Daily Archives: April 23, 2021

A bipartisan group of U.S. legislators have introduced a bill that aims to close legal loopholes in federal law permitting data brokers and other firms to sell peoples personal information including mobile location data and other information gathered and used for advertising to the government and law enforcement without a court order.

Implications for the advertising industry

The proposal has a direct connection to the world of advertising data. For example, data brokers such as aggregators of mobile location data supply advertisers with information used to track people within specific geolocations and target ads to them. The bill specifically covers data such as location data or the contents of a communication (think a text message or email or photo), and a statement about the legislation provided by Wydens office, names data provider Venntel as one selling location information to government agencies. But its not just about location data. The statement also mentions Clearview AI, which has used photos from social sites to train its facial recognition system which is employed by law enforcement.

The digital ad industrys largest trade group, the Interactive Advertising Bureau, supports the bill and has been among entities that have engaged with lawmakers and their staff since late last year in drafting it. The IAB is going to support the bill,Dave Grimaldi, EVP for public policy at the IAB told DIgiday. Other supporters include theNetwork Advertising Initiative, American Civil Liberties Union, Electronic Frontier Foundation and Mozilla.

Some of these same lawmakers are inspecting digital ad firms like AT&T, Google and MagniteAs with a lot of legislation, this bill is representative of a larger effort among some of the same legislators to scrutinize how data flows from commercial enterprises, such as those operating in the digital ad industry, to foreign governments or other entities for whom that data may not originally be intended. Some of the legislators who have signed onto this bill also recently have criticized and questioned the use of mobile location data and other information gleaned from the digital ad bidstream pulsing through automated real-time ad auctions. Three of the bills co-sponsors Wyden, Warren and Democratic Sen. Sherrod Brown of Ohio sent letters in early April to companies with digital ad services: AT&T, Index Exchange, Google, Magnite, OpenX, Pubmatic, Twitter and Verizon.

The lawmakers want to know what types of data about peoples devices, apps and website behavior ends up in ad auction bidstreams, whether these firms have restrictions on how that information is sold or shared, if they conduct audits to ensure contractual obligations of partners are met and which foreign-based companies they have distributed bidstream data to. The companies have until May 4 to respond, and none have responded yet, according to Wydens staff.

Bidstream data and why legislators care about itLegislators have referred to data siphoned from the bidstream as a tool of surveillance that can be exploited by government intelligence agencies and police. Bidstream data gives advertisers who bid on ad space through real-time exchanges information about people who will be reached with a targeted ad. It can include demographic, interest data and latitudinal and longitudinal coordinates showing peoples precise locations. These data points can be extracted by ad tech and data firms that participate in ad auctions even if they dont win the bid. They suck up this information to produce other data products or to package it to sell as targetable audiences of people in the market for, say, sneakers or an SUV.

This bill is consistent with apattern of interest in the alternative uses of datafueling the digital ad industry. Those letters sent in April to ad tech firms state, Few Americans realize that some auction participants are siphoning off and storing bidstream data to compile exhaustive dossiers about them. In turn, these dossiers are being openly sold to anyone with a credit card, including to hedge funds, political campaigns, and even to governments.That same language showed up in a July 2020 letter sent to the Federal Trade Commission by a bipartisan group of legislators including Wyden asking the agency to determine whether ad tech data practices violate the FTC act. And theres more: Warren and other lawmakers also sent questions last year to location data provider Mobilewalla, asking the company to provide details of its disturbing use of bidstream data.

A lack of self-regulation

There are no industry standards or rules established by the IAB or Mobile Marketing Association against the practice of bidstream data siphoning or about data sales to governments. In part because it stretches the meaning of consumer consent for data use, the practice of bidstream data siphoning is not often discussed openly by companies that employ it or agencies and advertisers that buy data built from it. But the IAB does have something to say about it: We have always said that we feel advertising data should be used for advertising purposes, said Grimaldi.

The role of location data in advertising

Agencies say they aremoving away from data supplierswithout direct connections to the point at which data is gathered, such as mobile location data providers. Meanwhile, some mobile data company execs say practices like bidstream data siphoning are happening less than in the past. If its happening, its happening much less overall, said Ken Harlan, CEO of MobileFuse, who said the company does not buy or repurpose bidstream data.

But, another location data provider that sells to digital advertisers, SafeGraph, received a big funding round in March of $45 million. A company spokesperson told Digiday that SafeGraph does not get its data from the bidstream; rather, like many mobile location providers, it gets it from partnerships with mobile app providers. And like many location data suppliers, it wont name those app publishers.

https://digiday.com/?p=411618

Link:
Cheat Sheet: Why Advertisers Need to Know about the Fourth Amendment Is Not For Sale Act - Digiday

Even as the country breathes a small sigh of relief that Derek Chauvin will be held accountable for killing George Floyd, police violence continues to dominate national headlines. One fundamental question arises in many of these cases: why do we police low-level offenses in ways that too often lead to death, serious injury and lasting community trauma? All of us (should) value liberty and, of course, life over these minor harms.

Daunte Wrights expired registration and dangling air fresheners are not worth the time, cost and risk of a traffic stop. Neither are allegedly missing license plates (Caron Nazario) or failing to signal a lane change (Sandra Bland). The same can be said for street stops for jaywalking during a winter storm (Rodney Reese) or selling untaxed cigarettes (Eric Garner) that ripen into arrests.

So what explains the routine over-enforcement of these nickel-and-dime offenses? One part of the answer can be found in two Supreme Court cases that will celebrate milestone anniversaries in the coming weeks. Together, Whren v. United States and Atwater v. City of Lago Vista permit police to use stops and custodial arrests for low-level offenses to get information about more serious crimes. Officers are likely empowered by Whren to act on their racial biases and incentivized by Atwater to make unnecessary arrests. Those decisions demand reconsideration if the court is going to play its constitutionally required role to protect fundamental liberty rights. Otherwise, the court will continue to seem irrelevant to urgent national conversations about how to protect Black and brown communities from the police.

For officers, pretext stops can be a means to another end: Officers who have enough suspicion for a minor crime can stop a person in the hope that they might unearth weapons, drugs or other evidence of more significant crime. This is highly problematic because officers frequently lack the suspicion that would be necessary under the Constitution to gather this information.

Twenty-five years ago, in Whren, a unanimous Supreme Court blessed these practices by refusing to probe officers motives or to look at the effects of these practices on minority groups. So long as officers have a superficially valid reason for a traffic stop, the court will not provide any remedy. Instead of recognizing the constitutional unreasonableness of racial profiling and creating barriers to traffic stops that were already widely understood to be stops for driving while Black, the Whrencourt ratified them.

As a result, police routinely used traffic stops to cast a broad net for crime: to get a peek in the windows; to ask drivers for information about other crimes; to pressure for consent to search; to trawl databases; and, sometimes, to bring out drug-sniffing dogs.

Five years after Whren, in a decision that will turn 20 years old on April 24, the Atwater court compounded these errors by upholding a custodial arrest for a minor violation. Atwater argued that her arrest for a seatbelt violation that did not carry any possibility of jail time was unreasonable and unconstitutional. The justices, acknowledging that Atwaters arrest was foolish, a gratuitous humiliation and a pointless indignity, seemed to avert their eyes while they declined to use the Fourth Amendment for its intended purpose: to restrain overzealous policing.

The decision was terribly wrong then and it has only become more obviously flawed in hindsight. Custodial arrest is an overwhelming intrusion on the fundamental liberty, autonomy, personal security and dignity rights that the Fourth Amendment protects. The weapon of arrest is a disproportionate and therefore constitutionally unreasonable response to low-level harm. The Atwater court fractured near the center, with four dissenting justices anticipating much of what has played out over the last two decades.

One of the most offensive parts of the Atwater decision was the majoritys confidence that the country is not confronting anything like an epidemic of unnecessary minor-offense arrests. It is doubtful that the statement was true in 2001, but it certainly does not hold up today.

Society is finally scrutinizing the range of different decisions that enable these violent and too often deadly confrontations between agents of the state and its people over minor crimes. Legislatures are slowly but too slowly reexamining decades of knee-jerk criminalization of low-level harms.More jurisdictions are relying on citations and appearance tickets for low-level offenses or requiring supervisor approval for certain misdemeanor arrests. Some police departments explicitly forbid racial profiling and track data to monitor the practice.

While these reforms are promising, the Supreme Court must also take action we are at an all-hands-on-deck moment for criminal justice reform in this country.In other contexts, the court protects fundamental rights by requiring that the government achieve its reasonable goals by adopting policies or programs that meet the test of being the least intrusive way to accomplish those objectives. In Atwater, and too many other decisions, the court has shied away from imposing that requirement on police under the Fourth Amendment. Our communities, particularly those Black and brown communities subjected to the most aggressive police intrusions on physical liberty, pay far too great a price for the courts faith that good cops will avoid bad outcomes.

Lauryn P. Gouldin is the Crandall Melvin Associate Professor Law and director of the Syracuse Civics Initiative Syracuse Universitys College of Law. She teaches constitutional criminal procedure, criminal law, evidence, constitutional law, and criminal justice reform, and her scholarship focuses on the Fourth Amendment, pretrial detention and bail reform, and judicial decision-making.

Visit link:
Why is there over-policing for low-level offenses? | TheHill - The Hill

Pierce County Sheriff Ed Troyer. (KIRO Radio/Jeff Pohjola)

The Washington Black Lives Matter Alliance (WBLMA) issued a letter to the FBIs Seattle office this week, calling on the department to open an investigation into Pierce County Sheriff Ed Troyer over a January incident where he called the police on a Black newspaper delivery driver.

Conflicting accounts after sheriff calls police on Black delivery driver

The WBLMA outlined a list of allegations in its petition to the FBI, including that Troyer abused his authority, violated the civil rights of a private citizen engaged in lawful acts, obstructed justice, and flouted the Fourth Amendment guarantee against unreasonable searches and seizures.

Mr. Troyer weaponized his standing as a law enforcement official in order to cause multiple law enforcement jurisdictions to respond with priority designation to a false 911 call made by Mr. Troyer, alleging threats against his life, thereby engaging in multiple violations of Color of Law, and jeopardizing the health and safety of community members, the letter reads.

The incident in question was firstreported on by the Seattle Times, describing how Troyer had reported seeing a car moving in and out of a neighbors driveway at 2 a.m. with its headlights off. He then confronted the driver, identified as 24-year-old Sedrick Altheimer, before making a call to dispatch that had an estimated 42 units from around the region to the scene.

Troyer claimed three separate times in the call that Altheimer had threatened to kill him. Altheimer has since denied he made any such threats, while a statement taken by a Tacoma police officer at the scene says that the Pierce County Sheriff later advised him he was never threatened.

When a member of law enforcement calls 911 and claims his life is under threat or in danger, whether on duty or not, that officer knows they will get a rapid, aggressive response, the WBLMAs letter continues. When that person is the Sheriff, such a response is essentially mandatory, and those who are responding are prepared to use all manner of force to protect another member of law enforcement.

Important that investigation into Pierce County Sheriff isnt political

This marks the second time the WBLMA has asked an outside agency to take action against Troyer stemming from that January incident. In late March, it filed a petition with the states Criminal Justice Training Commission (CJTC), asking it to review Troyers status as a certified peace officer, and immediately suspend that status pending the outcome of an investigation.

The CJTC responded quickly, stating that its only allowed to take action to decertify an officer under very specific criteria. That criteria is limited to instances where an officer has either been convicted for a felony offense, or has been discharged for disqualifying conduct. Because of that, the CJTC opted not to fulfill the WBLMAs request.

A separate investigation commissioned by the Pierce County Council was set into motion in early April, with former U.S. Attorney Brian Moran tagged to lead the effort.

Over the course of the inquiry, Moran will be directed to determine the facts of what occurred during the incident with the newspaper delivery driver, whether Troyer abused his authority during that incident, whether Troyers actions were racially motivated, and if theres an established history of similar incidents involving the sheriff.

Original post:
State BLM group calls on FBI to open investigation into Pierce County Sheriff - MyNorthwest.com

Two bills have been introduced in the U.S. Congress to end what now is a free-for-all among police and intelligence agencies buying biometric data pertaining to Americans.

The Senate legislation, sponsored by Republican Rand Paul and Democrat Ron Wyden, takes direct aim at data brokers such as Clearview AI and Venntel who are collecting and selling information without the owners consent.

Wyden and Paul call out Clearview AI and Venntel by name in a media release promoting what they are calling the Fourth Amendment Is Not For Sale Act. The same legislation has been introduced by two Democrats in the House of Representatives; Zoe Lofgren from California and Jerry Nadler of New York.

Neither proposal addresses the collection or sales of biometric data between private entities.

A court order would be needed for government agencies to buy or otherwise accept biometric data such as face photos that the sponsors feel some companies gather illicitly.

They are referencing Clearview AI and its ilk, which scrape images indiscriminately from the internet, including from social media services. Facebook, Twitter and others expressly forbid this kind of behavior involving their subscribers accounts.

That rule would cover people in the United States and those outside the country.

But the bills go further.

Without a court order, data brokers like Venntel could not sell to the government location data collected from peoples smartphone service.

According to Wyden and Paul, it is illegal for app makers to sell the same data to the government today, but it is legal for them to sell it to brokers. Brokers, in turn, are allowed to sell the data to the government.

The legislation also would subject data infrastructure companies to the same privacy laws that regulate telecommunications firms, device makers and social media services.

Providers also would lose all civil immunity to comply with surveillance requests from the U.S. Attorney Generals office, except for when they are presented with a court order.

biometric data | biometric identification | biometrics | Clearview AI | data collection | data protection | facial recognition | legislation | police | privacy

Read this article:
Is the US getting serious about the trade in biometrics? - Biometric Update

Even if youve done nothing wrong, the government may be tricking your cellphone into divulging your movements, while seeing who youve texted and called.

Since 1995, local and state governments, as well as federal agencies, have been using cell site simulators, commonly known by the genericized brand name stingrays. These portable devices collect data from the cellphones of anyone who happens to walk into range of its signals.

Stingrays work by mimicking cellphone towers, sending signals to trick phones in a targeted area into transmitting the locations and identifying information from bystanders. Stingrays represent one of the largest bulk data collection programs in the United States, operating at all levels of government.

According to a 2018 American Civil Liberties Union investigation, at least 75 agencies in 27 states and the District of Columbia owned stingrays, with the potential to compromise the privacy of hundreds of millions of Americans. When asked about stingrays, many law enforcement officials obfuscate. A police department in Florida admitted in emails to hiding its use of a stingray-type device. Often, the manufacturers of these devices, and sometimes the FBI, require police departments to sign non-disclosure agreements. Federal law enforcement will often push for dismissal of cases rather than reveal specifics about how these devices are used. In 2018, the ACLU reported that 14 federal agencies were known to utilize stingrays, including IRS, ICE and the FBI.

The decentralized nature of this technology makes investigation difficult. Hundreds of Freedom of Information Act requests would need to be filed to uncover the scope of their use and even then, past experience suggests these requests would often be ignored.

Nationally, laws governing cell site simulators are a patchwork quilt. California law has public disclosure requirements. Maryland law requires a warrant to use a cell site simulator. But many states and cities lack clear laws. In 2015, the Department of Justice issued guidance that federal law enforcement agents should obtain a probable cause warrant before using a stingray, instead of the prior practice of using pen register or trap and trace orders that did not require probable cause. Federal courts, starting in 2016, have begun to exclude the use of stingray-derived evidence. However, it is still common for state and local police to not specify on their warrant applications that a cell site simulator will be used, resulting in judges approving warrants without fully appreciating of what will be searched or seized.

The federal government has had no reservations about using similar mass surveillance technologies for law enforcement purposes in the past. In 2020, the Trump administration bought access to a commercial database that maps the movements of millions of cellphones in America.

Most Americans believe our data should be protected from warrantless searches. The U.S. Supreme Court thought so too, ruling in an analogous 2018 case, Carpenter v. United States, that law enforcement must obtain a warrant to obtain a persons historical location data.

Federal agencies are already learning to sidestep DOJs warrant requirement by routinely purchasing location data from data brokers. The extent to which state and local governments follow similar practices is not known. Without accountability and oversight, agencies could begin purchasing other datasets containing much more personal information than just our location history.

At the moment, two promising proposals would protect privacy rights against these threats. Sen. Ron Wyden (D-Ore.) has announced legislation, The Fourth Amendment Is Not for Sale Act, which would prohibit government agencies from purchasing bulk data containing personal information. As a senior member of the Senate Intelligence Committee, Wyden said that public knowledge on shady data brokers is only the tip of the iceberg of the data collection programs occurring on a daily basis, adding: I don't think Americans' constitutional rights ought to vanish when the government uses a credit card instead of a court order.

Rep. Ted Lieu (D-Calif.) and Wyden are crafting legislation to restrict the use of cell site simulators after the revelation that several government agencies conducted surveillance on individuals participating in last summers Black Lives Matter protests.

In addition to advancing these measures, Congress and the Biden administration should task the Department of Justice with supplementing their guidelines by surveying the usage of stingrays by states and municipalities, as well as the policies that govern their use.

The government is collecting sensitive personal information without a warrant and often without an apparent reason. The American people deserve accountability on how the government is watching us and what it is doing with this knowledge.

Read more:
The Long Arm of the Law Reaches Into Your Cellphone - Fairfield Sun Times

After a year of protests, anguish, and a weekslong trial, former police officer Derek Chauvin has been found guilty of murdering George Floyd.

The jury found that, by kneeling on Floyds neck until Floyd died, the disgraced ex-cop committed second-degree unintentional murder, third-degree murder, and second-degree manslaughter although, for reasons explained below, hes likely to only face prison time for the first of these three charges.

Shortly after Judge Peter Cahill read the verdict and verified that each of the jurors supported Chauvins three convictions, the judge announced that he would sentence Chauvin in eight weeks. Court officials will spend the bulk of that time conducting a pre-sentence investigation, a process that examines both Chauvins background and the circumstances of his crime, in order to inform Cahills sentencing decision.

Cahill also revoked Chauvins bail and ordered him remanded to custody, meaning that he will spend the period between his conviction and his sentencing behind bars. According to the New York Times, Chauvin is being held in solitary confinement and away from other prisoners due to fears for his safety. At least for the time being, he will spend 23 hours a day in his cell. While he may spend the remaining hour exercising, he will also be kept away from prisoners during that time.

The length of Chauvins sentence is a bit unclear, in part because Minnesotas sentencing guidelines likely give Cahill a fair amount of discretion to increase Chauvins sentence up to the statutory maximum.

Although Chauvin was convicted of violating three separate criminal statutes, he is likely to serve his sentences for all three crimes at the same time. Thats because, while Chauvin was convicted of three separate offenses, he did not commit three separate criminal acts. He committed one the killing of George Floyd which violated three different criminal laws.

The most serious of the three crimes he was convicted of is second-degree unintentional murder. Although state law provides that the maximum sentence for this crime is 40 years, Minnesota judges typically rely on the states sentencing guidelines, rather than statutory maximums, when handing down criminal sentences.

To determine the proper sentence under these guidelines, a judge ordinarily begins with a grid that lays out the presumptive sentence based on the crime that someone was convicted of and their past criminal history.

Because Chauvin has no prior criminal conviction, his criminal history score under the state sentencing guidelines is zero. Therefore, his base sentence for second-degree unintentional murder is 150 months, or 12.5 years.

But thats not the end of the process. The guidelines also allow a sentencing judge to increase an offenders sentence if a jury determines that one or more aggravating factors made the crime especially serious; alternatively, the judge can make this determination if the defendant waives their right to have a jury do so. Chauvin has waived this right.

Prosecutors claim that several aggravating factors were present when Chauvin murdered Floyd, including the fact that children were present, that Chauvin acted with particular cruelty, and that Chauvin abused his position of authority.

If Cahill agrees with the prosecution on any of these points, he has a fair amount of freedom to determine the appropriate sentence, up to the 40-year maximum. According to the guidelines, when a judge departs from the presumptive sentence for a given offender, that departure is not controlled by the Guidelines, but rather, is an exercise of judicial discretion constrained by statute or case law.

Under Minnesota law, Chauvin has the right to appeal his conviction or sentence to a state appeals court, and the state court of appeals must hear this appeal and render a judgment on it. As a general rule, a criminal defendant can appeal any legal matter that they objected to at the trial level, so it remains to been seen which specific matters Chauvins lawyer decides to raise on appeal.

One issue that is likely to come up on appeal is a statement by Rep. Maxine Waters (D-CA) in which she suggested that protesters need to stay on the street and get more confrontational.

Late in the trial, defense attorney Eric Nelson asked Cahill to declare a mistrial because of Waterss statement, claiming that it could have prejudiced the jury against his client. Although Cahill labeled Waterss statement disrespectful to the rule of law and to the judicial branch, he rejected the request for a mistrial noting, among other things, that the jury was instructed to avoid news reports.

Nevertheless, Cahill also commented that Waterss comment may have given you something on appeal. (President Joe Biden also suggested in a public statement earlier in the day that the evidence against Chauvin is overwhelming, but he made these comments while the jury was sequestered, so its highly unlikely that jurors were aware of them.)

Realistically, an appeals court is unlikely to second-guess Cahills decision to allow the trial to move forward. Though the Supreme Court has recognized that, in extreme cases, news reports can so severely prejudice a jury that their decision to convict a defendant is invalid, these sorts of claims are typically disfavored.

As the Court held most recently in Skilling v. United States (2010), a trial courts findings of juror impartiality may be overturned only for manifest error. As a general rule, appeals courts are advised to defer to trial judges in cases alleging juror prejudice, on the theory that the trial judge is better able to observe the jury and determine if the jurors are somehow tainted.

Indeed, if appeals courts were too quick to overturn convictions because a public figure expressed an opinion about the case, then its doubtful that any high-profile conviction could stand. As the Supreme Court warned more than 140 years ago:

[E]very case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits.

This warning is all the more true today, and its especially true in the Chauvin trial, a case that inspired months of protests in cities across the nation. It was inevitable that jurors would have read about this case and potentially heard other peoples opinions about it before they were empaneled. Given the extraordinary amount of news coverage surrounding this trial, its unlikely that Waterss comment was the tipping point that pushed a juror into convicting Chauvin if the jurors were even aware of that comment in the first place.

Last July, lawyers representing George Floyds family filed a federal civil rights lawsuit against Chauvin, the city of Minneapolis, and three other former officers who allegedly contributed to Floyds murder Tou Thao, Thomas Lane, and J. Alexander Kueng. The suit alleges that these former officers used excessive and deadly force in violation of the Fourth Amendment of the United States Constitution, and clearly established law.

The city agreed to settle this case for $27 million last month, but the suit against the four former officers continues.

Realistically, its not clear how much money is actually at stake in the suit against the ex-cops. Its unlikely that any of these four individuals has deep pockets, especially after they have all hired legal counsel to defend them in criminal trials. But this civil suit could provide additional vindication for Floyds family.

Its also unclear whether this civil lawsuit will be resolved anytime soon. The defendants asked the judge to stay any proceedings in the case pending resolution of a parallel criminal case against the individual Defendants. The three remaining officers are expected to be tried in August for aiding and abetting Floyds murder.

Read the original here:
How long will Chauvin serve and what happens next: Sentencing, civil trials, appeals - Vox.com

Credit: thomathzac23 // Adobe

When curfew hit at 8 p.m. on April 13 in Brooklyn Center, Minnesota, it felt like someone had flipped a switch.

Reporters on the ground say the protest outside the police department had been peaceful, full of speeches and songs.

But the environment quickly changed as law enforcement began to use more aggressive tactics, firing less-lethal rounds, tear gas and flash grenades at protesters in an attempt to disperse the protest.

Minnesota Governor Tim Walz had earlier declared a peacetime emergency in seven counties. He characterized his response in a press conference as the "largest police presence in Minnesota history."

It has been criticized by residents, though, who say it feels like a military occupation. Brooklyn Center residents living near the protest site were even gassed in their homes.

It follows a familiar formula to many racial justice protests in recent history. A state of emergency is called. A curfew is instated. And the folks who continue to exercise their right to protest are met with violence and a large, militarized police presence.

We saw this during 2014 protests in Ferguson, Missouri, after the police killing of Michael Brown. We saw it in 2016 during protests at the site of the Dakota Access Pipeline. And we saw it last summer in Minneapolis during protests after the police killing of George Floyd.

An aggressive police presence doesn't have to start with a state of emergency and local curfew.

Emergency powers don't, on their own, denote abuse.

But the way they're enacted can vary drastically based on the assessment of the threat at hand. Often, emergency powers and curfews are enacted in a way that paves the way for, if not endorses, police brutality at protests.

"Studies tell us that police are more likely to view activists of color and left-leaning activists as being threatening and as being dangerous," said Karen Pita Loor, the associate dean for experiential education and clinical associate professor of law at the Boston University School of Law.

When a state of emergency is in place, the enactor, whether that's the governor or mayor, becomes the commander-in-chief, in a sense. They decide how to carry out the powers.

"Police have this incredible discretion and a lot of tools and a lot of manpower and weaponry to respond in a very aggressive way," Loor said.

"They are the ones that are providing the governor with information about what the threat is and whether a state of emergency is warranted. And how that state of emergency should proceed."

Emergency powers have roots not in protest management, but for times like natural disasters and war.

The emergency power laws we're seeing enacted during these protests are the same ones we see in use during the COVID-19 pandemic, snowstorms and floods.

"We've had emergency powers for as long as we've had constitutions, i.e., for thousands of years," said Nomi Claire Lazar, associate professor in the Graduate School of Public and International Affairs at the University of Ottawa and author of States of Emergency in Liberal Democracies.

"Constitutions are ways of dividing up political powers on one hand and immunities against those powers on the other hand."

But in an emergency, the day-to-day checks and balances that come with a constitution can slow down response and even further disaster.

Emergency powers, then, provide built-in flexibility to respond however is necessary.

"These allow a state to concentrate power and derogate rights in urgent situations which threaten the public on a large scale," Lazar said.

"One way to think about this is that in an emergency, the state can't fulfill its usual public duties without our help (we help by staying home to prevent disease spread, we help by sandbagging in a flood, we help by lending a factory for munitions manufacture), and emergency powers allow the state to command our help."

Emergency powers do not suspend the constitution. While most state statutes don't have any sort of provision preserving individual rights during an emergency, we still have the same rights during a state of emergency that we do on a typical day.

By the Fourth Amendment, we should still be protected against unreasonable search and seizure.

But the checks to make sure this happens don't always hold up. In 1989, Supreme Court case Graham v. Connor defined an "objective reasonableness" standard for law enforcement conduct, which points out that police are forced to make split-second judgements.

The standard has been cited in multiple police killings since, such as the shootings of Michael Brown, Jamar Clark and Philando Castile. It makes it difficult to hold police accountable in excessive force cases through the Fourth Amendment.

Often, lawsuits claiming police unlawfully arrested protesters are dismissed because of qualified immunity, which protects officers from lawsuits except in cases of incompetence. Officers are protected because they can say they suspected criminal activity.

"Basically, what the courts are doing is they're ignoring the fact that the underlying conduct that the victim of the police violence is engaging in is expressive political activity," Loor said.

"The underlying conduct is not that they're criminal suspects. The underlying conduct is that they're actually protestors, which we are supposed to value as a society and also supposed to protect."

Loor believes courts should be recognizing the expressive portion of the Fourth Amendment which has been applied to searches of books and papers when it comes to protest activity.

This month Walz, the Minnesota governor, deployed 3,000 National Guard troops on the ground in the metro area as part of his public safety initiative, Operation Safety Net. That's in addition to 1,000 law enforcement officers and state patrol.

But there doesn't need to be a state of emergency for police to respond to protests in huge numbers. Mutual aid agreements between police departments already make that possible.

And while curfews make it easier for police to arrest protesters, they already have arrest tactics at their disposal that allow them to arrest protesters for nonviolent conduct, including mass arrests for failure to disperse. Even journalists have been arrested simply for possessing gas masks to protect themselves from tear gas.

These arrests often aren't prosecuted. But they can be violent.

There has been concern over military use of force at protests since at least the Kent State massacre in 1970, when soldiers shot and killed four students and wounded nine during an anti-war protest.

After the shootings, National Guard forces moved toward less-lethal weapons like rubber bullets, which are still in use today. But despite being labeled "less lethal," rubber bullets can still seriously injure, even kill protesters.

In 1878, The Posse Comitatus Act was passed to prevent the federal military from engaging in law enforcement activity. There was a desire for the military and law enforcement to be separate entities.

"They're supposed to keep the peace, prevent disturbances, quell disorder, but not enforce the law. That's for the cops," said William Banks, professor emeritus at the Syracuse University College of Law.

But states aren't burdened by that restriction.

"If the governor wishes, depending on how the state law is written, National Guard forces could enforce the curfew or engage in a search or make an arrest of an individual who's violating the law," Banks said.

In the past 20 years, the lines have further blurred. That's because military-grade force doesn't just come from the military.

Since 1997, federal programs have transferred surplus military equipment to local police departments. Police departments often respond to protests in full tactical military gear, with gas masks, shields and armored vehicles.

For instance, as NPR reported, St. Paul suburb Cottage Grove's police department alone acquired $1 million in military gear during the Trump administration. The department received 39 bayonets in December 2019.

"That kind of a force, particularly if it's made distant from the people by virtue of the equipment that they use and the paraphernalia that they wear, and the rules of engagement that follow, they're no longer being responsive to the people," Banks said.

"It's about accountability and transparency."

Public officials never have all the information during a fast-moving situation. But they have an incentive to overreact, to appear as if they are maintaining order and safety.

"Especially in cases where it's 'our' safety and 'their' rights, where the benefits accrue to the majority and the costs fall on a minority, there is a strong incentive for political leaders to overreact so that they are 'seen' to be taking the matter in hand," Lazar said.

Some states, like Minnesota, have sunset clauses which require governors to renew their emergency power monthly. This provides some accountability.

"It's imperative that we never stop talking about the ethics behind emergency powers, never stop questioning, judging and rejudging emergency action," Lazar said.

"That much more so because at such moments, citizens become doubly vulnerable, both because of the emergency itself and because of (rights derogating) mechanisms for addressing it."

Loor and Lazar said it's important to differentiate between emergencies like a flood or pandemic, and a popular uprising against discrimination.

"Really, we have people's civil rights at stake," Loor said.

Go here to see the original:
How Emergency Powers Pave the Way for Police Brutality at Protests - Rewire.org