raids – Techdirt (original) (raw)
Journalists Ask DOJ To Stop Treating URL Alterations As A Federal Crime
from the insecurity-complex dept
The DOJ — following a period of questionable leadership under Donald Trump — said it has little interest in prosecuting journalists. It has also made it clear it will not abuse the CFAA to punish people who did nothing more than access sites in ways not intended by the sites’ creators.
Why? Because there are a multitude of First Amendment issues the DOJ would rather not tangle with. Journalists should almost always be considered off limits because they are instrumental in reporting on issues of public interest. BS CFAA prosecutions should be shitcanned for the same reason: they’re more likely to violate rights than capture criminals.
No sooner had the DOJ pledged to be better about the CFAA and its intersection with the First Amendment, it reversed course to raid a journalist’s home over footage of a Fox News interview with rapper Kanye West. It was hardly the sort of thing one would hope their government would be interested in: a coddling conversation with a talented musician who also harbored a rather upsetting anti-Semitic views.
The stuff cut from the Fox interview was obtained and aired by Tim Burke. The unaired footage was illuminating, to say the least. During that interview, Kanye West delivered a bizarre conspiracy theory that included Planned Parenthood, the KKK, and a supposed effort to control the Jewish population in the United States. It also showed that Kanye West — one of Trump’s “black friends” — had been vaccinated, even as Trump continued to espouse things like bleach and horse dewormers.
That embarrassment of a lame duck and his preferred news outlet apparently led to the raid of Tim Burke’s house — a raid that resulted in nearly all of his electronic devices being seized. Burke is no traditional journalist, having worked for a variety of web outlets, including the version of Deadspin that routinely engaged in sociopolitical conversation until told to “focus on sports” by its new private equity owners. (The best contributors to Deadspin have defected to, um, Defector and definitely deserve your support.)
What Burke apparently accessed (perhaps due to password sharing) was the unvetted feed of the interview — one that was supposed to remain out of sight until Fox could edit it to its liking. But it wasn’t hacking. It may have been “unauthorized” access, but only in the sense that the temporary host of this unedited footage would never knowingly share it with a muckraking journalist.
That being said, it wasn’t as though the feed wasn’t publicly accessible. The temp login Burke used gave him access to URLs any web user could access, if only they knew where to look. The login led to unsecured footage and recordings, including the ones Burke accessed and published.
The FBI raided Burke’s home, seizing his phones and computers. The DOJ seems intent on prosecuting Burke for “stealing” personal information, which definitely isn’t what happened here.
Lucas Ropek has published a lengthy examination of this case for Gizmodo — one that shows just how far off its own rails the DOJ has gone. That examination quotes Kim Zetter’s discussion of the case, one that shows the DOJ is trying to criminalize the everyday activities of millions of web users in hopes of knocking this particular journalist down a peg or two with a criminal conviction.
It’s not clear what action Burke took constitutes a crime in the minds of prosecutors — whether they think he broke the law by using the publicly accessible demo credentials, or by viewing and recording the unencrypted live feeds, or both.
If the government alleges that Burke violated the CFAA by using the credentials then, Rasch says, this would criminalize the sharing of any password. Family members who share Netflix passwords would be violating the CFAA, he says, and this is not what the statute intended or says.
The government may, however, say that Burke violated the portion of the CFAA that pertains to “unauthorized access” — that is, even though the feeds were unencrypted and were publicly accessible without needing to use a password…
What the government is criminalizing in this prosecution are things as innocuous as password sharing and URL alteration. That those on receiving end of either of these activities may not like these things to happen doesn’t make them criminal acts. And that’s according to the DOJ’s own statements of intent — ones that said they would not target journalists during certain investigations nor criminalize normal internet behavior just because the CFAA can be read as criminalizing those acts.
Once again, journalists perhaps more respected than Tim Burke are rallying support for his cause. Sure, Burke may be a convenient target, given his apparent willingness to embrace murky methods of obtaining information, but if the DOJ can find him guilty of password sharing and URL alteration, journalists, activists, and everyday internet users will, once again, find themselves on the wrong side of the DOJ’s definition of the law.
Nearly fifty rights groups and journalism advocates have signed off on a letter [PDF] to Attorney General Merrick Garland demanding the DOJ drop its extremely misguided prosecution of Tim Burke. The letter raises several concerns, as well as demanding answers from the AG about his implicit support of this incursion on long-held First Amendment rights.
It would be extremely problematic — and unconstitutional — to criminalize access to publicly available information simply because powerful people would prefer it be kept private. It is antithetical to the Fourth Estate’s constitutionally-protected function to place a burden on journalists to intuit what publicly-available, newsworthy information public figures want kept secret, and to abide by their wishes.
To the extent that the DOJ’s investigation is based on Burke’s use of “demo” credentials to access to the platform on which he found the publicly accessible URL, it is also not clear how such access could be “without authorization.” Burke, to the best of our knowledge based on the aforementioned reporting, received the demo credentials from a source, who found them publicly posted on the internet with no restrictions on anyone’s use. If there is more to the story, then the government should explain those facts to avoid chilling similar newsgathering.
The letter also asks the DOJ to explain whether its own policy — the one that said it would not target journalists with warrants or subpoenas for actions related to “obtaining records” or otherwise “acting withing the scope of newsgathering” — was followed in this case. It also asks the DOJ to explain who it considers to be a “journalist” worthy of the protections put in place by this policy. If Burke somehow fell outside of its definition, this collection of rights groups and journalists would like the DOJ to explain how it arrived at the conclusion that Burke was not a journalist.
We are especially concerned that the government might not have considered Burke to be subject to the News Media Policy. The government’s response brief takes the position that Burke should not be considered a “member of the news media” who is “acting within the scope of newsgathering” under the News Media Policy, despite the fact that the court has rightly acknowledged Burke’s status as a member of the media. In support of its position, the response brief notes Burke had not recently published under his own byline, does not work for an established media outlet, and sometimes used job titles other than “journalist.”
Of course, one does not need to work full-time as a journalist in order to engage in protected journalism. The PPA protects anyone “with a purpose to disseminate” information to the public, regardless of whether their own byline is attached. And it’s quite common for journalists — including freelancers, producers, researchers, editors, news services and consultants — to provide research and documents for stories they do not themselves write, or even provide written copy without receiving a byline. That does not deprive them of constitutional protection. Courts have rightly warned against limiting the First Amendment’s press clause to established media outlets — a warning that is especially important as technological advances give rise to new forms of journalism while traditional news outlets close their doors at alarming rates.
Thus, if the DOJ determined Burke is not a member of the news media, clarity is needed regarding why, so that other non-traditional journalists will know whether their newsgathering is protected.
It’s an important question to ask. The internet has democratized both information gathering and information dissemination. Journalism is no longer restricted to sweaty men with press credentials tucked in their fedora hatbands who spent most of their time gauging the distance between their interview subjects and the nearest phone booth.
While today’s journalism may still contain any number of sweaty men, the lack of press credentials/fedoras/phone booths does not mean only those who cling to the old ways — steady employment, frequent bylines, landline access, etc. — are worthy of being considered “journalists.” Literally anyone can be a journalist. All it takes is the willingness to find subject matter of public interest and report on it.
The DOJ’s actions in this case suggest it still believes — despite recent statements to the contrary — that it will only consider people who don’t piss off more powerful people to be journalists. In this case, Fox News was angered and decided it needed to get law enforcement involved. But that’s where discretion comes into play. The DOJ could have walked away from this. And it should have. What it’s doing here flies in the face of its own self-imposed restraints — an effort that shows just how truly worthless self-imposed restraints are. Unless you’re willing to follow them, they may as well not exist at all.
Filed Under: cfaa, doj, journalism, raids, tim burke
Yes, Even If You Think Project Veritas Are A Bunch Of Malicious Grifters, FBI Raid Is Concerning
from the press-freedom-matters dept
I am no fan of Project Veritas. They appear to be a group of malicious grifters, deliberately distorting things, presenting them out of context to fit (or make) a narrative. Even so (or perhaps, especially so), we should be extremely concerned about the FBI’s recent raid on Project Veritas’ founder James O’Keefe and two of his colleagues.
The FBI and DOJ say they’re investigating the apparent theft of a diary belonging to Joe Biden’s daughter, Ashley, which later ended up in Project Veritas’ hands. But, as we’ve discussed for many years, there are serious 1st Amendment questions involved when the government is raiding the homes of journalists and seizing their computers, phones, and other records. I’m assuming that some of you are going to say that this shouldn’t matter because O’Keefe and Veritas aren’t “real journalists,” and we’ll get to that argument later. But the simple fact is that after many years (and multiple administrations lead by both parties) in which the DOJ felt free to collect journalist records, earlier this year, we were told that the DOJ was finally going to no longer sweep up journalist records (though even then it noted that didn’t apply in cases where the journalists themselves were targets of a criminal investigation — as was the case here).
However, unless there’s really strong evidence indicating that Project Veritas was involved in the actual theft of the diary, if the organization was merely the recipient of that diary, then these raids raise many, many concerns about violations of press freedoms and the use of law enforcement to intimidate the press.
Many others seem to be similarly concerned, as this is raising a lot of alarm bells for those who work on press freedom issues:
?This is just beyond belief,? said University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press. ?I?m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.?
The ACLU is also quite concerned:
?Project Veritas has engaged in disgraceful deceptions, and reasonable observers might not consider their activities to be journalism at all. Nevertheless, the precedent set in this case could have serious consequences for press freedom. Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures. We urge the court to appoint a special master to ensure that law enforcement officers review only those materials that were lawfully seized and that are directly relevant to a legitimate criminal investigation.?
The Committee to Protect Journalists is equally worried:
?While we do not endorse some of the tactics Project Veritas employs, the FBI?s recent raids on the organization?s founder and his associates represent a concerning overreach by law enforcement,? said CPJ U.S. and Canada Program Coordinator Katherine Jacobsen. ?The government must provide a clear link between members of Project Veritas and alleged criminal activity before searching their homes for information about source material. Conducting raids without this kind of link sets a dangerous precedent that could allow law enforcement to search and confiscate reporters? unpublished source material in vague attempts to identify whistleblowers.?
But, yes, as mentioned earlier, I’m sure some people are saying that Project Veritas and James O’Keefe aren’t “real” journalists. And, I’m certainly sympathetic to the idea that O’Keefe makes a mockery of actual journalism with his out of context and extremely misleading releases. But, part of having a “freedom of the press” means not allowing the government to determine who is and who is not press. Because that power alone creates massive limits on a free press. If the government can unilaterally decide that certain organizations are not “really” journalists, then that enables them to punish any news organization they want. Think how a Trump administration might use that power against the NY Times or CNN.
It’s okay to call out Project Veritas for their ridiculous and misleading reporting. You can personally believe that they are doing dangerous work. But the government cannot unilaterally declare them not to be press in order to raid homes and seize notes — because if they can, they can do that to any journalist.
Another bit of pushback I heard on this was that mere “receipt of stolen goods” is, itself, a crime, and that somehow makes it okay to raid O’Keefe and his colleagues. Again, though, that would set a hugely dangerous precedent. Remember, the Nixon administration went after the NY Times and the Washington Post for receiving the Pentagon Papers from Daniel Ellsberg. Tons of whistleblowers and leakers hand over documents to journalists that they have no legal right to copy or take (and they may face legal consequences in doing so). But the media who receives those works should not be subject to raids and intimidation from the government. Even if they’re a bunch of ridiculous grifters intent on publishing utter nonsense.
Filed Under: 1st amendment, ashley biden, doj, fbi, free speech, james o'keefe, journalism, raids, reporting, source protection
Companies: project veritas
Florida State Police Raid Home Of COVID Whistleblower, Point Guns At Her & Her Family, Seize All Her Computer Equipment
from the this-is-fucked-up dept
This is insane. Earlier this year, we wrote about Rebekah Jones, the data scientist working for Florida, who put together that state’s COVID-19 database (that had received widespread praise), and who was fired by the state for her failure to fake the data to make it look like Florida was handling the pandemic better than it actually was. Governor Ron DeSantis had made it clear he wanted data showing good results in order to justify reopening the state.
As Jones herself explained after being fired:
I was asked by DOH leadership to manually change numbers. This was a week before the reopening plan officially kicked off into phase one. I was asked to do the analysis and present the findings about which counties met the criteria for reopening. The criteria followed more or less the White House panel’s recommendations, but our epidemiology team also contributed to that as well. As soon as I presented the results, they were essentially the opposite of what they had anticipated. The whole day while we’re having this kind of back and forth changing this, not showing that, the plan was being printed and stapled right in front of me. So it was very clear at that point that the science behind the supposedly science-driven plan didn’t matter because the plan was already made.
Since then, Jones has been running Florida COVID Action, which is a dashboard of Florida COVID information, like the one she used to run for the state.
And apparently Florida’s Governor Ron DeSantis couldn’t allow that to stand. This afternoon Rebekah posted a short Twitter thread, with video, showing Florida state police raiding her home. As she notes, when they asked her who else was in the home, she told them that her husband and children were upstairs, and they pulled out their guns:
1/
There will be no update today.At 8:30 am this morning, state police came into my house and took all my hardware and tech.
They were serving a warrant on my computer after DOH filed a complaint.
They pointed a gun in my face. They pointed guns at my kids.. pic.twitter.com/DE2QfOmtPU
— Rebekah Jones (@GeoRebekah) December 7, 2020
This is horrifying on so many levels. Why was her home raided? Why did they pull out guns? Why did they do it after she told them that it was her children upstairs? Why did they seize all of her electronics equipment? Why are they doing any of this?
Jones has been doing everything to better inform the public of what’s happening in the middle of a pandemic, and this is the thanks she gets? Having her home raided by the police and having guns drawn on her children?
This is what happens to scientists who do their job honestly.
This is what happens to people who speak truth to power.
I tell them my husband and my two children are upstairs… and THEN one of them draws his gun.
On my children.
This is Desantis' Florida.
— Rebekah Jones (@GeoRebekah) December 7, 2020
This is not supposed to happen. This should not happen. It is horrifying and I hope that Jones is able to retain powerful legal help to fight back against this clear violation of her civil liberties, and a clear authoritarian overreach by Governor DeSantis.
Update: Since the original story broke, Florida state police claim that the search warrant was in response to someone breaching an emergency alert system and sending a group text saying: “It’s time to speak up before another 17,000 people are dead. You know this is wrong. You don’t have to be a part of this. Be a hero. Speak out before it’s too late.” The warrant claims that the breach was tied to an IP address at Jones’ house. Jones has vehemently denied she had anything to do with this:
“I’m not a hacker,” Jones said. She added that the language in the message that authorities said was sent was “not the way I talk,” and contained errors she would not make.
“The number of deaths that the person used wasn’t even right,” Jones said. “They were actually under by about 430 deaths. I would never round down 430 deaths.”
Later in the evening, the full search warrant was published, and it raise serious questions… not about Jones, as much as what the fuck Florida’s Dept. of Health is doing with its communications systems. The service that Jones is accused of using involves a shared password among a ton of people:
On November 10, 2020, at approximately 1420 hours and 1442 hours, an unidentified subject gained access to a mull?user account group StatoESF? 8 Planning” and sent a group text stating the following: “it’s time to speak up before another 17,000 people are dead. You know this is wrong. You don’t have to be part of this. Be a here, Speak out before it’s too late? From StateESF8 Planning”. FDOH estimates that approximately 1,750 messages were delivered before the software vendor was able to stop the message from being transmitted.
FDOH has several groups within ReadyOp’s application platform, one of which is StateESF8.Planning. ESF8 is Florida’s Emergency Support Function for Public Health and Medical with which they coordinate the state?s health and medical resources, capabilities, and capacities. They also provide the means for a public health response, triage, treatment, and transportation. The group StateESF8.Planning is utilized by multiple users, some of which are not employees of FDOH but are employees of other government agencies. Once they are no longer associated with ESF8 they are no longer authorized to access the multi?user group.
All users assigned to StateESF8.Planning group share the same username and password. SA Pratts requested and received a copy of the technical logs containing the Internet Protocol (IP) address for users accessing the ReadyOp web?based platform for the multi?user StateESF. Planning.
As security pro Jake Williams notes, it is bizarre beyond belief that (1) you have an important system relying on a single shared username and password and that such login info is not changed after someone is fired:
As someone who has done forensics on non-standard software, let me just note that you have to REALLY make sure you know what the logs are telling you.
Oh, also WHY DOES SOMETHING SO CRITICAL RELY ON A SHARED ACCOUNT?
Oh, also WHY WASN'T IT CHANGED WHEN SHE WAS FIRED?! https://t.co/eIP6H1yM4O pic.twitter.com/EbfGIy2Cf2
— Jake Williams (@MalwareJake) December 8, 2020
Still, it sounds like we may end up seeing a classic CFAA-style case here, regarding “unauthorized access.” Unfortunately, there are some cases on the books where logging into a system where you had a password after you’ve been instructed not to do so any more means you’ve violated the CFAA. This is kind of stupid, because it should be on the organization itself to actually change the password, rather than putting the burden on the user… but if there’s real evidence here that she did access the system, she could be in serious CFAA trouble.
Even so, that’s no excuse for raiding her home with guns drawn.
Filed Under: covid, covid-19, data breach, florida, florida state police, intimidation, raids, rebekah jones, ron desantis, warrant, whistleblower
Documents Show SFPD Ignored The Press Pass The Department Had Issued To Brian Carmody In Order To Place Him Under Surveillance
from the whatever-keeps-the-surveillance-going dept
As details continue to come out about the San Francisco Police Department’s raid of a journalist’s home last year, the more it appears as though there was a concerted effort by the PD to ignore both the First Amendment and the state’s journalist shield law.
From the beginning, investigators knew someone from within the police department had leaked a coroner’s report to Brian Carmody, a local “stringer.” But the department didn’t limit itself to tracking down its inside source. It placed Carmody under investigation, targeting his phone records, location data, and, finally, his home. The department’s chief, Bill Scott, spent two weeks defending the raid before deciding it was OK to blame officers for actions he explicitly improved.
Five warrants linked to the investigation have been tossed by the courts that issued them. Carmody has received a $369,000 settlement for his rights being violated. And more details continue to come to light, showing the department personnel involved never came anywhere close to operating in good faith.
Last month, it was revealed that the officers sent to raid Carmody’s home were instructed to turn off their body cameras. This allowed the PD to write its own narrative of the search without anything more neutral possibly exposing lies or omissions.
Fox affiliate KTVU is continuing to dig into this story and has uncovered even more damning information about the investigation of Carmody and the raid of his home. First, the SFPD was well aware (or should have been) Carmody was a journalist, and that targeting him for surveillance would be problematic and unconstitutional.
While pointing investigators to Carmody, the chief’s office failed to give the investigators a crucial detail: He had a valid press pass.
A reporter does not need a press pass to be protected by the Shield Law. But by issuing Carmody a press pass, the department recognized he was a working journalist.
This may have been an oversight. Or it may have been a deliberate withholding. But either way, the investigation began after the leaked report appeared on a local news station, which should have made it clear journalists were involved at some level and perhaps some due diligence was in order. It’s hard to believe the SFPD didn’t do an internal search of its own records first to dig up what they could about Brian Carmody before seeking search warrants.
That takes us back to the warrants. Five judges quashed the five warrants they had issued once news came to light that Carmody was a journalist. But there were seven warrants and the first warrants allowed the SFPD to, in essence, go back in time and put officers on Carmody’s tail.
Investigators then began writing a series of warrants – seven in all – allowing them access to the officers’ phone records, and Carmody’s geo locations and call information.
The Police Department used the locations to retrace Carmody’s steps around San Francisco in hopes of catching him and his source on video doing the handoff.
This led to two more warrants — the two that haven’t been tossed out by judges. These targeted four places Carmody had visited, including a restaurant and a coffee shop. Video recordings were obtained from all four but investigators were unable to find any footage of Carmody meeting with his police source. When this failed, cops staked out Carmody’s home for more than a month before seeking a warrant to search his home.
As for the warrant applications themselves, they were supposed to be reviewed by an assistant district attorney before being submitted to a judge. None of the seven warrants were submitted to the DA’s office. Unfortunately, this isn’t further evidence of a concerted effort by investigators to illegally target a journalist. This is just standard operating procedure for SFPD officers, who apparently rarely bother to follow the department’s rules.
But [Captain William] Braconi wrote that in his nearly two decades as an investigator “rarely if ever” did an assistant district attorney review a search warrant before it was submitted to a judge.
This is a very ugly mess. And it’s obviously not the only time the SFPD has broken internal guidelines and state laws to pursue investigations. If they were this comfortable pursuing a journalist over a report one of their own leaked, investigators have undoubtedly abused their power in smaller, less noticeable ways before. The more that’s uncovered about the case, the more it appears the city got off pretty cheaply by paying Carmody only $369,000.
Filed Under: 1st amendment, brian carmody, journalists, press pass, raids, search warrant, sfpd
Australian Federal Police Raid Even More Journalists Over Leaked Documents
from the setting-fire-to-freedom dept
Australia got scary in a hurry.
One day after raiding the home of News Corp Australia journalist Annika Smethurst over the publication of leaked documents detailing the government’s domestic surveillance plans, the Australian Federal Police raided ABC News Australia over leaked documents detailing the killing of unarmed civilians by Australian special forces in Afghanistan.
Somewhat surprisingly, the AFP did not prevent John Lyons, the executive editor of ABC News, from live-tweeting the entire raid. This resulted in an astounding stream of tweets (with photos!) showing the AFP was seeking a wealth of information from ABC offices, including notes, correspondence, reports, briefing documents, photographs, and anything else it could use to (presumably) find the source of the leaks.
The AFP claims the raid of the ABC offices has nothing to do with its raid of a journalist’s home the previous day. This is only true in the sense that two different sets of leaks were targeted. In the greater scheme of things, they are very definitely related, as is the investigation currently being pursued by the Department of Home Affairs targeting yet another journalist over a story about asylum seekers seeking to enter Australia by boat.
Journalists all over the world are shocked by the Australian government’s actions, which directly threaten press freedom in that country. The continuing expansion of its national security powers have reduced the rights of the country’s citizens. These powers are on full public display, being utilized in an incredibly damaging way.
The head of the Home Affairs office seems less than concerned about the destruction of rights and freedoms happening in the country he’s supposed to be protecting.
A later statement from the AFP said Home Affairs Minister Peter Dutton was “not notified prior to the execution of the warrants”.
“The AFP’s actions have been independent and impartial at all times,” it said.
“When the AFP receives referrals it assesses them for criminality and does not make value judgements on the issue instead identifying whether there has been any contraventions of Commonwealth Law, and when [sic] evidence as to whether the offence has been committed or otherwise.”
This bit of bureaucracy speech isn’t nearly as alarming as the statement from Prime Minister Scott Morrison, who characterized the no-longer-theoretical threat to journalism as solid policework.
Asked if the news troubled him, he said: “It never troubles me that our laws are being upheld.”
That’s how those up top feel about running leak investigations through the offices and houses of Australian journalists. There’s apparently nothing wrong with destroying a private sector instrument of government accountability in the name of national security.
Filed Under: australia, chilling effects, free speech, journalists, raids
Released Warrant Shows SFPD Started Monitoring Journalist's Phone Weeks Before Officers Raided His Home
from the internal-investigations-weird-rn dept
More details have surfaced about the San Francisco Police Department’s search of journalist Bryan Carmody’s residence. The affidavits for the search of his house remain under seal, but the SFPD’s police chief has already admitted these “lacked clarity.” This strongly suggests the affidavits didn’t mention Carmody’s profession to avoid having them rejected for violating California’s journalist shield law.
Some of this civil liberties-punching paperwork has been released. And it shows the SFPD spent several weeks monitoring Carmody’s communications before deciding to bring the rights violations to his doorstep.
San Francisco police obtained a warrant to search a freelance journalist’s phone records and were authorized to “conduct remote monitoring” on the phone more than two months before a controversial raid on his home and office, according to documents released Friday.
Officers executed the warrant on Bryan Carmody’s phone records on March 1 — the first of seven search warrants obtained in the investigation into who leaked him a report on the Feb. 22 death of Public Defender Jeff Adachi.
There’s no extended affidavit attached to the warrant [PDF], but the short description of the investigation makes no mention of Bryan Carmody’s line of work. All it does is claim Carmody is suspected to be involved in the theft of the leaked police report detailing public defender Jeff Adachi’s death.
Nature of investigation: Mr. Carmody is being investigated as a co-conspirator in the theft of the San Francisco Police report, involving the death investigation of Jeff Adachi. The criminal investigation focuses on the conspiracy to commit a crime, the theft of a police report, and the willful obstruction of justice.
This part of the warrant says the SFPD is only seeking phone records spanning two days in February. But on the next page, the court authorizes ongoing “remote monitoring” of Carmody’s phone “until the conclusion of the investigation.” This includes signals produced in “locations not open to the public or visual surveillance.”
This warrant wasn’t handed to the SF Chronicle by the court or the SFPD, but rather by Bryan Carmody, who was finally notified of this particular search three months after it happened.
The warrant also shows the SFPD had Carmody in its sights long before most of the public was aware he was the source of the leaked death report obtained by other reporters. As the Chronicle’s article points out, the first public statement on Carmody’s involvement came during a Board of Supervisors meeting in April in which the city’s public defender’s office revealed this information. The phone monitoring warrant was granted on March 1st, only days after news stations published the leaked document.
Every new development makes the SFPD look worse. The department may not be making the hole any deeper at this point, but its prior groundwork has proven to have created a far deeper hole than early estimates indicated.
Filed Under: 1st amendment, 4th amendment, bryan carmody, free speech, raids, sfpd, warrant
Australian Federal Police Raid Journalist's Home Over Publication Of Leaked Documents
from the cool-cool-cool dept
The Australian government is using its considerable national security powers to discourage local journalists from reporting unflattering news. Publishing leaked documents will get your home raided by the feds in Australia. (Wait, I’m getting something in my earpiece… it appears this is not just an Australian phenomenon.)
The Australian federal police have raided the home of News Corp Australia journalist Annika Smethurst investigating the publication of a leaked plan to allow government spying on Australians.
On Tuesday police executed a warrant investigating the “alleged publishing of information classified as an official secret” which they said had the potential to undermine Australia’s national security.
Her employer called it a “dangerous act of intimidation,” which is exactly what it is. The government may be claiming this is about protecting the nation, but if it has a problem with leakers, it should maybe take a look at its leakers first, rather than punish journalists for engaging in journalism. Or — and I’m just throwing this out there — maybe the government shouldn’t engage in secret domestic surveillance or other acts that would provoke public outrage if they were exposed.
Unfortunately, Australia really doesn’t have a shield law to protect journalists, leaving them only with the dubious option of defending “unauthorized disclosures” as being made in the public interest. Even if nothing comes of this, the message has been sent: publishing leaked documents will bring the heat — the kind of heat that leaves a chill everywhere it’s been.
The Australian government firmly — and with the force of law — believes anything it thinks should be secret should stay a secret. Smethurst wasn’t the only journalist targeted by the government for reporting on supposed secrets.
Just hours after the Australian Federal Police raided the home of high-profile journalist Annika Smethurst, broadcaster Ben Fordham has revealed he’s also being targeted for his reporting.
The 2GB Drive presenter and Sky News contributor revealed he was the subject of a probe over his story yesterday about six asylum seeker boats attempting to reach Australia.
An hour after his report went to air yesterday, his producer was contacted by an official from the Department of Home Affairs to advise the material was “highly confidential”.
“In other words, we weren’t supposed to know it,” Fordham told listeners today.
Right now, the investigation is the DHA’s. But it has already informed Sky News it will likely be turning this over to the federal police as a criminal investigation. That’s probably because Fordham has refused to cooperate with the Home Affairs investigation and name his source. I’m sure the AFP feels it can suss out the leak source by doing what it did to the News Corp journalist: raid their home and take all of their electronics.
The Australian government is pretending this is normal. The Prime Minister has refused to offer a coherent comment and the usual things are being said about national security by the agencies involved in these investigations. But the truth of the matter is this is not normal. According to the New York Times’ report on the raid, this is the first time in more than ten years the Australian government has gone after a journalist for publishing sensitive documents.
The AFP and DHA want it to appear normal, but it isn’t. They know it. And they’re counting on this combination of breezy national security platitudes and heavy-handed tactics to discourage further reporting on things the government would rather citizens remained blissfully unaware of.
Filed Under: annika smethurst, australia, ben fordham, chilling effects, journalism, raids, surveillance
More Than Two Years After It Took Them, The FBI Still Won't Return Family Videos Seized During A Raid Of A Security Researcher's Home [UPDATED]
from the making-life-miserable-for-citizens-just-because dept
UPDATE: Good news! Justin Shafer says the FBI has finally come up with a date to meet with him about the personal data/videos still in the agency’s possession. Hopefully, Shafer will have his stuff back shortly he meets with the FBI on February 15th.
The government isn’t done jerking around security researcher Justin Shafer quite yet. Shafer came across a bunch of dental patient information in an improperly secured database. This discovery led to the FTC levying a $250,000 fine against the software provider, Schein, for falsely portraying its faux encryption as actual encryption. After notifying affected parties, Shafer was thanked for his help with a raid by FBI agents.
This happened days after the FTC announced its settlement with Schein. FBI agents dragged Shafer outside of his house in his boxers at 6:30 in the morning and took every electronic device in the house except for his wife’s phone. His children were awakened by shouting men pointing guns at their parents.
This wasn’t the only time Shafer was raided. He was raided once more, again for suspicions he was engaged in illegal hacking, this time allegedly in conjunction with TheDarkOverlord. Neither of these two raids resulted in anything more than a bunch of seized electronics and Shafer’s family being taught to fear, if not hate, federal agents. No charges were brought as the result of these two raids.
This second raid led to Shafer directing his anger at the agent who had secured the search warrant, Special Agent Nathan Hopp. Following this raid, Shafer tracked down Hopp and Hopp’s wife via social media, engaging a series of unwise (but not actually threatening) confrontations with the agent’s wife. In one message to her, he implored SA Hopp’s wife to return video recordings of his children, which had been seized along with everything else.
This led to a third raid by FBI agents — this time in response to Shafer’s alleged “threats.” Shafer was released on bail, but quickly sent back to jail after he vented about his treatment by the FBI in an ill-advised blog post. Shafer spent eight months in jail before finally being released. The DOJ pursued a superseding indictment, most likely because its original indictment failed to impress the judge presiding over Shafer’s case.
The situation got even more petty and bizarre when the DOJ demanded Twitter hand over info of all accounts engaged in a conversation about Special Agent Hopp — one that culminated in Justin Shafer delivering an apparently threatening smiley face emoji. Most of the convo participants were easily identified, making this weird flex by the DOJ a vulgar display of stupidity and vindictiveness.
Last March, the cavalcade of petty stupidity finally came to a close. Well, almost. Shafer signed a plea agreement with the DOJ, pleading guilty to a single count of retaliating against a federal official. (The FBI’s multiple acts of retaliation against Shafer are apparently within the bounds of the law…) Shafer has finished his probation and done everything he’s supposed to, but the government isn’t holding up its end of the bargain.
According to his plea agreement [PDF], the government could choose to seize one specific set of data. Under “Financial Obligations,” the plea agreement specifies:
The Court may order the forfeiture of the Defendant’s interest in the following property: All electronically/digitally stored means of identification (other than the Defendant’s own) stored on electronic storages [sic] devices and/or media seized from the Defendant pursuant to the execution of federal search warrants.
The FBI has so far refused to return anything to Justin Shafer. The hard drives containing leaked patient data also contained more than 250 family videos. The FBI has made no move to forfeit anything else it seized. It has also said it will meet with Shafer to delete the patient information he downloaded during his security research. But ten months after broaching the subject, the FBI hasn’t set a date for returning Shafer’s personal files that were swept up along with the data the FBI sought.
On top of that, the court never ordered the forfeiture of the leaked patient data, so the FBI technically can’t even keep that. Understandably, the feds may move for forfeiture of this specific data if Shafer tries to get it back, but for now, it doesn’t really have any legal basis to hold onto anything it seized during the May 2016 raid that started the ball rolling on this debacle.
The FBI should have returned everything it wasn’t authorized to keep once it had a signed plea deal in hand. It has no use for anything found on any of the seized devices, especially since it undoubtedly knows where to find and remove the patient data the court says Shafer shouldn’t have back. But ten months later, it has made no move to return the files it seized, which include 250 family videos of no possible interest to the FBI.
There’s no reason the FBI can’t just hand over everything but the patient data without making Shafer and his legal rep jump through a bunch of hopps hoops. But it seems the FBI isn’t through with Shafer. Given the history on display here, the lack of forward motion by the agency that raided Shafer’s home three times but only managed to walk away with single (bullshit) count of retaliation via threatening a family member (read the law and the indictment to see why this charge is bullshit) can only be seen as vindictive.
The entire picture is ugly: reported data breaches were treated as criminal acts by an agent with too much free time and a vivid imagination. When his (repeated) target lashed out, the DOJ expanded past its fantasies of a Shafer-DarkOverlord partnership to punish Shafer for stupid, but not truly threatening, internet activities. Now it’s sitting on his personal belongings because it can, not because it needs to.
Filed Under: doj, fbi, justin shafer, raids, seized items
Judge Helps Ensure That The More Ignorant Law Enforcement Officers Are, The More They'll Be Able To Get Away With
from the useful-idiots-on-the-front-line-of-the-Drug-War dept
So much for the Fourth Amendment. Even though a field test for marijuana returned false results twice and a SWAT team raid of Robert and Addie Harte’s house turned up no drugs or paraphernalia, the cops involved have been let off the hook by a federal judge. Radley Balko runs down the details of the decision in his post entitled “Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home.”
The family was held at gunpoint for more than two hours while the police searched their home. Though they claimed to be looking for evidence of a major marijuana growing operation, they later stated that they knew within about 20 minutes that they wouldn’t find any such operation. So they switched to search for evidence of “personal use.” They found no evidence of any criminal activity.
The investigation leading to the raid began at least seven months earlier, when Robert Harte and his son went to a gardening store to purchase supplies to grow hydroponic tomatoes for a school project. A state trooper had been positioned in the store parking lot to collect the license plate numbers of customers, compile them into a spreadsheet, then send the spreadsheets to local sheriff’s departments for further investigation.
[…]
On several occasions, the Sheriff’s Department sent deputies out to sort through the family’s garbage. (The police don’t need a warrant to sift through your trash.) The deputies repeatedly found “saturated plant material” that they thought could possibly be marijuana. On two occasions, a drug testing field kit inexplicably indicated the presence of THC, the active drug in marijuana. It was on the basis of those tests and Harte’s patronage of a gardening store that the police obtained the warrant for the SWAT raid.
The incriminating leaves were nothing more than loose-leaf tea. The Hartes were not drug dealers, nor were they using marijuana. Nonetheless, the federal judge decided the whole thing — from cops camping out in the parking lot of a gardening store to the two bogus field tests to the fruitless raid of the Harte’s residence all complied with the Fourth Amendment.
[Judge John W. Lungstrum] found that the police had probable cause for the search, and that the way the search was conducted did not constitute excessive force. He found that the Hartes had not been defamed by the raid or by the publicity surrounding it. He also ruled that the police were under no obligation to know that drug testing field kits are inaccurate, nor were they obligated to wait for the more accurate lab tests before conducting the SWAT raid.
The Hartes’ lawsuit is still alive… barely. The judge granted a motion for summary judgment in favor of the defendant law enforcement agency, but the case has not been dismissed.
Orin Kerr, writing for the Volokh Conspiracy, took issue with Balko’s “provocative” headline, claiming Lungstrum’s ruling said nothing of the sort.
Yes, there was a legal decision, but it had nothing to do with visiting gardening stores or the culpability of drinking tea. Instead, the issue in the case was when the police can rely on positive field tests for THC, the active ingredient in marijuana. The judge ruled that officers cannot be held personally liable for searching a home with a warrant based on two positive field tests for marijuana, a week apart, from plant materials found in the suspect’s discarded trash, at least when the officers did not know about the risks that the field tests results were false positives
This basically says the same thing Balko’s paragraph on the ruling does, only Kerr maintains that it does not show drinking tea and visiting gardening supply stores could lead to a SWAT team raid. The problem is that this is exactly what happened. So, while the judge’s decision doesn’t explicitly state officers are fully justified in using dubious field tests and inefficient garden store parking lot stakeouts as probable cause for search warrants, it absolutely does affirm that these elements are insufficient to show a Fourth Amendment violation.
Why? Because probable cause is whatever a cop says it is. This is an ongoing issue in states where marijuana has been partially legalized. In California, medical marijuana is legal. The cops can’t seem to deal with this new reality. So, they find bogus reasons to raid houses, relying on multiple law enforcement-friendly exceptions to the Fourth Amendment to keep their busts intact… or at least minimize the number of times judges will find them culpable for violations. Cops say “upon information and belief” and magistrate judges nod in approval.
Here’s attorney Rick Horowitz on the subject.
In my area of the world, I get a lot of what defense attorneys call “medical marijuana cases,” and prosecutors – enrobed, or not – call drug-manufacturing, or drug-dealing, cases. Because the voters of the State of California voted to decriminalize marijuana use for people who obtained recommendations from medical doctors for the use of marijuana, and because doctors give out (really bad) legal advice along with the recommendations, and because the cops don’t want to try to go after doctors who recommend marijuana to anyone with $150 bucks (or whatever the current going rate is), because they have the money to fight back, we have a lot of folks growing marijuana in the highly-conservative right-wing center of California (the San Joaquin Valley) where it is most definitely not wanted by those in power. And so a cop will talk to a judge about a house he’s heard about with a bunch of marijuana plants, and say, “Based on my training, and experience, no one grows this many plants unless they are actually marijuana dealers hiding behind the medical marijuana laws stupidly passed by the electorate.”
Boom! There’s your probable cause. The law be damned.
In this case, the probable cause was exceedingly thin. The Hartes went to a store where hydroponic gardening supplies could be purchased — items that are used for legal gardening all the time. This simple fact was all that was needed for law enforcement to perform trash pulls. Items from the trash were tested and “found” to be marijuana, even though they weren’t.
The only response offered by the sheriff’s department for its field test failures is a shrug of indifference. If a cop tells a magistrate judge the tests are reliable, more often than not, a warrant will be issued, despite loads of evidence showing field tests to be notoriously unreliable. The officers simply say, “Huh. I’ve never heard of a failed test,” and a federal judge forgives them for their ignorance and ineptitude.
Hilariously, the sheriff claimed these two failures on the same case are the only two times the department’s field tests have been wrong, dating back to 1978.
The decision makes it clear the best thing cops can do to make bogus searches stick is to be wilfully ignorant of failure rates. They should do no research on the subject and should never question a positive test result. (They will likely remain skeptical of every negative result and re-test until the results confirm their biases.) Any information they might have that undermines probable cause should be discarded and wiped from memory. After all, the judicial branch has stated they’re under no obligation to ensure statements made in warrant affidavits actually have any merit. Ignorance is bliss… or at the very least, good faith.
While Kerr is technically correct that a judge didn’t say cops could go after anyone whose trash contains leaves if they also shop at gardening supply stores, the end result is basically the same thing. Kerr’s view of the decision is summed up best by this comment on his post. (And credit where due, Kerr did point out that he enjoyed this comment.)
This is one more example of a case where the vast majority of people of good will review the facts and conclude there was an obvious and gross violation of justice while a pedant who is an expert in the 4th amendment assures us that “No, no, this is all very interesting, but…”
If you want a technical view of the ruling, Kerr lays it out best. But the decision runs contrary to many people’s view of the Fourth Amendment: that they should be free from unreasonable searches. The problem is, what’s “unreasonable” to the public is very much considered to be “reasonable” to law enforcement and far too many judges. That explains the outrage at the outcome. The law can’t protect innocent people from law enforcers. The remedies are too limited, and far too often, removed completely by judicial deference to law enforcement’s definition of “reasonable.” Scott Greenfield explains.
That the judge who signed off on the warrant accepted the results of the test as being sufficient to show probable cause, that the test produced sufficient positive results, even if totally false, to support the issuance of the warrant, made Lungstrum’s ruling perfectly legally reasonable. The Fourth Amendment says get a warrant, and they did. It requires probable cause, and they had it based on the field tests. The police enjoy qualified immunity unless they knew their application to contain material omissions about the test, and they shrug and say, “science.”
Except the Hartes did nothing more than some veggie gardening and drink tea. All the twists of the law upon which summary judgment was granted against them not only failed to protect the sanctity of the home of two innocent people from a SWAT raid, and all that accompanies it, but provided no remedy after the accusations fell apart.
At the end of it, we’re supposed to take comfort in the fact that at least a warrant was obtained. This piece of paper, no matter how ignorantly or deceptively obtained, will shield law enforcement from much of the potential damage. But everything about this decision says cops are better off stupid and idealistic, rather than cognizant of the deficiencies of their tactics and methods. Judges don’t expect law enforcement officers to know the laws they enforce and this only further encourages them to remain ignorant on other subjects as well.
Filed Under: 4th amendment, addie harte, gardening, probable cause, raids, robert harte, swat, warrant
Shop Owner Claims FBI Raided His Store Over His Offensive Murals, But Details Suggest Otherwise
from the because-not-everything-is-a-Zionist-conspiracy dept
Copblock is dishing some dirt on a “warrantless” FBI raid in Cleveland, purportedly over a convenience store owner’s controversial murals.
The FBI recently raided a small gas station in Cleveland, Ohio for apparently no other reason than having a controversial mural painted on the wall.
The SWAT team, armed with rifles, handguns, and bulletproof vests, stormed through the store without showing any warrants or answering any questions about why they were there according to the store’s owner, Abe Ayad.
According to Cleveland’s NewsNet5, Ayad demanded to see a warrant from the agents, but they were never able to show him one.
Here’s some video of the raid, which apparently concluded (the video, not the raid) when FBI agents shut down the recordings.
Over the years, Abe Ayad has displayed a number of potentially-offensive murals on the outside walls of his convenience store. These were painted by artist Harry Bell and have depicted, among other things, Israel’s prime minister bending Uncle Sam over a pile of dead soldiers, a rabbi fellating* an infant and, in slightly less inflammatory (but potentially infringing) manner, Joe Camel giving Abe Ayad a thumbs up for… I guess, selling lots of cigarettes.
*While this sounds entirely despicable, there is a small bit of truth underlying the depiction of a rabbi with his mouth on an infant’s penis. Here’s a description of the circumcision process, as practiced by some Orthodox members of the Jewish faith. It’s short, but says all it needs to say.
Under Jewish law, a mohel must draw blood from the circumcision wound. Most mohels do it by hand with a suction device, but some Orthodox groups use their mouth to draw blood after cutting the foreskin.
Abe Ayad “identifies” as a Muslim, which probably makes him a Muslim (distancing use of “identifies” courtesy of Cleveland.com), which probably explains why so many of his murals target Jews. That these are displayed on the outside of his business sort of makes it a civic issue. In all fairness to the city, it has never demanded a removal of the murals. It has only asked that they be made smaller and thus less visible from the road.
Ayad has refused. And if a man’s home is his castle and his licensed business his castle with an ROI, then he should — for the most part — be free to decorate it with images others might find offensive. (Obviously, actually obscene images would be another issue altogether.) Those offended are free to tell Ayad he’s a racist and a fool and spend their money elsewhere. It’s not as though Ayad is the sole provider of anything in Cleveland. But considering the issues at the center of the artwork, the city has responded in a mostly commendable fashion. There seems to be nothing approaching a heckler’s veto being humored here.
That’s the good news. Here in the US, people are free to display their irrational hatred and ignorance. If Ayad isn’t actually committing violence against Jews or imploring others to commit criminal acts, then his artwork is just a two-party wall of shame that should be pitied for its deep-held ignorance, rather than booed off the face of the planet by the offended.
As is the case with many anti-Semites, Ayad feels any harassment he experiences as a result of his murals is linked to a “Zionist conspiracy.” He has also been represented by a now-permanently disbarred attorney who, not coincidentally, claims his disbarment is the result of a “Zionist conspiracy.”
Ayad also claims to have been raided by local police in 2009. He doesn’t specifically say it was because of the murals (it’s implied) but law enforcement seized money, guns and an apparently very expensive stamp collection. Most of it was subsequently returned.
“They can’t arrest me. For what?” said Ayad. “2009 they raided me too. No charges. They gave me back my guns, they kept my money and then they gave me back my money minus the coin collection, which was valued over $3 million.”
Similar items were seized in the recent raid. But this doesn’t have anything to do with the murals, even if Ayad is skewing it in that direction. Cleveland.com has, simultaneously, no details and more details.
FBI spokeswoman Vicki Anderson said agents surrounded and sealed off the East 55th Street gas station about 10 a.m. to execute a warrant.
She would not provide any other details.
Ayad, however, did.
The store’s owner, Abe Ayad, said agents were looking for evidence of food stamp fraud and illegal gun sales. Ayad said no such activity has taken place in the business.
Which is not the same thing as being raided for controversial murals. Ayad may believe this is part of a conspiracy to shut down his business and save the city from having to field more mural-related complaints, but it appears the issues at hand in this raid (and the 2009 raid as well) are unrelated to the paintings on the exterior walls.
Now, it may be possible that two raids with six years between them are both a part of a larger plan to disrupt and destroy Ayad’s business. It could be Ayad’s multiple appearances in court for civil lawsuits are also instrumental to the city’s long-term plan to be rid of his murals forever. Or it could simply be that neither of these are related to the artwork, but rather inextricably tied together because the murals on the outside can’t be separated from the interior of the business endorsing these viewpoints.
It may be that someone in Cleveland’s law enforcement community has it in for Ayad, possibly because of the murals, but there doesn’t appear to be a sustained history of harassment. While the city would undoubtedly enjoy a respite from Ayad’s “antics” and the complaints that follow them, there’s very little here to justify any claims that the FBI raided Ayad’s store over the murals. Free speech (mostly) lives here and Ayad’s contentious relationship with a great many people has yet to see his store shut down for any reason, legitimate or not.
As for Ayad not being allowed to see the warrant, that’s perfectly legal as well. Law enforcement officers are under no obligation to present the warrant before performing searches or seizures. It’s simply enough that the warrant exists and is presented to the raided party at some point during the search. A “warrantless raid” — as this has been portrayed — means the absence of a warrant, not just that the raided party wasn’t presented with a warrant before it commenced. Any number of exigent circumstances exist that allow for the presentation of a warrant after a search/seizure has already commenced. In this case, paperwork was handed over to Ayad at the time of the agents’ departure. So, while a bit on the shady side morally-speaking, the entire operation clearly falls within the legal bounds.
I’m all for a “bad cop/censorship” narrative, but one doesn’t exist here. I prefer the ones where the official parties have buried themselves, rather than grab a shovel and start hurling dirt when in possession of only a bare minimum of facts. So, score one for the good guys, I guess — pending any further details that point to the FBI being pointed in the direction of Ayad because (a) he’s Muslim and (b) he owns guns.