lawsuit – Techdirt (original) (raw)

Court Tells Plaintiff Oft-Abused Wiretap Act Can’t Be Abused To Cover Website Interactions

from the ma'am-this-is-a-website dept

Very few states laws can be considered to be “famous.” Almost any state law immediately recognized by people in other states can only be described as “infamous.” The Wiretap Law enacted in Massachusetts is definitely infamous.

For years, this statute was abused by law enforcement officers and other state employees to punish or prosecute residents who recorded them performing their public duties. This sort of thing occurred regularly in the state until a federal court told the state government the law couldn’t be used to arrest people for recording cops or other government employees.

But the law remains problematic, not just because of this oft-observed abuse but because the law’s language is vague enough to encompass almost any definition of communication and almost any entity that might have the ability to eavesdrop on the communications of others.

Because of that, it takes the Massachusetts Supreme Judicial Court 93 pages [PDF] to arrive at the obvious conclusion that a hospital website passing browser information on to advertisers and other third parties is not a violation of the Wiretap Act. (via Courthouse News Service)

The plaintiff visited the website of two hospitals. During these visits to their sites, she accessed publicly-available information. At no time did she interact with any health care professionals, chatbots, chatbots pretending to be health care professionals, or provide any of her personal information (including any health issues) to anyone or anything.

Sometime later, she decided to sue both of the hospitals whose sites she had visited, claiming that their sharing of her browsing activity with third parties was somehow the sort of eavesdropping and communications interception the state law was enacted to deter.

The court is sympathetic. But even considering the vague language of the state law, it can’t find anything that would suggest the law was written to prevent websites from sharing user information with third parties.

Put most simply (and ahead of another 90 pages of discussion, including some dissenting opinions), the state law was designed to combat the sort of thing people most commonly associate with wiretaps: the interception of personal communications. While “wiretap” has historically referred to telephone conversations, it is understood that it also covers personal electronic communications. However, no conversations occurred here:

The interactions here are not with another person but with a website. Nor are they personal conversations or messages being intercepted, but rather the tracking of a website user’s browsing of, and interaction with, information published on a website.

That’s not to say it’s ok for any and all websites to harvest as much information as they can in order to please advertisers, data brokers, or some innate desire to just collect as much as you can because you never know when it might prove useful. In fact, there may still be some cause of action here. But the Wiretap Act isn’t the vehicle for redress.

Make no mistake, the hospitals’ alleged conduct here raises serious concerns, and may indeed violate various other statutes and give rise to common-law causes of action more specifically directed at the improper handling of confidential information, particularly confidential medical information. And we do not in any way minimize the serious threat to privacy presented by the proliferation of third-party tracking of an individual’s website browsing activity for advertising purposes. These concerns, however, should be addressed to the Legislature.

On top of that, the hospital sites provided a pop-up message to first-time visitors informing them of the sites’ use of cookies and providing links to privacy policies and third-party use of collected data. That’s hardly a furtive act, the sort of thing the Wiretap Act was written to address. Even if it’s true no one reads the fine print and that sites tend to gather way more info than might seem necessary, it’s not as though the websites accessed the plaintiff’s computer on their own and started looking for data to gather or, more directly, personal information to intercept.

Even if the statute is vague and even if the court is inclined to believe simply browsing a website could be construed as a personal communication between the site visitor and the website, reading the state statute this way would result in the criminalization of information gathering at any website anywhere, something clearly not intended by legislators when they crafted the law.

In analyzing whether the interception of this information constitutes a criminal violation, we must keep in mind that the statute does not distinguish medical information from other information, or hospital websites from other websites.

Consequently, we must impose a common definition of communication of information for all websites. For example, would it be a criminal violation if a user browses a music or sports website to inquire about particular songs or athletes, and the music website or sports website tracks its users, and shares that information with Internet advertisers without the user’s consent? Under this interpretation, it would appear that thousands of website owners could potentially face severe criminal and civil penalties for using tracking tools needed to support an advertising-based business model that is so common on the Internet.

While no doubt there are some legislators that would like to see this very thing happen, that simply isn’t the case here. Demanding better privacy protections for web users is a good thing, but a Wiretap Act clearly meant to criminalize illegal interception of personal communications isn’t the way to achieve this end. That was never the case here, and recent jurisprudence concerning the public recording of public officials further narrows the breadth of the law to target only the eavesdropping and interception of private communications legislators had in mind when they wrote it. While it’s easy to expand the law to cover text messages, email, and private messages via social media platforms, it’s impossible to believe the surface-level gathering of user interaction data could possibly be considered a violation of this law.

Filed Under: lawsuit, massachusetts, privacy, web advertising, wiretap act

Norfolk, Virginia Residents Sue City Over Its Network Of 172 Flock Cameras

from the panopticon-purveyors-beware dept

This lawsuit could not be more impeccably timed. Whether or not this timing is more fortuitous than impeccable remains to be seen, but there’s no denying the bang-bang-bang effect on display here, even if it may just be coincidental.

Last week, a Virginia federal court ruled three hits from Flock ALPR cameras wasn’t enough to trigger a Fourth Amendment violation. It reasoned this was not the same sort of post facto long-term tracking addressed by the Supreme Court’s Carpenter decision, which mainly dealt with law enforcement’s obtaining massive amounts of cell site location data from service providers without a warrant.

That decision erected a warrant requirement for obtaining this data from service providers. The limited holding said important things about tech tools lending themselves to pervasive surveillance while evading the guardrails of Fourth Amendment jurisprudence, but had little to say about slightly less pervasive surveillance using other systems that weren’t reliant on cell service providers and their location data.

The end result was a loss for the defendant, who failed to show three hits from Flock ALPR (automatic license plate reader) cameras violated his rights. The court arrived at this conclusion despite noting Flock’s cameras captured far more than just plate/location/time data. The cameras also captured distinguishing features of vehicles passing its camera and allowed law enforcement to search by make/model/distinguishing features, rather than limiting them to plate number searches. (It also noted Flock cameras gather lots of images of people, but Flock affirmed to the court that its software could not be used to perform facial recognition or otherwise track people’s movements outside of their cars. For now, anyway…)

A week later, another city in Virginia is being sued for its network of Flock ALPR cameras. Unlike what was seen in Richmond, Virginia, where a court ruled a few hits from a reverse search of a vehicle’s description didn’t raise constitutional concerns, the flock of Flocks in Norfolk is a bit more concerning. Even the city’s top cop has admitted it’s a panopticon enabled by easy-to-use and even easier to monitor cameras provided by Flock. (h/t FourthAmendment.com)

Norfolk police chief Mark Talbot said last year, “It would be difficult to drive anywhere of any distance without running into a camera.”

But there’s more to it than just a network of ALPR cameras. Most ALPR systems are designed to notify law enforcement when plates on alert lists pass a camera. It’s a passive system that doesn’t require nor allow constant monitoring by law enforcement. The system in use in Norfolk is the opposite. While it can be utilized as a passive system that provides alerts for plate hits, the Norfolk PD has decided to use it as an active monitoring system to track people’s movements. This is from the lawsuit [PDF], filed with the assistance of the Institute for Justice:

There are no meaningful restrictions on City officers’ access to this information. Officers need only watch Flock’s orientation video and create login credentials to get access. After that, the police department requires them to log in and use Flock’s database throughout their entire shift. Although the police department’s policy requires that officers use the information for law enforcement purposes only, no one proactively monitors their use. Every City officer can search the database whenever they want for whatever they want—no need to seek advance approval.

All of this is done without a warrant. No officer ever has to establish probable cause, swear to the facts in a warrant application, and await the approval of a neutral judge. The cameras take photographs and store the information of every driver that passes them—suspect or not. The photographs and information are then available to any officer in the City to use as they see fit, for the next 30 days. And if City officials download the photos and information during that 30-day window, there are no meaningful restraints on how long they can hold them or how they may be used.

Worse still, Flock maintains a centralized database with over one billion license plate reads every month. So, even after a driver leaves the City, officers can potentially keep following them in the more than 5,000 communities where Flock currently has cameras. Likewise, any person with access to Flock’s centralized database can access the City’s information, potentially without the City even knowing about it. Ominously, the City’s police chief has said this “creates a nice curtain of technology” for the City and surrounding area.

The Fourth Amendment concerns might be the least of the issues here. This is a massive database of people’s movements being constantly refilled by the city’s 172 cameras, operated by officers who are expected to actively engage with the system, all without any credible or meaningful oversight.

The city and PD tout it as a crime fighting tool. But it’s a system that actively encourages abuse. Since it tracks every vehicle, officers can use it to track the movements of anyone they wish to track, ranging from journalists to protestors to estranged spouses to anyone they might feel like knowing more about for definitely non-law enforcement purposes. This isn’t mere speculation. The lawsuit cites a couple of past abuses of law enforcement databases by police officers. We’ve covered several more of these cases here at Techdirt over the past decade.

The argument here is that warrantless surveillance of people’s movements violates the Fourth Amendment, even if any single plate/vehicle photo is not a violation in and of itself. Whether this argument will generate favorable judicial action depends on whether or not the court decides to view the hundreds of thousands of photos captured by the 172 cameras as a whole, or whether it decides each of these hundreds of thousands is it own individual observation of a vehicle on a public road, which has never been considered a Fourth Amendment violation.

And that’s where Carpenter will come into play. The Supreme Court knew any individual data point meant nothing, especially under the Third Party Doctrine. But when combined to create a long-term record of someone’s movements, officers needed probable cause to obtain this data. In this case, the court will have to decide whether accessing this database requires a warrant.

Whatever it decides, it’s clear the Norfolk PD needs to be doing more to prevent abusive access by officers. The policies it has in place do absolutely nothing to deter misuse. The only requirement appears to be agreeing to some click-wrap that happens to include a short video officers are only obligated to press “play” on. After that, the use and application of this tech appears to be left to each officer’s discretion, which is absolutely the best way to encourage multiple indiscretions. If this lawsuit can’t actually get a warrant requirement installed, perhaps it will, at the very least, force the PD to more closely supervise officers’ use of the Flock-enabled Norfolk Panopticon.

Filed Under: 4th amendment, alpr, carpenter, lawsuit, license plate readers, surveillance, virginia
Companies: flock

Detroit Cops Misused ALPR Tech To Seize An Innocent Person’s Car For Three Weeks

from the fake-it-till-you-take-it dept

The Detroit PD is a case study in misuse of powerful surveillance tech. The department is notable for being involved in no less than three wrongful arrests, due to misuse/abuse of its facial recognition tech. The city has already paid out a $300,000 settlement in one of these cases. Worse, two of the three cases involve the same so-called “detective,” which means one of their investigators should definitely never be allowed to use the tech again.

These arrests are the result of ignoring the guidance that surrounds the tech. The tech provider warns facial recognition matches should not be used as the sole probable cause for arrest warrants. The PD’s policies say the same thing. And yet, there have been multiple wrongful arrests because investigators ignored these policies and procedures, including one who’s done this at least twice.

Now, there’s another misuse of surveillance tech that’s making the wrong kind of headlines for the Detroit Police Department. Automatic license plate readers capture hundreds of millions of plate/location images across the country every day. These are automatically searched against hot lists of vehicles tied to criminal activity.

This is an efficiency gain — one that allows officers to more with less legwork. But it also accelerates the error rate, something that has also been linked to wrongful stops and arrests. That the Detroit PD would also be misusing this tech isn’t a surprise. The bigger surprise might be that the Detroit PD specifically allows officers to engage in this misuse. This is from Paul Egan’s article for the Detroit Free Press, which details yet another tech-enabled screwup by the Detroit PD.

A Detroit police spokesperson said officers are authorized to use license plate readers in reverse, when they have a vehicle description but no partial license plate number.

That’s not responsible use of this tech. This is nothing more than a policy-enabled fishing expedition, which allows investigators to surf the database for suspects, using nothing more than speedy guesswork to find a “suspect.”

This case — which has resulted in a lawsuit — is even worse. Investigators didn’t even have a partial plate number. All they had was a vehicle description. So, they googled the haystack until they found a car to stop, assuming whoever was in it must be the criminal they were looking for. They were wrong, but that didn’t stop them from sending a bunch of officers to this person’s house, throwing her 2-year-old child into a cruiser while they cuffed her and, basically, stealing her car.

Acting on information drawn from its multi-million-dollar network of license plate readers, Detroit police handcuffed Isoke Robinson, put her 2-year-old son, who has autism, in the back of a police cruiser, and seized and impounded her only car for more than three weeks.

But witnesses to the Sept. 3, 2023, drive-by shooting police were investigating never gave officers even a partial license plate number.

And the man later convicted in the nonfatal shooting has no known connection to Robinson or her 2013 Dodge Charger. Robinson, who had to borrow someone’s truck to keep her job as an assembly line worker at Stellantis and has sued the city in federal court, was never charged with a crime or even identified as a suspect.

Based on nothing more than a reverse image search (so to speak), officers took Robinson off the road, out of her car, and traumatized her son. The testimony given by officers in the lawsuit makes it clear no one was handling anything professionally or responsibly. The plate reader cops looked at was two miles from the crime scene but only a couple of blocks from where Robinson lived. (She has since moved out of Detroit.)

On top of that, images of the suspect vehicle obtained from nearby private CCTV cameras showed something an actual investigator might have attempted to verify before prematurely declaring victory over crime just because they’d take an innocent woman’s car. Those images showed a Dodge Charger with only a single working fog light. Despite holding onto Robinson’s car for three weeks, no one bothered to take another look at the car cops were carelessly claiming was evidence.

Detroit Police Detective Dion Corbin, Jr., who was in charge of the shooting investigation, testified in an Aug. 14 deposition that the entire time police had Robinson’s vehicle impounded, they never checked to see whether both her fog lights were working, or not. They also never tested the car for potentially relevant evidence, such as gunpowder residue, Corbin testified.

These people don’t deserve the title of “detective” or “investigator.” They’re doing neither of these things. They’re just finding the simplest, most effort-free “solution” to their problem. And, by doing so, they’re neither finding criminals, nor are they making Detroit any safer. While they’re impounding cars and throwing toddlers into cop cars, the real criminals are still out there, avoiding arrest by doing nothing more than existing alongside officers who can’t be bothered to take their own work seriously.

Filed Under: 4th amendment, alpr, detroit, detroit pd, lawsuit

LAPD Raids Medical Lab For (Nonexistent) Weed, Get Gun Stuck In An MRI Machine

from the keystone-kops-handling-the-Drug-War dept

Some of our nation’s finest Drug Warriors are at it again. And by “at it,” I mean doing seriously stupid, seriously unconstitutional stuff in hopes of finding drugs or (better yet!) cash that will somehow prove they’re doing anything at all to stem the flow of illegal drugs.

And yet, they weren’t even after a truly illegal drug here. The LAPD was going after some supposedly “unlicensed” weed, which means weed that isn’t generating tax dollars, rather than the substance that is mostly legal in a lot of places, including Los Angeles, California.

The raid was botched in more ways than one, but it led off with the claim always made by Drug Warriors when they need an excuse to start violating the Constitution. (h/t Radley Balko)

The owners of NoHo Diagnostic Center are suing the LAPD, the city of Los Angeles and multiple police officers, alleging they violated the business owners’ constitutional rights and demanding an unspecified amount in damages. Officers allegedly raided the diagnostic center, located in the Van Nuys neighborhood of Los Angeles, thinking it was a front for an illegal cannabis cultivation facility, pointing to higher-than-usual energy use and the “distinct odor” of cannabis plants, according to the lawsuit.

Yep, cops on Drug War duty are peeping electric bills to locate grow operations. Even when they’re wrong, they still feel they’re right. There are lots of reasons a place might be using more electricity, whether it’s someone’s desktop Bitcoin rig or, in this case, a place that uses a lot of high-powered, highly-specialized medical equipment. And “distinct odor” is just a useful dodge — something used to justify otherwise illegal entries that can’t be readily disputed because there’s no body cam on the market (yet) that is capable of identifying odors.

What the body cams can catch is the butchery of rights and some incredibly incompetent policing. We’ll see if any of this footage survives — not just because the LAPD might want to cover this up, but because the officers just sort of blundered around the building, poking and prodding at x-ray machines, ultrasound devices, CT scanners, and — most comically — an MRI behind a door that clearly told everyone entering not to bring anything metal into the room. And for good reason, as one officer immediately discovered.

The MRI machine’s magnetic force then allegedly sucked his rifle across the room, pinning it against the machine…

An officer then allegedly pulled a sealed emergency release button that shut the MRI machine down, deactivating it, evaporating thousands of liters of helium gas and damaging the machine in the process. The officer then grabbed his rifle and left the room, leaving behind a magazine filled with bullets on the office floor, according to the lawsuit.

Please tell me more about this “training and expertise,” Officer Disarmed-By-An-MRI-Machine. Also, explain to me why it was worth the sacrifice of a multi-million dollar machine to save a gun that’s far more replaceable than you are, Officer Doesn’t-Know-What-The-Fuck-He’s-Doing. The cop shop will always issue you another one. But without securing a win or a settlement in this lawsuit, the medical facility will have to cover the repairs out of its own pocket due to your inept blundering.

The lawsuit’s [PDF] allegations further highlight the complete ineptitude of everyone involved in this raid, starting with the officer who secured the search warrant. Behold this amazing display of detective work by someone who shouldn’t be allowed to operate MS Word, much less a handgun.

OFFICER FRANCO conducted surveillance on multiple dates in 2023, reporting the “distinct odor of live cannabis plant and not the odor of dried cannabis being smoked,” tinted windows – which he attributed to efforts to conceal cannabis cultivation, security cameras –which he associated with locations where cannabis is grown to prevent theft, and two individuals in similar attire at the premises – whom he concluded were performing maintenance or expanding the cultivation operation.

Pretty hard to square the claim of a pervasive marijuana odor with the distinct lack of marijuana on the premises. And everything Officer Franco claims is illustrative of illegal operations is also illustrative of plenty of fully legal operations — like the operation and housing of incredibly expensive medical equipment by trained professionals.

That’s not all the stupid, though. There’s more from Officer Franco, who couldn’t even be bothered to compare the NoHo Diagnostic Center to its nearest electricity-using neighbors to see if he was actually witnessing something anomalous (and, I guess, drug-related) or just the sort of normal usage split one would expect in a situation like this.

OFFICER FRANCO compared the power usage of the TARGET PREMISES to nearby businesses and found it significantly higher.

OFFICER FRANCO, therefore, concluded that the TARGET PREMISES was cultivating cannabis, disregarding the fact that it is a diagnostic facility utilizing an MRI machine, Xray machine, and other heavy medical equipment—unlike the surrounding businesses selling flowers, chocolates, and childrens’ merchandise, none of which would require significant power usage.

Officer Franco also claimed to have performed an “internet search” linking the lab to “Fouad Ashour,” despite publicly-available business records showing the business had been incorporated in 2021 by its Chief Executive Officer, Ustiana Shaginian.

This isn’t “training and expertise.” It certainly isn’t “expertise.” And if this is how Officer Franco makes inferences, there’s something seriously wrong with the LAPD’s training, as the lawsuit points out. (Emphasis in the original.)

Despite the TARGET PREMISES’ legitimate business certification, OFFICER FRANCO, as a natural next step, contacted LAPD’s Gang and Narcotics Division Cannabis Support Unit. OFFICER FRANCO learned that the TARGET PREMISES, a medical diagnostic center, does not have a license to cultivate cannabis, a finding he promptly labeled a “violation of the California Health and Safety Code.”

Based on his 15 years as an LAPD officer and twelve hours of narcotics training, and based upon the presence of security cameras (typical of any reasonable commercial business), tinted windows (a reasonable practice for any medical facility concerned with patient privacy), high power usage (as any diagnostic facility), the alleged odor of cannabis plants (in a busy shopping plaza with no prior reports), the absence of a cultivation permit (which no diagnostic healthcare facility would possess), and the presence of two men wearing identical company branded shirts (unexpected of individuals involved in illegal cultivation), OFFICER FRANCO found probable cause for cannabis cultivation at the TARGET PREMISES.

Burn him. Burn him to the ground. This wasn’t an investigation. This was an officer working backwards from conclusions he’d apparently generated without any reasonable suspicion that would warrant the initiation of an investigation until he arrived at the point he could get a warrant and start violating rights.

Given these allegations, I would sincerely hope the city of LA already has a check half-written. All it needs now is the settlement amount. Allowing this to move forward just means more cops are going be asked more questions. And the one cop, whose name leads off the lawsuit, has answered plenty of those with actions, and has raised a similar number of disturbing questions whose answers are just going to generate more liability for the PD.

And while it’s always difficult to hold a city or entire police department accountable for officers’ actions, every time these officers attest to their “training” and “experience” in warrant requests, depositions, or direct testimony, they’re implying the errors (or willful violations) they committed were at least partially based on the training provided by their employers and their service to the higher power (the city) that signs their paychecks. This is embarrassing on several levels. Hopefully, NoHo Diagnostic will get some justice here. And even more hopefully, the city will decide to make some heads roll in hopes of deterring future actions like these that not only violate residents’ rights, but insult their intelligence and rob them of their tax dollars.

Filed Under: 4th amendment, drug war, lapd, lawsuit, police misconduct
Companies: noho diagnostic center

Lawsuit: Cops Stood By While Elderly Woman Was Stabbed 68 Times; Cops: Hey, We Yelled At The House

from the suddenly-incapable-of-a-forcible-entry dept

This isn’t a good look for the Las Vegas Metro PD, even if it’s completely supported by court precedent. No matter how often law enforcement agencies sling around the phrase “protect and serve,” they have almost no legal obligation to do either of those things.

Sometimes a “failure to intervene” allegation might undermine a cop’s attempt to secure qualified immunity for violations committed by other cops, but when it comes to crimes being committed against regular people, cops simply aren’t legally obliged to stop crimes in progress even when they’re already at the scene.

But this lawsuit is hoping a court might find otherwise. Whether or not it does, it will definitely expose some cops for what they are: lazy opportunists who aren’t really in the life-saving business. Even if the officers are found to be on the right side of judicial precedent, they’re not going to come out of this looking like people who should be employed as police officers.

Las Vegas police officers stood outside listening as a 74-year-old woman was stabbed 68 times and killed by one of her sons in her home, a lawsuit filed Saturday alleged.

How the Metropolitan Police Department responded to the event prompted the woman’s other sons to file a lawsuit alleging, among other things, negligence and wrongful death.

[…]

Bonilla was arrested and booked on one charge of murder of an elderly or protected person. After pleading guilty in 2023, he was sentenced to life with the possibility of parole.

Pablo Bonilla — someone well known to Las Vegas law enforcement — murdered his mother in a most horrific manner. Then he walked out the door and surrendered to the law enforcement officers who just basically hung out outside of the house and waited for the murder-in-progress to resolve itself.

They can’t even say they tried everything they could to prevent this murder from happening. The officers’ report makes it clear they did nothing more than shout in the direction of the house from the safety of their cop car. And in all my years of reporting on police misconduct, I have never seen this particular description of officers’ (in)action:

Bonilla’s arrest report said that officers “challenged the apartment” using a vehicle bullhorn because the apartment’s patio and front door were guarded by metal gates. About 30 minutes after they arrived, they heard Zuniga screaming for help, according to the lawsuit. Afterward, Bonilla appeared at the doorway of the apartment, covered in blood, police said. He was taken into custody.

What even the fuck is that. The apartment wasn’t murdering Paula Prada Zuniga. Her son was. And since when have mental gates on doors and patios ever stopped cops from performing forced entries? Because if that’s all it takes to stop cops from entering residences, every criminal in America can ensure undisturbed criminal activity in perpetuity with a very small investment in security non-tech.

Trust me, these cops would have blown past the supposedly impassable metal gates in a heartbeat if they thought there was cash to seize or drugs to bust or a warrantless search to be had. But when it came to hearing an elderly woman screaming for help as she was brutally stabbed, the officers were suddenly faced with insurmountable obstacles that reduced them to yelling at a house from a safe distance away.

This is the worst kind of policing: officers who don’t feel it’s worth their effort, much less their time, to prevent or respond to a crime in (audible) progress. When confronted with their own laziness and (presumably) cowardice, the cops claimed they had zero chance of entering the house because the same metal gates they’d bypassed for other reasons were now the on-the-ground equivalence of… I don’t know… dealing with a foreign country with no extradition agreement in place.

This is already an absurd abdication of professionalism. But, thanks to the officers’ own report, it’s now in a realm of police failure that goes beyond what any talented satirist could actually create without destroying readers’ suspension of disbelief. “Challenged the apartment,” my ass. These officers need to be fired before they cause any more damage, either by hanging out near in-progress murders or by dragging down the entirety of the LVMPD to their level.

Filed Under: defund the police, las vegas pd, lawsuit, negligence, paula zuniga

Apple Dumps Suit Against NSO Group After Israeli Government Walks Off With A Bunch Of The Company’s Files

from the friends-in-the-highest-places dept

Well, it worked. We’ll have to see how this plays out in the lawsuit WhatsApp brought against NSO Group, but it has managed to shed one litigant thanks to intervention from the home team: the Israeli government.

In July, documents obtained by Distributed Denial of Secrets (DDoS) revealed the desperate measures NSO Group deployed to avoid having to turn over internal information during discovery in multiple lawsuits, including one filed by Apple. Knowing that discovery was inevitable, NSO met with Israeli government officials and asked them to secure a blocking order from the nation’s courts to prevent having to comply with discovery requests.

The government secured these orders and went to work shortly after WhatsApp served NSO with its discovery requests. According to the paperwork, the government needed to seize a bunch of the company’s internal documents for “national security” reasons, speculating disingenuously and wildly that turning over any information about NSO’s Pegasus phone-hacking malware would make the nation itself less secure.

Shortly thereafter, the Israeli government engaged in a performative raid of NSO’s offices to seize anything NSO felt might be disadvantageous in these lawsuits. WhatsApp is still in the litigation game, hoping to obtain anything the Israeli government hasn’t already seized that might relate to its claims of unauthorized access by NSO customers deploying Pegasus malware via the company’s US servers.

Apple, however, has decided it’s not going to spend any more money or time trying to win a rigged game, as Joseph Menn reports for the Washington Post.

Apple asked a court Friday to dismiss its three-year-old hacking lawsuit against spyware pioneer NSO Group, arguing that it might never be able to get the most critical files about NSO’s Pegasus surveillance tool and that its own disclosures could aid NSO and its increasing number of rivals.

[…]

“While Apple takes no position on the truth or falsity of the Guardian Story described above, its existence presents cause for concern about the potential for Apple to obtain the discovery it needs,” the iPhone maker wrote in its filing Friday. Israeli officials have not disputed the authenticity of the documents but have denied interfering in the U.S. litigation.

As for that last sentence, that’s a dodge. Of course the Israeli government interfered with this litigation. That it didn’t actually insert itself directly into either of these bases doesn’t change the fact that the raid it performed because NSO Group asked it to means the company no longer has the documents sought by US litigants in its possession.

The more surprising assertion is Apple’s: that part of its reason for dropping the lawsuit is to avoid having to turn over any of its own stuff in response to discovery requests. But the rationale is very much an Apple thing: the company feels giving more information to NSO — especially in open court — will just be used to facilitate the creation of new hacking tools for NSO (or its competitors) to use against Apple’s customers.

That’s more of a concern for Apple, which is seeking to protect an entire operating system. WhatsApp’s concerns are more limited. While it too would probably prefer any information it hands over in court not be used against it by malware merchants, it only has to worry about a single service, rather than the underlying infrastructure (so to speak) shared by dozens of Apple products.

Discovery is underway in the WhatsApp case, so hopefully we’ll be seeing some interesting developments there soon. But given what’s happened here, NSO and its Israel-based competitors have some really interesting (and disturbing) options when it comes to thwarting lawsuits over the constant abuse of its Pegasus malware.

Filed Under: israel, lawsuit, malware, pegasus, spyware, surveillance
Companies: apple, nso group

Ex-Cop Wields Law That Only Protects Cops To Sue Data Broker For Selling His Personal Data

from the how-nice-for-him dept

We all hate data brokers. I mean, those of us who aren’t in law enforcement. Law enforcement tends to love data brokers because they allow investigators to collect a bunch of stuff (including location info) without having to whip up a subpoena or (the horror…) ask a judge to sign off on a warrant.

Nope, to get data from data brokers, all you need is cash. If you can buy, they will sell. And, since privacy laws in the US haven’t really gotten around to dealing with the modern reality of having your data passed around like a joint in a high school parking lot on graduation day, most people have no legal options for recourse.

Most people, that is. In some places, people who’ve already enjoyed plenty of extra rights when they were still employed as law enforcement officers get to enjoy extra rights even though they’re no longer working for the government.

Enter retired police officer [squints in partial disbelief at article] Michael Jackson, who is taking Whitepages to court for doing the thing that Whitepages does: sell access to any personal information it has managed to collect. Here’s Suzanne Smalley, reporting for The Record.

Whitepages is the latest data broker to be sued for allegedly flouting laws barring the publication of home addresses and other personal information belonging to judges, police officers, prosecutors and others in law enforcement.

A retired West Virginia police officer filed a class action lawsuit against the company late last month for publishing his home address, a violation of a 2021 West Virginia statute known as Daniel’s Law.

The West Virginia law is similar to legislation enacted in New Jersey in 2020 following the murder of a federal judge’s son by a disgruntled lawyer who had appeared before her and found her personal information online. That law, also called Daniel’s Law, was enacted following an emotional appeal for reform from U.S. District Court Judge Esther Salas, whose son was killed.

This lawsuit likely wouldn’t have had much of a chance if it had been filed anywhere else. Federal courts aren’t generally inclined to rule against information gathering, even if some of this is performed by odious companies with dubious ethics. Information gathering — especially the collection and curation of publicly-available data — is just as often used for good as it is used for pure profit.

The law that might give this ex-cop a shot at a settlement is alluded to in the opening paragraphs of the article. It says West Virginia’s law is “similar” to a law protecting judges in New Jersey. And there’s a federal equivalent, but that too only applies to judges, forbidding the buying and selling of their personal data.

West Virginia has decided it’s not enough for cops (even ex-cops!) to be juries and executioners. They should also be on the same level as judges.

Under the West Virginia statute, data brokers and others cannot disclose the home address or personal phone number of any active or retired law enforcement personnel “under circumstances in which a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property.”

And there it is. Former officer Michael Jackson has grounds to sue because the law says cops — even ex-cops — deserve more protection than regular people. Now, he might need to demonstrate that the mere delivery of his info to anyone giving money to Whitepages would result in harassment or harm, but if the state already believes cops deserve more rights than other people, it won’t take much to convince a court that selling cops’ data, at minimum, violates the law.

Then again, it may not. Former officer Michael Jackson’s lawsuit [PDF] is 50% recitation, 50% conclusory statements. That’s not the sort of thing that easily survives motions to dismiss. Half the lawsuit is given over to recounting the history of the law protecting judges, as well as the full wording of the relevant West Virginia law. The other half is just him claiming that merely because the law exists, he should get paid.

What’s ignored is the other part of the law — the part that says the law only covers publication of info that would cause a “reasonable person” to believe that providing that info to others would expose cops/ex-cops to “harassment or risk of harm to life or property.” Merely making that information available doesn’t make it an immediate violation of the law.

It’s obvious the law was crafted to deter people from sharing cops’ personal info with the intent to harass or harm them. It doesn’t really cover data brokers, who are agnostically (so to speak) providing data to whoever’s interested in it and is willing to pay for access. Whitepages doesn’t know this info belongs to a cop (again, so to speak). It just knows people are searching for it and offers it up for the right price. There’s no malice here, just the desire to turn a profit.

Without more, this former officer might find his case kicked out of court. Then again, US courts at every level tend to view cops as more worthy of judicial discretion than their civilian counterparts. But I’d like to believe this court will at least ask this ex-cop to provide literally any evidence at all that Whitepages doing what Whitepages does is somehow a violation of the part of the law that forbids publishing information with the intent to harass or harm. Nothing in his lawsuit suggests the mere presumptive existence of his data on Whitepages’ servers violates this cop-favoring carve-out.

Filed Under: data brokers, lawsuit, michael jackson, privacy, west virginia
Companies: whitepages

Settlement In Florida Book Ban Lawsuit Means A Bunch Of Books Are Headed Back To School Libraries

from the unburning-books dept

Florida’s legislative antipathy towards free speech and general overall bigotry has generated plenty of bad laws and plenty of fully justified lawsuits. Earlier this month, the state’s quasi-book bans became the defendant in a federal lawsuit filed by multiple big-name publishers. But that was just the latest lawsuit, and the first to actually sue the state itself.

Plenty of other litigation is underway, targeting individual counties that have removed books from schools due to book challenges (over-)enabled by the state’s anti-speech laws. But there’s finally a little bit of good news to report. A lawsuit filed on behalf of two authors and two parents against Nassau County and its school board has resulted in a win for the plaintiffs. As Politico reports, lots of books that should have been removed under the (extremely loose) standards of the law are being placed back on the shelves of school libraries.

A northeast Florida school district this week agreed to restore 36 books that were challenged and previously pulled from campus libraries in a settlement of a federal lawsuit fighting how local officials carried out the state’s policies for shielding students from obscene content.

The settlement reached by Nassau County school officials and a group of parents, students and the authors of the removed children’s book “And Tango Makes Three” marks a significant twist in the ongoing legal battles surrounding Florida’s K-12 book restrictions, which have been derided as “book bans” by opponents. Under the agreement, that book and others such as the “The Bluest Eye” by Toni Morrison and the “The Clan of the Cave Bear” by Jean Auel will once again be available to students after being removed last year.

None of these fit the legal standards for obscenity. If they did, they would have been removed under existing obscenity laws, rather than only recently removed because some bigoted jackasses, enabled by the new law, applied the pressure needed to remove content they don’t like.

Nope, this is just codified hatred that allows people to decide no one should have access to books they don’t personally care for. The dumbest part of this is probably the removal of “And Tango Makes Three,” which contains nothing even remotely resembling “obscene” material. This is from law firm Selendy Gay’s statement on the lawsuit settlement:

Significantly, the Board acknowledges in the settlement that Tango has pedagogical value, is appropriate for students of all ages, and contains no “obscene” material—facts that another Florida School Board—in Escambia County—is still contesting. The Board’s acknowledgement makes good sense: since its publication in 2005, Tango has been a highly awarded children’s book and has been lauded by educators and childhood development experts. Tango, which tells the true story of a same sex penguin couple who form a lasting pair bond and together adopt, hatch, and raise a happy and healthy chick, conveys important themes about family responsibility, adoption, LGBTQIA+ families, and natural science to which all students should have access.

Just the same old bigotry, but with a new law to abuse. No one contesting this book truly believed the material was “obscene.” They just don’t believe any student of any age should have access to a book that contains a positive depiction of a same-sex relationship.

And it’s just blatant racism driving some of the other book removals:

These 35 [challenged] books include significant works by Toni Morrison, Jonathan Safran Foer, Alice Sebold, Jodi Picoult and Erika Sanchez, which address racism in America, as well as the life experiences of immigrants, first-generation Americans, trans Americans and other underrepresented communities and individuals.

It’s also the same old bigots. The statement from the law firm points out that all 35 of the books removed were challenged by a of collective censorial asshats calling themselves “Citizens Defending Freedom.” Of course, there’s little about the group that indicates any actual desire to defend freedoms.

Citizens Defending Freedom (CDF) is the latest organization to establish a spoke-and-wheel structure to centrally manage local politicking on a range of hot button conservative issues. Its promise to “PROVIDE materials for home school families” is what first drew my attention, but CDF also claims that chapters in 100 counties will address corruption, school curricula, and “breaches of constitutional liberty.” It’s at 20 active chapters, so it’s got a way to go.

Nevertheless, the organization — just a couple of years old at this point — already takes credit for Nueces County, TX ending its sex education classes, Miami-Dade County introducing a Day of Prayer in public schools, and Lake Wales, FL for creating “Responsible Fatherhood Month.” Its chief opponents, not surprisingly, seem to be the NAACP, George Soros, and Walt Disney.

Yes, nothing says “defending freedom” like removing books from school libraries and forcing public schools to host days of prayer. Or, you know, implicitly threatening Nassau County school officials with arrest for agreeing to return these books to school libraries, as CDF does in its statement in response to the lawsuit settlement:

In response to this settlement, CDF has also made the Nassau County Sheriff aware, highlighting the district’s own admission of the presence of obscene materials in schools and shared the district’s own findings as evidence that they are distributing materials in violation of Florida’s child obscenity laws. “By their own words, the Nassau School District has determined these books violate state law. Yet, rather than take corrective action, they’ve chosen to put them back in the hands of our children. We intend to hold them accountable,” said Sarah Calamunci, CDF Florida State Director.

Keep crying, haters. People who actually care about freedom will continue to combat efforts like these, as well as the unconstitutional laws that enable them. Here’s wishing you loss after loss after loss in the coming months, as federal judges (for the most part) continue to recognize these efforts for what they are: government-enabled censorship of views those in power don’t agree with.

Filed Under: 1st amendment, book ban, censorship, florida, free speech, justin richardson, lawsuit, peter parnell, sara moerman, toby lentz
Companies: selendy gay

LAPD Officers Gather In Court To Bitch About Having Their Photos Inadvertently Released

from the flow-my-tears,-the-histrionic-policemen-said dept

You would think this is a done deal, but it isn’t. It just keeps getting stupider.

Last year, journalist Ben Camacho filed a public records request for photos of all active Los Angeles PD officers. After a couple of rounds of litigation, the city agreed to release the sought records. Camacho shared these with the Stop LAPD Spying Coalition, which added the photos to its existing searchable database of current LAPD officers.

All (litigation) hell broke loose shortly thereafter. The city sued Camacho, demanding the “return” of the digital files it had given him. LAPD officers sued the city for releasing the photos. The LAPD’s union was also involved in the litigation.

As for Camacho, he’d done nothing wrong. He lawfully acquired the files. And he lawfully shared the files with others. This was confirmed by the settlement paid to Camacho by the city of Los Angeles, which agreed Camacho had obtained these photos legally. And that settlement is part of its defense in the lawsuit filed against by LAPD officers — the admission that a mistake was made by releasing the photos, but it was neither malicious or legally negligent. Furthermore, the city has asserted its own immunity, saying its decision to release this information (whether intentionally or not) is beyond the reach of the officers’ litigation.

Not that it matters to the officers, who still seem to think that if they whine enough, someone will do something about it. Obviously, whatever the result, the publication of the photos has already happened and cannot be undone. So, the officers have decided the best way forward with their litigation is to make a bunch of unverifiable claims about how this publication has endangered them.

Are you guys fans of conclusory statements and vague assertions? Great news! The affidavits being filed by LAPD officers have plenty of both, as the Los Angeles Daily News reports.

Multiple Los Angeles police officers have given sworn declarations in opposition to a motion by the city of Los Angeles to dismiss lawsuits collectively filed by hundreds of officers with sensitive assignments who allege their safety was affected by the mistaken release of the plaintiffs’ photographs in 2023.

“Since the release of my service photo, I avoid public spaces and am very cautious when I am in a public space,” says one such officer identified only as John Doe 137. “I am in constant fear that someone will be able to identify me, follow me home and harm me or my family.”

Doe 138 says he always carries his firearm when he leaves home, even if just to go grocery shopping.

Another officer, John Doe 2, says he was working undercover when at the time of the dissemination of his photo and that his life has changed “forever” as a result.

“Since the release of my personal and private information, I have been forced to alter my social media accounts, change my mailing address and alter my family trust and real estate holdings in order to get back some of the privacy that I have lost,” Doe 2 says.

LOL. What even is this? The first officer seems to believe people are performing searches of the Stop LAPD Spying database and performing citywide searches in person to stalk officers whose photos were made available. Officer Doe 138 is probably just doing what he has always done: going to the grocery store strapped. And the third officer is asserting an extreme overreaction to the publication of a service photo — one that expresses a desire to reclaim “privacy” but says nothing about the presumptive danger of being identified by criminals as an undercover officer.

That’s only part of the stupidity. Another officer claims the release of his photo “affected his mental health” because at some time in the past, he once worked in county jails to elicit confessions from people already imprisoned for other crimes. At no point does this affidavit suggest this is something he is still doing, much less why this release would change anything at all about the danger level since presumably the people he questioned in jail ALREADY KNOW WHAT HE LOOKS LIKE.

It’s all very dramatic and all very useless. As the city has pointed out — something buttressed by its settlement with Ben Camacho — what happened here was unfortunate, but inadvertent. Since it wasn’t deliberate, there’s no cause for action. And even if it was deliberate, the city government’s litigation privilege makes it immune to this lawsuit.

There you have it, aggrieved coppers. Welcome to the reality you rarely have to encounter: the invocation of immunity by someone other than yourselves. Maybe you’ll learn something from the experience. Then again, if regular officers are filing affidavits claiming emotional distress from release of the photos, they’re way off the mark. The only thing the city agrees was “unfortunate but inadvertent” was the release of photos of undercover officers. Any regular officer who performs their duties in public, undisguised, and (most likely) while wearing an LAPD uniform, has zero chance of demonstrating the release of their photo changed the danger matrix of performing their day-to-day job.

Suck it up, self-proclaimed heroes. The affidavits sworn to here only contain fantasies about theoretical danger. If a cop can actually demonstrate a link between the release of these files and any current threats/harassment, they should definitely do so. Given that no one has, this is just a bunch of people whining because one of their extra rights was inadvertently (and momentarily) ignored.

Filed Under: foia, lapd, lawsuit, los angeles, public records

Florida The Latest State To Be Sued By Big Name Publishers Over Unconstitutional Book Bans

from the do-they-still-have-a-1st-amendment-in-florida? dept

Far too many states have decided to engage in censorship, urged on by an alarmingly large voting bloc that truly appears to be on the side of fascism, so long as that fascism appears to be on their side.

Since this is, for the moment, still the United States of America, home of several enshrined rights, most of these efforts have been scaled back, dismantled, or blocked completely following challenges in federal courts. Most, but not all. Some laws have survived, and those that have are likely going to be reviewed by a Supreme Court that has been deliberately stocked with the sort of people who think rights should be subservient to their favorite flavor of “conservatism.”

Fortunately, the burden of displacing these laws hasn’t been placed solely on residents of states run by bigoted lawmakers. Major publishers have stepped into the judicial breach. But this time, they’re using their litigation powers for good, rather than attempting to control access to literature by wielding their copyright law cudgels.

Multiple publishers have banded together once again to sue Florida over its censorial book-targeting laws. While not technically a book ban, the law accomplishes the same ends through slightly different means. But, at the end of the day, it’s still just censorship. And it’s still just as unconstitutional. Here’s Richard Luscombe, reporting for The Guardian from Miami, Florida.

“Florida HB 1069’s complex and overbroad provisions have created chaos and turmoil across the state, resulting in thousands of historic and modern classics, works we are proud to publish, being unlawfully labeled obscene and removed from shelves,” Dan Novack, vice-president and associate general counsel of Penguin Random House (PRH), said in a statement.

[…]

PRH is joined in the action by Hachette Book Group, HarperCollins Publishers, Macmillan Publishers, Simon & Schuster and Sourcebooks. The 94-page lawsuit, which also features as plaintiffs the Authors Guild and a number of individual writers, was filed in federal court in Orlando on Thursday.

The suit contends the book removal provisions violate previous supreme court decisions relating to reviewing works for their literary, artistic, political and scientific value as a whole while considering any potential obscenity; and seeks to restore the discretion “of trained educators to evaluate books holistically to avoid harm to students who will otherwise lose access to a wide range of viewpoints”.

The lawsuit targets “book removal provisions” that mainly target books kept in classes by teachers for access by their students, rather than school or other public libraries. Not that those entities aren’t affected. Books present in school libraries are also subject to challenges by state residents. But that’s the pretense that allows state government spokespeople to claim “book removal” mandates are not the same as “book bans.” After all, it’s not the government ordering removal. It’s simply schools and teachers responding to book challenges from other citizens.

“This is a stunt,” Florida Department of Education spokesperson Sydney Booker said in an email to The Hill. “There are no books banned in Florida. Sexually explicit material and instruction are not suitable for schools.”

In retrospect, I’m being far too fair to this government official. He doesn’t really respond to the lawsuit’s allegations. Instead, he crafts a new narrative that suggests the new law changes nothing about the long-held status quo. Sexually explicit material has never been suitable for schools. Therefore, the law being sued over is just… a redundancy?

Except that if it was the same as everything that’s come before it, librarians wouldn’t be pulling tons of books they’ve almost always felt comfortable giving students access to. And teachers wouldn’t be purging their classroom bookshelves of titles they’ve historically used for assigned reading or classroom instruction.

Since it went into effect last July, countless titles have been removed from elementary, middle and high school libraries, including American classics such as Brave New World by Aldous Huxley, For Whom the Bell Tolls by Ernest Hemingway and The Adventures of Tom Sawyer by Mark Twain.

Contemporary novels by bestselling authors such as Margaret Atwood, Judy Blume and Stephen King have also been removed, as well as The Diary of a Young Girl, Anne Frank’s gripping account of the Holocaust, according to the publishers.

The law prohibits books that “describe sexual content” from being made accessible to any student, whether they’re five or eighteen (the law regulates everything from kindergarten to 12th grade). It does not define the term “sexual content” with any specificity and the wording makes it clear that the context of the sexual content does not matter. Then it goes on to equate “sexual content descriptions” with pornography, which is already regulated and forbidden to be distributed to minors. And it goes without saying, no classroom or school library contains any actual pornography.

The first part of the law is so vague as to allow something as innocuous as the phrase “made love” to trigger the book removal process. The second part is redundant in the most stupid way — making something already illegal more illegal?

That’s the basis of the legal challenge [PDF] raised by the publishers, who note the poorly written, purely censorial law has already resulted in the removal of books long considered to be acceptable for most school-age readers. The plaintiffs want these two sections invalidated.

And they should be. They were clearly written by people blinded by their own bigotry — legislators who hope to purge the state’s schools of anything they don’t personally agree with. And they appear to be completely fine with the collateral damage caused by the badly written, unconstitutionally vague law — the disappearance of classic literature they’ve possibly even read and enjoyed themselves — so long as it definitely harms the stuff they hate.

Filed Under: 1st amendment, book ban, censorship, florida, free speech, lawsuit, ron desantis
Companies: harpercollins, hatchette, macmillan publishers, penguin random house, simon & schuster, sourcebooks