wisconsin – Techdirt (original) (raw)
Foxconn’s Shriveled Wisconsin Subsidy Scam Stumbles Forth With Sale Of Two Key Buildings
from the putting-the-con-in-foxconn dept
In 2017 the Wisconsin GOP, with Donald Trump and Paul Ryan at the head of the parade, struck what they claimed was an incredible deal with Foxconn to bring thousands of high paying jobs to the state. The project, which Trump dubbed the “the eighth wonder of the world,” provided the former president with several years’ worth of endless free marketing for his “job creation” skills.
Except it was complete bullshit.
Initially, the state gave Foxconn a 3billionsubsidyandnumeroustaxbreaksinexchangeforapromised3 billion subsidy and numerous tax breaks in exchange for a promised 3billionsubsidyandnumeroustaxbreaksinexchangeforapromised10 billion investment into a Wisconsin LCD panel plant that would create 13,000 jobs. Over time the project consistently got smaller and smaller, with a rotating crop of excuses and a steady stream of bizarre denials that anything was wrong.
The Verge did consistently great reporting dissecting Foxconn and the GOP’s bullshit and the stream of ever-shifting and usually hollow promises. My personal favorite was when the company just threw “AI,” 5G and 8K into an incoherent jumble just to try and sound innovative:
“The enormous “Gen 10.5” LCD factory specified in the contract became a far smaller Gen 6, then was canceled, then came back. The company announced it was building something called “the AI+8K+5G ecosystem,” to be developed in a network of “innovation centers,” buildings that the company purchased only to leave empty. It looked into building fish farms, exporting ice cream, storing boats. It announced plans to build coffee kiosks and ventilators that never moved forward.”
Ultimately a 2021 deal dramatically shrunk FoxConn’s investment to 672millionwith1,454promisednewjobs(thathaveyettofullymaterialize).ThoughWisconsinhadalreadyspentatleast672 million with 1,454 promised new jobs (that have yet to fully materialize). Though Wisconsin had already spent at least 672millionwith1,454promisednewjobs(thathaveyettofullymaterialize).ThoughWisconsinhadalreadyspentatleast400 million on land and infrastructure, and Mount Pleasant took on hundreds of millions in debt. Foxconn does currently produce some servers and solar array tech in the area, but it’s a far, far cry from what was promised.
And the project is still shrinking.
Now, Foxconn tells Wisconsin Public Radio that the company is selling two of the key buildings it was supposed to be using to build “innovation centers.” Buildings that The Verge had consistently noted were sitting empty and unused for years, something Foxconn repeatedly and strangely tried to deny:
“You might recall two of these buildings, in Eau Claire and Green Bay, because The Verge’s Josh Dzieza went and looked in the windows months after they were purchased and noticed they were empty. This groundbreaking reporting prompted Foxconn’s Alan Yeung to say that the buildings were not empty at an event celebrating the purchase of yet another building in Madison. That building has never been occupied by Foxconn, and two of its floors are now for lease, as reported by the Wisconsin State Journal.”
Oddly the “AI+8K+5G ecosystem,” like most of the promised jobs — or any accountability for the politicians that created this hollow turd of a business deal — is still nowhere to be found.
Filed Under: donald trump, jobs, lcd panels, pual ryan, subsidies, wisconsin
Companies: foxconn
Wisconsin Pushing Bill That Requires Websites To Treat All Users As If They’re Children
from the the-internet-is-not-disneyland dept
I’ve talked before about the utter stupidity (and danger) of trying to turn the internet into Disneyland: a safe space for little kids, where they’ll never encounter any content that makes them upset, but plenty of states (and many people in Congress) are trying to do it anyway.
Wisconsin is the latest, and its Senate Bill 385 is pretty impressive in just how ridiculous it is. It literally requires websites to treat everyone as if they’re a child unless they’ve done age verification on you:
Under the bill, social media companies must ensure that all accounts created on or after January 1, 2019, are designated as a youth accounts that comply with the youth account requirements of the bill. A social media company may remove the youth account designation from an account if 1) the social media company estimates that the account holder is not a minor through employment of a process or program that provides a 95 percent accuracy rate of estimating age within 24 months of actual age; 2) the social media company verifies that the account holder is not a minor; or3) a parent or guardian of a minor account holder requests for the youth account designation to be removed from the minor’s account.
Basically, the internet must be Disneyland, unless you can show that you’re over 18, then you’re allowed to see controversial stuff… like detailing how Wisconsin legislators are foolish authoritarians who don’t understand how the 1st Amendment works.
Among the things that social media sites would have to do to anyone they haven’t age verified is… not allow them to use the site between 10pm and 7am. So, if you aren’t willing to give up your privacy, there goes the internet at night for you.
The nighttime lock-out is even dumber than it sounds:
ensure that the account cannot be used or accessed between the hours of 10 p.m. and 7 a.m. The time of day under this paragraph shall be calculated on the basis of the Internet protocol address being used by the account at the time of attempted access. The social media company shall ensure that an account holder does not change or bypass the time restrictions under this paragraph.
So… if a teenager uses a VPN to shift the timezone of their IP address, then… the social media site is liable for failing to ensure that the account holder wasn’t able to bypass the IP-based time restrictions? Really?
On top of that, the bill would give parents of actual children a ridiculous level of access to their children’s accounts:
The bill also provides to parents of minor account holders certain access, including full access to the account and all its posts and messages, the ability to change the time limits on the account, and to opt out the minor’s account from the youth account designation.
As we’ve pointed out with other similar bills, this does not take into account what happens if a child is estranged from a parent. Or if a child and a parent don’t get along.
Not only is this bill making the internet treat everyone as elementary school children, it also teaches kids that “your parents will be spying on you all the time.” This is a dangerous combination, especially for kids in an abusive or dangerous household.
Look, we get it. There’s an evidence-free moral panic going around about how horrible social media is for kids, even if the actual evidence shows that that’s not true at all. But, really, these nonsense moral panic bills are looking dumber and dumber.
It’s just non-stop old people scared of the internet and ignorant of how the 1st Amendment (and the internet) work. Stop it.
Filed Under: age verification, moral panic, parental access, protect the children, sb 385, social media, time blocking, wisconsin
Wisconsin City Decides It’s OK To Eavesdrop On Private Conversations In Its City Hall
from the totally-normal-stuff dept
The city of Green Bay, Wisconsin feels no private conversation in city hall should go unheard. The city feels there’s nothing wrong with installing overhead mics to snoop on citizens who might be congregating in the hall’s halls.
“I think it’s pretty customary to have the kind of surveillance systems that we have here,” Green Bay Mayor Eric Genrich told FOX 11 on Tuesday.
“Pretty customary.” Huh. This is the first I’ve heard of this surveillance variety. The same goes for the ACLU, which tends to stay on top of domestic surveillance efforts.
“This is the first sort of city hall or political location that I’ve heard doing something like this,” said Jay Stanley, a senior policy analyst for the ACLU in Washington D.C., who has been with the nonprofit since five weeks before 9/11.
Someone with nearly 22 years experience vs. someone who’s only been in this position since 2019. There’s nothing “customary” about this. If there was, we’d have heard of it.
Whether it’s normal or abnormal, the city has offered a justification for this desire to eavesdrop. And it’s the usual excuse: national city hall security.
City officials say microphones were put on the hallway ceilings on the first and second levels, outside the city clerk’s office, the city council chambers, and the mayor’s office within the past two years due to threatening interactions involving members of the public and staff.
The statement fails to clarify whether these “interactions” involved staff threatening members of the public or vice versa. But let’s assume the worst: it was the people threatening their representatives. There are ways of handling this that don’t involve listening in on every conversation between members of the public while in the city hall building.
Sure, it’s true there’s almost no expectation of privacy in public buildings, but the expectation is tied to the word “reasonable.” If no other city in the nation is doing this, the public would reasonably expect the government isn’t installing overhead mics to listen to what they’re talking about, especially when what they’re discussing likely contains criticism of government officials and/or plans to challenge legislative efforts, etc.
Deploying mics creates a chilling effect where people inside city hall won’t feel comfortable airing complaints about city lawmakers and/or organizing efforts to protest proposed laws.
The city issued a memo (received from the state’s legal reps) about these unexpected mics late last year. Following questions from Fox reporters, the memo [PDF] appears to have been revised. But it’s not clear what has been revised. The only thing pointing to a rewrite is the “revised February 7, 2023” clause added to the header.
The memo points out Wisconsin is a one-party state — something that does not require the consent of the recorded. It was written in response to Senator Andre Jaque, who apparently raised questions about the mic installations last October. The city’s attorneys say there’s no definite answer as to the legality of these recording devices. All of it depends on the “reasonable expectation of privacy.” The government of Green Bay has one definition. Most likely, the city’s residents have their own take on “reasonable.”
The state’s lawyers, despite offering what appears to be a tacit blessing for the city hall mics, are hesitant to completely sign off on the installations.
In a setting like a governmental building, it is possible for a person to engage in a public or private conversation. For example, it is likely that a private conversation meets the factors described in Duchow. and provides the parties with a reasonable expectation of privacy if the conversation is at low volume, away from passersby, and between a small group of people with the expectation that no one will report what was said. In particular,a person is more likely to have a reasonable expectation of privacy if he or she takes steps to maintain privacy but a device is still able to record the conversation. On the other hand, a person engaging in a loud conversation with strangers or a large group of people is unlikely to have a reasonable expectation that the conversation will remain private.
Since the memo does not say everything is in the legal clear, the rep asking for answers understandably believes this should halt the surveillance program until all the facts are in.
“I think the memo, the updated memo, that I provided has pretty clear discussion of it,” said Jacque, who says he has contacted Brown County’s district attorney about the situation. “There is certainly the state statute that is cited. At the very least you’d think that would compel some sort of a pause on the recording.”
But that’s not what’s happening. The most recent reporting shows the mayor is continuing to offer his full support for surveillance the state’s lawyers have suggested might not be completely in the constitutional clear. And there are more concerning facts leaking out about Green Bay’s city hall-focused surveillance efforts.
To start with, it’s always on and always monitored.
The city says the police department has access to live feeds of the city hall surveillance system, but city staff does not continuously monitor the feeds.
Second, the city government has been performing this surreptitious surveillance for years.
In its press release, the city also notes there has been an audio recording device inside the lobby of the policy department for about almost a decade and an audio recording device has been in the Metro Transit Lobby since 2009.
At no point has the public been informed about these. The city says it will place signs informing city hall visitors their conversations are being recorded. Fourteen years after the fact, the city will also let people know about the transit lobby mics.
But a lot is still unknown about the mics the city says are completely above board, even if all the details are still submerged under layers of proactive opacity. City residents were never informed the mics would be installed. They never got a chance to publicly discuss the purchase of the system, which was paid for with their tax dollars. And, most surprisingly, many city council members were unaware the system even existed, which shows just how far under the radar this “pretty customary” program has flown.
If the city reps in the know can’t be honest about what they’re imposing on the people they’re serving, residents will rightfully have no reason to trust them. This is shady as fuck. And those who do know — now that they’ve been caught out — are doing a terrible job trying to pretend this isn’t a domestic surveillance anomaly.
Filed Under: city hall, eric genrich, green bay, microphones, privacy, surveillance, wisconsin
Wisconsin Court Says Warrants Are Needed To Search Dropbox Accounts, Even If They Belong To Cops
from the seems-obvious dept
If you want access to content and communications, it seems pretty obvious you should get a warrant. There are plenty of warrant exceptions, but rooting around in things pretty much everyone believes have an expectation of privacy — whether it’s their house, their phones, or their online document storage services — generally requires a warrant.
Cloud storage is no different. Just because it’s not physically in the possession of investigation targets or suspected criminals doesn’t mean they don’t have a reasonable expectation of privacy in the contents of their accounts.
There’s not much court precedent dealing with this particular issue, though. Fourth Amendment expert Orin Kerr suggests this may have something to do with corporate policies governing users’ content.
It’s surprising how little caselaw there is on this. That’s partly because lawyers for Internet providers generally require a warrant before they’ll turn over account contents, and investigators can’t practically sue the providers over that if they disagree (it takes too long).
First off: good for service providers! Demanding a warrant even when there’s a dearth of supporting case law is a good first step. It deters fishing expeditions and discourages law enforcement from wading into untested legal waters too often.
Second, pushback like this forces law enforcement to tacitly admit they too believe warrants should be used to obtain content from third party services. If they firmly believed warrant exceptions (like the Third Party Doctrine) applied, they’d perform their own pushback, especially in cases (like this one) where time doesn’t appear to be of the essence.
Of course, doing this runs the risk of generating precedent that works against law enforcement’s warrant-optional desires. That’s what has happened here. Unsurprisingly, it took someone who knows how to work the system to get this established by a Wisconsin appeals court [PDF]: a cop.
Detective Sergeant Steven Bowers was charged with misconduct in office after sharing confidential sheriff’s department files with the producers of the “Cold Justice” TV show. Bowers used his Taylor County email address to create the account — a fact that apparently led investigators to believe no warrant was needed to access the contents of Sgt. Bowers’ account.
They were wrong. The lower court suppressed the evidence, ruling that the warrantless search violated the Fourth Amendment. The Appeals Court comes to the same conclusion — one that makes it clear the expectation of privacy still applies to the contents of online storage services, even if the account was activated using a government provided email account.
The route taken to achieve this Fourth Amendment violation was, however, made much, much easier by Sgt. Bowers’ decision to use a government email account, rather than one of his own.
Bowers had used his county e-mail address to set up his Account, although he paid for it with his own funds. Lind testified that on March 2, 2017, she performed a password reset on Bowers’ Account, which then “e-mailed a link to [Bowers’ county] e-mail address.” Given that she had access to Bowers’ county e-mail account through her role in IT, she then entered his e-mail account and used that link to change Bowers’ Account password, effectively severing Bowers’ access to his Account. Lind then personally accessed Bowers’ Account “with the [district attorney] and [Daniels] present.” According to Lind, the search of Bowers’ Account revealed both that the Murder 3 file was in the Account and that Bowers had shared the case file with individuals outside the department.
So, yeah… OpSec is still hit and miss when it comes to rookie leakers. Bowers should have known utilizing his government email account gave him less than exclusive control of it. That much was made clear by the county’s clickwrap, which informed Bowers his account was “exclusively owned” by the government he worked for.
Even so, it was still his personal Dropbox account that was accessed. The lower court first said Bowers had no expectation of privacy in this account because he had no expectation of privacy in his government email account. It rolled that decision back after taking a second look at the situation after Bowers reminded the court this search involved the contents of a Dropbox account he personally paid for, rather than one provided to him by the county government.
The Appeals Court affirms: this was a search under the Fourth Amendment. And, as such, a warrant was needed. The fact that the department was able to avoid interacting with Dropbox and utilized a government email address to reset the password to gain access doesn’t change the calculus of the Fourth Amendment issues.
[T]he department seized control of Bowers’ private Account located on servers outside the department by using Bowers’ county-owned e-mail address to change his Dropbox password. It then accessed and searched the information in his Account. The department did not receive the evidence from a third party, and it did not simply obtain specific files from Bowers’ Account. The department seized and searched at least portions of, if not all of, Bowers’ Account. Accordingly, the third-party doctrine cases that the State relies upon are inapt under the circumstances of this case. We agree with Bowers that the Court’s decisions in Miller and Smith do not clearly control the department’s actions here, as the department did much more than obtain access to metadata or Dropbox’s business records.
The State focuses on the fact that Bowers created this Account with his county-owned e-mail address. Apart from using that e-mail address, however, Bowers created the Account on his own. Bowers paid for the Account with his own money, and the Account was password protected. The department did not search its own devices to access the information in Bowers’ Account; it used the internet as a tool to access the outside server on which the Account was located.
Even if some of that might apply if the court were willing to fully oblige the terrible Third Party Doctrine arguments the state presented, it still wouldn’t matter. There’s an expectation of privacy in online storage accounts — something that can’t be undone simply because the government claims there isn’t.
Here, we conclude that society is willing to recognize that a user has a legitimate expectation of privacy in his or her Dropbox account. According to Dropbox, it boasts over 700 million users on its platform, and it specifically tells its users that “[w]ith Dropbox, your files belong to you, not us, so you can be sure we’re not reselling your data.” Dropbox, https://www.dropbox.com (last visited Dec. 13, 2022). By using a password that is not shared, these users expect their cloud-storage accounts to remain private unless the user shares the files with others, even if the information is stored by a third party. See Johnson, supra, at 886 & n.126 (“This is the equivalent of renting a safety deposit box, locking it, and trusting the bank not to break the lock.”).
Thus, under the totality of the circumstances and when considering the Dumstrey factors, we conclude that Bowers had a reasonable expectation of privacy in his Account. Law enforcement seized Bowers’ Account and searched it without a warrant, thereby violating Bowers’ Fourth Amendment rights.
Rights are for the people. The government doesn’t have any. It has powers, and that’s what these rights constrain. What ultimately matters in terms of the “reasonableness” of privacy expectations is what the public believes is reasonable. That the government believes otherwise doesn’t matter. Not in this case, at least.
Filed Under: 4th amendment, cloud storage, police, steven bowers, taylor county, wisconsin
Companies: dropbox
Wisconsin Town Lawyer Lies To Journalist, Sues Activist Who Pointed Out His Lie
from the when-bullying-backfires dept
Bogus lawsuits are a form of bullying. (Hence the need for a federal anti-SLAPP law.) Some lawsuits are merely frivolous, filed by people who have no idea how the law works. Others, like this one, are filed solely to silence critics and remind them who actually has the power in this relationship.
That’s what has happened in Mount Pleasant, Wisconsin. The town’s lawyer, Chris Smith, has sued a resident for pointing out the lie he told local journalist, Diana Panuncial. Panuncial covered the Mt. Pleasant Village Board’s decision to extend trustees’ terms from two years to three years. Her article for The Journal Times featured a quote from the town’s attorney, in which he stated the term extensions had been discussed multiple times in public meetings over the last four years.
“It’s very important that everyone understand, even though it was said very clearly, numerous times and at the open public meetings, this does not in any way, shape or form, affect the term of anyone who’s currently on the board,” Village Attorney Chris Smith said.
This change was first formerly brought to the board in April 2021, though discussion of it began back in 2018, according to Smith.
Smith’s claim didn’t sound accurate to Kelly Gallaher, an activist who heads A Better Mt. Pleasant, a local watchdog group. Gallaher routinely attends or watches public meetings and didn’t recall any previous discussions of the term extensions. She searched the town archives for previous discussions of term extensions by the board but couldn’t find anything. She directly emailed the man who had made the claim — town attorney Chris Smith — to see if he had any information about these years of open, public discussion.
Here’s how that went, according to Gallaher’s motion to dismiss [PDF]:
To clear things up, Kelly e-mailed Village Attorney Smith about his quote in the Journal Times on February 22 and asked him to provide her with “the agendas in which the Village Board (or the Committee of [the] Whole) discussed and/or debated extending the length of terms in office for public officials from January 2020 until the present.”
On February 23, Village Attorney Smith responded that during that time frame the term extension was “discussed at the Committee of the Whole on 4/19/21,” as well as at meetings on January 10 and 24 of 2022 and attached the agendas for all three meetings. Kelly wrote back the same day that the April 2021 meeting agenda “doesn’t really inform residents that longer terms for village officials was being considered—there is no agenda item which specifically refers to term lengths,” and expanded her request to ask for “all other agendas in which longer terms for village officials were specifically discussed and/or debated from January 2018 through April of 2021.”
All told, she had now requested meeting agendas discussing the term extension from 2018 through the present—the entire period in which Village Attorney Smith told the Journal Times that the change had been discussed. After Kelly followed up a week later, Village Attorney Smith admitted in a one-sentence email that: “This subject matter was not discussed at a public meeting within that timeframe, other than the 4/19/21 meeting previously discussed.”
Following this admission, Gallaher emailed the Journal Times and pointed out the statements made by Smith in the paper’s article weren’t true, providing the Journal Times with a copy of her correspondence with the town attorney. She posted the same information to her organization’s social media pages, pointing out that “the Village Attorney lied to The Journal Times” about term length discussions.
This made the town attorney angry. He sued [PDF] Gallaher for calling him a liar, claiming her posts to Facebook and Twitter referencing his lie to local journalists were defamatory. He also claimed Gallaher’s email to the Journal Times (making the same allegations about Smith’s statement to the paper) was defamatory. He proceeded with this lawsuit despite obtaining a retraction and an apology from Gallaher following his initial legal threat.
This may have seemed like an easy win for the attorney who didn’t like a local activist pointing out his lie to a local journalist. But the Institute for Justice has stepped in and it looks like the town attorney is completely in the wrong, if not completely overmatched.
The IJ points out there was nothing reckless about Gallaher’s assertions about the truthfulness (or lack thereof) of Smith’s statements to the Journal Times. In fact, there was nothing actionably false about her statements about Smith’s statements.
To be sure, [Smith’s lawsuit] alleges that Kelly did not like her current government and that she had “created hundreds of posts on social media” that “portray[] Mount Pleasant Village officials or employees negatively.” But it does not allege that Kelly knew her statements was false, or even that she should have known they were false.
Nor could it have. Indeed, the very email that the Complaint claims was defamatory makes clear that Kelly was anything but reckless. Kelly’s email to the Journal Times reporters included her correspondence with the village attorney where she asked for records that could substantiate his quote in the Journal Times article. That same email made clear that she had tried to find these records on her own by “search[ing] the village archives” with no luck. She followed up with Village Attorney Smith a week later. It was only after Village Attorney Smith admitted, without further explanation, that extending trustee term lengths had not been “discussed at a public meeting” in 2018 or at any time before April 2021 that Kelly contacted the Journal Times and made her social media posts. In other words, Kelly did research, gave Village Attorney Smith ample opportunities to substantiate his quote, and waited until he appeared to confirm that his quote was false to say anything. Far from showing that Kelly knew her statements to be false or that she acted recklessly, the very statements that the Complaint alleges were defamatory show that Kelly had every reason to believe that what she was saying was true.
Even if Smith meant that there had been discussions residents weren’t privy to, that wasn’t made clear in his comments to the press. His admission to Gallaher that nothing had been publicly discussed until April 2021 allowed her to draw her own conclusions. Because of that, Smith is suing over two opinions and one factual statement by Gallaher. And that doesn’t add up to defamation.
In other words, the allegedly defamatory statements make clear that (1) Kelly believed Village Attorney Smith’s quote should be interpreted as a claim that there were public discussions of the term limit change as early as 2018; (2) there were no public discussions of the term limit change as early as 2018; and (3) Village Attorney Smith was therefore a liar. Of these three points, only the second is factual—and that one, as far as the Complaint reveals, is perfectly true. The other two are pure statements of opinion based on disclosed facts: Kelly offered her interpretation of a public statement by Village Attorney Smith and her opinion that people who say false things in public are lying.
It doesn’t matter how Smith views these statements. It matters how the court will view these statements. And it’s extremely unlikely the court is going to side with Smith’s subjective beliefs.
Village Attorney Smith is, of course, entitled to have a different opinion. He may well believe that the best interpretation of his quote was that discussions of the term-limit change had been held in secret rather than in public and that it is therefore unfair to say he lied. But these differences of opinion do not give rise to a defamation claim under Wisconsin law.
As a town official, Smith had plenty of options that would have been less disastrous — and less thuggish — than suing a resident for arriving at a very logical conclusion. He could have issued a statement clarifying his comments to the Journal Times. He could have said he was mistaken about previous discussions. He could have been the adult in the room, so to speak. But he chose to sue. Even if he somehow manages to survive this motion to dismiss, it’s not going to rehabilitate his image. And it’s not going to convince a town that has been repeatedly abused by its representation that he’s trustworthy. All this lawsuit does is expose him as someone who can’t handle honest criticism about perceived dishonesty.
Filed Under: 1st amendment, chris smith, defamation, diana panuncial, free speech, kelly gallaher, mt. pleasant, wisconsin
Wisconsin Supreme Court Sees Nothing Wrong With Cops Acquiring Evidence A Court Had Already Suppressed
from the apparently-the-Constitution-is-more-of-a-guideline dept
I guess we can’t have nice things. You know, little things… like adherence to the Fourth Amendment. In Wisconsin, the state’s top court says [PDF] cops don’t need to worry too much about suppressed evidence if there’s another way to acquire it. (via Courthouse News Service)
Daniel Van Linn was convicted of driving under the influence, his fifth offense under this law. Officers found his vehicle crashed and abandoned and found Van Linn himself lying in a nearby yard, bleeding from his hands and head. He was transported to a nearby hospital for medical treatment. While there, an officer decided to perform a warrantless blood draw, justifying the warrantless aspect by claiming the delay caused by transporting Van Linn to the hospital created “exigent circumstances.”
This blood draw showed Van Linn’s blood alcohol level was well above the .02 percent restriction he was limited to as a multiple offender. Van Linn challenged this warrantless search of his blood in court and won. The county court said the blood draw was not justified by exigent circumstances and suppressed the evidence.
Then this happened. At the same court.
Thereafter, the State requested circuit court approval of a subpoena directed to ThedaCare Medical Center—Shawano seeking Van Linn’s medical records created in connection with his treatment on March 26, 2017. After the court signed the subpoena, Van Linn objected and filed a motion to quash. ThedaCare provided the records before the motion to quash could be heard, and the court deemed the motion moot. The records revealed that hospital personnel, acting independently of law enforcement, had taken one or more blood samples from Van Linn and performed a blood panel for diagnostic purposes, which included his blood alcohol concentration.
Van Linn appealed the circuit court’s refusal to suppress this evidence, arguing logically that allowing cops to just get the same evidence another way (despite any “independent” origin) made a mockery of the deterrence that evidence suppression is supposed to create. The lower court did not address this particular argument, relying instead on it determination that the blood alcohol level observed in the “independent” search by the hospital was not privileged information that could not be obtained this way or submitted as evidence.
The Wisconsin Supreme Court does address this issue. But it doesn’t work out any better for Van Linn, or any other Wisconsin resident who might assume suppressed evidence will remain suppressed, rather than acquired by other means and used against them during criminal prosecutions.
Van Linn and the State appear to agree that the principles articulated in Silverthorne and Murray apply equally to subpoenas and warrants, and we assume that to be the case. We do not agree with Van Linn, however, that the State is attempting to take an impermissible “back door” to avoid the circuit court’s earlier suppression ruling. Nor do we agree with him that merely by disclosing the impermissibly derived blood alcohol content in the subpoena application, the State automatically rendered the diagnostic blood test evidence the “fruit” of the earlier unlawful law enforcement blood sample.
We reach these conclusions because, most importantly, the diagnostic blood test evidence sought by the State was created completely independently of the impermissible law enforcement blood sample. The medical provider drew its own sample of blood for treatment purposes and conducted its own analysis. The purpose of the draw was not to obtain evidence of a crime but, rather, to diagnose and treat any injuries from which Van Linn may have been suffering. By declaring this evidence unavailable to the State merely because it was of the same nature as separate, unlawfully obtained evidence, we would be placing the police in a worse position than they would otherwise occupy. Thus, the purpose of the exclusionary rule would not be effectuated by suppressing the evidence.
But denying cops the opportunity to utilize virtually the same evidence that had already been suppressed would not have put them in a “worse position.” It would have put them in an identical position — one where they did not have enough lawfully obtained evidence to support a conviction. The purpose of evidence suppression is to encourage officers to behave more lawfully in future situations. Allowing them to seek alternate routes for previously suppressed evidence makes evidence suppression almost meaningless.
But the state Supreme Court insists this is fine and presumably feels it will never be abused. While officers may have been more than reasonably suspicious Van Linn had been driving drunk, this wasn’t confirmed until officers performed an illegal blood draw. That the hospital performed its own blood work during its treatment of Van Linn’s injuries should be nothing more than a not-all-that-surprising turn of events, rather than a new “independent” source of evidence.
The court says this isn’t like other suppression efforts. It says there’s no “fruit of the poisonous tree” at work here, which would turn any further evidence obtained subsequent to illegally obtained evidence useless. But that ignores a key fact about this chain of events: without the previous, illegally obtained blood draw that showed intoxication, officers would have had no articulable reason to approach the hospital with a subpoena seeking Van Linn’s medical records.
That the same court would allow this is extremely concerning. While it’s safe to assume circuit court judges don’t while their evenings away reading each others’ issued orders, the mere invocation of the criminal case number would have given the judge handling the subpoena some idea of what had already transpired in this case. The judge should have known officers were seeking evidence that had been suppressed and treated the request accordingly. This didn’t happen and the state’s top court’s decision says it’s ok for cops to try, try again if, at first, they fail to respect the Constitution.
The dissent does better. It points out law enforcement waited three months before approaching the hospital with a subpoena. This alone indicates law enforcement was hoping to find some way to neuter the effectiveness of the court’s suppression order. The officer attempted to justify the illegal blood draw by claiming time was of the essence (“exigent circumstances”). The extended delay between the first blood draw and the very eventual acquisition of this information from the hospital show law enforcement had plenty of options. Officers just decided to use the illegal option first.
A half-decade after the initial constitutional violation, Wisconsin law enforcement has finally been given some guidance on how to handle situations like these. And that answer is: if you can find a way to salvage unconstitutional searches, the courts of Wisconsin won’t stop you. Here’s how the dissent puts it:
Providing the State with an insurance policy in the event of an unconstitutional search, the majority tells law enforcement not to worry. The majority’s message is: “If you violate a person’s Fourth Amendment rights and the resulting evidence is suppressed, there will be no consequences because you can still gain the information through other means.”
[…]
This court should not promote a search first and warrant later approach. And it certainly should not be condoning an approach that undermines the essence of the exclusionary rule, which is to prevent——not to repair.
That’s the end result of this decision: suppression means nothing. The exclusionary rule doesn’t actually exclude… not if cops can find another lawful source for the same evidence and even if they wait until their original evidence is suppressed (which may take months) before they choose to go this route. This decision isn’t “lawful, but awful.” It’s just fucking awful.
Filed Under: 4th amendment, daniel van linn, evidence, warrentless searches, wisconsin
Federal Court Dismisses Another Negligence Suit Against Online Gun Marketplace Armslist But Says Section 230 Doesn't Protect It
from the it's-a-win...-but-what-is-it-worth? dept
Two years ago, the Wisconsin Supreme Court handed down a pretty important decision, only somewhat tempered by its limited jurisdiction. It decided Section 230 immunity applied to the buying and selling of guns via a third-party platform, Armslist.
Survivors of a mass shooting in Wisconsin tried to hold Armslist directly responsible for the criminal act, arguing that the site’s facilitation of sales that bypassed local regulations on gun sales (mainly background checks) allowed the shooter to arm himself illegally. The shooting may have been on the mass shooter, but Armslist was apparently an accomplice because its marketplace allowed someone who shouldn’t have had access to guns to acquire one.
The plaintiffs hoped to bypass Section 230 immunity with arguments that centered on negligence. The Copia Institute (a Mike Masnick joint) filed an amicus brief on behalf of Armslist, asking the court to reject arguments that would carve some very damaging holes in Section 230 protections.
The court found in favor of Armslist, specifically citing Section 230.
The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel’s claims against Armslist for facilitating Radcliffe’s illegal purchase. We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel’s complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel’s claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court’s dismissal of Daniel’s complaint.
Another court has found in favor of Armslist. And again, the case involves a tragedy: the killing of someone using a weapon purchased through Armslist. Unfortunately, the federal court handling this case says Section 230 has nothing to do with Armslist securing a dismissal. While it doesn’t weaken any Section 230 protections, it certainly doesn’t add anything either, ensuring lawsuits brought against third-party platforms will still have to pay to defend themselves from accusations that they’re culpable for the criminal actions of their users. (h/t Volokh Conspiracy)
The plaintiff, Richard Webber, sued Armslist after a gun purchased on the site was used to murder his daughter. The underlying incident is horrific. This is from the Wisconsin federal court decision [PDF]:
As a result of Armslist’s design decisions and business practices, Plaintiff alleges, Schmidt’s estranged husband, who was prohibited from owning a firearm under Wis. Stat. §§ 941.29(1m)(g), 813.25 and 18 U.S.C. § 922(g)(8), was able to purchase a firearm from a private seller who listed a firearm for purchase on Armslist.com. Shortly thereafter, Schmidt’s estranged husband used the firearm he purchased from the private seller to fatally shoot Schmidt after Schmidt had arrived at her mother’s house to drop off her three children. Schmidt’s estranged husband then committed suicide in the backyard of the house. Plaintiff alleges that, but for Armslist’s failure to enact adequate safeguards, and but for Armslist’s conscious decision to design Armslist.com in an irresponsible, unreasonable, and unlawful manner, Sara Schmidt’s estranged husband would not have been able to purchase the firearm that he used to kill her.
From that tragedy arose a list of alleged violations and harms, including common law negligence, civil conspiracy, and wrongful death — all pursued under Wisconsin state law but handled by a federal court.
After deciding it has jurisdiction to preside over state law claims, the court details why it thinks Section 230 does not apply to this case — one that involves a buyer and a seller utilizing the marketplace created by Armslist, but does not involve any direct action by Armslist.
In dismissing Armslist’s Section 230 immunity defense, the court cites not only Justice Clarence Thomas (who holds some… questionable… views on Section 230) but also quotes the Seventh Circuit’s misreading on how the “Good Samaritan” clause of the law has been applied by platforms.
But even setting aside the tricky task of discerning legislative intent, it is the text of the statute from which a court should draw its true meaning. Subsection (c) is entitled “protection for ‘good samaritan’ blocking and screening of offensive material.” As the Seventh Circuit has noted, this title is “hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services.” Doe, 347 F.3d at 660. Furthermore, nothing in the text of § 230(c)(1) indicates an intent to provide sweeping immunity for providers or users of interactive computer services who face claims based on their own misconduct.
The “Good Samaritan” clause does not encourage a hands-off approach. It actually encourages vigorous moderation efforts by ensuring platforms cannot be sued for removing content platform owners find objectionable, rather than limiting themselves to clearly illegal content.
From these, it gets worse. The court decides this lawsuit isn’t about the action of two third parties who utilized a platform to perform an illegal gun sale. It says this is about Armslist being less than cautious about who it allows to utilize the service, shifting the culpability from the murderer and the party closest to the act of murder (the person who sold him the gun) one more step up the chain to the platform that merely allowed people to sell and buy guns.
Even if § 230 applies to this type of case, Plaintiff’s claims do not seek to treat Defendants as the “publisher or speaker” of the post in question. Here, Plaintiff seeks to hold Defendants liable for their “role in developing or co-developing [their] own content.” Specifically, Plaintiff faults Defendants for failing to prohibit criminals from accessing or buying firearms through Armslist.com; actively encouraging, assisting, and facilitating illegal firearms transactions through their various design decisions; failing to require greater details from users, such as providing credit-card verified evidence of users’ identities; failing to require that sellers certify under oath that they are legal purchasers; and failing to provide regularly updated information regarding applicable firearms laws to its users, among many other things. In essence, the complaint “focuses primarily on Armslist’s own conduct in creating the high-risk gun market and its dangerous features,” not on the post in question. This type of claim, then, does not seek to treat Defendants as the “publisher or speaker” of the post that led to Schmidt’s killer obtaining a firearm; rather, it seeks to hold Defendants liable for their own misconduct in negligently and recklessly creating a service that facilitates the illegal sale of firearms. 47 U.S.C. § 230(c)(1). For these reasons, the Court concludes that § 230 does not immunize Defendants from liability in this case.
But having successfully dodged Section 230 immunity isn’t enough to find Armslist culpable for the actions of a person who purchased a gun through the site. There’s nothing that connects the violent act to Armslist other than the weapon used to commit it. And, as the court points out, if it wasn’t a gun purchased on Armslist, it might have been a gun purchased elsewhere… or any weapon at all, given the facts of this case.
It is clear from the complaint that Schmidt was shot and killed by her estranged husband, not Defendants, with a handgun he purchased from another party, again not Defendants. Based on the facts alleged, there is no reason to believe that even if Schmidt’s estranged husband had not purchased a gun from a person who posted an advertisement on the Armslist website, Schmidt would still be alive. Armslist is hardly the only source of guns in this country, and one does not even need a gun to take another person’s life. Schmidt was killed by a person so determined to take her life, so consumed by hatred, that he was even willing to take his own. The likelihood that such a person would have found another source from which to obtain a firearm or another way to take Schmidt’s life is more plausible than Plaintiff’s claim that she would still be alive. Absent cause, Plaintiff’s negligence claim against Defendants fails.
Armslist escapes. But not by much. And the decision doesn’t bolster Section 230 protections. Instead, it encourages litigants to pursue esoteric claims in hopes of bypassing immunity, rather than be forced to confront the fact they’re seeking to hold a platform responsible for the violent acts of its users. That fact alone should have given Section 230 immunity better consideration than it received here. And it’s pretty disheartening to hear federal courts quoting Justice Clarence Thomas’ unhinged (but published) dissenting rants about a law he clearly doesn’t respect, much less understand.
Filed Under: guns, liability, secondary liability, section 230, wisconsin
Companies: armslist
Want To Understand Why U.S. Broadband Sucks? Look At Frontier Communications In Wisconsin, West Virginia
from the do-not-pass-go,-do-not-collect-$200 dept
Fri, Oct 22nd 2021 09:43am - Karl Bode
So for years I’ve noted if you really want to understand why U.S. broadband is so crappy, you should take a long, close look at Frontier Communications in states like West Virginia. For decades the ISP has provided slow and expensive service, routinely failed to upgrade or repair its network, and generally personified the typical bumbling, apathetic, regional monopoly. And its punishment, year after year, has generally been a parade of regulatory favors, tax breaks, and millions in subsidies. At no point do “telecom policy leaders” or politicians ever try to do much differently.
Case in point: Frontier, fresh off of an ugly bankruptcy, numerous AG and FTC lawsuits over repair delays, and repeated subsidy scandals, is positioning itself to nab yet more subsidies from the state of Wisconsin. Frontier is asking the state of for $35 million in additional grants, despite the fact Wisconsin was just one of several states whose AGs recently sued the company for being generally terrible. Folks familiar with the company argue it shouldn’t be seeing a single, additional dime in taxpayer resources given fifteen years of scandal:
“I hope the state will seriously consider the track record of companies to understand which ones have a long record of meeting the needs of residents and businesses,? Christopher Mitchell, director of the Community Broadband Networks Initiative, a Minnesota-based think tank supporting communities? telecommunications efforts, said in an interview with The Badger Project.
“Frankly, Frontier?s record suggests it should not receive a single additional dollar from any government,? he added. ?Local companies, communities, and cooperatives have proven to be much better at turning public subsidies into needed networks.”
Keep in mind Frontier has been accused of taking state and federal subsidies on several occasions, misleadingly billing the government extra, then basically just shrugging when asked for the money back. To date nobody has done much about any of it. Also keep in mind Frontier routinely lobbies for (and often ghost writes) state laws banning towns and cities from building their own broadband networks. They’re also directly responsible for the gutting of state and federal regulatory and consumer protection authority. Facing little real competition and feckless oversight in most states, nothing much changes. By design.
Historically, state politicians and regulators ignore these kinds of problems, because, it should be made clear, they’re corrupt. Regional monopolies find it immensely easy to throw a few bucks at state leaders in exchange for just mindless rubber stamping of whatever goal they’re interested in (merger approvals, new subsidies, the gutting of consumer protections, tax breaks, zero accountability). That this strategy continually results in terrible, substandard, and expensive service never seems to enter into the picture. It’s just rinse, wash, repeat in a long line of states.
The Wisconsin State Public Service Commission is expected to grant or deny Frontier’s request by the end of the month. The company is also first in line to grab new federal broadband funding from the Biden FCC. It will be curious to see if just a parade of unprecedented scandal reduces Frontier’s ability to have millions in additional taxpayer money thrown at it in the slightest. My guess is it doesn’t. At all.
There are two, indisputable reasons U.S. broadband generally sucks: regional monopolization and the corruption that protects it. But when you see news articles, regulators, many think tankers, or politicians talking about broadband, notice how many are capable of even clearly acknowledging that fact, much less genuinely interested in actually doing anything about it.
Filed Under: broadband, competition, dsl, fcc, subsidies, telecom, upgrades, west virginia, wisconsin
Companies: frontier
Court To Sheriff: Sending An Officer To Tell A Teen To Delete Instagram Posts Is So Very Obviously A Rights Violation
from the [tapping-top-of-house-visit]-you-can-fit-so-many-rights-violations-in-here dept
Wisconsin is apparently America’s Karen.
Public schools in Wisconsin referred students to police twice as often as schools nationwide in 2017-18 — nine students were referred to police for every 1,000 students enrolled compared to the national rate of 4.5, a Center for Public Integrity analysis of U.S. Department of Education data found.
Bring cops into schools and schools start thinking every disciplinary problem is a criminal problem. Far too many police departments lending officers to schools agree. Things may have improved over the last couple of years, but this is the latest data from Wisconsin’s public schools and it’s a pretty grim picture of school administrators abdicating their responsibilities and allowing law enforcement to pick up the slack.
Last year, a Wisconsin student sued the local sheriff and one of his officers for turning an Instagram post of hers into a criminal matter. The student, Amyiah Cohoon, had returned from a spring break trip with her school band and been admitted to a hospital with COVID-like symptoms. Her Instagram photos of her in the hospital were accompanied by statements that she had the coronavirus and wouldn’t be back to school anytime soon.
It turned out Cohoon did not have COVID. School administrators decided Cohoon was trying to provoke a panic by falsely claiming she did. They sent out a statement basically calling Cohoon a liar. Then they sent the local sheriff’s department after her. This is from her lawsuit:
During the evening on March 27, Defendant Patrol Sergeant Cameron Klump from the Marquette County Sheriff’s office came to the Cohoons’ home. Amyiah answered the door, and Sergeant Klump said he needed to speak with her father.
After Mr. Cohoon came outside, Sergeant Klump explained that the school “superintendent” had complained to Defendant Sheriff Joseph Konrath about one of Amyiah’s Instagram posts. Sergeant Klump showed Mr. Cohoon a screenshot of Amyiah’s third Instagram post. A true and accurate copy of the cropped screenshot Sergeant Klump showed Mr. Cohoon is attached hereto as Exhibit 5.
Sergeant Klump stated that he had direct orders from Sheriff Konrath to demand that Amyiah delete this post, and, if she did not, to cite Amyiah and/or her parents for disorderly conduct and to “start taking people to jail.”
Faced with possibly having her parents arrested, the student deleted her posts. Then she sued. And the court has now told Sheriff Joseph Konrath what he already likely knew: threatening her (and her parents) with arrest over Instagram posts was a clear violation of her First Amendment rights. (h/t Gabriel Malor)
The opening of the ruling [PDF] makes it clear where this is headed:
The SARS-CoV-2 virus and COVID-19 have had a tremendous impact on American society. But, as this case makes clear, that impact has its limits and, more specifically, does not extend to overriding the protections of the First Amendment.
And the Sheriff was limited to making arguments about why this wasn’t a rights violations, rather than quibbling about contradictory representations of the incident that forms the basis for this lawsuit. There’s no argument to be had here because the whole thing was caught on tape.
The parties agree that the facts are not disputed. Indeed, the entirety of Sergeant Klump’s encounter with Amyiah and her parents is captured in a dash-cam video. That video, along with other record evidence, establishes that Defendants violated Amyiah’s free-speech rights by demanding that she take down her social media posts or face criminal citation or arrest.
Continuing in the spirit of things that cannot be questioned, the court says there’s not even the slightest shade of gray in this series of events. This was absolutely a violation of rights.
Even if short and often grammatically scurrilous, social media posts do not fall outside the ambit of the First Amendment. To the contrary, they are exactly what the First Amendment seeks to protect.
The best defense the Sheriff offered was an inadvertent punchline — one that demonstrates the person raising the argument understands neither the First Amendment nor the precedent they’re citing incorrectly.
But Defendants disagree. In their view, Amyiah forfeited her constitutional protection when she published a post that caused concern in the community and led to an influx of phone calls to the Westfield School District and Marquette County Health Department. According to Sheriff Konrath, this was akin to “screaming fire in a crowded movie theater.” Even setting aside that the popular movie theater analogy actually referred to “falsely shouting fire in a theater and causing a panic,” Schenck v. United States, 249 U.S. 47, 52 (1919) (emphasis added), Defendants’ argument still fails.
Even if the government has an interest in protecting the public and heading off potential panics, its interests do not automatically override the rights guaranteed to citizens. The balancing test doesn’t even need to be deployed here because the government’s actions were so clearly in the wrong.
Labeling censorship societally beneficial does not render it lawful. If it did, nearly all censorship would evade First Amendment scrutiny. […] Amyiah’s post is not captured by any of the categorical exceptions to the First Amendment, so this Court will not balance the social utility of curtailing it against its government-assigned value.
The correct response in situations like these is more speech. It certainly isn’t the dispatching of officers to a teen’s house to deliver threats of arrest.
The government here had every opportunity to counter Amyiah’s speech, but it opted instead to engage in the objectionable practice of censorship.
Every argument raised by the government is immediately shut down. Wrong all the way down.
The Marquette County Sheriff had no more ability to silence Amyiah’s posts than it would to silence the many talking heads on cable news, who routinely pronounce one-sided hot takes on the issues of the day, purposefully ignoring any inconvenient facts that might disrupt their preferred narratives. Indeed, even if Amyiah’s posts had been untruthful, no court has ever suggested that noncommercial false speech is exempt from First Amendment scrutiny.
Furthermore, the demand was accompanied by threats to Cohoon and her parents. Even if she wasn’t present for the entire conversation, she inferred the intent of the visit correctly. She deleted the posts while the deputy was still speaking to her father and she later deleted another post discussing her hospital stay, fearing officers would return again if that one wasn’t removed. And yet the Sheriff claimed this was all voluntary because no officer ever ordered her to remove the posts. Wrong, oh so very wrong again, says the court:
Defendants ask the Court to lump Sergeant Klump’s efforts into the “attempts to convince” basket. Amyiah agreed to delete her Instagram post prior to learning of Sergeant Klump’s threats. How then, Defendants ask, can she possibly claim coercion? This argument ignores the inherently chilling and coercive nature of a uniformed police officer showing up at a teenager’s home and demanding that she cease otherwise protected speech.
Sergeant Klump’s dash-cam footage shows that it was not his persuasive rhetoric that led Amyiah to delete her social media post, but rather his demand made under the auspices of the Sheriff’s Department: “[W]e need to get it taken down.” That was coercion by any metric. The state cannot dispatch a law enforcement officer to the home of a teenager to demand that she remove an Instagram post that government officials disagree with and then claim the officials were only engaging in the Socratic method. It is possible that a Westfield administrator or Marquette County Health Department employee could have engaged in a mutually-respectful discussion with Amyiah to try to convince her to retract her post voluntarily, but that is not the method they chose. They elected, instead, to rely on the coercive power of the Sheriff’s Department, and any attempt to obfuscate that fact by casting Sergeant Klump as an earnest public relations expert must fail.
Imagine your tax dollars being spent to pay the government and its lawyers to argue this badly against your own interests. This is money being burnt by people too obtuse and too shortsighted to notice they’ve set something on fire. Every defensive effort in this suit is a last-gasp effort.
Here’s the court dismantling the defense that the Sheriff’s office truly believed a law was being broken, thus excusing every subsequent rights violation.
Defendants’ probable-cause argument dramatically understates the probable-cause analysis for disorderly conduct. If accepted, Defendants’ position would largely gut the First Amendment’s protection for free speech, allowing police officers a free hand to wrongfully arrest anyone engaging in protected speech so long as the offending officer could point to a possible disturbance or perceived anxiety among those who opposed the speech. Accordingly, the Wisconsin Supreme Court has held that speech that “falls within the protection of the First Amendment . . . may not be punished as disorderly conduct.” In re Douglas D., 2001 WI 47, ¶47, 243 Wis. 2d 204, 239-40, 626 N.W.2d 725, 743. Defendants offer no answer to this precedent, which removes any basis for probable cause.
The government loses. It was a loss its representatives — both from the school and from the Sheriff’s office — should have seen coming. None of this needed to happen. But no one with any power had the self-awareness to be the adult in the room nor the overall awareness that sending law enforcement out with demands to remove social media posts was exactly the sort of thing the First Amendment was erected to guard against.
Filed Under: amyiah cohoon, cameron klump, covid, free speech, marquette county sheriff, police, wisconsin
Companies: instagram
Reverse Warrants Show Feds Sought Data On Thousands Of Police Brutality Protesters In Kenosha, Wisconsin
from the it's-ok!-the-NSA-said-this-was-cool-and-legal! dept
Is there anything law enforcement won’t use geofence warrants for? The answer appears to be “no.”
A recent Google transparency report shows exponential growth in the geofence (a.k.a. “reverse“) warrant market, one that Google has inadvertently cornered by collecting more GPS info than any of its competitors. These aren’t traditional warrants. Traditional warrants use probable cause to justify searches of places, people, and objects (like vehicles).
“Reverse” warrants are just that: a dragnet cast by cops to find a suspect in a pool of possibilities, most of whom are not criminals. Working backwards from a long list of GPS data points and cellphone information, investigators try to find the most likely suspect and then move forward again, this time using some actual probable cause. They’re not always correct. And they seem largely unconcerned that demanding location data on hundreds, if not thousands, of innocent people perverts the process.
A recent report by Russell Brandom for The Verge shows the trend towards bulk collection continues. And, as reported previously, it involves federal agents who want to convert state charges to federal charges (using imaginative readings of the phrase “interstate commerce” to do so) to generate as much pain as possible for people who participated in protests against police violence, whether lawfully or not.
Protests in Kenosha, Wisconsin following the shooting of a black man by police quickly turned violent. Not only were businesses burned and destroyed, a 17-year-old interloper named Kyle Rittenhouse convinced his mom to drive him to Kenosha from his home in Antioch, Illinois. Once there, the armed Rittenhouse engaged in his vigilante fantasies, shooting three protesters, killing two of them.
The ATF was more interested in the arson, though. And it thought the best way to generate investigative leads was to gather information on thousands of protesters, almost every one of which did not start any fires.
A series of six newly unsealed warrants (1 2 3 4 5 6), some previously reported by Forbes, show a persistent effort to use Google’s location services to identify Android users in the vicinity of arson incidents.
Issued in quick succession on September 3rd, the warrants came from a team of 50 arson investigators from the bureau of Alcohol, Tobacco and Firearms, deployed to Kenosha to prosecute property damage cases connected to the protests. Using the warrants, The agents targeted seven different geographical zones, asking to identify anyone located within that area during a span that could stretch as long as two hours. The result was a kind of location dragnet, spread over some of the busiest times and locations in the first days of the protest.
The government wants haystacks. It firmly believes it can find needles. And it thinks it can do that often enough and with enough certainty no innocent hay will be treated like a criminal needle. That’s insanely arrogant. The more data points you have, the more chances you have of picking the wrong one.
But maybe it really doesn’t matter in these cases. After all, the DOJ and its components have proven more than happy to inflict collateral damage on protesters unhappy with the current state of law enforcement. If this ends in a few bogus arrests, does it really matter?
It might matter to the courts. A few judges have blocked these warrants, calling them vague and unconstitutional. And courts might be receptive to the arguments of those wrongfully arrested as a result of the use of these “reverse” warrants. The only probable cause the government has when it issues a geofence warrant is that it’s likely Google houses the information it wants to collect. But it needs more than that. If all the government needed was the solid assumption a non-party/non-suspect possessed information it wanted, warrants could be completely unmoored from criminal investigations and used to grab any information the government has an interest in.
Those are legitimate concerns. Unfortunately, law enforcement doesn’t share these concerns.
[One] warrant looks at a suspected arson of the Kenosha Public Library, based on lighter fluid and rags that were discovered in a northeast window well alongside minimal fire damage. Without direct witnesses to the fire, police set a two-hour window and a geofence covering the middle third of the downtown’s largest public park space. It was a significant span of time on the busiest night of the protest in an area that provided a natural meeting place for anyone who had taken to the streets that night.
I guess the ATF sees no harm in potentially rounding up several innocent protesters and subjecting them to facetime with federal agents — federal agents who, by the way, can ring people up on charges simply for lying to them. The only thing standing between these warrants and some pretty ugly — but inevitable — outcomes is the courts. Google can anonymize information as much as possible, but follow-up demands are predicated solely on investigators’ beliefs that they’ve found criminal suspects. How accurate those hunches are won’t be discovered until they’re in possession of identifying info — info that can be traced back to the original dragnet supported by nothing more than the assumption grabbing all this data will allow investigators to continue their investigations.
Filed Under: 1st amendment, 4th amendment, atf, geofence warrants, kenosha, police, protests, reverse warrants, surveillance, wisconsin