Archive for the ‘search and seizure’ Category

City of London Police Hijacking Websites Without Court Orders

Thursday, October 10th, 2013

Some scary news out of London. The City of London Police has a new Intellectual Property Crimes Unit, and they are demanding – without a court order – that domain registrars shut down websites and redirect traffic to commercial websites that seem to be affiliated with the companies that made the triggering complaints to the police.

EasyDNS’s Mark Jeftovic – one recipient of these demands – is fighting back. He’s posted Whatever Happened to “Due Process” ? on EasyDNS’s blog.

Among the good points he makes:

Who decides what is illegal? What makes somebody a criminal? Given that the subtext of the request contains a threat to refer the matter to ICANN if we don’t play along, this is a non-trivial question. Correct me if I’m wrong, but I always thought it was something that gets decided in a court of law, as opposed to “some guy on the internet” sending emails. While that’s plenty reason enough for some registrars to take down domain names, it doesn’t fly here.

We have an obligation to our customers and we are bound by our Registrar Accreditation Agreements not to make arbitrary changes to our customers settings without a valid FOA (Form of Authorization). To supersede that we need a legal basis. To get a legal basis something has to happen in court.

(Emphasis and links omitted.) He also makes this point:

What gets me about all of this is that the largest, most egregious perpetrators of online criminal activity right now are our own governments, spying on their own citizens, illegally wiretapping our own private communications and nobody cares, nobody will answer for it, it’s just an out-of-scope conversation that is expected to blend into the overall background malaise of our ever increasing serfdom.

By the way, the City of London Police is the smaller of two police forces in London. The other is the Metropolitan Police. The City police are responsible for the smaller and older portion of London that is referred to as “the City,” which includes the center of the finance/banking industry as well as many of the major law firms. The Houses of Parliament, Buckingham Palace, and most of the rest of what you think of as London is outside the City and under the jurisdiction of the Metropolitan Police.

More:

Likes, Takedowns, and Server Seizures – Great Posts from Goldman’s Blog

Monday, May 7th, 2012

Eric Goldman

Here’s just some of the required reading coming off of Eric Goldman’s Technology and Law Marketing Blog:

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts

This is a case where a sheriff fired sheriff’s department workers after they Facebook-liked the sheriff’s opponent in an upcoming bid for re-election. Venkat Balasubramani and Eric G. explain why the court’s wrong that liking someone on FB isn’t protected First Amendment speech. I agree, of course. It’s a baffling decision.

512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom

This is exactly the kind of thing your civil procedure professor was talking about when they said “procedure is substance.” Big Hollywood is free to machine-gun takedown notices out there, and despite a substantive legal right to get redress for such bogus takedowns, the procedural requirements make the right nearly worthless, turning §512 of the Digital Millennium Copyright Act into something quite different than what you would think it is just by reading it.

As Eric G. notes, “unless the 512(f) plaintiff has smoking-gun evidence of the copyright owner’s bad intent before filing the complaint, the plaintiff has virtually no chance of getting a 512(f) claim into discovery.”

Comments on the Megaupload Prosecution (a Long-Delayed Linkwrap)

The Megaupload case is one of those things that is extremely troubling, but it can be hard to explain exactly why it’s troubling in a pithy way. But here’s a quote from Eric G. that does a pretty good job:

The government is using its enforcement powers to accomplish what most copyright owners haven’t been willing to do in civil court (i.e., sue Megaupload for infringement); and the government is doing so by using its incredibly powerful discovery and enforcement tools that vastly exceed the tools available in civil enforcement; and the government’s bringing the prosecution in part because of the revolving door between government and the content industry (where some of the decision-makers green-lighting the enforcement action probably worked shoulder-to-shoulder with the copyright owners making the request) plus the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.

The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload …

Megaupload’s website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that’s basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn’t care about this “collateral,” entirely foreseeable and deeply unconstitutional effect.

What do these three recent developments all have in common? Big guys win, little guys lose. Sometimes law is very dispiriting.

Please Call Right Now to Stop SOPA

Thursday, December 15th, 2011

CALL NOW - Capitol HillThis is it. This is the time to make your voice heard on Capitol Hill before the disastrous Stop Online Piracy Act is passed by the U.S. House of Representatives.

Go to EFF’s action page on SOPA and type in your zip code to instantly get the phone number of your rep. And you can bet I’ve called.

SOPA is a threat to blog freedom and internet freedom in American and abroad.

Make the call, and blog on!

ACLU Sues to Stop Sheriff Harassment of Photographers

Wednesday, November 9th, 2011

Mosaic of photographs of random thingsSome of the thousands of photographs I’ve taken which, I am sure, the LASD would consider to be without aesthetic value. (More where those came from on Flickr.)

I’m always taking photos of random things. I think it’s fun. And photos are valuable for illustrating blog posts, among other things.

But a lot of law enforcement agencies consider photography to be a “suspicious activity.” You can be seriously harassed for street photography.

Happily, the ACLU is stepping in to do something about it. The ACLU is now suing to challenge a policy of the Los Angeles Sheriff’s Department that considers as “terrorism-related” the activity of taking “pictures or video footage with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.”

If I had a buck for every photo I’ve taken of “security equipment, security personnel, traffic lights, building entrances, etc.,” then I would have a huge wad of cash. Enough to buy a full-frame digital SLR and maybe even get a sweet L-series 400mm telephoto lens.

And I’d run out and use it to take pictures of traffic lights, building entrances, and other stuff like that. And then I’d probably have to call the ACLU for help, because I could get into trouble like their latest plaintiffs Shane Quentin and Shawn Nee.

Quentin was targeted when he was taking photographs of refineries at night in south Los Angeles at night. (I’ve been meaning to do this myself the next time have some extra time down there. The refineries at night are stunning – fortresses of light, flame, fog, and exhaust. Highly photogenic in my book.) Well for his efforts, Quentin was frisked and placed in the back of squad car. He was kept there for about 45 minutes before he was let go.

It could have been me.

Nee’s misadventures are even harder to fathom. LASD deputies detained and searched plaintiff Shawn Nee when he was taking pictures turnstiles at an L.A. Metro station. This gives you an idea of where they were at: They asked Nee if he was planning to sell the photos to al-Qaeda.

Really. I’m not making that up. I mean, not only are they imply that he was in league with al-Qaeda, but that he was doing it for the money.

Then the LASD officers threatened to stick Nee on an FBI “hit list.” Okay, that’s absurd. Everyone who watches USA network knows that the CIA is in charge of assassinating terrorists on U.S. soil. But I digress.

On a separate occasion, sheriff’s deputies ordered Nee to refrain from taking photos along the Hollywood Walk of Fame at the intersection of Hollywood and Vine, outside the W Hotel. I mean, holy heck. If you aren’t safe taking pictures there – smack-dab in the middle of freaking Hollywood – where are you?

You can tell I’m upset. I’m using far too much italics.

The ACLU’s complaint [pdf], unlike this blog post, is a model of legal writing. For one, it’s written with a literary flair, yet it refrains from crossing the line into floweriness. Like this:

Photography is not a crime; it is a means of artistic expression. In public spaces, on public streets and from public sidewalks, no law bars Los Angeles residents and visitors from photographing the world around them, from documenting their own lives or using their lenses to find the sublime in the commonplace.

Nicely said. The complaint also is filled with footnoted references to essays, art reviews, and books. It’s very well-researched. A model pleading. Kudos to the ACLU. What’s more, this is a lawsuit that is badly needed to push back against an unhealthy trend. As the complaint says:

Over the past several years, law enforcement agencies across the country have implemented “suspicious activity reporting” programs, under which officers are trained to report certain categories of behavior believed to be potential indicators of terrorism. Many departments include photography as one such ‘suspicious activity’ that should be reported.

Mickey H. Osterreicher said in a letter to L.A. Sheriff Lee Baca that the aim is to get “at least” the L.A. Sheriff’s Department to revise departmental policy and instruct deputies correspondingly.

“Safety and security concerns should not be used as a pretext to chill free speech and expression or to impede the ability to gather news,” Osterreicher said.

More:

Are You Kidding Me? Apple Loses Another iPhone Prototype in Another Bar

Thursday, September 1st, 2011

Apple iPhone with stick figure elements, shown running awayPhoto: Apple. Deft artistic embellishments: Me.

Last year we followed the story of Apple’s iPhone 4 prototype, which was lost in a Silicon Valley beer garden. It was a blog law story because Apple went in heavy against tech blogger Jason Chen, getting a multi-jurisdiction police task force to raid to his home and seize a bunch of his property. And this was after the guy who found the phone tried to return it to Apple and Apple refused to return his calls.

Now, it’s happening again. This time an iPhone 5 prototype was dropped in Cava 22, a tequila bar in the Mission District of San Francisco.

As CNET, who broke the story, reports:

Apple electronically traced the phone to a two-floor, single-family home in San Francisco’s Bernal Heights neighborhood, according to the source.

When San Francisco police and Apple’s investigators visited the house, they spoke with a man in his twenties who acknowledged being at Cava 22 on the night the device went missing. But he denied knowing anything about the phone. The man gave police permission to search the house, and they found nothing, the source said. Before leaving the house, the Apple employees offered the man money for the phone no questions asked, the source said, adding that the man continued to deny he had knowledge of the phone.

I don’t know what’s more unbelievable, that Apple lost another iPhone, or that the San Francisco Police Department investigated a lost-property claim. When I lived in SF, a friend of mine got his car broken into and his radio stolen, and when he filled out his police report and asked the officer if they would be investigating it, they looked at him like he was crazy. I guess if you are Apple, you can get great customer service from the SFPD. That’s kind of ironic since Apple itself is pretty deficient in the customer service area.

By the way, take it from a law professor, don’t give the police permission to search your home. Arrgh.

Here are last year’s posts about the Jason Chen / iPhone 4 mess:

ALCU to Sue Baltimore Police Over On-the-Spot Video Seizure and Deletion

Thursday, August 18th, 2011

Badge of the Baltimore Police Department and still from YouTube video of police incident at 2010 Preakness Stakes

The Baltimore Sun reports that the American Civil Liberties Union is threatening to sue Baltimore police for illegally seizing a man’s camera and deleting videos from it at the 2010 Preakness Stakes. This could be an important case for citizen journalists and bloggers.

The man, Christopher Sharp, was taking video with his cell phone of what appears to be the use of excessive force in the arrest of a woman, a friend of Sharp’s, at the prestigious thoroughbred horse race. According to the ACLU press release:

[A]fter Sharp recorded the police beating, he was detained and harangued by police officers, who demanded that he surrender his cellphone as “evidence”. Sharp politely declined, but police continued to demand that he give up his phone. Fearing arrest, he finally handed over the phone to an officer who assured him he would simply download the videos for evidentiary purposes, then return the phone to Sharp. Instead, police destroyed the beating videos and all other videos it contained – about two dozen in all – before returning the phone to Sharp.

Another video of the same event shows the bleeding woman pinned down on the floor of the Pimlico Race Course clubhouse as a crowd watches in a wide circle. One police officer can be heard asking “Why’re they taking pictures?” and saying “Get him,” directing a fellow police officers to the location of a camera-operating onlooker.

Also in that video, you can hear another police officer making false assertions about the law, saying that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” In order for Maryland’s wiretapping law to apply, there would have to be a reasonable expectation of privacy. It would be beyond absurd to argue that the police had a reasonable expectation of privacy while arresting a woman in the middle of huge crowd at one of the biggest sporting events of the year. Even if there had been no crowd, the law should, in my opinion, construe an implied lack of expectation of privacy in all encounters between police, in the course of their duites, and members of the public.

Putting aside the legal, constitutional, and political questions, there is the simple sad fact that Sharp lost a lot of video footage that was tremendously valuable to him.

“I’m heartbroken over the videos I lost of my son and I doing things together,” said Sharp in the press release. “The videos were keepsakes of memories like his soccer and basketball games, times at the beach and the Howard County fair. It kills me that the police acted as if it was okay for them to could just wipe out some of my fondest memories. I used to trust police, but now I don’t anymore, because of how wrongly the police acted here, and because it seemed like this was just routine procedure for them.”

Big Island Blogger Bloodied and Bruised for Photographing Police

Tuesday, August 16th, 2011

Damon Tucker's wife took these pictures of Tucker's injuries which Tucker posted on his blog.

Hawaiian Blogger Damon Tucker has reported he was arrested recently for taking pictures and video of police arresting other people. Tucker wrote that his camera and cell phone were seized and that he was roughed up pretty badly, as evidenced by pictures he posted (example at right). He writes:

 

People are allowed to take pictures and videos of police officers w/out getting roughed up. I’m battered, bruised and bloody from an officer slamming on the sidewalk …

I just want my cell phone back and camera back…. I was rolling video when the officer took me down and they took my cell phone and camera from me for “Evidence”.

Tucker says he has eyewitnesses who will corroborate his story. He plans to sue.

More:

Jason Chen Getting His Stuff Back

Wednesday, July 21st, 2010

EFF’s Deep Links blog reports that the county prosecutors have now withdrawn the warrant they obtained to search Gizmodo blogger Jason Chen’s home during Apple’s desperate attempt to claw back its lost iPhone prototype: San Mateo D.A. Withdraws Controversial Gizmodo iPhone Warrant.

That means Chen will get all his stuff back. In April, members of the Silicon Valley’s R.E.A.C.T. law-enforcement task-force seized four of Chen’s computers and two servers from his home. (My posts: here, here, here, here, here, and here. All the posts together here.)

It’s ironic looking back at it all. Apple was so keen to protect the secrets of its G4 iPhone before the big product launch date. And now the ultrahyped gadget has turned out to be a total dog. Maybe Apple should have lost more prototypes in bars. That way, perhaps they would have gotten wind of the phone’s call-dropping problems when there was still time to change the design.

And this sad news just out today: The Associated Press reports via the NY Daily News: iPhone factory worker commits suicide over lost G4 prototype.

Unsealed Affidavit in iPhone/Blogger Raid

Monday, May 17th, 2010

Wired.com has the unsealed search warrant and search inventory from the raid on blogger Jason Chen’s home in the search for a wayward Apple iPhone prototype.

The search warrant claims the iPhone is a trade secret of Apple. As I have discussed previously (here and here), the iPhone is, in fact, not a trade secret.

The iPhone Was Not Stolen, Not Wrongfully Retained

Tuesday, May 4th, 2010

In a previous post, I argued that it is unfair to blame the person who found Apple’s iPhone prototype for not returning the phone. The issue is an important one, because the adventures of the wayward phone led to a police raid on tech blogger Jason Chen’s home. The short version is this: the finder of the phone tried in earnest to return it, but Apple wouldn’t return his calls. Thus, the iPhone ended up in Chen’s hands.

That’s the fairness issue. Now on to the law.

The statute at issue is California Civil Code § 2080, et seq., which provides:

Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property … shall, within a reasonable time, inform the owner, if known, and make restitution …

If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police …

So in California, if you find something valuable, you have to give it back to the owner, and if you can’t identify the owner, you have to give the thing to the police. So far so good. But this does not mean that the finder of the iPhone violated the law. The provisions of the California statute don’t apply under these facts because the finder did identify the owner, and did contact the owner. The owner then declined to respond. Apple’s refusal to take back the iPhone takes this out of the circumstances contemplated by the statute.

Reading the statue, it seems pretty clear that there is not intended to be a continuing legal obligation on the finder when the owner has rebuffed attempts to give the property back. In such a case, silence may be reasonably interpreted as abandonment of the property. This is not a matter of the property having been “not claimed” in the words of the statute. This is a matter of the property having been relinquished.

Much of the commentary coming out about the iPhone affair has been critical of Gizmodo and the finder with regard to the lost property aspect. These commentators have focused too much on the fact that this phone was some top-secret hyper-valuable prototype. That may be true, but it’s a fact known only now, a fact made evident because of what Apple eventually did to get the phone back.

But for the legal analysis, we need to look at the facts from the perspective of a reasonable person who does not know the end of the story. Back before the finder sold the phone to Gizmodo, the finder had no reason to believe the phone was anything other than a curious piece of junk. Apple clearly treated it like junk: (1) when they let it wander off at a bar, and (2) when they didn’t respond to efforts made to try to return it to them. It appeared, at best, to be some kind of rejected experiment without any continuing worth.

Now, you might say, surely the finder was on notice of how valuable it was when someone paid $5,000 for it. But if you say that, I say you don’t know Silicon Valley geeks.

The fact is, techies with money often spend it on tech junk. Tech weens will pay large amounts of money for vintage Betamax machines from the 1970s that don’t even work. Try buying a new inbox six-switch Atari 2600 on eBay for a reasonable price. Unless you think north of $2,000 is reasonable for one of the world’s most antiquated gaming systems, you’re out of luck. It is entirely reasonable to think that a prototype phone, worthless to Apple, would be highly prized as a curiosity by passionate geeks.

Bloggers Provide Early Legal Analysis of Jason Chen / iPhone Search

Friday, April 30th, 2010

Some excellent legal commentary on the iPhone/Chen matter:

Orin Kerr on Volokh Conspiracy
Paul Ohm on Freedom to Tinker
Matt Zimmerman on EFF’s Deeplinks Blog

Police Raid of Blogger’s Home Creates Shield Law Question

Wednesday, April 28th, 2010

Silicon Valley’s multi-jurisdictional task force R.E.A.C.T. (“Rapid Enforcement Allied Computer Team”) sounds like something I would make up for a law-school exam hypothetical. But it is not, and on Friday night, Gizmodo blog editor Jason Chen came home to find R.E.A.C.T. seizing computers and servers pursuant to a search warrant issued in regard to a prototype Apple 4G iPhone, which Apple lost and Gizmodo “found,” and then dissected and reviewed. (Gizmodo’s wrap-up.)

COO of Gizmodo owner Gawker Media, Gaby Darbyshire, says the search was illegal under California Penal Code § 1524(g), a journalist shield law. (Gizmodo’s post, with search warrant document images.)

Lyrissa Lidsky on PrawfsBlawg discusses the question of whether bloggers are properly entitled receive protection under the federal Privacy Protection Act of 1980, 42 U.S.C §2000aa et. seq., intended to squelch newsroom search and seizure.

More: Alexandra Jaffe on editoersweblog.org; Nick Bilton on NYT’s Bits blog.