Grounded

About that law letting police in Hawaii have sex with prostitutes

By Mark Berman

Today in stories that seem like they came out of Florida, as in we double-checked the dateline twice to be 100 percent sure this story really, truly came out of a state that is not Florida, we bring you news about police in Hawaii and prostitutes.

State law in Hawaii currently lets police have sex with prostitutes during investigations. Lawmakers had considered getting rid of the exemption, but after Honolulu police testified that they needed it for investigations, the bill was amended to keep the rule in place.

Police said during their testimony that officers weren’t abusing their authority or taking advantage of people, saying that there are strict internal controls in place, according to the Associated Press. (They did not say how often officers have ever actually had sex with a prostitute during an investigation.) But people opposed to the exemption still note the potential for abuse.

The subject is getting a lot of attention for obvious reasons. The New York Daily News, for example, went with the “Hawaii five-OH!” headline, which is definitely a funny joke people should keep making.

But it’s worth remembering that there are some recent examples of police officers being accused or convicted of sexually abusing prostitutes: A former officer in Philadelphia has been charged with raping two women identified as prostitutes; a former officer in Lowell, Mass., pleaded guilty last year to threatening prostitutes to force them to have sex; and a Houston police officer was sentenced to six years in prison for raping a prostitute in 2010.

Meanwhile, prostitution seems to account for an infinitesimal portion of the Honolulu Police Department’s arrests. Honolulu police made 284 prostitution arrests in 2012 (the last year for which statistics were available), just 0.7 of the 36,757 arrests made that year. It was the same percentage a year earlier, so it’s not like there’s evidence of some increasing epidemic.

Prostitution similarly accounts for a very small percentage of the arrests made that same year in cities with similar-sized populations. In Tampa, police made 336 arrests for prostitution out of 50,874 total arrests, or about 0.6 percent. In Pittsburgh, prostitution accounted for 298 arrests out of the overall 17,772 arrests, or 1.6 percent.

It’s not just cities of this size, either. Take Chicago, where the population is much, much larger and police make many more arrests. Prostitution still accounts for a small share: Just 2,404 of the 167,541 arrests made in 2010 (the most recent year with available numbers) were for prostitution, or 1.4 percent.

A report on prostitution written by Anaheim police Lt. Steve Marcin and published last year by the Federal Bureau of Investigation looked at a different way to approach prostitution. It noted that the response to street prostitution has generally involved police officers pretending to be customers before making arrests:

The standard procedure was for undercover officers to pose as customers, obtain a solicitation, and arrest the prostitute. They repeated the process often to incarcerate as many women as possible. These tactics resulted in misdemeanor filings and a temporary relocation of the activity. Prostitution soon returned.

Marcin wrote about a new approach taken by the Anaheim police that instead focused on rescuing women from pimps and helping them connect with victim advocacy groups so they can get shelter, counseling and job training. This approach “meant considering prostitutes as potential victims and identifying pimps as suspects,” rather than merely arresting prostitutes over and over again, he wrote.

The Anaheim Police Department reports that the new approach has resulted in more than 380 women being offered counseling, job placement and an avenue away from prostitution.

Sheriff's Dept. Charges Man With No Drugs With 'Intent To Distribute Counterfeit Controlled Substances'

Live a clean life and the cops should leave you alone, right? RIGHT?!? Harvey Silverglate wasn't being facetious when he wrote "Three Felonies A Day." There are all sorts of laws waiting to be broken, laws that boggle the mind in their insipidity.

As we covered recently, the FBI arrested one of its own handcrafted "terrorists" for "conspiring" to materially aid a terrorist organization. This "conspiring" apparently took the form of the suspect talking about possibly joining a terrorist group and, with undercover agents' urging, traveling to Canada to fill out some sort of terrorist job application. He was arrested at the border, having really done nothing more than talk big and wear the "rube" label really well.

More recently, Techdirt covered Judge Otis Wright's beration of the ATF for setting up stooges to pull off a fake crime -- a conspiracy to rob a "stash house." Of course, the stash house didn't exist, but this didn't stop the government from bringing criminal charges against the "criminals" and seeking sentences based on the entirely fictional contents of the fictional house. The ATF told its stooges that the house contained 20-25 kilos of coke in the house. Judge Wright asked why not just say 10, or 100 or 1,000, as long as the government's just making up numbers? No crime here because said "stash house" simply didn't exist and yet, people were arrested and put on trial.

Here's another case of no criminal activity somehow turning into a crime in the hands of zealous law enforcement officers who apparently couldn't handle not getting the drug bust they were obviously seeking. (via Reason)

Deputies said they stopped Delbert Dewayne Galbreath at NW 10th Street and Interstate 44 for a broken brake light. The deputy said Galbreath admitted he did not have a license to drive. Two deputies asked to search his car and he agreed.

A deputy found a cigarette pouch that had 16 pieces of a rock-like form, which authorities generally associate as crack cocaine. The deputies said they also found a digital scale.

Authorities tested the rocks and said they did not contain cocaine. When they asked Galbreath what the rocks were, he said they were Scentsy.
Galbreath was arrested on suspicion of possession with intent to distribute imitation controlled dangerous substance (CDS), possession of drug paraphernalia, driving under a revoked license and defective equipment.

Read that again: a man was arrested for not possessing drugs. Note the oddly specific denial. The man said they were "Scentsy." This doesn't sound like someone just blurting out the first thing that came to mind when deputies searched his vehicle.

If you're not familiar with Scentsy, it's a direct marketing company that specializes in "wickless candles," which are scented wax cubes that are warmed on its proprietary warmers. (All images taken from Scentsy's catalog unless otherwise noted)

Here's how the process works.


Here's a shot of a couple of Scentsy cubes sitting in a warmer with a vaguely scale-like shape.


Here's some more scale-esque warmers Scentsy offers.


And here's another scale-like warmer that's included in every Scentsy starter kit.


And here's some vaguely crack-colored wax sitting in a Scentsy warmer.


And for comparison's sake, here's a DEA file photo of crack cocaine.


So, this seems like an entirely plausible explanation. The plausibility factor shoots way up when you factor in the negative test results. But rather than investigate whether Galbreath's claims were accurate after the "NOT COCAINE" determination, the deputies ran with their original plan: nail Galbreath for drug dealing. Instead of dealing drugs, Galbreath was trying to sell fake drugs, which is completely indistinguishable from actual criminal activity when you're sitting in a jail cell.

Maybe the Sheriff's Dept. is hoping to sweat out some more info from the jailed "dealer," like who his pissed off customers are or who's further up the chain supplying him with fake drugs and taking a percentage of each sale he makes. (My hunch? A regional director in Oklahoma as well as any number of intermediaries along the direct marketing food chain.)

"Don't do the crime if you can't do the time," they say. But they somehow fail to add, "Don't NOT do the crime if you can't do the time," because everyday citizens like you and me might find that statement baffling, horrifying and complete bullshit.

Woman Arrested For Late Payment of $5 Dog License—and That's Business as Usual

J.D. Tuccille

ElfAnn Musser was arrested at her Holyoke, Massachusetts, home, according to media reports, and spent four and a half hours in jail—because she was tardy in paying her $5 dog license fee.

Well, actually, as Holyoke City Clerk Brenna McGee assured me, Musser was actually arrested on an outstanding warrant for failure to appear in court—over the tardy $5 dog license fee. Musser is a little preoccupied these days with ovarian cancer, which may explain why she put an administrative fee on the back burner. But then, it's common practice in Massachusetts to refer people to court after they've ignored or simply missed notices of tickets for even the pettiest of offenses. And since petty offenses have proliferated, including the non-payment of fees for the most mundane activities, court referrals and encounters with the police over...well...bullshit are not uncommon.

Musser "and her husband are also repeated offenders" McGee told me, referring to the dog license issue. Licenses for Fido and Spot are required by the state of Massachusetts and Holyoke, both. McGee assures me that "this is not about the collection of administrative fees. This is a violation of city ordinance." But the two are not mutually exclusive. The city application asks for little more than "$5.00 for spayed female or neutered male (please include proof of altering), or $15.00 for unspayed or unneutered" and identifying information.

The state asks for proof of vaccination for rabies, but the Holyoke application includes no such provision, and nobody alleges that the Musser's 14-year-old family dog, Pumpkin, was rabid or even unvaccinated.

But Brenna McGee reports that there are lots of ways to get referred to the court system.

It has been the practice of this office (M.G.L Chapter 40 section 21d) and other cities to report unpaid tickets to the court system. The process begins in February. Up to three notices are sent to remind dog owners to license their dogs by the deadline. If by June 1st the dog is not licensed a ticket is issued by the City Dog Officer. Tickets are marked very clearly that if no payment is received within 21 days the ticket is then sent to the court.

Musser told the Republican that she paid the $5 license fee and $25 late fee, but only after court proceedings had begun. She claims she attempted to appear in court and cooled her heels in a crowded courtroom for three hours, but left after her complaints that seating a woman with a faltering immune system in a crowd might be less than brilliant fell on deaf ears.

Not that it matters. Let's not forget that she was supposed to kill a day in an institutional room because she failed to pay for a permission slip to own a dog. The court then sent armed men to nab her because she chafed at remaining in after-school detention court. The situation would have been ludicrous even if she were perfectly healthy.

"Please also note," McGee told me, "that ALL tickets are sent to the court after 21 days of no payment, not just dog tickets. To name a few: possession of marijuana, loud music, emptying of bulk waste containers before 7am, motorized scooters, animal waste, shopping carts, tag sale permit."

Yes, you can really end up summoned to court, and perhaps arrested for failure to appear, for not paying for a permission slip to have a tag sale.

"I do know that people have been arrested in Holyoke for dog tickets and most recently a few weeks ago in Belchertown," McGee said. "And yes, there have been arrests for unpaid other tickets as well. One just a few weeks ago in Holyoke." She didn't remember what the last arrest was for, other than that it was an ordinance violation.

Speaking of revenue, state laws specify that, once court proceedings have begun over dog licenses, tag sales, and the like, "any fines imposed under the provisions of this section shall enure to the city or town for such use as said city or town may direct." So there just may be a bit of incentive to proliferate those petty, annoying ordinances and send defaulters courtward-bound.

To be clear, Brenna McGee isn't the villain here—just a city clerk kind enough to answer questions. Similar answers would have been forthcoming from most officials in her position in Massachusetts and elsewhere. In a hyper-regulated world, everything becomes a subject for administrative procedures, the begging of permission, and the payment of fees. And hyper-regulated as we are, disorganization or defiance of even the stupidest rules become grounds for encounters with armed men.

I asked McGee whether she and her colleagues ever discussed the appropriateness of the system that ensnared Musser. She declined to respond, though assured me that medical conditions are taken into account when they're known—a bit of mercy from the bureaucratic class, should they choose to grant it.

Ann Musser shouldn't have been exempted from arrest for being sick. She should have been free of fear of arrest for violating intrusive rules that have no business on the books and should certainly never be enforced by armed agents of the state.

The people who put those rules in place, and let the armed agents run loose, are the real villains.

Seattle Deputy Fired for Trying to Intimidate Journalist for Taking Photos

By Carlos Miller

King County Sheriff’s Officer Patrick “K.C.” Saulet was the untouchable.

A veteran law enforcement officer who spent almost three decades racking up more than 100 complaints of abuse and misconduct against him with only a single demotion to show for it. A burly cop who was the epitome of the modern-day police officer, secure in the fact that he could get away with anything, even allegations from fellow deputies.

That is, until he came across Dominic Holden, a hipster-looking, bicycle-riding journalist with a smartphone and a pair of glasses to boot. Nothing Saulet couldn’t handle. Nothing he hadn’t seen before.

Or so he thought.

Holden, editor of the alternative weekly, The Stranger, followed through on his promise last year to ensure Saulet was disciplined for violating his right to take photos in public.

It may have taken six months, but Saulet was stripped of his badge Monday, terminating a 27-year career where he was renowned for being one of the worst cops in the department, if not the worst.


Former King County Sheriff’s Officer Patrick “K.C.” Saulet had a long history of disciplinary problems before he was fired for violating the First Amendment rights of a journalist trying to photograph police. Photo by Dominic Holden

But history tells us that fired cops have a tendency to get their jobs back once the media hoopla dies down. We recently saw that with the Omaha case that resulted in two cops criminally charged for destroying evidence after confiscating a man’s camera and destroying footage from it.

However, that might not be the case here because the King County Police Officers Guild tried its best to save his job during the six-month investigation, only for Sheriff John Urquhart to fire him anyway.

Urquhart’s termination letter details just how hard it is to fire a cop, even one who has demonstrated numerous times over the years he has no business being a cop.

Suffice it to say, in my judgement, the evidence shows that (i) you abused your authority in your dealings with Mr. Holden on July 30, and (ii) thereafter, rather than be accountable, you attempted to recast events in a light more favorable to you. Stated broadly, for example, you claim you interacted with Mr. Holden in a civil, professional manner that was nothing more than ‘social contact’; you did little more than tell him for his benefit that he couldn’t ride on Metro property because doing so is a $66 infraction; [you claim that two other deputies] Shook and Mikulcik told him the same thing; and you once calmly pointed him in a direction you were suggesting he leave. But the evidence is that you approached Mr. Holden because you took exception with him lawfully exercising his right to take photographs of you and your colleagues while lawfully standing on public property; you were agitated and confrontational; you essentially ‘squared off’ with him; you expressly and/or implicitly threatened to arrest him if he did not leave immediately in the specific direction you pointed, not once but five times (misidentifying public property as private property in the process); and Shook and Mikulcik deny the statement you attribute to them.

In other words, he acted like thousands of other cops have acted throughout the United States over the years who are also secure in the knowledge that they will never get disciplined, despite the video evidence against them.

In fact, Seattle police officer John Marion who also tried to bully Holden from taking photos that day ended up receiving a one-day unpaid suspension for his intimidation tactics, a day’s wages he can easily make-up with a few hours of overtime.

And that, in itself, was a rarity, even though the video above, taken from a police dash cam, demonstrates he is another Saulet in the making, so maybe he’ll end up losing his job in a couple of decades.


Seattle police officer John Marion received a one-day suspension for his unprofessional attitude towards a journalist. Photo by Dominic Holden

But the Saulet termination is a victory nonetheless, even though he will probably still collect his pension. But with no badge and plenty of attitude, it might not be long before we hear of him again.

After all, this is a man who probably still believes he is untouchable.

As for Holden, he proved that the power of the media, including the use of public records requests and relentless pressure on the heads of the two agencies as well as pressure from the National Press Photographers Association, can sometimes overcome the institutionalized protections afforded to police throughout the country.

Assembly-Line Injustice

By Carl Takei

Dozens of tired, bedraggled men line up in shackles to plead guilty en masse. A judge claims his personal best is sentencing 70 people in 30 minutes: an average of twenty-five seconds per person to review the charges, hear his or her plea, and hand down a sentence.

No, this is not Egypt or Russia. It's the United States, in federal courthouses along the Southwest border.

What's driven our courts to adopt such assembly-line justice? Operation Streamline, a "zero tolerance" program that began under Bush and expanded under Obama.

Traditionally, federal authorities handled illegal immigration through the comprehensive enforcement scheme available under civil immigration laws. That enforcement scheme—which has deported about 2 million people over the past five years—already results in significant unfairness. But under Operation Streamline, authorities both process apprehended migrants for deportation and refer them for criminal prosecution for crossing the border.

Last week, the Pew Research Center hinted at the impact of Operation Streamline when it reported that felony convictions for unlawfully reentering the United States accounted for 26% of the federal convictions tracked by the U.S. Sentencing Commission in 2012—a 13-fold increase over two decades ago, when they accounted for just 2% of the total. But as stunning as this number is, it's less than half of the story. There's been an even bigger explosion in misdemeanor convictions for unlawfully entering the country (which are not tracked in the Sentencing Commission database examined by Pew).

Together, misdemeanor and felony border-crossing prosecutions now dominate federal dockets. In 2013, 80% of the federal criminal cases filed in Arizona and New Mexico, 83% of the cases filed in western Texas, and 88% of the cases filed in southern Texas were for illegal border-crossing. Nationwide, one out of every two cases filed by federal prosecutors was for border-crossing. (These stats are compiled by Syracuse University's TRAC project.)

In a better world, criminal justice resources would be allocated to the most serious, high priority crimes. Instead, federal prosecutors are spending scarce time and money on the unnecessary criminalization of immigration.

These prosecutions are also swelling the flow of immigrants into jails and federal prisons. As the Justice Department stated in its FY2015 budget request for federal pretrial detention: "Nowhere has the impact of changing law enforcement priorities on detention expenditures been more observable than with the implementation of zero tolerance immigration enforcement policies along the [Southwest Border]." As the budget request explains, the number of people annually booked into federal custody for immigration offenses has more than doubled since the start of Operation Streamline, hitting nearly 98,000 in 2013. (To give a sense of how big that number is: It's more than three times the number of people that were booked for federal drug offenses the same year.)

Political leaders on both sides of the aisle are starting to wake up to the unnecessary fiscal and human costs of mass incarceration. But immigration remains a blind spot for too many. Rather than repeat the mistakes of the ongoing War on Drugs by unnecessarily criminalizing immigrants, we need to end our national addiction to over-criminalization and over-incarceration in all their permutations.

Police task force to inspect homes without notice for unpermitted guests

The task force will abide by an "aggressive zero tolerance" policy for homeowners who allow so-called "illegal tenants" in their homes.

WESTBURY, NY — A special police task force has been created to snoop in on property owners and make sure that they aren’t allowing guests to stay in their homes without government approval.

Homeowners in the Long Island community of Westbury (pop. 15,000) have had their private property rights abridged to the point where they cannot even make autonomous decisions about what happens inside their own homes.

The police “Housing Enforcement Unit” will abide by an “aggressive zero tolerance” policy for homeowners who allow so-called “illegal tenants” in their homes.

The cops will sweep through communities and conduct housing inspections “without notice.”

A presentation given at a town hall meeting included a prop explaining the changes. That poster included the following statement: “Modify Search Warrant Law to Eliminate Prior Notice. Aggressively Use Warrants and Housing Sweeps on a Regular Basis — DONE!”

Mayor Peter Cavallaro claims that allowing property owners to make their own rules “victimizes the community as a whole.”

Westbury Village Justice Thomas Liotti backwardly argued that it was homeowners exercising their own freedom hurting “property rights” — not the government’s micromanaging of their own living space.

One resident, Perry Esposito, told a News-12 reporter that he doesn’t think its fair that his neighbors can take on a tenant to help them pay their exorbitant taxes, which can be in excess of $9,000.00 per year.

The town is dispersing fliers detailing to residents how they can snitch on their neighbors to the police.

Study: Smarter People Are More Trusting

Those who ranked higher in "generalized trust" scored more highly on vocabulary and question comprehension.

Julie Beck

Problem: Being too trusting is often associated with a sort of naïveté or foolishness—if you really understood the way the world works, you’d be looking out for number one. You don’t want to get played, be a sucker, fall prey to schemes or betrayal. None of the “smart” reality TV show contestants are here to make friends, right? Or at least, you know, the wily ones.

Science says trust is good for you, though, and it’s good for society. Previous research has shown that “generalized trust”—that is trusting other members of society generally, rather than trusting your friends or family specifically—is linked to better self-reported health and happiness. And “countries whose citizens place greater trust in one another have more efficient public institutions and experience higher rates of economic growth.” So notes a recent study published in PLOS One, which adds to the literature on the topic by looking at how generalized trust is related to intelligence. 

Methodology: Noah Carl and Francesco C. Billari of the University of Oxford analyzed data from the General Social Survey, a nationally representative U.S. public opinion survey administered every one to two years. Generalized trust was measured by the question, “Generally speaking, would you say that most people can be trusted or that you can’t be too careful in dealing with people?” To measure intelligence, they looked at participants’ scores on a 10-question vocabulary quiz (“Despite its brevity, the test has a correlation of 0.71 with…an IQ exam developed by the U.S. Military,” the study notes), as well as the interviewer’s assessments of how well participants understood the survey questions.

Results: Both vocabulary and question comprehension were positively correlated with generalized trust. Those with the highest vocab scores were 34 percent more likely to trust others than those with the lowest scores, and someone who had a good perceived understanding of the survey questions was 11 percent more likely to trust others than someone with a perceived poor understanding. The correlation stayed strong even when researchers controlled for socio-economic class. PLOS OnePLOS One

This study, too, found a correlation between trust and self-reported health and happiness. The trusting were 6 percent more likely to say they were “very happy,” and 7 percent more likely to report good or excellent health.

Implications: “The finding that generalized trust is highly correlated with intelligence, even after conditioning on socio-economic characteristics such as marital status, education, and income, supports the hypothesis that being able to evaluate someone’s quality as a trading partner is a distinct component of human intelligence, which evolved through natural selection,” the study reads.

The researchers posit that intelligent people might be better at correctly evaluating whether people are trustworthy, or whether a particular person is likely to act untrustworthily in a particular situation.

But despite the temptation to be on guard with others, knowing the benefits trust could have for yourself and for the community, it does seem like a pretty smart choice.

Virginia Student Gets Suspended for Taking Razor From Kid Who Was Cutting

Elizabeth Nolan Brown

Note to American tweens: Don't be a Good Samaritan on the state's watch. A sixth grader at a Virginia Beach public school was suspended this week for having a razor blade. She took the blade from another student who was cutting himself with it. Bad move, apparently.

The Bayside Middle School student, Adrionna Harris, said she took a razor blade away from another student because he was using it to cut himself. She threw the blade away and told school officials. Then she was suspended for 10 days, with a recommendation for expulsion, according to Virginia Beach news station WAVY.

Note that Harris didn't even have the razor blade in her possession when she went to school administrators. The only evidence this razor blade existed is Harris' own admission of it, when she told school officials what had happened and that she had already thrown it away.

"I was very shocked that a student would get suspended for saving another child," Rachael Harris, Adrionna’s mother, told WAVY. "The school system over-reached absolutely."

On Wednesday night, Virginia Beach City Public Schools agreed to move Adrionna's suspension hearing, which was scheduled for next week, to Thursday night.

Fixing the Worst Law in Technology

by Tim Wu

On the opening day of this year’s South by Southwest festival, in Austin, an audience gathered in a giant conference hall to remember the life and tragic suicide of Aaron Swartz. Tim Berners-Lee, the inventor of the World Wide Web, spoke of Swartz’s curious and restless mind. Swartz’s girlfriend Taren Stinebrickner-Kauffman described him as a man who was constantly asking whether what he was doing was the most important thing that he could be doing. (A quality extensively documented by Larissa MacFarquhar in her Profile of Swartz.) The proceedings were yet another reminder that Swartz’s suicide was heartbreaking beyond belief, and that something must be done about the law that he was aggressively prosecuted under, the Computer Fraud and Abuse Act.

As if to underline the point, last Thursday, federal prosecutors indicted that Matthew Keys, a social-media editor at Reuters, under the same law for helping with an online prank. Keys helped hackers vandalize a news story on the Web, messing with the contents of the article and changing a headline to read “PRESSURE BUILDS IN HOUSE TO ELECT CHIPPY 1337”—which was an inside joke. The damage was trivial, yet he is threatened with two hundred and fifty thousand dollars in damages and up to twenty-five years in prison.

These prosecutions have brought a rare moment of public attention to the breadth and severity of this law. Congress could change the law, but everyone knows that waiting for congressional action nowadays is a fool’s game. The Obama Administration can, and should, set things right by changing its enforcement policy. And if the Justice Department declines to act, President Obama, as the ultimate enforcer of the law, should step in and set things right.

The Computer Fraud and Abuse Act is the most outrageous criminal law you’ve never heard of. It bans “unauthorized access” of computers, but no one really knows what those words mean. Orin Kerr, a former Justice Department attorney and a leading scholar on computer-crime law, argues persuasively that the law is so open-ended and broad as to be unconstitutionally vague. Over the years, the punishments for breaking the law have grown increasingly severe—it can now put people in prison for decades for actions that cause no real economic or physical harm. It is, in short, a nightmare for a country that calls itself free.

It wasn’t always this way. The act was born, in 1984, as a narrow statute enacted for the reasonable goal of combating malicious hackers: people who break into computer systems and steal valuable data (like credit-card numbers) or do real economic damage. But it is in the nature of law to mutate and expand beyond the original justification. Over the years, Congress expanded the statute five times, adding private rights of action and making misdemeanors into felonies. Both private litigants and the Justice Department began to use the law against not only hackers but also otherwise legitimate users who violate the “terms of service” policies that come with nearly ever piece of software and service we use on computers today.

What are terms of service? Remember the last time you signed up for a Web site and clicked through several pages of fine print? Yep, that was it. Chances are, you didn’t read it, and didn’t think that it might be a federal felony to violate the provisions that it contained. The Justice Department has repeatedly taken the position that such violations are felonies. In the prominent cyberbullying case United States v. Drew, a federal prosecutor asserted that violating MySpace’s terms of service would be a federal felony. Similarly, the indictment threatening Aaron Swartz with thirty-five years in prison depended, in part, on a terms-of-service violation: when Swartz tried to download thousands of academic articles, he did so as an authorized guest user of the M.I.T. network. He didn’t actually “hack” or “break” into the network; he violated the terms of service for guests by downloading too much stuff.

The broadest provision, 18 U.S.C. §1030(a)(2)(c), makes it a crime to “exceed authorized access, and thereby obtain… information from any protected computer.” To the Justice Department, “exceeding authorized access” includes violating terms of service, and “any protected computer” includes just about any Web site or computer. The resulting breadth of criminality is staggering. As Professor Kerr writes, it “potentially regulates every use of every computer in the United States and even many millions of computers abroad.” You don’t have to be a raving libertarian to think that might be a problem. Dating sites, to borrow an example from Judge Alex Kozinski, usually mandate that you tell the truth, making lying about your age and weight technically a crime. Or consider employer restrictions on computers that ban personal usage, like checking ESPN or online shopping. The Justice Department’s interpretation makes the American desk-worker a felon.

When judges or academics say that it is wrong to interpret a law in such a way that everyone is a felon, the Justice Department has usually replied by saying, roughly, that federal prosecutors don’t bother with minor cases—they only go after the really bad guys. That has always been a lame excuse—repulsive to anyone who takes seriously the idea of a “a government of laws, not men.” After Aaron Swartz’s suicide, the era of trusting prosecutors with unlimited power in this area should officially be over.

What can be done? Congresswoman Zoe Lofgren has drafted a bill that attempts to curtail the act’s sprawling breadth. But even in the best of times, Congress rarely scales back criminal laws—and we have the do-nothingest Congress in history. The problem is compounded by industry resistance. At a recent White House meeting, Oracle and other companies made clear their suspicion of Lofgren’s bill. Big data firms prefer the law just the way it is, and why wouldn’t they? If you’re a prosecutor or a firm with lots of data, the law is just about perfect. It’s just too bad for the rest of us.

The Lofgren bill is a worthy effort, but betting on this Congress to pass a law that is opposed by industry and that diminishes prosecutorial authority is to bet on the political version of an inside straight. The memory of Swartz’s suicide will fade, and we will be left with the sword of Damocles dangling. There needs to be a better way.

There is a much more immediate and effective remedy: the Justice Department should announce a change in its criminal-enforcement policy. It should no longer consider terms-of-service violations to be criminal. It can join more than a dozen federal judges and scholars, like Kerr, who adopt a reasonable and more limited interpretation. The Obama Administration’s policy will have no effect on civil litigation, so firms like Oracle will retain their civil remedies. President Obama’s DREAM Act enforcement policy, under which the Administration does not deport certain illegal immigrants despite Congress’s inability to make the act a law, should be the model. Where Congress is unlikely to solve a problem, the Administration should take care of business itself.

All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should be construed in favor of a defendant. As the Supreme Court puts it, “When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” So far, at least thirteen federal judges have rejected the Justice Department’s interpretation of the Computer Fraud and Abuse Act. If that’s not a sign that the law is unclear and should be interpreted with lenity, I don’t know what is.

If neither the Justice Department nor the Attorney General will budge, it falls to the President, who bears ultimate public responsibly for law enforcement, to do what is right. The Computer Fraud and Abuse Act is egregiously overbroad in a way that has clearly imposed on the rights and liberties of Americans. With just one speech, the President can set things right.

Connecticut SWAT terrorize college dorm looking for plastic sword

5 Ways the War on Drugs Makes Us Less Safe

The head of the military's Southern Command wants more money to fight a losing battle.

Conor Friedersdorf

General John F. Kelly, the head of the U.S. Southern Command, testified last week before the Senate Armed Services Committee, where he argued, as generals tend to do, that he has inadequate resources to fulfill the missions assigned to him.

Here's how the Associated Press summed up his statement:

The U.S. doesn’t have the ships and surveillance capabilities to go after the illegal drugs flowing into the U.S. from Latin America, the top military commander for the region told senators Thursday, adding that the lack of resources means he has to “sit and watch it go by.”

Gen. John Kelly told the Senate Armed Services Committee that he is able to get about 20 percent of the drugs leaving Colombia for the U.S., but the rest gets through.

Think about that.

Though the U.S. spends billions of dollars each year fighting the War on Drugs, and despite having done so for many years, 80 percent of the drugs from one of the countries we've focused on the most still gets through all of our interdiction efforts.

Is the answer to throw more money at the prohibitionist strategy?

Kelly requests more resources:

Kelly ... said he would be able to interdict more drugs if he had 16 ships that could be used as the base for helicopters. Generally, law enforcement officials use the helicopters to quickly go after traffickers operating small boats, forcing them to stop and surrender. Currently, Kelly said he has one U.S. Navy ship and two Coast Guard vessels that can be used for the drug operations. The overall goal has been to reduce the amount of drugs coming into the U.S. from Latin America by 40 percent, which officials believe would cut into the profits of the cartels and perhaps turn them against each other.
To reach that goal, he said, would require the 16 ships.

So best-case scenario, we could spend more ... and maybe, if we're "lucky," spark a bloody cartel war abroad. Somehow, that inclines me to spend those extra billions elsewhere! If we turn to Kelly's full statement, we find a frustrating refusal to frankly state the tradeoffs that we've chosen in our present approach to drug policy.

In his telling, transnational criminal organizations are a security problem for several reasons. If you think about it, almost all of those reasons are exacerbated by the black market.

1. "The spread of criminal networks is having a corrosive effect on the integrity of democratic institutions and the stability of several of our partner nations." Without black-market profits, criminal drug networks would almost certainly shrink.
2. "Transnational criminal organizations threaten citizen security, undermine basic human rights, cripple rule of law through corruption, erode good governance, and hinder economic development." Again, the ability of drug cartels to bribe officials, violate human rights, and cripple the rule of law would be undermined if they suddenly lost their ability to profit from drugs on the black market.
3. "Illicit trafficking poses a direct threat to our nation’s public health, safety, and border security. Criminal elements make use of the multitude of illicit pathways in our hemisphere to smuggle drugs, contraband, and even humans directly into the United States." Without a black market in narcotics, smuggling operations would be less sophisticated and the money flowing to smugglers would decrease.
4. "Illegal drugs are an epidemic in our country, wasting lives and fueling violence between rival gangs in most of our nation’s cities." It's possible that more addict lives would be wasted if drugs were legalized, because of increased use and abuse. Drug-fueled gang violence and the lives lost to it would almost certainly decrease.
5. "The third concern is a potential one, and highlights the vulnerability to our homeland rather than an imminent threat: that terrorist organizations could seek to leverage those same smuggling routes to move operatives with intent to cause grave harm to our citizens or even quite easily bring weapons of mass destruction into the United States." Again, if drugs were legal, fewer resources would be poured into routes and personnel that could be exploited by foreign terrorists. 

Why doesn't the testimony note, as I just did, that the black market in drugs that prohibition creates exacerbates nearly every way in which transnational crime hurts us?

Kelly isn't to blame. He doesn't make policy. He tries to carry it out. But the policy that he's been given is as doomed to fail as it always has been. Prohibition may make some (though not all) people inclined to addiction safer in some ways. But it makes all of us less safe in other ways, and wreaks havoc in foreign countries. It would be nice if hearings on U.S. drug policy acknowledged such tradeoffs.

Florida Cops’ Secret Weapon: Warrantless Cellphone Tracking

By Kim Zetter

Police in Florida have offered a startling excuse for having used a controversial “stingray” cellphone tracking gadget 200 times without ever telling a judge: the device’s manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts.

The shocking revelation came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim’s cellphone. Using the stingray — which simulates a cellphone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment.

During recent proceedings in the case, authorities revealed that they had used the equipment at least 200 additional times since 2010 without disclosing this to courts and obtaining a warrant.

Although the specific device and manufacturer are identified in neither the one court document available for the 2008 case, nor in a video of a court proceeding, the ACLU says in a blog post today that the device is “likely a stingray made by the Florida-based Harris Corporation.”

Harris is the leading maker of stingrays in the U.S., and the ACLU has long suspected that the company has been loaning the devices to police departments throughout the state for product testing and promotional purposes. As the court document notes in the 2008 case, “the Tallahassee Police Department is not the owner of the equipment.”

The ACLU now suspects these police departments may have all signed non-disclosure agreements with the vendor and used the agreement to avoid disclosing their use of the equipment to courts.

“The police seem to have interpreted the agreement to bar them even from revealing their use of Stingrays to judges, who we usually rely on to provide oversight of police investigations,” the ACLU writes.

Harris refused to comment, instead redirecting questions to law enforcement.

The secretive technology is generically known as a stingray or IMSI catcher, but the Harris device is also specifically called the Stingray. When mobile phones — and other wireless communication devices like air cards — connect to the stingray, it can see and record their unique ID numbers and traffic data, as well as information that points to the device’s location. By moving the stingray around, authorities can triangulate the device’s location with much more precision than they can get through data obtained from a mobile network provider’s fixed tower location.

The government has long asserted that it doesn’t need to obtain a probable-cause warrant to use the devices because they don’t collect the content of phone calls and text messages but rather operate like pen-registers and trap-and-traces, collecting the equivalent of header information.

This is the first time, however, that a contract with the vendor has been cited as a reason for not obtaining a warrant. The discovery of this hidden detail was made by CNET reporter Declan McCullagh earlier this year.

The 2008 Florida case — State v. Thomas (.pdf) — is currently sealed, though the ACLU has filed a motion to unseal the records.

The case involves James L. Thomas who was convicted of sexual battery and petit theft.

According to the appellate court judges, after a young woman reported on September 13, 2008 that she had been raped and that her purse, containing a cellphone, had been stolen, police tracked the location of her phone about 24 hours later to the apartment of Thomas’ girlfriend.

“The investigators settled on a specific apartment ‘shortly after midnight’ or ‘approximately 1:00 to 2:00 a.m.’ on September 14, 2008,” the court wrote. “For the next few hours, six or seven police officers milled around outside the apartment, but made no effort to obtain a search warrant.”

They did not want to obtain a search warrant to enter the apartment “because they did not want to reveal information [to a judge] about the technology they used to track the cellphone signal,” the appellate judges note.

Around 5 a.m., police knocked on the apartment door, but the suspect’s girlfriend refused to let them in without a warrant. They forced their way in, ordered her and Thomas to exit, then searched the apartment. After they found the victim’s purse and cellphone, they arrested Thomas.

Authorities opted not to get a warrant either for the use of the Stingray or the search of the apartment, simply because they didn’t want to tell the judge what they were using to locate the suspect, a matter the ACLU finds troubling.

“Potentially unconstitutional government surveillance on this scale should not remain hidden from the public just because a private corporation desires secrecy. And it certainly should not be concealed from judges,” the ACLU noted.

Authorities even refused to tell Thomas’s attorney how they had tracked his client to the apartment. A judge finally forced the government to disclose the surveillance technique they had used, but only after the government insisted the court be closed. The proceedings were also sealed to prevent the information from leaking to the public.

The truth came out only after Thomas appealed his conviction, asserting that the police violated his Fourth Amendment right in seizing evidence.

It was in the unsealed appellate opinion that the ACLU discovered the reason for the secrecy.

The judges revealed that the reason authorities didn’t obtain a search warrant and didn’t want to disclose their surveillance technique in an open court was because of the NDA. But that wasn’t all. A video of oral arguments before the appellate judges revealed more.

When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.

“No, no, no, no, no,” he said. “I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology.”

His fellow judge then interjected loudly, “Two-hundred times they have not.”

The ACLU was surprised by the admission.

“[Wh]en police use invasive surveillance equipment to surreptitiously sweep up information about the locations and communications of large numbers of people, court oversight and public debate are essential,” the group noted in its post.

But the possibility that an NDA may have been the excuse for not disclosing the technology was an even greater concern. [A video of the oral arguments is available on the court's web site. Discussion of the technology begins at 9:15; mention of the 200 times they used the technology without a warrant occurs around 18:00.]

The ACLU has filed a Freedom of Information Act request with 30 police and sheriff departments in Florida to determine how widespread the use of the stingray is and how often its use has been concealed from courts.

Use of stingray technology goes back at least 20 years. In a 2009 Utah case, an FBI agent described using a cell site emulator more than 300 times over a decade and indicated that they were used on a daily basis by U.S. Marshals, the Secret Service, and other federal agencies.

The systems are not cheap. According to a 2008 price list obtained by Public Intelligence, the Harris Stingray was priced at $75,000 for the basic device, plus an additional $22,000 – $5,000 for various software packages for use with it. But the police in Florida appear to have obtained the devices for free or on lease from the maker.

While the government has argued in other cases that it does not need a warrant to use the devices, it conceded in one case in Arizona that it did need a warrant to use the device in that particular case because it involved locating a Verizon air card being used inside the suspect’s apartment.

In the Thomas case in Florida, however, the appellate judges noted that they were considering the suspect’s appeal only on grounds that police did not obtain a search warrant for his apartment, not on grounds that they did not obtain a search warrant for the use of the surveillance device.

“For purposes of decision, however, we assume the police acted lawfully up to the point that they forcibly entered the apartment,” they wrote in their November opinion. “It is not clear that there was ever a ruling on the legality of the cellphone tracking methods used below.”

The trial court initially ruled that the apartment search was legal, due to exigent circumstances, and therefore evidence obtained in the search was legal, but the appellate court reversed this and found that the girlfriend had only given her consent after she was forced to leave the apartment and stand outside in her night clothes, and after police had already begun to search the apartment.

NYPD counsel doubles down, rules freedom of information manual is confidential

"The records at issue are attorney-client privileged communications"


by Shawn Musgrave

Last month, NYPD rejected my request for the department's guides to processing freedom of information requests, the latest in a baffling series of denials.

I appealed immediately, noting that the determination constituted a rejection for information on the very process of transparency within NYPD.

This week, NYPD's ruling came back: NYPD's lead freedom of information counsel refused to release the department's freedom of information guides, citing attorney-client privilege.

In his appeal rejection letter, Mr. David cites two statutes that bar disclosure of attorney-client communications. He argues that the records I requested "reflect confidential communications between members of the FOIL unit and their attorneys in the context of the providing of legal advice concerning the meaning and requirements of the Freedom of Information law." He further suggests that "preparation of these records called upon attorneys to apply the skills and talents of an attorney, making these records attorney work product."

As I wrote in my appeal, I have no doubt that a team of lawyers drafted NYPD's transparency training materials and that they applied every ounce of barrister skill they possess. I hope such qualified individuals would be charged with that task. However, that a lawyer reviewed or even drafted these documents does not make them exempt from disclosure.

I haven't requested NYPD's case notes for FOIL litigation, or strategy memos for how to respond to a particular request. I'm after the handbook that delineates generally which documents to disclose to the public, and which to withhold.

Handbooks and training materials hardly qualify as "confidential communications," particularly when the subject matter is transparency itself.

What's more, the New York statutes cited by Mr. David apply to the litigation discovery process not the Freedom of Information Law. While NYPD claims to have no say in the matter — the cited laws "prohibit disclosure of the requested records," David's letter said — the New York Committee on Open Government contradicts that stance. In an April 2001 opinion, among others, COOG Executive Director Robert Freeman wrote that the attorney-client privilege applies "only when records are prepared solely for litigation."

Unless NYPD prepared their FOIL manuals solely for litigation, this ruling is a concise page of babbling pseudo-legalese.

Mirroring the initial rejection, NYPD's appeal rejection starkly undercuts Commissioner Bratton's commitment to "do more to open up the organization, to make it more inclusive, to make our information more readily available to the public." Here, the department has dug in its heels: to get the NYPD Freedom of Information unit to divulge how it understands and applies principles of transparency, a freedom of information request apparently is not enough.

Top Technologists File Brief Supporting ACLU Lawsuit Against NSA Spying

EFF Represents Computer Scientists in Explaining Why “It Is Not Just Metadata”

San Francisco - Representing a large group of top computer science experts and professors, the Electronic Frontier Foundation (EFF) today submitted a brief to a federal appeals court supporting the American Civil Liberties Union's lawsuit over the NSA's mass call records collection program. At the core of the brief is the argument that metadata matters.

Intelligence officials have often downplayed privacy concerns over the NSA's interpretation of Section 215 of the Patriot Act by stating that the agency does not collect the "content" of calls, but only the metadata—who a person called, when, how long the conversation lasted and other information. EFF's brief begins with the line "It is not just metadata," and goes on to explain how metadata collected on a massive scale can often reveal more personal information about an individual than content. The brief outlines how metadata can show patterns of behavior, political and religious affiliations, and other personal details, especially when combined with other data sources.

"The metadata the government collects isn't just a list of numbers dialed and times—it's a window into the lives of millions of Americans," EFF Staff Attorney Mark Rumold said. "The law should provide the highest level of protection for this kind of information. The technology experts who signed the brief provide a valuable perspective for the court to consider."

The ACLU filed its lawsuit against the Director of National Intelligence, NSA, Department of Defense, Department of Justice and FBI last year after former intelligence contractor Edward Snowden revealed a secret legal order allowing for the indiscriminate capture of call metadata from Verizon Business Services.

EFF represents 17 professors who signed onto the brief, including: Profs. Harold Abelson and Ron Rivest of the Department of Electrical Engineering and Computer Science at the Massachusetts Institute of Technology; Prof. Andrew Appel, chair of Princeton University's computer science department; Prof. Steven Bellovin of Columbia University's computer science department; and Matthew Blaze, an associate professor in the University of Pennsylvania's Computer and Information Science Department. Other experts signed on to the brief come from Johns Hopkins University, the University of Michigan, Rice University and Purdue.

"Metadata equals surveillance," said security expert and EFF board member Bruce Schneier, another signer of the brief. "It's who we talk to, what we read, and where we go. When the president says 'don't worry, it's only metadata,' what he's really saying is that you're all under surveillance."

While EFF is acting as amicus in this case, it also has two ongoing lawsuits of its own that challenge NSA surveillance. In First Unitarian v. NSA, EFF represents 22 groups whose First Amendment rights to association are violated by the NSA program. Jewel v. NSA is a case on behalf of AT&T customers who were subject to the unconstitutional NSA spying.

For the text of the amicus brief:

https://www.eff.org/document/computer-scientists-amicus-aclu-v-clapper

Cops raid gentlemen’s club to photograph strippers for “investigative purposes”

Police claim they need pictures of every stripper for "investigative purposes."

SAN DIEGO, CA — Dancers at a gentlemen’s club felt harassed and uncomfortable when the establishment was raided by nearly a dozen police officers who demanded to take pictures of the women and examine their bodies and permits.

The raid took place at Cheetahs Gentlemen’s Club on Thursday, March 6th. The evening was disrupted when 10 armed officers swarmed the business to “conduct a random inspection” of the ladies inside.

The 30 dancers were forced into the dressing room, where the police lined them up and photographed their nearly-naked bodies from every angle.

“They made me feel like I was a gang member pretty much and they wanted to document every single one of my tattoos,” a dancer named Katelynn Delorie told ABC 10 News.

The ordeal interrupted business for hours. The owner said its happened before, but the business has never been accused of breaking the law.

“I didn’t know if it was a bank robbery or serial killer on the loose the way they had come in like that,” manager Rich Buonantony said to ABC 10. “It’s just the show of force, show of power was incredible.”

Dancers said police made them produce their papers, and wanted to record their Social Security numbers and license information.

Police officials claimed they needed the nudie photos for “investigative purposes,” even though no one was accused of a crime — like spinning on a pole without government permission.

Permits such as these are themselves a violation of the individuals’ right to work, and the enforcement of the permits is an infringement on the individuals’ privacy as well as the property rights of business owner. The implication is that the government can deny permission to selected individuals and effectively make working illegal for them. Work permits have no place in a free society, as free people do not ask permission to form voluntary contracts and make a living.

The power-tripping permit enforcers did not even leave a tip in exchange for their involuntary gawking session and uninvited photo voyeurism. The police state is truly out of control when it is so intrusive that it makes immodest pole-dancers blush.

Cop Fatally Shoots Service Dog at 9-yr-old Child’s Birthday Party

IDAHO — A stunning video has surfaced showing an officer kick a dog and then shoot it to death.

The dashcam footage does not show the dog trying to attack or bite the officer, but he was barking and clearly afraid of the officer’s presence.

“It was growling at me,” said the officer, after he executed the dog.

The officer can be seen on the dashcam kicking the dog as the dog yelped.

The dog’s owner , Rick Clubb, says that the officer was trigger-happy.

The dog can clearly be heard barking after the officer pointed a gun in its face and kicked it.

The dog got out without a leash after Rick’s 9-yr-old son was celebrating his birthday party.

A neighbor called the police when they noticed the dog outside.

The officer can be seen on video aiming his weapon and firing at the dog despite the fact that the dog was noticeably alarmed after being kicked by the officer.

Hooch is a 7-yr-old black lab and has no history of aggressive behavior or attacks.

He was a gentle family dog, missed by his owners and residents in the community.

In fact Hooch was a certified and trained service pet companion, aiding Rick because he has Parkinson’s disease.

“He didn’t have to pull out his .45 and shoot my dog,” Rick said, adding “It was right outside my son’s bedroom.”

“My dogs, they’d get out, yes, but you don’t have to shoot them. There’s other ways around it besides shooting them. Maybe I deserve a ticket, but I don’t deserve a dead dog.” he said.

Chicago Police “Heat List” Renews Old Fears About Government Flagging and Tagging

By Jay Stanley

The Verge had a story last week (expanding on an August report from the Chicago Tribune that I’d missed) that the Chicago police have created a list of the “400 most dangerous people in Chicago.” The Trib reported on one fellow, who had no criminal arrests, expressing surprise over having received a visit from the police and being told he was on this list. A 17-year-old girl was also shocked when told she was on the list.

The database, according to the Verge, is based on historic crime information, disturbance calls, and suspicious person reports. The CPD’s list is heavily based on social network analysis (which is interesting considering the debates now swirling around the uses of metadata and the analysis such data enables). A sociologist whose work inspired the list, Andrew Papachristos, told the author of a Chicago Magazine piece (which goes into some interesting depth on some of the theory behind the list): “It’s not just about your friends and who you’re hanging out with, it’s actually the structure of these networks that matter.”

The list was funded through a Justice Department grant known as “Two Degrees of Association.” (At least that’s one less hop than the NSA uses.)

I’m still consistently surprised how often things we worry about in the abstract actually show up in the real world. For years, privacy advocates have been warning about how databases might be mined by the authorities for information used to label, sort, and prejudge people. True, there are all too many precedents for this sort of thing, including the CAPPS II program proposed early in the Bush Administration, the nation’s terrorist watch lists, various police gang lists, and the Automated Targeting System. The TSA’s Pre-Check whitelist is also a cousin of this kind of program. All are based on using various information sources and grinding them through one or another logic engines to spit out a judgment about individuals and their supposed dangerousness or safeness as a human being. But still, this program amazes me in how starkly it replicates the kinds of things we have been warning about in many different contexts.

Just two weeks ago, for example, I was asked by several news outlets what we think about police officers using Google Glass. I told them that Glass is basically a body camera, and that the issues were the same as those outlined in our white paper on police use of that technology. The principal difference between Glass and the body cameras being marketed to police is that Glass can also display information. I said this shouldn’t be a problem—unless (I added almost apologetically because of the slightly fanciful nature of this point) the police started using them with face recognition to display some kind of rating or warning for individuals who have been somehow determined to be untrustworthy.

“Of course, that’s not a problem today,” I said, “it’s more of a futuristic concern.”

Ha! Barely a week later, that scenario doesn’t seem so futuristic any more to me, especially at a time when some want to use face recognition to warn them when someone on a blacklist tries to enter a store or school. (True, Google doesn’t currently permit FaceRec apps on Glass, but it’s unclear how long that will last.)

Some further points and questions about Chicago’s heat list:

• The principal problem with flagging suspicious individuals in this way may be the risk of guilt by association. Although we don’t know how valid, accurate, and fair the algorithm is, it’s important to note that even if its measures were valid statistically—that one particular individual really does have an increased risk of crime because of certain things about his or her life—it may still constitute guilt-by-association for a person who actually remains innocent. It is simply not fair for people to be subject to punishments and disadvantages because of the groups they belong to or what other people in similar circumstances tend to do. I keep going back to the example of the man whose credit rating was lowered because the other customers of a store where he shopped had poor repayment histories.
• Why should the police restrict their hotlist to 400? Why not 4,000 or 40,000? In fact, why not give every citizen a rating, between 1 and 100 say, of how “risky” they might be? Then the police could program their Google Glass to display that score hovering above the head of every person who comes into their field of vision. This is a path it’s all too easy to see the police sliding down, and one we should not take even the first steps towards.
• Remember too the point that (as I made here) there are a vast number of laws on the books, many complicated and obscure, and anyone who is scrutinized closely enough by the authorities is far more likely to actually be found to have run afoul of some law than a person who isn’t. In that respect inclusion on the list could become a self-fulfilling prophesy.
• Will the Chicago police carry out any kind of analysis to measure how effective this technique is? Will they look at the success of their predictions, search for any discriminatory effects, or attempt to find out whether these rankings become a self-fulfilling prophesy? The police often have little inclination to do any such things—to adopt rigorous criteria for measuring whether their new toys and gizmos are providing a good return on investment. Purely from an oversight point of view, every aspect of this program would ideally be made public so the world could scrutinize it—certainly the algorithm. Privacy concerns, however, suggest that the names of individuals who are (quite possibly totally unfairly) flagged by these algorithms not be made public, nor any personal data that is being fed into the algorithms.
• A Chicago police commander is quoted as saying, “If you end up on that list, there’s a reason you’re there.” This framing begs the question at the heart of this approach: is it valid and accurate? Such circular logic is genuinely frightening when it comes from a police officer talking about matters of guilt and innocence.
• It’s true that there could be a fine line between laudable efforts to identify and help “at-risk youth,” and efforts to tag some people with labels that are used to discriminate and stigmatize. Research on the “epidemiology of violence” could be valuable if used as part of a public health approach to crime. But if it’s part of a criminal justice “pre-crime” approach, then that’s where the problems arise.

Overall, the key question is this: will being flagged by these systems lead to good things in a person’s life, like increased support, opportunities, and chances to escape crime—or bad things, such as surveillance and prejudicial encounters with the police? Unfortunately, there are all too many reasons to worry that this program will veer towards the worst nightmares of those who have been closely watching the growth of the data-based society.

Conn. police refuse to enforce new gun laws

Anthony Martin

A showdown is developing between a sizable number of Connecticut state police officers and the politicians who passed into law highly restrictive gun control, gun bans, and bans on high capacity magazines.

Gun rights legal expert and activist David Hardy reported Friday that 250 law enforcement officers in Connecticut have signed an open letter stating that they will not enforce the new anti-gun and magazine laws, which they consider to be a violation of the Second Amendment to the U.S. Constitution.

A major news story on these developments is due to be published soon, but Hardy received an advanced notice via email from Tyler Jackson, the head of the Connecticut Peace Officers Association, the organization that sent the open letter.

According to Hardy,

Tyler Jackson has emailed me an interesting story, soon to appear online (I'll link to it once it does)-- the gist is that the head of the Connecticut Peace Officers' Assn has released an open letter stating that the police will not "be party to the oppression of the people of the state by enforcing an unconstitutional law." So far 250 LEOs have cosigned the letter.

Gunowners in the state have already ignored the mandate to comply with the new laws, refusing to register with the state government their possession of so-called "assault weapons" and forbidden magazines.

It is estimated that over 300,000 gunowners have practiced civil disobedience in refusing to register and give up the newly forbidden items. Only roughly 50,000 citizens in the state have complied.

But now these courageous citizens have key support in high places. With at least 250 law enforcement officers joining them in disobeying an unconstitutional law, the gunowners have a new weapon in their arsenal -- the support of hundreds of police officers.

Hardy reported that with the lack of support of police, Connecticut faces massive civilian resistance, with police officers refusing to enforce a law that to most citizens crosses a line that is unacceptable in a free society.

If such a thing can happen in a deeply blue state in New England, what would law enforcement encounter if they attempted such an ill-fated attack on Constitutionally-protected rights in Texas, Wyoming, South Carolina, Utah, or Kentucky?

This is something that the political powers that be in government and law enforcement -- and in the Courts -- should think long and hard about before acting in such a knee-jerk fashion as Connecticut, Maryland, New Jersey, and Massachusetts have done.

The Old Regime and Arbitrary Rule

By Angelo M. Codevilla

President Obama’s claim of executive omnipotence (“I can do whatever I want”) merely brought attention to the constitution under which we have been living: The chief, and those whom he appoints directly and indirectly, are not obliged to any law. Congressmen and senators too, free from votes for which they can be held responsible, can enjoy their rank among brokers of the profit and prestige, of the Trillions, which the modern administrative state dispenses. Obligations exist only among this vast public sector’s functionaries and beneficiaries—the ruling class.

Of greater consequence may be our ruling class’s reaction to that claim. Typically, The Wall Street Journal’s Gerald Seib wrote: ”the nation’s deep and abiding political divide makes political consensus elusive on the biggest issues...Congress virtually irrelevant on some matters.” Hence, future presidents will act the same as Obama. We are supposed to accept this way of life as inevitable and sustainable.

But this constitution is unsustainable precisely because any and all rulers who make up rules as they please thereby release the ruled from the obligation to obey. Since the ruling class does not obey laws, why should we obey them?

The principal feature of today’s ruling class is precisely that it reigns in open contempt of the Constitution of 1787 and of their fellow Americans who wave copies of it in forlorn attempts to limit the ruling class’ pretensions. History is univocal: any ruling class self-referential to the point of defaulting on its obligations leaves the ruled no alternative but to turn their backs on it, and eventually to revolt.

While our ruling class is too busy to read history, China’s Communist Party—heir to the world’s oldest tyrannical tradition—is assigning its cadres to read Alexis de Tocqueville’s The Old Regime and the Revolution—a not-to-be-forgotten account of how France’s monarchy alienated itself from its subjects and drove them first to turn their backs on the system and, then, to hoist it on pitchforks. Although the details of today’s China, America, or the European Union differ from those of France’s Old Regime, attentive readers of Tocqueville discern the main factors that accredit or discredit ruling classes. Let us see.

In short, human collectivities are neither more nor less than networks of mutual obligations. Subjects feel obliged to follow rules and rulers, largely to the extent that the rulers themselves follow rules. Aristotle’ Politics is the primer. Regardless of whether the rulers are many, few, or one, the great divide between regimes is whether obligation runs in one direction only, or in both. Regardless of the rulers’ number, they forfeit voluntary obedience to their regimes insofar as they pursue their interests regardless of the rules by which people live.

Tocqueville’s history of the Old Regime’s decadence details how it overturned centuries of popular customs, imposed countless administrative burdens on the people, changed them constantly, and enforced them erratically. All the while, the Old Regime maintained a class of haughty beneficiaries bereft of real responsibilities. The regime lost respect, and became an object of fear. In this pervasive, intrusive, oppressive, unpredictable government of men, ordinary people found no shelter in custom or common sense, never mind rules. They were reduced to abasing themselves to the administrators, or to bribing them.

Eighteenth century France’s substantial and increasing economic prosperity was not enough to save the regime. The hate and contempt that it had stored up for itself by disrupting the people’s customs and dividing society between arbitrary rulers and powerless subjects extinguished the regime.

Today’s Chinese tyrants know that their country’s unprecedented prosperity will not suffice to keep them in power. Historically literate, they know that Chinese imperial dynasties, tyrannical though their laws were, lasted by administering those laws in ways that had the color of reason and propriety. But they know also that their own dynasty, built as it is on dividing society on the basis of privileged access to power, cannot do that. So, they worry and look for an out.

Historically innocent, our ruling class neither reads nor worries. Rather, it congratulates itself on having erased the distinction between law and administration, and supposes itself to be the measure of right. Indeed, it is eager to further imitate its European counterparts in reducing constitutions, laws, and elections to theoretical status. Europeans long ago noted that their way of life is marred by what they call a “democratic deficit,” but were sure that they could manage this deficit indefinitely. Recent evidence of massive popular disaffection has begun to shake this assurance. None of this however has yet reached America’s rulers.

The sooner it does, the better. While no one can foretell the consequences of the growing deficit of mutual obligations in American public life, we can be certain that Americans, having been raised on the maxim that ”all men are created equal,” are far less tolerant of arbitrary rule than Europeans or Chinese.

Woman arrested on 24th street after crossing intersection

Texas man detained in a psych ward, nursing home without due process

"I tried to get out of Methodist and they locked the door. They wouldn't even let me out."



Charlie Fink says he was locked in a psych ward against his will.

RICHARDSON, TX — A man says that after he drove himself to a hospital for a surgery, social workers detained him against his will and he was then put into a psychiatric ward, and ultimately a nursing home. In a wild exhibition of state power, the man has been a prisoner without due process and no way to free himself.

On February 21st, Charlie Fink, of Arlington, Texas, drove himself to Methodist Richardson Medical Center for a scheduled hernia surgery. Fink, 85, was scheduled to leave three days later. But to his dismay, he was locked in a room against his will and told he may not leave.

With the government complicit in his abduction, he went to the media to help him.
“I tried to get out of Methodist and they locked the door… [APS] told me I wasn’t never coming home.”

“They put me in a mental institution Monday night,” Mr. Fink told MyFoxDFW.

Fink’s friend and neighbor, Kenny McIntosh, received a distressed call from the hospital. “He called me and said, ‘I haven’t left yet; Adult Protective Services lady came in here and told me I wasn’t never coming home,’” said McIntosh.

“I tried to get out of Methodist and they locked the door,” said Fink. “They wouldn’t even let me out.”

In secret, social workers held an emergency “protective” hearing and claimed Mr. Fink was a threat to himself. That allegation is all the state needs to nullify all of the man’s freedom and autonomy. Fink was soon transferred out of the psychiatric ward and over to a nursing home in Arlington.

Mr. Fink says he has no mental illness or dementia, and was afforded no opportunity to defend his freedom in court. The whims of Adult Protective Services (APS) were all it took to make him a permanent prisoner.

Fink expressed his frustration to reporters, saying, “I just don’t think they should have a law like that… it should not be allowed to be.”

APS got involved based on an anonymous tip that Mr. Fink could no longer take care of himself. And that’s just about all it takes to void out the independence of Charlie Fink and millions of other elderly or incapacitated individuals.

“Give him one more chance,” said his friend Kenny McIntosh. “That’s all I’m asking. Give him one more chance and bring him home and let us take care of him.”

But the state doesn’t have to give him anything once he is placed in its captivity. If the temporary guardianship is turned into permanent guardianship, Fink will not see another day as a free man. He will be locked up, forcibly medicated, and controlled in every way until he dies.

Cases of forcible medical detention have been receiving some much needed coverage recently. A teenage girl in Massachusetts named Justina Pelletier has endured over one year of forced drugging in state captivity after her parents were deemed to unsuitable guardians because they disagreed with the psychiatrists at Boston Children’s Hospital. Another detainee, 26-year-old Bret Bohn of Anchorage, has been turned into a permanent ward of the state because the government believes that federally subsidized psychiatrists care more about his well being than his own parents.

No one’s freedom is secure as long as people can be turned into medical prisoners in such a cavalier manner.

Teen indefinitely detained in psych ward after parents seek 2nd medical opinion

by O.D. 

 

Justina’s is only allowed 2 family members per visit, once per week, for one hour.

BOSTON, MA — A judge has ruled that a Boston teen may continue to be held captive in a hospital and forcibly drugged… indefinitely.  The tragic series of events began when a doctor discarded an earlier medical diagnosis and declared another, prompting objections from her parents and threats to discharge her from Boston Children’s Hospital to take her to get a second opinion.  An epic battle of egos ensued, and the hospital decided that the parents’ insolence in challenging the doctor was tantamount to child abuse.  Without a trial or having broken a specific law, the girl was stripped from her parents’ custody and the state of Massachusetts has kept her indefinitely detained in a hospital since February 2013.  Based on the latest ruling, the girl may very well be locked in a psychiatric ward until she turns 18 years old.

www.freejustina.com

A Difference of Opinion

Justina Pelletier is a 15-year-old Massachusetts girl who lived with her parents, had friends, went to school, and enjoyed ice skating and hiking.  She was diagnosed three years ago by respected medical experts from Tufts Medical Center with mitochondrial disease, which causes muscle pain, weakness and loss of coordination. Despite her condition, she led the active life of a normal teenager.

Justina Pelletier enjoyed ice-skating before being confined to Boston Children’s Hospital.

That was before February 2013, when Justina came down with the flu and was admitted to Boston Children’s Hospital (BCH) to see her gastroenterologist, who had recently transferred from Tufts.  A mere three days later, other doctors — primarily neurologist, Dr. Jurriaan Peters — dismissed her previous diagnosis of mitochondrial disease, and declared that her symptoms of difficulty eating and walking, were mostly psychological in origin.  He diagnosed her with somatoform disorder, changing her diagnosis from a physical condition to a stress-related mental illness — a psychiatric disorder that causes sufferers to feel pain, although there is no physical cause.
When Justina’s parents, Lou and Linda Pelletier, challenged the diagnosis by insisting on a second opinion, they were told that they could not take her from the hospital.  A swarm of hospital security guards gathered to remove them. Lou Pelletier actually called 9-1-1 when he sensed things were going abysmally wrong. “I told them ‘my daughter is about to be kidnapped by Boston Children’s Hospital,’” he said to the Blaze. Four days later, a judge awarded custody of Justina to the Massachusetts Department of Children and Families (DCF).
Doctors and hospital psychiatrists wield such power that merely suggesting that a patient’s problems are more psychiatric than physical paves the way for the hospital to call in the state child-protection agency.  Once medical child abuse has been alleged, the state agency is legally obligated to investigate all complaints — and is all too willing to seize children from their families. As the Boston Globe points out:

“Many parents and their advocates complain, however, that the state agency, because of its lack of in-house medical expertise and its longstanding ties with Children’s, is overly deferential to the renowned Harvard teaching hospital.”

“Kidnapped”

“They came in, and they said we cannot take Justina out of the hospital. They called DCF,” says Linda Pelletier, Justina’s mother. “It is kidnapping,” says Lou Pelletier, “We don’t even know what they are doing to her. No one will tell us about her treatment. They have kidnapped her, taken her off medications that worked and left her to suffer in pain.”

Justina Pelletier’s sisters: From left to right, Julia, Jennifer, and Jessica.

Ironically, the Pelletiers say Boston Children’s accused them “overmedicalizing” their daughter before taking her from them and restricting their access to her. Yet, behind the scenes, the hospital called DCF immediately after Justina’s parents challenged the somatoform diagnosis, alleging that they had abused or neglected her. “They were actually being accused of being too active in pursuing health care matters for their child,” West Hartford psychologist Dean Hokanson, who has worked with Justina for five years, told WTIC.

According to FOX CT, a report written in April by a Boston Children’s Hospital physician shows that Justina was taken off of her previously prescribed medication when she entered the hospital:

“Due to concerns regarding Justina’s regressive behavior changes around her family, the multiple medical procedures and care episodes she has been through … and both parents’ resistance towards recommended treatment plans for Justina … a child protection team was convened.”

The Pelletiers insist, and medical paperwork from Tufts Medical Center confirms, that every surgical procedure and medication that Justina received was approved by doctors. “All we want is Justina back. We don’t even know what we are supposed to have done wrong. They say we overmedicated her and forced her to have unnecessary procedures. But all we ever did was follow her original doctors’ orders.”

Justina Pelletier’s family is only allowed two twenty-minute phone calls with her per week.

Justina’s original doctors have now been “cut out of the loop” in exchange for a new team that specializes in Somatoform Disorder.  They moved quickly to dispute Dr. Korson’s working diagnosis of mitochondrial disease for Justina and accused her parents of medical child abuse.  Dr. Korson’s requests to be included in the discussions regarding his patient would be subsequently ignored by both Boston Children’s and the state (DCF). Justina’s former doctor, Tufts Medical Center specialist Dr. Mark Korson sent an email to the Pelletier’s attorney regarding Boston Children’s Hospital, their team of doctors and the somatoform diagnosis:

“I am dismayed. … It feels like Justina’s treatment team is out to prove the diagnosis at all costs. … The (Boston Children’s Hospital) team has demanded that Justina be removed from the home. … This represents the most severe and intrusive intervention a patient can undergo … for a clinical hunch,” Dr. Korson wrote.

Locked in “Bader 5″

Justina Pelletier with her mother during one of her weekly visits allowed by the hospital.

In April of 2013, Justina was moved from her previous room in the hospital to an area of the hospital called Bader 5, the psychiatric ward. Though she vehemently opposed the transfer, Boston Children’s informed Justina that the Commonwealth of Massachusetts — not her or her parents — would be making all choices regarding her future.  Sadly, if the judge hearing her case does not put her custody back in the hands of her parents soon, then Justina may be forced to remain at the hospital until she turns 18 and can legally determine her own destiny. By July, the Pelletiers were informed that the hospital was ready to release Justina, still 14-years-old at the time, from the hospital, though not to them. The new team of doctors “demanded” that Justina be removed from the home and severe restrictions imposed on contact with her parents.

“I truly believe she is being used as a guinea pig for medical experiments.”

 

As the Pelletiers battle for custody of Justina, the Massachusetts Department of Children and Families only allows her parents to visit for one hour and make two twenty minute phone calls per week, and even those are monitored by hospital staff. Her older sister, Jennifer, claims that Justina says, “psychiatric staff have told her she is never coming home. They have apparently told her not to plan any homecoming parties because she isn’t going home. I don’t know exactly when or how many times she has been told this but Justina believes she is going to die in there.”

BCH issued the Pelletiers “guidelines” for their daughter’s care which include “No Second Opinions.”

In the ten months since she was admitted to Boston Children’s Hospital, Justina’s condition has deteriorated to the point where her family says she no longer walks on her own and is now bound to a wheelchair. Her sister, Jennifer, says, “I don’t know what they are trying to do to her but they have destroyed her hope and trust. All we have ever wanted for Justina is for her to get better but she is getting worse.” If she didn’t exhibit the symptoms of Somatoform before she was admitted, her family says that she now does; “She is certainly listless and depressed now – it is like they have created those symptoms to suit their own ends.” Her father added, “I truly believe she is being used as a guinea pig for medical experiments.”

If this all seems a bit Kafkaesque, know that this is not the first time that Boston Children’s Hospital has used its child protection team to threaten parents with state investigations in order to get their way. The Boston Globe report on Justina Pelletier’s case claims at least five instances of “unusually contentious cases over the last 18 months involving Children’s Hospital and the Department of Children and Families.”

“Psychiatric staff have told her she is never coming home. They have apparently told her not to plan any homecoming parties because she isn’t going home. I don’t know exactly when or how many times she has been told this but Justina believes she is going to die in there.”

 

The DCF should be there to mediate between the two parties, but their lack of medical knowledge puts them at the mercy of the hospitals’ vastly larger experience pool. This would seemingly create a conflict of interest for the DCF when considering the allegations of medical abuse made by doctors and psychologists against parents and legal guardians. What must have begun as a well-intentioned plan to identify cases of medical child abuse and intervene on behalf of the patient has predictably expanded into a bureaucracy of “child protection specialists” who sling charges at parents simply because they disagreed with the hospital’s diagnosis and wanted to take their child elsewhere for treatment.

Parents, like the Pelletiers, are at the mercy of doctors who, according to Dr. Eli Newberger, “have enormous and really unchecked power.” Parents accused of medical child abuse risk losing custody of their children with little to no recourse against the byzantine state agency, all because an overzealous hospital staffer with an inflated job title just didn’t like them.

This case has pitted hospital against hospital, doctor against doctor, and parents against the state, with the life of a child hanging in the balance. There will not be any winners now, nor in the future, until the primacy of individual rights is restored to every citizen of every age in this country. Milton Friedman quoting John Stuart Mill perfectly embodies the plight of Justina Pelletier:

“The proper role of government is exactly what John Stuart Mill said in the middle of the 19th century in On Liberty. The proper role of government is to prevent other people from harming an individual. Government, he said, never has any right to interfere with an individual for that individual’s own good.”