Daily Archives: November 23, 2019

The American Civil Liberties Union of Minnesota, however, contends the report is contrary to video and audio evidence.

In a police report filed following the Jan. 12 arrest of Kelvin F. Rodriguez, 33, and obtained by The Globe in a public data request, arresting officer Mark Riley reported that based on his belief, Rodriguez slipped on the ice and fell while running through the Scholtes Auto World car lot. Rileys report notes that Rodriguez appeared to have gotten back up and continued running. Upon catching up with Rodriguez, Riley noted witnessing Rodriguez stand up again and put his hands in the air.

Rileys report indicates his vision was obstructed by parked vehicles in the car dealership, and that his information is based mostly on what he could hear.

Rileys ride-along that night, Evan Eggers who the ACLU accused of kicking Rodriguez in the back was interviewed by a police sergeant five days later. In the interview, Eggers, 22, corroborated Rileys report, stating: You could see (Rodriguez) running, see his head above the cars, and then all of a sudden its like he ducked down. I think thats when he fell.

Worthington Police Chief Troy Appel referred comment to legal counsel regarding the department's policy of interviewing ride-alongs. Legal counsel couldn't be reached prior to Friday's deadline.

The ACLU released dash cam footage it obtained of the arrest upon filing its civil lawsuit Oct. 14. The arrest, which was made prior to the police department wearing body cameras, takes place behind a line of parked vehicles.

Warning: The video contains expletives.

Rodriguez was connected to an assault that occurred at The Tap earlier that night, according to police reports filed by multiple officers. Rodriguez's criminal case, in which he was convicted of misdemeanor disorderly conduct, concluded Oct. 15. Because the criminal matter had resolved in court, the police reports became public.

Related:

Plaintiff in ACLU lawsuit sentenced in criminal case

The new information isnt leading the ACLU, who represents Rodriguez, to change its position.

In an amended complaint, the ACLU says Rileys report that Rodriguez slipped on the ice and fell implies a cause for his injuries other than the pressure of Rileys knee to Rodriguezs back. The ACLU calls Rileys report contrary to live video and audio recordings of the incident, and maintains that Rileys action, coupled with alleged delay of medical attention, caused Rodriguez four broken ribs, internal bleeding, a partially collapsed lung, a lacerated liver and injured spleen.

Rodriguez was reportedly airlifted by medical helicopter to Sioux Falls, South Dakota, where he spent five days in the intensive care unit.

On behalf of the defendants, defense counsel filed a response to the litigation denying each and every thing, matter and particular alleged in the complaint.

The defenses answer also indicates that, upon good faith belief, Riley and Eggers performed actions that were lawful, constitutional, proper and pursuant to probable cause. The defense also denies any deliberate indifference to (Rodriguezs) medical needs.

The defenses answer also denies that Eggers ever had physical contact with Rodriguez.

The ACLU is requesting a jury trial seeking reasonable compensation related to damages, attorney fees and declaring that Rodriguezs Fourth Amendment rights were violated.

The defense requests the litigation be permanently dismissed.

A pretrial conference on the matter is scheduled at 9:30 a.m. Dec. 12. The conference is scheduled in judges chambers at the Warren E. Burger Federal Building and U.S. Courthouse in St. Paul.

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New information released in ACLU excessive use of force lawsuit - The Globe

When the United States Supreme Court ruled last year that Fourth Amendment protections apply to location data on mobile devices, it was hailed as a significant privacy victory for individuals. But what wasnt clear is how intelligence and law enforcement agencies would handle the ruling when it came to using their authority under Section 215 of the PATRIOT Act to collect phone location data.

But the Office of the Director of National Intelligence has sent a letter to a senior member of the Senate Select Committee on Intelligence confirming that the intelligence community and Department of Justice have not been collecting mobile device location data using Section 215 since the ruling in June 2018. That section is what gives agencies the authority to gather information, including some telephone record information as part of national security investigations, under the Foreign Intelligence Surveillance Act. That power has been highly controversial for many years, and privacy advocates and some legislators have been pushing for Section 215 to be reformed to provide better privacy protections for individuals.

Last year, the Supreme Court ruled in Carpenter v. United States that mobile phone location records are afforded Fourth Amendment protections. In a letter responding to questions from Sen. Ron Wyden (D-Ore.), Assistant DNI for Legislative Affairs Benjamin Fallon said that the intelligence community has stopped collection of those records, including cell site location information (CSLI), under Section 215.

While neither the Department of Justice nor the INtelligence Community has reached a legal conclusion as to whether the traditional Title V provision may be used to obtain CSLI in light of Carpenter, given the significant constitutional and statutory issues the decision raises for use of that authority to obtain such data, the Intelligence Community has not sought CSLI records or global positioning system (GPS) records pursuant to Title V of FISA since Carpenter was decided, the letter says.

Both GPS and CSLI records can be used to reconstruct the historical location and movements of an individuals device, which raises serious privacy concerns. In July, Wyden sent a letter to Dan Coats, who was then the DNI, asking how the Carpenter ruling affected the intelligence communitys ability to collect CSLI. The response from Fallon makes clear that for right now, intelligence agencies are not collecting that information under Section 215, but that does not preclude the government from getting that data with a warrant.

Wyden said the decision not to use Section 215 to gather CLSI data should be codified in law.

The Intelligence Community has now publicly revealed that, since the Supreme Court decision more than a year ago, it hasnt used Section 215 of the PATRIOT Act to track Americans, Wyden said in a statement.

At the same time, the government is hedging its bets by not formally acknowledging that the Supreme Court case applies to intelligence surveillance. The Supreme Court has confirmed that tracking our movements without a warrant is unconstitutional. Now that Congress is considering reauthorizing Section 215, it needs to write a prohibition on warrantless geolocation collection into black-letter law. As the past year has shown, Americans dont need to choose between liberty and security Congress should reform Section 215 to ensure we have both.

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US Government Has Stopped Warrantless Collection of Phone Data - Decipher

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Right now, cops can easily track and pull over millions of people not because theyre swerving or speeding, but because theyre driving a car registered to a person with a suspended license.

Now, the Supreme Court could soon put an end to those traffic stops to uphold drivers Fourth Amendment rights, which protect against unreasonable searches or seizures. It's not always clear that the driver of the car is also the registered owner, which means people could get pulled over even if they weren't doing anything wrong.

The case, Kansas v. Glover, addresses whether cops can pull someone over because the car theyre driving is registered to someone with a suspended license. To initiate these stops, police rely on the assumption that a cars driver is also its owner, but drivers often share cars with their family members or friends. And being pulled over can subject them to searches or arrests they may not have otherwise had to deal with.

Thats especially dangerous for people of color, according to advocates. Black men like Philando Castile, Walter Scott, and Samuel Debose were shot and killed by police in what started as routine traffic stops.

The consequences for black drivers here are enormous when an officer is operating on an assumption that may or may not be true, said said Lisa Foster, the co-director of the Fines and Fees Justice Center, which participated in a brief urging the Supreme Court to put an end to the stops. We know that black drivers get pulled over in some studies, at ten times the rate of white drivers; we know black drivers are more likely once theyre pulled over to be searched.

Police say pulling someone over for a suspended license is necessary because the driver might be actively committing a crime, and the officer can always let the person go if theyre wrongly identified. Officers also want to be able to freely use automatic license plate readers which have become standard in even the smallest police departments over the last decade to pull someone over when its too difficult to manually scan a license plate, search for a description of the driver, and match that description.

But at least 11 million licenses across the country are suspended solely because of unpaid court or traffic debts and not because the indebted person is a dangerous driver, according to the Free to Drive campaign. That doesnt even include people who have lost their licenses over unpaid child support, minor drug crimes, or other non-traffic offenses.

The consequences for black drivers here are enormous."

Before automatic license plate readers, cops often only discovered a drivers license was suspended after they had pulled them over for some other traffic violation. And if the Supreme Court affirms the practice of pulling over anyone suspected of driving with a suspended license, police will essentially have a database of cars ready to stop, according to William Maurer, the managing attorney for the Institute for Justices office in Washington state. The non-profit law firm joined with the Fines and Fees Justice Center in urging he Supreme Court to reconsider the stops.

It creates a two-tiered justice system: People who are able to afford the fines and fees debt that accompany things like traffic tickets and parking tickets will not feel this intrusion, Maurer said.

The case stems from a 2016 traffic stop where a Kansas police officer scanned the license plate of a pickup truck and noticed it was registered to a person with a suspended license. Based on the assumption that the owner of the truck was also the person driving the car, the officer pulled over Charles Glover Jr., who wasnt committing any other traffic violation. It turned out the car was Glovers, and he was cited for driving unlawfully.

But Glover appealed, arguing his Fourth Amendment rights were violated because the officer didnt have a good enough reason to pull him over. The car couldve just as easily been driven by someone who wasnt Glover, but the officer wouldnt have had any way of knowing until they had already initiated the traffic stop. The Kansas Supreme Court took Glovers side, but the state appealed to the Supreme Court.

If the Supreme Court were to rule in Glovers favor, several state attorneys general, the National Fraternal Order of Police, and even the Trump administration argue that public safety would be put at risk. But if the decision is struck down, they say cops will have the official greenlight they need to to make more routine traffic stops and keep suspended drivers off the road.

During arguments earlier this month, the Supreme Court appeared to lean toward the side taken by police and prosecutors. Justices, including Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., said that officers use common sense when they assume the driver of a car is also its owner and shouldnt have to rely on much else.

Reasonable suspicion does not have to be based on statistics, it does not have to be based on specialized experience. As we've said often, it can be based on common sense, Roberts said.

Cover image: Policeman pulls over a driver for speeding, getting out of police car to write a traffic ticket. (kali9 via Getty Images)

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Cops Can Pull Drivers Over Who Aren't Breaking the Law. The Supreme Court Could Change That. - VICE

U.S. protects rights

I noticed an article in The World-Herald about a federal court in Boston ruling that warrantless U.S. government searches of phones and laptops of international travelers at airports and other U.S. ports of entry violate the Fourth Amendment.

U.S. District Judge Denise Casper said U.S. border agents need reasonable suspicion of contraband such as classified national security information or child pornography in order to search travelers devices at U.S. ports of entry without a warrant.

I wondered where in this world but in the good old U.S.A. can the rights of both the citizens of a country and those from other countries rights be protected?

Thats why I call the good old U.S.A. the greatest country on the planet.

Robert Martinez Sr., Omaha

Kudos to youth ballet

A huge shout-out and congratulations to the members of Heartland Youth Ballet for another outstanding performance.

These pre-professional dance students performed Madelines Rescue, a delightful childrens story, in front of hundreds of people last weekend, inside the beautiful Kish Theater at Marian High School.

Under the direction of Rachel Vickrey Hartley, these students were absolutely amazing. Thank you to Rachel for providing these students such fantastic opportunities to perform in so many beautiful ballets.

Our family is looking forward to the next production in April, Hansel and Gretel.

Janet and Rich Phipps, Papillion

Anxiety on campus

Rick Ruggles authored an excellent and thought-provoking article on counseling of college students in the Nov. 18 World-Herald (UNL is putting counselors in dorms to meet growing need for mental health care in college).

He mentioned that a sizable number of students suffer from anxiety, depression, loneliness and feelings of hopelessness. Why is this happening? This old school retiree offers these causes:

Many of the students are not academically prepared for college life. Statewide testing of high school students indicates that many are deficient in various areas of study. This is not a good indication that they will be successful as college students.

The misuse of social media contributes to wasted time and lack of discipline on hitting the books. What portion of students who require counseling use their phones more than two hours per day? The answer would probably be alarming.

Student debt has soared to over $1 trillion. Much of that can be attributed to undisciplined and ill-prepared students who are wasting time on a college campus.

There is no easy answer for the dilemma outlined in Ruggles article. One suggestion is offered to address this situation. Parents should be realistic before their sons and daughters are sent off to college. Check their ACT scores and their study habits. If they are not ready, help them consider an alternative path for their early and formative years.

Counter-arguments dont track

I am really having problems with the counter-arguments for President Donald Trumps guilt in the impeachment hearing:

1. The witnesses so far did not have direct contact with the president. Perhaps these civil servants more than anyone would know what was going on as they implement the orders from their superiors, including Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo and former national security adviser John Bolton. Each has refused to testify, which doesnt make sense as they certainly could clear things up if the president is innocent.

2. The aid to Ukraine was released after the whistleblowers complaint was made known. Therefore, the argument goes, Trump only attempted bribery, and his behavior is not impeachable. This is like saying attempted robbery or attempted murder is not a crime. Come on.

3. The whistleblower must testify. I really dont know what this would do as he/she only alerted superiors of the problem, and plenty of people have confirmed his/her account. Also, it is illegal to out a whistleblower.

4. The Democrats are not allowing equal time for Republicans to speak and question witnesses. Not true. I observed both parties questioning the witnesses. Reps. Devin Nunes and Adam Schiff both had time for opening remarks. Both parties attended the closed-door hearings.

5. President Barack Obama did not allocate as much aid to Ukraine as Trump has. I dont really know what this has to do with what the president did or didnt do in terms of a quid pro quo, etc.

Charlotte Shields, Papillion

Questionable accomplishments

Before deciding the merits of President Donald Trumps possible impeachment, we need to remember some of his questionable accomplishments.

1. Provided a sugar rush to the economy and the stock market by passing massive tax cuts that largely benefited corporations and the richest Americans. Sadly, these tax cuts added a trillion dollars to the U.S. deficit.

2. Nominated two conservative justices to the Supreme Court.

3. Saved money for U.S. taxpayers by not buying beds for immigrant children crowded in cages.

4. Provided paper towels to desperate hurricane victims of Puerto Rico.

5. Helped diversify Americans diets by allowing coal companies to dump mining debris into rivers, increasing Americans chances of getting mercury and arsenic in their diets.

6. Helped teach Americans concepts such as: quid pro quo, emoluments clause, campaign-finance violations, obstruction of justice and foreign election interference.

Hold on tight. There will be more questionable accomplishments to come.

David and Barb Daughton, Omaha

Gift of groceries

I would like to thank the generous lady who paid for my groceries recently at the WalMart at Interstate 80 and Highway 370. It was a pleasant surprise and such a nice gesture. It was very much appreciated by this Korean War veteran.

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Public Pulse: U.S. protects rights; Kudos to youth ballet; Reasons behind anxiety on campus - Omaha World-Herald

A 13-count federal indictment filed in court Thursday charges James W. Millegan, 62, a former Oregon securities broker, with investment account churning and tax evasion.

Millegan of McMinnville owned and operated J.W. Millegan Inc., an investment advisory business that served clients in the Portland and Salem metropolitan areas.

From March 2010 through May 2017, Millegan is accused of having bought and sold securities for clients investment accounts to generate commissions for himself. He generated more than $2.5 million in trading commissions while he cost 12 investors more than $4.3 million in unrealized investment gains, according to prosecutors.

Millegan also is accused of not paying more than $3.3 million in taxes between July 2006 and September 2016. He allegedly transferred funds to hidden bank accounts to conceal his multimillion dollars in commissions.

Millegan has not yet appeared in federal court.

The charges come more than two years after federal authorities executed a search warrant and raided Millegans home at gunpoint and took his client files, according to his lawyer. Millegan is set to make his first appearance in U.S. District Court in Portland on Dec. 6.

Mr. Millegan will appear in court as required and looks forward to clearing his name,'' said his lawyer, Oregon Federal Defender Lisa Hay. "In litigation that has already occurred, weve successfully addressed government over-reaching, failure to return property, and apparent violation of the Fourth Amendment. We look forward to continuing to protect Mr. Millegans constitutional rights and to vigorously challenging the governments allegations.

The litigation surrounding his lawyers challenge of the search warrant and seizure of Millegans files remains sealed.

-- Maxine Bernstein

Email at mbernstein@oregonian.com

Follow on Twitter @maxoregonian http://twitter.com/maxoregonian

Visit subscription.oregonlive.com/newsletters to get Oregonian/OregonLive journalism delivered to your email inbox.

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Former Oregon securities broker charged with investment fraud, tax evasion - OregonLive

Even with the looming expiration of Section 215 and other key provisions of the Patriot Act, it took the Intelligence Community almost four months to respond to a letter written by Senator Ron Wyden (D-Oregon) seeking clarification on how the Intelligence Community interprets the landmark Supreme Court decision in Carpenter v. United States and whether it is using Section 215 to collect Americans location data.

Wydens concerns were entirely justified. We know that the NSA has used Section 215 to collect cell phone location data in the past. But last year in Carpenter, the Supreme Court held that police violated the Fourth Amendment when they collected days of cell site location information about a robbery suspect without a warrant. In his letter, Senator Wyden noted that he and other senators had repeatedly asked others in the government what it saw as Carpenters effects on the intelligence community, but hadnt gotten any answers. Indeed, EFF, ACLU, and others have been asking these same questions. If Congress is to reauthorize Section 215 before it expires in December, Wyden wrote, it needs to know how this law is being interpreted now, as well as how it could be interpreted in the future.

Senator Wyden sent that letter to the then-Director of National Intelligence (DNI) Dan Coats on July 30, and then he waited. And waited. And waited.

Now, we finally have a response. Unfortunately, its not a very satisfying one. In his November 14 response, Assistant DNI Benjamin Fallon wrote that although the DOJ and ODNI have not used Section 215 to collect location data since Carpenter was decided, they had not reached a legal conclusion about whether they were authorized to do so.

We recognize this belated nonanswer for what it isa signal that the intelligence community is not taking its duties of transparency and oversight seriously. Carpenter may be the most important privacy decision from the Supreme Court in a generation, and it should have clear and immediate impact on any warrantless collection of location data as part of criminal investigations and intelligence activities alike. And even if lawyers for the intelligence community read the case differently, they should be able to reach a legal conclusion eighteen months after it was decided.

Congress and the public deserve to see these legal conclusions, especially given the NSAs track record of reaching secret interpretations of Section 215 that crumble under scrutiny by courts. Moreover, waiting this much time only to reveal such paltry information about how these far-reaching surveillance programs function is unacceptable. Politics takes time. Legislation takes time. And to leave these types of answers until the last-minute shows how little regard the Intelligence Community has for Congressional oversight of their invasive surveillance programs.

Now, a 90-day reauthorization of Section 215 and other provisions of the Patriot Act is being shoved into a continuing resolution to fund the government. This tactic will no doubt be touted as a necessity because of the short timespan before the December 15 sunset. The government might not be feeling the pinch, of course, if it took this more seriously and engaged in even the most basic transparency.

Now that we have ODNIs paltry response to Senator Wydens question, it is even more important that Congress pass Section 215 legislation that includes clarification that the law cannot be used to collect location information. Simply put, Congress and the Intelligence Community cannot put off reckoning with Section 215 indefinitely. EFF and others have been pushing for significant reforms to the lawincluding codifying Carpenters effectand we will fight just as hard as the new sunset date approaches.

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The Intelligence Community Took Months to Respond to a Key Question About Section 215, And It Still Doesn't Have Any Legal Conclusion - EFF

During Michael Bloomberg's three terms as mayor of New York City, the number of people detained under the NYPD's "stop, question, and frisk" (SQF) program skyrocketed from fewer than 100,000 in 2002 to more than 685,000 in 2011. The program was perennially controversial because it seemed to violate the Fourth Amendment and because it overwhelmingly targeted young black and Hispanic men. Bloomberg nevertheless was always a staunch defender of ituntil yesterday, when he told the congregation of a large African-American church in Brooklyn he has seen the error of his ways.

"I was wrong," Bloomberg said in a speech at the Christian Cultural Center, "and I am sorry." The dramatic reversal may be the surest sign yet that Bloomberg is entering the race for the Democratic Party's presidential nomination. But it is transparently insincere, since he cannot offer a plausible explanation for his convenient conversion, aside from crass political considerations.

"I got something important really wrong," Bloomberg said. "I didn't understandback then the full impact that stops were having on the black and Latino communities. I was totally focused on saving lives. But as we know, good intentions aren't good enough. Now, hindsight is 20/20. But as crime continued to come down as we reduced stopsand as it continued to come down during the next administration, to its creditI now see that we could and should have acted sooner, and acted faster, to cut the stops. I wish we had, and I'm sorry that we didn't."

SQF's racially disproportionate impact was always one of the main complaints against it. The issue figured prominently in a federal judge's 2013 decision deeming the tactic unconstitutional as practiced by the NYPD. It is impossible to believe that Bloomberg took this objection to heart only recently. Even after U.S. District Judge Shira Scheindlin concluded that the program violated the Fourth and 14th amendments, Bloomberg continued to defend it.

Scheindlin found that police were commonly detaining, questioning, and searching New Yorkers without the "reasonable suspicion" the Supreme Court has said the Fourth Amendment requires. She also concluded, based on data showing who was stopped and what happened afterward, that cops were deciding who was suspicious based partly on race, thereby violating the 14th Amendment's Equal Protection Clause.

Scheindlin's analysis of data on 4.4 million stops from January 2004 to June 2012 strongly suggested that reasonable suspicion was the exception rather than the rule. During this period, she noted, only 12 percent of people subjected to the "demeaning and humiliating" experience of being treated like criminals were arrested or issued a summons. And although police were supposed to frisk a subject only if they reasonably believed he was armed, 52 percent of these encounters included pat-downs, only 1.5 percent of which discovered a weapon. Even when officers reached into people's clothing after feeling what they claimed to think was a weapon, they found one just 9 percent of the time.

The fact that people stopped by police turned out to be innocent nine times out of 10 also figured in Scheindlin's equal protection analysis. "The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population," she wrote. "But this reasoning is flawed because the stopped population is overwhelmingly innocentnot criminal.While a person's race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion."

Bloomberg was outraged by Scheindlin's decision, which he immediately promised to appeal. "There is just no question that stop-question-frisk has saved countless lives," he said. "And we know that most of the lives saved, based on the statistics, have been black and Hispanic young men." He complained that Scheindlin "made it clear she was not interested in the crime reductions" and "ignored the real-world realities of crime."

The assertion that SQF "saved countless lives" is highly dubious, but Bloomberg's result-oriented reasoning was notable in any case. Rather than defending the program's constitutionality, he has consistently defended its effectiveness. In his view, the tiny and declining percentage of stops that yielded guns showed the program was workingas a deterrent. He thereby conceded that the searches generally were unconstitutional because they were not justified by reasonable suspicion. His attitude was: So what, as long as it works?

Scheindlin answered that question in her decision. "This case is not about the effectiveness of stop and frisk in deterring or combating crime," she wrote. "This Court's mandate is solely to judge the constitutionality of police behavior, notits effectiveness as a law enforcement tool. Many police practices may be useful for fighting crimepreventive detention or coerced confessions, for examplebut because they are unconstitutional they cannot be used, no matter how effective."

That point always seemed to elude Bloomberg. But now that he is about to run for the Democratic presidential nomination, he says he gets it, sort of:

By my final year in office, support for the department had eroded. And the main reason was the practice of something called stop and frisk.

Our focus was on saving lives. The fact is, far too many innocent people were being stopped while we tried to do that. The overwhelming majority of them were black and Latino. That may have included, I'm sorry to say, some of you here today. Perhaps yourself or your children, or your grandchildren, or your neighbors, or your relatives.

I spoke with many of the innocent people affected, and listened to their frustrations and their anger. And as I said at the time, I'd be angry, too.

So in 2012, in my third term, we began putting more safeguards in place, and we began scaling back the number of stops. As we did that, we noticed something important: crime did not go back up.

So we began scaling the stops back fasterand further. And by the time I left office, we had cut stops by 94 percent.

While Bloomberg implies that he saw the light on SQF by the end of his third term, he continued to defend the program after leaving office, arguing, without much evidence, that it reduced violent crime. In an interview with The New York Times last year, he suggested that his record of supporting SQF would prove to be an asset if he entered the presidential race. "I think people, the voters, want low crime," he said. "They don't want kids to kill each other." As recently as March, he was mocking the notion of launching "an apology tour," la Joe Biden, to make up for a history of supporting anti-crime policies that are now unpopular with Democratic primary voters.

Bloomberg may have changed his mind about the political risks of continuing to brag about SQF. But the idea that he suddenly realized the program was unfair and unconstitutional after defending it for nearly two decades, even if you believe it, is hardly reassuring. It makes you wonder what mistakes he would make as president that he would come to regret years after leaving office.

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Michael Bloomberg's Convenient 'Stop and Frisk' Conversion Is Transparently Insincere - Reason

Heres what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

As we flaggedlast week, the Justice Departmentsent a letterto publishers of A Warning,a book set to be released Nov. 19 by an anonymous senior official in the Trump administration who is believed to be the same person who published an anonymous 2018op-edin the New York Times. Inthe letter, Joseph H. Hunt, assistant attorney general of the Justice Departments Civil Division, warns that the books publication may violate the officials legal obligations, including one or more nondisclosure agreementsthat the official may have signed if the author is indeed a current or former senior official in the Trump administration.

Hunt states that the nondisclosure agreements are routinely required with respect to information obtained in the course of ones official responsibilities or as a condition for access to classified information.The letter goes on to say that the agreements typically require that any written work potentially containing protected information be submitted for pre-publication review.

Hunt appears to be referring to both pre-publication reviewrequirements in agreements officials sign to access classified information and nondisclosure agreements that the administration hasreportedly requiredofficials to sign that are not limited to classified information. The Knight First Amendment Institute at Columbia Universityhas challengedthe former types of agreements,providing a helpful chartdetailing which agencies typically require pre-publication review, and what that process looks like. Regarding the latter agreements, there are questions as to whether they would be enforceable.

For the traditional national security pre-publication review agreements, Hunt cites a case calledSnepp v. United States, which upheld the application of constructive trusts,allowing the government to collect proceeds from book sales when the author failed to submit the book for advance review.

The case centered on a former CIA employee who published a book in 1977 called Decent Interval,which included his critical observations on the governments involvement in Vietnam. In the lawsuit, the government asserted that the books author, Frank Snepp, had signed a secrecy agreementobligating him to submit any manuscript he wrote to the government for pre-publication review. Snepp refused to do so before publishing the book with Random House, and the government sued him for breach of contract in the U.S. District Court for the Eastern District of Virginia. The government sought to obtain the rights in and profits from the book.

On appeal of the district courts decision in favor of the government, Reporters Committee attorneys argued in briefs filed with theU.S. Court of Appeals for the Fourth Circuitand the U.S. Supreme Court that requiring employees to agree to pre-publication review as part of their employment contracts violated the First Amendment. [I]f this so-called contractand the remedies sought to enforce it are upheld this Court will have fashioned a civil Official Secrets Actdoctrine which may be imposed by contracton any government employee and will result in the most severe censorship of government information,the Fourth Circuit brief noted.

Even though the government conceded that Snepps account did not reveal classified or non-public information obtained during his employment, the appeals court ultimately upheld the lower courts ruling against Snepp. The Supreme Court alsoheldin favor of the government, saying, Undisputed evidence in this case shows that a CIA agents violation of his obligation to submit writings about the Agency for prepublication review impairs the CIAs ability to perform its statutory duties.

This case then paved the way for the government to file similar lawsuits against other former employees. In September, the DOJ filed alawsuitagainst former National Security Agency contractor Edward Snowden seeking to recoup profits from his book, Permanent Record,based on his failure to submit the manuscript for pre-publication review.

According to ABC News, the publishers of A Warninghave so farrefusedto provide any information to the Justice Department. The New York Times reports that the publishers havepledged and taken stepsto maintain the authors anonymity.

Of course, this is more a national security issue than a straight technology story, but, increasingly, issues involving anonymous speech are wrapped up in technology as so much of our communications go digital. Given the potential implications for anonymous journalistic sources, the TPFP team will continue to follow these types of matters.

Lyndsey Wajert

We have anupdatefrom the city of Fullerton, Californias hackingcase against local bloggers for allegedly accessing the contents of a Dropbox account the city shared with various records requesters, including one of the defendants: A California court of appeals issued a temporary stay of a lower courts gag orderpreventing the continuing publication of the citys documents.Last week, the Reporters Committee filed anamicus briefin support of the bloggers, highlighting the citys misuse of hacking laws and the potential harm it could pose to newsgathering.

Major tech platforms aredividedon how to moderate content from users speculating about the identity of the whistleblower whose complaint set off the impeachment inquiry. While Facebook and YouTube are removing references to the alleged CIA officers name and photo, Twitter has stated it would permit certain references. Twitters spokesperson said, Per our private information policy, any tweets that include personally identifiable information about any individual, including the alleged whistleblower, would be in violation of the Twitter Rules.TheTwitter policypermits sharing information that is publicly available elsewhere, in a non-abusive manner.(Some publications and activists have named the suspected whistleblower.) Separately, Rep. Eric Swalwell (D-Calif.)warnedvia Twitter that he will introduce legislation that could impose criminal liability on individuals who out a whistleblower.

The Justice Departmentchargedtwo formerTwitter employeeswith acting as unregistered foreign agents for Saudi Arabia, accusing them of accessing information on dissidents who used the platform. One of the former employees has been accused of accessing the personal information of thousands of users, including the account of a prominent dissident who was close to Jamal Khashoggi. The United Nations Special Rapporteur for extrajudicial, summary, or arbitrary killingsfound in Junethat Khashoggi, a Washington Post Global Opinions contributing columnist and former broadcaster in Saudi Arabia, was the victim of a premeditated extrajudicial execution, for which the state of Saudi Arabia is responsible.

The Trump administration ismoving forwardwith plans to set up a new National Vetting Center that would permit immigration agencies to access classified information consolidated from sources including the National Security Agencys electronic communications surveillance programs and human intelligence collected by the CIA. Critics have been concerned about mission creepat the center and the potential for it to target certain populations for special scrutiny.

At a Nov. 6 Senate Judiciary Committeehearing, Trump administration officials called for permanent reauthorization of the current business recordsprovision in foreign intelligence surveillance law, which was significantly expanded by the USA Patriot Act in 2001 and then amended in the 2015 USA Freedom Act. The latter passed following revelations that the provision was being used to collect telephone metadata in bulk. A bipartisan group of senators pushed back against a permanent renewal, expressing the most skepticism about reauthorizing the authority that would permit broad metadata collection, which survived, with some changes, in the Freedom Act. The NSA paused the program because it wasplaguedby compliance issues.

A federal court in Bostonruledon Nov. 12 that the search of electronic devices without reasonable suspicion of crimeviolates the Fourth Amendment. Lawyers for the American Civil Liberties Union and the Electronic Frontier Foundation brought the lawsuit on behalf of 10 U.S. citizens who traveled internationally and said U.S. border agents conducted illegal searches of their smartphones and laptops. The Reporters Committee, along with the Knight First Amendment Institute, filed a friend-of-the-courtbriefin support of the plaintiffs, detailing how suspicionless searches of electronic devices at the border chill newsgathering activity.

The U.S. Court of Appeals for the Ninth Circuitdeniedprofessional networking site LinkedIns petition for rehearing by the entire bench in a Computer Fraud and Abuse Act case against a company accused of scrapingpublic information from LinkedIn profiles. This ruling leaves in place the Ninth Circuits prior affirmation of a lower courts preliminary injunction prohibiting LinkedIn from blocking access to publicly available LinkedIn profiles. More broadly, as the Reporters Committeeexplainedin September, the rationale behind this decision could be extended in other cases to find that scraping publicly available information, an important tool in data journalism, does not violate the CFAA.

Gif of the Week: Well, its classified.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee Attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Fellow Linda Moon and Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert.

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This Week in Technology + Press Freedom: Nov. 17, 2019 - Reporters Committee for Freedom of the Press

Federal prosecutors will not pursue charges against the U.S. Park Police officers involved in the fatal shooting of Bijan Ghaisar, the U.S. Department of Justice announced on Nov. 14.

The decision came almost two years after Officers Alejandro Amaya and Lucas Vinyard shot Ghaisar five times at the conclusion of a car chase on George Washington Memorial Parkway prompted by a reported hit-and-run crash in Alexandria.

Based on the information available at this time, the Department cannot prove, beyond a reasonable doubt, that the two USPP officers committed willful violations of the applicable federal criminal civil rights statue when they shot Mr. Ghaisar, the Justice Department said in a press release.

The investigation conducted by the departments civil rights division, the U.S. Attorneys Office for the District of Columbia, and the FBI confirmed that Amaya and Vinyard engaged Ghaisar in a vehicular pursuit starting at approximately 7:30 p.m. on Nov. 17, 2017.

The pursuit stopped at the intersection of Fort Hunt Road and Alexandria Avenue in Alexandria, where the two Park Police officers shot Ghaisar multiple times while he was in the drivers seat of his vehicle.

The 25-year-old McLean resident spent 10 days in a coma at Inova Fairfax Hospital before he was taken off life support on Nov. 28, 2017.

Details of the incident beyond those basic circumstances did not start to emerge until Jan. 24, 2018 when the Fairfax County Police Department released video footage captured by the in-car camera of a county police officer who joined in the pursuit to provide back-up if needed.

The four-and-a-half minute-long recording showed that U.S. Park Police officers fired nine shots after cornering Ghaisars SUV. A subsequent Fairfax County police investigation determined that none of the departments officers discharged their weapons.

According to the Justice Department, FBI investigators interviewed more than 150 individuals, including law enforcement officers from both the Park Police and Fairfax County, to determine whether the park police officers actions that night violated any federal laws.

When deciding whether to file charges, prosecutors looked at possible violations of a federal criminal civil rights statue that prohibits the willful deprivation of a persons rights, privileges, or immunities protected by the U.S. Constitution, in this case the Fourth Amendment right to not be subjected to unreasonable search and seizure.

To establish a violation of the statute, the Justice Department says it would be required to prove the officers involved in the shooting had used constitutionally unreasonable force with intent to disregard the law.

An officer acting out of fear, mistake, panic, misperception, negligence, or poor judgment would not meet the level of intent that courts require in their interpretation of the statue, according to the department.

The Department is unable to disprove a claim of self-defense or defense of others by the officers, the DOJ said. Accordingly, the Department has closed its investigation into this matter.

The decision to not prosecute the officers involved in Ghaisars death was the latest frustrating development for the accountants family and friends, who have criticized the U.S. Park Police and federal investigators for failing to provide transparency and accountability.

Ghaisars family called the Department of Justices decision to not prosecute Amaya and Vinyard cowardly.

The Justice Department has given us no answers to why Bijan was killed, Ghaisars family said in a statement. Instead they have broken every promise made to us from keeping us informed about the investigation to personally sharing the results before broadcasting it to the world to, most importantly, protecting Bijan.

The Park Police placed Amaya and Vinyard on administrative leave with pay after the shooting pending the conclusion of the FBIs investigation, but the federal government did not publicly release their names until this past March after Ghaisars family filed a wrongful death lawsuit against the 10 officers they identified as being responsible for the McLean residents death.

Amaya and Vinyard were named as the officers who apparently fired shots, but the remaining seven officers listed in the lawsuit remain unidentified.

The lawsuit is still underway in the U.S. District Court of the Eastern District of Virginia in Alexandria, and with the Justice Department not pressing charges, the Park Police will now move forward with its own internal investigation of Amaya and Vinyard, according to The Washington Post.

Ghaisars family and friends marked the two-year anniversary of his death on Nov. 17 with an emotional rally and candlelight vigil outside the Lincoln Memorial in Washington, D.C.

In addition to acquaintances of Ghaisar, the gathering drew local, state, and federal politicians and representatives from civil rights organizations, including the NAACP, Mothers against Police Brutality, and Amnesty International.

The Ghaisar family has experienced so much pain over the last two years, not just in coping with the loss of their beloved son and brother Bijan, but also in trying to understand what led to his death, Sens. Mark Warner (D-Va.) and Chuck Grassley (R-Iowa) said in a joint statement. Todays announcement by the Department of Justicewill only add to this familys heartbreak.

Warner and Grassley said they would be formally requesting a briefing on the decision to not pursue charges in Ghaisars case from the Justice Department within the next 30 days.

Warner joined Sen. Tim Kaine (D-Va.) and Rep. Don Beyer (D-Va.) in sending a letter to the FBI in January 2018 asking for an update on the status of the bureaus investigation. The FBI responded that April that it would not discuss an active investigation.

After joining the Ghaisar familys Lincoln Memorial vigil, Beyer, fellow Rep. Jennifer Wexton (D-Va.) and D.C. Rep. Eleanor Holmes Norton (D) sent a letter to FBI Director Christopher Wray on Nov. 18 calling for him to authorize local authorities to release 9-1-1 recordings connected to the fatal shooting.

Beyer previously made the same request in a letter on Mar. 26, 2018.

We found the two-year period it took to resolve the case unacceptable and remain concerned with the result, the trio wrote in their new letter. Releasing these recordings would be an important element of rebuilding trust. The people of the National Capital Region demand high transparency and accountability standards from their local government and law enforcement entities.

When contacted by the Fairfax County Times for more information on its investigation and concluding decision, a Department of Justice public information officer directed media inquiries to the U.S. Attorneys Office in D.C.

Thank you for your inquiry, District of Columbia U.S. Attorneys Office public information officer Kadia Koroma said. However, we have no comment outside of what was issued in the press release.

The rest is here:
Justice Department will not prosecute officers in Bijan Ghaisar shooting - Fairfaxtimes.com

TORRINGTON Students at Torrington High School got a surprise break from their classes Friday morning.

School administrators went room by room, asking students to leave everything where it was and head to a waiting area. While the students were out, human and K9 officers from the Torrington Police Department, Cheyenne Police Department and the Wyoming Highway Patrol conducted a search of school facilities for drugs.

The effort, a collaborative plan between Goshen County School District No. 1 Superintendent Ryan Kramer and Torrington Police Chief Tim Hurd, resulted in the issuance of six search warrants and a 16-year-old male in custody Friday on charges of possession of marijuana, tobacco and drug paraphernalia.

Officials werent responding to a rash of drugs running rampant in the hallways at THS, Hurd and Kramer said. Rather, they want to prevent just such a situation from taking place.

In my previous district, we took preventative measures to proactively bring in search dogs to look for narcotics that might be in the building, Kramer said. I talked to Chief Hurd and we discussed the possibility of doing that here in our district and what schools we could coordinate.

Considerations of student safety and student rights were foremost in Kramers and Hurds thoughts when they were planning the search, Kramer said. Students and police both two- and four-legged officers were to have no to minimal contact, he said.

At no time were individual students singled out for detailed search or questioning, until and unless one of the K9 officers indicated to his or her human partner there was something in a backpack, cabinet, drawer or vehicle indicating probable cause that warranted a further search, Kramer and Hurd said. At that time, search warrants would be secured through proper channels.

Students rights are really important, Kramer said. We are searching the school facility and vehicles that are parked on school property.

Cheyenne attorney Bruce Moats said schools generally are permitted to conduct this type of search, but thats its a sensitive area as far as student rights are concerned.

Courts have recognized less of a a fourth amendment right for students in a school setting, Moats said. But they havent ruled specifically on K9 searches.

Critics of this raise the fact that dogs can have false alerts, he said. But the courts also said school could allow suspicion-less searches as the guardians of the children entrusted to their care.

Surprise search

Hurd and Kramer were the only ones who knew the specifics of the plan. Friday morning, emails were sent to administrators and parents and a message was sent via the district alert system, Kramer said, to prevent any concerns about student safety. A post on the districts social media site said THS was placed in soft lock-down.

Kramer said, during a soft lock-down, students and teachers are to remain in the classroom while instruction continues. They are allowed to leave in specific situations - for an appointment or to use the restroom, for example, he said. But they must be escorted by a school administrator, Kramer explained.

Letting people know there was not an emergency situation at the school was of even greater importance following a school shooting the day before in California, Kramer said.

We wanted to let parents know this wasnt a safety issue, he said. Any time we see law enforcement at school buildings, our blood pressure increases. We worry about danger for our kids.

We wanted to let them know it was a drill activity for the purpose of finding narcotics, Kramer said. There was no specific danger or specific threat for any students or staff.

Experience

Both Hurd and Kramer have experience with similar programs at previous jobs Kramer leading a school district in Iowa and Hurd as chief in Glenrock. In both instances, taking drug interdiction K9 officers into the schools had a positive effect. Juvenile crime in Glenrock, for example, dropped precipitously after Hurd instituted the routine, surprise search efforts there, he said.

The last thing we want to do is make any arrests, Hurd said. What we really want to do is show the young adults who are students in these schools and the parents were interested in keeping them off drugs.

Were not here for sanction purposes, he said. Were here to assist the schools, to make sure the parents know were not going to tolerate narcotics in their schools and they can send their students to a safe school where narcotics are not going to be if we have anything to say about it an issue or a problem for them.

While the surprise searches work to address the bigger picture of drugs in schools, Kramers experience has led him to believe they are only a tool to address the issue of drug use by teens.

I dont think this is the primary tool I would use to alleviate that problem, Kramer said. It serves the purpose for prevention, getting that public mind out there. I dont think, in isolation, it would ever have an effect on its own on student drug use or drug use in general.

Toolbox

Thats why the new searches arent the only way local schools are working to curtail drugs on campuses, student drug use and other issues that might drop youth in the hands of the legal system, Kramer said. Another program this one a collaboration between the district, local police and the Goshen County Attorneys office aims to take one step beyond into intervention.

Representatives of those three entities meet weekly, to decide how to deal with a variety of issues involving young people who may come afoul of the law both in and out of school, Kramer said. The results of those meetings covering everything from drugs to drinking to truancy are used to hopefully direct students back to the proper path, he said.

Its my hope we can either get students the help they need if we do find anything, take those active rolls, Kramer said. We take those preventative measures, whatever steps we can, to ensure that.

As a school district, were looked upon as the education vehicle, he said. Law enforcement has their duties, what theyre required to do and what their expectations are. We kind of have to mesh those in a collaborative effort and it doesnt always fit perfectly.

But the legal system could be an only first step available in some instances to get those young people the help they need, Hurd said.

Making an arrest is how we get an individual into the system so they can get that treatment, so they can get that intervention, he said. Were trying to get these students or these people who have these drugs into the system so they can be court ordered to get treatment.

And Hurd believes having that presence in the school, even if some could perceive it as confrontational, can go a long way to demystify law enforcement for the students. And its part of a larger message Hurd and Kramer both want to convey.

They get to know you, they get to know who you are, Hurd said. Were here for you. If you havent done anything wrong, you have nothing to worry about.

Were here to make sure drugs dont become an option for you, if we have anything to say about it. And were here to let your parents know youre in a safe environment and to let everyone in the community know were working proactively to keep you and all the other students safe.

See the rest here:
Surprise search nets warrants, arrest - The Torrington Telegram