phones – Techdirt (original) (raw)

T-Mobile Leans On Recent Supreme Court Chevron Ruling To Insist The FCC Can’t Require All Phones Be Unlocked

from the this-is-why-we-can't-have-nice-things dept

Last July the FCC announced it was moving forward with plans that should make unlocking your mobile phone easier than ever. According to the FCC announcement, the agency, with broad and bipartisan public support, has been working on new rules requiring that wireless carriers unlock customers’ mobile phones within 60 days of activation.

Wireless carriers, trying to monopolize consumer hardware and lock everybody into hardware and software walled gardens, historically had a brutal and draconian view of device unlocking. If you recall, you not only used to not be able to switch wireless phones between carriers, but companies routinely forced you to use their own, substandard mapping or GPS apps.

At various times unlocking your phone was also deemed downright illegal under the Digital Millennium Copyright Act (DMCA). We’ve come a long way (with wireless carriers dragged kicking and screaming most of the way), and very often it’s now possible to unlock your device and change carriers if your phone is paid off and you’re no longer under contract.

But the FCC correctly observed that the current guidelines surrounding unlocking are a mishmash of voluntary industry standards and inconsistent requirements — usually affixed to merger conditions or the use of certain spectrum. The agency’s new proposed rules should create some uniformity, and will even require that devices be unlocked if a user is under a wireless contract.

Unsurprisingly, wireless giants like AT&T and T-Mobile aren’t enthused. Both have been filing whiney missives with the FCC, claiming that clear unlocking rules will somehow prevent them from providing incredible value to U.S. consumers. T-Mobile has been going so far as to claim the rules would stop them from being able to offer cellphones on payment plans (which makes no coherent sense).

T-Mobile, a pale echo of the disruptive “uncarrier” it used to be before the Sprint merger, even went so far as to hint that the FCC might not have the authority to do any of this in the wake of the Supreme Court’s dangerous and corrupt Chevron ruling:

“[T]he Commission fails to point to specific statutory authorization for an unlocking mandate, and would have profound economic consequences, thus raising a ‘major question’ that would require clear statutory authority from Congress,” T-Mobile vice president of government affairs Clint Odom told Democratic commissioner Geoffrey Starks last week.”

Should the FCC proceed, T-Mobile hints the FCC will face legal action. That’s quite a tone change from a company that used to be viewed as a disruptive, consumer-centric player in the wireless space.

As [noted previously](http://“[T]he Commission fails to point to specific statutory authorization for an unlocking mandate, and would have profound economic consequences, thus raising a ‘major question’ that would require clear statutory authority from Congress,” T-Mobile vice president of government affairs Clint Odom told Democratic commissioner Geoffrey Starks last week.), corporations, well aware that they have a corrupt Congress in their back pocket, recently pushed the Supreme Court to dismantle what’s left of regulatory independence, throwing most consumer protection and regulatory autotomy into [legal chaos](http://“[T]he Commission fails to point to specific statutory authorization for an unlocking mandate, and would have profound economic consequences, thus raising a ‘major question’ that would require clear statutory authority from Congress,” T-Mobile vice president of government affairs Clint Odom told Democratic commissioner Geoffrey Starks last week.). It’s framed by corporate power earlobe nibblers as some noble streamlining of rule-making authority, but it’s just rank corruption, designed to prevent regulators from being able to implement popular reforms.

In this case, you’ve got a really popular and fairly basic streamlining of rules preventing wireless companies from restricting consumer choice. And yet even here you have companies trying to claim that the FCC now, post Chevron, lacks the authority to do absolutely anything of note. Post Chevron, you’re going to see a lot of this, across every business sector that impacts every last aspect of your life. Popular reform efforts vetoed by a corporations and a corrupt court.

Some, like this, are going to be problematic annoyances impacting relatively minor reforms. Others, in instances like environmental or public safety reforms, will absolutely prove fatal. Yet it’s been hard to get journalists, the public, or even many policy folks to understand the full scope of what’s coming.

Filed Under: 5g, chevron, fcc, lobbying, phones, smartphones, supreme court, telecom, uncarrier, unlocked phones, unlocking, wireless
Companies: t-mobile

FCC Eyes Making Carriers Unlock All Phones Within 60 Days Of Purchase

from the freedom dept

Tue, Jul 2nd 2024 05:23am - Karl Bode

For decades there has been endless policy wrangling over whether “unlocking your phone” (removing restrictions allowing you to take the device with you to another carrier) should be allowed. Giant carriers have generally supported onerous phone locks because it hampers competition by making it harder to switch providers. Consumer rights groups and the public broadly support unlocked devices.

Now the FCC is proposing a new rule that would require wireless providers unlock customers’ mobile phones within 60 days of activation, giving them the freedom to switch providers so long as their phone supports the mobile network they’re switching to. FCC boss Jessica Rosenworcel had this to say of the proposed changes:

“Real competition benefits from transparency and consistency,” said Chairwoman Rosenworcel. “That is why we are proposing clear, nationwide mobile phone unlocking rules. When you buy a phone, you should have the freedom to decide when to change service to the carrier you want and not have the device you own stuck by practices that prevent you from making that choice.”

At various times unlocking your phone was deemed downright illegal under the Digital Millennium Copyright Act (DMCA). Things have eased some over the years; very often it’s now possible to unlock your device and change carriers if your phone is paid off and you’re no longer under contract. The FCC is contemplating a rule that would force unlocking even for those under contract.

While competition-phobic telecoms have ceded some ground on this space, they still enjoy creating as much friction as possible when it comes to changing providers, hoping to mute competition’s impact. After the Sprint T-Mobile merger U.S. price competition effectively halted; I imagine they’d be thrilled if they could revert to an era where switching providers was as monumental of a hassle as possible.

The FCC is only proposing a new rule and hasn’t provided details yet. That happens on July 18, at which point the public will have an opportunity to comment. Carriers will inevitably sue to prevent any possible reform on this front; and with the recent 6-3 Supreme Court Chevron ruling, corporate lawyers have more tools in their arsenal than ever to mire efforts just like this one in perpetual legal muck.

Filed Under: broadband, fcc, phones, smartphone, tablet, telecom, unlocked, wireless

Apple Praised For Repair Reforms Only Made Possible By New Oregon Law It Tried To Kill

from the I-am-actually-the-hero-here dept

Fri, Apr 19th 2024 05:26am - Karl Bode

Last month Oregon state lawmakers passed a new “right to repair” law making it easier and cheaper to repair your electronics. The law requires that manufacturers that do business in the state provide users with easy and affordable access to tools, manuals, and parts. It also cracks down on practices like “parts pairing,” which often uses software locks to block use of third-party parts and assemblages.

It’s arguably the toughest state right to repair law yet. And it almost didn’t pass thanks to Apple, which (as it has in other states) lobbied to kill the bill, falsely claiming it was a threat to user safety and security.

Last week, The Washington Post proudly declared that Apple was slightly reversing some long-standing restrictions on repair and accessibility:

“Apple told The Washington Post it is easing a key restriction on iPhone repairs. Starting this fall, owners of an iPhone 15 or newer will be able to get their broken devices fixed with used parts — including screens, batteries and cameras — without any change in functionality.”

Notice this isn’t a full reversal of Apple’s restrictions, which (despite what it often claims) are designed to monopolize repair and accelerate the sales of new phones. And it takes the Washington Post until the seventeenth paragraph to inform readers that the changes are thanks in large part to Oregon’s new law.

And again, the Post never really informs the reader clearly that Apple lobbied to have the law killed. Or really properly frames the impact Apple’s restrictions have long had on the environment, consumer rights and costs, or the small independent repair shops Apple has a history of bullying. But it does let Apple falsely claim, without correction, that the law is a threat to consumer privacy:

“Neither Ternus nor Apple spokespeople commented on what changes may have to be made to abide by Oregon law, but the company said in an earlier statement that the bill’s language “introduces the possibility that Apple would be required to allow unknown, non-secure third-party Face ID or Touch ID modules to unlock” a user’s personal information.”

That’s just scare mongering. You can read in detail over at iFixit how “parts pairing” actually works and how it’s harmful. Apple (like John Deere and every other company angry that their repair monopolies are being dismantled) loves to pretend their interest here is solely in user safety. Their interest is in new phone sales and maintaining a profitable monopoly over repair.

Apple’s whole pivot is framed by the Post, which seems simply thrilled to even have access to an Apple engineering VP, as something Apple just came up with one day because it’s just that forward-thinking and courteous. It’s another example of how Apple’s widely proclaimed “180 on right to repair” is more of a drunken 45 degree begrudging and overdue waddle, propped up by a lazy press.

Filed Under: consumer rights, independent repair shops, iphone, oregon, parts pairing, phones, right to repair, wireless
Companies: apple

Google Supports Oregon ‘Right To Repair’ Reform

from the watch-what-I-do,-not-what-I-say dept

Wed, Jan 17th 2024 03:37pm - Karl Bode

Big tech companies have long attempted to monopolize repair options to boost their profits, whether we’re talking about tractors, phones, or game consoles.

But in recent years companies like Apple and Microsoft appear to have realized that with state and federal lawmakers and regulators cracking down on this behavior, and right to repair seeing widespread, bipartisan consumer support, it might be smart to stop swimming upstream when it comes to “right to repair.”

Both Microsoft and Apple have slowly and begrudgingly started making their hardware easier to fix, and have even at times come out in support of certain state and federal right to repair legislation. Now Google has also somewhat pivoted on the issue, coming out in support of Oregon’s looming right to repair legislation, which aims to make tools, parts, and manuals easier to access.

Said Google in a new white paper:

“Repair must be easy enough for anyone to do, whether they are technicians or do-it-yourselfers. This requires that as manufacturers we design products in a manner that enables simple, safe, and correct repairs wherever and by whomever they are done. This is what we call design for serviceability.”

Keep in mind this “support” isn’t always consistent, and many of these companies only support reform as-so-far as their lawyers are writing the laws, ensuring they’re filled with ample loopholes.

Apple, for example, got widespread press praise for “doing a 180 on right to repair” after it supported California’s right to repair law. But upon closer inspection many of the company’s initiatives were somewhat hollow. It still actively supports anti-consumer behaviors like software locks and “parts pairing” (forcing customers to buy interconnected assemblages of parts), and it opposed Oregon’s reform law.

Three states have now passed right to repair laws (New York, Minnesota, California), with Oregon on deck next month. But while many of these laws have been significant improvements (Minnesota), others (New York) were watered down by tech lobbyists after passage, almost to the point of uselessness.

New York’s law, for example, was boiled down to exclude coverage of the automotive, medical equipment, or agricultural gear sectors, where most of the worst, ham-fisted efforts to monopolize repair are ongoing (consolidation of repair options, monopolization of parts, obnoxious and punitive DRM, or actively making tools and manuals hard to come by to discourage independent repair).

So while it’s great to see these companies at least begin to make an effort when it comes to right to repair reforms, it’s still a mistake to take them exclusively at their word.

Filed Under: auto, consumer rights, consumers, drm, hardware, independent repair, oregon, phones, right to repair
Companies: google

Google Strikes $9.4 Million Settlement With FTC For Paying DJs And Influencers To Praise Phones They Never Touched

from the artificial-enthusiasm dept

Fri, Dec 2nd 2022 01:54pm - Karl Bode

The FTC and four state attorneys general this week struck a $9.4 million settlement with Google over allegations that Google covertly paid celebrities money to promote a phone none of them had ever used.

The FTC’s announcement states that the agency had previously filed suit against Google and iHeartMedia for airing nearly 29,000 deceptive endorsements by radio personalities and influencers, promoting their use of and experience with Google’s Pixel 4 phone in 2019 and 2020. The FTC and state AGs said the DJs and influencers had never actually so much as touched the phones, violating truth in advertising rules:

“It is common sense that people put more stock in first-hand experiences. Consumers expect radio advertisements to be truthful and transparent about products, not misleading with fake endorsements,” said Massachusetts Attorney General Maura Healey. “Today’s settlement holds Google and iHeart accountable for this deceptive ad campaign and ensures compliance with state and federal law moving forward.”

Of course, this kind of obscured financial relationship is happening constantly, especially in the influencer space. But like most U.S. regulators, the FTC lacks the staff, finances, or overall resources to police this stuff with any meaningful consistency. So instead, they occasionally fire a warning shot over the bow of the biggest and worst offenders, in the hopes that it scares others into behaving.

The Pixel 4 is a three-generation old phone, so, as usual, any regulatory action on this kind of stuff happens pretty late, if it happens at all. It sounds like Google would have been fine if it had just had the influencers more generally imply that they loved the phone, and it was the phony first-person endorsements that got Google and iHeartMedia in trouble.

More generally, poorly or non-disclosed influencer marketing arrangements are everywhere, and the FTC’s simply too inundated with other responsibilities to take aim at the problem with any real consistency. Still, the agency issued warnings to 700 companies in 2021 that it was at least paying attention to the problem, something that can’t be said of previous incarnations of the agency.

Filed Under: disclosure, ftc, influencers, marketing, phones, regulatory enforcement
Companies: google

South Dakota Bans Government Employees From Using TikTok. The Countless Other Apps And Services That Hoover Up And Sell Sensitive Data Are Fine, Though

from the privacy-theater dept

Fri, Dec 2nd 2022 06:37am - Karl Bode

South Dakota Governor Kristi Noem put on a bit of a performance this week by announcing that the state would be banning government employees from installing TikTok on their phones. The effort, according to the Governor, is supposed to counter the national security risk of TikTok sharing consumer data with the Chinese government:

“South Dakota will have no part in the intelligence gathering operations of nations who hate us,” said Governor Kristi Noem. “The Chinese Communist Party uses information that it gathers on TikTok to manipulate the American people, and they gather data off the devices that access the platform.”

Of course, this being the post-truth era, the fact that there’s no actual evidence that China has even been able to exploit TikTok to manipulate Americans at any meaningful scale is just… not mentioned.

Fears that Chinese-based TikTok owner ByteDance could share U.S. consumer data with the Chinese government are at least based on reality. But as we’ve noted a few times now, the hyperbolic bloviation by many TikTok hysterics on the right (FCC Commissioner Brendan Carr comes quickly to mind) isn’t occurring in good faith, and their solution (ban TikTok) doesn’t address the actual underlying issue.

As in, the policymakers freaking out about the Chinese potentially getting access to TikTok user data are the exact same people who’ve fought tooth and nail against the U.S. having even a baseline privacy law for the Internet era. These are the exact same folks that created a data broker privacy hellscape completely free of accountability, and advocated for the dismantling of most, if not all, regulatory oversight of the sector. The result: just an endless parade of scandals, hacks, and breaches.

Now those exact same folks are breathlessly concerned when just one of countless bad actors (China) abuse a zero-accountability privacy hellscape they themselves helped to create.

You could ban TikTok tomorrow nationwide and the Chinese government could simply pivot on a dime and pay any of several dozen dodgy data brokers for most of the same data without issue. South Dakota government employees still have dozens of apps and services on their phones collecting an ocean of browsing, clickstream, or location data that then sell it to any nitwit with a nickel. That’s before you get to all the feebly-secured Chinese-based “smart home” hardware that oddly never warrants anywhere near the same attention.

We created a zero accountability privacy and security hellscape because for decades policymakers prioritized money over security, privacy, or market health. Now the exact same folks that opposed absolutely any competent oversight and guard rails (again, like Brendan Carr) want to singularly fixate on TikTok as the root of all evil — despite they themselves helping to create the problem.

Not only is such hyperventilation hollow and performative, it’s a giant distraction from our failures on consumer protection, adtech accountability, security standards, regulatory oversight, and privacy. It’s your right to believe that TikTok is the root of all evil, but it might be nice if folks hyperventilating took just a few moments to zoom out and realize TikTok is just a tiny part of a much, much bigger problem.

Filed Under: china, chinese, chinese surveillance, kristi noem, location data, phones, privacy, security, social media, south dakota, wireless
Companies: tiktok

FBI Successfully Forced A Criminal Suspect To Unlock His Wickr Account With His Face

from the physical-features-and-the-5th-Amendment-don't-mix dept

Based on (admittedly scattershot) case law, the best protection for your phone (and constitutional rights) seems to depend on whatever device owners feel is the most persistent (or dangerous) threat.

If you, a regular phone owner, feel the worst thing that could happen to you is the theft of your phone, then using biometric features to lock/unlock your device is probably the most secure option. It means thieves have to have access to both you and your phone if they hope to access far more sensitive data. And it makes even more sense if you’re one of the, oh, I don’t know… ~250 million Americans who occasionally reuse passwords. This prevents phone thieves from using a seemingly endless number of data breaches to find a way into your phone.

But if you feel law enforcement agencies are the more worrisome threat, it makes more sense to use a passcode. Why? Because courts have been far more willing to call the compelled production of passcodes the equivalent of testifying against yourself, resulting the rejection of warrant requests and the suppression of evidence.

And it’s not just criminals who may feel the cops are the worst. Activists, journalists, lawyers, security researchers… these are all people who may not want interloping cops to easily access the contents of their devices simply by mashing their faces, retinas, or fingerprints into their lockscreens.

So, since courts have decided (with rare exceptions) that utilizing biometric features is “non-testimonial,” that’s the option law enforcement officers will try to use first. As some courts see it, you get fingerprinted when you’re arrested, so applying a finger to a phone doesn’t seem to be enough of a stretch to bring the Constitution into it.

But to this point, the (compelled) deployment of biometric features has been used to unlock devices. In this case, first reported by Thomas Brewster for Forbes, the FBI went deeper: it secured a warrant allowing it to use a suspect’s face to unlock his Wickr account.

In November last year, an undercover agent with the FBI was inside a group on Amazon-owned messaging app Wickr, with a name referencing young girls. The group was devoted to sharing child sexual abuse material (CSAM) within the protection of the encrypted app, which is also used by the U.S. government, journalists and activists for private communications. Encryption makes it almost impossible for law enforcement to intercept messages sent over Wickr, but this agent had found a way to infiltrate the chat, where they could start piecing together who was sharing the material.

As part of the investigation into the members of this Wickr group, the FBI used a previously unreported search warrant method to force one member to unlock the encrypted messaging app using his face. The FBI has previously forced users to unlock an iPhone with Face ID, but this search warrant, obtained by Forbes, represents the first known public record of a U.S. law enforcement agency getting a judge’s permission to unlock an encrypted messaging app with someone’s biometrics.

As Brewster states, this is the first time biometric features have been used (via judicial compulsion) to unlock an encrypted service, rather than a device. No doubt this will be challenged by the suspect’s lawyer. And, speaking of lawyers, the FBI really wanted this to go another way, but was apparently inconvenienced by someone willing to protect their arrestee’s rights.

Just in case it’s not perfectly clear, law enforcement agencies will do everything they can to bypass a suspect’s rights and often only seem to be deterred by the arrival of someone who definitely knows the law better than they do. I mean, it’s right there in the affidavit [PDF]:

By the time it was made known to the FBI that facial recognition was needed to access the locked application Wickr, TERRY had asked for an attorney.

Therefore, the United States seeks this additional search warrant seeking TERRY’ s biometric facial recognition is requested to complete the search of TERRY’s Apple iPhone, 11.

It looks like the FBI only decided to seek a warrant because the suspect had requested legal counsel. It’s unlikely seeking a warrant was in the cards before the suspect asked for an attorney. The FBI had plenty of options up to that point: using a 302 report to create an FBI-centric narrative, lying to the suspect about evidence, co-defendants (or whatever), endless begging for consent, or simply pretending there was no unambiguous assertions of rights. It was only the presence of the lawyer that forced the FBI to acknowledge the Constitution existed, even if its response was to roll the dice on Fifth Amendment jurisprudence.

This dice roll worked. But it’s sure to be challenged. There’s not enough settled law to say the FBI was in the right, even with a warrant. What’s on the line is the Fifth Amendment itself. And if passcodes can’t be compelled, then biometric features should be similarly protected, since they both accomplish the same thing: the production of evidence the government hopes to use against the people whose compliance it has managed to compel.

Filed Under: 4th amendment, 5th amendment, biometrics, doj, facial recognition, phones

Seventh Circuit Says Riley Doesn't Apply To Searches Of Parolees' Phones

from the nestled-in-one-of-many-warrant-exceptions dept

In 2014, the Supreme Court extended Fourth Amendment coverage to the contents of cell phones. Prior to that ruling, cops had successfully argued that searching the contents of someone’s cell phone was no different than searching the contents of their pockets when arresting them. Claims — bad ones — were made about “officer safety” and, for the most part, courts tended to agree. If the pants pocket argument didn’t work, cell phones — with their wealth of personal information and private communications — were analogized as the digital equivalent of car trunks or address books.

This protection only extends so far, as one parolee has discovered. The key is in the wording of the Supreme Court’s Riley decision, which apparently doesn’t cover someone being arrested for parole violations. But the Seventh Circuit Court of Appeals decision [PDF] seems to undercut some of the findings of the Riley decision, which recognized the personal nature of these computers capable of being carried in someone’s pocket. In doing so, it appears to say this enhanced expectation of privacy simply doesn’t apply to anyone on parole or probation.

The opening paragraph appears to show something that oversteps the bounds of the search incident to arrest, at least in relation to the parole violation.

Henry Wood was arrested for violating his parole. Midway through the arrest, parole agents found methamphetamine hidden underneath the back cover of his cellphone. An investigator later extracted the data from his cellphone, revealing child pornography.

While the discovery of drugs may have been inevitable, given its location, it’s unclear why this investigator decided a forensic search of the phone’s digital contents was necessary. While Wood had served time on meth charges, the discovery of meth doesn’t alone appear to justify a full search of his phone. The violation he was picked up for was failing to report to his parole officer. His phone was seized as “evidence” during his arrest and the phone search was performed — without a warrant — a week later.

Parolees do have a lowered expectation of privacy in just about everything, but it doesn’t seem this agreement signed by Wood covers the contents of his phone.

I understand that I am legally in the custody of the Department of Correction and that my person and residence or property under my control may be subject to reasonable search by my supervising officer or authorized official of the Department of Correction if the officer or official has reasonable cause to believe that the parolee is violating or is in imminent danger of violating a condition to remaining on parole.

The crime was failing to report. The search of the outside of the phone led to the discovery of meth. The phone search was in service of… ??? It seems the search of the device occurred mainly because investigators believed Wood’s parole agreement allowed them to perform one without seeking a warrant.

The Appeals Court says there’s nothing wrong with this. Riley only covers certain situations.

Wood asks us to apply Riley v. California to parolees. The primary problem with this request is that Riley dealt with searches incident to a lawful arrest. The Supreme Court carefully tailored its analysis to that context and expressly recognized that “other case?specific exceptions may still justify a warrantless search of a particular phone.”

Wood pointed out he was arrested and the phone search could plausibly be called “incident to arrest.” The Seventh Circuit doesn’t care for this argument. Instead, it says it could be plausibly argued Wood was never out of law enforcement’s custody at any point, so the arrest wasn’t a new event but rather just an unfortunate continuation of his incarceration.

Wood maintains his arrest rendered Samson inapplicable and instead triggered Riley. On its face, this seems plausible—Wood was arrested, making him an arrestee, and Riley is about arrestees. But a parolee is on the “‘continuum’ of state?imposed punishments,” one step removed from incarceration. See Samson, 547 U.S. at 850. A custodial arrest would not increase a parolee’s privacy expectations by placing him outside Samson’s reach. Upon arrest, Wood’s status was not transformed from parolee to arrestee, but from parolee to parolee?arrestee, so Samson continued to apply.

In the court’s eyes, the needs of the state (keeping an eye on parolees, reducing recidivism) justify the lowered expectation of privacy for parolees, making them (and their property) subject to warrantless searches. The court says the Supreme Court expressly referred to this carveout when establishing its warrant requirement for cell phone searches.

Reducing recidivism is an independent goal of the parole system, exclusive from those discussed in Riley, and it would be frustrated by imposing a warrant requirement because it would incentivize concealment of criminal activity.

And that’s the end of the discussion for now. Riley doesn’t apply to devices owned by parolees. They may have been granted a small percentage of their rights in exchange for their continued good behavior, but apparently a warrant requirement for phone searches isn’t one of them. There’s nothing more personal for some people than their phones, but if you’re still working off your debt to society, the state can access your personal data and private conversations on a whim.

Filed Under: 4th amendment, 7th circuit, device searches, parolees, phones, privacy, riley, searches

No Qualified Immunity For Cops Who Made Stuff Up To Justify Seizing A Man's Phone For Twelve Days

from the but-what-if-terrorism-or-what-not dept

Here’s an interesting decision [PDF] by the Eighth Circuit Court of Appeals. On one hand, it says cops can possibly hassle people for filming them if they can find almost any reason at all to justify it. On the other hand, it says they definitely cannot take people’s property (cameras, phones) just because their nearly unjustified hassling gave them the opportunity to seize it.

Here’s the setup for the multiple rights violations, courtesy of the Appeals Court:

Daniel Robbins was recording illegally parked vehicles from a public sidewalk adjacent to the Des Moines Police Station when officers approached him and asked him what he was doing. Robbins was uncooperative, and the officers temporarily seized him and his camera and cell phone.

This probably would have gone unhassled if it hadn’t occurred near a police station. When citizens record officers on their home turf, they become inordinately defensive. Claims of terrorist attacks or the War On Cops™ often arise, even though — as officers should be painfully aware — anything they do on public property is observable by the public. The presence of recording equipment shouldn’t change a thing.

Nevertheless, the Des Moines police officers decided to make it a thing. Someone referred to here as a “detective” decided to (inadvertently) make a federal case about a citizen recording illegally-parked cars and cops going to and from the station. He had reasons.

While walking towards his car, Detective Youngblut observed Robbins recording vehicles as well as officers and civilian employees entering and leaving the police station. Because he was aware that vehicles had recently been stolen from and vandalized in that area, and because he was aware of a previous incident in which two officers had been murdered by a person with a history of filming the police, Detective Youngblut approached Robbins to make an inquiry.

LOL. OK. Well, let’s just ground all the planes and hassle every passenger because one time people flew planes into buildings, killing a few thousand people. While this “suspicion” may have justified a quick, consensual Q&A with Robbins, “Detective” [these scare quotes will be even more justified in a moment…] Youngblut decided to go further.

Other officers — apparently similarly offended by this reckless display of First Amendment rights — got to Robbins first. And they applied pressure.

Robbins refused to identify himself or respond to law enforcement inquiries, explaining “I’m taking pictures because it’s perfectly legal for me to do so.” Lieutenant Leo initiated physical contact when he lifted the back of Robbins’s shirt, grabbed his forearm and placed it above his head, and patted him down. Robbins repeatedly asked what about his conduct was illegal, and the officers responded that while he was not doing anything illegal, he was suspicious.

Ah. Not illegal. Just worth getting uptight about. The officers ordered Robbins to leave. He refused. So they got even stupider. They demanded Robbins ID himself. This was also wrong. Iowa has no law requiring citizens to ID themselves when interacting with police officers.

But it wouldn’t have mattered for Robbins. Why? Because the man with all the investigative skills — Detective Youngblut — told the officers to just make something up.

Detective Youngblut suggested that the officers “just make a suspicious activity case . . . [and] confiscate the camera until we have a reason for what we’re doing.”

Swell. If you don’t have a REAL reason for doing something, just find ANY reason.

Robbins asked if he was under arrest and being detained against his will. The answer to both questions was yes, provided by the detective who said to make something up. At that point, the illegality started to pile up.

The officers seized Robbins’s cell phone and camera. Detective Youngblut photographed Robbins for his file and then told him that he was free to go. The encounter lasted approximately twelve minutes.

The “encounter” may have lasted 12 minutes, but the seizure of Robbins’ phone and camera lasted 12 days. Robbins lost both on May 10. It wasn’t until his lawyer spoke to the police department that his items were returned.

Unfortunately, the court says all of this bullshit — including the detective suggesting someone just make something up — isn’t a violation of Robbins’ First Amendment rights. According to the Eighth Circuit, there was enough non-made-up suspicion to justify the rousting of Robbins.

Here, law enforcement officers observed Robbins recording both vehicles near the police station and officers and civilian employees entering and leaving the police station. The officers also possessed other significant information: they were aware of recent criminal activity involving cars parked in the area, and they were aware of a previous filming and stalking incident that escalated into the murder of two officers. Armed with this knowledge, Officer Youngblut approached Robbins and asked him what he was doing. Robbins was non-responsive, evasive, and confrontational. Officer Youngblut reasonably found Robbins’s behavior suspicious.

Robbins’ behavior that went beyond any constitutionally protected recording activity when combined with the officers’ knowledge about vehicles being stolen and vandalized in the area and the previous filming that led to officers being murdered could cause an objectively reasonable person in the officers’ position to suspect Robbins was up to more than simply recording the police. Under these circumstances, we can neither say that the officers’ conduct was objectively unreasonable under clearly established law, nor in violation of the First Amendment.

According to the court, Robbins’ filming of police was suspicious enough to justify this interaction. But it was not suspicious enough to justify the seizing of his recording equipment. And definitely not enough to justify holding onto it for 12 days.

The officers argued they never arrested Robbins, therefore the court should bypass analysis of the seizure of Robbins himself. The court says it’s pretty clear Robbins was arrested, even if momentarily. That much was made clear by Detective Youngblut, who told Robbins he was both arrested and detained.

Having failed to sway the court with this “non-arrest” argument, the officers went fishing for arrest reasons. One theory was “loitering.” Wrong, says the court.

Viewing the facts in a light most favorable to Robbins, a reasonable officer would not have believed he had probable cause to arrest Robbins for loitering because there is no evidence Robbins was blocking the sidewalk or disrupting the activity of the police station.

The other theory was Robbins providing officers with a false name when hassled: “John Doe.” Wrong again, says the court. This fake name wasn’t presented until after Robbins was already under arrest. It’s impossible to arrest someone for something they didn’t do until after they were arrested.

Despite there being a clear warrant requirement for search and seizure of cellphones following the Riley decision, the cops argued their seizure of Robbins’ recording equipment fell into a “narrow exception” that covers “brief detentions” of personal property that are “minimally invasive.” But the officers could not explain how a 12-day seizure was “brief,” even if it was “minimally invasive.” GTFO, says the Eighth.

The Supreme Court concluded that a ninety-minute detention of a suspect’s luggage based only on reasonable suspicion was unreasonable.Regardless of whether the Place exception applies to personal effects such as cell phones and cameras, the duration of the seizure – twelve days – was unreasonable.

The refusal to return the property to Robbins made it worse. And it shows Detective Youngblut really hasn’t earned that title.

In addition, the officers did not tell Robbins with any precision when or how he would get his property back. Rather, Detective Youngblut told Robbins he was investigating a homicide and would apply for a search warrant “at some point.” Detective Youngblut disposed of his suspicions and the need for a search warrant after discovering Robbins had a YouTube page dedicated to illegally-parked vehicles. Even so, Detective Youngblut continued to detain Robbins’s property until his counsel demanded its return.

Owning a fishing rod doesn’t automatically make you a great fisherman. And it sure as shit doesn’t make you a good detective. This was a punitive seizure and Youngblut couldn’t even be bothered to come up with a credible excuse for separating Robbins from his phone and camera for 12 days.

The court says being a jerk isn’t a crime. None of this was justified.

Under the facts of this case, the governmental interest, presumably to dispel whatever suspicion the officers had about Robbins, does not outweigh the intrusion to Robbins. The seizure was unreasonable in the absence of arguable probable cause. See Place, 462 U.S. at 707–10.

The defendants alternatively argue that Robbins’s uncooperativeness gave them probable cause to seize his property. This argument fails for the reasons stated above. The defendant officers violated Robbins’s clearly established right to be free of unreasonable seizures of his property, see id., and are not entitled to qualified immunity.

The case heads back to the district court. The officers — including this so-called “detective” — will have to take their chances on a jury finding illegal arrest and follow-up seizure were somehow justified. This seems unlikely. Chances are Robbins will receive a settlement before a jury has a chance to receive instructions from a federal judge. The officers may have had their reasons to approach a man filming a police station, but nothing they did after they approached him was Constitutional.

Filed Under: 4th amendment, daniel robbins, des moines, phones, qualified immunity, seized property

FBI Sent A Special Task Force To Portland To 'Exploit' Phones Taken From Protesters

from the collect-it-all dept

Ongoing protests in Portland have been met with a federal response. The opening salvo was disturbing: Gestapo-esque tactics carried out by unidentified federal officers driving unmarked vehicles. It didn’t get any better after that. The federal task force headed by the DHS seemed more willing to escalate the situation than settle things down, even if they were supposedly there to just do federal things like protect federal property and investigate federal crimes.

Documents leaked to Ken Klippenstein indicated the federal presence in Portland was more interested in finding evidence of some sort of Antifa hierarchy than sticking to the directive. FBI forensic analysts and their tech had been scrambled to Oregon to dig into phones taken from protesters and arrestees in hopes of finding some sort of organizational structure for them to attack.

This immediately raised questions about the Constitutionality of these device extractions. There’s a warrant requirement in place for phone searches incident to arrests and it’s not clear whether this requirement is being followed. For that matter, cloning phones belonging to detainees not necessarily suspected of criminal activity (with or without a warrant) seems like an unjustified abuse of the powers granted to law enforcement.

Emails obtained by the New York Times indicate that’s exactly what’s happening. A special deployment of FBI agents was sent to Portland specifically to aid in the extraction of information from protesters’ phones.

The FBI’s Washington, D.C., headquarters sent agents from its “Fly Team,” an elite counterterrorism unit, to Portland this summer during the second weekend in July. Their task was to interview arrested protesters and carry out the “initial exploitation of phones, or other communication devices,” according to FBI emails obtained through a public records request. It is unclear whether the Fly Team operation extended either past that weekend or beyond Portland, but the emails suggest that the FBI has been using counterterrorism tools and powers to map left-wing protest networks just months before an election whose result is likely to be delayed, if not challenged.

The Fly Teams have been in existence since shortly after the 9/11 attacks in 2001. But until now, they’ve mainly been foreign-focused — either operating in other countries or targeting foreign terrorists. This breaks some new ground in a disturbing way: counterterrorist activity targeting US citizens, some of which have engaged in nothing more than exercising their First Amendment rights.

The emails also suggest federal law enforcement is working around warrant requirements by exploiting one particular exception:

In one of the replies to [Special Agent] Chamberlin’s email, a colleague in the Portland bureau notes that the Fly Team’s “defintion [sic] of exigency will be different from ours.”

The emails [PDF] detail an incident that might be used to stretch the definition of “exigent” to cover any detained protester. A man arrested for shining laser lights into officers’ eyes was found to be carrying weapons and explosives. He consented to a search of his phone, which led to a search of his home and criminal charges. If agents can talk themselves into believing any arrestee or detainee poses a threat, phones are going to be searched without warrants in the hopes a court will grant the government the benefit of a doubt if the search is challenged.

There’s nothing in the emails that says the FBI is adhering to the Fourth Amendment. There’s nothing in there that says it isn’t, either. But you generally don’t memorialize Constitutional violations in communications that can be obtained with public records requests.

As the New York Times notes, it’s unclear under what authority the FBI is acting if it’s treating domestic protests like domestic terrorism. But the Constitution may not be much of an obstacle thanks to actions taken by President Ronald Reagan nearly four decades ago.

Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US.

We’ll know more as more information leaks out or searches are challenged in court. But even if the FBI is following the law, the law gives it a lot of leeway to engage in acts it probably shouldn’t, even if it legally can.

Filed Under: 1st amendment, 4th amendment, antifa, dhs, exigent circumstances, fbi, phones, portland, protests, surveillance