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Judge Slams Ken Paxton’s Attack On Media Matters’ Free Speech Rights

from the absolute-free-speech-suppressor dept

The First Amendment has won again, this time against another pretend “free speech absolutist” (Texas Attorney General Ken Paxton) in his attempt to punish someone for their free speech. Perhaps Ken Paxton will have to learn about the First Amendment in these remedial legal ethics education classes he’s required to take as part of closing out the criminal charges he was facing for years.

You may recall that after fake free speech absolutist Elon Musk got all pissy at Media Matters’ use of its own free speech rights to point out the fact that they were able to find ads on ExTwitter from giant companies appearing next to the accounts of literal neo-Nazis, a couple of pandering state Attorneys General decided they’d use the power of their states to punish Media Matters.

The whole thing is incredibly stupid, but just to set the stage, Musk started whining about how unfair it was that Media Matters found and wrote about the ads. Trump advisor Stephen Miller tweeted that he thought state AGs should investigate Media Matters for their article, and both Paxton and Missouri’s Andrew Bailey jumped up to do so.

Paxton sent a civil investigatory demand (CID) as a sort of fishing expedition, demanding Media Matters hand over a ton of internal documents. Media Matters responded by going to court, initially in Maryland, but then quickly moved to DC (after the judge in Maryland suggested that was the proper venue) and asked the court to protect it from this obviously ridiculous, retaliatory attack. The attack was clearly designed to create chilling effects to stop any sort of investigatory reporting on what was happening to ExTwitter.

On Friday, Judge Amit Mehta did a complete and total takedown of Paxton’s bullshit censorial attack on Media Matters’ speech. The whole thing is worth a read. Paxton argued that the DC court has no jurisdiction over his Texas-based investigation. This is a bit ironic, given that Paxton is at the same time claiming jurisdiction over Media Matters despite it being in DC, not Texas.

Turns out, Paxton screwed himself here (such a good lawyer, huh?) by hiring a process server to deliver the CID in DC, thereby making the jurisdiction question a lot easier:

First, the court finds that Defendant invoked the benefits and protections of the District’s laws when he “caused” service of the CID in the District of Columbia “through a professional process service.” Def.’s Opp’n, Decl. of Ass’t Att’y Gen. Levi Fuller, Ex. 1, ECF No. 26-1, ¶ 3 [hereinafter Fuller Decl.]. Courts have found that the hiring of a process server creates an agency relationship between the attorney and process server, and that relationship establishes the attorney’s presence in the jurisdiction to satisfy the “minimum contacts” requirement. See Schleit v. Warren, 693 F. Supp. 416, 419–20 (E.D. Va. 1988) (so holding under Virginia law); Balsly v. W. Michigan Debt Collections, Inc., No. 11-cv-642-DJN, 2012 WL 628490, at *5–7 (E.D. Va. Feb. 27, 2012) (same); Hamilton, Miller, Hudson & Fayne Travel Corp. v. Hori, 520 F. Supp. 67, 70 (E.D. Mich. 1981) (so holding under Michigan law). Courts also have held that a person who arranges for personal delivery of process in a State “purposely avail[s] themselves of the privilege of serving process in [the State].” Hori, 520 F. Supp. at 70. As one court has put it: “it [is] reasonable to conclude that a lawyer who knowingly serves abusive process in a jurisdiction . . . is ‘purposely avail[ing] himself of the privilege of conducting activities within the forum State.’” Schleit, 693 F. Supp. at 422–23 (quoting Luke v. Dalow Indus., Inc., 566 F. Supp. 1470, 1472 (E.D. Va. 1983)). Defendant’s hiring of a process server in the District of Columbia to effect service on Media Matters therefore created the requisite jurisdictional contacts with the District. See Smith v. Jenkins, 452 A.2d 333, 335 (D.C. 1982) (“Generally an agency relationship results when one person authorizes another to act on his behalf subject to his control, and the other consents to do so.”) (citations omitted).

Maybe they can teach that in Paxton’s remedial classes as well.

The judge also notes the irony of Paxton claiming to be able to enforce Texas law in DC but then not to be subject to a DC court himself:

Defendant promised to “vigorously enforce” the Texas DTPA against Media Matters for “fraudulent acts” with no apparent connection to Texas. Branch Decl., Ex. B at 13. His issuance of the CID had the effect of chilling Plaintiffs’ expressive activities nationwide, which deprived D.C. residents access to Plaintiffs’ reporting. The national implications of Defendant’s actions were compounded by his calling upon other Attorneys General to investigate Media Matters. See id., Ex. C, at 17. Thus, like the New Jersey Attorney General in Grewal, Defendant “projected himself across state lines and asserted a pseudo-national executive authority” that makes exercising jurisdiction over him reasonable and does not offend principles of federalism.

Having shown that Paxton has done enough that the DC Court has jurisdiction over him, the court takes on Paxton’s claim that his CID presents no injury to Media Matters (try not to laugh). Judge Mehta points out how ridiculous this claim is by basically saying, “dude, do you even know how the First Amendment works?”

Where, as here, a plaintiff brings a claim of First Amendment retaliation, “the injury-infact element is commonly satisfied by a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.” Edgar v. Haines, 2 F.4th 298, 310 (4th Cir. 2021), cert. denied, 142 S. Ct. 2737 (2022) (quoting Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)) (internal quotation marks omitted); see also Twitter, 56 F.4th at 1174 (citing Edgar, 2 F.4th at 310); Cooksey, 721 F.3d at 236 (finding justiciable injury where a state official informed plaintiff that she had “statutory authority” to seek an injunction against him if he did not edit his diet-advice website and plaintiff alleged “speech-chilling uncertainty about the legality of private conversations and correspondence”). The chill must be “objectively reasonable.” Edgar, 2 F.4th at 310 (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

Through sworn affidavits, Plaintiffs have demonstrated the profound chilling impact that the CID has had on its news operations and journalistic mission. Media Matters’ Editor-in-Chief, Benjamin Dimiero, declares that the CID has “dramatically changed [his] team’s editorial processes[.]” Pls.’ Mot., Decl. of Benjamin Dimiero in Supp. of Pls.’ Mot., Ex. 4, ECF No. 4-4, ¶ 16 [hereinafter Dimiero Decl.]. Dimiero describes a “new culture of fear” amongst Media Matters staff about research and reporting. Id. For example, he avers that the editorial team and leadership now engage in “greater internal scrutiny and risk calculation” when approaching stories that they otherwise would have published after their normal vetting process, such as stories about media coverage of the Defendant’s anti-abortion actions in Texas. Id. Dimiero further states that other stories, such as one concerning content moderation decisions made by X, “may go unreported on entirely.” Id. “There is,” he says, “a general sense among our team and organization that we must tread very lightly[] and be careful not to cross lines that would jeopardize our work or our employees’ safety . . . because of concern that certain reporting could make us a target for further retaliation.”

According to Dimiero, since Defendant announced the investigation, “Media Matters’s editorial leaders have pared back reporting and publishing, particularly on any topics that could be perceived as relating to the Paxton investigation.” Id. ¶ 17. Absent the CID, Media Matters would have coordinated follow up research and reporting on Hananoki’s November 16 Article, as well as the one that appeared the next day. Id. ¶ 18. Media Matters, for instance, “received several tips from people who have seen advertisements for prominent brands placed alongside extremist content,” but has limited the scope of its reporting on the subject “for fear of additional retaliation.” Id. Furthermore, Media Matters otherwise would have published at least two additional articles on the topics of Hananoki’s reporting, but his team withheld them due to concerns of further legal action. Id. ¶ 19. Writers have expressed concerns that their investigations could serve as the basis for retaliatory legal action and that their work product might be subject to investigative demands. Id. ¶ 22; see also Padera Decl. ¶¶ 23–24 (same). Media Matters’ leadership and editorial team have since assumed a more significant role in publishing decisions, which “has significantly slowed down [their] editorial and publication process.” Dimiero Decl. ¶ 21. Media Matters has been taking these steps out of fear of retaliation, not out of legitimate concerns about fairness or accuracy

I can relate, having been sued for my accurate reporting myself. The mental toll that such a lawsuit has on your reporting is very real, even when (arguably especially when) you know that your reporting was 100% solid. It’s incredibly chilling that you can still end up in court, facing ruinous liability, even when you do everything right.

From there, Judge Mehta moves on to the likelihood of success for Media Matters. He notes he only needs to do so for the First Amendment issue, which are pretty obvious and very easy.

Defendant’s investigation of Media Matters is “retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again[.]” Aref, 833 F.3d at 258. Defendant makes no contrary argument, Def.’s Opp’n at 23, so the court treats as conceded the sufficiency of Plaintiffs’ proof as to this element, see Day v. D.C. Dep’t of Consumer & Regul. Affs., 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.”); see also Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.”)

Still, the court explains why Plaintiffs prevail regardless. “[T]he threat of invoking legal sanctions” is sufficient to deter protected speech. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). So, too, is the “threat of administrative and judicial intrusion into newsgathering and editorial process” that arises from official process and its possible enforcement. United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) (internal quotation marks omitted). The Texas Code authorizes the Attorney General to seek restraint of future conduct and the imposition of civil penalties of up to $10,000 per violation in a Texas state court if he has “reason to believe” Plaintiffs violated the DTPA. Tex. Bus. & Com. Code § 17.47(a), (c). He also can seek to have Plaintiffs held in contempt in Texas state court for not complying with the CID. Id. § 17.62(c). These potential punitive consequences, as well as possible judicial intervention to enforce the CID, make Plaintiffs’ claim of chilled expression objectively reasonable.

There is more. “The compelled production of a reporter’s resource materials can constitute a significant intrusion . . . [that] may substantially undercut the public policy in favor of the free flow of information to the public[.]” United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980). The CID seeks such records. It demands “internal and external communications . . . regarding Elon Musk’s purchase of X,” X’s CEO “Linda Yaccarino,” and Hananoki’s November 16 Article, as well as external communications with “employees and representatives of X” and the various companies that were the subject of the November 16 Article for a three-week period. Branch Decl., Ex. A, at 11. The compelled disclosure of such “research materials poses a serious threat to the vitality of the newsgathering process.” Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995). And, of course, Plaintiffs’ actual self-censorship in response to the announced investigation and the CID “provides some evidence of the tendency of [Defendant’s] conduct to chill First Amendment activity.” Hartley v. Wilfert, 918 F. Supp. 2d 45, 54 (D.D.C. 2013) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)). The court need not repeat that uncontested evidence here.

Also, Paxton apparently didn’t even try to defend non-censorial reasons for opening the investigation:

To establish causal link, “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). Defendant’s initial press release establishes that Defendant opened an investigation of Media Matters in response to its protected media activities. Branch Decl., Ex. B, at 13. Also, Defendant’s description of Media Matters as a “radical anti-free speech” and “radical left-wing organization” and his encouraging of other Attorneys General to look into Media Matters’ reporting is evidence of retaliatory intent….

Defendant has not responded to Plaintiffs’ causation evidence. See Def.’s Opp’n at 22–23. Notably, he has not submitted a sworn declaration that explains his reasons for opening the investigation. By remaining silent, he has conceded the requisite causal link

It seems quite possible that Ken Paxton is a terrible lawyer.

Paxton also claimed that Media Matters’ voice wasn’t chilled because the org had continued to speak out in defense of its reporting. But, as the court notes, that’s not how any of this works. At all.

Defendant also contends that it is “factually untrue” that Media Matters has had its expression chilled, citing television appearances by Media Matters’ President, in which he has defended the organization’s reporting and “doubled down” on the accuracy of the X images contained the November 16 Article. Def.’s Opp’n at 24; Fuller Decl., Exs. E & F, at 24–39. But this argument asks too much of Plaintiffs. They “need not show that the government action led them to stop speaking ‘altogether,’” only that it would be “likely to deter a person of ordinary firmness from the exercise of First Amendment rights.” Edgar, 2 F.4th at 310 (quoting Benham 635 F.3d at 135). Therefore, the fact that Media Matters’ President has publicly defended its work does not mean that Plaintiffs have not suffered irreparable harm.

End result: preliminary injunction barring Paxton from enforcing his CID.

Of course, now we’ll have to see what happens in Missouri, where AG Andrew Bailey (who also pretends to be a free speech warrior while trying to suppress the speech of others) not only sent a CID, but immediately sued Media Matters in Missouri. He claims that Media Matters’ decision to go to court to block Paxton’s CID meant that they would refuse to bow down to his demands as well. That, of course, puts that case in a local Missouri court. But one hopes that this ruling will help clarify the First Amendment issues for that court as well.

Still, chalk one up for actual free speech and the First Amendment: Ken Paxton has had his attempt to retaliate against Media Matters for its speech smacked down, as was richly deserved.

Filed Under: 1st amendment, andrew bailey, chilling effects, cid, dc, elon musk, free speech, ken paxton, retaliation, texas
Companies: media matters

Facebook-Hired PR Firm Coordinated Anti-TikTok Campaign To Spread Bogus Moral Panics

from the sockpuppetry dept

Late last year, a coordinated messaging campaign emerged on the anniversary of the repeal of net neutrality. Numerous pundits and right-wing news outlets all simultaneously issued reports on the same day claiming that because the Internet hadn’t exploded in a rainbow, that the FCC’s extremely unpopular 2017 decision to gut oversight of predatory telecom monopolies must not have mattered (it mattered).

It wasn’t a coincidence, it was a coordinated PR gambit spearheaded by the telecom industry. And it appears to have been helped along thanks to a K Street PR shop named Targeted Victory. One of former FCC boss Ajit Pai’s top assistants now works at Targeted Victory, and it lists AT&T as one of its top paying clients. Surely all coincidental, though.

Fast forward to this week, and that same lobbying, policy, and PR firm has been caught in brighter headlights, given it involves the only subject that appears to matters in DC policy right now: “big tech.” The Washington Post discovered that Facebook, last year, hired Targeted Victory to agitate the GOP into criticizing TikTok (which many of them were doing anyway):

“Employees with the firm, Targeted Victory, worked to undermine TikTok through a nationwide media and lobbying campaign portraying the fast-growing app, owned by the Beijing-based company ByteDance,as a danger to American children and society, according to internal emails shared with The Washington Post.”

There’s been no shortage of contrived freak outs about TikTok over the last few years. Like, remember when the GOP (a party that genuinely could not give any less of a shit about consumer privacy), suddenly expressed all manner of concern about TikTok consumer privacy (and only TikTok consumer privacy)?

Then, of course, there was that whole cronyistic effort by Trump to force a TikTok sale to his BFFs at Walmart and Oracle, which ultimately fell apart because it wasn’t based on much of anything (though, remember, it came out pretty quickly that Facebook had been whispering to Trump to go after TikTok). From the sounds of things, it wasn’t particularly hard for Targeted Victory to get certain DC tech and political access journalists to play along as well:

In one email, a Targeted Victory director asked for ideas on local political reporters who could serve as a “back channel” for anti-TikTok messages, saying the firm “would definitely want it to be hands off.”

In other emails, Targeted Victory urged partners to push stories to local media tying TikTok to dangerous teen trends in an effort to show the app’s purported harms. “Any local examples of bad TikTok trends/stories in your markets?” a Targeted Victory staffer asked.

“Dream would be to get stories with headlines like ‘From dances to danger: how TikTok has become the most harmful social media space for kids,’ ” the staffer wrote.

It appears that they were somewhat successful in getting some of those articles placed. As we discussed last fall, there was a huge anti-TikTok moral panic around the whole “Devious Licks” challenge, and false claims that kids had planned out a series of increasingly worse challenges for each month throughout the year — including a “slap a teacher” challenge. However, as we noted, the whole thing was simply adults making shit up, based on an exaggeration that was first posted… to Facebook, not TikTok.

At the time, we suggested that the real problem was gullible parents and local media falling for it — but hadn’t considered that it was actually Facebook and its hired guns planting the entire thing. And yet… there it is:

One trend Targeted Victory sought to enhance through its work was the “devious licks” challenge, which showed students vandalizing school property. Through the “Bad TikTok Clips” document, the firm pushed stories about the “devious licks” challenge in local media across Massachusetts, Michigan, Minnesota, Rhode Island and Washington, D.C.

That trend led Sen. Richard Blumenthal (D-Conn.) to write a letter in September calling on TikTok executives to testify in front of a Senate subcommittee, saying the app had been “repeatedly misused and abused to promote behavior and actions that encourage harmful and destructive acts.” But according to an investigation by Anna Foley at the podcast network Gimlet, rumors of the “devious licks” challenge initially spread on Facebook, not TikTok.

In October, Targeted Victory worked to spread rumors of the “Slap a Teacher TikTok challenge” in local news, touting a local news report on the alleged challenge in Hawaii. In reality, no such challenge existed on TikTok. Again, the rumor started on Facebook, according to a series of Facebook posts first documented by Insider.

What the Post story doesn’t mention is that there was a separate, but very, very similar scenario that happened in December, that actually resulted in a bunch of schools closing down for the day due to the claims of a TikTok challenge to “shoot up schools.” Again, there was no evidence of any such challenge, but the local media flocked to the story, making it go viral, leading plenty of schools to shut down. In other words, it’s entirely possible that Facebook’s anti-TikTok PR campaign literally resulted in school’s shutting down for a day.

Facebook’s response to this is absolutely ridiculous:

Meta spokesperson Andy Stone defended the campaign by saying, “We believe all platforms, including TikTok, should face a level of scrutiny consistent with their growing success.”

That’s really bad on multiple levels. Ridiculously bad. Of course, it’s not new for the company. As it has faced antitrust challenges, one of the responses from Facebook has been to try to drag Apple into similar antitrust challenges at the same time. We highlighted how counterproductive this strategy was for Facebook, and was told by a senior exec that it was “unfair” that Facebook would receive such scrutiny, and that Apple should have to go through the same thing.

But that kind of insecurity is so incredibly counterproductive. Rather than trying to fix its own home, the desire to drag others down with Facebook seems not just stupid and counterproductive, but likely to do serious harm to the wider internet at the same time.

While it may have been possible to get someone like Donald Trump to push for plans that targeted TikTok specifically, it seems much more likely that any regulatory response to these fluffed up moral panics aren’t going to simply target TikTok, but rather the wider ecosystem of internet companies. In other words, this stupid campaign is likely to lead to regulations that hit Facebook.

Of course, as we’ve noted in the past, Facebook’s recent warm embrace of regulations is because it (stupidly) thinks that (1) it can somehow steer the regulations in a manner that it can handle, and (2) Facebook’s biggest threats cannot. In other words, just as we’ve been warning, Facebook sees internet regulations as its best tool against competition. Because even if those regulations hinder some of Facebook’s plans and products, the company believes it can weather those storms way more than smaller competitors.

And why not? After all, regulatory “attacks” on Facebook like the EU’s GDPR only served to cement Facebook’s position against everyone else.

Again, it’s not particularly hard to get geriatric millionaires in DC agitated over something with just a little cash and a few nudges, especially if you can play to their rampant xenophobia (Cisco has been exploiting this for years to prevent Chinese telecom hardware from eroding their U.S. market share). This kind of dodgy messaging happens pretty frequently and was normalized long ago.

Targeted Victory CEO Zac Moffatt tried to “defend” his firm’s anti-TikTok campaign by saying that the team is bipartisan and not just focused on GOP politicians (which is a laughable claim, given the firm’s history — and also not really an important point in the story). His only other defense is that… the Washington Post also fell for the TikTok moral panic stories. Which… isn’t exactly a defense of what Targeted Victory did, but rather a kind of confirmation of how easy it is for firms like Targeted Victory to spin up and support these kinds of moral panics in the first place.

Sure, this kind of attack the opposition may be a standard political move, but when you see it in the corporate world, it’s generally a sign that a company has lost its ability to innovate. Rather than figuring out how to better serve its users, the best that Facebook can do these days is try to tear down those who are building products that people like better. In the end, it’s just kind of pathetic.

Filed Under: big tech, dc, gop, lobbying, moral panic, pr firm, social media, sockpuppet, tech
Companies: facebook, meta, targeted victory, tiktok, washington post

Oversight Report Says DC's Metro Police Can't Be Bothered To Investigate Serious Crimes

from the why-fight-crime-when-you-can-just-shuffle-papers dept

Police, v. : maintain law and order

Police, n.: responsible for the prevention and detection of crime and the maintenance of law and order

Given these definitions, how is it that Washington, DC’s Metro Transit Police Department still has the word “police’ in its name?

Metro Transit Police can’t demonstrate that officers investigated thousands of reported robberies, assaults, sex offenses and property crimes over a span of several years, according to the agency’s internal watchdog.

In the case of 1,200 reported crimes, “investigative case files lacked any documentation of investigative activity,” according to a report released Thursday by the agency’s Office of Inspector General. More than 1,600 other case files were missing or withheld from the inspector general, according to the report.

Don’t let the name “transit” fool you as much as the word “police” has. The Transit Police “investigate” all crimes that occur on city transit property. Some of these are serious crimes. And they’re treated with way less enthusiasm than officers deploy against fare jumpers.

909 cases were open robberies (4.89%) 108 cases were open felony assaults (.58%) 471 cases were open misdemeanor assault (2.53%) 3 cases were open felony sex offenses (.02%) 66 cases were open misdemeanor sex Offenses (.36%) 48 cases were open indecent exposure cases (.26%) 1514 cases were open crimes against property (8.15%)

This is part of the long list of crimes that MTPD isn’t solving or even, apparently, investigating. The Inspector General’s report [PDF] is an entertaining read, but for all the wrong reasons. It details a distressing amount of incompetence or lack of cooperation. Or possibly both.

OIG began its investigation in August 2020 and has made multiple attempts to recover all 3,110 investigative files. OIG has provided MTPD numerous opportunities to produce all investigative material associated with these complaints, but MTPD’s production, to date, has been incomplete. After six months, multiple suspense deadlines, and given the significant decrease in the volume of investigative case files being produce by MTPD, the OIG closed its investigation with MTPD’s limited production of investigative files.

[…]

An analysis of the documentation provided revealed that approximately 84.1% (1,215 cases) of what MTPD described as investigative case files lacked any documentation of investigative activity. MTPD staff’s failure to properly and accurately maintain investigative files, evidence, and/or associated judicial records obstructed OIG’s ability to determine if CID Detectives ignored victim complaints between 2010 and 2017.

You know, obstruction is a crime. Obviously, someone other than the MTPD should investigate this.

Maybe it’s not just incompetence. The OIG notes it opened an investigation in 2012 after receiving an allegation that Transit detectives were falsifying investigations. In that investigation, the OIG found discrepancies between what was documented by CID (Criminal Investigations Division) detectives and what the OIG was told by crime victims it interviewed.

The obstruction/incompetence was present then, too.

As in this current investigation, in 2012, the OIG requested to review 2011 and 2012 CID case files; however, MTPD could not produce 88 out of 134 randomly selected suspended case files.

Corrective actions were ordered and supposedly implemented. But the Inspector General says nearly a decade later, some of what it recommended still has yet to be completed by the MTPD.

From what’s seen in this report, it appears the MTPD just isn’t interested in investigating crimes. The investigation files seen by the Inspector General contained almost no evidence any investigation occurred. Instead, it appeared CID detectives were simply checking boxes until the case could be closed, in most cases without any resolution.

Out of the 1,445 case files provided, 82.1% (1,186 cases) contained only a one-page closing document without any evidence that an actual investigation was ever conducted. Moreover, 2% (29 cases) contained only two documents, a closing document and the ER [End Report], which is a document generally prepared based on information gathered by the responding MTPD officer. In these 29 cases, however, there was still no evidence that an actual investigation was ever conducted.

Even though these one-page closing documents did not contain investigative activity, they were nonetheless used to change the status of these investigations from open to suspended, which signifies that no further investigative activity was warranted. Most closing documents were signed by CID management officials who justified the suspension status change of these investigations based solely on a written claim that the statute of limitations to bring charges against a suspect had passed along with a statement indicating they were unable to locate the original report and case file.

Sure, the statute of limitations can prevent some cases from being investigated further, but the MTPD had no idea if the statute of limitations had run because it often had no idea what specific crime was alleged. The cases were “suspended” by CID supervisors, who never bothered to speak to detectives to see what investigative activity had occurred or obtain further details about the alleged crime.

The whole system — bought and paid for with the tax dollars of underserved DC residents — sucks. It starts at the top, gets worse in the middle, and by the time it reaches the bottom, the only thing that does “work” is the perverse incentives.

OIG interviewed numerous other individuals who were current and/or former CID supervisors from 2010 through 2020. None of these individuals could definitively state that all 3,110 victim and general complaints were investigated. They all expressed concern over the discovery of 3,110 complaints that still appeared to be in an open status in the CID database. They generally attributed the lack of accountability and oversight of CID cases to a variety of factors, including lack of supervisory knowledge of CID’s duties and responsibilities; insufficient supervisory staff; lack of administrative case oversight; high caseloads; nonexistence of policies and procedures; and lack of a case tracking system. In addition, the interviews uncovered that performance evaluations of case work only focused on closure rates, which did not account for suspended cases and/or disposition of previously open cases from past fiscal years.

This investigation by the Inspector General is yet another MTPD-related investigation that can never be considered properly closed. The IG says it is forced to conclude that records related to 1,500 investigations simply no longer exist.

As the IG points out, this is abysmal and it will result in a host of negative side effects. The OIG says (again) the MTPD obstructed its ability to carry out this investigation properly. The large number of missing investigative files make it impossible to determine whether or not CID detectives ignored complaints from victims — another allegation of misconduct that cannot fully be resolved. The missing documentation will also put past prosecutions in jeopardy of being overturned. Finally, there’s the blow to public confidence the MTPD can’t possibly absorb — not with its history of tagging minorities for minor offenses while ignoring more serious criminal acts occurring in its jurisdiction.

Filed Under: crimes, dc, investigation, metro police, police

DC Legislators Push FOIA Amendment That Would Shield Government Emails From FOIA Requesters [UPDATE]

from the dirtbags-gonna-dirtbag dept

UPDATE: Alex Howard reports the DC Council has tabled this amendment so it is no longer being considered during this round of budget debates.

Buried at the bottom of Washington, D.C.’s 2020 budget report [PDF] is a gift to legislators who value opacity. The so-called “Freedom of Information Clarification Amendment” would make it much more difficult for requesters to obtain the documents they’re seeking.

The amendment to the district’s FOIA law would require requesters to know exactly what documents they’re seeking when they request them. It’s a nearly-impossible bar to hurdle — one that turns FOIA requests into games of Battleship.

“Reasonably describing” means describing with particularity the public records requested by including the names of the sender and recipient, a timeframe for the search, and a description of the subject matter of the public record or search terms to allow a public body to conduct a search and review within the time prescribed pursuant to section 202(c).”.

What this means is requesters seeking communications would need to know both the sender and recipient of emails they’ve never seen or the agency can reject the request entirely. The legislator pushing this says it will stop “fishing expeditions.” But requests are sometimes necessarily “fishing expeditions” because requesters are working blind. They don’t have access to these communications and have no way of knowing how many parties discussed the subject at hand. If this passes, D.C. government agencies will be pressing the “reject” button with increased frequency.

If there’s anything transparent here, it’s the self-interest of the legislators pushing the amendment. One member of the D.C. Council — a Democrat like the councilmember who wrote the amendment — has been the subject of unflattering news coverage based on FOIA requests.

In March, for example, The Washington Post reported that D.C. Council Member Jack Evans (D-Ward 2) had repeatedly sent business proposals to potential employers in which he offered his connections and influence as the city’s longest-serving lawmaker and chairman of the Washington Metropolitan Area Transit Authority. Evans made those pitches using his government email account, and journalists obtained them through the District’s FOIA law.

[…]

Last year, journalist Jeffrey Anderson, also using documents obtained through FOIA, reported that Evans’s son was offered an internship by a digital-sign company that would have benefited from legislation Evans advanced at the council.

Legislators’ own dishonest dealings have often resulted in calls to change public records rules to provide more opacity. Claims are made about “fishing expeditions” and protecting the private lives of legislators but, in reality, the real goal is protecting government employees from the people they serve.

Filed Under: dc, dc city council, foia, transparency, washington dc

Judge Roy Moore Sues Sacha Baron Cohen For Ruining His Immaculate Reputation

from the CAN-I-HAVE-SOME-MONEY-NOW dept

Judge Roy Moore — perhaps most famous for his (alleged) predilection for jailbait — is suing entertainer Sacha Baron Cohen for somehow ruining his spotless reputation with the ol’ libelslander. Moore is represented by stunt lawyer Larry Klayman, which assures this complaint will be greeted with a heavy sigh by the presiding judge, and that a not-insignificant amount of the billable hours will be eaten up by Klayman getting admonished by the court.

As can probably be inferred without even reading the complaint [PDF], Moore got duped by Cohen to appear on his show, regrets being duped, and thinks Cohen (and Showtime/CBS) should pay him real money for tarnishing his otherwise squeaky-clean reputation. Let’s just see what he’s asking for…

[…] actual, compensatory, and punitive damages in excess of $95,000,000 USD, as well as attorneys’ fees and costs, and any other relief that this Court may deem just and proper.

Moore, with the assistance of Klayman, figures his appearance on Cohen’s new show did nearly 100millionindamagetoMoore’sreputation—onepre−sulliedbysexualmisconducttargetingteenagedgirlsallegations.Mooreestimateshisreputationis100 million in damage to Moore’s reputation — one pre-sullied by sexual misconduct targeting teenaged girls allegations. Moore estimates his reputation is 100millionindamagetoMoore’sreputation—onepre−sulliedbysexualmisconducttargetingteenagedgirlsallegations.Mooreestimateshisreputationis95 million worse off, thanks to his inability to vet requests for public appearances.

Here’s how all the “defamation” went down, according to the complaint.

In order to fraudulently induce Judge Moore and Mrs. Moore to travel to Washington, D.C., where filming was to and did take place, and where the majority of acts pled herein occurred, on or about February 14, 2018, Defendant Cohen and his agents falsely and fraudulently represented to Plaintiff that Yerushalayim TV – which does not actually exist – was the producer and broadcaster of the show that Judge Moore would appear on, instead of the actual network that the show that later appeared on Showtime. In addition, Defendant Cohen and his agents falsely and fraudulently represented that Judge Moore and Mrs. Moore were both being invited to Washington, D.C., for Judge Moore to receive an award for his strong support of Israel in commemoration of its 70th anniversary as a nation state. This ceremony, and presentation of this award, Defendant Cohen falsely and fraudulently represented was to occur during the interview.

Somehow this is Cohen’s fault (and by extension, his co-defendants’ fault — CBS and Showtime) even though Moore admits he did nothing to ensure he wasn’t being led astray by a nonexistent television station.

Had Judge Moore and Mrs. Moore known that Defendant Cohen had fraudulently induced Judge Moore into this interview, which as a “set up” to harm and thus damage Plaintiffs and the rest of their entire family, Judge Moore would not have agreed to appear. Plaintiffs relied on and had reason to rely on Defendant Cohen’s and his agents’ representations including Defendants Showtime and CBS, which he was led to believe were truthful and he had no reason to doubt.

As Cohen has proven time and time again, nothing drops public officials’ guard faster than appealing to their ego. Cohen fronted a nonexistent production company and offered Moore an award for his lifetime of service to Israel. Having been properly flattered, Moore never thought to question why he was being given an award for something he’s not particularly known for. Nothing in his Wikipedia page or bio suggests he’s ever had much interest in Israel, beyond the usual affinity sported by fundamentalists who refer to it as the “Holy Land” in passing.

This point is reiterated in numerous paragraphs, as if being too stupid to question bizarrely-tangential generosity out of nowhere was an actionable tort.

Then the complaint gets to the actual defamation allegations. And they’re quite the read. A shot for every “false” or “fraud” in this lawsuit will see you hospitalized for alcohol poisoning by the 10th page.

Defendant Cohen’s character falsely and fraudulently introduced a false and fraudulent “device” supposedly invented by the Israeli Army to detect pedophiles. During the segment, Defendant Cohen’s “device” – as part of the false and fraudulent routine – purports to detect Judge Moore as a sex offender, thus defaming him.

Hahaha it’s almost as if someone were making some crude commentary on the sexual misconduct allegations against Judge Moore. You know, the allegations about pedophilia and sex offending. It was in all the papers. This — THIS! — says Klayman, is defamation. And he says it as only Klayman can: by providing the defendants a defense.

This false and fraudulent portrayal and mocking of Judge Moore as a sex offender, on national and international television, which was widely broadcast in this district on national television and worldwide, has severely harmed Judge Moore’s reputation and caused him, Mrs. Moore, and his entire family severe emotional distress, as well as caused and will cause Plaintiffs financial damage.

Let’s give Ken White/Popehat the floor for a moment:

By adding “mocked” to that sentence, Klayman is beclowning himself, which is quite a feat for someone who comes pre-beclowned.

He’s basically saying “the utterly obvious and inevitable defense to this is correct, and here I am confirming it.”

Only something that can reasonably be taken as a provable statement of fact can be defamatory. Mockery is by definition not defamatory — like ridicule, insult, etc. When a public figure is at hand, it’s also not, by definition, intentional infliction of emotional distress.

On and on the complaint goes about “reckless” and “malice” and “defamation per se” and all of it doesn’t matter because the defense is right there in the accusations. This was commentary on Roy Moore’s pre-existing reputation, which was already in the gutter thanks to numerous accusations directly on point with a fake Mossad tool’s “sex offender” determination.

The downside of this case is that if it survives the first motion to dismiss, it’s going to chew up some time and cash. It was filed in the DC federal court, which has already decided it doesn’t need to apply Washington, DC’s anti-SLAPP law at the federal level. This means the case might go on longer than it needs to, even though it’s crystal clear Moore’s just trying to exact litigious revenge for allowing himself to be suckered in by a little flattery.

Filed Under: anti-slapp, dc, defamation, larry klayman, roy moore, sacha baron cohen, slapp suits
Companies: cbs, showtime

Court Tosses Out Silly Trollish Publicity Stunt Defamation Lawsuit

from the but-no-anti-slapp-win dept

Almost exactly a year ago, we wrote about a ridiculous defamation lawsuit filed by a plaintiff who has a history of fairly trollish, attention seeking behavior. I chose not to name the person in the post as I argued that the lawsuit itself was something of a publicity stunt, and I’ll continue to do that here, even though it will become clear in the quoted parts of the ruling below. I have no interest in participating in the publicity stunt part of the lawsuit — but do feel compelled to write about it because of the First Amendment issues that are a key component in the case. Amusingly, the plaintiff had a history of loudly proclaiming her support for free speech and the First Amendment, even going so far as to once state: “I care more about free speech… than almost any other issue.”

And yet, she sued a reporter over a tweet. Here’s the way I described it last year:

The background is pretty straightforward. The person in question, who is known as a strong Trump supporter (though, in the past also got attention as a strong Bernie supporter, and once said this: “I got called a literal Nazi so many times, I eventually went, Fuck it, I?ll just go all in.”) was at the White House and had a picture taken of herself and someone else, standing behind a podium, with both doing the “OK” sign with their hands. There was a stupid little thing a few months back where some 4chan trolls tried to pretend that the OK sign was a symbol for “White Power”. The idea was to get the press to report on this kind of thing and then laugh at how silly the press could be. Well, mission accomplished. A reporter for Fusion tweeted about the photo of these two people doing the “OK” sign were “White Power” hand signals being done in the White House.

As we noted last year, among the many, many issues that doomed the plaintiff’s case was the fact that she admitted in a tweet that the whole thing was an attempt to troll journalists:

For a defamation case against a public figure to have any chance, a plaintiff needs to show first that the statement was a false statement of fact, but also that it was done with “actual malice.” Actual malice has a specific legal meaning that is not just “the person wanted to do something mean.” It specifically means that the person making the statement did so knowing it was false or, alternatively, with reckless disregard for whether it was false. Having the plaintiff flat out admit that it was all part of an attempt to trick people kind of undermines the entirety of the “actual malice” part of the lawsuit.

And the court noticed. In a ruling yesterday, the DC district court tossed out the case. And the key reason? A failure to show “actual malice.” Oh, it also recognizes she’s a troll. In the very first sentence of the opinion.

Plaintiff Cassandra Fairbanks trolled the web through Twitter, releasing a photo of herself and a fellow journalist in the White House press room making a gesture widely recognized as the ?okay? hand symbol but also speculated at the time to be a ?white power? symbol. Defendant Emma Roller, also a journalist, retweeted the photo with the caption, ?just two people doing a white power hand gesture in the White House.? Ms. Fairbanks sued Ms. Roller for defamation. The First Amendment requires that Ms. Fairbanks? claim be considered ?against the background of a profound national commitment? to the freedom of speech and especially of political speech, which is ?essential to the security of the Republic.? See New York Times v. Sullivan… This ?fundamental principle of our constitutional system? obligates Ms. Fairbanks, as a public figure, to support her defamation claim by alleging facts that support a finding of actual malice on the part of Ms. Roller…. Because Ms. Fairbanks has failed to allege such facts, Ms. Roller?s Motion to Dismiss under the Federal Rules of Civil Procedure will be granted.

Oh yeah, note how the court, from the opening, is talking about the First Amendment. I should remind you what the plaintiff said about the lawsuit at one point:

Anyway, back to the case. As we expected, the court noted the Plaintiff’s own admission to trolling. It mentions the tweet we showed about “trolling” above and in the discussion part notes that’s part of the reason there’s no actual malice:

Especially given the public debate about the ?okay? hand gesture at the time of Ms. Roller?s tweet, Ms. Fairbanks? allegations do not provide clear and convincing evidence of actual malice. Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks? tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller?whether because the gesture was actually offensive or because they would think that it was offensive?not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions. So Ms. Fairbanks has failed to state a claim and her case should be dismissed.

Unfortunately, we were also correct in the second part of our initial post — that because the case was filed in federal court in Washington DC, it would mean that Washington DC’s (pretty strong) anti-SLAPP law would be inapplicable. A horrible ruling from a few years back, which goes against rulings in most other federal courts, found that DC’s anti-SLAPP law couldn’t be used in federal court. The defendant in this case sought to use it anyway, but the court rejected it:

The District of Columbia?s anti-SLAPP statute does not apply in federal court, so Ms. Roller?s Motion to Dismiss and request for attorney?s fees under the anti-SLAPP statute will be denied.

The Defendant had tried to argue that the infamous Michael Mann ruling had overturned that earlier ruling concerning DC SLAPPs in federal courts, but the court disagreed.

Once again, this is another example of why we so badly need a federal anti-SLAPP law.

Oh, and I should note that the plaintiff’s lawyer in this case just happens to be the same guy, Robert Barnes, who we wrote about yesterday for his failed arguments that Twitter somehow violated Chuck Johnson’s rights in kicking Johnson off its platforms. So while he seems to making a name for himself, it mostly appears to be in filing failed lawsuits that are dumped on First Amendment grounds on behalf of infamous Trump supporting internet trolls. I’m not sure that’s a reputation worth having.

Filed Under: anti-slapp, cassandra fairbanks, dc, defamation, emma roller, first amendment, free speech, robert barnes, trolling, trolls

Stanford Professor Drops Stupid SLAPP Suit Against Critics; Still Mad Online

from the scientific-inquiry-shouldn't-happen-in-the-courtroom dept

Back in November, we wrote about a pure SLAPP lawsuit filed by Stanford professor Mark Jacobson against another scientist, Christopher Clack, and the National Academy of Sciences. Jacobson claimed that Clack and others defamed him by publishing a rebuttal of a paper that he and some others had published earlier. In other words, this was a standard kind of academic dispute, with different scientists taking different positions. Rather than continue to debate it in academic settings, Jacobson sued the critics. We went through all of the details of the case, and why it was so ridiculous in the original article, so we won’t rehash that here. However, we will note that Jacobson has now dropped the case, but in doing so published an FAQ where he still insists that it was the proper thing to do in the first place:

Dear friends & critics, After much deliberation and having brought to light the corrections of fact required in the Clack paper, I have decided to move on and voluntarily dismiss the lawsuit. Details of the reasons why and the basis for the suit are here: https://t.co/HRSvt22HJZ

— Mark Z. Jacobson (@mzjacobson) February 22, 2018

That FAQ is basically a rant basically screaming “I was right and was right to sue and the people criticizing the lawsuit are wrong.”

In our original post, we pointed out that Jacobson (based in California) was suing Clack (based in Colorado) in Washington DC. While that is where the National Academy of Sciences is based, we noted that this venue was almost certainly chosen because of a very troubling ruling in the CEI v. Mann case it made in early 2017 in another case involving a scientist suing a critic. As we noted, this was making DC a “good venue” for scientists seeking to sue over academic disputes. Indeed, Jacobson more or less admits this in his FAQ. Responding to the “question” of why the people he’s suing aren’t protected in their opinions under the First Amendment, Jacobson writes:

This case falls under Washington D.C. law, and a relevant similar case to this under D.C. law is Competitive Enterprise Institute versus Mann 150 A.3d 1213 (2016). The following excerpts from this case illustrate that false facts that defame individuals are not sheltered under the First Amendment…

That’s a somewhat tortured reading of an already bad decision. The Supreme Court has already made it quite clear in multiple cases — including US v. Alvarez — that false statements can certainly be protected under the First Amendment.

Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.

After going on for pages and pages about why he was totally right to file this lawsuit, he says he dismissed it because it would take a long time for the case to play out (why he didn’t realize this in November when he sued is not explained):

It became clear, just like in the Mann case, which has been going on for 6 years, that it is possible there could be no end to this case for years, and both the time and cost would be enormous. Even if the motions for dismissal were defeated, the other side would appeal, and that alone would take 6-12 months if not more. Even if I won the appeal, that would be only the beginning. It would mean time-consuming discovery and depositions, followed by a trial. The result of the trial would likely be appealed, etc., etc.

His second reason? He claims that filing the lawsuit has succeeded in making people aware that he thinks the article he’s suing over is incorrect, even if it didn’t lead to the correction he demanded:

Second, a main purpose of the lawsuit has been to correct defamation by correcting the scientific record through removing false facts that damaged my coauthors and my reputations. While I have not succeeded in having the scientific record in the C17 article corrected, I have brought the false claims to light so that at least some people reading C17 will be aware of the factually inaccurate statements.

As such, after weighing the pros and cons, I find that I have no more reason to fight this battle. I believe it is better use of my time continuing to help solving pressing climate and air pollution problems.

Yes. It has called attention to the fact that you disagree with claims in the other article. It has also called much more attention to the fact that you sued someone over an academic dispute. And, while Jacobson doesn’t seem to think this is true, it seems like that alone may have a much bigger negative impact on his reputation than the article he’s so upset about.

Meanwhile, Jacobson has continue to use Twitter to insist that it is “misinformed” to claim that this dispute should have remained in academic settings rather than court and to argue with lots and lots of people telling him that this whole lawsuit was a bad idea (or asking if he’ll pay the legal costs of those he sued):




Once again, we need a federal anti-SLAPP law. Jacobson should agree, if he was legitimately concerned with how long all of this would take. A federal anti-SLAPP suit would have ended this case pretty quickly as well (though it might have forced Jacobson to pay the legal bills of those he sued).

Filed Under: anti-slapp, christopher clack, dc, defamation, mark jacobson, scientific debate, slapp
Companies: national academy of sciences

Picking Up Where We Left Off: A 2018 Policy To-Do List For Washington

from the innovation-and-policy dept

From January 9-12, thousands of tech experts, innovators, media professionals, politicians and business leaders from around the world pour into Las Vegas for CES 2018. It’s an incredibly exciting time: Attendees get to see the most innovative technologies and trends that will change the face of industries across the globe, from health care and entertainment to automobiles and home appliances.

I’m always proud of CES – proud of the innovators who have traveled a long road to get to the floor; proud of all my behind-the-scenes colleagues who dedicate months to putting the show together; and proud the show inspires thoughtful conversations and partnerships that lead to life changing products, new businesses and jobs.

But CES also makes me proud to be an American. Our nation’s tech industry is the envy of the world. When you combine induced, indirect and direct impact, the U.S. tech sector accounts for over ten percent of our GDP and 15.3 million jobs. It has produced brands and companies that are known and needed all over the world. And nowhere is that more obvious than at CES.

The reason our country can host a show like CES is because we have a legal and policy framework designed to allow our tech industry to flourish. From our education system that encourages originality and ingenuity, to our openness to immigrants and their innovative ideas, to a pro-business regulatory framework that lowers barriers to entry for entrepreneurs, to the First Amendment and its protection of ideas, no matter how controversial, our system rewards those who have the creativity to solve a problem and the courage to make their idea a reality.

If policymakers want to preserve our global leadership and support this vital industry, they must act at this crucial moment. With the start of the new year comes the start of a new legislative session, and the opportunity to prioritize policies that can strengthen the framework that has allowed the tech industry to flourish. As Washington gets down to business in 2018, here are some ways they can do this:

There’s no denying it’s been a challenging year politically, no matter your perspective. But with the new year comes a renewal of opportunity. Washington must put aside petty partisan arguments and work together to protect the framework that has led to our flourishing. And by doing this, we can protect the creativity and ingenuity of American innovation for generations to come.

Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World’s Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro

Filed Under: ces, dc, fair use, free speech, free trade, immigration, innovation, intermediary liability, patents, policy

DC Court Says Metro Police Need Warrants To Deploy Stingrays

from the another-win-for-the-4th dept

Another warrant requirement for Stingray use has been established. Again, it’s not a federal decision, so jurisdiction is limited, but there’s now another case to cite when fighting warrantless Stingray use in federal courts.

This decision comes from the DC Appeals Court (very much not the DC Circuit Court of Appeals). The case involves the Metro PD’s use of a Stingray to track two phones: the suspect’s and one he had stolen. The lower court handed the government a win. After pointing out there was plenty of time (around 10 hours between report of crime and Stingray deployment) to obtain a warrant (thus no exigent circumstances exception), the court decided the evidence derived from the tracking fell into the “inevitable discovery” exception since the tracking of the stolen phone would have led officers to the suspect.

The problem is the officers testifying for the Metro PD could not say for sure which phone they were tracking: the suspect’s or the phone he had allegedly stolen from the victim. The lower court cut the cops some slack, allowing for the possibility of they were tracking a phone (the victim’s) the suspect had no privacy interest in.

The appeals court, however, doesn’t read it the same way. First, it goes further than the lower court, deciding the use of Stingray devices requires a warrant. As it points out in its opinion [PDF], the use of Stingray devices is far more invasive than other tracking methods. To begin with, it does something historic cell site location data and/or GPS trackers can’t: locate a suspect no one’s actively tracking.

With a cell-site simulator, however, police no longer need to track a person visually from some starting location or physically install a tracking device on an object that is in, or will come into, his or her possession. Instead, they can remotely activate the latent tracking function of a device that the person is almost certainly carrying in his or her pocket or purse: a cellphone. As the present case demonstrates, police officers first obtain subscriber information and real-time location information from the target‘s telecommunications provider to narrow down the search area. They then proceed to that area with a cell-site simulator, which they use to force the person‘s cellphone to identify itself and reveal its exact location. It is in this sense that a cell-site simulator is a locating, not merely a tracking, device: A cell-site simulator allows police officers who possess a person‘s telephone number to discover that person‘s precise location remotely and at will.

Further, Stingray devices force peoples’ phones to relinquish information to law enforcement.

A final consideration is that when the police use a cell-site simulator to locate a person‘s cellphone, the simulator does not merely passively listen for transmissions sent by the phone in the ordinary course of the phone‘s operation. Instead, the cell-site simulator exploits a security vulnerability in the phone—the fact that cellphones are, in the words of the defense expert, ? “dumb devices,” unable to differentiate between a legitimate cellular tower and a cell-site simulator masquerading as one — and actively induces the phone to divulge its identifying information.

Which flows directly into this determination:

The preceding considerations lead us to conclude that the use of a cell-site simulator to locate Mr. Jones‘s phone invaded a reasonable expectation of privacy and was thus a search.

There are reasons the court feels a warrant requirement is necessary — ones that involve government responsibility and accountability.

[T]he simulator‘s operation involve[s] exploitation of a security flaw in a device that most people now feel obligated to carry with them at all times. Allowing the government to deploy such a powerful tool without judicial oversight would surely ?shrink the realm of guaranteed privacy “far below that which existed when the Fourth Amendment was adopted.” Kyllo, 533 U.S. at 34. It would also place an individual in the difficult position either of accepting the risk that at any moment his or her cellphone could be converted into tracking device or of forgoing ? “necessary use of” the cellphone.

The government argued cellphone users have no expectation of privacy in location information they know (or should know) is being broadcast to third parties. The appeals court disagrees, pointing to the Supreme Court’s decision on wiretap use.

Contrary to the government‘s argument, Katz makes clear that a person does not lose a reasonable expectation of privacy merely because he or she is made aware of the government‘s capacity to invade his or her privacy. When Katz was issued, the public and the courts were well aware of the government‘s capacity to wiretap and eavesdrop through technological means, yet the Supreme Court did not find this fact determinative of the question whether individuals possess a reasonable expectation of privacy in their conversations.

[…]

A person‘s awareness that the government can locate and track him or her using his or her cellphone likewise should not be sufficient to negate the person‘s otherwise legitimate expectation of privacy.

The court also shoots holes in the government’s “inevitable discovery” theory. At some point, the officers switched from tracking a phone with zero privacy interest (the victim’s) to tracking the suspect’s phone. When they did this, they screwed themselves out of a warrant exception. The court decides the government doesn’t get to pile up wrongs and ask the court to view them as “right.”

[H]ere the government is asking us to find inevitable discovery where the police had mutually exclusive options and, for whatever reason, chose the option that turned out to be unlawful. The inevitable-discovery doctrine does not apply in this type of situation.

The good faith exception is killed off as well, thanks to the secrecy surrounding the Metro PD’s ownership and deployment of a Stingray device.

The Supreme Court has not, however, recognized the applicability of the good-faith exception in a situation remotely like the present one—where the police, not acting pursuant to a seemingly valid warrant, statute, or court opinion, conducted an unlawful search using a secret technology that they had shielded from judicial oversight and public scrutiny. See supra note 26. Indeed, assuming the police believed the warrantless use of the cell-site simulator to be lawful, they could not have reasonably relied on that belief, given the secrecy surrounding the device and the lack of law on the issue.

As for the government’s argument suppression of evidence isn’t needed to deter future wrongdoing because the PD now abides by DOJ guidance recommending search warrants for Stingray use, the court finds its assertions hollow.

The government has not cited any case in which a court has declined to apply the exclusionary rule based on the government‘s representation that it will not engage in unlawful conduct in the future. […] And given that the DOJ policy memorandum does not describe any sort of enforcement mechanism that would ensure compliance with the policy, and given that the present administration or a subsequent one may well revise this policy, we are not convinced that the need to deter future constitutional violations is lacking.

And with that, the government loses almost all of its evidence, as well as the testimony of one of its witnesses. The conviction obtained is also reversed. The concurring opinion points out something that clearly separates Stingray cellphone tracking from other cellsite location info collection methods: it turns people’s cellphones into investigative tools by law enforcement. And it doesn’t do this voluntarily, no matter how the government might choose to misread the Third Party Doctrine. It does it by forcing all phones in the area to connect with the Stingray device and cough up their identifying info, including location.

This decision stands next to the one in Maryland as the first court-determined Stingray warrant requirements. More will come, although it’s not entirely clear at this point which way these decisions will go. The Supreme Court is set to hear a case on warrantless access to historic cell site data. Whatever’s decided there will factor into ongoing courtroom discussions about warrantless deployment of cell tower spoofers.

Filed Under: 4th amendment, dc, imsi catchers, privacy, stingrays, surveillance

from the ALMOST-everyone-is-NOT-everyone dept

The DC Court of Appeals has shot some holes [PDF] in a favorite law enforcement assertion: that cellphones are automatically containers of criminal evidence just because suspected criminals — like nearly everyone else in the nation — have cellphones. A criminal case involving a suspected getaway driver for a year-old homicide somehow led to police seeking a warrant to seize and search all electronics found at the suspect’s current residence.

The details of the case are as follows: defendant Ezra Griffith talked to a couple of people about law enforcement’s interest in his vehicle, which was apparently caught on surveillance cameras near the homicide crime scene. He had these discussions while incarcerated for something else, acting as his own tipster by discussing the car on jail phones. (ALL CALLS ARE RECORDED, etc.)

After being released, Griffith moved in with his girlfriend. Police sought a warrant to search this residence as part of its ongoing homicide investigation. The 22-year law enforcement veteran who obtained the warrant made the following declaration in his affidavit:

Based upon your affiant’s professional training and experience and your affiant’s work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the Internet, to include Facebook, Twitter and E-mail accounts.

Based upon the aforementioned facts and circumstances, and your affiant’s experience and training, there is probable cause to believe that secreted inside of [Lewis’s apartment] is evidence relating to the homicide discussed above.

What wasn’t mentioned was anything indicating a) Griffith owned a cellphone or b) evidence related to last year’s homicide would be found on it. Obviously, the cop swearing out the warrant didn’t have much confidence in this assertion either, as he broadened it to cover all electronics located in an apartment that, until very recently, had only been lived in by Griffith’s girlfriend.

As the Appeals Court points out, there’s not enough in the warrant to support these assertions.

The government’s argument in support of probable cause to search the apartment rests on the prospect of finding one specific item there: a cell phone owned by Griffith. Yet the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cell phone, let alone that any phone belonging to him and containing incriminating information would be found in the residence. At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach.

It’s not that the warrant was short on probable cause. It’s that it was the wrong kind of warrant for the assertions made.

Here, the lion’s share of the affidavit supporting the warrant application is devoted to establishing Griffith’s suspected involvement as the getaway driver in a homicide. That information might have established probable cause to arrest Griffith for his participation in the crime. The warrant application, though, was for a search warrant, not an arrest warrant. And to obtain a warrant to search for and seize a suspect’s possessions or property, the government must do more than show probable cause to arrest him. The government failed to make the requisite showing in this case.

As the court notes, the warrant asked for all kinds of things it had no business asking for, not with the dearth of supporting probable cause for a search. It allowed the police to seize any electronic device found in the residence, along with any other documents, newspapers clippings, photographs, etc. related to the homicide.

The court also says the officer made a logical leap he shouldn’t have. While it is indisputable cellphones are ubiquitous, there’s nothing in the affidavit supporting the officer’s conclusion Griffith owned one.

There was no observation of Griffith’s using a cell phone, no information about anyone having received a cell phone call or text message from him, no record of officers recovering any cell phone in his possession at the time of his previous arrest (and confinement) on unrelated charges, and no indication otherwise of his ownership of a cell phone at any time. To the contrary, the circumstances suggested Griffith might have been less likely than others to own a phone around the time of the search: he had recently completed a ten-month period of confinement, during which he of course had no ongoing access to a cell phone; and at least one person in his circle—his potential coconspirator, Carl Oliphant—was known not to have a cell phone.

The court points out the government could have avoided this mess. It had enough for an arrest warrant. With that, it could have arrested Griffith and searched him for any belongings, which likely would have included a cellphone. But it chose to go with an amazingly broad search warrant instead — one that allowed it to seize all electronics before determining if any belonged to the suspect.

The court allows suppression of the evidence. The warrant was invalid upon issuance, thanks to the lack of probable cause. Even good faith can’t save it.

We conclude that the affidavit in this case fell short to an extent precluding good-faith reliance on the warrant. As explained, the government’s theory of probable cause to search the apartment runs as follows: (i) Griffith might own a cell phone; (ii) if so, his phone might be found in the residence; and (iii) if so, the phone might retain incriminating communications or other information about a crime committed more than one year earlier. Whatever may be the reasonableness of any of those inferences standing on its own, demonstrating probable cause required adequately establishing all three in combination. The affidavit did not approach doing so. It provided no explanation at all of whether Griffith might own a phone or whether any such phone might be in his home. And with regard to whether any phone would retain any incriminating information about a shooting occurring more than one year beforehand, it observed only that gang members often stay in contact about their activities.

In this case, it’s nothing found on the devices being suppressed, but the gun tossed out the window by Griffith when police knocked on his girlfriend’s door. Along with the suppression comes the reversal of Griffith’s conviction.

The dissenting opinion, written by Judge Janice Brown, is positively overwrought in its fear of what this decision will do to “good” police officers who are used to relying on broad assertions and compliant magistrates.

This result is directly contrary to the purpose of the exclusionary rule and Supreme Court precedent that reserves suppression only for the most serious police misconduct. If courts are going to impose a remedy as extreme as excluding evidence that is probative, reliable, and often determinative of a defendant’s guilt, we have a duty to protect officers who are doing their best to stay within the bounds of our ever-evolving jurisprudence. We live in a society where virtually every action an officer takes is now being heavily-scrutinized. Thus, the need for vindication when law enforcement officers behave in an exemplary fashion is more critical than ever. Unfortunately, the officers in this case are not going to get the vindication they deserve. Furthermore, I have no doubt this case will be used in future cases to further undermine the good faith exception until either this Court sitting en banc or the Supreme Court steps in to cure today’s grievous error.

This is a bit much, considering the good faith exception is pretty much the rule everywhere and the government routinely survives suppression motions in all but the most egregious of cases. Asking cops to provide probable cause before seizing and searching electronics is just following the word (and spirit) of the Supreme Court’s Riley decision, which makes cellphones (and other electronic devices) every bit as sacrosanct as the homes and lives they vicariously represent.

Filed Under: dc, fourth amendment, law enforcement, privacy