good faith – Techdirt (original) (raw)

Fourth Circuit Finds In Favor Of Geofence Dragnet Deployed To Catch Robbery Suspect

from the some-strange-ideas-about-the-word-voluntary dept

Back in 2022, a federal court responded to a challenge of a geofence warrant with some good questions. But its ultimate ruling was a shrug. A geofence warrant obtained by investigators searching for a bank robbery suspect covered a whole lot of ground, subjecting hundreds of innocent people to a search of their geolocation records.

In this decision, the court actually arrived at the conclusion that the search was probably illegal and unsupported by probable cause to effect the search. That the search was performed by Google and not law enforcement itself didn’t matter.

The original geofence warrant covered 17.5 acres in Midlothian, Virginia — an area that included not only the robbed bank but a nearby church and its parking lot.

After getting the warrant approved, the investigators served it to Google. Google did a little pushing back and the final version shrunk the area a bit, but it still covered a whole lot of non-bank robbers, considering the request was for all geolocation data generated in this area between 4:20 and 5:20 pm.

The lower court said the good faith exception salvaged the search, even if it was illegal, because how were investigators supposed to know that casting a 1.75-acre, one-hour dragnet might implicate the privacy rights enshrined by the Fourth Amendment. The court had enough problems with its own ruling that it raised these valid points about the questionable constitutionality of geofence warrants:

[T]he Court is disturbed that individuals other than criminal defendants caught within expansive geofences may have no functional way to assert their own privacy rights. Consider, for example, a geofence encompassing a bank, a church, a nearby residence, and a hotel. Ordinarily, a criminal perpetrator would not have a reasonable expectation of privacy in his or her activities within or outside the publicly accessible bank. See United States v. Knotts, 460 U.S. 276, 281 (1983) (“A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”). He or she thus may not be able to establish Fourth Amendment standing to challenge a time-limited acquisition of his location data at the bank.

But the individual in his or her residence likely would have a heightened expectation of privacy. Silverman v. United States, 365 U.S. 505, S11 (1961) (“At the very core[of the Fourth Amendment] stands the right ofa [person] to retreat into his [or her] own home and there be free from unreasonable government intrusion.”). Yet because that individual would not have been alerted that law enforcement obtained his or her private location information, and because the criminal defendant could not assert that individual’s privacy rights in his or her criminal case, United States v. Rumley, 588 F.3d 202, 206 n.2 (4th Cir. 2009), that innocent individual would seemingly have no realistic method to assert his or her own privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a “right without a remedy.”

Those concerns aren’t shared by the Fourth Circuit Appeals Court. It has responded [PDF] to Okello Chatrie’s appeal with an affirmation of the lower court’s (limited and reluctant) blessing of the investigative dragnet. And it goes further than that, claiming the location data gathered by Google doesn’t come with an expectation of privacy attached.

[W]e find that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Chatrie’s location information, since he voluntarily exposed this information to Google.

But that assumption runs contrary to the points raised by the US Supreme Court in the Carpenter decision. In that case, it held that collecting long-term cell site location data required the use of a warrant. It also pointed out the base assumption contained in the Third Party Doctrine (that anything shared voluntarily with third parties has no expectation of privacy) doesn’t always apply. While people understand they’re sharing information with their bank in order to avail themselves of bank services, they don’t always understand that cell towers and service providers like Google are collecting information on them hundreds of times a day. None of that is affirmative, so it’s a bit misleading to call something no one has any power to stop (not if they want access to cell service or other third party services) “voluntary.”

The Fourth Circuit says Google location data collection, however, is voluntary. That’s because several steps must be taken to allow Google to collect this data. (This has not always been the case and, in the past, Google has been known to collect this data even when users have opted out of this data collection.) It says the Third Party Doctrine applies, denying Chatrie’s challenge of the warrant.

The third-party doctrine therefore squarely governs this case. The government obtained only two hours’ worth of Chatrie’s location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he “t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government.” He cannot now claim to have had a reasonable expectation of privacy in this information. The government therefore did not conduct a search when it obtained the data.

So, in the eyes of the majority, the government doesn’t even really need a warrant to collect this data. It could have just sent Google a request for the information without having to run it by a judge first. As the dissent points out, that’s because even the government believes this is the sort of search that necessitates the use of a warrant.

At the heart of this appeal, the majority opinion concludes that the government has a virtually unrestricted right to obtain the Location Data History of every citizen. But I believe the government needs a warrant to obtain such Location History data. And that’s something the government itself apparently believed at the time it conducted the respective intrusion, since it sought and obtained a warrant in this matter.

That, of course, does nothing for Chatrie. But it does show the government thinks there’s an expectation of privacy in this data, even though the Fourth Circuit claims there isn’t.

But the bigger point is the problem courts generally don’t address because they don’t have to: the intrusions created by geofence warrants that cannot possibly be supported by probable cause, which means the warrants will almost always be deficient. But the thousands or millions of people whose records are searched have no standing to challenge the search because they never even know it happened.

[G]eofence intrusions are even broader than the intrusion in Carpenter because there is no limit on the number of users police can include in a geofence. With CSLI, police at least had to provide a specific phone number to search, so they had to identify a criminal suspect before they could pry into his or her historical CSLI data. By stark contrast, geofence intrusions permit police to rummage through the historical data of an unlimited number of individuals, none of whom the police previously identified nor suspected of any wrongdoing. Indeed, the very point of the geofence intrusion is to identify persons whose existence was unknown to police before the search.

Both the majority and the dissent make good points. I’d argue the dissent makes the better points. But in the end, it’s the majority ruling that matters. And, in this circuit, the ruling seems to say investigators don’t even need warrants to perform these searches. There’s one option left for Chatrie and it’s the Supreme Court. The nation’s top court is going to need to deal with this issue and its relation to Carpenter eventually and Chatrie’s case is as good as any to serve that purpose.

Filed Under: 4th amendment, 4th circuit, geofence, geofence warrant, good faith, okello chatrie, reverse warrant, virginia
Companies: google

Alabama Couple Awarded $1 Million Over Warrantless Raid Of Their House That Saw Cops Walk Off With All Their Cash

from the violations-so-blatant-even-a-court-couldn't-excuse-them dept

Very rarely do you see anyone prevail in court when any form of forfeiture is in play. The forfeiture litigation deck is firmly stacked in favor of the government, which rarely needs anything approaching actual proof to walk off with someone’s property.

It’s even more rare to see someone awarded damages in a civil lawsuit against law enforcement officers. In most cases, qualified immunity terminates the lawsuit. If qualified immunity is not awarded, agencies and governments are often swift to offer plaintiffs no-fault settlements that allow the accused to walk away from the lawsuit without having to admit any wrongdoing, much less pay out of their own pockets for their misdeeds.

This case contains both rarities. Not only does it involve regular people securing some sort of justice for their violated rights, but the underlying set of rights violations included officers walking out the home they’d raided without a warrant with all the valuables they could get their hands on, including $4,000 in cash.

Here’s how the raid went down, as recounted by C.J. Ciaramella for Reason back in 2019.

On January 31, 2018, a Randolph County sheriff’s deputy showed up at the home of Greg and Teresa Almond in Woodland, Alabama, to serve Greg court papers in a civil matter.

Greg, 50, wasn’t home, but his wife Teresa told the deputy he would be back before long. About two hours later, after Greg had returned home, he heard loud knocking on the door. He remembers shouting “hang on” and walking toward the door when it suddenly flew open. The next thing he knew he was on the floor—ears ringing, dazed, wondering if he’d just been shot.

Several deputies from the Randolph County Sheriff’s Department had kicked in his front door and thrown a flashbang grenade at his feet. The officers handcuffed and detained the couple at gunpoint, then started searching their house. The deputy from earlier had reportedly smelled marijuana, and so a county drug task force was descending on the Almonds’ home, looking for illegal drugs.

The supposed odor of marijuana eventually led the deputies to a small marijuana plant, a few scattered leaves, and a single prescription pill that was not located in its bottle. The home invasion also led deputies to other stuff they wanted, but had no legitimate reason to take. They took the cash they found in the house, a wedding ring, some guns, a coin collection, and a couple guitars.

To the Sheriff’s Office, the $4,000 probably seemed insignificant. But it was pretty much all they had. They were in the middle of refinancing an agricultural loan to ensure their chicken farm remained solvent. Thanks to being forced to spend most of two days in jail, they missed their refinancing deadline. That ultimately resulted in the couple losing their house. They were residing in an insulated shed by the time the court took up their lawsuit.

More than four years after the raid, the couple has finally secured some form of justice. The $1 million in damages awarded by the jury will likely be appealed by the sheriff’s department, but for now, that’s what a jury has said the couple is entitled to.

The judge overseeing the case issued an order [PDF] along with the directed verdict, stating that the “rarity” of a directed verdict in a civil rights lawsuit necessitates some explanation.

The explanation reveals just how much of a blatant violation of rights this raid was. Deputy Kevin Walker had no excuse for his actions.

During trial, Judge Amy Newsome testified that she never issued a telephonic warrant to Defendant Walker, or to the drug task force, on January 31, 2018, for a search of the Plaintiffs’ home. She also testified that she did not tell Walker that he had a warrant. In addition, Defendant Walker testified that Judge Newsome did not tell him that he had a telephonic search warrant, although she did tell him that he probably had enough for a warrant.

He also acknowledged that the requirements for a telephonic warrant were not satisfied, that he did not have a search warrant, and that it was a warrantless search. Given this undisputed testimony, even when considered in the light most favorable to Defendant Walker, the search of the Plaintiffs’ home was without a warrant, even a defective one, and therefore violated the Fourth Amendment. No reasonable jury could have concluded otherwise as there was no question of fact on this issue.

Yeah. That’s inexcusable. And yet, Walker had an excuse: good faith. He attempted to avail himself of the good faith warrant exception. But, as the judge points out, good faith relies on someone believing a valid warrant has actually been issued, not just thinking they could probably obtain one at some point in the future. On top of that, the good faith exception invoked by the deputy only applies in criminal trials, not civil trials. Even if it did apply in this content, Walker would still lose. (Emphasis in the original.)

But even if the good faith exception to the exclusionary rule can apply in the civil context, the good faith exception still would not apply in the circumstances of this case. First, per Judge Newsome and Defendant Walker, there was no warrant, telephonic or written, and thus there was nothing upon which Walker could rely in good faith. In other words, because Defendant Walker knew that he did not have a warrant at the time of the incident, the good faith exception does not apply.

And the cases Walker cites are inapplicable to the facts here: Taylor, Moorehead, Henderson, and Ganzer all involved situations where written warrants were issued, not situations where a warrant was never issued in the first place. And secondly, as a matter of law, given the undisputed facts concerning the non-existence of a warrant, it was objectively unreasonable for an experienced law enforcement officer to believe that he could search an occupied home when no warrant existed, when no judge told him that he had a warrant, when he was merely told that he had enough for a warrant, and when none of the formalities or requirements associated with a telephonic or written warrant were followed.

As the court notes in this order, it fully expects Walker to raise the other form of good faith in a future motion, indicating that while a jury has already said the couple is owed $1 million in damages, the court has yet to issue an order blessing that payout. Hopefully, if nothing else, this utter failure to salvage a blatantly unconstitutional search will urge Walker’s employers to cut a check, rather than continue to embarrass itself in court.

Filed Under: 4th amendment, alabama, civil asset forfeiture, good faith, greg almond, kevin walker, qualified immunity, randolph county, teresa almond, warrantless search, warrants

Eighth Circuit: When Pretty Much Every Judge Thinks Your Warrant Is Bad, Good Faith Ain’t Gonna Save It

from the disappointing,-but-unsurprising dept

Warrants that are short on things required by the Fourth Amendment — probable cause, specificity, the correct address, solid affidavits — are often given a free pass because law enforcement has plenty of options when it comes to sneaking around the edges of the Constitution.

In some cases, the excuses are pretty much just this: “Hey, maybe we didn’t even need a warrant!” Those excuses include exigent circumstances (“no time to get a good warrant!”), plain view (“hey, we just saw the stuff right out in the open!”), community caretaking (“we cared so much about this person’s health we arrested/killed them!”), and any number of other exceptions (vehicle exception, officer safety, border security).

Then there’s something called “good faith,” a defense offered almost exclusively in hopes of excusing officers who acted in bad faith. That theory is basically this: “Well, we had a piece of paper with a judge’s signature on it.”

Even a bad warrant can become a good warrant so long as it was shoved in front of the bleary eyes of the local magistrate who likely started dozing off during the multiple paragraphs of copy-pasted boilerplate that always proceeds the actual particulars of this supposed probable cause.

But when multiple judges start saying a warrant is bad, no amount of good faith will save it. Especially when almost every judge given the chance to read the warrant affidavit arrives at the same conclusion: this isn’t probable cause, or anything even approaching it.

And so it goes in this relatively brief Eighth Circuit Appeals Court decision [PDF]. It starts with the arrest of John Ralston, following a search of his property. Although officers claimed Ralston was involved in fencing stolen goods, he was only charged with illegally possessing a firearm.

Ralston wasn’t even the person cops were interested in. Ralston lived on a 9.32 acre parcel of property left to him by his mother. The property contained a mobile home on the north side of Bear Creek Road (in Jones County, Iowa) and another small residence on the south side of the same road.

Local law enforcement officers were far more interested in Colton Varty, who they considered to be a suspect in multiple burglaries. Using extremely specious reasoning, they came to the conclusion Varty either lived at the mobile home at this property or at least “frequented” the residence.

So, officers decided the smartest move was to search John Ralston’s property.

The warrant authorized the search of Ralston’s residence, the mobile home where Varty was frequenting/residing, a machine shed, and two separate storage sheds with a physical address of 1221 Bear Creek Road, as well as a blue Jeep Liberty Sport owned by Varty. It authorized officers to seize a number of different things, including items commonly used in thefts or distribution of stolen property, indicia of occupancy, tools burglars use to gain access to locked structures or storage containers, property that had been reported as stolen, shoes believed to have beenworn during the thefts, and tire tracks/treads for comparison.

Ralston challenged the search of the south side of his property, which contained the house Ralston actually lived in. (The mobile home “linked” to Varty was on the north side.) Ralston claimed no nexus existed to give officers probable cause to search a residence never linked to Varty, the actual burglary suspect.

The first judge (beyond one signing the original warrant) to review the warrant agreed with Ralston. No probable cause existed to search his property.

In analyzing Ralston’s argument, the magistrate judge found: (1) the affidavit supporting the search warrant described the places to be searched in overbroad terms; (2) the information in the affidavit connecting Varty to the south side of the property was minimal; and (3) the supporting affidavit contained no information connecting Varty to Ralston’s residence. In addition to finding a want of probable cause, the magistrate judge found the good-faith exception did not apply.

The government said, “Oh, come on! The two residences are on the same property and besides everyone always grants us good faith, no matter how terrible we are at establishing probable cause.”

The district court compared Ralston’s arguments to the government’s arguments and then compared them to the warrant. It came down on the side of Ralston and the magistrate performing the initial review, but it did give the government what it wanted: forgiveness.

The district court was unpersuaded by the government’s objections regarding the probable cause determination, but ultimately denied the motion to suppress, reversing the magistrate judge’s determination that the good faith exception did not apply.

The score at this point: Bad warrant: 2 – Good faith 1. Not the best odds, but then again, the government rarely needs the best odds to walk off with win or, at the very least, a tie.

The Appeals Court makes sure this isn’t a tie. First off, it points out there’s nothing tying the suspected activity of Varty to the residence maintained by Ralston. These are two different people and only one of them was actually suspected of committing a string of burglaries.

The fact that Varty may have been present on the property from time to time (or even maintained a part-time residence on the other end of the 9.32 acre parcel) isn’t enough to tie Ralston to Varty’s alleged criminal activity. Probable cause is the base line. The officers didn’t even manage to approach that low bar here.

The officers here knew that Ralston and Varty maintained separate residences on the property. Their residences were separated by a road. The officers offered little more than a hunch that Ralston’s residence was being used to fence property that Varty was stealing. A reasonable officer would understand that a prerequisite for a search warrant is probable cause, not a mere suspicion or hunch.

Obviously, these officers were unreasonable. The appeals court makes sure that much is clear. Reviving past criminal activity may help when convictions and prison sentences are on the line. But they don’t add anything to probable cause assertions that deal with an entirely different set of crimes allegedly committed by an entirely different person.

The government asks us to give weight to law enforcement’s conclusory assertions that the property had been known for multiple years as a place where stolen property was fenced, Ralston and Varty were unemployed drug users, Ralston had been involved in the sale or distribution of narcotics for many years, and a neighbor had recently reported gunfire in the area.

The officer’s meandering into Ralston’s past weapons violations, drug use, and drug convictions is unrelated and immaterial to the offenses—burglary and possession/fencing stolen property—that were under investigation in the warrant application.

Attempting to add more probable cause to a deficient warrant during testimony in front of the district court doesn’t change anything about the original warrant. Only one judge approved it as it was written. Every judge after that declared it to be deficient. The Appeals Court points out that the US Supreme Court long ago declared that the “mere association with a known or suspected criminal or the presence in the location known to be involved in criminal activity does not establish probable cause.”

And that’s all the cops had here: stuff the Eighth Circuit made clear years ago didn’t amount to a hill of Fourth Amendment beans.

Armed with only the proximity of residences on rural property, conclusory assertions that lacked a nexus to Ralston’s residence or the targeted offenses, and no evidence of a relationship between Ralston and Varty or evidence that Varty had access to Ralston’s house, a reasonable officer would not believe there was a sufficient nexus to establish probable cause to search Ralston’s residence for evidence related to the burglaries or fencing stolen property. While the affidavit was detailed, focused, and probative as to Varty’s criminal activity, it said little about Ralston and lacked any specifics connecting Ralston or his residence to the offenses under investigation. Given the paucity of evidence as to Ralston, law enforcement should have been aware of the affidavit’s deficiencies. The additional information not included in the affidavit that consists of conclusory assertions and details unrelated to the offenses under investigation does not cure the deficiencies.

Bad warrant. No good faith. The final smack of the law enforcement nose with the rolled-up judicial newspaper? A vacated guilty plea, suppression of the evidence derived from this search, and (presumably) a dismissal of charges that can’t be supported without the evidence the government obtained illegally.

Filed Under: 4th amendment, 8th circuit, colton varty, good faith, iowa, john ralston, jones county, probable cause, warrant

Federal Court Says Good Faith Prevails In Deployment Of Extremely Questionable ‘Reverse’ Warrant

from the bad-warrant-with-magistrate's-ok-equals-good-warrant? dept

“Who are we to judge?,” say federal court judges. That’s the questionable conclusion reached by an otherwise solid reading [PDF] of the constitutional implications of one of law enforcement’s favorite new tools: “reverse” warrants. (h/t Orin Kerr/Volokh Conspiracy)

They’re called “reverse” warrants because the paperwork asks Google to turn over location info on everyone in certain areas at certain times in hopes of giving law enforcement enough information to generate a list of suspects. It may technically be a warrant but probable cause is lacking — unless you consider (as some courts have) that the only probable cause needed is the probability that Google possesses the records sought by investigators.

Google likely does. It grabs location info from phone users who opt into location sharing. It’s a bit more affirmative than the collection done by cell service providers, which collect location data every time a phone connects with a cell tower. This location data is protected under the Fourth Amendment, thanks to the Supreme Court. This other pile of location data isn’t explicitly protected at this time, which has made it a prime target for investigators hoping to turn fishing expeditions into successful prosecutions.

In recent months, courts have subjected these geofence/reverse warrants to more scrutiny, rejecting requests that are too broad or rely too heavily on the discretion of law enforcement officers.

A recent decision [PDF] by a federal judge in Virginia says a reverse warrant used to seek bank robbery suspects is probably illegal, but gives the cops using it a pass because how were they to know it might be illegal to seek this data?

A bank in Midlothian, Virginia was robbed of $195,000. Using a reverse warrant, investigators decided the most probable suspect was Okello Chatrie, who was arrested after investigators used location data obtained from Google to (in a manner of speaking) place Chatrie at the crime scene.

But the court isn’t happy about the warrant, despite its decision to apply the good faith exception to the warrant and investigators’ subsequent actions. The court notes that there’s a “dearth” of applicable case law before deciding to develop a little of its own. (Orin Kerr, of course, remains skeptical of the court’s findings as far as the unconstitutional aspects of the reverse warrant. You can read his analysis of the decision here.)

The court says Google collects user location data from users who opt into its location tracking services. It states no opinion as to how “voluntary” this is or how well-informed users are about their opt-out options. But, as far as the record shows, the suspect must have at least performed one affirmative step to allow Google to track his location info.

Even if the warrant had been limited to the bank, it still would have been problematic. That warrant would have treated anyone inside or in close proximity of the bank during the timeframe specified by investigators as a potential suspect — a list that would have necessarily included innocent customers and bank employees. But the warrant, which sought all location info collected by Google, targeted a much larger area during a time when the number of innocent, non-suspects might be at their highest level: from 4:20-5:20 p.m.

It wasn’t just the bank being targeted by investigators. It was an area of 17.5 acres, with a diameter of 300 meters, that encompassed a nearby church and its parking lot.

Three iterations later investigators narrowed it down to this:

None of those iterations — which narrowed down the list of suspects and further constrained the outlines of the geofence — required any interaction from a magistrate judge. Any refinement was solely at law enforcement’s discretion.

The court sees nothing to like about reverse/geofence warrants. They aren’t particular, they’re not based on any commonly understood definition of probable cause. And they bypass judicial scrutiny by only involving courts during the primary step — the point where suspects are unknown and the dragnet being cast by law enforcement is at its widest.

Good faith is awarded (as mentioned above) but the court appends several, potentially problematic (for law enforcement) asterisks to its extremely reluctant approval of this warrant and its outcome.

[T]he Court notes its deep concern (underlying both Fourth Amendment standing, and the third-party doctrine discussed below) that current Fourth Amendment doctrine may be materially lagging behind technological innovations. As Fourth Amendment law develops in a slow drip, “technology [continues to] enhance[] the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes.” Carpenter v. United States, 138 S.Ct.2206, 2214 (2018). Relevant here, although law enforcement limited the warrant’s window to two hours, Google—despite efforts to constrain law enforcement access to its data— retains constant, near-exact location information for each user who opts in. See Part ILA 3.2, supra. The Government thus has an almost unlimited pool from which to seek location data, and “[w]hoever the suspect turns out to be,” they have ‘effectively been tailed'” since they enabled Location History. Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 2 F.4th 330, 341 (4th Cir. 2021) (en banc) (quoting Carpenter, 138 S. Ct. at 2218).

It’s not just the lag. It’s the application of law. Law enforcement is seemingly taking advantage of this “dearth in case law” to bypass guaranteed rights. When cops exceed the normal boundaries of acknowledged rights, innocent people are affected. But because they don’t know they’re affected, they’re unaware their rights have been violated. Rights violations are still rights violations even if the victims aren’t apprised of the violations. And that’s why the courts are here: to protect not only the rights of the accused, but the rights of those accused of nothing who have, nevertheless, had their rights violated.

What is more, the Court is disturbed that individuals other than criminal defendants caught within expansive geofences may have no functional way to assert their own privacy rights. Consider, for example, a geofence encompassing a bank, a church, a nearby residence, and a hotel. Ordinarily, a criminal perpetrator would not have a reasonable expectation of privacy in his or her activities within or outside the publicly accessible bank. See United States v. Knotts, 460 U.S. 276, 281 (1983) (“A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”). He or she thus may not be able to establish Fourth Amendment standing to challenge a time-limited acquisition of his location data at the bank.

But the individual in his or her residence likely would have a heightened expectation of privacy. Silverman v. United States, 365 U.S. 505, S11 (1961) (“At the very core[of the Fourth Amendment] stands the right ofa [person] to retreat into his [or her] own home and there be free from unreasonable government intrusion.”). Yet because that individual would not have been alerted that law enforcement obtained his or her private location information, and because the criminal defendant could not assert that individual’s privacy rights in his or her criminal case, United States v. Rumley, 588 F.3d 202, 206 n.2 (4th Cir. 2009), that innocent individual would seemingly have no realistic method to assert his or her own privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a “right without a remedy.”

As this court sees it, geofence warrants implicate — if not violate — rights en masse. Without particularity (a crucial Fourth Amendment element), cops are free to call everyone a suspect until proven otherwise, flipping reasonable suspicion (and probable cause) on its head. Orin Kerr’s analysis agrees with some courts’ take on this issue: that the only thing that needs to be proven is the (high) probability that searching Google will produce the geolocation records sought by investigators. This court says a higher bar needs to be applied. Even if the probable cause assertions are considered valid, warrants need to be more particular about the places searched and the evidence sought.

Informed consent is one thing. What happens in real life hardly approaches that.

Even with consent, it seems clear that most Google users do not know how the consent flow to control their collection of data works, nor do they know Google is logging their location 240 times a day.

It may not be up to the government to protect the ignorant from their actions. But there’s a massive gap between what the public considers to be private and what the government thinks it can obtain with minimal (or nonexistent) court oversight. That disconnect resulted in the Supreme Court’s Carpenter decision, which now extends Fourth Amendment coverage to something historically considered to be a third-party record. This court suggests Congress needs to take the wheel on this issue. And while that may be true, Congress has historically moved much slower than courts when it comes to the Fourth Amendment friction created by tech advances.

Despite the court’s recognition of the multiple issues in need of addressing, good faith is awarded to law enforcement. Unsettled law cannot create precedent and there was no reason for investigators to assume a reverse warrant acquired in the Fourth Amendment gray market could not be considered valid. The evidence leading to the suspect’s arrest remains in play. The prosecution show goes on. And unsettled law will remain unsettled, albeit with copious footnotes.

Filed Under: 4th amendment, geofence, geofence warrant, good faith, okello chatrie, reverse warrant, virginia

Senator Blumenthal: Dismissing All Critics Of EARN IT As 'Big Tech Lobbyists' Shows Your Unwillingness To Recognize The Massive Problems In Your Bill

from the obnoxious dept

In the past, whenever Senator Richard Blumenthal has been called out for his many terrible legislative ideas regarding regulating technology and the internet, he has a habit of dismissing all of the concerns by claiming the complaints are only coming from “big tech lobbyists.” He did this a few years ago with FOSTA, which has since proven to be exactly the disaster many of us warned Senator Blumenthal about at the time. This time around, he’s going straight to the same playbook again, and it’s good to see that he’s getting some pushback. Nathalie Mar?chal, from Ranking Digital Rights has published a great piece over at Tech Policy Press: No, Senator Blumenthal, I am not a Big Tech Lobbyist.

Ranking Digital Rights is about as far from a “big tech lobbyist” as you can find. The organization has been advocating for the FTC to ban targeted advertising, which is basically the key way in which both Google and Facebook make the majority of their money. And yet, it also recognizes the dangers of EARN IT.

The article notes that over 60 human rights groups signed a detailed letter highlighting the many problems of the bill. For Blumenthal to simply dismiss all of those concerns — put together by respected groups who are in no way “big tech lobbyists” — shows his pure disdain for facts and unwillingness to put in the effort to understand the very real damage his bill will do should it become law.

It’s shameful behavior for a US senator, even if not surprising.

Filed Under: criticism, earn it, encryption, good faith, lobbyists, richard blumenthal

Appeals Court Actually Explores 'Good Faith' Issue In A Section 230 Case (Spoiler Alert: It Still Protects Moderation Choices)

from the because-of-course-it-does dept

Over the last couple years of a near constant flow of mis- and disinformation all about Section 230 of the Communications Decency Act, one element that has popped up a lot (including in our comments) especially among angry Trumpists, is that because Section (c)(2)(A) of the law has a “good faith” qualifier, it means that websites that moderate need to show they did so with “good faith.” Many seem to (falsely) assume that this is a big gotcha, and they can get past the 230 immunity barrier by litigating over whether or not a particular moderation choice was done in “good faith.” However, as we’ve explained, only one small part of the law — (c)(2)(A) mentions “good faith.” It’s this part:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

However, notably, Section (c)(1) — the famous “26 words” — makes no mention of “good faith” and establishes, more broadly, that no website or user of a website should be held liable for someone else’s content. Over the past 25 years, nearly all of the court decisions regarding content moderation have relied on Section (c)(1)’s broad immunity, noting that even moderation (take down) decisions, if litigated, would require holding a website/user liable for the speech of a third party. Therefore, the examination of “good faith” almost never comes up. Separately, there’s a fairly strong argument that courts determining whether or not a moderation decision was done in “good faith” would represent courts interfering with an editorial decision making process — and thus would raise serious 1st Amendment questions.

There is one significant court case that did look at (c)(2) — the case involving Malwarebytes decision to name Enigma Software as malware was not protected by 230. In that case, the 9th Circuit said that because it’s possible that Malwarebytes called Enigma malware for anti-competitive reasons, this would not count as “good faith,” and thus it wouldn’t be protected by 230. Unfortunately, the Supreme Court refused to hear this issue, but that case still lives on and the issue could be revisited otherwise (and, it may eventually show that Malwarebytes also has a 1st Amendment right to express its opinion — even about a competitor).

A few weeks ago there was another case that got a (c)(2) review, over in the 2nd Circuit. That case, Domen v. Vimeo, involved a more typical content moderation type decision. Eric Goldman summed up the story behind the case in his own post about the ruling:

Vimeo is a video hosting service. Domen is a ?former homosexual.? He posted videos to Vimeo that allegedly violated Vimeo?s policy against ?the promotion of sexual orientation change efforts? (SOCE). Vimeo notified Domen of the violation and gave him 24 hours to remove the videos or Vimeo would take action. Domen didn?t remove the videos, so Vimeo subsequently deleted Domen?s account. Domen sued Vimeo for violations of California?s Unruh Act, New York?s Sexual Orientation Non-Discrimination Act, and the California Constitution. The lower court dismissed all of the claims.

Domen appealed, and the 2nd Circuit dismissed the case, focusing on Section 230 (c)(2)(A). It is not clear why it didn’t just use (c)(1) like every other similar case (it mentions that the lower court used both sections, and that Vimeo asked the court to rule on (c)(1) grounds as well, but it does the (c)(2) analysis anyway). Either way, this opens up an opportunity for an appeals court (and a prominent one like the 2nd Circuit) to explore the whole “good faith” question. The court notes, correctly, that 230 is much in the news these days, but says this one is a fairly easy call. Vimeo has every right to enforce its own terms of service in this manner. In summarizing its decision, the court notes:

However, Appellants? conclusory allegations of bad faith do not survive the pleadings stage, especially when examined in the context of Section 230(c)(2). Section 230(c)(2) does not require interactive service providers to use a particular method of content restriction, nor does it mandate perfect enforcement of a platform?s content policies. Indeed, the fundamental purpose of Section 230(c)(2) is to provide platforms like Vimeo with the discretion to identify and remove what they consider objectionable content from their platforms without incurring liability for each decision. Therefore, we AFFIRM the judgment of the district court.

This is good framing. It recognizes that plaintiffs can’t just yell “bad faith!” even if they can show inconsistent moderation practices. In going into detail, the court says that (c)(2) is also a very broad immunity, giving websites the power to set their own rules and policies for what will be removed. Specifically, they say it grants “significant subjective discretion.”

A broad provision, subsection (c)(2) immunizes interactive computer service providers from liability for ?any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.? 47 11 U.S.C § 230(c)(2). Notably, the provision explicitly provides protection for restricting access to content that providers ?consider[] . . . objectionable,? even if the material would otherwise be constitutionally protected, granting significant subjective discretion…. Therefore, Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit.

The court also rejects the plaintiff’s argument that Vimeo could have just deleted the individual videos that it claims violated its policies, rather than shutting down his entire account. But, as the court notes, nothing in 230 requires the use of a scalpel when moderating:

Moreover, the statute does not require providers to use any particular form of restriction. Although Appellants take issue with Vimeo?s deletion of Church United?s entire account as opposed to deleting only those videos promoting SOCE, nothing within the statute or related case law suggests that this took Vimeo?s actions outside of the scope of subsection (c)(2) immunity. Indeed, Vimeo warned Church United that removal of the entire account was exactly what might happen if they ignored the warning. Church United received the warning and did not take the videos down or otherwise allay Vimeo?s concerns. Vimeo was entitled to enforce its internal content policy regarding SOCE and delete Church United?s account without incurring liability.

How about the “good faith” requirement? The court says you have got show more than just that Vimeo treated this plaintiff’s videos differently than some others on the platform. It points to the 9th Circuit’s Malwarebytes decision (and the Zango case that the 9th Circuit heavily cited in Malwarebytes), and says that even if it followed the same reasoning as that case, this is obviously a very different situation. The only reason that case got over the “good faith” hurdle was because it was deemed possibly anti-competitive. Here? Uh, no, this is standard everyday content moderation:

We also agree with the district court that Appellants? allegations that Vimeo acted in bad faith are too conclusory to survive a motion to dismiss under Rule 12(b)(6). Appellants? bases for arguing that Vimeo acted in bad faith are not commensurate with how courts interpret bad faith in this context. Appellants? cited cases do not satisfy their position. In Zango, Inc. v. Kaspersky Lab, Inc., the Ninth Circuit considered whether the defendant?s software?a filter blocking potentially malicious software from users? computers?qualified for Section 230 immunity in the same manner as platforms like YouTube or Facebook…. The Ninth Circuit held that it did…. In Enigma Software Group USA, LLC v. Malwarebytes, Inc., the Ninth Circuit limited the scope of Zango, clarifying that Section 230 ?immunity . . . does not extend to 3 anticompetitive conduct.?…. There, the court reinstated the plaintiff?s Lanham Act claim, which alleged that the defendant?s firewall program improperly filtered out the plaintiff?s rival firewall program, even though the plaintiff?s program posed no actual security threat to users? computers…. The plaintiff alleged that the defendant made ?false and misleading statements to deceive consumers into choosing [the defendant?s] security software over [the plaintiff?s].? … Vimeo?s deletion of Appellants? account was not anti-competitive conduct or self-serving behavior in the name of content regulation. Instead, it was a straightforward consequence of Vimeo?s content policies, which Vimeo communicated to Church United prior to deleting its account.

And, no, just because Domen found other videos on Vimeo that might have also violated its policies, that doesn’t mean that he was treated in bad faith. That’s not how any of this works.

Appellants argue that bad faith is apparent from the fact that other videos relating to homosexuality exist on Vimeo?s website. In support of this, Appellants point to titles of videos that allegedly remain on Vimeo?s website: ?Gay to Straight,? ?Homosexuality is NOT ALLOWED in the QURAN,? ?The Gay Dad,? and ?Happy Pride! LGBTQ Pride Month 2016.?… However, the mere fact that Appellants? account was deleted while other videos and accounts discussing sexual orientation remain available does not mean that Vimeo?s actions were not taken in good faith. It is unclear from only the titles that these videos or their creators promoted SOCE. Moreover, one purpose of Section 230 is to provide interactive computer services with immunity for removing ?some?but not all?offensive material from their websites.? Bennett v. 7 Google, LLC, 882 F.3d 1163, 1166 (D.C. Cir. 2018). Given the massive amount of user-generated content available on interactive platforms, imperfect exercise of content-policing discretion does not, without more, suggest that enforcement of content policies was not done in good faith. See Zeran v. Am. Online, Inc., 129 F.3d 11 327, 331 (4th Cir. 2017) (explaining that ?[t]he amount of information communicated via interactive computer services is . . . staggering? and that Congress passed Section 230 expressly to ?remove disincentives for the development and utilization of blocking and filtering technologies? ….

In summary:

Appellants chose to ignore Vimeo?s notice of their violation of Vimeo?s content policy, and, as a result, Vimeo deleted their account. By suing Vimeo for this, Appellants run headfirst into the CDA?s immunity provision, which ?allows computer service providers to establish standards of decency without risking liability for doing so.?

That seems pretty nice and clear. As Goldman wrote in his analysis of this ruling:

In the short run, Internet services have a lot to celebrate about this ruling. First, the court revitalizes Section 230(c)(2)(A) as a tool in the defense toolkit, which increases the odds of a successful defense. Second, the court accepts that content moderation will never be perfect, so plaintiffs aren?t going to win simply by pointing out examples of imperfect content moderation. Third, the court grants Section 230(c)(2)(A) on a motion to dismiss, emphasizing that it?s an immunity and not just a safe harbor. This ruling isn?t novel, but a clean and decisive statement from the Second Circuit about Section 230(c)(2)(A) applicability to motions to dismiss will surely encourage future courts to do the same. Fourth, though not explicitly addressed, the court held that Section 230(c)(2)(A) preempted claims that the services had violated anti-discrimination laws?a critical issue given that majority communities are weaponizing anti-discrimination laws to perpetuate their majority status.

All very nice! However, Goldman also warns that all of this good stuff may be wiped away soon via many of the various bills to reform or repeal Section 230. He also notes that some of the statements in the opinion could be twisted in a problematic way. For example (as seen in the quotes above), the court repeatedly mentions that Vimeo gave Domen multiple warnings and even told him which policy he was violating specifically. This might lead some to falsely believe that moderation without those factors is outside the bounds of (c)(2)(A). Goldman also fears that this will lead to more litigation exploring the boundaries of (c)(2)(A) and the definition of “good faith” moderation choices — all of which could have been avoided if the court had just followed the path of many others and dismissed on (c)(1) grounds.

On the whole though, it still seems like a good general ruling and might put to rest some of the myths and nonsense going around about how a bunch of moderation decisions are not done in “good faith” and therefore do not deserve protection.

Filed Under: c2, content moderation, good faith, section 230
Companies: vimeo

Another Anti-Section 230 Bill? Sure, Why Not?

from the another-day,-another-attack-on-free-speech dept

Because there haven’t already been enough attempts by Congress this year to attack free speech on the internet, here’s another one. Rep. Ted Budd has introduced yet another bill to wipe out Section 230 and undermine free speech online. Of course, he’s really just putting his House stamp on the ridiculous and unconstitutional Senate bill released earlier this year by Senators Hawley, Rubio, Loeffler, Cotton and Braun that we took apart at the time. I’m not going to go over all the reasons the bill is ridiculous and unconstitutional. We covered that when it was released in the Senate.

But Budd’s “statement” about the bill deserves to be picked apart because it’s utter lunacy.

?Recent acts of political censorship by Twitter and Facebook are a disgrace. Big Tech bias has gone too far in suffocating the voices of conservatives across our country. If these companies want to continue to receive legal protection, they should be forced to play by a fair set of rules in good faith. I?m extremely proud to join Sen. Hawley in this fight.?

Everything about this is wrong. Twitter and Facebook are not “censoring.” They are moderating. They are saying there is certain speech they don’t want to host, and this is their right, just like Fox News or the NY Post get to spew one sided news and the government cannot do anything about it. But they can’t demand that other private companies help them promote that nonsense. That’s not censorship. It’s moderation or discretion. And it’s protected by the 1st Amendment. You know, the thing that Rep. Budd swore to protect and uphold.

Imagine if Congress introduced a bill saying that Fox News actually had to be “fair and balanced” and be more positive towards Democrats and Joe Biden. Republicans like Budd would be screaming about how that was an unfair and unconstitutional infringement of Fox News’ 1st Amendment rights. And they’d be right. But the desire to ignore all that and compel speech from social media companies just demonstrates that elected officials like Budd are not coming from a place of principled support of the Constitution or free speech. Rather they are pathetic simpletons who think that they can abuse their power to force companies to promote their bullshit.

That’s not how it works, and we shouldn’t let grifters in Congress get away with pushing such nonsense. Rep. Budd should be ashamed that he’s shitting all over the 1st Amendment while pretending to support free speech. His constituents should think deeply about why they’ve elected someone so willing to sell out the 1st Amendment.

Filed Under: 1st amendment, content moderation, good faith, intermediary liability, josh hawley, section 230, ted budd
Companies: facebook, twitter

Justice Department Releases Its Own Preposterous Recommendations On Updating Section 230

from the guys,-what? dept

Because today wasn’t insane enough, just hours after Senator Josh Hawley released his ridiculous bill to flip Section 230 on its head and turn it from a law that protects against frivolous lawsuits into one that would encourage them, the Justice Department has released recommendations for Section 230 reform that appear to have been written by people who haven’t the first clue about how content moderation works online.

Professor Mark Lemley sums it up best:

Shorter DOJ net censorship proposal: you are both required to take down bad stuff on your sites and forbidden to take down bad stuff on your sites.

— Mark Lemley (@marklemley) June 17, 2020

One of the things many have pointed out about the “bipartisan” hatred for Section 230 is that each party hates it for opposite reasons. That is, Republicans are mad that sites are taking down too much content, while Democrats are mad that not enough content is being taken down. And they both (incorrectly) blame Section 230 for “enabling” that situation.

The DOJ’s attempt to thread the needle on this is saying that sites should both take down more and less content at the same time. No, seriously. First, the DOJ says that platforms should be liable for lots of content on their platform if they don’t magically stop it:

Incentivizing Online Platforms to Address Illicit Content

The first category of recommendations is aimed at incentivizing platforms to address the growing amount of illicit content online, while preserving the core of Section 230?s immunity for defamation claims. These reforms include a carve-out for bad actors who purposefully facilitate or solicit content that violates federal criminal law or are willfully blind to criminal content on their own services. Additionally, the department recommends a case-specific carve out where a platform has actual knowledge that content violated federal criminal law and does not act on it within a reasonable time, or where a platform was provided with a court judgment that the content is unlawful, and does not take appropriate action.

Then, on the flip side, the DOJ wants to make sure that platforms don’t take down too much (read: “silence nazis who support President Trump”) because [reasons].

Promoting Open Discourse and Greater Transparency

A second category of proposed reforms is intended to clarify the text and revive the original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users. One of these recommended reforms is to provide a statutory definition of ?good faith? to clarify its original purpose. The new statutory definition would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and consistent with public representations. These measures would encourage platforms to be more transparent and accountable to their users.

The specifics of how they want these two things done are utter nonsense. In order to force more taking down of “bad” content, the DOJ literally says that “bad actors” no longer get 230.

Bad Samaritan Carve-Out. First, the Department proposes denying Section 230 immunity to truly bad actors. The title of Section 230?s immunity provision??Protection for ?Good Samaritan? Blocking and Screening of Offensive Material??makes clear that Section 230 immunity is meant to incentivize and protect responsible online platforms. It therefore makes little sense to immunize from civil liability an online platform that purposefully facilitates or solicits third-party content or activity that would violate federal criminal law.

But what does that even mean? The “facilitates” bit in there is what’s problematic — and that’s the same language we’ve already seen in FOSTA, which has created massive collateral damage and frivolous lawsuits against CRM and mailing list software providers. Does offering up some mailing list software that might be used for criminal activity make you a “bad” actor?

Then there’s a further FOSTA-like expansion, carving out exceptions beyond sex trafficking to include “child abuse, terrorism, and cyber-stalking.”

Second, the Department proposes exempting from immunity specific categories of claims that address particularly egregious content, including (1) child exploitation and sexual abuse, (2) terrorism, and (3) cyber-stalking. These targeted carve-outs would halt the over-expansion of Section 230 immunity and enable victims to seek civil redress in causes of action far afield from the original purpose of the statute.

Again, as we’ve seen with FOSTA, this expansion is only being use so far for frivolous cases — and that would definitely be the case here as well. We’ve already seen a ton of totally frivolous “let’s blame Twitter and Facebook for terrorists” lawsuits, all of which are getting thrown out on 230 grounds. The DOJ’s proposed legislation would bring those right back — allowing people who were killed by terrorists… to sue Twitter. Because, why, now?

Then the DOJ says that the entire setup of 230 should be changed:

Third, the Department supports reforms to make clear that Section 230 immunity does not apply in a specific case where a platform had actual knowledge or notice that the third party content at issue violated federal criminal law or where the platform was provided with a court judgment that content is unlawful in any respect.

That’s like the whole point of 230. All this would do is turn 230 into a “notice-and-takedown” statute, because as soon as you received notice of any alleged issue, you’d risk liability if you kept it up. We’ve already seen how that works in the DMCA context, in which tons and tons of perfectly lawful speech is taken down just to avoid liability. This is a proposal for widespread censorship (which is ironic, given that the DOJ claims part of its goal is to try to encourage less silencing of voices).

On that front, the proposals are equally uninformed.

First, the Department supports replacing the vague catch-all ?otherwise objectionable? language in Section 230(c)(2) with ?unlawful? and ?promotes terrorism.? This reform would focus the broad blanket immunity for content moderation decisions on the core objective of Section 230?to reduce online content harmful to children?while limiting a platform’s ability to remove content arbitrarily or in ways inconsistent with its terms or service simply by deeming it ?objectionable.?

It’s important to note that nearly all of the litigation on Section 230 has focused on (c)(1) and not (c)(2), but whiny conservatives who insist that sites are “censoring” them really hate the “otherwise objectionable” language, because it makes it clear that sites have the right to moderate how they see fit. Wiping that out is bizarre, because it would suddenly exempt things like spam filtering from Section 230.

Second, the Department proposes adding a statutory definition of ?good faith,? which would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and accompanied by a reasonable explanation, unless such notice would impede law enforcement or risk imminent harm to others. Clarifying the meaning of “good faith” should encourage platforms to be more transparent and accountable to their users, rather than hide behind blanket Section 230 protections.

This is similar to Hawley’s proposal, and raises serious 1st Amendment questions. The government cannot and should not be determining whether editorial decisions are made in “good faith.”

Then there’s the funniest part of the DOJ proposal. Because everyone who understands anything about how content moderation works has pointed out that all of these kinds of changes would create a true “moderator’s dilemma” (no liability if you don’t look, so you don’t want to look, or if you look you feel the need to heavily moderate everything to avoid liability), the DOJ just says “oh yeah, add in something saying there’s no moderator’s dilemma.” Really.

Explicitly Overrule Stratton Oakmont to Avoid Moderator?s Dilemma. Third, the Department proposes clarifying that a platform?s removal of content pursuant to Section 230(c)(2) or consistent with its terms of service does not, on its own, render the platform a publisher or speaker for all other content on its service.

But none of that fixes all of the other parts of the moderator’s dilemma created by this very proposal.

Separate from those two major prongs, the proposed reform hits on two other points, both of which are kind of odd. First, it says it would open up civil enforcement actions from the federal government, making them exempt from Section 230 as well. Already, federal criminal law is exempt, but by exempting civil enforcement, it could allow for things like the FTC to go after websites for… something based on user content? It’s not entirely clear how that would play out. And then it says that federal antitrust law is not covered by 230, which… seems like an odd thing to call out. I guess the focus here is on whether or not the government could make an antitrust claim on moderation choices (so, for example, if Apple or Google blocked a competitor from being in their app stores). The specifics of such a proposal would matter, so it’s not clear how big a deal that might be at a first glance.

All in all, the DOJ proposal is, at the very least, craftier than Hawley’s silly proposal. But when looked at together, its attempt to thread the needle of the “too much moderation/not enough moderation” debate is one that will only make things much worse, and not solve any of the actual problems online. But it may be a field day for lawsuits, and maybe that’s the point: let’s punish Silicon Valley with a ton of lawsuits, just because we can.

Filed Under: bias, content moderation, doj, good faith, intermediary liability, otherwise objectionable, section 230, terrorism

Senator Hawley's Section 230 Reform Even Dumber Than We Expected; Would Launch A Ton Of Vexatious Lawsuits

from the dude,-seriously? dept

So there were rumors about Senator Hawley’s bill to reform Section 230 earlier this week, saying that it would remove 230 protections if you used targeted ads. Today, Hawley released the actual plan, which is very different, but even dumber. It would certainly turn the GOP from the party that wanted to push for tort reform and limit frivolous and vexatious lawsuits into the party that encouraged an avalanche of wasteful litigation.

The shortest version of the bill’s likely impact is that it would create an army of “content moderation troll” lawyers, because you could sue any platform that you felt removed your content unfairly and get $5,000 plus attorney’s fees. With a bit more detail, the bill requires that a platform have clear terms of service and any moderation would have to be tied back to those terms — which pretty much shows that whoever wrote this pile of shit has no idea how content moderation works, and the fact that you need to keep adjusting the actual content moderation practices, because dishonest people who are trying to abuse your system are always trying to game things to stay “technically” within the “terms” while still wreaking havoc on your platform.

The bill then says that if a platform makes any design or operation decision that is not in “good faith”, anyone can sue them for $5k and attorneys’ fees. Note that this seems to go beyond just moderation decisions. It includes a platform making design decisions that you dislike. That’s… crazy. There’s also the question of what is actually meant by “good faith” and all the 1st Amendment issues that raises, because determining what is and is not “good faith” is a straight up editorial decision, and the whole point of the 1st Amendment is that the courts can’t jump in to second guess editorial decisions.

To be clear, this law’s attempt to expand “good faith” seems to be purposely made in bad faith to simply overwhelm internet platforms with tons of lawsuits.

This bill flips the entire purpose of Section 230. As Jess Miers said, this bill seems to take the immunity from civil suits in the law and turns it into a private right of action for tons of frivolous and vexatious lawsuits.

It is not a serious attempt at reform. It’s an unconstitutional pile of crap that seems to serve no other purpose than to allow whiny aggrieved grifters to shake down every platform for their moderation and design choices.

Filed Under: frivolous lawsuits, good faith, intermediary liability, josh hawley, moderation, section 230, trial lawyers

Sixth Circuit Appeals Court Latest To Say It's Cool If The FBI Broke The Law During Its Playpen Investigation

from the deterrents-never-used-will-rarely-exhibit-a-deterrent-effect dept

The seventh Appeals Court to weigh in [PDF] on the FBI’s Network Investigative Technique deployed in the Playpen child porn investigation has weighed in. Unfortunately, it makes the Sixth Circuit the seventh appeals court to find the FBI’s warrant problematic, but willing to apply the “good faith” band-aid.

The problem with the application of the “good faith exception” is it assumes good faith on behalf of the FBI. There’s no reason to believe the FBI acted in good faith, though. While it was in the process of obtaining a single warrant allowing it to search computers all over the world, it was well aware Rule 41 limited searches to the jurisdiction where the warrant was obtained. It knew this because the DOJ was in the process of asking the Supreme Court and Congress to change Rule 41 to remove the jurisdiction limits while it was pursuing this investigation.

The Appeals Court grants good faith anyway, despite this background. It does do us (and the appellant) the favor of discussing good faith in light of the DOJ’s simultaneous attempt to codify searches it was already performing, but just because the discussion is expanded a bit doesn’t mean it makes much sense. Here’s the opening of the Sixth Circuit’s federal forgiveness pitch:

The good-faith exception is not concerned with whether a valid warrant exists, but instead asks whether a reasonably well-trained officer would have known that a search was illegal.

A “well-trained officer” should never have sought the search warrant in the first place, because a “well-trained officer” would have known search warrants were limited to the jurisdiction they were issued in. But the agent sought the warrant anyway and a magistrate judge actually approved it. The judge’s approval means more to the Sixth Circuit than the FBI’s bad faith proposition.

For the same reasons articulated in Master, we conclude that the good-faith exception is not categorically inapplicable to warrants found to be void ab initio. The difference between a state court judge acting without authority and a federal magistrate judge acting without authority is of little significance—in both instances, the individual who signed the warrant (arguably) had no power to do so. Master’s holding that the good-faith exception applies to one applies with equal force to the other. Accordingly, the good-faith exception to the exclusionary rule is not categorically inapplicable to warrants that are void ab initio because of a magistrate judge’s jurisdictional error.

But the case cited (Master) isn’t applicable to this situation. In that case, an officer presented a warrant request to the wrong county judge, accidentally obtaining permission to search outside of the judge’s jurisdiction. A similar mistake could not have possibly been made with this warrant request. A federal magistrate — whose jurisdiction covers an entire state — could not have been mistakenly approached to grant permission to search an entire nation. The FBI’s warrant affidavit clearly states it sought to search computers without knowing where any of the targets were located. The judge saw this and signed it anyway. Even if the judge blew the call, there’s no way anyone can argue with a straight face the FBI did not know the warrant request violated the law as it stood when it requested permission to deploy its NIT.

It may have been “reasonable” for the FBI agent to rely on the issued warrant, but only if you ignore what was happening at the DOJ during the time this investigation was occurring. In fact, it can be argued this investigation and a similar one in 2014 expedited the DOJ’s efforts on this front as it surely recognized some judges were going to find its NIT warrant invalid.

This explanation by the Sixth Circuit of its decision to extend good faith to the FBI agent doesn’t help. In fact, it doesn’t make sense.

But reasonable jurists have come to different conclusions about whether the NIT Warrant was valid. Compare United States v. Austin, 230 F. Supp. 3d 828, 833 (M.D. Tenn. 2017) (finding the NIT Warrant does not violate Rule 41(b) because it is the equivalent of a “tracking device” and therefore falls under the ambit of Rule 41(b)(4)), with United States v. Croghan, 209 F. Supp. 3d 1080, 1089 (S.D. Iowa 2016) (concluding that the magistrate judge lacked authority to issue the NIT Warrant), overruled on other grounds by Horton, 863 F.3d at 1052. We cannot, therefore, expect officers to have known that this type of warrant was invalid at the time it was sought. See Workman, 863 F.3d at 1321 (“[I]f a violation took place, it has escaped the notice of eight federal judges who have held that the same warrant complied with federal law and the federal rules even though data was being extracted from computers outside the Eastern District of Virginia. . . . [E]xecuting agents could reasonably have made the same mistake and reasonably relied on the magistrate judge’s decision to issue the warrant.”).

The court is saying an FBI agent — requesting a warrant in 2015 — can be excused for his Rule 41 ignorance because court decisions made 1-2 years after the warrant was sought suggest the NIT warrant area might have been a bit more gray than previously imagined. Furthering the retroactive forgiveness, the court goes on to point out — as others have — that Rule 41 changes, which went into effect more than two years after the warrant was obtained, now makes this sort of search legal. Since suppressing evidence is supposed to deter bad behavior by law enforcement, a past abuse that has been codified into law does not present further opportunities for exactly this same abuse of authority.

Certainly it would be impossible to violate rights in the same exact way again, what with the rules having been changed following the abuses contained in this investigation. But the deterrent effect of suppression would discourage law enforcement from seeking permission to perform illegal searches, even if there’s a chance those searches may become Constitutional in the future due to changes in the law. This is the court telling law enforcement to roll the dice in edge cases because you just never know what the future might bring. This encourages misconduct because it demonstrates the extent of the federal courts’ capacity to forgive.

Filed Under: 4th amendment, 6th circuit, doj, fbi, good faith, jurisdiction, playpen