Hackers Gained Access To The Sensitive Data Of 36 Million Comcast Customers
from the whoops-a-daisy dept
Hackers have managed to obtain the personal data of 36 million Comcast customers.
In a notice sent to customers on Monday, Comcast announced that hackers had exploited the “CitrixBleed” vulnerability in Citrix networking devices that’s been a problem since at least August. Hackers gained access to a significant portion of Comcast systems between October 16 and October 19, but the company didn’t notice the intrusion until October 25.
It’s taken almost two months for Comcast to identify the scope of the intrusion, determine what data was accessed, and inform customers of the hack, which gave the hackers access to usernames, security questions, contact information, dates of birth, the last four digits of user social security numbers, and hashed passwords (Comcast doesn’t say what encryption algorithm was used).
Comcast attempted to downplay the scope of the hack by insisting they haven’t (yet) seen any instance of the data being used against Comcast customers. Not that they’d have any way to actually know that:
“We are not aware of any customer data being leaked anywhere, nor of any attacks on our customers”
Comcast currently has around 32.3 million broadband customers (and dropping), and 14 million or so TV customers (dropping even faster). I’m a broadband customer (Comcast has a monopoly at my address) and have yet to receive any notification whatsoever.
The Comcast hack — and the telecom giant’s 8 week delay in informing customers — comes as the FCC is considering new rules that would require broadband providers to do a better, faster job informing customers about data breaches. The effort is being uniformly opposed by Republicans, who consistently side with big telecom when it comes to the industry’s never-ending quest for zero accountability.
Filed Under: breach, broadband, cable, hack, privacy
Companies: comcast
The UK Government Should Not Let Copyright Stifle AI Innovation
from the copyright-rent-seeking dept
As Walled Culture has often noted, the process of framing new copyright laws is tilted against the public in multiple ways. And on the rare occasions when a government makes some mild concession to anyone outside the copyright industry, the latter invariably rolls out its highly-effective lobbying machine to fight against such measures. It’s happening again in the world of AI. A post on the Knowledge Rights 21 site points to:
a U-turn by the British Government in February 2023, abandoning its prior commitment to introduce a broad copyright exception for text and data mining that would not have made an artificial distinction between non-commercial and commercial uses. Given that applied research so often bridges these two, treating them differently risks simply chilling innovative knowledge transfer and public institutions working with the private sector.
Unfortunately, and in the face of significant lobbying from the creative industries (something we see also in Washington, Tokyo and Brussels), the UK government moved away from clarifying language to support the development of AI in the UK.
In an attempt to undo some of the damage caused by the UK government’s retrograde move, a broad range of organizations, including Knowledge Rights 21, Creative Commons, and Wikimedia UK, have issued a public statement calling on the UK government to safeguard AI innovation as it draws up its new code of practice on copyright and AI. The statement points out that copyright is a serious threat to the development of AI in the UK, and that:
Whilst questions have arisen in the past which consider copyright implications in relation to new technologies, this is the first time that such debate risks entirely halting the development of a new technology.
The statement’s key point is as follows:
AI relies on analysing large amounts of data. Large-scale machine learning, in particular, must be trained on vast amounts of data in order to function correctly, safely and without bias. Safety is critical, as highlighted in the [recently agreed] Bletchley Declaration. In order to achieve the necessary scale, AI developers need to be able to use the data they have lawful access to, such as data that is made freely available to view on the open web or to which they already have access to by agreement.
Any restriction on the use of such data or disproportionate legal requirements will negatively impact on the development of AI, not only inhibiting the development of large-scale AI in the UK but exacerbating further pre-existing issues caused by unequal access to data.
The organizations behind the statement note that restrictions imposed by copyright would create barriers to entry and raise costs for new entrants. There would also be serious knock-on effects:
Text and data mining techniques are necessary to analyse large volumes of content, often using AI, to detect patterns and generate insights, without needing to manually read everything. Such analysis is regularly needed across all areas of our society and economy, from healthcare to marketing, climate research to finance.
The statement concludes by making a number of recommendations to the UK government in order to ensure that copyright does not stifle the development of AI in the UK. The key ones concern access to the data sets that are vital for training AI and carrying out text and data mining. The organizations ask that the UK’s Code of Practice:
Clarifies that access to broad and varied data sets that are publicly available online remain available for analysis, including text and data mining, without the need for licensing.
Recognises that even without an explicit commercial text and data mining exception, exceptions and limits on copyright law exist that would permit text and data mining for commercial purposes.
Those are pretty minimal demands, but we can be sure that the copyright industry will fight them tooth and nail. For the companies involved, keeping everything involving copyright under their tight control is far more important than nurturing an exciting new technology with potentially huge benefits for everyone.
Follow me @glynmoody on Mastodon. Originally posted to Walled Culture.
Filed Under: ai, copyright, copyright exceptions, innovation, text and data mining, training, uk
Ex-Marine Sues Gov’t Over Its Demand He Take Down His ‘Fuck The Government’ Sign
from the I-THOUGHT-THIS-WAS-AMERICA dept
To paraphrase Voltaire, I disagree with what you say but I will defend to the death the government’s right to prosecute you for what you say.
That’s apparently the thought process in Olyphant Borough, Pennsylvania. Marine veteran Dave Bliler lives in this town. He’s also not thrilled with any level of government, at least according to the sign he posted in the front yard of property he owns.
Here it is, in all its uncensored glory, as depicted in his First Amendment lawsuit [PDF] against the town he resides in:
The borough did not care for this particular sign, despite it being posted on private property. The city said Bliler needed a permit to display this sign in his own front yard, despite not demanding the same statutory cooperation from others with similarly-sized or -located signs.
So, it seems the town only has a problem with someone stating the “government” should be “fucked.” But when it comes to one particular fucker (formerly) employed by the federal government, Olyphant Borough can’t be bothered to re-read its sign-related statutes.
While these Trump supporters were ignored, Dave Bliler was targeted by the town government:
Shortly after the Blilers erected the Sign, the Borough sent them an enforcement letter, informing them that the Sign was in violation of the Ordinance’s permit and size requirements. The letter threatened to haul the Blilers before a judge and impose a $500 fine per day if they were found to be in violation of the Ordinance. Though their neighborhood is littered with signs that appear to lack a permit, to the Blilers’ knowledge, they are the only ones facing the Borough’s enforcement action.
Selective enforcement. That’s always a problem when it comes to the Constitution. It’s even more of problem when it involves law enforcement agencies (local officers were involved) and a statute that doesn’t actually outlaw the sign the town arbitrarily decided was illegal.
The Ordinance limits the number of signs a property owner can display. Id. § 916.A.1. In general, property owners are limited to “one sign per premises or property.” For property fronting more than one street, the Ordinance allows for one sign on each street front. But residents may have more than one sign depending on the content of the additional sign(s), including (1) signs that list the name and address of the occupants (two additional signs), (2) handicapped parking signs (no numerical limitation), (3) private drive signs (one additional sign per driveway), (4) security and warning signs (one additional sign), and (5) real estate signs (one additional sign). §§ 908.J, 908.L., 908.M., 908.O, 916.A.2.
The Ordinance contains different size limitations depending on the content of the sign. In residential areas, signs generally may not be larger than six square feet. But “contractors and artisans” may display signs up to twelve square feet promoting their businesses while they are working on the property. And “[s]igns for permitted non-residential or permitted “institutional uses” may be thirty-two square feet. These latter types of signs may also be erected on each frontage and each “entrance [] or exit” to the property.
So, where does Dave’s sign reside in terms of regulatory action? Well, the Bliler’s house fronts only one street, which would seemingly limit it to one sign of six square feet or less. On the other hand, whoever’s able to call themselves a “contractor or artisan” is able to double the square footage of their sign. Beyond all of that is this: FUCKING AMERICA YO. You own the property, you should be able to post whatever size sign you want.
According to the ordinance, the Bliler’s “Fuck the Government” sign is a “temporary sign.” Temporary signs have no permit requirement and no legal limit beyond whatever the town declares to be the time period considers “temporary.” The Blilers posted their sign on October 13, 2023. Three days later, Dave Bliler was visited by the city’s chief of police — a visit that culminated with Chief James DeVoe coming to the conclusion the sign did not violate city statutes.
Less than a month later, though, the Blilers received a letter from the city’s zoning office informing them that their “Fuck the Government” sign was illegal because they had not obtained a permit to display it. The letter also said the sign was too “big” to fall into any other loopholes in this zoning law.
Since the sign had no chance of complying with this selective enforcement (it was 32 sq. ft. and the law outlawed anything bigger than 6 sq. ft.), the Blilers took it down. Then they sued.
Not only are the Blilers censoring themselves in terms of the now-removed “Fuck the Government” sign, they’re also proactively censoring further political expression. As the lawsuit notes, the Blilers intended to erect another sign saying nothing more than “GOVERNMENT CORRUPTION.” But now that they’re facing at least $40/day in fines from the borough already, they’ve decided to put that plan on ice until their civil rights lawsuit is sorted out.
We’ll have to wait until the borough responds to see what arguments it will raise in its own defense. Local law enforcement officers never bothered to speak on behalf of the borough. In fact, the only law enforcement officer to personally engage with the Blilers stated the sign was protected speech. The borough obviously doesn’t believe it is. But it has yet to say anything about the content of the sign, choosing to focus instead on the sign’s size, as if that alone will be enough to allow it to exit this lawsuit with its pocketbook and statutes intact.
That’s not going to happen. The borough needs to explain why it has chosen to target obvious political speech, especially when it has previously chosen to ignore other obviously political speech (the pro-Trump signs that violate the city’s statutes).
Good luck with that. Governments can sometimes get away with bad laws as long as they can show they’re enforcing them equally. But adding content-based restrictions to selective enforcement almost always adds up to declaring vague statutes dead and putting city residents on the hook for the misdeeds of those engaged in the selective enforcement of an already bad law.
Filed Under: 1st amendment, dave bliler, free speech, fuck the government, olyphant borough, pennsylvania, zoning laws
Techdirt Podcast Episode 374: Content Moderation Games
from the season-finale dept
Many of you might know Andrew “K’Tetch” Norton as a Techdirt commenter, or from his work at TorrentFreak or for the Pirate Party, and some of you might know that he also runs his own podcast, Tetch Talk. Recently, Andrew asked Mike and I to join him on the podcast for a discussion about our content moderation games Moderator Mayhem and Trust & Safety Tycoon, and today we’re posting a mirror of the full discussion for our last podcast of the year. See you in 2024!
Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
Filed Under: content moderation, games, gaming, moderator mayhem, podcast, trust and safety tycoon
Wait, Grimes Also Has An AI Toy Called Grok?
from the do-you-grok-it? dept
Oh boy. We’ve already written a few times about Elon Musk’s “Grok” AI from his company xAI, which may or may not be a part of ExTwitter or possibly Tesla, but no one really knows because all of Elon’s companies blend together in a mishmash of hell for anyone who believes in good, normal corporate governance. Specifically, we’ve covered how he’s facing a kinda serious trademark issue with Groq, a well-established AI chip company that has a trademark on the name Groq for use in artificial intelligence (and, no the different spelling doesn’t matter under trademark law).
And now there’s news that there’s a separate Grok AI situation that he faces… this one coming from his ex (he sure does love his “x’s” huh?) Grimes. Apparently there’s a toy startup, named Curio that has teamed up with Grimes to make an AI-powered toy named Grok (I swear this is a sentence that makes sense).
A glimpse toward this future is beginning to emerge in products like Grok, an AI-powered plush toy in the shape of a rocket that can converse with your child. Grok is the first product from a Silicon Valley start-up called Curio that is leveraging Open AI’s technology on a line of toys Curio’s founders say will be capable of long-running, fully interactive conversation, allowing a child to view it almost as a peer or friend.
Canadian musician Claire Boucher, known as Grimes and the mother of three of Elon Musk’s children, is an investor in and adviser to the company, and she will provide the toy’s voice.
“Every [change] in technology unlocks new forms of entertainment,” said Sam Eaton, president and chief toy maker at Curio, who was previously an engineer at Roblox, the gaming platform. “It’s a different level of immersion for playtime.”
And, yes, Curio apparently filed for a trademark on the word Grok as well in September, but in the category of “electronic learning toys” or “plush toys” so it’s not clear it will conflict. For what it’s worth xAI also filed for trademarks on Grok, one on October 23 and the other on November 7 of this year.
There’s also, um, this:
Sallee said that the toy was designed with Grimes’s children in mind and that they have a friendly relationship with it. “The toy was designed for X and the other kids,” she said, referring to the son of Grimes and Musk, X Æ A-Xii, “but X primarily because he’s of age where he can actually talk to the toy and it can talk back more effectively.”
But the toy has no relationship with Musk’s AI start-up, which also is called Grok. Curio holds the trademark on the name, and the two AI products are totally unaffiliated, Curio says. The name Grok was devised by Grimes and the Curio team, who said the word was a shortening of the word Grocket, which was coined because Grimes’ children are exposed to a lot of rockets through their father’s ownership of SpaceX.
As far as I can tell, it’s false that they “hold the trademark” on it. It’s only an application at this point, which makes it pending. I do not see a fully registered trademark on “Grok” for either company (and it wouldn’t surprise me if Groq opposed one or both trademarks).
Also, it seems… mighty convenient for this claim that “Grok” here is short for “Grocket” (especially since then wouldn’t it be called Grock?) but I guess I’ll let the two exes battle that one out among themselves.
Filed Under: elon musk, grimes, grok, toys, trademark
Companies: curio, groq, twitter, x, xai
Self-Proclaimed 9/11 Hero Rudy Giuliani Now Owes Election Workers He Defamed $148 Million
from the the-fo-follows-the-fa dept
The man who decided he was the real glue holding New York City together following the 9/11 attacks is now nothing more than a man whose stupid, obsequious mouth has written checks he can’t cash. And all to stroke the ego of a lame duck president who thought what the nation really needed was a self-absorbed autocrat.
An empire built on baseless claims cannot stand. I believe that’s how the old adage goes. Rudolph Giuliani — who is now former-pretty-much-everything (NYC mayor, Trump lawyer, existent on this plane of reality) — has undone his own reputation and his own dwindling finances in the hopes that Daddy Trump will once again let him eat at the grown-up table.
Donald Trump will not restore him to his former level of (disposable) glory as White House counsel, even if he’s elected president in 2024. It’s clear Trump believes any of his die-hard supporters now facing millions in judgments are victims of their own ineptitude, rather than victims of Trump’s self-interest and avarice.
Giuliani defamed a couple of Georgia election workers for the sole purpose of furthering Trump’s “stolen election” hallucinations. He continued to do so even after it became clear Trump wasn’t going to save those who sacrificed themselves, their fortunes, and their reputations on the altar of Trump’s insurrectionist wet dreams.
At this point, Giuliani is nothing more than an embarrassment. Trump doesn’t care for people who fail, even if they fail on his behalf. Presumably, Trump views Giuliani — the man now on the hook for $148 million in damages — as a failure and a coward: labels Trump applies to anyone he considers to have “lost,” whether it’s die-hard supporters now suffering the legal repercussions of their actions or a prisoner-of-war who served their country dutifully until they were captured, tortured, and (ultimately) mocked(!!!) by the sitting president.
Getting drubbed to the point of bankruptcy is entirely Rudy Giuliani’s fault. He openly admitted in court filings that he had defamed the election workers. But he wanted the court to consider his alternative arguments, in hopes that these specious requests might make him just a little less liable in other defamation suits in which he was the defendant.
He already owes the election workers and their legal reps more than $120,000 in legal fees, largely because he openly admitted he had lost this lawsuit.
The only question left was for the jury: how much does Rudy owe for the defamation he already admitted to? That question was answered recently. A fuckload, according to this CNN report compiled by Devan Cole, Holmes Lybrand, and Katelyn Polantz.
A Washington, DC, jury has ordered Rudy Giuliani to pay nearly $150 million to two Georgia election workers for the harm caused by defamatory statements he made about them following the 2020 election.
Ruby Freeman was awarded $16,171,000 for defamation and $20 million for emotional distress. Shaye Moss, Freeman’s daughter, was awarded $16,998,000 for defamation and $20 million for emotional distress. The jury also awarded $75 million in punitive damages to both plaintiffs.
That’s nearly $150 million out of Giuliani’s own pocket. Unfortunately for the defamed parties, there’s no way Giuliani actually has the assets to cover this judgment. As Business Insider reports, legal experts who have been following Giuliani’s multiple courtroom debacles are pretty sure this is a judgment that will take years to collect… if it can even be collected at all.
“He can’t pay this,” said Neama Rahmani, a former federal prosecutor and president of West Coast Trial Lawyers. “And it won’t go away.”
The former New York City mayor has racked up a litany of financial and legal troubles since dedicating himself fully to Trump’s ill-fated effort to maintain the presidency following President Joe Biden’s win in November 2020.
Giuliani — who was once considered one of the top prosecutors in the country — could be on the hook for still millions more as he faces two suits brought by voting machine companies, as well as a sexual harassment suit for $10 million and a $1.4 million suit from his former lawyers.
This is just the most prominent tip of Giuliani’s litigation iceberg. And there’s no doubt this judgment will be appealed by the former NYC mayor. He’s unlikely to win a reversal of his non-fortune, though. His legal antics in this case (along with his unprovoked admission of guilt) will likely make any appeal futile.
The problem is Giuliani. He’s proven to be too stupid to shut up. And he’s apparently so oblivious to reality he actually still seemed to believe Trump would save him from himself. But here’s the thing: when your operative assumption is that a rising sewer lifts all turds, at the end of the day you’re still a piece of shit.
There will always be new acolytes willing to swear obeisance. And most of those won’t be wearing the stains of courtroom losses and bankruptcy filings. Giuliani debased himself to serve an orange-haired megalomaniac. He could have stopped at any time. But he didn’t. And now whatever he earns for the rest of life will belong to the people whose lives he tried to ruin in hopes of pleasing the most self-interested man to ever hold the office of President.
Filed Under: defamation, georgia, ruby freeman, rudy giuliani, shaye moss
Daily Deal: StackSkills Unlimited
from the good-deals-on-cool-stuff dept
StackSkills is the premier online learning platform for mastering today’s most in-demand skills. Now, with this exclusive limited-time offer, you’ll gain access to 1000+ StackSkills courses for life! Whether you’re looking to earn a promotion, make a career change, or pick up a side hustle to make some extra cash, StackSkills delivers engaging online courses featuring the skills that matter most today, both personally and professionally. It’s on sale for $19.97.
Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.
Filed Under: daily deal
Google Sues Over Bogus, Anti-Competitive DMCA Takedowns
from the dmca-is-a-speech-suppression-tool dept
This one is from a couple months ago, but I’m clearing out some older stories that I didn’t have the time to write up when they were new.
For years, we’ve highlighted how the DMCA is regularly abused for a variety of purposes. Often it’s abused to try to take down content someone doesn’t like, by falsely claiming copyright over it. But, lately, it’s been abused by scammers trying to stifle competition.
This isn’t a surprise. As we’ve pointed out for a long while, if you give people a legal process that enables the legally required removal of content, people are going to seek to use it in all sorts of way that go beyond the official limits of those methods. This is also why we keep pointing out that other attempts to create legal processes to remove content (such as removing Section 230’s immunity protections) would like lead to vastly more abuse and suppression of free speech. There is plenty of research highlighting this issue of over-removals — but less attention has been focused on ways to prevent it.
Over the years, we’ve seen a few examples of lawsuits seeking to stop abusers, but they’re few and far between. Now Google has filed one, targeting some individuals who apparently flooded Google’s DMCA system with fraudulent takedown notices, seeking to diminish the search results of competitors.
Now, there’s some important history to cover here. For many years, Hollywood went on a massive pressure campaign to get Google to stop linking to “infringing” content. This was what the entire SOPA fight was really about. Hollywood wanted to force Google to remove infringing content from search, or face liability for linking to it.
At some point, a decade ago, Google caved to Hollywood pressure, and agreed that it would start using DMCA notices as a search signal, diminishing the search rankings of sites that received many DMCA notices. We warned that this would be abused and felt that Google was making a big mistake.
And, now we’re here, where companies recognize that they can negatively impact competitor sites by filing bogus DMCA notices. It probably happens more frequently than anyone wants to admit. But, in this case, it appeared to be so egregious that Google felt it needed to take action.
Over the last few years and continuing to the present, Defendants—led by two individuals, Defendants Nguyen and Pham—have created at least 65 Google accounts so they could submit thousands of fraudulent notices of copyright infringement against more than 117,000 third-party website URLs. Defendants appear to be connected with websites selling printed t-shirts, and their unlawful conduct aims to remove competing third-party sellers from Google Search results. Defendants have maliciously and illegally exploited Google’s policies and procedures under the DMCA to sabotage and harm their competitors.
Defendants’ scheme—which is expressly prohibited by Google’s Terms of Service and is illegal under both federal and California law—has caused significant damage to Google and its customers. Google and its third-party advertising customers have lost substantial revenue as a direct result of Defendants’ misconduct, which additionally has forced Google to expend extensive resources for investigation and remediation.
The complaint notes in a footnote, that the 117k false notices may just be a drop in the bucket, as they’ve found many, many, many more notices targeting half a million URLs, but haven’t yet determined whether or not those are also fraudulent.
In its announcement about the lawsuit, Google notes that it hopes to deter these kinds of activities with this lawsuit, but it still seems that a better way to do that is not to use DMCA notices (something that anyone can send) as a search signal. There are other ways to diminish the search results of sites dedicated to piracy, without relying on DMCA notices. But it does appear that Google has made its bed on this issue.
So far, not much has happened in the case, and it seems likely that the defendants will not show up in court. Google has asked to serve the defendants via Gmail accounts, and the court has granted that request. The individuals are in Vietnam, and it seems unlikely that they’ll want to bother engaging in the US court system.
Still, it is good to see some sort of legal action being taken here, and hopefully it does deter these kinds of egregious DMCA abuse. A better system, of course, would be to fix the DMCA to make this kind of abuse more difficult, but that doesn’t seem likely any time soon.
Filed Under: competition, copyright, dmca, dmca abuse, search results
Companies: google
GOP Wants To Prevent The FCC From Protecting Broadband Consumer Privacy
from the who-needs-privacy-anyway dept
Back in 2017 the FCC tried to pass some very basic privacy protections for broadband access. The rules simply demanded transparency as to what kind of data your ISP collects and sells. They also mandated that the trafficking of sensitive financial data by telecoms require the opt in consent of consumers.
Telecom giants like AT&T and Comcast didn’t much like that. So, in perfect synchronicity with the GOP, they first successfully painted the proposal as extremist, and then killed the rules with a simple majority vote via the Congressional Review Act. Not only did that vote kill the rules, the CRA prohibits the regulatory agency in question from revisiting the same rules ever again.
It was an obvious act of corruption and regulatory capture by a Republican party consistently in perfect lockstep with predatory and unpopular telecom monopolies. A relationship the party never has to genuinely take ownership of thanks to press outlets often incapable of calling out obvious corruption.
Fast forward to 2023 and the FCC is considering new privacy protections that would require ISPs be more transparent about privacy breaches. And, once again, Republicans like Ted Cruz are very upset about it.
While the CRA prohibits a regulator from exploring the same rule, it’s less legally clear if the FCC can embrace specific aspects of the bigger rule. So that’s what the FCC is going to try, according to agency boss Jessica Rosenworcel:
“By its terms, the CRA does not prohibit the adoption of a rule that is merely substantially similar to a limited portion of the disapproved rule or one that is the same as individual pieces of the disapproved rule.”
I’m not sure that’s going to work out, but I think it’s important for the FCC to try and thread the needle anyway just to see if there’s traction here. An FTC report from 2021 highlights how telecom giants spy on consumers, collect oceans of data, then — despite constant industry denials of this fact — turn around and sell some form of access to those datasets to a broad assortment of middlemen and nitwits.
Lost in the debate over whether this will succeed in courts will be the fact that this whole mess was caused by corruption we’re seemingly incapable of doing anything about. The telecom industry has the majority of Congress — and the entirety of the GOP — in its back pocket. We’ve normalized the fact an entire party that works in lockstep with telecom monopolists to routinely make your service shittier and more expensive.
The GOP has been endlessly busy trying to create a future where regulators have zero meaningful authority to hold giant companies accountable for anything. In telecom, this is all driven by the delusion that once you remove oversight of companies like Comcast and AT&T, amazing “free market” synergies fill the vacuum, unleashing amazing new benefits and synergies everywhere you look.
Of course, that’s manufactured delusion. Without competition or regulatory oversight, companies like Comcast and AT&T simply double down on all of their worst impulses. And the GOP fully supports that future, whether it’s the demolition of net neutrality, high broadband prices due to monopolization, a lack of consumer privacy, or your family getting ripped off by bullshit fees and surcharges.
But despite the widespread, bipartisan unpopularity of U.S. telecom giants, the GOP never has to truly own its policy decisions on this front. In part because they’ve now got their own propaganda-focused press sure to frame any attempt to hold corporations accountable as government overreach. But because the “both sides,” view from nowhere mainstream press is incapable of calling out obvious corruption.
To make matters worse, there are several upcoming Supreme Court rulings that will be specifically designed to undermine already shaky U.S. regulatory authority further. And here, too, the press hasn’t really explained the stakes to the American public adequately. What could possibly go wrong?
Filed Under: broadband, congressional review act, fcc, high speed internet, privacy, ted cruz, telecom
Eighth Circuit: When Pretty Much Every Judge Thinks Your Warrant Is Bad, Good Faith Ain’t Gonna Save It
from the disappointing,-but-unsurprising dept
Warrants that are short on things required by the Fourth Amendment — probable cause, specificity, the correct address, solid affidavits — are often given a free pass because law enforcement has plenty of options when it comes to sneaking around the edges of the Constitution.
In some cases, the excuses are pretty much just this: “Hey, maybe we didn’t even need a warrant!” Those excuses include exigent circumstances (“no time to get a good warrant!”), plain view (“hey, we just saw the stuff right out in the open!”), community caretaking (“we cared so much about this person’s health we arrested/killed them!”), and any number of other exceptions (vehicle exception, officer safety, border security).
Then there’s something called “good faith,” a defense offered almost exclusively in hopes of excusing officers who acted in bad faith. That theory is basically this: “Well, we had a piece of paper with a judge’s signature on it.”
Even a bad warrant can become a good warrant so long as it was shoved in front of the bleary eyes of the local magistrate who likely started dozing off during the multiple paragraphs of copy-pasted boilerplate that always proceeds the actual particulars of this supposed probable cause.
But when multiple judges start saying a warrant is bad, no amount of good faith will save it. Especially when almost every judge given the chance to read the warrant affidavit arrives at the same conclusion: this isn’t probable cause, or anything even approaching it.
And so it goes in this relatively brief Eighth Circuit Appeals Court decision [PDF]. It starts with the arrest of John Ralston, following a search of his property. Although officers claimed Ralston was involved in fencing stolen goods, he was only charged with illegally possessing a firearm.
Ralston wasn’t even the person cops were interested in. Ralston lived on a 9.32 acre parcel of property left to him by his mother. The property contained a mobile home on the north side of Bear Creek Road (in Jones County, Iowa) and another small residence on the south side of the same road.
Local law enforcement officers were far more interested in Colton Varty, who they considered to be a suspect in multiple burglaries. Using extremely specious reasoning, they came to the conclusion Varty either lived at the mobile home at this property or at least “frequented” the residence.
So, officers decided the smartest move was to search John Ralston’s property.
The warrant authorized the search of Ralston’s residence, the mobile home where Varty was frequenting/residing, a machine shed, and two separate storage sheds with a physical address of 1221 Bear Creek Road, as well as a blue Jeep Liberty Sport owned by Varty. It authorized officers to seize a number of different things, including items commonly used in thefts or distribution of stolen property, indicia of occupancy, tools burglars use to gain access to locked structures or storage containers, property that had been reported as stolen, shoes believed to have beenworn during the thefts, and tire tracks/treads for comparison.
Ralston challenged the search of the south side of his property, which contained the house Ralston actually lived in. (The mobile home “linked” to Varty was on the north side.) Ralston claimed no nexus existed to give officers probable cause to search a residence never linked to Varty, the actual burglary suspect.
The first judge (beyond one signing the original warrant) to review the warrant agreed with Ralston. No probable cause existed to search his property.
In analyzing Ralston’s argument, the magistrate judge found: (1) the affidavit supporting the search warrant described the places to be searched in overbroad terms; (2) the information in the affidavit connecting Varty to the south side of the property was minimal; and (3) the supporting affidavit contained no information connecting Varty to Ralston’s residence. In addition to finding a want of probable cause, the magistrate judge found the good-faith exception did not apply.
The government said, “Oh, come on! The two residences are on the same property and besides everyone always grants us good faith, no matter how terrible we are at establishing probable cause.”
The district court compared Ralston’s arguments to the government’s arguments and then compared them to the warrant. It came down on the side of Ralston and the magistrate performing the initial review, but it did give the government what it wanted: forgiveness.
The district court was unpersuaded by the government’s objections regarding the probable cause determination, but ultimately denied the motion to suppress, reversing the magistrate judge’s determination that the good faith exception did not apply.
The score at this point: Bad warrant: 2 – Good faith 1. Not the best odds, but then again, the government rarely needs the best odds to walk off with win or, at the very least, a tie.
The Appeals Court makes sure this isn’t a tie. First off, it points out there’s nothing tying the suspected activity of Varty to the residence maintained by Ralston. These are two different people and only one of them was actually suspected of committing a string of burglaries.
The fact that Varty may have been present on the property from time to time (or even maintained a part-time residence on the other end of the 9.32 acre parcel) isn’t enough to tie Ralston to Varty’s alleged criminal activity. Probable cause is the base line. The officers didn’t even manage to approach that low bar here.
The officers here knew that Ralston and Varty maintained separate residences on the property. Their residences were separated by a road. The officers offered little more than a hunch that Ralston’s residence was being used to fence property that Varty was stealing. A reasonable officer would understand that a prerequisite for a search warrant is probable cause, not a mere suspicion or hunch.
Obviously, these officers were unreasonable. The appeals court makes sure that much is clear. Reviving past criminal activity may help when convictions and prison sentences are on the line. But they don’t add anything to probable cause assertions that deal with an entirely different set of crimes allegedly committed by an entirely different person.
The government asks us to give weight to law enforcement’s conclusory assertions that the property had been known for multiple years as a place where stolen property was fenced, Ralston and Varty were unemployed drug users, Ralston had been involved in the sale or distribution of narcotics for many years, and a neighbor had recently reported gunfire in the area.
The officer’s meandering into Ralston’s past weapons violations, drug use, and drug convictions is unrelated and immaterial to the offenses—burglary and possession/fencing stolen property—that were under investigation in the warrant application.
Attempting to add more probable cause to a deficient warrant during testimony in front of the district court doesn’t change anything about the original warrant. Only one judge approved it as it was written. Every judge after that declared it to be deficient. The Appeals Court points out that the US Supreme Court long ago declared that the “mere association with a known or suspected criminal or the presence in the location known to be involved in criminal activity does not establish probable cause.”
And that’s all the cops had here: stuff the Eighth Circuit made clear years ago didn’t amount to a hill of Fourth Amendment beans.
Armed with only the proximity of residences on rural property, conclusory assertions that lacked a nexus to Ralston’s residence or the targeted offenses, and no evidence of a relationship between Ralston and Varty or evidence that Varty had access to Ralston’s house, a reasonable officer would not believe there was a sufficient nexus to establish probable cause to search Ralston’s residence for evidence related to the burglaries or fencing stolen property. While the affidavit was detailed, focused, and probative as to Varty’s criminal activity, it said little about Ralston and lacked any specifics connecting Ralston or his residence to the offenses under investigation. Given the paucity of evidence as to Ralston, law enforcement should have been aware of the affidavit’s deficiencies. The additional information not included in the affidavit that consists of conclusory assertions and details unrelated to the offenses under investigation does not cure the deficiencies.
Bad warrant. No good faith. The final smack of the law enforcement nose with the rolled-up judicial newspaper? A vacated guilty plea, suppression of the evidence derived from this search, and (presumably) a dismissal of charges that can’t be supported without the evidence the government obtained illegally.
Filed Under: 4th amendment, 8th circuit, colton varty, good faith, iowa, john ralston, jones county, probable cause, warrant
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