Archive for the 'Criminal Law' Category

Police Officers Claim Invasion of Privacy for Body Cameras That Remained On

A recent survey demonstrated that nearly every large police department plans to use body-worn cameras, with 95% either committed to body cameras or having completed their implementation.

Police in suburban Chicago village filed a federal civil rights lawsuit against the police department for those very body cameras. According to the complaint, the body cams recorded footage when the police officers had no idea the cameras were on. Footage included officers in the locker rooms and bathrooms over a seven-month period. Based on the footage, several police officers filed suit claiming the footage violated their civil rights and right to privacy.

The body cameras were used between September 2015 and May 2016. One of the plaintiffs discovered the footage while reviewing the video from his own body camera. The body cameras were no longer used after the footage was discovered. The police chief hired an independent investigator and attorney to review the body camera footage and to unearth what happened, but claimed the plaintiffs refused to comply. According to the police chief, the plaintiffs unnecessarily “jumped the gun” to file the lawsuit without cooperating with the independent investigation.

Do the Officers Have a Legitimate Complaint?

Although the use of body cameras by police departments is more prevalent now than ever, police chiefs who are wary about the technology cite privacy concerns or fears that the footage could be posted publicly online. Given this new lawsuit, it looks like their concerns are well-founded.

However, the recent trend is that many courts are demanding body cameras be used to help prosecutors and defense attorney ascertain the truth revolving around various police confrontation. This need for body cameras is especially apparent given the recent media coverage of police shootings of African American males. Body camera footage could give us the answers that we otherwise would not obtain.  Locker Room

Most police chiefs’ privacy concerns are based on civilians who feel their right to privacy has been violated because they had no knowledge of the use of body cameras. Nevertheless, the law finds that police can film civilians in public places, such as city streets, because no one has a reasonable expectation of privacy in public places.

But what happens when the footage captures private footage of police officers? The law isn’t clear. While the police officers were not in a public place and instead their place of employment, they did know that the body cameras were present and there was a possibility the cameras might record non-public moments.

On the other hand, the officers incorrectly believed they were turned off. Their best argument is that bathrooms and locker rooms in a place of employment are customarily considered private places such that cameras are not used in these places. Plaintiffs’ right to privacy does not disappear in these places simply because their job requires them to wear body cameras. For this reason, their complaint could be valid.

What are the Benefits and Disadvantages to Police Using Body Cameras?

With the privacy concerns associated with body cameras, are there really any benefits that could outweigh the privacy concerns?

Body cameras can record every interaction. The argument is that the use of the body camera will minimize complaints about police officers’ behavior as well as the use of unnecessary force because the officers are more accountable for their actions. They further protect officers from false accusations, misconduct and abuse. Camera footage can also provide valuable evidence that obtain accurate witnesses and victim statements.

On the other hand, body cameras can invade the privacy of civilians and police officers alike. Use of body cameras can prevent people from coming forward as witnesses for fear of retaliation or public exposure. Further, most body cameras are activated at the whim of the police officer. The officers can decide for how long the footage is stored and if and when it should be made accessible to the public.

The use of body cameras is an ongoing debate, and only time will tell whether police departments find them more helpful than harmful.

Police Body Cam Footage Won’t Be Considered Public Record Under North Carolina’s HB 972

“Black Lives Matter”

“Hands Up, Don’t Shoot”

“Blue Lives Matter”

Everyone’s familiar with these phrases that have been strung across the media lately. Issues surrounding police incidents and racial profiling have been all over the news since the Ferguson shooting in 2014 and things are only getting worse. As tensions increase between law enforcement and the public, states are in a scramble to balance the issues. North Carolina Governor Pat McCory has signed a bill into law that will no doubt ruffle some feathers.

Under House Bill 972, police body camera footage will not be considered a matter of public record. North Carolina isn’t alone, at least 30 states are considering some form of legislation that would limit public access to footage. So, why is this such a problem?

Lack of accessibility to body cam footage could mean, to some, a lack of police accountability. No accountability means no incentive to improve behavior. With open access laws to public records, HB 972’s exclusion of body camera footage as a public record presents a problem.

Open Record Laws Vary Across the Board

While the Freedom of Information Act governs federal bodies, every state has some form of open record law allowing members of the public to obtain documents from state and local government bodies. What counts as a public record? For the most part, states define a public record broadly. North Carolina defines public records as:

“ …all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made ore received pursuant to law…”

Looks to me that body cam footage would be inclusive. Even though it’s broadly written, there’s little room left to argue that body cam footage shouldn’t be considered public record—body cam footage made while an officer is on duty is, by definition, a public record. Body Cam

HB 972 specifically exempts body cam footage from inclusion in this list. Footage can only be disclosed to a person whose image or voice is on the recording. When determining whether to fulfill a request, agencies can consider:

  1. whether the requesting party is authorized to make a request,
  2. whether the recording contains information otherwise confidential or exempt under state law,
  3. whether the disclosure would reveal information regarding a person of a highly sensitive nature,
  4. whether the disclosure would harm the reputation or jeopardize the safety of a person,
  5. whether the disclosure would create serious threat to the fair, impartial, and orderly administration of justice, and
  6. whether confidentiality is necessary to protect an active or inactive criminal investigation or potential investigation.

These factors leave a lot of room for interpretation. Requests can be denied and will only be released by court order. The ACLU stated “body cameras should be a tool to make law enforcement more transparent and accountable to the communities they serve but this shameful law will make it nearly impossible to achieve those goals.”

Public Records Offer Accountability, but Transparency Isn’t Always a Good Thing

Accountability is obviously the biggest reason why supporters say body camera footage should be public record and, by definition, they’re not wrong. Transparency offers that accountability the public wants—if the officers know they’re being recorded then they’re less likely to deviate from protocols.

Not only do they offer accountability, but many argue exposing the footage to the community will open the eyes of the many that don’t understand the tough decisions police officers have to face on an everyday basis and, thus, only improving the relationship between civilians and police.

On the flip side, privacy reasons are of number one concern. Body cams raise more issues than dash-cams because there’s the possibility of recording inside private residences or other places where individuals have an expectation of privacy. Anyone see a 4th Amendment unreasonable search and seizure issue here?

It’s a Balancing Act

Allowing access quickly is definitely important in cases where police misconduct is alleged, not just for the individual involved, but for the safety of police officers and the surrounding community as well. However, because of the constitutional issues surrounding body camera footage there definitely needs to be a balance between the public’s right to the information with an individual’s right to privacy, especially when you have a hot button issue like police brutality and racial profiling as a factor.

Body cam footage can often times record people at their worst and, despite a need for police accountability, footage shouldn’t be released to just anyone. Who wants their drunken arrest or private information blasted all over the internet by some blogger? Most would say no thank you.

Just as any other public record, footage would be subject to certain exemptions and North Carolina’s law is no different—implementing an extra law limiting the access even further seems unnecessary. I’m all for legislation implementing a process for which interested parties can gain access to footage, but it shouldn’t be difficult to nearly impossible to do so either.

Will Clinton’s Email Controversy Benefit Whistleblowers?

Is Hilary Clinton any different than Edward Snowden? Well, there’s one major difference between the two—Snowden purposefully leaked top-secret documents on U.S. surveillance programs whereas Clinton claims no such thing in how she handled classified emails.

Despite the fact Clinton may have had no intentional or malicious intent, there are plenty of other government employees who have gotten the axe for much less. Does the fact that Clinton was not indicted for mishandling classified emails mean whistleblowers are off the hook?

If you’re not familiar with the Clinton email controversy, here’s the low down. As Secretary of State, Clinton used her family’s private email server for official communications that should have been used on the official State Department email accounts located on federal servers.  Why the big deal?  Well, thousands of these emails were later marked as classified, posing a potential security threat if on the off chance any of those emails were hacked.

While many seem split on whether Clinton committed a crime, others say it’s likely she violated government procedures and rules but didn’t violate the law in and of itself. Clinton acted “extremely careless”, according to FBI Director Comey, but no laws were broken. Clinton

Contrast with Edward Snowden, a former government contractor who purposefully leaked national security information from the NSA, who is obviously pretty peeved no charges were brought against Clinton considering he’s facing up to 30 years in prison if he steps a foot back into the U.S. In a Twitter post, Snowden’s response to the news was more than unenthusiastic:

“Break classification rules for the public’s benefit, and you could be exiled. Do it for personal benefit, and you could be President”

Whistleblower Protection Act Only Offers Protections to Some

The 1989 Whistleblower Protection Act protects federal employees from agency backlash for whistleblowing.  Even despite the law, many employees were often fired, demoted, reassigned, or lost their security clearances after stepping forward against their government employers.  At the beginning of Barack Obama’s presidential campaign, one thing he promised was to strengthen the laws to better protect whistleblowers from negative repercussions.

Obama promised to speed up the review process of claims and grant whistleblowers full access to jury trials and due process. Although he followed through on part of his promise, one area remains unprotected—free speech protections don’t extend to whistleblowers in the intelligence community.

Obama did, however, pass an executive order appearing to extend the same protections to the intelligence community by allowing them to use internal channels, rather than the media, but many advocates suggest this is merely a façade and doesn’t afford the same protections as a Congressional law.

Does Clinton’s Lack of Indictment Set a Precedent Offering More Employee Protections?

Despite Clinton’s reprieve, the government’s insistence on punishing secrecy violations shows no sign of a change. As with any other criminal case, situations will be investigated on a case-by-case basis, which means Clinton’s lack of indictment isn’t going to offer any sort of blanket coverage, especially when you consider the fact that the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined.

In 2015, David Petraeus, former CIA Director, plead guilty to a felony charge of unauthorized removal and retention of classified information for providing his mistress with classified information. Petty Officer First Class Kristian Saucier used a cellphone camera to take photos in a classified engine room of the nuclear submarine where he worked as a mechanic.  In May, he entered a guilty plea for unlawful retention of national defense information.  These are just a few examples.

Regardless of whether protections are offered under whistleblower laws, none of them would have protected Snowden.  One important thing to remember is that whistleblower protection, whether at the government or private level, are only triggered if employees go through the appropriate channels—not leaks to the media.

Even so, where are the protections when, in cases like Clinton or Petty Officer Saucier, information is simply mishandled without malicious intent?  These kinds of cases where information is mishandled shouldn’t even warrant criminal charges, but nonetheless, they do and there definitely seems to be an imbalance in terms of who gets prosecuted and who doesn’t.

 

Facebook Accused of Funding Terrorist Activity

Facebook is being accused of funding terrorist activity in the West Bank region. A family of Israeli and American citizens have brought forth a lawsuit seeking $1 billion in damages from Facebook for supposedly funding Palestinian military attacks. Palestine and Israel have been in conflict for many decades now and it is an issue that has no end in sight.

There are many underlying factors to the conflict, including religious difference, territorial claim, and regional dominance. Countless lives have been lost from both sides. The plaintiffs too have lost relatives in the conflict and they now seek damages from Facebook because they believe Facebook has supported Hamas in its attacks against Israel. Hamas, which is a pro-Palestinian movement, has been considered a terrorist organization by many nations.

Myriad of Accusations

This is not the first time that Facebook has been accused of such claims. Other such claims against Facebook are that, as a conduit of information, it gives FBI access to its user accounts, or that Facebook has some sort of hidden agenda unbeknownst to the general public. Of course, there is not much evidence to support such claims yet these charges do pop up every now and then. And it is not just Facebook.

Other social media outlets such as Twitter have been under attack too for supposedly promoting terrorism. ISIS, which has been grabbing headlines for the past few months, has been using the Twitter platform as a means of recruitment and sending out its message, and Twitter has seemingly done nothing to stop this.

Facebook and Twitter Comparison

For sake of comparison, the Twitter and Facebook claims have similarities and differences. In Twitter, there is indication that ISIS is using the platform as a vehicle to promote its agenda. However, under the First Amendment, which permits freedom of speech and press, it is hard to charge someone simply for expressing their viewpoints. Granted, ISIS propaganda should be put to a stop but where do we draw the line.

Should constitutional rights be diminished in order to promote national security? The government should not violate First Amendment rights when it can help it. There are times when the government, for security purposes, will make an exception. In any event, the benefit of the doubt will be given to the Constitution. Not all ISIS related posts will be grounds for criminal charge. Hamas Facebook

Likewise, with Facebook, if there are posts on the platform that in some way support Hamas, this is not grounds alone to go after a user, let alone Facebook itself. Under the Communications Decency Act of 1996, service providers such as Facebook and Twitter cannot be held personally liable for content that is published by their users.

The difference between the two scenarios however is that there is no indication that Twitter directly promotes ISIS activity. However, with Facebook, although there is currently not enough evidence, if it was established that Facebook did directly support Hamas through promotional material or other means not associated with user content, then there might be a valid claim. Even then, the First Amendment might prevent such claims. Until more hard evidence actually emerges, it will be very difficult for these grieving families to put up a decent claim against Facebook.

Many times, false accusations are thrown at big corporations such as Facebook in the hopes that that they can snatch the big prize. I am not implying that these particular plaintiffs fall in this category, but false accusations are common, especially against a large corporation such as Facebook. Media conglomerates such as Fox and Time Warner have been accused of such things too. It does not start and end with media industry either. Sometimes, these accusations should be taken with a grain of salt.

Preemptive Measures

People are not yet ready to give up their basic rights. As Benjamin Franklin said, “Those who surrender freedom for security will not have either one.” This is a powerful statement that resonates today with all of us.

However, Ben Franklin lived in a completely different time with very different issues at play. Today, international terrorism has become a huge threat and only tightening down on security measures can we hope to combat such a threat. If it means giving up some rights for the greater good, then this is something that we should consider.

And just as these social media outlets are used by terrorist organizations to convey their message, they can also be used to create awareness among communities to unite and stand against such a threat. Social media has been the trigger for many events these past few years, such as the Arab Spring and the Brexit deal.

Social media is a powerful tool that can be used to bring change, for better or for worse. Who uses it and how they use it can have consequences as well. Preemptive measures can be taken through these outlets to combat terrorism and to address other issues as well.

Should Suspected Criminals Expect Any Right to Privacy?

What sort of measures should authorities be allowed to take to capture alleged criminals? On June 23rd, a federal judge ruled that the FBI didn’t need to obtain a search warrant before they hacked into the computer of a man who had allegedly viewed child pornography. In his ruling, Judge Henry Morgan argued that the defendant, Edward Matish, had no “reasonable expectation” of privacy in his IP address.

 Should the Government Be Able to Use Any Technology to Catch Criminal Activity?

The case against Edward Matish centered around a child pornography site, Playpen, that was only accessible through Tor, a browser designed for anonymous web surfing. After taking control of Playpen in early 2015 (and arresting its operator), the FBI secretly gathered information about its users through a tool known as a NIT, or network investigative technique, that let investigators see the IP address of each individual who logged on to the site.

Attorneys for Matish said that the evidence gathered by the FBI’S NIT should not be allowed to be presented in court. After all, his attorneys argued, there was no search warrant specifically naming Matish when the FBI hacked into his computer. FBI

However, Judge Morgan took the opposite view, stating that in Matish’s case the government’s duty to protect its citizens superseded any concern over Matish’s privacy in the face of electronic surveillance. In his remarks, Judge Morgan added: “The Government should be able to use the most advanced technological means to overcome criminal activity that is conducted in secret.”

Interestingly, not all cases involving people who were unknowingly put under digital surveillance before being accused of viewing child pornography have ended in a ruling like the one levied against Edward Matish. Federal judges in at least two similar cases have ruled in favor of the defendant, saying that the FBI’s Virginia-issued warrants (which called for the use of the FBI’s NIT) were invalid because the defendant’s alleged crimes did not occur in Virginia.

If the government’s duty to protect its citizens is so powerful, why didn’t federal judges in other cases involving underground child pornography declare the FBI’s NTT warrants valid? Could those other federal judge’s rulings signal that the FBI’s use of digital surveillance techniques is not always the best option in rooting out criminals?

But Shouldnt the Government Do What It Can to Root Out Child Pornography?

One of the issues raised in United States v. Matish was whether the defendant’s Fourth Amendment right against unreasonable searches and seizures by the government was violated when the FBI hacked his computer. Whether a search is considered reasonable under the law is determined by considering whether the government’s legitimate interests, such as public safety, outweigh an individual’s right to privacy.

In other words, the government has to decide whether a crime’s danger to the public is even more pressing then the alleged criminal’s Fourth Amendment rights.

Judge Morgan cited a Supreme Court decision to bolster his reasoning that the FBI’s actions in Matish’s case amounted topeering into a gap in closed blinds, “which does not violate the Fourth Amendment. Judge Morgan’s choice of words, which conjure up the FBI taking only a quick glance at the underground child pornography site, do not seem to align with what actually occurred in the investigation.

In fact, the FBI gathered Playpen users information over the course of 13 days, using their NIT that some have characterized as “malware.” The FBI has actually taken steps to keep the code to the NIT used in the Playpen investigation secret, calling it a matter of national security.

Judge Morgan’s assertion that Edward Matish had no “reasonable expectation” of privacy in his IP address drew outrage, even in the face of the defendant’s alleged viewing of child pornography. Privacy advocates argued that the implications of Judge Morgan’s ruling were staggering–that it set the precedent for law enforcement to remotely search and seize information from anyone’s computer without a warrant or even probable cause.

While some might argue that the capture of someone who has allegedly viewed child pornography is more important than any concern about the government violating their privacy, a couple of questions cannot be ignored. Does anyone, according to Judge Morgan’s logic, have a reasonable expectation of privacy in their IP address? And what other ways could the government employ the use of NIT in the future?



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