Story art for this post over at Sixth Circuit Blog — “Prosecution’s use of cell-site location analysis upheld.” The article summarizes that “at the end of the day, litigators still need to test the reliability of cell-site analysis in each particular case. But this opinion [US v. Pembrook] underscores, as the Supreme Court did recently at oral argument in Carpenter, that the ubiquity of cell phones and location data provides the government with a potentially powerful tool against criminal defendants.
Read of the sad case where the Sixth Circuit upheld a jury verdict despite the white foreperson telling two black hold-out jurors that “maybe [they] felt [they] owed something to [their] black brothers,” and “I find it strange that the colored women are the only two that can’t see” the defendants’ guilt.
Here’s the story art:
Trump’s newly proposed budget eliminates all funding for Legal Services Corp. or “LSC.” This threat to cut legal aid funding is severely wrongheaded.
WHO WILL BE HURT
I’ve worked for two organizations funded through LSC. Both provided vital services for (to name a few) impoverished veterans, seniors, people with terminal illnesses, and people in rural areas with limited access to legal resources. It’s particularly important for domestic-violence victims: “Programs funded by LSC are the main source of legal assistance for women attempting to escape domestic violence.” This report summarizes well who benefits:
- Tenants facing wrongful eviction
- Homeowners facing foreclosure due to fraudulent schemes
- Women who are victims of domestic violence
- Veterans and military families struggling in civilian life
- Consumers bankrupted by predatory lenders
- Workers cheated out of wages or denied lawful benefits
- Children who need a stable home or special education
- Elderly whose economic security or health care is in jeopardy
- Disabled people denied opportunities
- Immigrants who work the lowest-wage jobs without benefits or contracts
- Communities devastated by natural disaster
The organizations LSC funds often struggled to find funding to help everybody in need. Private donations aren’t enough. Studies estimate “that a staggering 80 percent of serious legal needs of low-income people go unmet due to grossly insufficient funding and support. In fact, although some 60 million people who are poor or nearly poor are eligible for LSC-funded legal aid programs, only about one million clients seeking legal help annually are able to be served due to limited resources.”
Aside from moral concerns, providing legal services is a good investment. The money is “less than one-ten-thousandth of the federal budget.” And as the president of the American Bar Association observed: “More than 30 cost-benefit studies all show that legal aid delivers far more in benefits than it costs. If veterans become homeless, or disaster victims cannot rebuild, their costs to society are significantly more.”
Leaders of 150 major private law firms wrote an open letter warning that eliminating LSC “will not only imperil the ability of civil legal aid organization to serve Americans in need, it will also vastly diminish the private bar’s capacity to help these individuals.” They argue that the private pro bono activity facilitated through LSC funding “is exactly the kind of public-private partnership the government should encourage, not eliminate.” They also note that studies have shown that each dollar spent on legal aid returns six to ten-fold return “of quantifiable economic outcomes and savings.”
It’s worth taking a closer look at some of these studies.
This 2015 study found “33 Florida nonprofit civil legal aid organizations produced $600 million in economic impact with $83 million in total funding from sources including the Foundation, the Legal Services Corporation, local governments, donors and others in 2015.” A seven-fold return on investment. “One of the largest economic impacts of civil legal aid results from assistance in obtaining the federal benefits, child support, wages and unemployment compensation to which Florida residents are entitled, income that is in turn spent within Florida.” The legal-aid money also helped “ease the burden on Florida’s court system by helping people who are self-represented navigate the system and helping the public understand legal processes.” Additionally, legal aid saved money in other ways, including the following:
- $2.9 million in costs for emergency shelter were avoided for low-income families who, with the assistance of legal aid advocates, were able to avoid eviction or gain time to seek alternative housing;
- $50.6 million in foreclosure costs were avoided by low-income homeowners, lenders, neighbors and local governments;
- $6.9 million in costs associated with domestic violence were avoided
This 2011 study out of Pennsylvania concluded: “Legal Aid lacks the funds to meet all the need. As a result, the state’s economy loses tens of millions each year because unrepresented Pennsylvanians are unable to assert their right to obtain federal benefits, such as federal disability and federal Medicaid payments.” The study found that $53.6 million invested in legal aid yielded $594 million in income and savings for residents and communities, and supported 2,643 jobs. An eleven-fold return on investment!
This 2011 study found “a return of $6.71 for every single dollar invested in Iowa Legal Aid by sources within Iowa.” A big chunk of this came from “indirect benefits,” which included savings on two particular costs: “the costs that are avoided as a result of Iowa Legal Aid’s work to prevent homelessness, and the costs that are avoided as a result of Iowa Legal Aid’s work to reduce domestic violence.” As the study notes, “Homelessness and domestic violence carry tremendous costs; by reducing the incidence of each of these problems, Iowa Legal Aid provides huge savings for Iowa taxpayers.”
This 2013 study found over $11 in economic impacts for every $1 in legal-aid funding. The key findings were summarized as follows:
- Positive economic impact includes both immediate and long-term benefits, with over $64 million in direct financial benefits for Tennessee residents
- Legal aid reduces burdens on state budgets and local communities and helped save $42.6 million in community expenditures in the areas of emergency shelter, foreclosure and domestic violence
- Investments in legal aid produce positive economic effects for residents of all income levels
- Provided over $81 million in unique economic benefits for local communities across the state from federal dollars and the resulting economic multiplier effect
- Increasing funding and support for civil legal services should create additional benefits
Similar to the studies above, this study, conducted in 2011, found a five-fold return on investment for legal-aid funding. For funding of 139 million, it broke down the benefits as follows:
- $72.4 million in income benefits and cost savings directly received by low-income families.
- $2.8 million in cost savings for taxpayers.
- $61.3 million in economic impacts of federal dollars flowing into local economies as an outcome of legal aid’s representation of clients – dollars which support 850 jobs for working Virginians and provide income for businesses across the state.
- $2.5 million in state and local taxes paid by the individuals whose jobs are supported by the economic multiplier impact of federally-supported benefits won for clients by legal aid.
The study authors added:
Additional economic impacts are achieved every year that are difficult to quantify, but, based on the information presented in this report, they are no less real. These include savings for businesses and their investors from the loss in home property values occurring through mortgage foreclosures that legal aid can prevent. They include reimbursements to health care providers for the cost of emergency services they would have to write off without the Medicaid eligibility that low-income families obtain through legal aid. They include efficiencies in the courts that arise from legal aid’s representation of low-income people and presentation of workshops for self-represented litigants.
MORE REASONS THIS PROPOSAL IS A BAD IDEA
Many of Trump’s supporters will celebrate his “budget cutting” without having any idea what these programs do. It’s not just legal services for the poor Trump is proposing cutting. The whole budget seems targeted at hurting the poor: “Trump has unveiled a budget that would slash or abolish programs that have provided low-income Americans with help on virtually all fronts, including affordable housing, banking, weatherizing homes, job training, paying home heating oil bills, and obtaining legal counsel in civil matters.”
Trumpsters will argue these services are best left to the local level. But unfortunately, there is no way small communities or even many States can afford adequate services. The tax base is just too small. So the federal government really is the ideal entity to distribute funding. With legal services, it is actually done by giving grant money to local non profits. It’s the best of both worlds.
It’s not that legal aid is all that expensive. Legal aid attorneys make only a tiny fraction of the money they would make in private practice. And court costs and other legal fees, though they cost too much for many poor folk to afford, aren’t insanely high. But even an attorney making $35k or 40k a year is too much for the average municipality to carve out of a very limited budget to cover legal services for the poor. A small team of talented experts in legal issues affecting the poor would be impossible to fund. So a very very small portion of our federal tax dollars are distributed to local non-profits to cover the cost.
Chris Edwards at Cato Institute has written in support of the budget proposal, arguing that it is the first step in “negotiations” about a smaller federal government. But it is neither fair nor good policy to “negotiate” this way with basic support for the poor. When there is this type of turmoil with funding, these organizations have to waste time planning for the worst (how to lay off staff, how to close out client cases). Some of the same things happened during the shut down a few years ago. Trump isn’t just asking LSC to tighten its belt, he’s threatening to ax the whole organization.
This is governance by chaos, and it will hurt the poor.
Facebook is a flawed but useful way to keep up on the news about the resistance to President Trump. The problem is that there are so many pages overrun with memes, or disreputable sources, so it can take time to find pages worth following.
But there are other journalists and sources doing great work in this new era. Here are nine of my favorite semi-under-the-radar pages. Please leave more in the comments.
Description: “A news, media, and production company created by journalism icon Dan Rather and dedicated to insightful coverage and conversation.”
My take: Largely blow-by-blow links, on the cutting edge, generally to reputable (and diverse) sources. Decent news follow for the resisters.
Official description: “The Southern Poverty Law Center is a nonprofit civil rights organization that combats hate and intolerance, and fights for the rights of the most vulnerable in our society. The SPLC has won numerous landmark legal victories on behalf of the exploited, the powerless and the forgotten. Its lawsuits have toppled institutional racism in the South, crippled some of the nation’s most violent white supremacist groups and won justice for exploited workers, disabled children and other victims of discrimination.”
My take: A good source for keeping track of the civil rights abuses of the Trump Administration.
Official description: “We are the Women’s March.”
My take: The legacy of the huge post-inauguration-day march. Continues to post useful news and commentary, and to organize group protests, including an upcoming “Day Without Women.”
Official description: “Sojourners is the largest network of progressive Christians in the United States, focused on the biblical call to social justice. Our award-winning Sojourners magazine and Sojourners online publication provide the most up-to-date news and thought-provoking commentary from social justice leaders.”
My take: Written for Christianity-inclined lefties, this social media outlet for Sojourner’s Magazine features thoughtful original content.
5. Mother Jones
Official description: “Mother Jones is an award-winning nonprofit news organization that publishes in-depth investigative reporting, game-changing breaking news, and innovative coverage across politics, the environment, health, human rights, culture, and more.”
My take: Sometimes too sarcastic, yet it’s a good source if you like your news to be fact-based with a dose of liberal rage.
Official description: “Lawfare is a multimedia web site devoted to serious discussion of national security law and policy. It has a staple of commentators, ranging from journalists to practicing lawyers and law professors. It produces the Lawfare Podcast. It publishes a book review. And it does highly-detailed journalistic coverage of court proceedings in a number of high-profile national security litigations.”
My take: The most wonky of all the pages on this list, this website was started for national-security-law nerds. It’s certainly not knee-jerk anti-Trump. But as he breaks national-security norms, it is a great source.
Official description: U.S. Senator from New Jersey.
My take: Booker is sometimes seen as a showboater, but it is hard to dispute that he gets how social media works. His posts include a mix of his own political posts, news from reputable sources, and inspiring quotes. Of all the senators I’m following — Bernie Sanders, Elizabeth Warren, John Lewis, Tim Kaine, Al Franken, etc. — I find myself appreciating Booker’s feed the most.
8. Shaun King
Official description: “Shaun King is one of many voices—though an increasingly prominent voice—within the Black Lives Matter movement. By using social media to highlight, amplify, and discuss news of police brutality, racial discrimination, and other civil rights issues, King has become an indispensable source for extending crucial conversations about social justice and equality.”
My take: This guy posts a lot, and sometimes it is a mixed bag on quality. But he is good at shedding light on lower-profile incidents of racism and injustice. He’s also connected to the latest with Black Lives Matter.
Official description: “Together, we will stand proudly against a demagogue who has belittled immigrants, women, African-Americans, and virtually every minority group. Forever, the Birther-in-Chief.”
My take: Despite the inflammatory title, this page posts mostly thoughtful and well-source articles criticizing Trump.
As reported last week, Jeff Sessions is promising to roll back civil-rights protections for incidents of police brutality, even though he concedes he didn’t read the two major reports about police brutality from the past year.
His announcement would seem a lot more legitimate if he had read these reports and disagreed. Instead, our Attorney General, entering office accused of racism, has announced that he hasn’t read the careful reports from his own staff about incidents against minorities and yet is pulling out of protections for minorities regardless.
Sessions “indicated he subscribed to the ‘bad apples’ view on policing.” But as John Oliver put it, “The phrase isn’t ‘it’s just a few bad apples – don’t worry about it.’ The phrase is ‘a few bad apples spoil the barrel.’ And we currently have a system which is set up to ignore bad apples, destroy bad apples’ records, persecute good apples for speaking up and shuffle dangerous, emotionally unstable apples around to the point that children have to attend f***** apple classes. You cannot look at our current situation and claim that anybody likes them apples.”
The Washington Post had a great summary of 12 key points from the Ferguson report:
- The city’s practices are shaped by revenue rather than by public safety needs.
- The 67% of African Americans in Ferguson account for 93% of arrests made from 2012-2014.
- Here is what happened when a 32-year-old black man was seen resting in his car after playing basketball.
- A Ferguson woman parked her car illegally once in 2007. It ended up costing her more than $1,000 and 6 days in jail.
- The disproportionate number of arrests, tickets and use of force stemmed from “unlawful bias,” rather than black people committing more crime.
- A singled missed, late or partial payment of a fine could mean jail time.
- Arrest warrants are “almost exclusively” used as threats to push for payments.
- And if time is served, no credit for jail time is received and the length of time isn’t even recorded by the court.
- [One particular] lieutenant’s actions was a huge cause for concern.
- Officers used a dog to attack an unarmed 14-year-old black boy and then struck him while he was lying on the ground, all while he was waiting for his friends in an abandoned house. The report concludes that in every dog bite incident reported, the person bitten was black.
- After an officer assaulted a man, he demanded the man not pass out because he didn’t want to carry him to his car.
- From October 2012 to October 2014, every time a person was arrested because he or she was “resisting arrest,” that person was black.
Of course, Sessions brushed the reports aside (without reading them!) as “not so scientifically based.”
I wish this were a joke. Consider the careful process of the Chicago investigators, as discussed in the report itself:
First, we reviewed thousands of pages of documents provided to us by CPD, IPRA, and the City, including policies, procedures, training plans, Department orders and memos, internal and external reports, and more. We also obtained access to the City’s entire misconduct complaint database and data from all reports filled out following officers’ use of force. From there, we reviewed a randomized, representative sample of force reports and investigative files for incidents that occurred between January 2011 and April 2016, as well as additional incident reports and investigations. Overall, we reviewed over 170 officer-involved shooting investigations, and documents related to over 425 incidents of less-lethal force.
We also spent extensive time in Chicago—over 300 person-days—meeting with community members and City officials, and interviewing current and former CPD officers and IPRA investigators. In addition to speaking with the Superintendent and other CPD leadership, we met with the command staff of several specialized units, divisions, and departments. We toured CPD’s training facilities and observed training programs. We also visited each of Chicago’s 22 police districts, where we addressed roll call, spoke with command staff and officers, and conducted over 60 ride-alongs with officers. We met several times with Chicago’s officer union, Lodge No. 7 of the Fraternal Order of Police, as well as the sergeants’, lieutenants’, and captains’ unions. All told, we heard from over 340 individual CPD members, and 23 members of IPRA’s staff.
Our findings were also significantly informed by our conversations with members of the Chicago community. We met with over ninety community organizations, including non-profits, advocacy and legal organizations, and faith-based groups focused on a wide range of issues. We participated in several community forums in different neighborhoods throughout Chicago where we heard directly from the family members of individuals who were killed by CPD officers and others who shared their insights and experiences. We also met with several local researchers, academics, and lawyers who have studied CPD extensively for decades. Most importantly, however, we heard directly from individuals who live and work throughout the City about their interactions with CPD officers. Overall, we talked to approximately a thousand community members. We received nearly 600 phone calls, emails, and letters from individuals who were eager to provide their experiences and insights.
In addition to attorneys, paralegals, outreach specialists, and data analysts from the Civil Rights Division of the United States Department of Justice and the United States Attorney’s Office for the Northern District of Illinois, 11 independent subject-matter experts assisted with this investigation. Most of these experts are current or former law enforcement officials from police departments across the country. Accordingly, these experts have decades of expertise in areas such as the use of force, accountability, training, supervision, community policing, officer involved domestic violence and sexual misconduct, officer wellness, and more. These experts 3 accompanied us on-site, reviewed documents and investigative files, and provided invaluable insights that informed both the course of this investigation and its conclusions.
After all that, the report reached four main conclusions:
- Chicago Police Department (CPD) engages in a pattern or practive of unconstitutional use of force.
- Chicago’s deficient accountability systems contribute to CPD’s pattern or practice of unconstitutional conduct.
- CPD does not provide officers with sufficient directions, supervision, or support to ensure effective policing.
- CPD must better support and incentivize policing that is lawful and restores trust among Chicago’s marginalized communities.
Without reading these reports, Sessions just doesn’t see the problem. Nothing screams preconceived bias like declining even to read reports that contradict your view. Perhaps Sessions is just too busy dealing with his other problems.
Wired Magazine‘s “Jargon Watch” this month had an interesting new term, “PhaaS,” defined as follows:
Based on software-as-a-service (SaaS) business models, PhaaS packages, sold on the dark web, provide everything a newbie cyber-criminal needs to run a phishing con, including templates for scams, fake web pages, and access to servers. One even offers tech support and tutorials.
This new “service” dovetails with a category of technology discussed in my 2015 article on accomplice liability for technology providers: technology designed for illegal use. There, the example was email spam software, but the principle is the same for Phaas providers.
You see, there are varied levels of involvement a software developer may have with a criminal organization. In particular, there are different considerations for the programmer who sells software knowing but not caring that a person will use it to violate the law, versus the programmer who designs software for criminal purposes.
As an example of the latter, consider Jerome O’Hara and George Perez, programmers for Bernie Madoff. I argued that this is the easiest case, because “[d]esigning a tool for use in a particular crime and giving it to a known purveyor of that crime” almost certainly subjects a person to liability as an accomplice. “The act of design for indictable use implies purposive attitude and a desire to aid the crime’s commission, and the provision to the known criminal is an act of association with the venture. It was likely similar reasoning that, in March 2014, led the jury in the case of Madoff’s programmers, who had worked for him for more than a decade, to find them guilty of conspiring to commit securities fraud.”
I suspect most PhaaS providers would fall under this category.
On the other hand, the question of whether the knowing sale of software capable of both legal and illegal use to a criminal is a criminal offense is harder. The Supreme Court, in Rosemond v. United States, expressly left open the question of accomplice liability for “defendants who incidentally facilitate a criminal venture rather than actively participate in it.” The Court added:
A hypothetical case is the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used. We express no view about what sort of facts, if any, would suffice to show that such a third party has the intent necessary to be convicted of aiding and abetting.
For such a PhaaS provider, one who knowingly sells to criminals but doesn’t care, to determine guilt, the court or jury would need to examine the range of the software’s legitimate uses and what exactly the provider knew about the purchaser. If the software is broadly sold for legitimate uses–say, sales to companies that test for cyber-security–then even if the PhaaS provider somehow knew a purchaser’s nefarious purpose, the provider might be innocent.
To understand why, consider this hypothetical from Judge Richard Posner:
Suppose you own and operate a store that sells women’s clothing. Every month the same young woman buys a red dress from your store. You happen to know that she’s a prostitute and wears the dress to signal her occupation to prospective customers. By selling her the dress at your normal price you assist her illegal activity, and probably you want the activity to succeed since if it fails she’ll stop buying the dress and your income will be less. But you are not an aider and abettor of prostitution because if you refused to sell to her she would buy her red dress from another clothing store, one whose proprietor and staff didn’t know her profession. So you’re not really helping her or promoting prostitution, as you would be if you recommended customers to her in exchange for a commission.
In the same way, if the PhaaS software had “substantial unoffending uses,” then the provider shouldn’t be expected to police the use of the software. But if, as I suspect is the case, the software is capable of chiefly one use, and that use is criminal, then the PhaaS provider risks criminal punishment as an accomplice.
I’m working on a new piece about 911 calls and their unique place in criminal law. Interestingly, the first federal appellate decisions mentioning 911 calls in criminal cases occurred in the mid-1980s, and there were only one or two per year. But then from 2012 to 2016, no less than 47 federal criminal appeal decisions per year, on average, involved 911 calls in some form or another. Even critical Supreme Court decisions, like the reasonable suspicion standard for anonymous calls from Navarette v. California, and the Confrontation Clause analysis from Davis v. Washington, hinge on unique perceived aspects of 911 systems.
There are four major areas of law I’ve identified where 911 calls play an out-sized role: (1) reasonable suspicion from anonymous tips, (2) the emergency aid exception to the warrant requirement, (3) the Confrontation Clause, and (4) hearsay.
I’ve also identified at least six problems with courts relying on with 911 technology in its current state: (1) outdated technology reducing location ability, (2) a shocking number of hang ups or pocket dials, (3) spoofing, (4) swatting, (5) inactive phones that can still dial 911, and (6) texting.
These problems, I argue, squarely undermine judicial faith in the reliability of calls placed through the 911 system. Any thoughts are welcome.
I’ve been following the Kim Dotcom saga since 2013, when I analyzed the government’s efforts to criminally prosecute filesharing services. There’s been no big news on that front since then. It seems the government is content to focus on extraditing the members of Megaupload.
Well, this week brought a major setback for Kim Dotcom’s efforts to avoid prosecution in the United States, as he lost his appeal challenging his extradition order. As reported by the BBC:
The High Court agreed with the defence that the accused could not be extradited on the basis of alleged copyright infringement, since “online communication of copyright protected works to the public is not a criminal offence in New Zealand”.
However they can be extradited on the fraud charges, he said, as they are crimes in New Zealand.
The ruling does not determine the defendants’ guilt or innocence, merely that they can be sent to the US for trial.
This is far from the end of the road, as reported on TechCrunch:
Once again, Dotcom plans to appeal the ruling, which could send the case to the Court of Appeal and perhaps even the New Zealand Supreme Court. In an interview with the New Zealand Herald, Dotcom predicted there are still another two years of legal battles ahead.