shine, which has a big bullshit claim on its page that it "champions the consumer's rights to control mobile ads." If that were the case it would be offering the tool to consumers. It's not. It's selling to big service providers, and then letting those service providers spy on all of your surfing in order to remove the ads.

This should be a serious concern for anyone using a service that signs up for Shine. Even if it's an "opt-in" offering, what the company is really doing is a form of deep packet inspection and blocking your mobile internet from acting the way it should. In other words, this looks like a net neutrality violation on a large scale.

As we've pointed out in the past, the broadband providers aren't stupid. They know that if they go for a direct plan of blocking or degrading apps you like, it gets people angry. So they look for ways to break net neutrality that look like they're doing the consumer favors -- things like zero rating, and now this. But that's not what's happening at all. This is all just the exact same plan as many broadband providers have had for years: figure out a way to pressure Google into coughing up some of its revenue, not by earning it, but by creating a mess for the company.

And, in the process, it's causing a mess for users by mucking with their internet connections, doing deep packet inspection, and blocking content.

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Jessica Cooke, a New York native who had recently applied for a position with Customs and Border Protection, asked the only question that needed to be asked after being tased by CBP agents for asserting her rights: "What the fuck is wrong with you?!?"

Cooke was driving from Norfolk to her boyfriend's house in Ogdensburg, the northern border of which is the St. Lawrence River. If you cross the river, you are in Canada, but Cooke was not crossing the river. She nevertheless became subject to the arbitrary orders of CBP agents by driving through one of the country's many internal immigration checkpoints, which can be located anywhere within 100 miles of the border (a zone that includes two-thirds of the U.S. population). For some mysterious reason, she was instructed to pull into a secondary inspection area, where she used her cellphone to record a five-minute video of the stop (below). [Language possibly NSFW]

These CBP agents -- like too many other law enforcement officers -- had no idea how to react when their authority was challenged. They only saw one route to take: escalation.

Cooke knew the CBP agents needed something in the way of reasonable suspicion to continue to detain her. But they had nothing. The only thing offered in the way of explanation as they ordered her to return to her detained vehicle was that she appeared "nervous" during her prior interaction with the female CBP agent. This threadbare assertion of "reasonable suspicion" is law enforcement's blank check -- one it writes itself and cashes with impunity.

The CBP supervisor then stated he'd be bringing in a drug dog to search her vehicle -- another violation of Cooke's rights. The Supreme Court very recently ruled that law enforcement cannot unnecessarily prolong routine stops in order to perform additional searches unrelated to the stop's objective.

If the purpose of CBP is to secure borders and regulate immigration, then this stop had very little to do with the agency's objectives. Cooke is an American citizen and had not crossed a border. If the CBP's objective is to do whatever it wants within x number of miles of the border, then it's apparently free to perform suspicionless searches. In this case, the CBP was operating in drug enforcement mode, but even so, it still hadn't offered anything more than Cooke's alleged "nervousness" to justify the search and detainment. Additionally, the CBP's decision to bring in a drug dog raised the bar for justification.

While nervousness alone might be deemed enough for reasonable suspicion, SUNY Buffalo immigration law professor Rick Su told the local NPR station, "it is not sufficient" to justify a vehicle search, which requires probable cause to believe the vehicle contains evidence of a crime.

Things escalated when Cooke refused to return to her vehicle and wait passively for the CBP to perform its questionable search. Cooke told the officers she would leave if the search wasn't performed within 20 minutes. The supervisor told her she could leave, but her car couldn't and if she tried, spike strips would be deployed.

Shortly thereafter, this exchange occurred:

CBP agent: I'm going to tell you one more time, and then I'm going to move you.
Cooke: If you touch me, I will sue your ass. Do you understand me?
CBP agent: Go for it.
Cooke: Touch me then.
CBP agent: Move over there.
Cooke: Go ahead. Touch me.
CBP agent: I'm telling you to move over there.

Cue said "touching," followed almost immediately by screams of pain and swearing as Cooke is tased. Before the recording end, you can hear the CBP agent claiming Cooke "assaulted a federal officer." (As one does…)

And for all the hassle, the CBP came up with nothing.

During an exterior inspection of her vehicle by the unit, nothing was found, Ms. Cooke said. She said agents then opened the car doors, got her keys and opened the trunk.

Again, nothing was found, Ms. Cooke said, adding that agents did a second search of the vehicle with the K-9 unit, but found nothing.

There will always be those who feel citizens who refuse to meet law enforcement instructions with anything but meek obedience deserve whatever happens to them. "It's tough being in law enforcement," they claim. And it is. But considering the job contains the constant threat of injury or death, a little mouthiness or stubbornness shouldn't be met with this level of force.

Things are slowly changing, though. Law enforcement officers can no longer rely on the belief that citizens know less about their rights than they do. They will need to do more to justify searches and seizures in the future, instead of just making vague claims about perceived nervousness. Otherwise, their unconstitutional search attempts are either going to rely heavily on ensuring compliance through inapproriate use of force, or head to the other end of the spectrum, where they won't even get a chance to take a look. [Language possibly NSFW]

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We've had a bunch of stories lately about the increase in militarized police and what a ridiculous and dangerous idea it is. As we've discussed in the past, much of this came from the Defense Department and its 1033 program, which takes decommissioned military equipment and gives it to police. This results in bizarre situations like the LA School District police having a bunch of grenade launchers. The program is somewhat infamous for its lack of rules, transparency and oversight.

So it was great to see President Obama this week issue an executive order that greatly scales back the program. You'll be happy to know that no future LA School Districts will get grenade launchers (though, to be fair, after bad publicity, the school district did give the ones it had received back):

Grenade launchers, bayonets, tracked armored vehicles, weaponized aircraft and vehicles, firearms and ammunition of .50-caliber or higher will no longer be provided to state and local police agencies by the federal government under Obama's order.

[....]

In addition to the prohibitions in his order, Obama also is placing a longer list of military equipment under tighter control, including wheeled armored vehicles like Humvees, manned aircraft, drones, specialized firearms, explosives, battering rams and riot batons, helmets and shields. Starting in October, police will have to get approval from their city council, mayor or some other local governing body to obtain such equipment, provide a persuasive explanation of why it is needed and have more training and data collection on its use.

For police departments that already have the now "banned" items, they will have to be returned. You'll notice that one of the biggest symbols that people point to of overly-militarized police -- the MRAP -- is not included in the banned list. There are some other limitations here as well. And a big one, as the guy who literally wrote the book on militarized police, Radley Balko, notes: the 1033 program is no longer the biggest supplier of such things to police:

Since 2003, for example, the Department of Homeland Security has been giving grants to police departments around the country to purchase new military-grade gear. That program now dwarfs the 1033 Program. It has also given rise to a cottage industry of companies that build gear in exchange for those DHS checks. Those companies now have a significant lobbying presence in Washington. I suspect that presence will now only grow stronger. So if the Obama administration really wants to roll back police militarization, this program needs reform, too.

Still, as Balko also notes, there is still a lot of importance in the symbolism of the move made this week:

From what has been reported, this new initiative addresses these concerns as well and seems to indicate that the Obama administration understands and appreciates that the symbolic component of police militarization is just as important as the practical component. I’m uncomfortable with any military vehicles going to local police. Free societies tend to draw a clear line between cops and soldiers. Blurring that line indicates a failure to appreciate its importance. But this initiative is moving toward reestablishing that line, not moving it or further blurring it. Federal programs are pretty difficult to disband, so a blanket ban was probably never in the cards. Conditioning the acceptance of this gear on increased transparency, accountability and a move toward community policing seems like a good compromise. We’ll either get less use of this military-issued equipment, or we’ll get more and better information about how it’s used. Either outcome is progress.

Balko gives some additional (fantastic) background on why President Obama made the announcement in Camden, New Jersey -- a city that had serious problems between the local police and the community, and basically figured out a way to restart from scratch (closing down the local police force and letting the county take over) while creating a much stronger community tie between police and the community, rather than the all-too-common adversarial relationship that has grown up in many places (which is often made worse by the militarization).

Not surprisingly... there are already loud complaints from police representatives, who complain (misleadingly) about how this move puts them all in danger:

The nation’s largest police union is fighting back against a White House plan to restrict local police forces’ ability to acquire military-style gear, accusing President Barack Obama’s task force of politicizing officers’ safety.

Other police are hilariously arguing that this move will actually increase military presence, because police without this equipment will no longer be able to contain crowds, and thus the National Guard will have to be called in more frequently. Of course, all of that seems to assume that violent protests are the norm, rather than a semi-rare occurrence -- and, it also ignores how militarized police often seem to exacerbate such situations, rather than calm them down.

This move doesn't end the militarization of police, but it does take a step in the right direction. As Balko notes, if we believe in a free society, we shouldn't have militarized police. This move is an important step up.

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But they didn't blur the giant ass in the middle? What do you have against tits and not butts? Or -- OR -- could you not tell that was a butt? Fox 5 in New York decided the beautiful (albeit somewhat hard to recognize) titties in Pablo Picasso's Women of Algiers were a little too risque for the news when reporting on the record-breaking $179.4-million dollar sale of the painting, and decided to blur them out just in case they were to give people boners and/or turn them into sexual deviants. Women of Algiers is the most expensive painting ever sold at auction, and the fifth most expensive painting every sold at all. I wonder whose decision it was to make the blur. Because that is a little ridiculous. If I were the newscaster I would have bothered the weatherman's draw-on-screen capabilities to draw even bigger boobs on the painting. Will they have laser nips? PROBABLY. Oh -- and what's this? It's a giant penis in the sky! Man, I would make a great newscaster.

This is A Kid's Imagination, a short video from German animator Chris Kessler of his son running down the sidewalk with Super Mario coins and green turtle shells and fireballs added. I like how he's carrying a magic wand stick. I remember the days I could run down the sidewalk with a stick all carefree. Those were simpler times. Now I'm afraid of everything. I won't even run at all anymore, and I don't even WALK with scissors. If I need to use scissors I roll them up in a bath towel and throw them to wherever I want to use them. Hit the jump for the video. Thanks to dustbunny, who I keep kicking under the sofa instead of vacuuming.

"We're evolving Android and creating an open computing platform that will change the way consumers interact with their mobile devices," said Kirt McMaster, CEO of Cyanogen Inc. "Foxconn and our diverse group of strategic investors and partners reflect the mobile value chain, from device manufacturers and mobile network operators to chipset makers and 3rd party developers. They see the great potential of what we're doing in creating the next major paradigm shift in mobile computing." If you're into Microsoft Android, Cyanogen is just the thing for you. I wouldn't trust such a venture capital-backed startup spouting such grandiose words only to bite the hand that feeds it - Google - while being in bed with Microsoft. New Microsoft or no, it has a history of patent abuse towards Android and Linux, and by letting it infect your Android device you're just asking for trouble.

Perhaps, like me, you've never really understood the curious ban some airflights and airlines have had on mobile and electronic devices during flights, take-offs, and landings. Perhaps, like our Jefe, Mike Masnick, you've dismissed the requests from flight attendants that those devices be fully powered down out of hand, because you too are a rebel the likes for which this world is wholly unprepared. And maybe you too cheered when the FAA summarily dismissed these silly rules way back in 2013, thinking that the madness of a few moments without our favorite devices had finally come to an end.

But then, as you may know, the Association of Flight Attendants sued the FAA in order to retain the ability to lord over your smart-phones, tablets, and computers on flights. Notably, the AFA's filing made essentially zero claims having anything to do with the safety of electronic devices on the flights. Instead, their argument centered on whether the power to decide whether flight attendants could treat passengers like children who hadn't finished their vegetables resided with the FAA, or if the AFA should have some input.

Well, the court has ruled and has firmly told the AFA and flight attendants to go dangle.

In this case, it really does not matter whether Notice N8900.240 is viewed as a policy statement or an interpretive rule. The main point here is that the Notice is not a legislative rule carrying “the force and effect of law.” Perez, 135 S. Ct. at 1204. A legislative rule “modifies or adds to a legal norm based on the agency’s own authority” flowing from a congressional delegation to engage in supplementary lawmaking. Syncor, 127 F.3d at 95.

That's court-speak for "nice try, now go away." Of course the FAA can make changes to flight rules as it pleases and, when it comes to the use of devices the ban for which has always been cast in the light of flight-safety, an association for flight attendants ought to have about as much input as a doctor's receptionist should have on medical policy. This tantrum of a suit, which is all it ever was, has been dismissed and we are finally free to play Angry Birds during takeoff. Free at last, free at last.

More seriously, it's somewhat nice to see some aspect of security theater being done away with regarding anything to do with airplanes and flights. If we could just take this same tact with the rest of airport security, we'd be making a world of improvements.

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Some NYPD officers have continued to cling to the belief that citizens aren't allowed to film them, despite plenty of documentation otherwise. A letter issued to the Baltimore PD, but that CC'd law enforcement in general noted that "the justification for [filming police] is firmly rooted in longstanding First Amendment principles." (The footnote appended to this added: "There is no binding precedence to the contrary.") The NYPD's own Patrol Guide states this:

“[T]aking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

The NYPD's chief of federal litigation likewise reminded officers that bystanders could film police officers provided they didn't interfere with duties or operations.

It would seem to be clearly established (including decisions to this effect from all but one circuit court in the US) and yet certain officers are still shutting down citizens with cameras and arresting them on clearly bogus charges. The NYPD is currently facing a lawsuit from the ACLU that hopes to obtain a ruling declaring this activity to be covered by the First Amendment. That lawsuit may ultimately prove to be extraneous as the Southern District of New York (which oversees New York City) has now confirmed that citizen recordings are protected First Amendment activity.

The facts behind the suit are this:

Douglas Higginbotham was covering the Occupy Wall Street protests for a New Zealand TV station. While shooting footage from atop a phone booth, he was ordered to get down by NYPD officers. He attempted to climb down but there were too many people crowded around the booth. So, the cops dragged him down by his feet, damaging his camera in the process. He was then cuffed with zip ties for three hours (and sprung from them with a butter knife because the NYPD is apparently more interested in the cuffing process than the releasing process) and charged with disorderly conduct.

Higginbotham claimed the arrest was performed in retaliation for his filming police officers, and as such, was a false arrest. The NYPD countered by claiming Higginbotham's supposed "failure to disperse" justified the charge. The court found otherwise:

The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been “congregating” with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham’s conduct: the defendants’ order for Higginbotham to climb down from the telephone booth was not an order to “disperse.” That word, as used in the statute, means “[t]o separate, go different ways.” Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.” Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse.

The NYPD also raised a variety of other justifications for this arrest (including potential damage to the phone booth and creating a "hazard" by his being on top of the phone booth) but these were also dismissed as inapplicable by the judge. The department also claimed that, even if there were no legitimate reason to arrest Higginbotham, the officers were entitled to qualified immunity.

In support of qualified immunity, the defendants merely summarize their version of the facts and assert that “the officers were objectively reasonable and patently not incompetent.” (Defs.’ Br. 12.) At the summary judgment stage, they will have the opportunity to try to demonstrate this by submitting evidence showing that reasonably competent officers in their situation could have at least disagreed on whether probable cause existed. Based solely on the complaint, however, the Court cannot conclude that this must have been the case.

Finally, the court addresses the First Amendment issue, and here the NYPD officers again attempt to claim immunity.

The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.”

The "no one directly -- at that moment -- told us not to" defense is one that should be undermined considerably by statements and policies issued by the NYPD itself. The court doesn't need a copy of the Patrol Guide to arrive at the same endpoint.

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

The court then goes on to point out that the First Amendment rights the officers claimed were "insufficiently defined" had been clearly established by years of precedent rulings.

Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.

Now, this is still far from the final ruling, so there's no precedent specific to the NYPD's territory set at this point. But the court's denial of qualified immunity in respect to Higginbotham's First Amendment claims serves notice that future assertions of well-meaning, not-patently-incompetent ignorance won't be entertained by this court. The plaintiff's suit will move forward and the officers accused of taking retaliatory action against a photographer will have to move right along with it. I would expect a settlement in the near future if the NYPD wishes to prevent the Second Circuit from joining the rest of the circuit courts in establishing a First Amendment right to record.

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Prominent alumni of the intelligence community have a problem with the New York Times publishing the name of the CIA's drone strike "architect." Although Michael D'Andrea's connection to the program had been sussed out nearly two years earlier and was apparently common knowledge to the governments of countries CIA drones launched from, the CIA still didn't want his name publicly disclosed. Their officials pushed New York Times executive editor Dean Baquet. He pushed back.

Now, a letter to the editor signed by 20 ex-CIA officials is arguing that Baquet was wrong to do so. The attendant irony of known "leakers" Leon Panetta and David Petraeus signing this indignant ode to CIA secrecy can't be allowed to pass without noting. Panetta handed off plenty of classified information, including names of personnel operating under "cover," to the makers of Zero Dark Thirty. Petraeus handed over eight notebooks full of sensitive info to his mistress/biographer. Both have escaped any serious repercussions for their actions. But they're righteously pissed that Baquet published the name of the person overseeing the CIA's drone strike program.

The letter is a mess. If it's meant to make a solid argument for members of media acquiescing to every government request to withhold information, it fails spectacularly. If anything, it helps demonstrate why those whose powers are shrouded by layers of opacity should be exposed more often.

When your lead-off acknowledges that you're more angry than informed, you're going to fail to land solid blows. Pointing to Dean Baquet's interview with the Lawfare blog in which he defended his actions, the 20 ex-CIA officials all agree they really haven't done their homework.

We profoundly disagree — not because we have analyzed this particular case (we have not), but because in our view he misstates the purpose of cover generally.

But rather than moving on to correcting this perceived error, the letter instead shifts to arguing that the law Baquet didn't violate should actually have been violated, if only Congress hadn't have screwed up more than three decades ago.

Congress overwhelmingly enacted the Intelligence Identities Protection Act of 1982 precisely to protect the dedicated men and women whose lives would be at risk if their names became widely publicized.

What Congress could not have anticipated at the time, of course, is that any name published in The Times would reside forever on the Internet, searchable by any terrorist with a laptop. It is true that certain foreign governments may know their names, but that is altogether different from making the name accessible to ISIS, Al Qaeda and every other murderer on the planet.

The law contains loopholes that apply to Baquet's actions, as Lawfare's Jack Goldsmith points out. These ex-officials are now stating these loopholes shouldn't apply. Because the Internet. And this assertion is backed up by the portrayal of said internet as infested with "every other murderer on the planet." This hyperbole is expected, as is the intelligence community's confidence that it -- and only it -- knows what Congress did or didn't foresee when passing laws related to surveillance and spycraft.

In this particular case, Congress couldn't have foreseen an easily-searchable internet when passing a 1982 law. Fair enough, I suppose, but governing entities like Congress and the judicial system are immediately granted Nostradamus-esque powers of foresight whenever it works to the advantage of the entities performing long-delayed interpretations of Congressional intent. This same "power" is revoked the moment it becomes inconvenient to those seeking expanded powers with a minimum of accountability.

The letter then goes on to claim the press has no business attempting to increase government accountability. It's doing a fine job of policing itself, thank you very much.

Officials who work on covert operations do not escape accountability. Their actions are carefully reviewed by the C.I.A.’s general counsel, the inspector general, White House officials, congressional overseers and Justice Department attorneys.

Would this be the same CIA general counsel that cleared the CIA of all wrongdoing in the Senate spying debacle? Are these the same DOJ attorneys who couldn't be bothered to examine the Senate's claims of CIA spying during the creation of the Torture Report? Is this the same government that finally admitted it was wrong to torture people but refused to hold anyone accountable for the CIA's abuse of detainees? Is this the same vaunted oversight that seemed constantly surprised by the programs detailed in Snowden's leaks?

"Oversight" is a word covert agencies use when they don't want anyone taking a closer look at their programs or operations. When these officials point to "oversight," all they're really pointing to is the skeletal framework that remains after years and years of deliberately weakening oversight standards and processes. No one believes the government has the capability -- much less the desire -- to hold these agencies accountable for their actions. And the agencies know this.

The New York Time's refusal to grant continued secrecy to the man behind the agency's transformation into an efficient, impersonal killing machine may not result in direct responses from the oversight these officials claim works oh so well, but at least it prevents them from pretending they have no idea who was behind the program.

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Techdirt has written several times about so-called "ag-gag" laws, which have the strange effect of making it illegal for members of the public to expose animal abuse on farms. Slate has a fascinating report about how Wyoming is bringing in its own kind of ag-gag law that is so wide in its reach that it could make taking photos in Yellowstone illegal:

photos are a type of data, and the new law makes it a crime to gather data about the condition of the environment across most of the state if you plan to share that data with the state or federal government.

The specificity of that restriction sounds absurd. Why on earth would anyone want to prevent environmental data being gathered? Here's why:

The state wants to conceal the fact that many of its streams are contaminated by E. coli bacteria, strains of which can cause serious health problems, even death.

The reason the state is trying to do that is because the E. coli in question comes from cows, and cows have clout in Wyoming:

Acknowledging that fact could result in rules requiring ranchers who graze their cows on public lands to better manage their herds. The ranching community in Wyoming wields considerable political power and has no interest in such obligations, so the state is trying to stop the flow of information rather than forthrightly address the problem.

The law is framed broadly: it makes it a crime to "preserve information in any form" about "open land" if there is any intention to submit it to a federal or state agency. That means that if you discovered a major environmental disaster in Wyoming, no matter how life-threatening, you had better keep information about it to yourself. As the Slate post points out:

By enacting this law, the Wyoming legislature has expressed its disdain for the freedoms protected by the First Amendment and the environmental protections enshrined in federal statutes. Today, environmentally conscious citizens face a stark choice: They can abandon efforts to protect the lands they love or face potential criminal charges.

Now that's what I call an ag-gag law.

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Senator Bob Corker, who heads the Senate Foreign Relations Committee, appears to now be calling for the NSA to spy on more Americans, rather than fewer, arguing that the metadata collection program that is currently being debated in Congress is so small that he considers it negligent.

"It's almost malpractice," Corker said at a breakfast for reporters hosted by The Christian Science Monitor. "That's the best word I can use to describe the amount of data that is being collected."

Corker, who said the NSA's data collection needs to be "ramped up hugely", was reacting to a closed-door briefing that national security officials held Tuesday to brief senators on federal surveillance programs....

[....]

"I think there was an aha moment (Tuesday) for people on both sides of the aisle when we realized how little data is being collected.... It's beyond belief how little data is part of this program, especially if the goal is to uncover terrorists."

Now, this is the same Senator Corker who originally was quite disturbed when he first heard about the very same program after it was leaked by Ed Snowden (suggesting he was completely unaware of it prior to it leaking, despite being a Senator). Back in June of 2013, he sent an angry letter to the President about how such "broad collection" raised "extremely serious concerns."

But now he thinks the NSA should actually be spying on more Americans? It sounds like the NSA briefing that was just given to Senators was designed to really ramp up the fear-mongering.

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I work for a certain corporation which uses a certain product. This is its story. To put the quality of this product into perspective, let me say it's been in development for about 20 years and has pretty much no users (besides my corp and some "hey - let's make our own Linux crappy distro, which no one will ever use" fanatics) and no community. It was written by a C programmer who "doesn't like the notion of 'type' in programming". Let that be a prelude of what's to follow. Envy those who don't know it; pity those who use it. The product is called Enlightenment Foundation Libraries and it's the absolutely worst piece of shit software you can imagine. Poor Tizen.

On Friday, The Intercept released some new Snowden documents, showing how the NSA used metadata to claim that a well-known and well-respected Al Jazeera journalist, Ahmad Muaffaq Zaidan, was a member of Al Qaeda. This is all based on his phone metadata:

The document cites Zaidan as an example to demonstrate the powers of SKYNET, a program that analyzes location and communication data (or “metadata”) from bulk call records in order to detect suspicious patterns.

Now, there are a few interesting things that come out of this. First, the NSA has phone metadata on phones in Pakistan. That's found in the other released presentation on the NSA's "SKYNET" (yes, SKYNET) program: But, perhaps the much more interesting tidbit is that this detailed report showing why they think Zaidan is a key Al Qaida courier shows a huge problem with metadata. When you think about it, it really should not be at all surprising that a journalist who is one of the leading reporters covering Al Qaeda might have phone metadata similar to someone who is actually in Al Qaeda. It's likely that he tries to contact them a lot and that he goes to where they are a lot. That's called being a reporter. But, to the NSA, those sorts of distinctions don't matter. Remember, former NSA boss Michael Hayden has outright admitted that "we kill people based on metadata."

Metadata reveals an awful lot, but there may be alternative explanations for those patterns. But when you get so focused on the data itself, you fall into this trap of believing what the data suggests may be true, because it looks so analytical. The idea that it might be a "false positive" and that there might be an alternative explanation (i.e., a reporter covering Al Qaeda is likely to have similar metadata) doesn't even seem to enter into the equation...

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There were no drugs and nothing to enforce, but that didn't stop the Drug Enforcement Agency from taking $16,000 from a passenger on a train headed to California.

After scraping together enough money to produce a music video in Hollywood, 22-year-old Joseph Rivers set out last month on a train trip from Michigan to Los Angeles, hoping it was the start of something big.

Rivers changed trains at the Amtrak station in Albuquerque, New Mexico, on April 15, with bags containing his clothes, other possessions and an envelope filled with the $16,000 in cash he had raised with the help of his family, the Albuquerque Journal reports. Agents with the Drug Enforcement Administration got on after him and began looking for people who might be trafficking drugs.

Rivers said the agents questioned passengers at random, asking for their destination and reason for travel. When one of the agents got to Rivers, who was the only black person in his car, according to witnesses, the agent took the interrogation further, asking to search his bags. Rivers complied. The agent found the cash -- still in a bank envelope -- and decided to seize it on suspicion that it may be tied to narcotics. River pleaded with the agents, explaining his situation and even putting his mother on the phone to verify the story.

No luck.

Leaving aside the unsavory hint of racial profiling, there's the fact that the DEA helped itself to cash simply because it was cash. It had no reason to suspect Rivers of anything, but the money was apparently too much to pass up. Even having his story corroborated was useless. And, sure, the DEA agents had no reason to believe anyone Rivers put them in touch with was a trustworthy source of information. (After all, he's some sort of drug dealer, right?) But to grant the DEA the benefit of the doubt for its refusal to believe Rivers' mother's statements is to cut the agents an absurd amount of slack for everything preceding that.

Because what did the DEA actually have here? A young guy and $16,000 in cash. According to the DEA's own statements, it doesn't need anything more than that to effect an asset seizure. And, according to the DEA's own statements, it has no reason to bother with anything more than a cursory look that "confirms" what it wants it to confirm.

[Sean] Waite [DEA - Albuquerque] said that in general DEA agents look for “indicators” such as whether the person bought an expensive one-way ticket with cash, if the person is traveling from or to a city known as a hot spot for drug activity, if the person’s story has inconsistencies or if the large sums of money found could have been transported by more conventional means.

If we leave it to the DEA to define drug activity "hot spots," it becomes any destination any traveler is headed to, especially if there's seizable cash involved. As for story inconsistencies, we're back to "eye of the beholder" territory. If agents are motivated to perform asset seizures, any story can be found to have enough flaws to justify the forfeiture. Waite's statement is very unhelpful, other than to show how completely screwed up asset forfeiture programs are.

As if on cue -- and as if the DEA's Sean Waite is completely unaware of the level of scrutiny and negative public opinion centered on asset forfeiture programs -- he delivers the most tone-deaf of talking points:

“We don’t have to prove that the person is guilty,” Waite said. “It’s that the money is presumed to be guilty.”

Boom. There's your problem. Or rather, Rivers' problem. And the problem of far too many Americans who made the mistake of leaving home with cash on their person. The government doesn't need to prove shit. It can just take and take and take and force those wronged by its "presumptions" to jump through multiple expensive and mostly futile hoops if they hope to recover their "guilty" belongings.

So, what do you tell people like Rivers? "Don't carry cash?" Cash is universal and accepted everywhere. But it's also apparently inherently guilty. Just don't carry large amounts of cash? From Virginia's asset forfeiture stats:

Contrary to the oft-stated defense that these programs are necessary to cripple powerful drug lords and multimillion dollar fraudsters, more than half the cash seized from 2001-2006 fell in the $614-1,288 range and the average worth of vehicles seized has hovered at about $6,000.

And Philadelphia, PA's:

A City Paper review of 100 cases from 2011 and 2012 found the median amount of cash seized by the District Attorney was only $178.

Any cash is inherently suspicious and can be deemed "guilty" by the seizing agency with no corroborating evidence. $16,000 has just made its way into the DEA's funds and if Rivers wants it back, he's likely going to lose a great deal of it to legal fees. He's currently trying to raise the money the DEA took from him via crowdfunding site GoFundMe. Hopefully, he'll get another chance to make his music video without being sidelined by government agents looking to bust some "guilty" cash.

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No sooner had General Petraeus received a mild scolding for handing over pages and pages of classified information to his biographer/mistress than the defense team handling Jeffrey Sterling's case saw a point of entry to argue that the proposed sentence of 19-24 years in prison was too severe.

Petraeus, who was also a CIA official, received two years probation and a $100,000 fine. The defense has asked for something more in line with recent prosecutions of whistleblowers and leakers: something between Petraeus and John Kiriakou (30 months), as it were.

The government has responded and it sees nothing wrong with punishing certain leakers one way and punishing Jeffrey Sterling another.

Federal prosecutors on Thursday defended their use of the Espionage Act to prosecute a former CIA officer who leaked information to a New York Times reporter and suggested it was “mistaken” for him to receive a sentence far below what federal guidelines call for because he gave materials to a journalist, rather than a foreign government.

The government argues that Sterling's leaks were far more severe than any of those cited in the defense's filing (Petraeus, Kiriakou, Stephen Jin-Woo Kim), seeing as they compromised "Russian assets" and caused the eventual shutdown of an (at that time) ongoing operation.

The filing also argues that Petraeus' disclosure of classified info to his biographer -- arguably a member of the public -- was not the disclosure of classified info to a member of the public.

Petraeus had given his biographer – who possessed a security clearance – access to classified information and improperly stored classified information at his residence. None of this classified information was included in his biography, made public in any other way, or disclosed by his biographer to any third parties.

It cites the government's prosecution of reporter James Rosen in support of its arguments -- itself a bad precedent. It also notes that no two cases are alike, although not in the way the defense team argued that same point.

Each national security case is unique. Each comes with its own intelligence equities and problems, which, unless one is intimately involved in the prosecution of the case, will never be understood completely.

Government knows best! It's well-established that each case is unique, although not in the way the government presents it. A lot of sentencing decisions are based on prosecutors' recommendations. If they don't really have an urge to punish someone, they'll offer plea bargains and lighter sentencing. If they want to turn someone into an example, they'll be as aggressive as possible -- stacking charges and rejecting lesser pleas.

This type of behavior is common to the entire spectrum of the justice system, from the county level all the way up to DOJ-prosecuted cases. So, it's redundant to say each case is unique. What the government needs to acknowledge is that it frequently acts inconsistently when prosecuting leakers and whistleblowers. But it won't.

Additionally, should one wish to obtain a wrist slap for espionage charges, the best bet is hope for a timely trial that might cause the government to weigh its vindictive urges against the potential disclosure of classified information.

As this Court noted in sentencing Mr. Kiriakou: . . . I recognize the difficulty the government has in prosecuting these types of cases. They have to balance the potential danger of disclosure of very sensitive information when deciding how to proceed, and in balancing those concerns, they came up with this plea. Kiriakou, Sentencing Transcript at 20-21 (January 25, 2003). Indeed, this Court indicated it would have sentenced Kiriakou within the Guidelines had the case not been a binding plea.

We can only speculate about the difficulties faced by the prosecutors and intelligence counterparts in these other cases. The prosecution in Petraeus, for example, undoubtedly considered the difficulty of proving intent and willfulness on the part of the defendant, elements of a § 793 offense, as well as the likelihood that very sensitive classified information would necessarily be disclosed at trial, when it decided to resolve the case through a plea agreement.

We can "only speculate" as well, but we know what it looks like from the cheap seats: favoritism towards those who play on the government's "team," and harshly treating those who point out the government's wrongdoing. Even Kiriakou's comparably-light sentence was far too harsh for the supposedly-criminal acts he performed, which were completely indistinguishable from other CIA officials' -- including CIA Director Leon Panetta's -- disclosure to the screenwriters behind Zero Dark Thirty.

All the government's filing does is further confirm that the justice system isn't really all that "just." The Petraeus prosecution pretty much shattered any remaining illusions about the fairness of the system. Some get wrist slaps. Some get the thrown book.

[Updated] And it appears Sterling will receive something in between the two extremes. The government was pushing for a sentence of 188-235 months, but it appears to have settled for something closer to Kiriakou's sentence: 42 months. The presiding judge even cited his case when sentencing Sterling:

“To put you at ease, the guidelines are too high,” [Judge Leonie] Brinkema said as the sentencing hearing got underway, glancing at Sterling and his lawyers, Ed MacMahon and Barry Pollack.

She went on to say that Sterling’s case was similar to Kiriakou’s, for which she had also been the presiding judge, because both involved the disclosure of the identity of an intelligence agent. She said Sterling should serve more time because Kiriakou had pleaded guilty whereas Sterling pleaded innocent and was found guilty by a jury. Brinkema added that “a clear message” had to be sent to people in the intelligence community that a price will be paid for revealing the identities of intelligence agents and assets, though she also said, in what appeared to be a reference to Petraeus not serving any prison time, that the judicial system had to be fair.

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It’s hard to even imagine what one would do in a hostage situation. For one Florida woman, she used a combination of wits and the all too familiar Pizza Hut app to call for help. Held at knife point all day by her ex-boyfriend, the woman persuaded her ex to let her quickly order pizza for her 3 children using the Pizza Hut app.

The man, who had initially taken her phone from her agreed, and it was then the woman used the app’s “special instructions” field to request help. The Pizza Hut where the order was placed quickly notified local law enforcement who was able to show up at the home and defuse the situation. The boyfriend was eventually arrested and is now being held on a $45,000 bond.

[ABC News]

This is why we can’t have nice things, folks. Google has announced that they will be temporarily suspending Google Map Maker submissions following a recent incident. That incident, if you missed it, saw one rogue map editor uploading malicious maps.

One of the maps was a photo of an Android robot peeing on the Apple logo, and it was visible to anyone who knew the coordinates to type in over at Google Maps. It was a bit funny, but it was just as immature and came with the consequence we’re faced with today.

The natural step for Google was to begin manually reviewing each map submission, but the company’s backlog of reviews has gotten so large that they’ve been unable to handle new submissions in a timely manner. As such, they’ll instead opt to suspend submissions altogether while they improve the automated parts of their review process.

Unfortunately they don’t have a timeline for when the feature will return, though that did assure us that this is a temporary situation. “Temporary” could be as little as a day and as long as a decade, of course, so without an estimate it’s hard to know if we’ll see it return anytime soon. On the bright side, the guy who made these submissions’ say his end goal was to get Google to strengthen their map review process. We’d say his mission was aced with flying colors.

[via Google]

Google's Android operating system is set to give users more detailed choices over what apps can access, according to the people, who asked not to be identified because the matter remains private. That could include photos, contacts or location. An announcement of the change, which would put Android closer in line with Apple Inc.’s iOS, is expected for Google’s developer’s conference in San Francisco this month, one of the people said. If there's ever been a use case for 'finally', this is it. iOS gains Android features, Android gains iOS features. They pressure each other into becoming better, and we, all, benefit. The Apples and Googles of this world might rather not have to deal with it, but isn't competition beautiful?

Back in 2010, Redditor Yasir Afifi found an unusual device on his car while taking it in for an oil change.

Other Redditors surmised it was some sort of tracking device -- something that was confirmed a few days later when two SUVs full of cops and FBI agents showed up to reclaim it. While doing so, the FBI agent also asked the sort of probing questions that make the agency an indispensable part of our nation's counterterrorism efforts. From the ruling by Judge Beryl Howell:

The agents also asked the plaintiff other questions, including “whether he was a national security threat, whether he was having financial difficulties, [and] whether he had been to Yemen . . . .”

They also said other, more unsettling things:

After returning the GPS device, defendant Kanaan made several comments to the plaintiff that indicated to the plaintiff that the FBI had knowledge of the plaintiff’s movements, including commenting on certain restaurants at which the plaintiff ate, a friend with whom he associated, and a new job at which he worked. Id. at ¶ 46. At the end of the encounter, the plaintiff alleges that defendant Kanaan suggested to him that he was not a national security threat and that he was no longer of use to the FBI.

Apparently, part of the justification for deploying this tracking device was a comment one of Afifi's friends had left at Reddit -- a comment that skewers a lot of unproductive terrorism hysteria (and the agencies that thrive in this atmosphere).

bombing a mall seems so easy to do. i mean all you really need is a bomb, a regular outfit so you arent the crazy guy in a trench coat trying to blow up a mall and a shopping bag. i mean if terrorism were actually a legitimate threat, think about how many fucking malls would have blown up already.. you can put a bag in a million different places, there would be no way to foresee the next target, and really no way to prevent it unless CTU gets some intel at the last minute in which case every city but LA is fucked...so...yea...now i'm surely bugged : /

End result? A tracking device on Afifi's car, and for something he didn't even write. So, he sued the FBI and the DOJ for violating his First, Fourth and Fifth Amendment rights. The suit was stayed by the court while the Supreme Court sorted out US v. Jones -- a case dealing with warrantless GPS tracking. Unfortunately, the Court returned not much in the way of a decision, stating that GPS tracking did constitute a "search," but didn't go so far as to add a warrant requirement, suggesting the longer the tracking lasts, the worse it is constitutionally.

Whether or not this was warrantless surveillance isn't answered in Howell's decision. None of Afifi's claims survive. Qualified immunity nullifies Afifi's First and Fourth Amendment Bivens claims with an assist from the circuit courts' split on warrantless GPS tracking. As the events in question took place nearly two years ahead of the Supreme Court's decision, Howell defers to the rulings in place at that time (2010) as governing the agents' actions.

[T]he warrantless use of a GPS device was lawful under Ninth Circuit precedent at the time of its use in the present case. In other words, the individual defendants’ warrantless use of the GPS device was valid in California, the jurisdiction in which the individual defendants used the GPS device.

Afifi's First Amendment claim also goes down, seeing as there's no judicial precedent for chilling speech with a GPS tracker.

The plaintiff has failed to cite a single case from any Circuit holding that the warrantless use of a GPS device violates an individual’s First Amendment rights. To be sure, the qualified immunity analysis does not require a “case directly on point,” Al-Kidd, 131 S.Ct. at 2083, but a court must take caution in properly defining the scope of the right violated (“We have repeatedly told courts . . . not to define clearly established law at a high level of generality.”). [...] The plaintiff’s inability to cite a single case in support of his contention that the warrantless use of a GPS device violated his First Amendment rights dooms his claim.

Afifi's claim of Privacy Act violations caused by the FBI's continued retention of his case records after closing the investigation doesn't fare any better. There's plenty of precedent out there stating that relevant investigative records are forever even if the investigation isn't.

In addition, the fact that the investigation into the plaintiff is now closed does not render the records invalid under Section (e)(7). The D.C. Circuit has held that an agency may maintain records from an authorized investigation even after that investigation was closed, because “[m]aterials may continue to be relevant to a law enforcement activity long after a particular investigation undertaken pursuant to that activity has been closed...”

The present case is no different. The records now in the FBI’s possession may permit the FBI to verify or evaluate any new intelligence received, assess the reliability of other sources, and ensure accountability regarding how the FBI responded to the information it received.

Howell also points out that challenges to warrantless searches generally result in suppression of evidence, not nullification of entire investigations. Afifi's claims that he is being locked out by potential employers because of his run-in with the FBI are dismissed as "self-inflicted" -- not because Afifi had the misfortune of being acquainted with a person whose Reddit comment drew FBI heat, but because he "reported his confrontation with the FBI agents to local and national media, and the media published numerous stories about the encounter."

The moral of this tale seems to be that if you discover a tracking device on your vehicle, there's no faster way to be rid of it than posting pictures of it on a heavily-trafficked website. (As opposed to, say, throwing it in a lake, as one commenter suggested.) You may not find relief through the courts, but at least you'll be ensured of some form of closure.

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We've long talked about how companies are only just starting to figure out the litany of ways they can profit from your cell location, GPS and other collected data, with marketers, city planners, insurance companies and countless other groups and individuals now lining up to throw their money at cell carriers, auto makers or networking gear vendors. For just as long we've been told that users don't need to worry about the privacy and security of these efforts, and we definitely don't need new, modernized rules governing how this data is being collected, protected, or used, because, well, trust.

Automakers (and the cellular carriers that control the on-board infotainment systems) for example are collecting and sharing an ocean of data with only a casual glimpse toward security and transparency. No worry, however, as they promise that they're totally thinking about consumers as they use this data for a litany of new, utterly non-transparent purposes you hadn't even thought about. Like your automaker taking your car's GPS and performance data and selling it to insurance companies to potentially impact your insurance rates.

As yet another example of how your cell and location data may come back to bite you in unforeseen ways, reports suggest that researchers are now exploring the use of metadata to better determine whether you should receive a bank loan. It's relatively early in the effort, but the research is showing that it's not particularly hard to determine a customer's potential finance risk simply by studying their cell behavior:

"Daniel Björkegren, an economist at Brown University in Providence, Rhode Island, is working with EFL to predict whether someone will pay back a loan based on their cellphone data. He combed through the phone records of 3000 people who had borrowed from a bank in Haiti, looking at when calls were made, how long they lasted and how much money people spent on their phones.

The algorithm looks at this metadata to get a sense of a person's character. Do they promptly return missed calls and pay their phone bills? That suggests they might be more responsible. Are most of their calls made in an area far away from the bank branch? Then it may be hard for the bank to keep tabs on their whereabouts.

Björkegren found that the bank could have reduced defaults by 43 per cent by using the algorithm to pick better people to give loans to. The results were presented at the NetMob conference in Cambridge, Massachusetts, earlier this month."

It's worth noting that despite the collected data being anonymized, researchers were able to identify people 90% of the time with just 4 pieces of information. That's yet another example of how anonymous data isn't really anonymous, and if the data gets into the wild -- the fact that it has been "anonymized" doesn't really mean all that much. And with the security on everything from "smart" TVs to home IOT devices usually being relatively flimsy, there's going to be an awful lot of new data on you out there floating around the ether to include in analysis.

And while such a system might be great for the banks, it's probably not so great for you if you didn't want your cell data used in this way. And as the article notes, should you protect your privacy and opt out of your cell data being used in tangential business relationships, customers in the not-so-distant future might find themselves labeled as "suspicious" by companies -- simply for not being in a sharing mood.

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This is the I Was Here Scratch-Off World Map 2.0 from Art Lebedev Studios. The map costs $30 and all the countries are covered with a silver paint that you can scratch off with a coin after you've visited. Or you can just scratch them all off at once because you just wanted a regular world map and don't know how to search Amazon. How many countries have you visited? I have visited all the countries. But only in my dreams, in real life I never leave my apartment and would have already starved to death if somebody hadn't invented BlueApron. Keep going for a shot of the whole map unscratched and scratched. Thanks to Tim, who told me he's never traveled further than 300 miles from home. What are you on a long chain or something? Should I send help?!

The ACLU has a "new" app available that allows users to record interactions with the police and automatically upload them to the ACLU's servers to preserve the footage in case the phone is seized… or smashed on the ground.

The app itself is not new, although it is new to California. Previous ACLU apps that serve the same purpose have already debuted in New York (as "Stop and Frisk Watch"), New Jersey (the now-defunct "Police Tape" app that generated 'flash mob' fears all the way across the country in Burbank, CA), Mississippi, Oregon, Nebraska and Missouri.

Each version has been tweaked to comply with local recording laws and presumably more versions are on the way. The Mobile Justice app also provides a handy list of rights citizens have when interacting with law enforcement (subject to law enforcement recognition of those rights, of course) as well as incident forms that can be filled out post-interaction to give the ACLU more detail on the recording itself.

Inarguably, it has been footage obtained by citizens that has blown the lid off police misconduct in this country -- ranging from seemingly routine harassment of camera-wielding citizens to incidents like the death of Walter Scott at the hands of South Carolina police officer Michael Slager, who shot him in the back as he was running away.

If your local ACLU chapter hasn't put together an app to automatically archive recordings of law enforcement interactions, there's another app on the way that will give anyone the ability to capture footage and ensure that, not only will it survive attempts to destroy evidence, but that it will possibly be seen by others as the event unfolds.

[O]ver the course of the weekend, developer Marinos Bernitsas demoed an app that immediately begins recording live audio and video as soon as you tap the app’s icon, but doesn’t actually display the video stream being recorded on the smartphone’s screen.

Meanwhile, instead of having the stream sent out to the public via social networks like Twitter, only designated contacts you’ve previously configured in the app’s settings are alerted to the incident via phone calls and text messages.

Unlike the ACLU's app, Bernitsas' program isn't specifically aimed at police accountability. It's also meant to act as a form of protection against any potentially dangerous interaction. Because it hasn't been crafted with an eye on local recording laws, there's a chance that footage captured could result in charges being brought against the person recording and streaming the incident.

It does have two advantages over the ACLU's app: First off, the app doesn't need to be opened to initiate a recording. Secondly, anyone who grabs the phone will have little clue they're being recorded. The only indicator that anything out of the normal is happening is a red banner across the top of the screen, which may look like nothing more than phone UI customization. The app also makes it possible to capture and stream recordings in areas where coverage is less-than-optimal.

What’s also clever about the app is that even if the user loses their Internet connection, Witness will record video in 10-second chunks and store them locally on the end user’s iPhone. When their connection returns, that video is uploaded to the server.

With the footage going to any contacts the user chooses rather than a neutral party only interested in certain incidents and interactions (like the ACLU), this app holds potential for abuse. One could easily "repurpose" this public safety app to stream sexual encounters, private conversations, etc.

The upside of this downside is that doing so will violate many states' wiretapping laws, which would provide for prosecution of those who use this app for purposes other than what was intended. That the perpetrator creates his or her own damning evidence is helpful and one would imagine captured footage (if still stored at the pass through point) could easily be obtained from Witness' servers with a subpoena. The ACLU notes that footage sent to it is also potentially accessible to law enforcement via subpoenas or other court orders, but does point out that it will fight these requests, rather than simply hand over whatever's requested.

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Regardless of the many issues people were reporting with discoveryd, Apple went ahead and released it anyway. As a result, this piece of software is responsible for a large portion of the thousand cuts. Personally, I've wasted many hours just trying to keep my devices talking to each other. Macs that used to go months between restarts were being rebooted weekly. The situation is so bad that I actually feel good when I can just kill discoveryd and toggle the network interface to get back to work. Seems to be a huge paint point in OS X right now. I've experienced this issue once with my new retina MacBook Pro since I got it (a week ago), and it basically stops any data from being transferred to the Mac. The wireless connection remains online, but it just does't transfer any data. I hope Apple gets to fixing this soon.

Today US circuit court handed privacy advocates a surprising reversal on a landmark pro-privacy decision.

The post Court’s Reversal Leaves Phones Open to Warrantless Tracking appeared first on WIRED.

The Third Party Doctrine is ridiculous. Law enforcement and intelligence agencies routinely exploit this loophole to warrantlessly access all sorts of data because of the stupid assertion that anything you "voluntarily" turn over to a third party carries no expectation of privacy. The agencies blow right past the reality of the situation: that any "voluntary" exchange of personal data for services is anything but voluntary. Service providers won't provide you with an internet connection or cell phone service without collecting massive amounts of usage data. Hotels and motels won't rent you a room unless you tell them who you are and provide documentation to back up your claims.

So, it's stupid all over and no one's in any hurry to fix it because drugs need to be warred against and terrorists must be handcrafted by FBI undercover agents and the rest of whatever. The courts have generally refused to stretch the Fourth Amendment to cover the data created by these involuntary exchanges. That's a problem and one that is only very slowly being addressed.

Motel 6 has just decided to make it worse. While warrantless access to motel records is being challenged in the Supreme Court, the chain has decided to preemptively strip away any privacy expectations that may result from court rulings and just hand it all over to law enforcement because sometimes criminals stay in motel rooms.

City police have arrested four people staying at the Motel 6 on Jefferson Boulevard as a result of the hotel chain's agreement to provide police with a daily guest list, Mayor Scott Avedisian said Tuesday.

The names of Motel 6 guests, which police then check for outstanding warrants, is one of five steps Motel 6 corporate managers agreed to take in response to a string of high-profile incidents and concerns the establishment was becoming a haven for passing criminals.

Everything about this is pure bootlicking dickishness. See if you can finish reading this statement without looking for something to wipe all the "smug" off you.

"We know everyone who is staying in the hotel tonight," [Mayor Scott] Avedisian said in a phone interview after a meeting with Motel 6 executives that also included Warwick police chief Col. Stephen M. McCartney and Seekonk, Mass., Town Administrator Shawn E. Cadime.

Great. And that's your business why? Oh, because some arrests were made. A modicum of successful law enforcement cures all privacy ills, etc.

Motel 6's spokesmouths aren't exactly coming across as champions of the people either.

As of now, guests who check-in at Warwick’s Motel 6 will not be told their names are on a list that goes to the police station every night.

Alerting motel guests that local police know their whereabouts "is not a normal process of our check-in,” said Victor Glover, a vice president of safety and security for G6 Hospitality, the parent company for Motel 6. “I don’t know that we have any plans of instituting that as we move forward.”

Now that Motel 6 has stepped up to serve as a purveyor of moderately-priced rooms and a fully compliant police informant, law enforcement's foot is completely wedged in the door between room rentals and personal privacy. Mayor Avedisian plans to use Motel 6's kowtowing as leverage against other hotels and motels in the area.

Avedisian said now that Motel 6 has agreed to share its national "do not rent" list of problem guests, he intends to reach out to the Rhode Island Hospitality Association to see if other establishments in the city would be willing to do the same.

I have no problem with private businesses maintaining lists of customers they won't do business with and passing on this information to police if the list contains suspected criminals. But that's miles away from what Motel 6 has agreed to do -- hand over information on everybody who rents a room before the police even ask for it. That's just begging for a lawsuit.

The Warwick police chief says his department never demanded this level of compliance. This was Motel 6's own offering in response to a couple of high profile sex trafficking arrests and pressure from the city, which threatened it with lawsuits and additional regulation. Rather than recognize it as the sort of unfortunate thing that happens from time to time and just move on, Motel 6's execs decided the solution was to fax over a list of guests every evening. The police have no idea on what sort of privacy protections it will put into force -- if anything. Police Chief Stephen McCartney has passed the buck to the state attorney general... as if that mainly-prosecutorial office is going to issue tough restrictions on data retention or meaningful privacy protections.

The Third Party Doctrine is already terrible enough. What it doesn't need is do-gooders like Motel 6 erasing what minimal line there is between its customers' data and law enforcement.

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The Department of Justice is looking closely into Apple’s business practices in relation to its upcoming music streaming service, according to multiple sources. The Verge has learned that Apple has been pushing major music labels to force streaming services like Spotify to abandon their free tiers, which will dramatically reduce the competition for Apple’s upcoming offering. DOJ officials have already interviewed high-ranking music industry executives about Apple’s business habits. [...] Sources also indicated that Apple offered to pay YouTube’s music licensing fee to Universal Music Group if the label stopped allowing its songs on YouTube. Apple is seemingly trying to clear a path before its streaming service launches, which is expected to debut at WWDC in June. If Apple convinces the labels to stop licensing freemium services from Spotify and YouTube, it could take out a significant portion of business from its two largest music competitors. This clearly calls for an official EU investigation into Google.

As we've noted, there's a new USA Freedom Act in town, and it's on the fast track through Congress. It has some good stuff in there, and is generally a step forward on surveillance reform and ending certain forms of bulk collection -- though there are some concerns about how it can be abused. But one thing that plenty of people agree on, is that even if it's a step, it doesn't go nearly far enough. Last Thursday, there was a markup in the House Judiciary Committee, to help move the bill to the floor, and some amendments were proposed to improve the bill -- all of which got rejected.

What was especially frustrating, was that for at least one key amendment, everyone agreed that it was important and supported it, and yet they still refused to support it. The reasoning, basically, was that the existing bill was the work of many, many months of back and forth and compromises, and the administration and the House leadership had made it clear that it would not approve a single deviation, even if it was really important. The amendment in question was basically a replica of an appropriations amendment from Reps. Ted Poe, Zoe Lofgren and Thomas Massie that we wrote about last year, which surprised many by passing overwhelmingly in the House, only to be stripped out by the Senate. The key idea: ending the ability of the NSA and others to do "backdoor searches" on data collected under Section 702 of the FISA Amendments Act (both the "upstream" collection and PRISM). And even though everyone supported it, they couldn't go forward with it and upset the rest of the process:

It was clear from their comments that a majority of committee members supported the goal of the amendment. Indeed, no member spoke against it on substantive grounds. But Committee Chair Bob Goodlatte (R-Va.) explained that the bill represents a fragile compromise — primarily with members of the House Intelligence Committee (HPSCI) — and that House leadership had made clear the bill would not get a floor vote if the Judiciary Committee amended it. (Whether leadership is carrying the water for HPSCI or vice versa — and what role the administration is playing here — are unanswered questions that deserve their own blog post.) The members were faced with a choice: acknowledge the terms set by House leadership and vote against an amendment designed to restore critical Fourth Amendment protections for Americans, or reject those terms and possibly derail surveillance reform altogether.

That’s where things got interesting, as the members spent an hour thoughtfully parsing what the right course of action was. (In the video, the amendment was proposed at 1:11:00.) More than one member characterized Poe’s amendment as an example of “the perfect being the enemy of the good.” There was consensus that back door searches implicate the Fourth Amendment. But, Goodlatte said, so does the bulk collection of Americans’ phone records — an important statement, given the FISA Court’s controversial rulings to the contrary. By killing the bill’s chances of a floor vote, Goodlatte implied, Poe’s amendment would be a net negative for the Fourth Amendment. Goodlatte also pledged to hold hearings on Section 702 in the near future, and to work with Poe to find opportunities outside of the context of the USA Freedom Act to address the problem.

Other members, though, were not willing to accept House leadership’s efforts to constrain them. Rep. Zoe Lofgren (D-Calif.) posed the key question of the morning: what can members do when House leadership is blocking reform favored by a majority of the House? Poe’s amendment mirrored an amendment offered last year by Lofgren and Rep. Thomas Massie (R-Ky.) to a defense appropriations bill; that amendment passed overwhelmingly, 293–123, with 94 Republicans voting in favor. Lofgren suggested it might be time to consider a discharge petition — a procedural measure by which a majority of House members can bring legislation to the floor for a vote even if House leadership objects. She acknowledged that it’s difficult for the majority to buck the will of leadership, but that this was a case of “right versus wrong,” pitting the Constitution against “lawless behavior.”

Poe showed even more frustration. Addressing Rep. Jim Sensenbrenner’s (R-Wis.) observation that the Committee would have a chance to revisit Section 702 in 2017 when the FAA expires, Poe observed dryly that the Committee was not simply delaying the building of a bridge. It was delaying vital Fourth Amendment protections for Americans. He put the question simply: do politics trump the Constitution, or does the Constitution trump politics? He urged fellow committee members not to let leadership’s threats dictate their vote. He said they should support the amendment and let the political chips fall where they may.

And, yes, of course, in the end the amendment was rejected 24 to 9. I think the whole "perfect is the enemy of the good" argument made by some is clearly bogus in this scenario. The only "good" to come out of this is the fact that Poe, Lofgren and others aren't willing to let this matter drop -- though the idea of waiting until 2017 to address an issue that we already know the majority of the House supports, is pretty ridiculous. Especially when pretty much everyone agrees that we're talking about violations of the 4th Amendment.

Hopefully this means that this issue will get addressed separately, even if not in this particular bill. The fear, as always in this sort of situation, is that after the Herculean effort just to get this far to get this particular bill approved, that no one will have the appetite to continue the process and get the other necessary reforms in place.

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Every one of us has already had this fight at some point: Apple or Android? The two dominant players in the mobile space carry with them very loyal fanbases who, for some reason, like to spar off with one another over whose tech-daddy could beat up the other. The companies compete with the same level of petty at times, which doesn't help. Apple screws around with text messages from Android users, Android pokes back at Apple over the controlling hand it has in its app store, and the two companies spend a great deal of time in legal battles because of course they do. C'mon, guys, can't we all just spend our time pointing and laughing at Windows Mobile?

Apparently not, considering the report that one recent Android/Apple argument concluded with both combatants stabbing the hell out of each other with broken glasses.

Tulsa’s Channel 8 reports that police were called to a local apartment complex at around 1:00am on the morning of April 17 to investigate at least one report of a bloody person wandering around the parking lot. According to the Tulsa World, police found roommates Jiro Mendez and Elias Ecevo each in some distress—Mendez was the man in the parking lot and was covered in scratches and wounds, while Ecevo, similarly wounded, apparently had stayed inside their apartment.

The World indicates that Mendez told police that the wounds resulted from an argument between the roommates, which started over which roommate had the better smartphone—Apple or Android—and ended with both roommates allegedly stabbing each other with broken glass bottles, and Ecevo allegedly stealing Mendez’s car (police found the car near the apartment, with blood in the interior). Perhaps unsurprisingly, alcohol appears to have been a factor in the fight.

Yeah, no kidding. I have my brand loyalty, too, but I'm pretty sure I wouldn't feel so offended at a roommate's opinion of my phone that I felt I had to avenge the inanimate object by getting all stabby. Both men ended up getting arrested and were sent to the hospital to have their wounds treated. In a perfect world, they would be laid up next to each other, Instagram-selfying from their beds with comments about how awesome the pictures from their respective phones looked.

Either way, I'm guessing there might be changes to their lease coming shortly.

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