Entries Tagged "courts"

Page 12 of 31

Manipulating Juries with PowerPoint

Interesting article on the subconscious visual tricks used to manipulate juries and affect verdicts.

In December 2012 the Washington Supreme Court threw out Glasmann’s convictions based on the “highly inflammatory” slides. As a general rule, courts don’t want prosecutors expressing their personal opinion to a jury; they’re supposed to couch their arguments in terms of what the evidence shows. Plastering the word “GUILTY” on a slide—not once or twice, but three times—was a “flagrant and ill intentioned” violation of this principle, the Washington Supreme Court wrote. The captions superimposed on the photos were “the equivalent of unadmitted evidence.”

One justice, Tom Chambers, wrote that he was stunned at the state’s contention that there was nothing wrong with digitally altering the booking photo. “Under the State’s logic, in a shooting case, there would be nothing improper with the State altering an image of the accused by photoshopping a gun into his hand,” Chambers wrote.

Jeffrey Ellis, a lawyer from Portland, Oregon, represented Glasmann on appeal. “We all know that commercials can try to persuade people on a subconscious level,” Ellis said in an interview. “But I don’t think the criminal-justice system wants to enter into that base arena.”

I think we need some clear rules as to what’s permitted.

Posted on December 23, 2014 at 2:19 PM • View Comments

The Limits of Police Subterfuge

“The next time you call for assistance because the Internet service in your home is not working, the ‘technician’ who comes to your door may actually be an undercover government agent. He will have secretly disconnected the service, knowing that you will naturally call for help and—­when he shows up at your door, impersonating a technician­—let him in. He will walk through each room of your house, claiming to diagnose the problem. Actually, he will be videotaping everything (and everyone) inside. He will have no reason to suspect you have broken the law, much less probable cause to obtain a search warrant. But that makes no difference, because by letting him in, you will have ‘consented’ to an intrusive search of your home.”

This chilling scenario is the first paragraph of a motion to suppress evidence gathered by the police in exactly this manner, from a hotel room. Unbelievably, this isn’t a story from some totalitarian government on the other side of an ocean. This happened in the United States, and by the FBI. Eventually—I’m sure there will be appeals—higher U.S. courts will decide whether this sort of practice is legal. If it is, the country will slide even further into a society where the police have even more unchecked power than they already possess.

The facts are these. In June, Two wealthy Macau residents stayed at Caesar’s Palace in Las Vegas. The hotel suspected that they were running an illegal gambling operation out of their room. They enlisted the police and the FBI, but could not provide enough evidence for them to get a warrant. So instead they repeatedly cut the guests’ Internet connection. When the guests complained to the hotel, FBI agents wearing hidden cameras and recorders pretended to be Internet repair technicians and convinced the guests to let them in. They filmed and recorded everything under the pretense of fixing the Internet, and then used the information collected from that to get an actual search warrant. To make matters even worse, they lied to the judge about how they got their evidence.

The FBI claims that their actions are no different from any conventional sting operation. For example, an undercover policeman can legitimately look around and report on what he sees when he invited into a suspect’s home under the pretext of trying to buy drugs. But there are two very important differences: one of consent, and the other of trust. The former is easier to see in this specific instance, but the latter is much more important for society.

You can’t give consent to something you don’t know and understand. The FBI agents did not enter the hotel room under the pretext of making an illegal bet. They entered under a false pretext, and relied on that for consent of their true mission. That makes things different. The occupants of the hotel room didn’t realize who they were giving access to, and they didn’t know their intentions. The FBI knew this would be a problem. According to the New York Times, “a federal prosecutor had initially warned the agents not to use trickery because of the ‘consent issue.’ In fact, a previous ruse by agents had failed when a person in one of the rooms refused to let them in.” Claiming that a person granting an Internet technician access is consenting to a police search makes no sense, and is no different than one of those “click through” Internet license agreements that you didn’t read saying one thing and while meaning another. It’s not consent in any meaningful sense of the term.

Far more important is the matter of trust. Trust is central to how a society functions. No one, not even the most hardened survivalists who live in backwoods log cabins, can do everything by themselves. Humans need help from each other, and most of us need a lot of help from each other. And that requires trust. Many Americans’ homes, for example, are filled with systems that require outside technical expertise when they break: phone, cable, Internet, power, heat, water. Citizens need to trust each other enough to give them access to their hotel rooms, their homes, their cars, their person. Americans simply can’t live any other way.

It cannot be that every time someone allows one of those technicians into our homes they are consenting to a police search. Again from the motion to suppress: “Our lives cannot be private—­and our personal relationships intimate­—if each physical connection that links our homes to the outside world doubles as a ready-made excuse for the government to conduct a secret, suspicionless, warrantless search.” The resultant breakdown in trust would be catastrophic. People would not be able to get the assistance they need. Legitimate servicemen would find it much harder to do their job. Everyone would suffer.

It all comes back to the warrant. Through warrants, Americans legitimately grant the police an incredible level of access into our personal lives. This is a reasonable choice because the police need this access in order to solve crimes. But to protect ordinary citizens, the law requires the police to go before a neutral third party and convince them that they have a legitimate reason to demand that access. That neutral third party, a judge, then issues the warrant when he or she is convinced. This check on the police’s power is for Americans’ security, and is an important part of the Constitution.

In recent years, the FBI has been pushing the boundaries of its warrantless investigative powers in disturbing and dangerous ways. It collects phone-call records of millions of innocent people. It uses hacking tools against unknown individuals without warrants. It impersonates legitimate news sites. If the lower court sanctions this particular FBI subterfuge, the matter needs to be taken up—­and reversed­—by the Supreme Court.

This essay previously appeared in The Atlantic.

EDITED TO ADD (4/24/2015): A federal court has ruled that the FBI cannot do this.

Posted on December 18, 2014 at 6:57 AM • View Comments

FBI Agents Pose as Repairmen to Bypass Warrant Process

This is a creepy story. The FBI wanted access to a hotel guest’s room without a warrant. So agents broke his Internet connection, and then posed as Internet technicians to gain access to his hotel room without a warrant.

From the motion to suppress:

The next time you call for assistance because the internet service in your home is not working, the “technician” who comes to your door may actually be an undercover government agent. He will have secretly disconnected the service, knowing that you will naturally call for help and—when he shows up at your door, impersonating a technician—let him in. He will walk through each room of your house, claiming to diagnose the problem. Actually, he will be videotaping everything (and everyone) inside. He will have no reason to suspect you have broken the law, much less probable cause to obtain a search warrant. But that makes no difference, because by letting him in, you will have “consented” to an intrusive search of your home.

Basically, the agents snooped around the hotel room, and gathered evidence that they submitted to a magistrate to get a warrant. Of course, they never told the judge that they had engineered the whole outage and planted the fake technicians.

More coverage of the case here.

This feels like an important case to me. We constantly allow repair technicians into our homes to fix this or that technological thingy. If we can’t be sure they are not government agents in disguise, then we’ve lost quite a lot of our freedom and liberty.

Posted on November 26, 2014 at 6:50 AM • View Comments

More Crypto Wars II

FBI Director James Comey again called for an end to secure encryption by putting in a backdoor. Here’s his speech:

There is a misconception that building a lawful intercept solution into a system requires a so-called “back door,” one that foreign adversaries and hackers may try to exploit.

But that isn’t true. We aren’t seeking a back-door approach. We want to use the front door, with clarity and transparency, and with clear guidance provided by law. We are completely comfortable with court orders and legal process—front doors that provide the evidence and information we need to investigate crime and prevent terrorist attacks.

Cyber adversaries will exploit any vulnerability they find. But it makes more sense to address any security risks by developing intercept solutions during the design phase, rather than resorting to a patchwork solution when law enforcement comes knocking after the fact. And with sophisticated encryption, there might be no solution, leaving the government at a dead end—all in the name of privacy and network security.

I’m not sure why he believes he can have a technological means of access that somehow only works for people of the correct morality with the proper legal documents, but he seems to believe that’s possible. As Jeffrey Vagle and Matt Blaze point out, there’s no technical difference between Comey’s “front door” and a “back door.”

As in all of these sorts of speeches, Comey gave examples of crimes that could have been solved had only the police been able to decrypt the defendant’s phone. Unfortunately, none of the three stories is true. The Intercept tracked down each story, and none of them is actually a case where encryption foiled an investigation, arrest, or conviction:

In the most dramatic case that Comey invoked—the death of a 2-year-old Los Angeles girl—not only was cellphone data a non-issue, but records show the girl’s death could actually have been avoided had government agencies involved in overseeing her and her parents acted on the extensive record they already had before them.

In another case, of a Louisiana sex offender who enticed and then killed a 12-year-old boy, the big break had nothing to do with a phone: The murderer left behind his keys and a trail of muddy footprints, and was stopped nearby after his car ran out of gas.

And in the case of a Sacramento hit-and-run that killed a man and his girlfriend’s four dogs, the driver was arrested in a traffic stop because his car was smashed up, and immediately confessed to involvement in the incident.

[…]

His poor examples, however, were reminiscent of one cited by Ronald T. Hosko, a former assistant director of the FBI’s Criminal Investigative Division, in a widely cited—and thoroughly debunked—Washington Post opinion piece last month.

In that case, the Post was eventually forced to have Hosko rewrite the piece, with the following caveat appended:

Editors note: This story incorrectly stated that Apple and Google’s new encryption rules would have hindered law enforcement’s ability to rescue the kidnap victim in Wake Forest, N.C. This is not the case. The piece has been corrected.

Hadn’t Comey found anything better since then? In a question-and-answer session after his speech, Comey both denied trying to use scare stories to make his point—and admitted that he had launched a nationwide search for better ones, to no avail.

This is important. All the FBI talk about “going dark” and losing the ability to solve crimes is absolute bullshit. There is absolutely no evidence, either statistically or even anecdotally, that criminals are going free because of encryption.

So why are we even discussing the possibility to forcing companies to provide insecure encryption to their users and customers?

The EFF points out that companies are protected by law from being required to provide insecure security to make the FBI happy.

Sadly, I don’t think this is going to go away anytime soon.

My first post on these new Crypto Wars is here.

Posted on October 21, 2014 at 6:17 AM • View Comments

Web Activity Used in Court to Portray State of Mind

I don’t care about the case, but look at this:

“Among the details police have released is that Harris and his wife, Leanna, told them they conducted Internet searches on how hot a car needed to be to kill a child. Stoddard testified Thursday that Ross Harris had visited a Reddit page called “child-free” and read four articles. He also did an Internet search on how to survive in prison, Stoddard said.

“Also, five days before Cooper died, Ross Harris twice viewed a sort of homemade public service announcement in which a veterinarian demonstrates on video the dangers of leaving someone or something inside a hot car.”

Stoddard is a police detective. It seems that they know about his web browsing because they seized and searched his computer:

…investigators confiscated Harris’ work computer at Home Depot following his arrest and discovered an Internet search about how long it would take for an animal to die in a hot car.

Stoddard also testified that Harris was “sexting”—is this a word we use in court now?—with several women on the day of his son’s death, and sent explicit pictures to one of them. I assume he knows that by looking at Harris’s message history.

A bunch of this would not be admissible in trial, but this was a probable-cause hearing, and the rules are different for those. CNN writes: “a prosecutor insisted that the testimony helped portray the defendant’s state of mind and spoke to the negligence angle and helped establish motive.”

This case aside, is there anyone reading this whose e-mails, text messages, and web searches couldn’t be cherry-picked to portray any state of mind a prosecutor might want to portray? (Qu’on me donne six lignes écrites de la main du plus honnête homme, j’y trouverai de quoi le faire pendre.—Cardinal Richelieu.)

Posted on July 4, 2014 at 6:24 AM • View Comments

Goldman Sachs Demanding E-Mail Be Deleted

Goldman Sachs is going to court to demand that Google retroactively delete an e-mail it accidentally sent.

The breach occurred on June 23 and included “highly confidential brokerage account information,” Goldman said in a complaint filed last Friday in a New York state court in Manhattan.

[…]

Goldman said the contractor meant to email her report, which contained the client data, to a “gs.com” account, but instead sent it to a similarly named, unrelated “gmail.com” account.

The bank said it has been unable to retrieve the report or get a response from the Gmail account owner. It said a member of Google’s “incident response team” reported on June 26 that the email cannot be deleted without a court order.

“Emergency relief is necessary to avoid the risk of inflicting a needless and massive privacy violation upon Goldman Sachs’ clients, and to avoid the risk of unnecessary reputational damage to Goldman Sachs,” the bank said.

“By contrast, Google faces little more than the minor inconvenience of intercepting a single email – an email that was indisputably sent in error,” it added.

EDITED TO ADD (7/7): Google deleted the unread e-mail, without waiting for a court order.

Posted on July 3, 2014 at 5:46 AM • View Comments

How Traffic Shaping Can Help the NSA Evade Legal Oversight

New research paper on how the NSA can evade legal prohibitions against collecting Internet data and metadata on Americans by forcing domestic traffic to leave and return to the US. The general technique is called “traffic shaping,” and has legitimate uses in network management.

From a news article:

The Obama administration previously said there had been Congressional and Judicial oversight of these surveillance laws—notably Section 215 of the Patriot Act, which authorized the collection of Americans’ phone records; and Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorized the controversial PRISM program to access non-U.S. residents’ emails, social networking, and cloud-stored data.

But the researchers behind this new study say that the lesser-known Executive Order (EO) 12333, which remains solely the domain of the Executive Branch—along with United States Signals Intelligence Directive (USSID) 18, designed to regulate the collection of American’s data from surveillance conducted on foreign soil—can be used as a legal basis for vast and near-unrestricted domestic surveillance on Americans.

The legal provisions offered under EO 12333, which the researchers say “explicitly allows for intentional targeting of U.S. persons” for surveillance purposes when FISA protections do not apply, was the basis of the authority that reportedly allowed the NSA to tap into the fiber cables that connected Google and Yahoo’s overseas to U.S. data centers.

An estimated 180 million user records, regardless of citizenship, were collected from Google and Yahoo data centers each month, according to the leaked documents. The program, known as Operation MUSCULAR, was authorized because the collection was carried out overseas and not on U.S. soil, the researchers say.

The paper also said surveillance can also be carried out across the wider Internet by routing network traffic overseas so it no longer falls within the protection of the Fourth Amendment.

We saw a clumsy example of this in 2013, when a bunch of Internet traffic was mysteriously routed through Iceland. That one was the result of hacking the Border Gateway Protocol (BGP). I assure you that the NSA’s techniques are more effective and less obvious.

EDITED TO ADD (7/13): Author responds to NSA comments.

Posted on July 1, 2014 at 3:23 PM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.