Law

AT&T has filed a lawsuit against 25 unnamed data brokers for using “pretexting” to obtain customer call data records. These data brokers would pose as the legitimate customers in order to obtain billing records for third parties for a fee. Data brokers selling this data over the Internet got some negative public attention last summer and in January of this year, but Congress has not made pretexting illegal for phone records the way it is for financial records. It came out in June of this year that law enforcement and federal agencies were active customers of these data brokers, using them to obtain data without having to go through the process of getting warrants. The Electronic Privacy Information Center already filed an FTC complaint against one data broker, Bestpeoplesearch.com. ...

The U.S. Court of Appeals, 8th Circuit, ruled last week that if you are driving around with large amounts of cash, the government may presume that you are guilty of drug trafficking and seize that cash. The case in question was United States of America v. $124,700 in U.S. Currency (forfeiture cases name the seized items as the defendant). Emiliano Gomez Gonzolez was pulled over for speeding in Nebraska in 2003 while driving a rented Ford Taurus. In the car was a cooler with $124,700 in cash, which was seized on suspicion of a drug crime. A drug-sniffing dog barked at the car and the cooler, which was taken as evidence. Friends of Gonzolez testified that they had pooled their life savings to purchase a refrigerated truck in order to start a produce business. Gonzalez was sent on a one-way ticket to Chicago to buy the truck, but it had already sold. He had no credit card, so had a third party rent a car for him. He says he hid the money in a cooler to prevent it from being stolen. The District Court had found for Gonzolez, saying that there was no evidence of drug activity. The Appeals court disagreed, with a strong dissent by Judge Donald Lay. Forfeiture laws have long been heavily abused in the name of the war on drugs. In 1991, the Pittsburgh Press ran a six-part series on forfeiture abuse called Presumed Guilty: The Law’s Victims in the War on Drugs which can be found in various places online. UPDATE: Ed Brayton has also commented on this story at Dispatches from the Culture Wars. ...

In February, I commented on an undercover investigation in South Florida about what happens when you try to obtain a complaint form to file a complaint against a police officer. Many locations were aggressively uncooperative. Things are much, much worse in Independence, Missouri. Hat tip: Radley Balko at The Agitator. UPDATE (January 8, 2007): Greg Slate, the individual in Missouri who had his head slammed into a plexiglass window for asking for a complaint form, was found not guilty of inciting a riot on November 8, 2006. The officer was not disciplined. (Via The Agitator.) ...

Paul Pechonis was arrested at his home for allegedly threatening the life of a police officer on his website. This was a police officer who allegedly threatened to hold a gun to the head of his son. That arrest was videotaped with the consent of all parties except the police, by a camera in Pechonis’ home. The video was placed online by Mary Jean, who has been threatened with felony charges for posting it. A federal judge issued an injunction supporting Jean, which the Attorney General has appealed. Jean has the support of the ACLU of Massachusetts and the lawfirm of Choate, Hall & Stewart. Jean is the webmaster of conte2006.com, a website critical of Worcester County district attorney John Conte, which is where the video is hosted. You can also find the video on YouTube. Although the video has been described by some as showing an “invasive search” without a warrant, the officers say they are just checking the home to see if anyone else is present. They are not shown moving or opening anything on camera, and the search is very brief (just a few minutes)–I don’t see any evidence of an “invasive search." Now prosecutors have threatened Pechonis, issuing a cease and desist order for merely linking to the video of his arrest from his own website. Good job, prosecutors–you’ve just ensured that there will be much more attention to this video and Pechonis’ case. (Hat tip to The Agitator.)

Although the ACLU’s lawsuit against AT&T in Illinois was thrown out, a separate case in Michigan filed on January 17 of this year against the NSA for warrantless wiretapping without approval of the FISA Court has resulted in a ruling by U.S. District Judge Anna Diggs Taylor that the practice is unconstitutional and must stop immediately. This is not the final decision in the case, but the granting of an injunction for the plaintiff. The Electronic Frontier Foundation’s lawsuit against AT&T also continues.

The Leavitt family gave $443,500 to the Dixie and Anne Leavitt Foundation, which gave it to the Southern Utah Foundation, which gave the money to Southern Utah University (along with another $135,000 from Leavitt Land and Investment), which gave the money to students in the form of scholarships that could only be used for housing at apartments owned by the Leavitt family. The Leavitt’s Cedar Development Company got $578,000 from the student rent payments. The Leavitts specifically asked the Southern Utah Foundation (whose board member Steven Bennion was also president of Southern Utah University) for the arrangement. The really interesting part? One member of the Leavitt family involved in these decisions is Mike Leavitt, the U.S. Secretary of Health and Human Services in the Bush administration (and former Governor of Utah). The Leavitt Foundation had already been under scrutiny because the Leavitt family had made large donations but the Foundation had paid out little to charity until last year. The IRS is investigating. The Leavitts, the foundation administrators, and the university say they see nothing wrong with the arrangement, and a Leavitt spokeswoman says that the Senate Finance Committee reviewed this arrangement as part of Leavitt’s confirmation last year. This kind of arrangement is not surprising to me given what I’ve heard about other Mormon business arrangements, which commonly use family-owned companies and partnerships to do business with each other in order to gain tax advantages. (Hat tip to Trent Stamp at Charity Navigator.) ...

The United States Senate has, after a three-year delay, ratified the Convention on Cybercrime. This treaty requires United States law enforcement to help other countries enforce their cybercrime laws against offenders in the United States–even if the actions are not illegal in the United States. There was an option for the Senate to attach an amendment to the treaty that said the FBI would only aid in cases where the crime in the foreign country was also a crime here (“dual criminality”), but they did not take that option, at the behest of the Bush Administration and the Senate Foreign Relations Committee. The result is that other countries that have ratified the treaty can force U.S. law enforcement to conduct searches, seizures, and surveillance on U.S. citizens who are doing things that are legal in the U.S., but illegal in those countries, which is the main concern that has been raised by the Electronic Frontier Foundation, the Technology Liberation Front, Ed Brayton at Dispatches from the Culture Wars, and Declan McCullagh in his discussion of the treaty at ZDNet. A list of current signatories can be found at the Council of Europe’s website. Looking at the actual content of the treaty, I don’t think it’s as bad as the critics have made it sound. The treaty targets specific crimes in chapter II, section 1, Titles 1-5, and I don’t see how it could be expanded to cover things like the Internet sale of or discussion of products that are illegal in other countries. Title 1 covers crimes which involve “Offences against the confidentiality, integrity and availability of computer data and systems,” which include illegal access to computers, illegal interception of data traffic, data interference (intentional damage or destruction of data), system interference (e.g., denial of service), and misuse of devices. The last item seems to be the most potentially problematic, but it is qualified to say that the signatories need not enforce that one, and that it only applies to devices intended to be used for the other offenses (i.e., it carves out an exception for security testing). Title 2 covers computer-related forgery and computer-related fraud. Title 3 covers child pornography. Title 4 covers copyright, which imposes nothing worse than is already in place in the United States. Title 5 covers ancillary liability–aiding and abetting the aforementioned offenses, and corporate liability for participation in such offenses. The problematic provisions are in chapter III, on international cooperation. Title 3 on mutual assistance provides for the possibility of requiring dual criminality–which I agree is the way the Senate should have gone. But it appears to me that the wording is such that it only mandates mutual assistance for the offenses listed in titles 1-5 (articles 1-11 within those titles). If this really mandated the U.S. to go after people in the U.S. who are doing things like selling Nazi memorabilia in violation of French law, wouldn’t other countries be worried about the U.S. ratification on the grounds that they could go after online gambling in their countries?

While the Electronic Frontier Foundation’s lawsuit against AT&T continues, U.S. District Judge Matthew F. Kennelly today threw out the ACLU’s lawsuit against the National Security Agency for collecting call detail records from AT&T, MCI, and other providers (though not, apparently, from Verizon or BellSouth). Lippard (2006-12-09): Correction: This ACLU lawsuit that was thrown out was against AT&T. The ACLU lawsuit against the NSA in Michigan was a victory today for the ACLU. ...

Today Judge Vaughn Walker of the U.S. District Court of the Northern District of California ruled on the U.S. government’s motions for dismissal or summary judgment in the Electronic Frontier Foundation’s lawsuit against AT&T on grounds of “state secrets.” The motions were denied, with the possibility of a later dismissal or summary judgment on state secrets grounds. However, the judge noted the limits of state secrets privilege with respect to the infringement of individual rights, and stated that “dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security” (p. 36 of the ruling). The judge noted that you can’t claim that something is a “state secret” if it’s not secret, citing not only news stories about interception but public statements by George W. Bush and Alberto Gonzales. Also denied were AT&T’s motions for dismiss for lack of standing, for lack of plaintiff demonstration that AT&T lack’s appropriate government certification for its actions (though the judge indicates he could be persuaded otherwise on this one later), due to AT&T’s claim of common law immunity from civil liability for conducting government surveillance (in part because AT&T has argued that its cooperation has been voluntary, not mandatory), and due to AT&T’s claim of qualified immunity. The judge proposes appointing a qualified, appropriately security-cleared expert to assist the court in reviewing classified material and determining what may be disclosed and to whom. The next hearing is a case management hearing on August 8.

Seth Godin has pointed out a new Anti-Astroturfing Wiki, for exposing those who are creating fake grassroots efforts by actions like coordinating letters to the editor or blog comment posts which don’t mention the coordinating body–a practice engaged in by both advocates for and against net neutrality regulations. The current Wikipedia definition: “In American politics and advertising, the term astroturfing describes formal public relations projects which deliberately seek to engineer the impression of spontaneous, grassroots behavior. The goal is the appearance of independent public reaction to a politician, political group, product, service, event, or similar entities by centrally orchestrating the behavior of many diverse and geographically distributed individuals." The Anti-Astroturfing Wiki and campaign has been set up as part of TheNewPR Wiki by Paull Young and Trevor Cook in response to the PR Institute of Australia’s promotion of a “how-to” seminar on astroturfing even though the practice violates the PRIA Code of Ethics. Young has issued an anti-astroturfing statement: ...