jason chaffetz – Techdirt (original) (raw)

Federal Bill Introduced To Add A Warrant Requirement To Stingray Deployment

from the reclaiming-the-Fourth,-bit-by-bit dept

House Oversight Committee chairman Jason Chaffetz, along with his Senatorial counterpart Ron Wyden, is tackling something he promised to act on after he was finished excoriating the leaky Office of Personnel Management for ruining the lives of millions of Americans: Stingray devices.

A bipartisan group of House and Senate lawmakers introduced legislation Wednesday requiring police agencies to get a search warrant before they can deploy powerful cellphone surveillance technology known as “stingrays” that sweep up information about the movements of innocent Americans while tracking suspected criminals.

“Owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements,” said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who introduced the bill with Reps. Jason Chaffetz, R-Utah, and John Conyers, D-Mich. “Law enforcement should be able to use GPS data, but they need to get a warrant. This bill sets out clear rules to make sure our laws keep up with the times.”

What the bill would do is codify the DOJ’s “Stingray Best Practices” policy, which implemented a warrant requirement for cell site simulator deployment — albeit one that wasn’t really a requirement because it wasn’t statutorily-required. This would be the statutory requirement the DOJ’s better-late-than-never approach to constitutionality was missing.

But the bill doesn’t limit itself to cell tower spoofers. It also would add a layer of protection to data the DOJ has long argued isn’t covered by the Fourth Amendment.

The legislation introduced Wednesday, called the Geolocation Privacy and Surveillance (GPS) Act, would require a warrant for all domestic law enforcement agencies to track the location and movements of individual Americans through GPS technology without their knowledge. It also aims to combat high-tech stalking by creating criminal penalties for secretly using an electronic device to track someone’s movements.

This legislation is the sort of thing courts are apparently looking for when they kick crucial issues down the road. When outdated statutes present opportunities to redefine the Fourth Amendment’s confines, judges are frequently willing to tell plaintiffs and defendants to take it up with Congress if they don’t like the answer/non-answer they’re presented with.

The Supreme Court is no exception. When it (sort of) found warrants might be a good idea when deploying GPS devices for long-term tracking, it never went quite so far as to say a warrant should be a requirement in all cases. It seemed concerned about the length of the tracking but left it at PROBABLY when all was said and done.

The DOJ has often argued that several outdated statutes should be updated to reflect the changing contours of today’s connected, always-online world. But this is not the sort of thing it’s ever argued for. It would much prefer to see its power and reach expanded at the expense of Americans’ privacy. This bill, if passed, wouldn’t necessarily fix what’s wrong with past legislation and jurisprudence. But it will at least prevent multiple law enforcement agencies from deploying these invasive devices on a whim, or using them to engage in mass surveillance just because they can.

Filed Under: 4th amendment, imsi catcher, jason chaffetz, ron wyden, stingray, warrants

Congressman In Charge Of OPM Hacking Report Announces Plan To Investigate Stingray Use Next

from the a-stingray-sting dept

Representative Jason Chaffetz, fresh off his bombshell report on the OPM hacking, is promising to drop another explosive report in the future. This one will deal with law enforcement’s dirty little secret — one that’s not that much of a secret anymore.

The Stingray, a controversial cellphone tracking device used by the U.S. government and law enforcement, will be the subject of a forthcoming investigation from the House Oversight Committee, according to Committee Chairman Jason Chaffetz (R-Utah).

“You will be shocked at what the federal government is doing to collect your personal information,” Chaffetz said on Wednesday morning. “And they can’t keep it secure, that’s the point.”

It’s a good point, one fresh in the mind of millions thanks to the just-delivered OPM report. The government appears willing to take security seriously if it means doling out tax dollars to dozens of agencies with cyberstars in their eyes and crafting bad legislation, but not so much when it comes to actually ensuring its own backyard is locked down.

Chaffetz was one of the legislators behind the 2015 attempt to turn the DOJ’s Stingray guidance into law, laying down a warrant requirement for US law enforcement. Unfortunately, the bill went nowhere. Presumably, a thorough investigation into law enforcement use of this repurposed war tech might prompt more legislative cooperation in the future.

Chaffetz has done little to endear himself to security and law enforcement agencies since his arrival on the Hill. In addition to the failed Stingray warrant bill, Chaffetz also partnered with Ron Wyden to attempt to add a warrant requirement for law enforcement GPS tracking — something the Supreme Court almost addressed in its US v. Jones decision.

He also made new friends with the Secret Service while grilling officials over an incident where drunken agents arrived on the scene of a “suspicious package” report in spectacular fashion, crashing the vehicle they were driving into a White House barricade. Almost as soon as the hearing had begun, Secret Service employees were accessing Chaffetz’s personal info (generated by his attempt to join the Secret Service in 2003), hoping to find something embarrassing they could use to discredit him.

This new report will further alienate law enforcement agencies and personnel, starting with the FBI — which has acted as Stingray Overlord since the introduction of the equipment — and trickling all the way down to the local level, where agencies have relied on secrecy, lies, and case dismissals to keep information about the cell phone-tracking devices from being made public.

Filed Under: doj, investigation, jason chaffetz, law enforcement, oversight, stingray

Forty-One Secret Service Employees Punished For Illegally Accessing Congressman's Private Data In Hopes Of Discrediting Him

from the apparently,-the-Secret-Service-employs-a-lot-of-tiny,-easily-bruised-children dept

When Rep. Jason Chaffetz began asking the Secret Service about its string of high-profile failures, agents were quick to respond… with attempts to undermine the Congressman’s credibility. Eighteen minutes after the hearings started, Secret Service agents — dozens of them — began poring through his 2003 Secret Service application in hopes of finding a few skeletons in his previously-vetted closet.

Even Secret Service Assistant Director Ed Lowery got in on the illegal fun, suggesting via email that “some information [Chaffetz] finds embarrassing needs to get out.” Information did get out, but it had no effect on Chaffetz’s reputation. The only people embarassed were the Secret Service and DHS head Jeh Johnson, who was forced to apologize on its behalf.

Johnson’s press release, detailing the results of the DHS’s investigation of the incident, shows dozens were questioned about this violation of the Privacy Act. Better yet, it shows dozens were punished for their misconduct.

In all, the conduct of 57 Secret Service personnel was reviewed, including 11 at the SES [Senior Executive Service] level. Of those, 41 are receiving some level of discipline. This discipline includes a letter of reprimand to one individual, suspended discipline contingent on no further misconduct for a period of five years, and suspensions from duty without pay for periods of up to 45 days. The one individual found by the Inspector General to have disclosed the private information to an outside source, the Washington Post, has resigned from the Secret Service.

As is often the case, the employee whose misconduct was the worst slipped out the door before the hammer could come down. As for the rest, the sheer number of Secret Service personnel involved shows this agency is no less susceptible to peer pressure and bandwagon jumping than the occupants of the average high school locker room.

Rest assured, this sort of misconduct won’t rear its ugly head again, because top Secret Service officials say Things are being Done.

Like many others I was appalled by the episode reflected in the Inspector General’s report, which brought real discredit to the Secret Service. From Director Clancy, I have been told that tighter processes are now in place to limit access to personally identifiable information and to highlight for employees the consequences of a breach of that data.

I’d love to know what these “tighter processes” are. Hopefully it’s something more than post-login clickwrap saying something to the effect of “user agrees to abide by all policies and statutes” with an “OK” button being the only thing standing between them and dirt on legislators they don’t like.

Filed Under: jason chaffetz, privacy, secret service, surveillance

Legislators Introduce Bill That Would Turn DOJ's Stingray Policies Into US Law

from the no-longer-just-suggestions dept

The DOJ issued its formal guidance on Stingray devices and warrants back in September. While it was a nice afterthought, it sported an underdeveloped set of teeth. The biggest problem? It’s nothing more than guidance. It’s a set of internal policies that the DOJ’s underlings are expected to follow. Any misuse will presumably be subject to written reprimands and little else.

As it is only guidance, there’s very little accountability added. If an agency violates the new policies during the course of an investigation, the violated person doesn’t have the option of seeking redress through the judicial system.

This policy guidance is intended only to improve the internal management of the Department of Justice. It is not intended to and does not create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.

Whatever restraints the DOJ is applying to itself matter only to the DOJ, which can perform its own internal investigations and mete out whatever disciplinary actions it feels those coloring outside of the lines deserve.

Fortunately, there’s an effort being made to open up this Stingray guidance closed-loop and introduce some real accountability. As Eric Geller at the Daily Dot reports, legislators are introducing a bill that would codify the DOJ’s Stingray guidance.

Reps. Jason Chaffetz (R-Utah), John Conyers (D-Mich.), and Peter Welch (D-Vt.) on Monday introduced the Stingray Privacy Act, which would limit the government’s use of so-called “stingray” devices— surveillance tools that pretend to be cell towers so they can intercept mobile network traffic.

The bill would only permit a government agency to collect data using a stingray if it obtained a traditional search warrant or if it carried out its investigation under the Foreign Intelligence Surveillance Act (FISA), which does not permit the targeting of Americans.

No evidence collected through a stingray without a warrant or outside the FISA process could be used in a trial, congressional hearing, or other federal, state, or local proceeding.

The DOJ’s better-late-than-never guidance could become law, turning violations of the former policies into actionable civil rights complaints. Better yet, the abuse of Stingray devices could lead to the dismissal of improperly-obtained evidence. The codification of the warrant requirement also means agencies will have more trouble obscuring the origin of introduced evidence and will be creating a discoverable, possibly FOIA-able paper trail.

The bill has bipartisan support, which is always helpful. It also has a bit of propulsion thanks to the gradual uncovering of widespread usage for bog-standard criminal investigations and widespread secrecy that has led to bogus FOIA request denials and the dismissal of criminal indictments.

The question now is whether the bill will survive intercessions on behalf of the DOJ, which would like to appear Strong on Stingrays but without actually having to deal with the public’s complaints of civil liberties violations. Expect to see child killers, kidnappers and terrorists seated at the stakeholders’ table on behalf of the FBI and others if this bill gains momentum.

Filed Under: doj, imsi catcher, jason chaffetz, john conyers, peter welch, spying, stingray, surveillance, warrant

Secret Service Agents Dug Through Personal Info To Discredit Legislator Investigating Agency Wrongdoing

from the Secret(s)-Service dept

They get to wear nice suits, wield guns and hang around the President. They’re entrusted with protecting perhaps the most important person in the world. The US Secret Service should only be staffed with the best the nation has to offer. Instead, its recent protective efforts can be generously described as “almost adequate” and it’s apparently staffed with an assortment of vindictive children who can’t stand the thought of having their shortcomings questioned.

Rep. Jason Chaffetz heads up the House Oversight Committee, which is tasked with investigating allegations that Secret Service agents had spent several hours drinking before (literally) crashing a “suspicious package” party being thrown in their absence on a street near the White House. Almost as soon as the hearings began, Secret Service agents began looking for some way to tear Chaffetz down.

Employees accessed Chaffetz’s 2003 application for a Secret Service job starting 18 minutes after the start of a congressional hearing in March about the latest scandal involving drunken behavior by senior agents. Some forwarded the information to others. At least 45 employees viewed the file.

If this internal sharing of personal info were the extent of the wrongdoing, it would still be illegal. The US Privacy Act forbids the disclosure of these records, absent the written permission of the record’s subject. Obviously, Chaffetz was never approached by the Secret Service to get his OK for using his job application against him. But this isn’t the end of the agency’s misconduct.

One week later, Assistant Director Ed Lowery suggested leaking embarrassing information about Chaffetz in retaliation for aggressive investigations by the House Oversight and Government Reform Committee into a series of agency missteps and scandals, the report said. Days later, on April 2, the information about Chaffetz unsuccessfully applying for a job at the Secret Service was published by The Daily Beast, an Internet publication.

“Some information that he might find embarrassing needs to get out. Just to be fair,” Lowery wrote March 31 in an email to fellow Assistant Director Faron Paramore.

“Just to be fair.” Let’s take a look at that statement. Lowery’s employees embarrassed themselves, both in terms of protecting the White House and showing up for work sober. And yet, the “fair” thing to do was to discredit a politician actually performing his job: the oversight of government agencies.

Lowery says he never ordered anyone to release any information the agency had on Chaffetz. (He just heavily suggested it…) He told the Inspector General that saying the “embarrassing” information “need[ed] to get out” was only a reflection of his anger and frustration. It’s not as though anger hasn’t been known to push people towards regrettable actions. Obviously, Lowery regrets this now that he’s been caught, but claiming “the anger made me do it” doesn’t excuse his support of illegal activity being performed by his agency.

DHS head Jeh Johnson officially apologized to Rep. Chaffetz, following it with this consolation prize:

“I am confident that U.S. Secret Service Director Joe Clancy will take appropriate action to hold accountable those who violated any laws or the policies of this department,” Johnson said.

This may be true. Clancy was called out of retirement to take over the agency after the previous Secret Service head was booted following the White House security breaches. But it’s still the sort of “promise” no one should accept at face value. The government is routinely terrible at holding its own employees accountable for their actions, and — recent high-profile disgraces aside — the Secret Service is no exception.

The attempted use of personal information by agency employees to discredit someone engaged in investigating their wrongdoing is a gross abuse of power. Many government agencies have access to a wealth of personal information, especially for those who have been entrusted with security clearances or have applied for certain federal positions. Just think of what one could do with access to even greater amounts of personal information.

Oh but this would never happen with an #NSA database, don't be ridiculous. http://t.co/UDwVOnvQXq

— Jameel Jaffer (@JameelJaffer) October 1, 2015

Oh but this would never happen with an #NSA database, don’t be ridiculous.

Very little stands in the way of agencies abusing their access and power. This just happens to be one of the times when someone got caught.

Filed Under: ed lowery, embarrassment, foia, house oversight, jason chaffetz, jeh johnson, joe clancy, secret service, us privacy act, vendetta

Congressional Opponents Of Net Neutrality Try To Shame FCC Boss For Standing Up To ISPs

from the nontransparent-puppeteering dept

Wed, Mar 18th 2015 09:27am - Karl Bode

Now that our shiny new net neutrality rules are on the sixty-day march toward formal approval, there’s of course only two real ways neutrality opponents can overturn them: either a lawsuit or a 2016 party change. Since they’re legislatively impotent on the matter for the time being, net neutrality opponents in Congress have decided the next best thing is to publicly shame FCC boss Tom Wheeler — for literally weeks on end. As such, Wheeler faces at least five hearings over the next two weeks all with one goal: publicly punishing him for standing up to giant ISPs and supporting net neutrality.

The primary talking point being used against Wheeler is that he was “improperly” influenced by the White House. Because Wheeler came out in support of Title II after the White House’s November support for the idea, the narrative goes, somehow there’s dangerous chicanery afoot. Except as we’ve noted previously, the White House voicing desired policy trajectory doesn’t violate any rules, and is standard operating procedure — like when former President George W. Bush urged FCC boss Michael Powell to ease off media consolidation rules, or when Clinton urged former FCC chief Reed Hundt to ban hard liquor sales on television.

Still, this week’s hearing and “fact finding mission” before the House Oversight Committee (again, the first of five over the next few weeks) focused almost entirely on transparency, and how the White House somehow bullied an independent agency into approving tougher net neutrality rules. In Wheeler’s testimony (pdf), he again denies he was pressured, stating that he only came to embrace Title II after countless legal experts made it clear it was the most legally defensible platform for the rules to stand on:

“We heard from over 140 Members of Congress. We heard from the Administration, both in the form of President Obama?s very public statement of November 10 and in the form of the National Telecommunications and Information Administration?s formal submission. Here I would like to be clear. There were no secret instructions from the White House. I did not, as CEO of an independent agency, feel obligated to follow the President?s recommendation. But I did feel obligated to treat it with respect just as I have with the input I received ? both pro and con – from 140 Senators and Representatives.”

Of course, this doesn’t help propagate the narrative that Obama is forcing the FCC to destroy the Internet because he’s the devil and hates jobs. As such, Committee Chairman Jason Chaffetz handed out a packet of e-mails (pdf) to hearing attendees he claimed indisputably prove undue White House influence on the FCC. Except if you bother to actually read them, they don’t actually show anything of the sort. For example, one e-mail only shows a top AT&T lobbyist (who other included e-mails suggest to be Jim Cicconi, no stranger to undue influence of his own) vaguely claiming improper behavior just, well, because:

Another e-mail provided by House leaders features former Harry Reid staffer David Krone (formerly a Comcast lobbyist) urging the White House to back away from their Title II support:

In a third e-mail, Wheeler amusingly seems to suggest The White House coordinated with protesters to annoy the FCC boss in his driveway last November:

None of the e-mails come remotely close to showing Wheeler buckled to heavy White House pressure. In fact, the third e-mail actually appears to show Wheeler being resistant to White House influence (it’s worth noting said protestors say they also protested at the White House and weren’t “directed” by anyone). Few people expected much from Wheeler given his cable and wireless lobbying past, but if you read any of the better profiles of the FCC boss, you come away with the impression of an older man, no longer beholden to partisan whims or bullies, who actually makes decisions based on the evidence at hand. That’s an increasingly rare trait anywhere, much less in Washington. As such, it’s probably best to punish him for it.

Of course, when a few hearing attendees wanted to flip the conversation and highlight broadband industry influence on neutrality rules opposition, suddenly this desire for transparency wasn’t quite so pronounced. Documents at the hearing, for example, highlighted how FCC Commissioner Mike O’Rielly had help from industry in editing an anti-neutrality editorial last year. But O’Rielly was quick to issue a statement saying he didn’t need to document these discussions “because they were commenting on my personal views and advocacy, not lobbying or expressing views to the Commission in any capacity.”

Again, none of this means much of anything since the rules have been passed. Still, the idea that Obama “forced” Wheeler to embrace Title II helps frame the ongoing narrative that this is an “Obamacare style takeover of the Internet“, and not an unprecedented and incredibly rare capitulation to genuine, bipartisan public interest. Meanwhile, while a breathless love of transparency is the cornerstone of these hearings — that adoration only apparently extends up to the point where it begins to show broadband industry influence over net neutrality opposition.

If you’ve got the stomach for it, you can watch the entire hearing below:

Filed Under: congress, house oversight committee, jason chaffetz, net neutrality, open internet, title ii, tom wheeler

Congress Rushes To Legalize Phone Unlocking; But Existing Bills Need A Lot More Work

from the the-view-from-capitol-hill dept

Well, what a difference 114,000 signatures, a Presidential endorsement, and an FCC investigation make! As a lead activist on this issue, I can say that on Capitol Hill there has been a significant sea change on the issue of cellphone unlocking. Numerous Republicans and Democrats have come out publicly in favor of unlocking and against the criminal penalties at hand. On Monday, only a few hours after the Presidential endorsement of unlocking, we heard from Rep. Chaffetz that he was working on legislation — through him tweeting:

Working on leg to unlock your mobile phones.It is a freedom issue.You own the phone, you should be able to unlock it. .@derekkhanna

— Jason Chaffetz (@jasoninthehouse) March 5, 2013

On Tuesday, Senator Wyden introduced his legislation, the Wireless Device Independence Act. This is a good first step but unfortunately, it does not actually address the problem yet. In its current text, it seems to allow for individuals to unlock their own phones, but it keeps developing, selling, trafficking and discussing the tools and technology of cellphone unlocking still illegal. Without these tools being legalized, unlocking is still effectively illegal.

Also on Tuesday we heard from numerous Members of Congress that they support legalizing unlocking, including Rep. Darrell Issa and Rep. Jarred Polis. Additionally, there was a statement by Senator Patrick Leahy that was seen by many as giving a green light to other Democrats to endorse the legislation. Sen. Leahy, Chairman of the Judiciary committee, released this statement:

“I intend to work in a bipartisan, bicameral fashion to restore users’ ability to unlock their phones and provide them with the choice and freedom that we have all come to expect in the digital era,”

Then on Thursday, Senator Amy Klobochar, Senator Richard Blumenthal and Senator Mike Lee introduced the Wireless Consumer Choice Act (and Rep. Anna Eshoo is expected to introduce companion legislation in House).

From Senator Lee:

“Consumers shouldn’t have to fear criminal charges if they want to unlock their cell phones and switch carriers… Enhanced competition among wireless services is the surest way to increase consumer welfare.”

This statement is confusing as it is supposed to be about this bill – but that’s not actually what the Wireless Consumer Choice Act DOES.

The actual text of the Wireless Consumer Choice Act says that: “[the FCC] shall direct providers of commercial mobile services and commercial mobile data services to permit the subscribers of such services, or the agent of such subscribers, to unlock any type of wireless device used to access such services.” This is quite a confusing bill text. Here are a few problems. What does permit mean in this context? Is it:

1. Carriers can’t actively stop consumers with technological means (unlikely).
2. Carriers can’t stop consumers (but which doesn’t address manufacturers or others like the DOJ going after you for criminal charges).
3. Facilitate the unlocking by providing the codes upon request? Would they have to give the codes even if you are in contract to not unlock? Doesn’t permit mean you are required to period?

The one thing we know for a fact is that “permit” doesn’t have anything to do with adjusting their contractual terms to “allow” for consumers to unlock under their contract (all legislation appears to have a clause asked for by CTIA that it won’t touch existing contract law). Essentially, this legislation says that the wireless companies can’t enforce Section 1201 of the DMCA.

But that doesn’t protect against the manufacturers like Apple, HTC, etc. coming after users (as was the case for Sina Khanifar, who joined me on the activism campaign for unlocking). And it doesn’t protect against the criminal provisions, which would require another law. So since it has nothing to do with criminal law, it’s confusing as to why Sen. Lee’s statement would be about criminal law; however, it appears that he may introduce new, supplemental legislation that specifically deals with the criminal provisions as well.

Ok, so we are now at a total of two introduced bills.

Lastly, and perhaps most promising, as mentioned at the top, it appears that Rep. Jason Chaffetz is working on legislation and expected to target the unlocking criminal penalties, like Senator Wyden’s bill, but Rep. Chaffetz’ bill appears to be seriously considering doing so in an inclusive manner to also legalize the tools. In legalizing developing the tools, trafficking, selling and using the tools, such a bill would be the first real bill to actually make unlocking lawful.

Just to be clear, legislation goes through a process, and these bills will be revised and go through a committee. These committee hearings may be one of the first times that Congress has discussed some of the issues with the DMCA in the recent past. It’s really pretty incredible that they haven’t even held oversight hearings.

Unfortunately, none of the bills under consideration or under discussion appear to include anything beyond unlocking. They do not include anything to allow for accessibility technology for persons who are blind or deaf, allow for jailbreaking, or allow for computer science research. These issues will require additional activism and engagement to get them on the table.

If a narrow bill passes on unlocking, instead of taking on more substantive reforms, it is my intention to next lead a targeted campaign on accessibility technologies. There is no legitimate governmental reason for keeping these accessibility technologies illegal — and we cannot continue to deny persons who are deaf and blind technology that can help them because a law was written before modern technology, outlawing them by default.

Today is just over two months since my last day on Capitol Hill — and in those two months I have seen the anti-SOPA coalition accomplish their first forays in actively passing positive legislation. These may seem like small victories, but as I discuss in my piece for Boing Boing, these are small, strategic, affirmative victories that will culminate in even greater action. I encourage people to stay involved and continue to reach out to their Members of Congress on this issue. It’s up to us to ensure that they actually fix the problem, as opposed to just checking the box.

Update: This afternoon we find out that Rep. Goodlatte, House Judiciary Committee Chairman, will be introducing a bipartisan bill with Ranking Member Rep. Conyers on this issue — but it’s unclear what they have in mind. Let’s hope that Goodlatte’s bill actually solves the problem by including legalizing the tools permanently — rather than a check the box approach. But Goodlatte was also an original sponsor of the Stop Online Piracy Act (SOPA) so we will have to see their approach. The worst check the box approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary “exception” for three years and let the Librarian rule on this again in three years. That would keep the underlying technology illegal but also require the same triennial review process, that has failed here, to ask permission. That would be truly unacceptable.

Filed Under: amy klobuchar, anti-circumvention, copyright, dmca, jason chaffetz, laws, mike lee, patrick leahy, phone unlocking, richard blumenthal, ron wyden

Pundits And Politicans Very Quick To Blame Video Game & Movie Violence For Newtown

from the of-course-he-does dept

The tragedy last week in Connecticut is still horrifying to think about on many different levels — but the constant search for blame, and using it to support pet political ideas is troubling. This isn’t to say that we don’t necessarily need to have a “conversation” on various hot potato political issues, but basing it around an event like this isn’t likely to be a productive and informed conversation, but one driven purely by emotions. I understand the desire, and the idea that making use of such a tragedy to create political will to do something, is all too tempting. But I fear what happens when we legislate around emotions, rather than reality. And, no I’m not even going to touch the question of gun control or mental health treatment. Both obviously evoke strong opinions from people on all sides of the issue (and, contrary to popular opinion, there are more than two sides to those issues). Instead, let’s talk about the rush to blame video games and TV shows, as seems to happen every single time there’s a mass shooting — and almost always done with no evidence.

We already talked about people rushing to blame a video game, after the incorrectly named “original” suspect in the shootings had, possibly, at some point “liked” the game on Facebook. But, of course, now the politicians are stepping in, and retiring Senator Joe Lieberman is using the tragedy to push forth one of his pet ideas that he’s brought up in the past: violent video games and TV must have something to do with it. He’s trying to set up a commission to “scrutinize” “the role that violent video games and movies might play in shootings” among other things (yes, including gun control and mental health care).

Lieberman, not surprisingly, was not the only one. A large group of politicians and pundits immediately jumped to the conclusion that video games and movies must have something to do with all of this:

A disturbing number of public figures have lashed out at video games since the atrocity committed at Sandy Hook Elementary on Friday. A bipartisan group of legislators embraced this scapegoating on the Sunday news programs; from Democrats like Sen. Joe Lieberman and Gov. John Hickenlooper to Rep. Jason Chaffetz and former Pennsylvania Gov. Tom Ridge.

They were joined by members of the media – sadly, too many to count.

On MSNBC on Monday, Chris Jansing asked her guests what connection Adam Lanza’s interest in video games had to his murderous shooting spree. She quoted senior White House advisor David Axelrod who tweeted “shouldn’t we also quit marketing murder as a game?” Liberal contributor Goldie Taylor revealed that she refused to let her child play games until he was 14-years-old.

[….]

On Fox & Friends on Monday, legal analyst Peter Johnson Jr. delivered an offensively sermonizing renunciation of entertainment producers and videogame makers who are “clinging to guns economically.”

“They are glamorizing guns in this country. They are the scourge in terms of these guns,” Johnson Jr. said of game and filmmakers

Of course, time and time again when these shootings happen, the reports later show… that video games and movies played little to no role. Yes, sometimes the killers played these games, but it’s difficult to find teenagers these days who have not played a violent video game or watched a violent movie. It’s like saying that we should explore “the role that breakfast plays” in such shootings. How many of the killers ate breakfast that day? In fact, studies seem to suggest that, if anything, violent movies may actually decrease incidents of violence.

Bizarrely, the person with the most thoughtful explanation on some of this might be movie critic Roger Ebert, in a review of Gus Van Sant’s movie Elephant from nearly a decade ago. That movie portrayed a similar school shooting, and did so by making it clear that sometimes there are no answers and there is no “other thing” to blame. Sometimes (perhaps many times) these things don’t make sense, no matter how many times we want them to make sense. But Ebert also points to another factor that rarely gets discussed:

Let me tell you a story. The day after Columbine, I was interviewed for the Tom Brokaw news program. The reporter had been assigned a theory and was seeking sound bites to support it. “Wouldn’t you say,” she asked, “that killings like this are influenced by violent movies?” No, I said, I wouldn’t say that. “But what about ‘Basketball Diaries’?” she asked. “Doesn’t that have a scene of a boy walking into a school with a machine gun?” The obscure 1995 Leonardo Di Caprio movie did indeed have a brief fantasy scene of that nature, I said, but the movie failed at the box office (it grossed only $2.5 million), and it’s unlikely the Columbine killers saw it.

The reporter looked disappointed, so I offered her my theory. “Events like this,” I said, “if they are influenced by anything, are influenced by news programs like your own. When an unbalanced kid walks into a school and starts shooting, it becomes a major media event. Cable news drops ordinary programming and goes around the clock with it. The story is assigned a logo and a theme song; these two kids were packaged as the Trench Coat Mafia. The message is clear to other disturbed kids around the country: If I shoot up my school, I can be famous. The TV will talk about nothing else but me. Experts will try to figure out what I was thinking. The kids and teachers at school will see they shouldn’t have messed with me. I’ll go out in a blaze of glory.”

In short, I said, events like Columbine are influenced far less by violent movies than by CNN, the NBC Nightly News and all the other news media, who glorify the killers in the guise of “explaining” them. I commended the policy at the Sun-Times, where our editor said the paper would no longer feature school killings on Page 1. The reporter thanked me and turned off the camera. Of course the interview was never used. They found plenty of talking heads to condemn violent movies, and everybody was happy.

Meanwhile, Danah Boyd has a related, but somewhat different perspective on the whole thing, noting how the media frenzy around these events also tends to mess with everyone else who are trying to cope with the situation, and makes sure their lives can never go back to any semblance of normalcy. She talks about running into some kids who had gone to Columbine high school, a few months after those attacks:

What I heard was heartbreaking. They had dropped out of school because the insanity from the press proved to be too much to deal with. They talked about not being able to answer the phone – which would ring all day and night – because the press always wanted to talk. They talked about being hounded by press wherever they went. All they wanted was to be let alone. So they dropped out of school which they said was fine because it was so close to the end of the year and everything was chaos and no one noticed.

As she notes, it’s not the press’s fault either. They’re also giving the public what they want — and, she agrees, that some of these topics are important and should be discussed. But the focus on the people in Newtown isn’t helping.

But please, please, please… can we leave the poor people of Newtown alone? Can we not shove microphones into the faces of distraught children? Can we stop hovering like buzzards waiting for the fresh meat of gossipy details? Can we let the parents of the deceased choose when and where they want to engage with the public to tell their story? Can we let the community have some dignity in their grief rather than turning them and their lives into a spectacle of mourning?

Yes, the media are the ones engaging in these practices. But the reason that they’re doing so is because we – the public – are gawking at the public displays of pain. Our collective fascination with tragedy means that we encourage media practices that rub salt into people’s wounds, all for the most salacious story. And worse, our social media practices mean that the media creators are tracking the kinds of stories that are forwarded. And my hunch is that people are forwarding precisely those salacious stories, even if to critique the practices (such as the interviews of children).

What happened last week was senseless and tragic and painful to think about in all sorts of ways. And, yes, there are reasons to hope that such an event might lead to ideas that would prevent such things in the future, but the way we go about things on such discussions doesn’t provide much hope that we’re going to do anything valuable or thoughtful in response. Instead, it becomes a rush to do something purely out of an emotional response, and it’s unclear how that helps.

Filed Under: jason chaffetz, joe lieberman, john hickenlooper, movies, newtown, politics, sensationalism, shooting, tom ridge, video games

Congressional Reps Question Feds Over Botched Domain Seizures

from the will-we-get-answers dept

The government’s admission that it had (once again) mistakenly seized and censored a website for over a year when it dropped its case against Rojadirecta/Puerto80 has reminded everyone that Dajaz1 was not an isolate case. It was a part of a wider program where DHS (via ICE) and the DOJ systematically believed whatever the RIAA and MPAA were telling them, leading to the blatant censorship of a variety of websites, without proper due process. Thankfully, some in Congress are paying attention. Bipartisan Congressional Reps. Zoe Lofgren, Jason Chaffetz and Jared Polis have teamed up to send a letter raising a number of questions about Operation in Our Sites, to both Attorney General Holder and Homeland Security Secretary Napolitano.

The letter doesn’t even mention the Rojadirecta case, but focuses on what happened with Dajaz1, pointing out their concern with the program, and how it appears to violate free speech rights, ignore due process and destroy legitimate businesses. The letter raises the fact that Dajaz1 is not an isolated case. As we’ve pointed out in the past, we’re aware of at least a few other domains that were seized, and whose owners had challenged the seizures. And yet, well over a year later, there appeared to be no evidence of either a return of those domains or a forfeiture process started. Given how the feds treated Dajaz1, with secret extensions, preventing Dajaz1 from representing itself in court, we’ve wondered how many other domains the DOJ and ICE had incorrectly and illegally seized — and which they were now keeping in that kind of holding pattern. It’s good to see that this letter directly asks about that issue:

Other complaints have been raised by websites seized under “In Our Sites” that bear similarities to the Dajaz1 case. These complaints center around unnecessary delays in advancing and resolving cases, difficulty in obtaining documents from the government that are fundamental to the underlying cases (such as affidavits), and difficulty even maintaining contact with the U.S. Attorneys prosecuting the cases. The effect of these problems is to severely limit the ability of website owners to challenge the legality and merits of the domain name seizures.

The letter goes on to ask a series of important questions for both DHS and DOJ, especially regarding the utter failure of both departments in the Dajaz1 situation.

1. What is the process for determining which sites to target? Who is involved in that process? What specific steps do DOJ and ICE take to ensure that affidavits and other material are thoroughly reviewed for accuracy prior to seizing a domain? 2. To what extent are government agents required to evaluate whether the potentially infringing material to which target sites link — or which they host themselves — are non-infringing fair uses, impliedly licensed, and/or de minimis uses? 3. Do government agents consider whether a site complies with the DMCA safe harbors? If so, how does this affect the determination to target a site? 4. How many sites have attempted to retrieve their domains, via any process, judicial or informal, and what is the status of those cases? 5. Have you made any changes to your domain seizure policies or their implementation as a result of the issues arising from the Dajaz1 seizure or any other seizure? If so, what were those changes? 6. What specific steps has the DOJ and ICE taken to ensure that domain name seizure cases proceed without unnecessary delays, and that website owners seeking to restore their domain names have swift access to the officials and documents necessary to resolve their cases? 7. How many more seizures do you anticipate occurring in the next six months and year?

It seems to me that questions four and five are the key ones here, which means I fully expect DOJ and ICE to be especially non-responsive in whatever answers they provide.

Filed Under: dhs, doj, domain seizures, forfeiture, ice, jared polis, jason chaffetz, legality, stalling, zoe lofgren

Debate Club: Should Police Need A Warrant To Get Your Location From Your Mobile Phone Provider?

from the debate-it-up dept

US News runs some online debates, in which they bring together a bunch of experts to debate a particular topic of interest, allowing readers to vote on which arguments they agree with most. This week, they’re debating if police should need to prove probable cause in order to get a warrant to get your mobile phone location (and potentially track you). There’s a great opening argument from Senator Ron Wyden, who worries about the possibility for abuse:

While having access to geolocation data is clearly useful for law enforcement agencies, without the resource limitations that used to discourage the government from tracking you without good reason, the limits on when and how geolocation data can be accessed are unclear. A police department, for example, might not have the resources to follow everyone who lives within a city block for a month, but without clear rules for electronic tracking there is nothing to stop it from requesting every resident’s cellphone location history.

Obviously, we expect people to see us when we step out onto the street each morning, but we don’t expect those people to track all of our movements over the course of days, weeks, months, or even years.

Also on his side (in this debate) is Rep. Jason Chaffetz, who makes a straightforward 4th Amendment argument, the ACLU’s Catherine Crump, who not surprisingly focuses on the privacy arguments and Jennifer Granick from the Center for Internet and Society talking about how the lack of a warrant requirement leaves the system wide open to abuse by law enforcement.

Who can possibly argue against all that? Well, there’s Joseph Cassilly, who had been the president of the National District Attorney’s association. His basic argument is that having easy access to this data makes the job of law enforcement easier:

A recent example of this was in a gang shooting in my jurisdiction wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder. The police received cell phone information regarding these individuals from prior arrest reports. The cell-site historical information for the time of the killing shows that those two cell phones were hitting off the same tower at the same time in the area of the murder.

Nice story, but there is nothing in the Constitution that says we need to make law enforcement’s job easier. In fact, it’s the opposite. The reason we have a 4th Amendment is to make law enforcement’s job more difficult. But that’s a choice we make as a free society, recognizing that protecting our civil liberties and freedoms is an important barrier to inevitable law enforcement abuse.

Also in favor of easier spying on people is Rep. Trey Gowdy, who seems to argue that using your GPS data to track you is no different than other “advancements” like “DNA analysis, fingerprint analysis, voice exemplars, blood spatter, or court-approved wiretapping.” Gowdy is a bit more middle-ground here, suggesting the importance of privacy, but saying he thinks that location data should require a “lower standard” for a warrant than probable cause. Of course, the problem there is that the whole “probable cause” bit comes to us from The Constitution. So, changing that is difficult.

Either way, you can check out the full arguments and vote for which ones you find most compelling…

Filed Under: aclu, debate, geolocation, jason chaffetz, joseph cassilly, mobile phone, police, trey gowdy