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Fifth Circuit Flips The Script, Declares Geofence Warrants Unconstitutional

from the SCOTUS-has-entered-the-chat dept

Oh, Fifth Circuit, you crazy, crazy kid. I take back almost all the bad things I’ve said about you.

The cop-friendliest circuit in the nation has done the unimaginable: set up a circuit-on-circuit showdown that can only be resolved by a Supreme Court decision. Until that happens (don’t hold your breath), you and your Google location data are safer in the Fifth Circuit (Texas, Louisiana, Mississippi) than the Fourth Circuit (Virginia, Virginia’s AAA-affiliate, both Carolinas, and Washington DC’s largest suburb, Maryland).

We won’t know whether the timing of this decision is impeccable or fortuitous or whatever until further case law is developed. But we can say this: it was nipping at the heels. The Fourth Circuit released its decision on geofence warrants roughly a month ago. That decision went entirely the other way. While there were a few concerns expressed about a single warrant being capable of forcing Google to search its entire collection of location data (something that affects more than a half-billion people), the Fourth Circuit said the Fourth Amendment mattered less than the Third Party Doctrine.

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

The Fourth Circuit’s decision basically says the government doesn’t even need a warrant to collect this data from Google. If people opt in to Google’s location data collection, it’s on them. And if the sharing is “voluntary,” the government can have it for as little as a subpoena, no matter how broad the original search performed on its behalf by Google.

The Fifth Circuit goes completely in the other direction, which will definitely come as a surprise to law enforcement. After all, this is the circuit that sides with the government more often than not when it comes to constitutional violations performed by law enforcement officers.

This decision [PDF] is astounding for that reason alone. But it’s an important one — a decision that says using a single warrant to force a third party to dig through data contributed by hundreds of millions of people makes a mockery of the Fourth Amendment and its prohibition of “general warrants.”

This case — like the one handled by the Fourth Circuit — involves a robbery. In this case, it was a Mississippi postal worker being robbed and assaulted in February 2018. Most of the investigation involved the investigative wing of the USPS. Postal inspectors failed to generate any leads for the next nine months. At that point, they decided Google should perform the investigative work for them.

After consulting with other law enforcement agencies which had already issued geofence warrants, the USPS wrote one of its own. Its warrant stated there was probable cause to believe Google housed the data it was seeking. A geofence was drawn around the scene of the crime — one that covered 98,192 square meters.

However, Google’s first search was even broader than the specifications delivered to it by postal inspectors. It covered an area of 378,278 square meters during the date and time noted in the warrant (a one-hour period on the day of the robbery) and required Google to search all of its 592 million Sensorvault accounts.

The first search resulted in three identifiers matching the time/date/location restrictions. Without writing a new warrant based on the search results, the investigators went back to Google and demanded further identifying info for the three numbers Google had given them. This set gave the inspectors the device IDs. Again without crafting a new warrant, the investigators told Google to cough up any account information linked to the devices. Using this information, the USPS now had two suspects to pursue. Three suspects, with the lead defendant being the person listed on the caption header of the decision (Jamarr Smith), were arrested, tried, and convicted.

Citing the Supreme Court’s Carpenter decision — one that erected a warrant requirement for cell site location info collected from cell service providers — the Fifth Circuit says the other observations made by the nation’s top court in that case apply here: it’s an oversimplification to assume any data-sharing with service providers is “voluntary.” Since it’s not always obvious what’s being collected by who (see also: third-party data brokers and the government agencies that love them), it’s insulting to the Fourth Amendment to assume the Third Party Doctrine applies. And it says this while quoting the district court which ruled in favor of the criminal suspect before the Fourth Circuit reversed the evidence suppression order.

[T]he fact that approximately 592 million people have “opted in” to comprehensive tracking of their locations itself calls into question the “voluntary” nature of this process. In short, “a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting ‘YES, I’M IN’ at midnight while setting up Google Assistant, even if some text offered warning along the way.” Chatrie (Dist.), 590 F. Supp. 3d at 936

But there’s something even more concerning about geofence warrants, even when warrants are used: the breadth of the search. That’s where this court parts ways with not only the Fourth Circuit, but most jurisprudence surrounding geofence warrants. Not only is the search extremely broad, but at the point the search is performed, law enforcement officers don’t even know who they’re looking for. (Emphasis in the original.)

When law enforcement submits a geofence warrant to Google, Step 1 forces the company to search through its entire database to provide a new dataset that is derived from its entire Sensorvault. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts— for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient.

That, my Fifth Circuit-residing friends, is what we call a “general warrant.” And we kicked those to the curb shortly after we kicked out our former British overlords. We shouldn’t be returning to this pattern and practice just because technology and opportunity have fortuitously aligned to give law enforcement a new way to identify suspects without ever having to leave their desks. (Emphasis in the original.)

While the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found.

Warrants are always supposed to be narrowly tailored to minimize intrusion and collateral damage to constitutional rights. A warrant that ignores that isn’t any more constitutional just because it’s a warrant.

This won’t do much for the three convicted men. The good faith exception applies. But this isn’t one of those cases where a court says a lot of good things about rights but decides the underlying constitutional questions are best saved for another day. Precedent is established here, which means that going forward, most, if not all, geofence warrants are worthless in the states the Fifth Circuit oversees.

We hold that geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment.

This is a huge decision. And, of course, plenty of people already have opinions of their own. We’ll start with Orin Kerr, who disagrees with the court’s view that warrants are unconstitutional when the target of the warrant is just “too big to search.” (Emphasis in the original.)

Second, and much more dramatically, the Fifth Circuit rules that because the database of geofence records is so large, and because the whole database must be scanned through to find matches, the Fourth Amendment does not allow courts to issue warrants to collect those records. In legal terms, it is impossible to have a warrant particular enough to authorize the surveillance. The government can’t gather these kinds of online records at all, in other words, even with a warrant based on probable cause.

Right. That’s the holding. It may not survive a Supreme Court challenge. Hell, it may not even survive an en banc review, which is one of those things the Fifth Circuit tends to engage in every time it accidentally upholds constitutional rights. This ruling may prove to be extremely short-lived. And yet, Kerr’s main concern appears to be the presumed negative impact it will have on bulk surveillance collections and other extremely broad searches enabled by advances in technology.

I’ll end with a prediction. In a few days there will be a news story about some national security surveillance program that either stopped, or paused, or at least was the subject of a lot of emergency meetings. You won’t be able to tell from the news story what the program was, or what was the cause of concern. But the untold explanation will be a roomful of very worried national security lawyers trying to figure out what the heck to make of the Fifth Circuit’s ruling in United States v. Smith.

Flow my tears, the NSA analyst (who only agreed to speak on background) said. I fail to see the downside! But that’s me and my antipathy towards law enforcement’s slew of shiny new “EASY” buttons.

Here’s the first counter-argument, presented by none other than Judge James Ho of the Fifth Circuit in his concurrence:

[I] fully recognize that our panel decision today will inevitably hamper legitimate law enforcement interests.

But hamstringing the government is the whole point of our Constitution.

So, there’s the first pointed answer that should be stapled to the forehead of the first “source” quoted by reporters as being worried about the ripple effects of a postal truck robbery in the deep South.

Then there’s this response from ACLU lawyers Jennfier Granick and Brett Kaufman in their response to Orin Kerr’s post, which Kerr graciously published at the Volokh Conspiracy (along with his response to their response):

We have a prediction, too. We may see an unnamed national security official cited in a news story, lamenting the possible interruption to some purportedly essential surveillance program because of Smith. No one will tell us what the program supposedly is, or how exactly some limitations on the ability of law enforcement to search huge databases of private information without individualized suspicion interferes with the nation’s security, but that is what the anonymous source will suggest.

Don’t believe it. National security lawyers excel at exploiting legal loopholes to justify secret programs and insulate them from judicial scrutiny. We find it extraordinarily hard to believe that they will read the Fifth Circuit’s opinion in an unnecessarily overbroad and self-defeating fashion to require the executive branch to shut down one of its ongoing national security surveillance programs. Instead, as they usually do, the lawyers will find a way to justify the program to themselves, even if only by saying that the Fourth Amendment applies differently to foreign intelligence surveillance than to criminal investigations.

The government will be fine. The NatSec apparatus will function as well as ever. If there’s bulk surveillance targeting Americans (like the residents of Texas, Mississippi, and Louisiana), that definitely shouldn’t be happening in the first place and this will only make what’s probably an illegal program more illegal.

If cops can’t figure out a better way to find suspects than Googling for them, that’s on them. They all like to talk big about their training and experience. Now, they’ll just have to start putting all that training and expertise to actual work, rather than just expecting everyone else to do it for them. On top of that, Google has already shifted location data storage back to phone owner’s devices, meaning it’s got a whole lot less data to search for when it gets hit with these questionable warrants. This decision won’t add much “hampering” of law enforcement to the status quo.

My prediction? This will change nothing. The government will swiftly appeal this decision and petition the court for an en banc review while waiting to see if this is the sort of thing the Supreme Court might actually want to tangle with. In the meantime, every geofence warrant issued prior to this decision in this circuit is still valid. And they’re still valid in the other 47 states, so I wouldn’t be surprised to see law enforcement agencies roping in out-of-state agencies to write some geofence warrants on their behalf while they work overtime trying to establish some sort of multi-state nexus.

To be this alarmed already is idiotic. And, in my personal view, this isn’t even cause for alarm. This is the court system doing what it’s supposed to do: stand up for the people when the government crosses the line.

Filed Under: 3rd party doctrine, 4th amendment, 5th circuit, geofence warrants, usps

For Whatever Reason, The US Post Office Is Still Running Its Mail Cover Surveillance Program

from the still-a-thing,-I-guess dept

The US Postal Service has been retaining metadata on snail mail for years. Back before mass scanning of every piece of mail was a reality, law enforcement requests had to be a bit more targeted. Investigators had to put in requests that required the postal service to log information about any mail sent to/from certain addresses or between certain addresses.

These days it’s far less complicated. As millions of Americans know, you have the option to have photos of all your incoming mail sent to your email, giving you a glimpse into the very near future in terms of mail service.

More than a decade ago, the technology finally achieved what law enforcement entities have always wanted: a perpetual stream of mail service data that can be accessed at any time for nearly any reason. While the so-called postal covers program had been around for years, it didn’t go mainstream until a whole lot of worldwide news headlines were being generated about secret US government surveillance programs, thanks to the Ed Snowden leaks.

Two years after the program made headlines (which was two months after the first Snowden leak), the USPS Inspector General (prompted by Congress) released its report on the program. That report found that mass scanning of mail was very much day-to-day business, but that actual oversight of the program was still nearly nonexistent.

The USPS wasn’t filing its required paperwork tracking government requests for snail mail info. The USPS rarely rejected another government agency’s demand for mail metadata. And the problems weren’t minute. The forms detailing compliance with government demands for data often weren’t being filed until more than two years after those reports were due.

However, few people thought this was a big deal. If USPS users were able to access snapshots of the outside of their incoming mail, surely the government should have the same privilege. It wasn’t until 2023 that Congress made a move to shut the program down — citing not only some concerning privacy violations but the lack of evidence showing easy access to weeks or months of mail snapshots was essential to law enforcement investigations.

Roughly a year later, that request from Congress has gone nowhere. However, more information about the program has been obtained thanks to the questions raised by the bipartisan group of federal legislators who moved to have the program shut down last May. Here’s Drew Harwell with more details for the Washington Post.

In a letter in May 2023, a group of eight senators, including Ron Wyden (D-Ore.), Rand Paul (R-Ky.) and Elizabeth Warren (D-Mass.), urged the agency to require a federal judge to approve the requests and to share more details on the program, saying officials there had chosen to “provide this surveillance service and to keep postal customers in the dark about the fact they have been subjected to monitoring.”

In a response earlier this month, the chief postal inspector, Gary Barksdale, declined to change the policy but provided nearly a decade’s worth of data showing that postal inspectors, federal agencies, and state and local police forces made an average of about 6,700 requests a year, and that inspectors additionally recorded data from about another 35,000 pieces of mail a year, on average.

Not exactly the answers these senators were hoping to get, especially the one that makes it clear the USPS will continue to allow pretty much carte blanche access to mail covers to law enforcement agencies.

The USPS (quite reasonably) points out there’s no expectation of privacy in the information contained on the outside of mail. And that’s an understandable position to take… to a certain extent. But no postal worker on their own could compile this information on their own despite having access to this information. And even if they could, it could not be obtained in bulk after the fact because the USPS and its employees would need to know what mail to track beforehand to generate these records.

What’s happening here is law enforcement leveraging tech to make a mockery of “reasonable expectation of privacy.” While we might expect our mail to be surveilled if we’re engaged in illegal activity, we certainly don’t expect law enforcement to have full access to metadata about our mail at any time and for any length of time.

But that’s my opinion. And even though that’s shared by plenty of privacy advocates, at least eight US senators, and perhaps thousands of people who don’t think law enforcement should be able to see what mail they get without at least probable cause to do so, it’s never been the view of the courts. And I don’t expect that to change.

But at some point someone has to acknowledge the fact that the reasonableness of the privacy invasion starts to shift when it becomes hundreds or thousands of data points. What’s reasonable for a single officer or government employee to observe in their personal capacity is nowhere near what can be “observed” with cameras and scanners that automatically capture and store this information for however long the government decides it should be stored and is accessible pretty much at will by other government agencies.

So, while it’s surprising law enforcement is still exploiting a communication system that has largely been surpassed by better, faster options, the far more disappointing takeaway is this: the government will take whatever’s not nailed down by warrant requirements just because it can.

Filed Under: mail covers, snail mail, surveillance, tracking, us postal service, usps

Now That Snail Mail Has Pretty Much Been Rendered Obsolete, Congress Is Finally Getting Serious About Terminating Postal Surveillance

from the estate-of-Ed-McMahon-offers-its-support dept

For as long as the United States Postal Service (USPS) has had scanners, the government has been able to obtain information about senders and recipients. Under the Third Party Doctrine, information shared with third parties (in this case, shared with the government directly) is the government’s to have. No warrant needed.

The USPS has been in the “mail cover” business for as long as people have written addresses on envelopes and packages that senders hoped to have delivered to recipients. Automated scanning wasn’t meant to increase surveillance of Americans. It was a necessity for sorting mail.

But just because the USPS is scanning to/from addresses to make mail delivery more efficient isn’t supposed to be a direct invitation to other government agencies to access information collected for the sole purpose of allowing the USPS to better perform its tasks.

But that’s what it became: yet another way for the government to indiscriminately collect data on citizens without ever having to inform courts or US mail customers this information was being collected at will by other government agencies.

Stamp prices continue to rise as fewer people than ever feel the USPS is essential to their communications. While this does make “mail covers” less useful to law enforcement agencies, it will continue to exist as long as the USPS remains in business. There is no oversight of the government’s use of mail cover information. Agencies just ask for scans of mail and the USPS hands it over. And now, long after this program has had the ability to affect millions of Americans, federal legislators are seeking to end it, as Dell Cameron reports for Wired.

The letter, first obtained by WIRED, is signed by an equal number of Republicans and Democrats, including senators Ron Wyden, Rand Paul, Edward Markey, Cynthia Lummis, Elizabeth Warren, Mike Lee, Cory Booker, and Steve Daines. It opens with a warning about a request devised by the postal service known as a “mail cover,” which the lawmakers say “threatens both our privacy and First Amendment rights.” The lawmakers equate mail covers with the “unchecked government monitoring” of Americans’ mail.

All of this is true. And all of this has long been part of the (barely) secret history of the post office. It’s not that the program shouldn’t be terminated or at least subjected to more rigorous oversight. It’s that the program is of such limited utility in this day and age, it’s likely to be relinquished without a fight.

Preventing government agencies from gathering to/from snail mail metadata in bulk isn’t going to prevent more serious incursions on rights, like bringing in drug dogs to sniff mail without even the barest minimum of reasonable suspicion, or interdicting packages just because the government thinks certain packages seem a bit sketchy.

That being said, bulk collection of to/from addresses allows the government to infer personal connections — something that can wander into First Amendment territory, even if the collection/distribution avoids the Fourth Amendment by utilizing the Third Party Doctrine. For sure, the program should be terminated, if for no other reason than there’s no legal mandate forcing the USPS to perform this collection, much less share it with other government agencies wielding nothing more than a piece of paper demanding access — a data request requiring no review by the judicial system, much less any officials in the agencies making these requests.

There is no federal statute requiring the post office to allow mail covers. The Postal Service authorizes this through its own regulations, conforming to interpretations of what is most permissive under the Fourth Amendment. Those protections were strengthened in 1967 as a result of a US Supreme Court ruling that established a legal test still used known as “expectation of privacy.” And while intercepting electronic metadata, as the senators note, generally requires a court order—because the courts have decided Americans do reasonably expect that information to be private—they haven’t exactly ruled the same way in cases involving physical pieces of mail. There are many intricacies involved, but in at least one major case, judges pointed to another legal test known as the “plain view doctrine,” which applies to evidence investigators can clearly see.

The mail cover program is definitely problematic. But it would have been way more useful to terminate it years ago, rather than now, when most data collected is going to be generated by junk mail senders and their unwilling recipients. By all means, kill the program. But then take aim at the far more disturbing rights violations aided and abetted by third parties handling US citizens’ mail and packages.

Filed Under: congress, snail mail, surveillance, usps

DC Appeals Court Belatedly Declares USPS Custom Stamp Program Restrictions Unconstitutional

from the wrong,-but-past-the-expiration-date dept

In 2005, the US Postal Service (USPS) began to get into the crowdsourcing business. For a fee, anyone could create custom stamps that could be sold through the government’s approved stamp portal (Stamps.com), provided they survived a cursory review by inattentive public servants.

While internet-as-tapwater was still on the cusp — not quite everywhere but not quite enough to prevent AOL CD-ROMs from being used as drink coasters or table levelers — it still resulted in plenty of interaction from Americans who wanted to see their favorite person/thing on a postage stamp.

Hilarity ensued:

On the succeeding pages you’ll find stamps honoring Monica Lewinsky’s blue dress (the one splattered with Bill Clinton’s DNA); Linda Tripp; deposed Yugoslavian ethnic cleanser/war criminal Slobodan Milosevic; MIA labor racketeer Jimmy Hoffa; executed Romanian dictator/Communist oppressor Nicolae Ceaucescu; New Jersey Governor James McGreevey and alleged gay lover Golan Cipel; and high school and college yearbook photos of Kaczynski, who used the postal service to deliver his homemade bombs.

That is just the proposals submitted by the exceedingly fine website, The Smoking Gun. Having realized recent photos of the Unabomber would be rejected, TSG submitted high school yearbook photos of the bomber with a snail mail fetish, resulting in the ultimate get of a cancelled stamp featuring the mid-pubescent anarchist who, in his later, more behooded years, leveraged a reliable delivery service into a reliable bomb delivery service.

The USPS, having recognized the wisdom of the crowds, decided to divest itself of this perhaps unwise investment a few years later. But not before committing some First Amendment violations, as the DC Circuit Court of Appeals notes in this decision [PDF] that appears to be a decade-and-a-half in the making.

Anatol Zukerman is the plaintiff. In response to the custom stamp program, Zuckerman created a stamp that expressed his displeasure with a recent Supreme Court decision. The USPS decided some political criticism was more equal than others, as the DC Appeals Court explains:

Anatol Zukerman sought the services of the customized postage program to print copies of an adaptation of his drawing of Uncle Sam being strangled by a snake labeled “Citizens United” and configured as a dollar sign. However, acting through Zazzle, Inc., a third-party vendor, USPS rejected Zukerman’s proposed design due to its partisan message, even as it accepted other customers’ postage designs with obvious political content.

Obvious viewpoint discrimination, what with the USPS rejecting something criticizing the new law of the land while allowing others to big up the flag or Lee Greenwood or whatever with their proposed custom stamps.

In 2018, three years after this lawsuit was filed, the USPS decided it would ban all “political” stamps. Fantastic, but that did nothing for Zukerman, whose stamp arrived three years before the ban. Due to the shifting facts, the case bounced up to the Appeals Court, got sent back on remand, and now has reappeared in 2023, nearly eight years after it was filed.

The Appeals Court agrees with Zukerman: his rights were violated.

The main point here is that Zukerman does not seek prospective relief against any alleged future rights violations. Indeed, Zukerman’s injury does not depend on any future conduct at all. It does not depend on any future discrimination by the Postal Service; after all, the customized postage program has already been shuttered. Nor does it depend on any individual owners of grandfathered political postage using their stamps. And it does not matter that some of the other customers who benefitted from USPS’s viewpoint discrimination may never use their stamps. What matters is that they were allowed to secure stamps with political messages, to use, sell, or hold as they saw fit, while Zukerman was discriminatorily denied this opportunity.

But that violation is now meaningless, now that the USPS has abandoned the vanity stamp program that first violated his rights. So, there’s no injunctive relief (because there’s nothing to block) and there are no further damages to collect because there are no further rights violations.

Here, any ongoing constitutional violation – the Postal Service’s viewpoint discrimination – ended with the shuttering of the customized postage program. The Postal Service now applies only a viewpoint neutral policy of honoring existing customized postage, regardless of its content, while issuing no new customized postage at all.

In essence, the court is saying that because the government decided to stop violating rights (by ending a program it seemingly couldn’t run without violating rights), there’s nothing to be sued about here. The past violations are in the past. An injunction would have zero effect on a nonexistent program. Unfortunately, this means that the government gets away with violating rights simply because it unilaterally decided it would no longer engage in rights violations. Whether or not this lawsuit prompted the USPS policy change on “political” stamps no longer matters. The Appeals Court somehow manages to arrive at the conclusion that, although Zukerman’s rights were violated and that he had standing to sue, he is entitled to no relief.

The government scores an unearned win. It violated rights and got away with it by deciding — after the fact — that its program (as enforced here) was unconstitutional. Hey, I love hindsight as much as the next person. It’s the ultimate in vision options. But the government shouldn’t be allowed to violate rights just because it stopped violating rights shortly after it began violating them. The government should still pay. And Zukerman should be able to collect something more than a federal court declaration that the rights violations he sued over were, in fact, rights violations.

Declaratory relief is a waste of litigants’ time — unless it’s the government, which has all the time and money it needs, thanks to the mandatory contributions extracted from the people whose rights it far too often refuses to recognize.

Filed Under: 1st amendment, anatol zukerman, content moderation, stamps, usps, viewpoint discrimination
Companies: stamps.com

US Postal Service Sued For Seizing ‘Defund Police’ Facemasks

from the 'we-thought-we-would-get-away-with-it'-is-not-a-valid-defense dept

Two years ago, just as the COVID pandemic was beginning to radically transform day-to-day life for nearly everyone on the planet, the United States Postal Service decided to protect cops from passive criticism. One month after Minneapolis police officer Derek Chauvin personified America’s omnipresent racism by kneeling on the neck of unarmed black man George Floyd until he was dead, the USPS stepped in to seize a shipment of face masks containing phrases like “Stop killing Black people” and “Defund police.”

Facemask suppliers were in short supply during the early months of the pandemic. Oakland screenprinter Movement Ink stepped up to fill the void, sending out functional masks featuring social justice-related slogans. The small business run by Oakland resident Rene Quinonez had never had any problems with the US Postal Service prior to the shipment of these masks. But the USPS suddenly decided it had a problem with his latest products and inexplicably decided to treat the First and Fourth Amendments as disposable.

The masks, ordered by activist group Movement for Black Lives (M4BL), ran the group nearly $10,000. The initial shipment of 500 masks somehow came to the attention of the US Postal Service’s investigative wing, which decided they could travel no further than the postal depot. The recipients and the sender were given no reason for the seizure. The only information they received was a notification on their tracking info that the packages had been “Seized by Law Enforcement.”

The US Postal Inspection Service never explained why it had seized these clearly not-illegal masks. The following morning, the USPS released the items — again without explanation — and refunded Movement Ink’s shipping fees. That release appeared to have been motivated solely by the bad press the USPS was racking up, and followed two days of the USPS sitting on the shipments while refusing to explain why it had flagged the products and prevented them from being received by the group that had purchased them.

This seizure may have been the move of a single dumbass employee who thought telling cops to stop killing black people was some sort of threat. More likely, it was a government agency inserting itself into a proxy discussion on police activity by deciding it should protect the powerful from criticism. And it’s likely going to cost the entire Postal Service a bit of cash. As Ryan Reilly reports for NBC News, the government is being sued for violating the Fourth Amendment by searching and seizing this shipment, as well as violating the First Amendment for trying to prevent the messages printed on the masks from being distributed.

The lawsuit, filed on Wednesday and shared first with NBC News, accuses U.S. Postal Service and U.S. Postal Inspection Service officials of violating constitutional rights under the Fourth Amendment by improperly seizing the boxes without probable cause, a warrant, or even reasonable suspicion. The lawsuit also raises the possibility that officials violated the First Amendment by seizing the masks because of their political messaging.

Movement Ink owner René Quiñonez, who owns the screen-printing business in Oakland, California, that manufactured the masks, told NBC News that his small family business had been impacted by the seizure.

“For us as an organization, as a company, and as part of our community, our intent was to support the many activities that were going on across the country,” Quiñonez told NBC News.

As the lawsuit [PDF] notes, the USPS knew what was contained in the packages. And because it knew what words were contained in the boxes, its actions were highly suspect and most likely illegal.

As confirmed by the postal official Defendants’ internal notes memorializing the seizures and searches of those boxes, millions of packages shipped every year share the unexceptional characteristics of René’s and Movement Ink’s packages that Defendants relied on to justify their suspicionless, warrantless seizures and searches. And those same internal notes make clear that Defendants knew the packages coming from Movement Ink contained—in Defendants’ words—“BLM MASKS.” So Defendants appear to have violated not just the Fourth Amendment, but also the First Amendment, while committing several common law torts in the process.

This unexplained seizure — which followed three uneventful shipments of other masks containing similar slogans — negatively affected the small company’s business.

René and Movement Ink suffered severe reputational harm because of Defendants’ baseless seizures and searches of René’s and Movement Ink’s political mask shipments.Talks for future orders were terminated, and René could not even get a call back from many of his partners—including not only his new partners, but preexisting ones too.

For example, in addition to the recipients of the political mask shipments at issue in this case, who terminated talks for future orders, at least three other groups who had regularly ordered from and collaborated with René and Movement Ink ceased their partnerships and cut off all ties with René and Movement Ink.

According to the USPS, the packages were detained and searched for non-political reasons. Instead, they were searched for ridiculous reasons.

Defendants’ notes contend that the shipments were suspicious because of (1) “bulging contents,” (2) “frequently mailed parcels from the same sender/address,” (3) “parcel destination is a known drug trafficking area,” (4) “taped or glued on all seams,” and (5) “parcel mailed from a known drug source area.”

In other words, the packages looked like packages — sealed to prevent loss of merchandise and being sent from one area of the country to another. This justification is clearly specious. And even that belated justification is undercut by the USPS’s notes, which indicate inspectors had already determined the packages contained (in the USPS’s own words) “BLM masks.”

If the USPS moved forward with a search and seizure after determining the contents were masks with “political” slogans, it violated the First Amendment along with the Fourth Amendment. The Post Office’s “well maybe it was drugs” excuse is probably going to carry a bit of weight in the counterarguments because that’s just how the justice system works, but the rest of the allegations certainly make it appear the Post Office blocked this shipment because it didn’t like what was in the packages, not because it truly suspected what was in the packages was illegal.

Even if the Postal Service wins this lawsuit, it will still lose. The optics aren’t going to improve if the USPS can talk a judge into believing its vague statements about drug shipments add up to reasonable suspicion to investigate further, or actual probable cause for a seizure and search. What it will always look like — thanks in large part to the USPS’s own notes about “BLM masks” — is a politically motivated action that was supposed to keep people the government didn’t like from criticizing the government.

Filed Under: 1st amendment, 4th amendment, black lives matter, free speech, masks, movement for black lives, protests, seizure, usps

from the bad-idea-with-even-worse-execution dept

Late last month, it was discovered the United States Postal Service was operating a social media surveillance program. The “why” of this was never explained. Apparently, the USPS has time and money to blow, so it has something called an “Internet Covert Operations Program” (iCOP) which it uses to investigate crimes that definitely are not of a postal nature.

According to the two-page bulletin first reported on by Yahoo News, iCOP was trawling social media looking for “threats.” And the “threats” observed in the report shared with the DHS and its many, many (mostly useless) “Fusion Centers” was that the threats weren’t credible.

Great, I guess, but why is the Postal Service surveilling communications that aren’t being sent through the mail? I’m sorry if it feels a bit left out by the move to email and other electronic communication methods, but wandering around Twitter and Facebook looking for crimes seems to be both a waste of its limited resources and something that really isn’t covered by the directives of the Post Office’s investigative wing.

Well, there’s even worse news to report. Again, Yahoo News is on top of it. It appears the iCOP program makes use of facial recognition tech. And not just any facial recognition tech. It uses the worst, most questionable offering out there at the moment.

Among the tools used by the analysts is Clearview AI, a facial recognition software that scrapes images off public websites, a practice that has raised the ire of privacy advocates. The U.S. Postal Inspection Service uses Clearview’s facial recognition database of over 3 billion images “to help identify unknown targets in an investigation or locate additional social media accounts for known individuals,” according to materials reviewed by Yahoo News.

What was first just confounding is now also stupidly dangerous. Clearview’s tech has never been independently tested. Multiple law enforcement agencies have tried out the product and most feel it’s mostly useless, prone to generating false positives or just a wealth of irrelevant information.

Adding a questionable tool to a questionable surveillance program sounds exactly like the sort of thing you’d get when you ask the people in charge of the snail mail to get online. Yahoo reports other tools are in the mix as well, including software that uses keyword searches to dip into the social media firehose. And there’s one that lets investigators pretend to be people they aren’t while extremely online.

It also uses Nfusion, another software program, to create and maintain anonymous, untraceable email and social media accounts.

For what? So far, all we’ve seen is a lot of time, money, and wtf-ness produce a determination that some threats weren’t actually threats. That doesn’t exactly build confidence in a surveillance program no one outside of the federal government believes the USPS should be engaged in.

Yahoo’s report notes the program dates back to 2018, when the USPS got more involved in tracking criminal activity on the dark web. It apparently expanded its purview to the regular web. According to a USPS statement, surveilling social media platforms and users is essential to protecting postal workers from dangerous situations and threats. But there’s no evidence this program has ever accomplished that goal. All it appears to have accomplished at this point is the surveillance.

And that surveillance is being used unwisely.

Beginning last spring, following the death of George Floyd, iCOP analysts began monitoring social media to track potential violence at racial justice protests. After the Jan. 6 riot at the Capitol by Trump supporters, the analysts turned their attention to right-wing accounts, according to documents, including an intelligence bulletin previously obtained and published by Yahoo News.

There’s your First Amendment concerns. I’m sure the USPS expected its covert surveillance operations to remain covert and it would never have to address this publicly. But the program is now public knowledge and the USPS needs a better explanation than “we’re just being careful.” Any number of federal and local law enforcement agencies engage in the same surveillance. We may not like that, but at least they’ve got some jurisdiction and justification for doing so. Erecting an NSA-lite in USPS data centers makes zero sense when you’re the entity in charge of handling physical mail.

Filed Under: facial recognition, icop, surveillance, usps
Companies: clearview

Nike, USPS Reach A Licensing Deal For USPS-Inspired Sneakers

from the just-license-it dept

What a wild trademark ride for Nike over the past few weeks. You will recall that Nike found itself on our pages after its trademark dispute with MSCHF over the so-called “Satan Shoes” being pushed by Lil Nas X. What had all the makings of a very interesting case that would have involved questions about resale rights, free speech, and property rights instead ended in a mostly meaningless settlement that saw MSCHF agreeing to offer to buy back shoes that are now wildly famous and valuable and will almost certainly never be bought back. Almost immediately afterwards, interestingly, Nike found itself on the flip side of the trademark coin with the United States Postal Service, after Nike produced an experimental Air Force 1 sneaker that was clearly inspired by the postal service.

Now, while saying that these shoes were clearly inspired by the USPS would be an understatement, here again we have a situation where a trial could cover all sorts of interesting ground. Would the public be confused by any of this? C’mon now. Does Nike’s homage to the USPS somehow diminish the USPOS brand? If anything, I would think the opposite effect would be on the table. When is the last time anyone before Nike considered the postal service cool enough to be honored with a sneaker produced by one of, if not the, most famous athletic apparel and shoe manufacturers on the planet? And, ultimately, what actual harm would be done to the USPS or its trademark rights by Nike’s actions?

Sadly, we’ll never get answers to those questions as Nike has decided to abide by its stance against MSCHF and instead settle the dispute by entering a licensing agreement with the USPS.

The all-white Experimental Nike Air Force 1 footwear are now officially licensed by the USPS, according to a USPS release that was issued by a Nike spokeswoman. The statement also noted, “Any early images of this shoe were not authorized to be released by Nike.”

A spokeswoman for the USPS did not respond immediately for a request for comment about the financial terms of the deal.

So, on the one hand, fine, Nike finally lived up to the same standards it laid out in the MSCHF dispute when it was the complaining party. On the other hand, a settlement like this only perpetuates the permission culture the far too often plagues the realm of intellectual property generally and trademark particularly.

Wouldn’t it have been better for the USPS to simply accept the honor of the homage and get back to the business of delivering mail and spying on all of us?

Filed Under: sneakers, trademark, usps
Companies: nike

from the to-inquire-about-this-program,-please-send-SASE-to-iCOP dept

The United States Postal Service is still in the spying business. The USPS has been scanning pretty much every piece of mail that runs through its system, creating a massive database of metadata that serves whatever purpose the USPS imagines it does. “National security” or whatever the fuck.

When not helping the DEA find cash and the occasional drug shipment, the USPS is also apparently keeping tabs on social media users. This includes social media services with smaller, but perhaps more concerning, user bases. The name of the game is still “national security,” but it’s unclear why the Postal Service — which has a hard enough time divvying up its limited resources — is engaged in this sort of surveillance.

A two-page report [PDF] from the USPS’s “iCOP” (Internet Covert Operations Program) [again, why is this actually a thing?] — first reported by Yahoo News — details the internet sleuthery of US Postal Service Inspectors.

The law enforcement arm of the U.S. Postal Service has been quietly running a program that tracks and collects Americans’ social media posts, including those about planned protests, according to a document obtained by Yahoo News.

The details of the surveillance effort, known as iCOP, or Internet Covert Operations Program, have not previously been made public. The work involves having analysts trawl through social media sites to look for what the document describes as “inflammatory” postings and then sharing that information across government agencies.

Again, this effort seems like — at best — a redundancy. Nearly every law enforcement agency has its own social media monitoring program. The DHS and its (mostly useless) Fusion Centers routinely compile information on social media posts. The FBI pretty much considers itself a national security agency at this point and has its own surveillance programs. And plenty of freelancers compile open source info from public posts in their spare investigative time.

But the USPS is in the mix too. And it seems to be treading very close to the First Amendment line.

“Analysts with the United States Postal Inspection Service (USPIS) Internet Covert Operations Program (iCOP) monitored significant activity regarding planned protests occurring internationally and domestically on March 20, 2021,” says the March 16 government bulletin, marked as “law enforcement sensitive” and distributed through the Department of Homeland Security’s fusion centers. “Locations and times have been identified for these protests, which are being distributed online across multiple social media platforms, to include right-wing leaning Parler and Telegram accounts.”

Planned protests are what’s known as free speech round these parts, iCOPs. While there’s always a chance someone might stumble across a few true threats, casting a net over the… um… ‘Net to trawl for incriminating shitposts seems like an extremely questionable use of the government’s time.

The two-pager points out that the most worrying stuff inspectors came across emanated from Parler. But even at its most concerning, the iCOP effort came up with nothing but some wasted tax dollars and a few incursions into inalienable rights territory.

“No intelligence is available to suggest the legitimacy of these threats,” it adds.

The civil liberties experts contacted by Yahoo for comment were more baffled than aghast, although there was certainly some of the latter because it’s concerning when you can’t think of a single good reason the USPS should be surveilling social media outlets. And this seems to have nothing to do with the US Postal Inspectors’ purview, which should only cover criminal acts involving the mail system. Just because everyone’s texting and IMing instead of sending letters and postcards doesn’t mean the USPS should be allowed to start surveilling communications methods that no longer involve postage stamps.

Filed Under: post office, social media, surveillance, usps

Flip-Flop: Nike Now On The Receiving End Of Trademark Threat Over USPS Inspired Sneakers

from the die-by-the-sword dept

Nike finds itself on our pages again. We’re fresh off of the settlement Nike reached with MSCHF over the Lil Nas X “Satan shoes”. That settlement sees MSCHF agreeing to buy back at retail prices 666 modified Nike Air Max 97s after Nike sued over trademark. It could have been an interesting case, bringing in all kinds of questions about resale rights, the First Amendment, ownership of property, and more. Instead, it all ends with a posturing settlement that achieves nearly nothing, since these fought-over shoes have suddenly been moonshot into an even more rare and valuable item than they already were. But, Nike gets its ounce of litigation blood and gets to pretend this is all somehow a victory.

And perhaps that settlement will be referenced in another trademark dispute that seems to be brewing between the United States Postal Service and Nike, with Nike this time on the receiving end of the threats.

In an ironic twist, the sneaker giant is being taken to task by the United States Postal Service over an upcoming postal service-inspired sneaker reportedly being planned by Nike. The USPS’s challenge, the latest in a string of public relations headaches for the top athletic brand, all but guarantees the company will end up in court once again — but with the shoe on the other foot.

According to a USPS statement provided to Yahoo Finance, Nike’s experimental Air Force 1 sneaker “is neither licensed nor otherwise authorized by the U.S. Postal Service This is an unfortunate situation where a large brand such as Nike, which aggressively protects its intellectual property, has chosen to leverage another brand for its gain.”

Now, perhaps you’re wondering just how much borrowing Nike is doing here. Well…

So, yes, the imagery of this entire sneaker is very clearly an homage to the USPS iconography and dress. Due to that, the USPS statement also noted ominously that it will do everything necessary to protect its “IP rights”.

It’s worth noting that I don’t think this sort of thing represents trademark infringement necessarily. The chief questions in these cases are, first, will the public be confused into thinking there is some kind of official association at play here and, second, does the use in question dilute the brand. I would argue that nobody is going to think that the USPS is somehow now in the sneaker business and, because of that, nobody is going to think less or differently of the federal mail system by this use.

But, on the other hand, those are the same arguments made by those of us who pushed back on Nike’s suit against MSCHF.

According to Christopher Buccafusco, a legal expert at the Cardozo Law School in New York City, Nike might find itself on far more shaky ground than when a judge ruled relatively swiftly in its favor.

“Nike’s claims to doing this without a license are much weaker than MSCHF,” he told Yahoo Finance. The latter “is engaged in a pretty obvious set of criticism and comments on Nike and Nike’s role in corporate culture. All of the sorts of things that we think fair use are there to protect,” he explained.

Yet Nike “is not doing any of that. [It’s just saying] that’s a cool logo that USPS uses, we want to use your cool logo. It’s not a commentary on USPS,” Buccafusco added. “Nike is not engaged in a first sale. It’s not like Nike bought USPS logos and stuck them on their shoes. They created a logo that was like the USPS logo because it kind of looks cool to them,” he said.

Note here as well that Buccafusco, despite the above, went on to state that he does not think Nike should lose this case if it does in fact go to court.

But, you know, live by the sword and die by the sword and all that. Given the recent lawsuit and settlement reached, it strains the mind to see how in the world Nike plans to articulate a coherent defense for itself in this case.

Filed Under: postal service sneakers, shoes, sneakers, trademark, usps
Companies: nike

Sharyl Attkisson Lawsuit Against Rod Rosenstein Claiming She Was Hacked By Government Tossed

from the crazypants dept

Remember Sharyl Attkisson? If not, she is a former CNN and CBS journalist who made something of a name for herself both in reporting on the Obama administration, often critically, as well as for accusing that same administration of hacking into her computer and home network. Whatever you think of her reporting, her lawsuit against Eric Holder and the Justice Department over the hacking claims was crazy-pants. Essentially, she took a bunch of the same technological glitches all of us deal with on a daily basis — flickering television screens, a stuck backspace key on her computer — and wove that into a giant conspiracy against her and her reporting. She made a big deal in the suit, and her subsequent book on the matter, over some “computer experts” she relied on to confirm that she was a victim of government hacking, except those experts remained largely anonymous and were even, in some cases, third party people she’d never met. For that and other reasons related to how quickly she managed to do initial discovery, the case was tossed by the courts in 2019.

That didn’t stop Attkisson’s crusade against the government, however. In 2020, she filed suit against Rod Rosenstein, again accusing the government of spying on her and her family. To back this up, she again relied on an anonymous source, but that source has since been revealed. And, well…

The source was initially anonymous but later identified by Attkisson’s attorneys as Ryan White, an alleged former FBI informant. White is a QAnon conspiracy adherent who appears to have been the source of bizarre child-abuse allegations that Georgia attorney Lin Wood leveled at Chief Justice John Roberts last year, according to a report in the Daily Beast.

And so here we are yet again, with an extremely serious claim lodged against the federal government that relies on the tinfoil hat crowd as “evidence.” In addition, Attkisson lays out again the computer and network hacking claims, with a named “computer forensic” expert who apparently told her that there was spyware on her machine, that they had logs for where these breaches originated (such as a Ritz Carlton hotel), and that the tools used for all of this appeared to be the sort typically only available to government actors. And here too, just as in her original lawsuit, there are tons of details and claims that reveal that, like so many other conspiracy theories, there is a duality problem. Namely, that the federal government is so nefarious and great at hacking that they completely compromised nearly every machine Attkisson used at work and at home, but that same federal government was too stupid to mask the IP address from which it launched these attacks.

For example, her suit claims that these attacks were originally launched from the United States Postal Service in Baltimore, where some staff involved in infiltrating The Silk Road worked. The contention of her Qanon witness is that the spying on Attkisson somehow happened as an offshoot of a multi-agency task force against dark web dealings. And to believe all of that, you again have to believe that the government’s l337 h4x0rs didn’t bother to cover their USPS tracks.

But those are conversations about the merits of Attkisson’s case. We don’t really need to get that far, because her suit has again been tossed on essentially procedural grounds.

Bennett, an appointee of President George W. Bush, also ruled that there was inadequate indication that any surveillance of Attkisson involved activities in Maryland, which Bennett’s court has jurisdiction over.

“The Amended Complaint is devoid of any factual allegations with respect to actual conduct related to the alleged surveillance which occurred in Maryland,” Bennett wrote in his 20-page decision, issued on Tuesday. “The conclusory statements that the alleged surveillance was performed by individuals in Maryland, unsupported by any factual allegations, lie in contrast to the Plaintiffs’ numerous assertions regarding conduct performed and events which occurred in the Eastern District of Virginia.”

So, on the one hand, it’s not as if the court is saying that Attkisson’s claims are nonsense. And maybe this will lead to her refiling her lawsuit in the proper jurisdiction. On the other hand, it doesn’t inspire a great deal of confidence in the merits of her claims or her legal team that they can’t even get the case filed in the correct jurisdiction.

So, do I think this is the last we’ll hear from Sharyl Attkisson’s lawsuits over the supposed hacking of all her things? No, I doubt it. After all, she must certainly have another book to write and promote soon.

Filed Under: conspiracy theories, doj, rod rosenstein, sharyl attkisson, surveillance, usps