Court: Federal Law Allows Lying in TSA-Related FOIA Requests

Moments ago, the remaining claims in my lawsuit stemming from being illegally detained at FLL airport and then lied to about the existence of CCTV video of the incident, were dismissed.

The questions before the court were as follows:

1. Can the TSA (or local governments as directed by the TSA) lie in response to a FOIA request?
   Sure, no problem! Even the NSA responds that they “can’t confirm or deny the existence” of classified things for which admitting or denying existence would (allegedly, of course) damage national security. But the TSA? U.S. District Judge Joan A. Lenard granted the TSA the special privilege of not needing to go that route, rubber-stamping the decision of the TSA and the airport authority to write to me that no CCTV footage of the incident existed when, in fact, it did. This footage is non-classified and its existence is admitted by over a dozen visible camera domes and even signage that the area is being recorded. Beyond that, the TSA regularly releases checkpoint video when it doesn’t show them doing something wrong (for example, here’s CCTV of me beating their body scanners). But if it shows evidence of misconduct? Just go ahead and lie.
2. Can the TSA hide the names and faces of its public-facing employees (and any local law enforcement coming to their aid) who are accused of misconduct?
   You bet! Despite the fact that they all wore name tags and I could have legally taken photos of them, Judge Lenard feels that the public servants who illegally searched and detained me deserve “privacy,” and upheld the TSA’s decision to redact their names from every document sent to me and to blur the entirety of every video sent to me. This is the same TSA that cares so much about privacy that they “accidentally” published a copy of my driver’s license in court filings.
3. Can the TSA frustrate court review of whether or not a document is releasable under FOIA simply by “ordering” it secret?
   Why not?! Judge Lenard ruled that once a document is labeled “Sensitive Security Information” (which the TSA does by merely waiving a magic wand and writing “SSI” on the cover of a document) the U.S. District Court loses its power to review that determination, and the U.S. Court of Appeals is the proper forum. But wait, the Court of Appeals doesn’t evaluate FOIA claims, so now, in order to get a document you want, you must petition 2 courts and pay over $800 in filing fees alone. Yes, clearly this is how Congress intended public records laws — designed to allow transparency in government — to work.

On top of this recent heap of fail, Judge Lenard had previously tossed the bulk of my lawsuit — 19 out of 21 charges — and then refused to allow me to appeal those 19 charges until she contemplated these two remaining charges. She then took 6 months to write this 19-page opinion. Her decision today, therefore, is not much of a surprise to me, since Judge Lenard seems to be more inclined to rubber-stamp government thuggery, through convoluted, ill-supported, and needlessly delayed rulings, rather than to dispense justice. I will be filing a notice of appeal this week, sending this case to the U.S. Court of Appeals for the 11th Circuit, and I am strongly tempted to file a complaint of judicial misconduct based on her purposeful delay of my case and the sheer absurdity of some of her arguments. But, appeal first, misconduct complaint later.

Corbett v. TSA – Full Dismissal (.pdf)

The Border Is a Back Door for U.S. Device Searche

By SUSAN STELLIN

Newly released documents reveal how the government uses border crossings to seize and examine travelers’ electronic devices instead of obtaining a search warrant to gain access to the data.

The documents detail what until now has been a largely secretive process that enables the government to create a travel alert for a person, who may not be a suspect in an investigation, then detain that individual at a border crossing and confiscate or copy any electronic devices that person is carrying.

To critics, the documents show how the government can subvert Americans’ constitutional protections against unreasonable search and seizure, but the confiscations have largely been allowed by courts as a tool to battle illegal activities like drug smuggling, child pornography and terrorism.

The documents were turned over to David House, a fund-raiser for the legal defense of Chelsea Manning, formerly known as Pfc. Bradley Manning, as part of a legal settlement with the Department of Homeland Security. Mr. House had sued the agency after his laptop, camera, thumb drive and cellphone were seized when he returned from a trip to Mexico in November 2010. The data from the devices was then examined over seven months.

Although government investigators had questioned Mr. House about his association with Private Manning in the months before his trip to Mexico, he said no one asked to search his computer or mentioned seeking a warrant to do so. After seizing his devices, immigration authorities sent a copy of Mr. House’s data to the Army Criminal Investigation Command, which conducted the detailed search of his files. No evidence of any crime was found, the documents say.

“Americans crossing the border are being searched and their digital media is being seized in the hopes that the government will find something to have them convicted,” Mr. House said. “I think it’s important for business travelers and people who consider themselves politically inclined to know what dangers they now face in a country where they have no real guarantee of privacy at the border.”

A spokeswoman from Customs and Border Protection said the agency declined to comment about the settlement with Mr. House, or answer questions about travelers’ rights when their devices are seized or inspected during a border crossing.

On Tuesday, however, Michael Friel, a spokesman for the agency, said in an e-mail that searches of electronic devices “are essential to enforcing the law, and protecting national security and public safety – always with the shared goals of protecting the American people while respecting civil rights and civil liberties.”

While many travelers have no idea why they are singled out for a more intrusive screening at a border, one of the documents released in Mr. House’s settlement shows that he was flagged for a device search months before he traveled to Mexico.

On July 8, 2010, Immigration and Customs Enforcement investigators in New York created an alert, known as a TECS lookout, for Mr. House, noting that he was “wanted for questioning re leak of classified material” and ordering border agents to “secure digital media” if he appeared at an inspection point.

TECS is a computer system used to screen travelers at the border, and includes records from law enforcement, immigration and antiterrorism databases. A report from the Department of Homeland Security about border searches of electronic devices says a traveler may be searched “because he is the subject of, or person-of-interest-in, an ongoing law enforcement investigation and was flagged by a law enforcement ‘lookout’ ” in the Immigration and Customs Enforcement computer system.

On Oct. 26, 2010, an automated message notified investigators that Mr. House had an airline reservation on Oct. 30, traveling on American Airlines flight 865 from Dallas-Fort Worth to Los Cabos, Mexico; a later query noted that he would be returning to Chicago O’Hare on American flight 228, landing at 6 p.m. on Nov. 3.

Since airline passengers are required to provide carriers with their birth date and passport number before a flight to or from the United States, and airlines pass that information to Homeland Security (as part of the Advance Passenger Information System), computers matched the lookout alert with Mr. House’s itinerary. Agents were then dispatched to meet him.

“It is clear from these documents that the search of David House’s computers had nothing to do with protecting the border or with enforcing immigration laws,” said Catherine Crump, a lawyer with the American Civil Liberties Union, which represented Mr. House along with the A.C.L.U. of Massachusetts. “The government used its broader powers at the border to conduct a search of House’s devices that no court would have approved.”

The documents, released by the A.C.L.U. on Monday, also detail the extent of the government’s examination of Mr. House’s computer. After a search using 183 keywords that turned up more than 26,000 files, the investigation concluded that “no data was found that constituted evidence of a crime.”

As part of the settlement, the government agreed to destroy all copies of the data taken from Mr. House, and update his file so he will not automatically be detained when he returns to the United States after traveling abroad, which has happened repeatedly since 2010.

Courts have largely supported the government’s authority to search electronic devices when travelers, including citizens, enter the United States. The so-called border search exception to the Fourth Amendment is based on the government’s interest in thwarting illegal activities.

But in March, the Court of Appeals for the Ninth Circuit in California set a new limit on device searches at the border, ruling in United States v. Cotterman that reasonable suspicion of criminal activity was required for a forensic search of a device — for instance, using software to analyze encrypted or deleted data, as opposed to performing a more cursory look at documents, photos or other files.

Customs and Border Protection, part of the Department of Homeland Security, said that it conducted electronic media searches on 4,957 people from Oct. 1, 2012, through Aug. 31, 2013, or about 15 a day, which is similar to the average during the previous two years. About 930,000 people are screened daily by border agents.

But for those pulled aside for a secondary inspection (about 35,000 travelers a day), the experience can be distressing, resulting in a missed connecting flight, a prolonged interrogation, and in Mr. House’s case, the loss of a laptop necessary for his livelihood.

“I was worried about losing my job, and not being able to pay my rent, and what I was going to tell my parents,” said Mr. House, 26, who was working as a computer programmer at the time. He was also concerned about the government getting access to names stored on his laptop of individuals who had donated money to Private Manning’s legal defense. Private Manning was sentenced by a military judge last month to 35 years in prison for providing more than 700,000 government files to WikiLeaks.

Mr. House’s lawsuit was among a handful of cases challenging the government’s authority to search devices at the border. Pascal Abidor, a graduate student in Islamic studies, sued the government after he was detained and his laptop was seized during an Amtrak trip from Montreal to New York in 2010. A decision in that case is expected soon, according to the case manager for Judge Edward R. Korman, who is writing the opinion for the United States District Court for the Eastern District of New York. Mr. Abidor is also being represented by Ms. Crump of the A.C.L.U.

For now, the law remains murky about any limits on intrusive border inspections, including how long travelers can be detained, whether they are required to provide passwords for their devices — Mr. House refused — and whether they must answer any question an agent asks. Responses may be recorded in a traveler’s TECS file and shared with other government agencies.

Supreme Court Weighs When Online Speech Becomes an Illegal Threat

By David Kravets

The Supreme Court is being asked to decide when an online threat becomes worthy of prosecution, in what could be the first internet speech case to reach the high court’s docket for the 2013-2104 term beginning next month.

The justices are weighing whether to review the prosecution of an Iraq war veteran handed 18 months (.pdf) in prison for singing in a 2010 YouTube video that he would kill a local Tennessee judge if the judge did not grant him visitation rights to his young daughter.

“We think its potentially quite a significant case. People say things in the online world that they don’t mean seriously,” said the veteran’s attorney, Chris Rothfeld. “Second, it’s difficult to tell in the online world how a statement is intended. People say things and write things and they are read in an entirely different context.”

The case comes at a time when it has become routine for adults and juveniles to be prosecuted in federal and state court for their threatening online speech.

Rothfeld maintains that the federal threats law — which dates to a 1932 statute making extortion illegal and applies to the offline world as well — is unconstitutional. A felony conviction, he said, is based on whether a “reasonable person” would believe the threatening statement was made with the intent to inflict bodily injury and was uttered to achieve some goal through intimidation.

Rothfeld argues that what should matter is whether the person making the threat was serious, not whether a “reasonable person” would conclude he or she was.

“Whose state of mind do you look at? We say you must look at the state of the mind of the speaker,” he said.

In his eight-minute YouTube video, defendant Franklin Jeffries strummed a guitar while singing a song of revenge.

“And when I come to court this better be the last time. I’m not kidding at all, I’m making this video public. ‘Cause if I have to kill a judge or a lawyer or a woman I don’t care,” Jeffries chants on the video.

“Take my child and I’ll take your life,” the song continues.

Rofthfeld said his client was an Iraq war veteran suffering post traumatic stress disorder and never intended to carry out his words.

“He was encouraged by psychologists to vent in song,” he said.

Of eight circuit courts of appeal to decide the issue, only the San Francisco-based 9th U.S. Circuit Court of Appeals has chosen to view the law the in line with Rothfeld’s interpretation. When there is a split in circuits, that’s usually when the high court intervenes to assure conformity across the country.

“Although some disagreement exists among the courts of appeals on the question whether proof of a true threat requires proof of a subjective intent to threaten, review of that question is not warranted because the circuit split is shallow and may resolve itself without this Court’s intervention and because any error was harmless,” the government wrote the justices while urging them to reject the case.

The justices are to meet in private September 30 to discuss whether they will review the case.

The Obama administration argued in a brief to the justices that the law is designed to protect individuals from fearing violence, regardless of whether the person who made the threat actually meant it.

The Solicitor General’s office wrote, “requiring proof of a subjective intent to threaten would undermine one of the central purposes of prohibiting threats.”

Ohio Cop Caught on Camera Terrorizing Family

A bizarre video from Ohio showing a cop holding three citizens at gunpoint (or maybe it was just a Taser) for apparently asking him to move from their driveway.

At one point in the video, the cop walks up to a witness trying to place a call and yanks the phone out of his hand, tossing it on a nearby lawn where the man just retrieves it.

Aaron Tatkowski says he spent Sunday with his family, and when he returned home, he noticed his daughter-in-law had been pulled over by a Washington Township Police officer.

The police report states Cassandra Meyers was cited for a license plate violation. Tatkowski says he didn’t like the way the officer was talking to Meyers, so he questioned the officer about his behavior.

“He hollered for me to get back in my truck, so I got back in my truck,” Tatkowski said. “Next thing you know, I’m yanked out of the truck and it made my girlfriend say a few things.

He yanked her out of the truck.” Tatkowski says the officer threw him, his girlfriend, his daughter-in-law, and 14-year-old son to the ground.

The police report says commands were not listened to, so Officer Hart got out his taser and handgun. Tatkowski says he complied with Hart, but worried for his two granddaughters, who were still in his truck, so he asked witnesses to start recording what was happening.

Public Masturbation Declared Legal in Sweden After Landmark Trial

Sweden is now "okay" with public masturbation. On June 6, a 65-year-old man took off his shorts at a beach near Stockholm and began masturbating into the ocean. The man was charged with sexual assault, but was acquitted last week after a judge ruled he was not targeting a specific person.

Even though the Södertörn District Court's judgment stated it “may be proven that the man exposed himself and masturbated on this occasion,” the court decided the man had not committed a crime, a decision the public prosecutor agreed with, though he said in the future public masturbation might be considered disorderly conduct.

"For this to be a criminal offence it's required that the sexual molestation was directed towards one or more people," Olof Vrethammar said. "I think the court's judgement is reasonable. With that we can conclude that it is okay to masturbate on the beach."

The ruling in the case comes just three months after Sweden's last major sex scandal, when police in Stockholm announced that a man who fucks bicycles was on the loose.

MPAA and RIAA Teach Copyright at Kindergartens

The Center for Copyright Information, a partnership between the MPAA, RIAA and five large U.S. Internet providers, is teaching copyright classes in California public schools. The group, which also heads the six-strikes alert system, has developed a curriculum targeted at kids from kindergarten through sixth grade. Critics question how objective the educational material will be and fear that it will lack balance.

Over the past year the focus of anti-piracy enforcement has shifted from mandatory legislation to voluntary agreements between copyright groups and other stakeholders.

The Center for Copyright Information (CCI) is one of the pioneers in this field. Earlier this year the coalition of copyright holders and ISPs launched the six-strikes Copyright Alert System, but the non-profit company has additional plans to tackle the piracy problem.

CCI’s Executive Director Jill Lesser addresses the House Judiciary Subcommittee today, explaining what efforts the group has taken so far and what it hopes to achieve in the near future.

Lesser states that it’s too early to evaluate the effectiveness of the alert system. However, through customer research the CCI has learned some valuable insights that will help to frame their educational messages.

“To support the companies’ work, the CCI engaged in consumer research that helped us understand what consumers do and do not know about P2P technology and their level of understanding about the copyright laws.”

One of the troubling findings of the research is that most consumers don’t understand or appreciate copyright.

“We found that most consumers do not understand or appreciate concepts that many of us in the policy and legal communities take for granted – like the meaning of copyright,” Lesser notes.

These and other insights are used to better communicate their anti-piracy messaging, and CCI hopes that this will eventually lead to less copyright infringements.

“This research is helping us to better understand the drivers of consumer behavior around piracy and, we hope, will help us to improve the CCI’s effectiveness in communicating our messages and ultimately reduce the level of online piracy and increase content consumption through legal means.”

Aside from the alerts, which are targeted at the person who pays the Internet bill, the CCI is also reaching out to a much younger group of U.S. citizens. Together with iKeepSafe they have developed a new curriculum that will teach the value of copyright to California kids, starting at kindergarten.

“We have developed a new copyright curriculum that is being piloted during this academic year in California,” Lesser informs the House Judiciary Subcommittee.

“The kindergarten through sixth grade curriculum, entitled ‘Be A Creator’™, is the result of CCI’s partnership with the California School Libraries Association and iKeepSafe, a leading digital literacy organization.”

I Play Fair (large)



The pamphlet pictured above is one of the course materials that’s currently listed on CCI’s website. The “Be A Creator” program was also mentioned during the launch of the Copyright Alert System, but at the time it wasn’t known that kindergartens would also be targeted.

TorrentFreak talked to Public Knowledge president and co-founder Gigi Sohn, who is a member of CCI’s advisory board. She assured us that there are several safeguards in place to assure that the end product will be objective. The advisory board was brought in for advice at various stages in the process, and the California School Libraries Association is a known fair use proponent.

“Rest assured if this curriculum is perceived as being anything but fair, it won’t proceed beyond the pilot stage,” Sohn says.

The Electronic Frontier Foundation (EFF), however, is skeptical about the educational program, and fears that it will be biased towards copyright holders.

“Based on what we’ve seen so far, that curriculum will do little to help kids understand the copyright balance. Instead, it is going to teach kids that creative works are ‘stuff’ that can be owned and that you must always check before using that ‘stuff’,” the EFF commented.

While we haven’t seen the full course materials, the EFF has a valid point. The CCI consists of copyright holders and Internet Providers who will most likely highlight other copyright aspects than free speech scholars. While there are other parties that will add balance, it can still create distrust.

Earlier this week the Internet Society warned that the CCI’s educational copyright alerts might be biased to a certain extent. The organization encouraged CCI and other groups to use neutral third parties for their educational efforts.

Whether the CCI plans to do something with this critique remains to be seen.

Dragneting the Modern Media

By Gabe Rottman

We're used to talking about press freedoms in the context of the First Amendment: "Congress shall make no law . . . abridging the freedom . . . of the press." But, especially in light of the ACLU's recent FBI report, Unleashed and Unaccountable, we could stand to reflect on the very close relationship between the Fourth Amendment, privacy rights, and press freedom.

In particular, the very phenomenon used in pre-revolutionary America to oppress the colonists—and earlier in Britain to target the press—is happening again today. The genesis of the Fourth Amendment lay in the abuse of general warrants, particularly the use of "writs of assistance" in the American colonies. They were most famously used by British customs inspectors in colonial America to search anything, anywhere, anytime for tax evasion, without any suspicion of wrongdoing or any indication that the search would turn up anything incriminating.

But, and as extensively detailed in a major Supreme Court case from the mid-1960s, Stanford v. Texas, the use and abuse of general warrants goes much further back, including back across the pond. In the religious and political strife of the 16th through 18th centuries, general warrants were "systematically used" to give the English king's men "roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan."

In fact, one of the major British cases invalidating a general warrant, Entick v. Carrington, is really a case about freedom of the press. Acting on the orders of Lord Halifax, several king's messengers broke into the home of the publisher of a pamphlet called "The Monitor, or the British Freeholder;" ransacked the place; and carted off a bunch of papers wholesale (presumably to peruse for royal libel later, at their leisure). The publisher then sued for trespass (against the king, remember) and surprisingly won.

Key to the decision was this observation: "[t]his power . . . is an execution upon all the party's papers . . . . His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal . . . and before he is convicted either of writing, publishing, or being concerned in the paper" (emphasis added). Translation: positively, no dragnets.

Unfortunately, the events of the last decade or so have dulled that 250-year-old pearl of wisdom, both with respect to privacy generally and to freedom of the press specifically. As we now know through the Snowden documents, the government has adopted the opposite approach for detailed communications records. We need everything, they say, so we can search it quickly—not unlike the general warrants of Georgian Britain, which were used to search first and then look for bad stuff.

For press freedoms, the story is just as bleak. As detailed in Unleashed and Unaccountable (page 32), the FBI has repeatedly used certain powers—including so-called "exigent letters," for which it had no legal authority, and grand jury subpoenas—to seize sizeable quantities of records from the news media in the hopes of ferreting out national security "leakers." Several of the requests, including the subpoena for call records covering more than 100 Associated Press phone lines, appear uncomfortably like a blanket attempt to get "all the party's papers."

Fortunately, driven by the AP uproar and the revelations that an FBI agent had characterized a reporter as a possible spy for attempting to solicit classified information, the Department of Justice has taken steps to rein in U.S. attorneys and the FBI. Additionally, Congress and the administration have breathed new life into a federal media "shield" law, which, though quite far from perfect, is a good incremental step.

Part of the genius of those venerable British decisions is that they linked personal privacy with free expression. If the government can issue general warrants, it's going to use them to bring the press to heel, which hurts us—the beneficiaries of the fourth estate's efforts to expose government wrongdoing—the most. For that reason, privacy and press freedoms will forever be inextricably linked, and, indeed, each serves as a guardian of the other.

Man assaulted, arrested, and put on trial for walking down wrong side of the street

"He said do I really want to fight him? I haven't done anything wrong."

JACKSONVILLE, FL — A Florida man is suing the local Sheriff’s Office after reportedly being violently assaulted and arrested by a police officer for the crime of “walking on the wrong side of the road” as a pedestrian. In arresting this criminal, the officer punched him in the face and threatened him with a taser. The offense was taken all the way to trial.

Last December, Bobby Wingate, of Jacksonville, Florida, was on his way to an appointment in the neighborhood of Arlington when he was suddenly stopped by an officer of the Jacksonville Sheriff’s Department.

As reported by First Coast News, The officer pulled up alongside Wingate while he walked along Oliver Street and asked him to stop. When he explained to the officer that he was late for an appointment, the officer cited Wingate for the heinous offense of “walking down the wrong side of the road.”

Next, as if to impress upon him the seriousness of the crime, the officer punched him in the face. Then, according to court records, he “engaged his taser.” Fearing for his safety, Bobby Wingate called 9-1-1 for help. On the recording of the call Wingate can be heard telling the dispatcher, “He said do I really want to fight him? I haven’t done anything wrong.”

The Sherriff’s Officer arrested Wingate, charging him with resisting arrest without violence and walking down the wrong side of the road. He then spent the night in jail, and the State Attorney’s Office brought the case against him to trial.

Once in court, the judge threw the case out and dropped all of the charges because of lack of evidence against Wingate. Not the least of which was the arresting officer’s inability to remember which side of the road Wingate was walking on.

“The conduct that is outlined in the transcript and the 9-1-1 call is not only breathtaking, it’s outrageous, it’s disgraceful,” said Andrew Bonderud, Wingate’s civil attorney.”

Bonderud also said he believes client was a target of racial discrimination. His opinion is supported by the staggering absence of any real evidence, suggesting that Wingate was not arrested for anything other than “walking while black.”

Wingate is now suing the department in civil court not out of malice towards the arresting officer, but as a matter of principle. He says, “If I ever see him again, and he needs my help for something, I’ll help him.” In addition to a monetary settlement, Wingate is seeking an apology from the department.

Meanwhile, the JSO Officer at the center of this event is still on the job, and has yet to be investigated internally by the department. The JSO will not comment on either case due to the pending lawsuit.

This incident is a good example of the benefit of knowing your rights when dealing with the police. The ACLU offers a detailed guide on what to do if you are stopped by police. I recommend that in addition to familiarizing yourself with the guide’s main points, you download their handy PDF version (which conveniently folds down into a card the size of your wallet). Keep it next to the laminated copy of CPR instructions that you carry on your person at all times.

As far as the federal government is concerned, individuals are afforded the Fourth Amendment’s protections against unreasonable searches and seizures in the same manner as they apply to property. As such, there is no federal law requiring an individual to identify herself. Hiibel v. Sixth Judicial District Court of Nevada held that the States, however, are free to enact laws requiring citizens to provide their identity, provided the officers have reasonable suspicion that a specific person is involved in a specific crime.

Police-citizen encounters are generally broken down into three tiers: consensual encounters, investigative detentions and arrests. “Stop and identify” statutes, the law in 24 states, fall under the detention category, and allow police to arrest suspects who refuse to identify themselves. While the specifics of each law vary greatly from state to state, there is one constant; without reasonable suspicion of a specific crime, the police cannot force you to identify yourself. The key word here is “reasonable,” and its vagueness allows the police a wide latitude when dealing with the public.

Bobby Wingate appears to have initially been involved in a consensual encounter with the officer. He should have been allowed to terminate the encounter and leave freely without answering any questions or identifying himself. Lacking reasonable suspicion of specific crime, the officer escalated the encounter past the level consensual by asserting that Wingate was walking on the wrong side of the road. The officer’s reasonable suspicion was so vague that he later failed to articulate to the court any of the specifics of the alleged crime.

Having been detained, assaulted, arrested and tried in court on false charges; Wingate will now have his day in court, and justice may yet be served.

In lieu of any apparent crime, the way to find out if the police have reasonable suspicion is to determine if you’re free to go. You can do this by saying, “Excuse me officer. Are you detaining me, or am I free to go?” If the officer says you’re free to go, leave immediately and don’t answer any more questions. As the police state endeavors to legislate our rights into ever narrower parameters, it is more important than ever that we know our rights and understand the threats to our freedom and liberty. The police are counting on our continued ignorance, and we can no longer afford to remain oblivious to the abuses committed against the innocent by those tasked to “protect and serve.”

Intellectual Property is Not True Property

by David S. D'Amato

As the legal melee between Apple and Samsung continues, the “patent wars” are again front-page news. During August of this year, the International Trade Commission, successor to the Progressive Era-founded Tariff Commission, announced that Samsung can no longer import into the U.S. certain mobile devices. The Commission found that the subject products infringe on a number of Apple’s patents, but the president may still veto its decision regarding importation. As it happens, when the reverse scenario came about in June, and the Commission banned Apple from importing products infringing on Samsung patents, Obama did wield his veto. The legal and political drama at hand is just the latest installment in an ongoing string of lawsuits aimed at protecting, in the words of The New Yorker’s Nicholas Thompson, “patents that are often either inscrutable or mundane.”

In a world where the “new economy” — the Information Age’s digital one — has rendered traditional capital goods such as heavy machinery significantly less important, issues surrounding intellectual property are arguably more urgent than ever before. The course that the political class has chosen in its analyses of intellectual property law has already had sweeping implications. As law professor Mark A. Lemley wrote back in 2003, “Instead of concluding that cyberspace is outside of the physical world, courts are increasingly using the cyberspace as place metaphor to justify application of traditional laws governing real property to this new medium” (emphasis added). We are thus left with the question of whether this analogy between ideas in the digital world (as well as more generally) and property in the physical world is apt; certainly it is convenient, but we must ask whether it actually clarifies the issues at play or obscures them, creating a false equivalency that leads to social and economic harm.

Economics assays to confront the very real problems presented by the relationship between scarcity and the exchange of tangible, valuable goods and services. Regardless of the involuted claims of intellectual property proponents, ideas — which are the object of patents and copyrights — are not scarce. Indeed, unlike many of the other things we may consider as non-scarce, ideas are not even capable of becoming scarce, existing in the immaterial, conceptual realm, not the concrete, physical world. Legitimate property can apply only to that latter sphere, as a necessary expedient that allows free individuals in civil society to resolve controversies and to form secure expectations about the future before controversies arise. It follows that individuals can only own things, exercising exclusive rights over them, where those things are of the sort that requires exclusion in order for justice to be done. For instance, the substance of my ownership of my automobile would be rather flimsy if everyone in my neighborhood were allowed to use it freely, without permission as well. Ideas are a different matter of a different nature. My exertion of “your idea” (we will come to the absurdity of this phrase below) in no way limits or encroaches upon your absolute and unqualified use and enjoyment of it. Simply put, there could never be a circumstance in which the supply of ideas became finite, in which exclusion might be justified.

Not only is the grant of ownership rights over ideas ridiculous, it is also, in point of fact, impossible. When intellectual property laws undertake to grant such ownership, then, the result as a practical matter is that those laws do ultimately apply themselves to scarce material objects — just not in any defensible manner. Intellectual property privileges simply confer upon their beneficiaries the prerogative to coercively prohibit others from using or arranging their rightful personal property in otherwise peaceful and permissible ways. Patents decree that an individual cannot employ known laws of physical nature together with her own property in ways particularly set forth in special government documents; they therefore necessarily endow their holders with partial ownership rights over others’ property.

Any attempt to neatly partition the contributions made by one mind or another, through all the ages of invention and scientific discovery, is vain and fruitless to the point of inanity. Inventions constantly both absorb and propagate one another, plagiarizing, consuming and collaborating to create still newer inventions. To source any idea whatsoever to a particular individual or group is to assume that we know far more than we ever could about the full picture of the idea’s germination and evolution. Given that every idea has had thousands of contributors through the years, to choose a single beneficiary (whether individual or corporate) of intellectual property’s limited monopolies is foolish and uneconomical even taken on its own terms. This free flow of ideas is extremely beneficial and is fostered by genuine free market competition.

Intellectual property on the other hand — quite contrary to the empty claims of its advocates — is a millstone around the neck of innovation and technological progress, a political mechanism for stifling both in favor of bare monopoly. And to be sure monopoly has always been the raison d’être of intellectual property protections. As nineteenth-century libertarian Joshua King Ingalls observed, “The interest manifested in the rights of authorship and of invention is too flimsy a pretense to deceive any but those who court deception.” As a historical matter, the real purpose of intellectual property has not been to protect inventors and authors, but rather to concentrate useful, valuable information in the hands of a privileged class, tied to the cynosures of political power.

Our patent attorneys will carefully explain that general laws of science are of course not susceptible to patent protection, yet the bounds of what is a general scientific principle are drawn with a stark arbitrariness. As philosopher Roderick Long notes, because “[l]aws of nature come in varying degrees of generality and specificity,” the distinction between protected invention and unprotected law of nature “is an artificial one.” Today’s intellectual property protections have retained their original character as political, as opposed to economic, phenomena, granting arbitrary special privilege rather than safeguarding legitimate property rights. Considered in the light of praxeological and libertarian insights, intellectual property must be judged as among the most serious offenses against property and free market principles, protectionist and anti-competitive to its core.

Obama administration asks Supreme Court to allow warrantless cellphone searches

By Timothy B. Lee

If the police arrest you, do they need a warrant to rifle through your cellphone? Courts have been split on the question. Last week the Obama administration asked the Supreme Court to resolve the issue and rule that the Fourth Amendment allows warrantless cellphone searches.

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from "My House." They opened the phone to determine the number for "My House." That led them to the man's home, where the police found drugs, cash and guns.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man's argument, ruling that the police should have gotten a warrant before accessing any information on the man's phone.

The Obama Administration disagrees. In a petition filed earlier this month asking the Supreme Court to hear the case, the government argues that the First Circuit's ruling conflicts with the rulings of several other appeals courts, as well as with earlier Supreme Court cases. Those earlier cases have given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers. The government contends that a cellphone is no different than any other object a suspect might be carrying.

But as the storage capacity of cellphones rises, that position could become harder to defend. Our smart phones increasingly contain everything about our digital lives: our e-mails, text messages, photographs, browser histories and more. It would be troubling if the police had the power to get all that information with no warrant merely by arresting a suspect.

On the other hand, the Massachusetts case involves a primitive flip-phone, which could make this a bad test case. The specific phone involved in this 2007 incident likely didn't have the wealth of information we store on more modern cellphones. It's arguably more analogous to the address books and pagers the courts have already said the police can search. So, as Orin Kerr points out, if the Supreme Court ruled on the case, it would be making a decision based on "facts that are atypical now and are getting more outdated every passing month."

Texas man was beaten by police, nearly drowned after being busted for sleeping in his own car without a permit

by Liz E



Reginald Deon Davis’ mugshot, clearly showing facial bruising and swelling from being beaten. (Source: Galveston Police Department)

GALVESTON, TX — After doing what he thought was the responsible thing, a man napping by the side of the road found himself being savagely beaten by police and almost drowned in the surf. He is now suing the city, as well as two officers involved in the incident, in federal court.

Reginald Deon Davis, 34, was returning to his home in La Marque after a friend’s birthday party early in the morning of March 19th when he decided that he was too exhausted to drive any further. Pulling his car over to the seawall, Davis let his wife know he would be late coming home and dozed off. Unfortunately for Davis, it is against city ordinance to sleep in a car without a camping permit. Around 1:45AM, Officer Jose Santos, one of the officers named in the lawsuit, found Davis sleeping and asked him to get out of his vehicle.

This was a tough spot for Davis to be in, as he had two strikes and some outstanding traffic violations. After being searched and asked to stand by the patrol car, Davis fled on foot. Officers reported that they believed Davis was trying to dispose of some evidence into the ocean, but Davis maintains that he was running in fear of losing his freedom. He was possibly facing a third strike, which could mean an exorbitant prison sentence.

Officer Santos fired a taser to subdue Davis before tackling him and holding him in the sand. Soon more officers arrived and began surrounding Davis, punching and kicking him in the head and holding his head submerged in the tide, commanding him to put his hands behind his back. At the time, Davis was wearing a cast on his right arm.

“You saw at least 20 strikes. You saw at least three kicks to the face. You saw a man’s head being held under water,” Chad Pinkerton, Davis’ attorney, told CBS News. “That’s excessive force.”

Even though the beating was caught on a police dash cam, the department is standing by the actions of the officers. “Police work is dirty sometimes and our people are out there doing a tough job. And they did this within policy. Of course it looks terrible, but it is what it is, and they were making a lawful arrest,” Galveston Police Chief Henry Porretto said.

According to the local ABC affiliate, Porretto said, “Our officers were faced with a violent offender, who ran, assaulted an officer and continually resisted arrest.”

Davis served 100 days for evading arrest, but was not charged with assaulting an officer.

Why a victimless crime like sleeping in your own car needs to be enforced with such intensity as to warrant a pursuit and a beating remains unclear. The excuse of preventing the man from disposing of “evidence” only leaves us to conclude that the officers were using violence to attempt to preserve their chance at enforcing prohibition laws, of which they had no reason to believe Davis was breaking.

You can watch the dash cam footage of the incident below (WARNING: GRAPHIC CONTENT).

Shotgun-toting enviro-cops raid Alaskan gold miners to check water cleanliness

“Imagine coming up to your diggings, only to see agents swarming over it like ants, wearing full body armor... all packing side arms,” said one miner.

CHICKEN, AK — A group of gold miners working in the remote Alaskan wilderness were shocked when they saw eight members of a well-armed gang emerge from the forest pointing shotguns at them. The gang was wearing body armor and claimed to be the police. Why were these shotgun-toting men swarming their job site? A water cleanliness check.

“Imagine coming up to your diggings, only to see agents swarming over it like ants, wearing full body armor, with jackets that say POLICE emblazoned on them, and all packing side arms,” said miner C.R. “Dick” Hammond to the Alaska Dispatch.

“How would you have felt?” Hammond asked. “You would be wondering, ‘My God, what have I done now?’”

The armed agents were a part of the Alaska Environmental Crimes Task Force, representing as many as 10 state and federal agencies, including the federal Environmental Protection Agency (EPA). They purportedly were searching for violations of Section 404 of the Clean Water Act. The incident occurred the week of August 19, 2013.

Alaska Governor Sean Parnell said he would order an investigation of the incident, adding, “this level of intrusion and intimidation of Alaskans is absolutely unacceptable.”

The EPA justified the aggressiveness of the raid with the excuse that the Alaskan wilderness was home to rampant “drug and human trafficking.” Keep in mind, the town of Chicken itself has only 17 permanent residents, an nobody had ever heard of any drug or human trafficking in their remote outpost.

The EPA went on to claim that they received the tip about the trafficking from the Alaskan State Troopers. But the spokeswoman for the state troopers “told the newspaper that it did not advise EPA officials to conduct the raid, adding that no evidence exists to believe those crimes are occurring,” reported Fox News.

“Their explanation — that there are concerns with the area of rampant drug trafficking and human trafficking going on — sounds wholly concocted to me,” U.S. Senator Lisa Murkowski told the Alaska Dispatch. “This seems to have been a heavy-handed and heavy-armor approach. Why was it so confrontational? The EPA really didn’t have any good answers for this.”

Why must every trip in the field be a paramilitary excursion? If water cleanliness is a legitimate function of government, why must it be a federal matter? And what prompted this raid? Is it not appropriate to wait for a complaint, or tangible reason to begin an investigation, before sending in an team just to perform a “check”?

UPDATE: (9/14/2013) The tiny town of Chicken saw some high-profile activity this week, as a town hall meeting was called to discuss the incident, attended by Governor Sean Parnell, congressional aides, federal bureaucrats from the Bureau of Land Management (BLM), and the Alaska Deputy Director for the EPA, Ken Fisher. The meeting was attended by 40 people — more than twice the population of the remote mining outpost.

Angry residents tore into the federal bureaucrats over their excessive enforcement tactics.

“There is nothing casual or consensual about eight armed men who come running into camp, and head straight for your sluice box,” said David Likins, an area gold miner.

“I thought they were starting World War III,” said miner Linda Kile, her voice quivering.

Some pointed out that charging into a gold miner’s claim with guns drawn could be perceived as a robbery. But the EPA boss credited his men anyway.

“We believe there were no problems because of the actions of our trained and professional officers,” said Ken Fisher, spurring the crowd into rowdy laughter.

Girl, 13, charged as sex offender and victim

By Pamela Manson

Salt Lake City - Utah Supreme Court justices acknowledged Tuesday that they were struggling to wrap their minds around the concept that a 13-year-old girl could be both an offender and a victim for the same act - in this case, having consensual sex with her 12-year-old boyfriend.

The Ogden, Utah, girl was put in this odd position because she was found guilty of violating a state law that prohibits sex with someone under age 14. She also was the victim in the case against her boyfriend, who was found guilty of the same violation by engaging in sexual activity with her.

"The only thing that comes close to this is dueling," said Associate Chief Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender.

And Chief Justice Christine Durham wondered if the state Legislature had intended the "peculiar consequence" that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.

The comments came in oral arguments on a motion asking the high court to overturn the finding of delinquency - the legal term in juvenile court for a conviction - against Z.C., who became pregnant after she and her boyfriend engaged in sex in October 2003.

State authorities filed delinquency petitions in July 2004, alleging that each had committed sexual abuse of a child, a second-degree felony if committed by an adult.

The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated.

Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime.

Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor.

For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.

A juvenile court judge denied the motion by Z.C., who then admitted to the offense while preserving her right to appeal to a higher court. The boy did not appeal.

The Utah Court of Appeals last December upheld the judge's refusal to dismiss the allegation, saying the law's "rigorous protections" for younger minors include protecting them for each other. Z.C. then appealed to the state Supreme Court.

At Tuesday's arguments, Matthew Bates, an assistant Utah attorney general, argued the prosecution of the girl was not unreasonable. He said the statute in question is designed to prevent sex with children who are 13 and younger, even if the other person is in the same age group.

By passing that law, legislators were sending a message, Bates said: Sex with or among children is unacceptable.

Randall Richards, the girl's attorney, argued that prosecuting children under a law meant to protect them is illogical.

"A child (victim) cannot also be a perpetrator in the exact same act," Richards said.

The Utah Supreme Court will issue a ruling later.

How the State Destroys Social Cooperation

by Gary Galles

Many of our present economic difficulties, while blamed by politicians on freedom and markets, are in fact the long-run effects of government policies emphasizing short-run, visible benefits that mask hidden or delayed costs. In particular, our economic woes reflect government’s reliance on coercion, whose harmful effects expand over time, in contrast to voluntary cooperation, whose beneficial effects expand over time.

Voluntary market cooperation expands because the more time sellers have to respond to increases in demand, the more their incentives lead to better ways of accommodating buyers with improved output. Similarly, the more time buyers have to respond to increases in supply, the more profitable uses are discovered. That is, when you give individuals better incentives to voluntarily cooperate in the marketplace, over time, they discover and implement more effective ways to do so, expanding cooperation and the mutual benefits that result.

We see this everywhere in personal computing and technology in which convenience, computing power, and portability of devices increase constantly, at rates much faster than most ever anticipated in earlier times. In contrast, when the state employs coercion, it encourages buyers and sellers to act against what would be in their self interest in a free economy. Over time, those who would otherwise spend time thinking about their trading partners, instead respond to coercive measures by expanding the ways they can evade the burdens imposed. In such a situation, social cooperation contracts.

Taxes (including deficits, which are delayed taxes), subsidies, and mandates all illustrate coercion’s progressive undermining of social cooperation. For example, when government raises taxes on income earned by benefiting trading partners, those who provide the benefits earn less over time. In response, those burdened with the new taxes have incentive to do less to benefit others while substituting more effort to avoid taxation.

Moreover, when government mandates employer-provided “free” benefits, employers then reduce other parts of compensation that many workers may actually value more than the mandated benefits, to “pay” for them. Or employers may simply hire fewer workers. We see this already in Obamacare’s mandated increases to employers’ labor costs. Employers have cut jobs and hours (the mandates don’t apply to under-30-hour-per-week workers), or employers squeeze other parts of employee compensation, including on-the-job training, which is a crucial mechanism through which workers learn their way to success.

Price ceilings such as rent control, and price floors such as the minimum wage, also illustrate coercion’s increasing erosion of social cooperation. In response to such mandates, people increasingly find ways to do less of what violates their self-interest, which entails cooperating less well with others. As Friedrich Hayek noted, “Any attempt to control prices or quantities of particular commodities deprives competition of its power of bringing about effective coordination of individual efforts.”

When government holds apartment rents artificially low, they reduce landlords’ incentives to continue supplying dwellings. Over time, fewer units are constructed (seen under every rent control regime) and owners find other ways to leave the rental housing market. This takes place through a variety of mechanisms, including condo conversions, which removes units from the available rental stock in order to evade restrictions imposed on rent, but not on mortgage payments. Owners might also respond by reducing maintenance and upkeep of units which rent controls make unprofitable. The end result is less social cooperation and long-term deterioration of the existing housing stock.

When government holds the price of low-skill workers artificially high, as with the minimum wage, government reduces employers’ incentives to use low-skill workers in production. Over time, employers find more ways to conserve on that artificially scarce input, reducing employment via changing production processes and products, substituting capital for labor, reducing output, moving jobs elsewhere, and to generally cooperate less with low-skill workers. For instance, restaurant industry responses to minimum wage hikes have included moving to buffets, which require fewer workers, expanding slow-cooked menu choices (essentially substituting crock pots for workers), and self-serve soda dispensing. Similarly, the higher the price of a worker relative to a computer, the more employers will substitute computers for labor.

Furthermore, the constant prospect of endless and arbitrary changes in taxes and regulations and other forms of coercion increases the risks involved in trying new and innovative ways of cooperating with others in search of profits. And because coercion expands evasion efforts over time, more and more resources go to enforcement, taking resources away from productive uses and violating principles of equity (since enforcement is inherently selective and unequal) that can be upheld only when arrangements are voluntary.

Since there are very few areas where coercion is necessary to achieve social cooperation, there are very few areas where government advances it. Instead, the massive expansion of government beyond such bounds has undermined cooperation and violated justice. Yet still more intrusion is constantly offered as a solution. That is why Ludwig von Mises’s recognition that “Those who ask for more and more government interference are asking ultimately for more compulsion and less freedom” is important and ominous today. Each expansion of government’s reach shrinks freedom and restricts otherwise expanding social cooperation, with effects that worsen progressively over time.

How a Philadelphia Family Lost Their Home to Asset Forfeiture

Under the legal doctrine of civil forfeiture, police can seize property tangentially linked to a crime, even if the property owner herself is innocent. As Isaiah Thompson reports in the Philadelphia City Paper, this is precisely what happened to Sandra Leino and her family:

“Long before the forfeiture action against her house would be completed, and without a judge or jury ever seeing her face, Leino would be forced from her house and made homeless along with her three children. She would lose her most precious possessions, and ultimately be deprived of her family’s most valuable asset — all without Leino ever being accused of any crime."

But while Sandra and her children were completely innocent of any wrongdoing, her husband, Sam, was accused and arrested for
selling prescription pills. (Sandra asserts Sam was legally using
those painkillers for his own personal use, after he was partially disabled from a truck accident.)

Just a few months after his arrest, the Philadelphia District Attorney filed a motion to seize the Leinos’ home in May 2010—a year and a half before Sam Leino even went to trial. Later that month, the Leinos were kicked out of their own home. They tried staying at a motel, but couldn’t afford it for more than one week. With no other options at the time, they were even forced to sleep in the backwoods.

Fortunately, a relative was able to take the Leinos for five months, albeit in tight quarters. Since then, Sandra has been able to rent a new place.

“But on her own now, and unable to pay rent on top of the mortgage on the house she was barred from entering, she began missing mortgage payments. When the DA did eventually withdraw its forfeiture case against the Leinos’ house, it was only because the bank had already foreclosed.”

As for Sam, in 2012, he went to trial and was “found guilty of one count of possession with intent to distribute, and sentenced to three to six years.”

But the story doesn’t end there. Isaiah Thompson elaborates:

“Four of the police officers who surveilled and arrested Sam Leino are among a group of six narcotics officers whose credibility has been effectively dismissed by the DA’s Office itself after allegations were made in open court that they were part of a drug-dealing ring within the Philadelphia Police Department…How many times the DA’s forfeiture unit has seized property based on the testimony of these officers is not presently clear.”

So far, the Philadelphia DA has dropped almost 300 cases due to this misconduct.

Unfortunately, Sandra Leino’s story is not an isolated incident. Between 300 and 600 real-estate forfeiture cases are brought per year by the Philadelphia District Attorney. Lax laws and scant protections have created hundreds of Sandra Leinos, just in Philadelphia.

According to the Institute for Justice’s nationwide study, Policing for Profit, Pennsylvania has some of the worst civil forfeiture laws. Law enforcement agencies can forfeit property based on a mere “preponderance of the evidence,” which is a much less stringent standard than the “beyond a reasonable doubt” standard used in criminal convictions.

Plus, property owners have to prove their innocence, reversing both the burden of proof and centuries of jurisprudence. In other words, in civil forfeiture proceedings, property owners actually have fewer protections than accused criminals.

Not only that, under Pennsylvania state law, police can keep 100 percent of all proceeds seized from civil forfeiture. In fact, the Philadelphia DA has raked in more than $6 million a year in civil forfeiture proceeds.

Most of this policing for profit is from cash seizures. But “the average amount of cash seized by Philadelphia police was $550 — hardly the proceeds of a Pablo Escobar or a Walter White.” No wonder a Pennsylvania judge has lambasted civil forfeiture as “little more than state-sanctioned theft.”

A Journalist-Agitator Facing Prison Over a Link

The journalist Barrett Brown speaking in 2011 in New York.

By DAVID CARR

Barrett Brown makes for a pretty complicated victim. A Dallas-based journalist obsessed with the government’s ties to private security firms, Mr. Brown has been in jail for a year, facing charges that carry a combined penalty of more than 100 years in prison.

Professionally, his career embodies many of the conflicts and contradictions of journalism in the digital era. He has written for The Guardian, Vanity Fair and The Huffington Post, but as with so many of his peers, the line between his journalism and his activism is nonexistent. He has served in the past as a spokesman of sorts for Anonymous, the hacker collective, although some members of the group did not always appreciate his work on its behalf.

In 2007, he co-wrote a well-received book, “Flock of Dodos: Behind Modern Creationism, Intelligent Design and the Easter Bunny,” and over time, he has developed an expertise in the growing alliance between large security firms and the government, arguing that the relationship came at a high cost to privacy.

From all accounts, including his own, Mr. Brown, now 32, is a real piece of work. He was known to call some of his subjects on the phone and harass them. He has been public about his struggles with heroin and tends to see conspiracies everywhere he turns. Oh, and he also threatened an F.B.I. agent and his family by name, on a video, and put it on YouTube, so there’s that.

But that’s not the primary reason Mr. Brown is facing the rest of his life in prison. In 2010, he formed an online collective named Project PM with a mission of investigating documents unearthed by Anonymous and others. If Anonymous and groups like it were the wrecking crew, Mr. Brown and his allies were the people who assembled the pieces of the rubble into meaningful insights.

Project PM first looked at the documents spilled by the hack of HBGary Federal, a security firm, in February 2011 and uncovered a remarkable campaign of coordinated disinformation against advocacy groups, which Mr. Brown wrote about in The Guardian, among other places.

Peter Ludlow, a professor of philosophy at Northwestern and a fan of Mr. Brown’s work, wrote in The Huffington Post that, “Project PM under Brown’s leadership began to slowly untangle the web of connections between the U.S. government, corporations, lobbyists and a shadowy group of private military and infosecurity consultants.”

In December 2011, approximately five million e-mails from Stratfor Global Intelligence, an intelligence contractor, were hacked by Anonymous and posted on WikiLeaks. The files contained revelations about close and perhaps inappropriate ties between government security agencies and private contractors. In a chat room for Project PM, Mr. Brown posted a link to it.

Among the millions of Stratfor files were data containing credit cards and security codes, part of the vast trove of internal company documents. The credit card data was of no interest or use to Mr. Brown, but it was of great interest to the government. In December 2012 he was charged with 12 counts related to identity theft. Over all he faces 17 charges — including three related to the purported threat of the F.B.I. officer and two obstruction of justice counts — that carry a possible sentence of 105 years, and he awaits trial in a jail in Mansfield, Tex.

According to one of the indictments, by linking to the files, Mr. Brown “provided access to data stolen from company Stratfor Global Intelligence to include in excess of 5,000 credit card account numbers, the card holders’ identification information, and the authentication features for the credit cards.”

Because Mr. Brown has been closely aligned with Anonymous and various other online groups, some of whom view sowing mayhem as very much a part of their work, his version of journalism is tougher to pin down and, sometimes, tougher to defend.

But keep in mind that no one has accused Mr. Brown of playing a role in the actual stealing of the data, only of posting a link to the trove of documents.

Journalists from other news organizations link to stolen information frequently. Just last week, The New York Times, The Guardian and ProPublica collaborated on a significant article about the National Security Agency’s effort to defeat encryption technologies. The article was based on, and linked to, documents that were stolen by Edward J. Snowden, a private contractor working for the government who this summer leaked millions of pages of documents to the reporter Glenn Greenwald and The Guardian along with Barton Gellman of The Washington Post.

By trying to criminalize linking, the federal authorities in the Northern District of Texas — Mr. Brown lives in Dallas — are suggesting that to share information online is the same as possessing it or even stealing it. In the news release announcing the indictment, the United States attorney’s office explained, “By transferring and posting the hyperlink, Brown caused the data to be made available to other persons online, without the knowledge and authorization of Stratfor and the card holders.”

And the magnitude of the charges is confounding. Jeremy Hammond, a Chicago man who pleaded guilty to participating in the actual hacking of Stratfor in the first place, is facing a sentence of 10 years.

Last week, Mr. Brown and his lawyers agreed to an order that allows him to continue to work on articles, but not say anything about his case that is not in the public record.

Speaking by phone on Thursday, Charles Swift, one of his lawyers, spoke carefully.

“Mr. Brown is presumed innocent of the charges against him and in support of the presumption, the defense anticipates challenging both the legal assumptions and the facts that underlie the charges against him,” he said.

Others who are not subject to the order say the aggressive set of charges suggests the government is trying to send a message beyond the specifics of the case.

“The big reason this matters is that he transferred a link, something all of us do every single day, and ended up being charged for it,” said Jennifer Lynch, a staff lawyer at the Electronic Frontier Foundation, an advocacy group that presses for Internet freedom and privacy. “I think that this administration is trying to prosecute the release of information in any way it can.”

There are other wrinkles in the case. When the F.B.I. tried to serve a warrant on Mr. Brown in March 2012, he was at his mother’s house. The F.B.I. said that his mother tried to conceal his laptop and it charged her with obstruction of justice. (She pleaded guilty in March of this year and is awaiting sentencing.)

The action against his mother enraged Mr. Brown and in September 2012 he made a rambling series of posts to YouTube in which he said he was in withdrawal from heroin addiction. He proceeded to threaten an F.B.I. agent involved in the arrest, saying, “I don’t say I’m going to kill him, but I am going to ruin his life and look into his (expletive) kids ... How do you like them apples?”

The feds did not like them apples. After he was arrested, a judge ruled he was “a danger to the safety of the community and a risk of flight.” In the video, Mr. Brown looks more like a strung-out heroin addict than a threat to anyone, but threats are threats, especially when made against the F.B.I.

“The YouTube video was a mistake, a big one,” said Gregg Housh, a friend of Mr. Brown’s who first introduced him to the activities of Anonymous. “But it is important to remember that the majority of the 105 years he faces are the result of linking to a file. He did not and has not hacked anything, and the link he posted has been posted by many, many other news organizations.”

At a time of high government secrecy with increasing amounts of information deemed classified, other routes to the truth have emerged, many of them digital. News organizations in receipt of leaked documents are increasingly confronting tough decisions about what to publish, and are defending their practices in court and in the court of public opinion, not to mention before an administration determined to aggressively prosecute leakers.

In public statements since his arrest, Mr. Brown has acknowledged that he made some bad choices. But punishment needs to fit the crime and in this instance, much of what has Mr. Brown staring at a century behind bars seems on the right side of the law, beginning with the First Amendment of the Constitution.

The US Government Has Betrayed The Internet; It's Time To Fix That Now

With the latest shocking revelations concerning the NSA's ability to break encryption, Bruce Schneier has made an excellent point. In pursuit of trying to find a few needles, the US government has basically betrayed the core of the internet -- and it's time for engineers to fix it. Now. Basically what's come out today is that the NSA has purposely been massively weakening internet security for its own good on the ridiculous belief that only it would find and use these vulnerabilities.

Schneier makes two important calls in his article. First, he calls on those who actually helped out in placing these backdoors into today's technologies to come out and reveal the details. Second, he says that the internet technology and security community needs to come together right now to rethink core internet infrastructure to build solutions that are done right, with real security in mind. Encryption is still viable and powerful, but it needs to be done correctly.

We need to figure out how to re-engineer the internet to prevent this kind of wholesale spying. We need new techniques to prevent communications intermediaries from leaking private information.

We can make surveillance expensive again. In particular, we need open protocols, open implementations, open systems – these will be harder for the NSA to subvert.

As we've written a few times now, a bunch of attempts have sprung up lately to build secure communications offerings, but this goes way beyond that. This is a problem going back to core internet infrastructure, and it needs to be rethought and re-implemented in an open way that can be reviewed by anyone and where it's much more difficult for the NSA to hide or to sneak in "covert" operatives whose roles are to subvert the security.

Of course, in the short run this is also going to give extra ammo to foreign governments who want greater control over the internet themselves (not always with good intentions). It's going to be important to resist that kind of control as well. Instead, the focus needs to be on rethinking this in a manner so that no party is in full control and can subvert the system.

Volunteers threatened with arrest for feeding homeless people biscuits and coffee

by Liz E

RALEIGH, NC — Apparently in Raleigh, NC, feeding those that are hungry is now a jailable offense. A local non-profit that cares for the city’s homeless was told by police that if they handed out a hot meal from the sidewalk, they would be arrested. More than 70 people had already arrived, knowing that the volunteers would be there with sausage biscuits and coffee.

“I had to face those who were waiting and tell them that I could not feed them, or I would be arrested.” Rev. Hugh Hollowell, pastor and director of Love Wins Minsitries, said in a blog post.

On August 24th, volunteers with Love Wins Ministries arrived at the sidewalk outside of Moore Square at 9:00am to pass out food to the hungry, like they did every weekend. Hollowell explained that they had always set up on the sidewalk, a public space, making sure to keep the pathway clear and clean up after themselves. ”We have operated, unmolested, under this assumption for the last six years,” Hollowell said.

This time, the volunteers were told that passing out the meals would be breaking a city ordinance and that anyone caught doing so would be arrested. However, no officer would tell the ministry what ordinance it was they were breaking. Hollowell quoted the officer as saying:

“I am just telling you what is. Now you pass out that food, you will go to jail.”

Police spokesman Jim Sughrue said in an email to WRAL that no one was arrested and that the group was “simply informed” of the rules. ”Ultimately, the ordinance is a city issue, of course, and when final determinations are made, the police department works with everyone to handle things in the smoothest way possible,” he said.

Love Wins was not the only non-profit to be accosted in the Moore Square area recently. Human Beans Together volunteer Todd Pratt also told WRAL that his group had been informed that they were no longer allowed to serve the homeless outside Moore Square either.

The city’s choice to threaten those who help the homeless is made worse by the fact that Raleigh’s soup kitchens are closed on the weekends. On these days, the homeless have nowhere else they can turn for a good meal. ”I don’t have any family here, not one family member and if these people were not here, I would not make it,” Wanda Borrero, who is currently homeless, told WFLA in response to the crackdown. ”I mean they might as well kill us. That’s what it’s coming to, they might as well kill us.”

Some think a city project to revitalize the square, set to cost $14.8 million, is the reason for the recent crackdown on charitable giving.

“The police are caught up in a system. The police work for the mayor and the City Council,” Hollowell told WRAL. “(They are) ultimately responsible to the developers who spend lots and lots of money to revitalize downtown.”

This is far from the first time that charity has been rewarded with waste and government violence. In February, Lousiana’s State Health Department forced a homeless shelter to destroy 1600 pounds of venison (worth $8000) because “deer are not an approved meat source to be distributed commercially,” CBS Houston reported. Or New York City, where the Bloomberg administration banned food donations to the city’s government-run homeless shelters more than a year ago.

Solitary confinement for students will continue: Oregon schools easily avoid ban on “isolation booths” by building permanent isolation rooms

PORTLAND, OR — Last year, a parent’s outrage over a government school locking her child a padded cell without her knowledge or permission caused so much outrage that a new state law was passed, prohibiting schools from purchasing or using free-standing “seclusion cells” or “isolation booths,” as they are called. With the new taking effect, some schools are scrambling for a way around the provisions, so they can continue to place students in solitary confinement at their discretion.

In November 2012, KATU News broke a story about the use of an isolation booth at Mint Valley Elementary School in Longview, WA. Concerned parent, Ana Bate, said her son saw students being locked in the booth at school and was traumatized.

“[He was] thinking it was scary, it was abusive, are they gonna do this to me?” Bate said.

School administrators defended locking children in padded cells, saying that it had “therapeutic purposes” for some children.

“How come they’re not providing documentation about how this ‘therapeutic booth’ is beneficial?” said Bate. “Show me some real numbers. Show me something from the medical community that says more times than not and all the documentation that backs it up. Don’t tell me ‘well, their parents said we could do it.’”

“I have a 20-year-old daughter who’s actually been institutionalized, medicated heavily, ADD, ADHD, RAD, OCD, among other things,” Bate said. “I never had to have anybody put her in a box. I didn’t have any problems dealing with the situation, so I do know both sides.”

The outrage over the story grew, with the help of the alternative media. And more stories came forth.

Jared Harrison, a 7th grader at the McCornack school in the Eugene district, testified in front of legislators that he was placed in an isolation room hundreds of times — “at least every day” — as a punishment for the smallest things. His punishments began in the 1st grade, and continued for years. Anything from not following directions, to throwing paper balls, could earn Jared time in the cell.

Jared’s confinement sessions were so frequent, and begun at such a young age, that he thought that spending time in the cell was part of a normal day at school. So normal, that he never even thought to tell his mother about it. To a child it had been normal, but to those hearing the testimony, the stories were shocking.


“You have two adults dragging you into a room and locking the door behind you and you’re just a little kid and you don’t know what’s going on,” Harrison told lawmakers. “You’re not going to be calm. And I know no one else in the room was calm. They were all freaking out because their friend’s being locked in a room. It didn’t help the situation at all. It made it worse – much worse than it would’ve been if I had just sat in a timeout chair for five minutes.”

Jennifer Harrison, Jared’s mother, told lawmakers that these kind of isolation punishments were more commonly found in prisons and mental health facilities.

“I don’t think that schools are jails. I hope they’re not,” said Jennifer Harrison.

By February 2013, a bill in Oregon was introduced to prevent these controversial measures from being used on students in their state. Oregon’s House Bill 2756 prohibits government schools from purchasing, building or installing seclusion cells, and prohibits their use. By April, it had been passed and signed by the governor.

The new law defined the cells as free-standing units — like the one used in Longview, WA — to avoid the unintended prohibition of using rooms in the school for normal purposes.

Therefore, in order to get around the new law, schools simply need to lock students in isolation rooms, instead of isolation booths.

And voilà! A well-intentioned, albeit reactionary, law is being easily circumvented. The same policy of locking children in solitary confinement will continue, as long as the cells are built-in to the building, rather than in free-standing booths.

An audit of records from Oregon earlier this year showed that eight school districts had used their isolation booths 791 times, reported OregonLive.com. One Portland school had alone used theirs 100 times since the beginning of the school year.

Some of the newly outfitted isolation rooms were explored by KATU News. Compliant with the new law, the solitary confinement will no longer be performed in a free-standing booth. One school, Cherry Park, converted part of a locker room into isolation rooms for students. Now there is an observation window, a light, and ventilation.

To see what the new cells will look like, view KATU’s coverage below.

Jared Harrison’s mother is right; isolation rooms belong in prisons, not schools. But the parallels of between schools and prison go well beyond throwing children into solitary confinement for misbehavior. The whole education system is modeled to achieve conformity and obedience. Institutions are lined with live-feed cameras. Students are subjected to warrantless searches and often forced to give urine. Police presence in schools is becoming more pervasive and lockers and backpacks can be sniffed with dogs. Attendance is compulsory. Students are having to carry RFID badges or give biometric identification. Even the parking lots are subject to warrantless searches. And that’s without even touching on the curriculum, which is very pro-statism.

As we see with the new law in Oregon, it is difficult to legislate even one aspect of the problem away, let alone all these prison-like characteristics. Only your vigilance and public pressure can reverse these problems, but ultimately the system always retains the systemic problems created by its Prussian roots. Many parents would just as soon not let the government raise their children for 12 years of their young lives, resorting to home schooling or carefully-chosen private schools.

NW Indiana launches "Region Stop Team" to question anyone looking outside the norm