Category Archives: Law: Criminal Law

Cops Push Citizen Self-Surveillance in Plea Bargains

Posted on May 24, 2017 by Michael Froomkin

You might be tempted to dismiss NY: Police are blackmailing motorists into installing cellphone monitoring devices as an aberrant act by local cops were it not sponsored by an international firm that supplies the monitoring technology.

As far as I can tell, the enforcement authority pushing the so-called ‘Distracted Driver Education Program’ (DDEP) is local Nassau County, not the ‘feds’ as reported in the article. “Blackmailing” also isn’t the word I would choose here, but by any standard it’s a pretty ferocious plea bargain deal.

Even more worrying, the attempt to find ways to get people to pay to spy on themselves and on others for the benefit of law enforcement echos this incident, Police Demand Shop Install Surveillance, Give Cops Full Feed, and also Right to Ban Customers, that I blogged about a month ago.

This is a trend that bears watching.

Posted in Law: Criminal Law, Law: Privacy, Surveillance | Comments Off on Cops Push Citizen Self-Surveillance in Plea Bargains

She Does it Again

Posted on March 17, 2017 by Michael Froomkin

Someone serious really needs to run against Miami-Dade State Attorney Katherine Fernández Rundle.

Prosecutors say no crime was committed in scalding death of Miami inmate:

The corrections officers who locked a schizophrenic man in a shower for nearly two hours — a shower that some inmates say was used as a means to punish unruly prisoners with blistering hot water — committed no crime, Miami-Dade State Attorney Katherine Fernández Rundle announced Friday.

The state attorney’s two-year investigation into the June 23, 2012, death of Darren Rainey at Dade Correctional Institution concluded that the officers — Sgt. John Fan Fan, Cornelius Thompson, Ronald Clarke and Edwina Williams — did not act with premeditation, malice, recklessness, ill-will, hatred or evil intent when they herded Rainey into the shower.

Uh-huh.

(Note the Friday afternoon dump to minimize news coverage.)

Update: The local New Times pulls no punches, Katherine Fernandez Rundle, Miami’s Top Prosecutor, Is a Disgrace.

Posted in Law: Criminal Law, Miami | 6 Comments

How Snowden Might Hurt Privacy

Posted on June 1, 2016 by Michael Froomkin

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 | Comments Off on How Snowden Might Hurt Privacy

None Dare Call it Perjury?

Posted on April 27, 2016 by Michael Froomkin

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.

Posted in Law: Criminal Law | Comments Off on None Dare Call it Perjury?

On the Apple v FBI Case

Posted on February 26, 2016 by Michael Froomkin

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

Indeed

Posted on January 17, 2016 by Michael Froomkin

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