Category Archives: Law: Criminal Law

How Snowden Might Hurt Privacy

In addition to the good things Edward Snowden did by alerting us to the reality of NSA surveillance, there is one way in which I think his revelations may hurt privacy. This is not to say that on balance his revelations were unjustified, just that there’s a complexity about the long-run consequence of his disclosure that we should keep an eye on.

Before Snowden, the fact of NSA’s collection was a very highly protected secret. Consequently, there was only limited data sharing with law enforcement, and then only on condition that the fact of the NSA’s role never show up in court. Now that the cover is blown, so to speak, we should expect not only covert inter-agency data sharing to increase, but also a prohibition on letting it into court. Maybe not open court, but perhaps in a closed hearing, or secret brief. Likely beneficiaries are the DEA, the FBI, and maybe even some local cops in big target cities like New York or DC?

So, perversely, I expect Snowden’s revelations to have a limited negative consequence for privacy to balance against however we measure the positives.

Note: I could have sworn I posted something about this previously, but EPIC‘s Marc Rotenberg said he hadn’t seen it, and I couldn’t find it, so this one’s for you Marc.

Posted in Civil Liberties, Law: Criminal Law | Leave a comment

None Dare Call it Perjury?

FBI analysts gave consistently false testimony for 20 years, leading to hundreds of convictions, including at least 32 defendants sentenced to death. “Of those, 14 have been executed or died in prison.”

Yet the Washington Post manages to write an entire article about this conspiracy to pervert the course of justice without using the words “perjury” or “conspiracy”. Seems we’re calling it “flawed testimony” this year: FBI admits flaws in hair analysis over decades.

The issue is the (lack of) scientific validity and certainty of supposedly incriminating forensic evidence such as the comparison of hair samples and bite marks:

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

The findings likely scratch the surface. The FBI said as of mid-April that reviews of about 350 trial testimonies and 900 lab reports are nearly complete, with about 1,200 cases remaining.

The bureau said it is difficult to check cases before 1985, when files were computerized. It has been unable to review 700 cases because police or prosecutors did not respond to requests for information.

Also, the same FBI examiners whose work is under review taught 500 to 1,000 state and local crime lab analysts to testify in the same ways.

I suppose it is possible that in some cases the FBI examiners didn’t understand that they had been trained to lie, and in those cases it was merely a (in some cases literally fatal) denial of due process rather than perjury, due to a lack of mens rea. But surely at least some of the examiners, or the trainers, have to have known what they were doing?

Anyway, according to 18 U.S.C. § 3282, the statute of limitations for perjury is five years, and the most recent of these cases is 16 years old, so I guess everyone at the FBI is safe.

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On the Apple v FBI Case

Talking HeadThe government’s attempt to get Apple to build a bespoke operating system so they can brute force access to an iPhone without it erasing its data has led the media to some of us who were in the first round of the crypto wars. Today was my turn. A few seconds on CBS in the Morning, ink in a nice explainer by Steve Lohr in the New York Times. I also spoke to the LA Times and the Wall St. Journal, but I haven’t seen what if anything they made of it.

I presume they found me because I wrote the first US legal article on law and encryption: The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution. There’s also a shorter sequel that some find easier to read, It Came From Planet Clipper.

The Apple case potentially raises at least these major legal issues:

  1. To what extent the government can use the All Writs Act to compel people unrelated to a case to provide unwilling technical support–here, Apple says, 12-40 man-weeks of expert engineering–to the government’s efforts to disable a security system in order to effectuate a search warrant or similar court order;
  2. Whether ordering a firm to write code (here, a bespoke phone OS), is a form of compelled speech violating the First Amendment
  3. Whether ordering a firm to digitally sign that code (or anything else) is an impermissible form of compelled speech
  4. Whether if a court can issue this order requiring assistance to disable a security system without violating the Constitutions, it follows that Congress could also legislate to forbid people from building strong security systems that the government cannot break into unassisted — and, most critically, whether that would mean the government could forbid the deployment of strong cryptographic tools without back doors. (This last issue was the main subject of the two articles I linked to above. It’s not a simple question.)

Although the Apple issue likely will be decided on non-constitutional grounds, the parties are making a record on the constitutional issues with an eye to a set of appeals that could go as far as the Supreme Court. The issues are important and interesting, so the media is right to treat this as a big deal.

Posted in Cryptography, Law: Constitutional Law, Law: Criminal Law, Law: Privacy, The Media | 1 Comment


An Unspeakable Crime Has Been Committed In Flint– But It Should Not Be Unpunishable.

This crime makes me very angry. It should make you very angry in multiple ways, including means and motive, not to mention the paltriness of the savings or the refusal to listen to warnings from scientists. Jail really is too good for those responsible. After some thought, I’ve decided that despite this, I still don’t believe in the death penalty. But I was tempted.

Posted in Law: Criminal Law | 3 Comments


Chicago data supports effectiveness of predictive policing. But maybe not how you expect:

[T]he number of complaints an officer receives in a certain year predicts whether and how many complaints he or she will have in the following year.1 Over multiple years, the signal becomes even stronger. Officers with a baseline history of one or two complaints in 2011-13 have a 30 percent to 37 percent chance of receiving a complaint in the following two years.2 But repeaters — those with 15 or 20 incidents in the first part of the data set — are almost certain to have a complaint against them in 2014-15.

… Even after controlling for neighborhood, however, individual officers with more complaints in 2011-13 remained more likely to have complaints filed against them in 2014-15.

… [C]omplaints were not only predictive of the number and type of future complaints — they also forecast whether the department would determine misconduct. Officers with 10 or more complaints in early years of the data set were about six times more likely to have a complaint from the last two years sustained against them.

… For all the complexity of policing, there is a clear signal in the data of who the bad actors are and, to a lesser extent, whether they are going to commit misconduct.

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We’re #1 (in Fraud)

By nearly any measure, sunny South Florida is tops in fraud (AP):

Since the first settlers hacked their way into the mangrove tangles and drained much of the swampland, sunny South Florida has been virtually synonymous with shady deals and scams.

The endlessly creative crooks come up with fake Jamaican lotteries, false marriages for immigration purposes, mediocre seafood marketed as better seafood, insurance rip-offs from fake accidents and fires — even foreign substandard cheese passed off as domestic top shelf. But the big money is in a trio of major fraud trends: Medicare, mortgage and identity theft-tax refunds.

By almost any measure, South Florida is the nation’s organized fraud capital, although authorities say it’s not entirely clear why.

“Is it the weather? Is it because it’s beautiful and the fraudsters want to live here? Is it because it’s such a melting pot and you have organized crime from all ethnic groups?” said Kelly Jackson, top agent in the Internal Revenue Service’s criminal investigative division in South Florida. “Any fraud, it always seems to start here.”

Paul George, a Miami-Dade College history professor who specializes in South Florida, noted that the region’s reputation as a haven for schemers dates to the land speculation boom of the 1920s, when alligator-infested swampland was marketed to Northerners as a slice of tropical paradise. Today, with the area such a melting pot, it’s no wonder South Florida is also a cauldron of creative crime, he said.

“It goes back to the roots of Miami. It’s always been a place for starting over again,” George said. “People move here either from the north or the south. People have some anonymity, maybe they think they can pull off something here.”

They love us, they really love us.

Posted in Florida, Law: Criminal Law | Leave a comment

Eric Holder’s Finest Hour

Goodbye to most civil forfeiture. I have never been much of a fan of Holder’s — indeed I thought he was one of the most destructive members of the Cabinet in large part for his failure to prosecute torturers, but also for a bunch of other things, starting with the issue of holdover US Attorneys.

But this move is just plain good.

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.

Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund.

A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”

And if this is what he’s like once Holder is on the way out, does it not suggest we should have gotten him out a long time ago?

Posted in Law: Criminal Law | 6 Comments