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Some years ago, I led an 18-member department in a small town as chief of police. I was ordered by the mayor, my boss by statute, to summarily seize another officers property (long story, I will spare you). I advised the mayor that to do so without probable cause or a warrant would be a Fourth Amendment violation that I refused to be a part of.

I was fired for disobeying a direct order.

I have always been convinced that no chief should serve without being willing to be fired. Should no police officer serve unless they, too, are willing to stand between the Constitution and an unlawful order?

Police officers are not only trained, but they are also enculturated and indoctrinated. The availability of tools of coercion is the very reason for the existence of the police, otherwise, social workers and bureaucrats would answer the phone instead of officers. There is no government policy, much less law, that is not leveraged by its police power to enforce compliance.

The evolution of uniformed police in America began with the office of sheriff, then municipal police, then the state police agency entered with much political suspicion and often opposed by sheriffs. The exponential growth of federal law enforcement since the U.S. Marshals service now embraces over 75 federal badge-carrying, gun-toting entities.

Unlike most countries where policing is a national, unified force or a branch of the military, the U.S. resisted such an approach. The dislike of uniforms, formed by the excesses of the British Redcoats, was eventually overcome after the ubiquitous blue or gray of the Civil War. Law enforcement was a local affair governed by the voting public who could throw out a sheriff every 2 or 4 years, remove a councilperson or mayor, or even press for a recall of an elected official. The exponential growth of federal agents in law enforcement was exceeded only by the rapid growth of bureaucracies to which the legislatures granted administrative power backed by civil and criminal penalties.

An example I am experiencing as I write this is a prohibition on a drive-in service for the church I attend during the COVID-19 pandemic. Our Governor specifically endorsed drive-in services but gave latitude to local health agencies to alter the regulations.

Our regional health department said no drive-in services for the church, after two requests with no further avenue of appeal. This department is staffed by persons hired by a board of health who, in turn, are appointed by our Board of County Commissioners. The public health order prohibits, specifically, all church events other than electronic delivery. That same order allows marijuana curbside pickup, restaurant drive-up service, and I can still walk into my local coffee shop to get a cup to go.

Frankly, since I know of no scientific evidence that COVID-19 would be leaping from car to car in our church parking lot while drivers listen on the FM radios short-range transmission, the order is in violation of both the freedom of peaceably assemble and the free exercise of religion and lacks the means to petition for the redress of grievances.

Clearly the disobeying of an order will not go unpunished. Whether you are regarded as a hero or a pariah, courageous or cowardly, there are those who will never forget your choice.

Beyond job loss, or discipline, or even prosecution there looms the reputation as a troublemaker. You may or may not be asked to be interviewed by the news media, but every idle word and every social media post will be examined for reasons to terminate you that cannot be directly pinned to your choice. Do not expect the next promotion.

Clarity of conscience is one thing, but the clarity of the rules is another. Is there a process and policy for refusing or countermanding orders of superiors? Is the thing you have been told to do a breach of law or ethics about which a court would agree?

Failure to arrest a protestor with whom you agree but who is trespassing or disturbing the peace is using your office to express your views. Failure to arrest a law-abiding protestor because the agency head vehemently dislikes the protestors views is a matter of principle.

There are times when citizens engage in civil disobedience for the sole purpose of generating a court case or media attention.

The motives of a drive-in churchgoer may be to sincerely adhere to religious belief about gathering together, or atheistic anarchists just wanting to stick it to the man. The motive of the object of our police action is of no concern to the enforcer, only whether the overt behavior gives us cause to take enforcement action.

If a controversial matter can be resolved through debate in the courts on legislative bodies, an officers refusal may be of no value in addressing the wrongful action of superiors or other government actors.

The issuance of $500 summonses to drive-in church attenders in the parking lot of Temple Baptist Church in Greenville, Mississippi, was received by each violator graciously from all reports, but what if one had resisted? Would the effort be worth using a TASER on grandma in her Easter best? Will the loss of amicable relations between those good citizens and the police be easily rebuilt? Will the image of an unmasked bus rider being dragged away by Philadelphia police be forgotten by summer?

As I reflected in a former PoliceOne article, Justice Brandeis made a famous dissent in the 1928 caseOmstead v. United Statesin which he stated,

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They conferred, as against the Government, the right to be let alone the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of theFourth Amendment.

To be clear, we understand that great powers accrue during crisis times. Whether overstated or understated, the science of the coronavirus made most of the current restrictions on our freedom of movement and commerce justifiable. We also know that litigation and legislation about those measures will continue for years. But can the uniformed officer remain silent and go about a duty that is repugnant to the Constitution at that moment, hoping for a distant resolution in the courts of law and public opinion? Each officer must examine their willingness not only to die for their duty to the public but to lose much in carrying out their ultimate duty to the Constitution.

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Police balance enforcing the law with upholding the constitution - Police News

Defendant was charged under the LCMC [Las Cruces Municipal Code] for the offenses of evading an officer and concealing identity.

The evidence presented below is undisputed. The trial testimony established that two officers were in Defendant's neighborhood investigating a report of a stolen car. Defendant, apparently believing the officers were attempting to catch and ticket traffic violators just to generate revenue, recorded the officers on his cell phone and yelled that they were wasting taxpayer dollars and should go collect revenue elsewhere.

At some point, Defendant's neighbor came outside and spoke with one officer while the other officer remained with Defendant. The neighbor stated that he came outside because he heard his dogs barking, not due to Defendant's yelling. The neighbor testified that he saw Defendant holding up his cell phone like he was recording the officers and verbally criticizing the police about his belief that police waste taxpayer money. The neighbor told the officer that Defendant was not bothering him but said that Defendant was "always yelling." He further testified that Defendant was talking in a "high tone of voice" and in an excited, but not agitated, manner. There were no complaints from other neighbors.

Following his conversation with the neighbor, the officer approached Defendant, who was standing with another officer, and asked him for identification. Defendant turned his phone toward the approaching officer, held up his other hand in a gesture to stop and told the officer "step back." As the officer continued to approach, Defendant said "stay away from me." The officer told Defendant "if you keep yelling and you keep screaming, and you keep causing people to come outside, you will be arrested for disorderly conduct."

The officers repeatedly demanded Defendant provide his identification. Defendant responded, "I don't need to identify myself to you, because I have not committed [a] crime." One of the officers replied, "The crime is disorderly conduct." According to the officers, Defendant was obstreperous with them, denied their repeated request to produce identification, and ultimately started to walk away into his yard.

The officers ran after Defendant and once in Defendant's yard, pushed Defendant to his knees, tased him, and pepper sprayed his face. Defendant was handcuffed and arrested. Following a bench trial, Defendant was convicted of two counts of resisting, evading or obstructing an officer and one count of concealing identity. Defendant now appeals.

{Because we conclude that the officers were without reasonable suspicion to detain Defendant, we need not address Defendant's argument that his conduct was protected by the First Amendment.}

[A.] Reasonable Suspicion as an Element of the Charges

Like its state statute counterpart, one of the essential elements of the LCMC crime for evading an officer is that "the person committing the act of evasion has knowledge that the officer is attempting to apprehend or arrest him[.]" Our Supreme Court in State v. Gutierrez, stated that the definition of "apprehend" in Section 30-22-1(B) means a "seizure[ ] in the name of the law" and equated such an apprehension "to include a situation in which an officer is attempting to briefly detain a person for questioning based on reasonable suspicion." Hence, our Supreme Court concluded that the presence of reasonable suspicion is crucial to a determination of sufficiency of the evidence for evading and eluding an officer because if the detaining officer lacked reasonable suspicion then he also lacked the legal authority to detain the defendant.

Further, like the state statute, one of the elements of concealing identity pursuant to Las Cruces, N.M., Code of Ordinances, art. I, Section 19-4 requires proof that the officer is acting "in a legal performance of his duty." In Ortiz, this Court recognized well-established law that "[a]n officer detaining a suspect for the purpose of requiring him to identify himself, has conducted a seizure subject to the requirements of the Fourth Amendment." Reasonable suspicion is required for such a seizure. Consequently, we held that absent reasonable suspicion to detain, the seizure of the defendant was unlawful, and the prosecution failed to prove that the officer was in the legal performance of her duty..

[B.] The Officers' Lacked Reasonable Suspicion to Detain Defendant

The district courtapparently without regard to the neighbor's testimonyconcluded that the officers had reasonable suspicion to investigate disorderly conduct based on the fact that Defendant loudly criticized police. Disorderly conduct consists of: "[e]ngaging in violent, abusive, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace[.]"Conduct is not criminal, or suspicious, simply because it is boisterous or unreasonably loud; the conduct must also tend to disturb the peace.

This is particularly true when the conduct at issue is comprised of words alone. New Mexico courts have criminalized only limited classes of speech: "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' wordsthose which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

The public's sensibilities are tough enough that, typically, the act of yelling alone does not shatter public order or threaten to do so. Although the Legislature has not specifically defined "conduct that tends to disturb the peace," our Supreme Court has implicitly defined it as "a disturbance of public order by an act of violence, or by an act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community." Our Supreme Court has instructed that we construe the disorderly conduct statute narrowly, and "unless the acts [that are alleged] fall clearly within the statute, they are not disorderly.

In its ruling that Defendant's conduct toward the officers provided reasonable suspicion to investigate disorderly conduct, the district court explained:

"[Y]ou're not allowed to be so boisterous and so loud to police officers, and accusing, and threateningI think that was the disorderly conduct. When police officers approach us and want to investigate something, it's "yes" or "no, sir", or somebody can end up dead. When a police officer approaches you and asks you for ID, you give it to them. That's the way that goes. Now if you're just standing on the street, I guess, you know and doing absolutely nothing, which is not your situation, I suppose you legally have a right not to give your ID, but then you probably are making a judgment call that you need to let a judge make."

Contrary to the district court's reasoning, our Supreme Court and this Court have applied the rule that in most instances "arguing with a police officer, even when using profane and insulting words, will not be enough to constitute disorderly conduct, unless the words are coupled with threatening behavior." Merely yelling obscenities at an officer, without more, does not create reasonable suspicion to investigate or probable cause to arrest for disorderly conduct. {Although the district judge implied that Defendant's conduct was accusing and threatening, our review of the record and lapel tape is devoid of evidence that Defendant by word or action made any threats to the officers and neither party has asserted on appeal that Defendant's criticisms of the officers were threatening.}

"Police officers, by nature of their training, are generally expected to have a higher tolerance for offensive conduct and language." "We are not indifferent to the officers in the case." These officers play an invaluable role in serving and protecting our community, and unfortunately, they are often subjected, as they were here, to ill-advised behavior. "However, it is because of their degree of skill, training, and experience that we rely on officers," not only to complete their duties, but "not to react to verbal provocation, at the risk of escalating a situation rife with conflict."

Without evidence of anything more than Defendant's loud remarks and cell phone recording of the officers, all of which occurred in their presence, the testimony did not give rise to an objectively reasonable suspicion that Defendant had committed or was committing the crime of disorderly conduct. "New Mexico is among the states that holds police officers to a higher standard of tolerance for abuse or offensive language."

We next address the City's argument that, even in the absence of reasonable suspicion to investigate disorderly conduct, Defendant's repeated refusal to produce identification or, following this refusal, to respond to officer commands not to walk away justified Defendant's detention and arrest. While the City is correct that officers "do not need justification to approach a person and ask that person questions," this is true only so long as the person remains free to leave and is not required to answer their questions. "[A] person has the constitutional right to walk away from an officer who lacks reasonable suspicion and simply wants to question the person[.]"A defendant who flees a seizure that is unsupported by reasonable suspicion cannot be punished for exercising his right to end the encounter and walk away. In sum, the officers did not have reasonable suspicion to detain Defendant and demand his identification.

Lastly, to the extent the City argues that it was reasonable for the officers to detain defendant to investigate his yelling and whether he was disturbing the tranquility of the community, we disagree. The evidence does not support a conclusion that it was reasonable for the officers to investigate Defendant's conduct as tending to cause "consternation and alarm."

Our review of the record does not reveal, nor does the City point to, any threatening behavior or violent conduct accompanying Defendant's verbal criticisms and cell phone recording of the officers. Additionally, the record does not reflect that Defendant's behavior toward the officers tended to have any effect on others at all, let alone that it rose to the level of tending to cause "alarm" amongst his neighbors.

While the testimony established that a neighbor came out of his home during the encounter between officers and Defendant, Defendant was not the reason that the neighbor came outside. The officers' testimony did not articulate any objective facts which would establish that Defendant's conduct tended to disturb the peace. Indeed, the record is void of any evidence that Defendant's yelling and cell-phone recording annoyed or bothered anyone other than the officers.

[T]here must be evidence that those who heard a defendant's remarks were negatively affected by or reacted to the statements in order to show that remarks were likely to incite listeners to breach the peace because "[t]o hold otherwise would be to allow police routinely to add disorderly conduct charges to any underlying charges because it is not uncommon for those being arrested to become belligerent and for crowds to gather at the sight of an arrest[.]" Without more, Defendant's loud criticism of the police and his act of recording them on his cell phone were not enough to provide an objectively reasonable suspicion to investigate Defendant for disturbing the tranquility of the community.

Absent reasonable suspicion establishing the officers' legal authority to detain Defendant, there was insufficient evidence to support Defendant's convictions for evading arrest and concealing identity. Accordingly, we do not address the remaining elements of the charges.

Read more:
"I Suppose You Legally Have a Right Not to Give Your ID [to Police]," - Reason

A fascinating new book, Reproductive Rights and Justice Stories, tells behind-the-scenes stories about Roe v. Wade and others. Pictured: Norma McCorvey, left, who was Jane Roe in the 1973 Roe v. Wade case, with her attorney, Gloria Allred, outside the Supreme Court in April 1989, where the Court heard arguments in a case that could have overturned the Roe v. Wade decision. (Lorie Shaull)

Weve all heard of the famous Supreme Court abortion case of Roe v. Wade, but have you heard of Madrigal v. Quilliganwhen in the 1970s ten Mexican American women sued their doctors at the USC Medical Center in Los Angeles for coercively sterilizing them?

Or Ferguson v. City of Charlestonwhen in the 1990s pregnant low-income women of color sued their doctors at the Medical University of South Carolina, where the doctors had reported them to the police after urine tests done during routine prenatal exams tested positive for drugs?

The case went all the way to the U.S. Supreme Court, which ruled in 2001 that the hospitals policy of involuntary drug testing of pregnant women violated their Fourth Amendment rights against unreasonable searches.

A fascinating new book, Reproductive Rights and Justice Stories, tells behind-the-scenes stories about these cases and otherssome famous and others not-so famousexplaining who brought them and why, what strategies feminist lawyers used in the cases, and what impacts the cases made.

Here atMs., our team is continuing to report throughthis global health crisisdoing what we can to keep you informed andup-to-date on some of the most underreported issues of thispandemic.Weask that you consider supporting our work to bring you substantive, uniquereportingwe cant do it without you. Support our independent reporting and truth-telling for as little as $5 per month.

This volume is the latest in a series of Law Stories textbooks that includes Women and the Law Stories, Family Law Stories, and Civil Rights Law Stories. Twelve law professors wrote the essays in Reproductive Rights and Justice Stories, including the collections co-editors Melissa Murray (NYU), Katherine Shaw (Cardoza) and Reva Siegel (Yale).

Siegel told Ms. that she hopes the book will foster intergenerational conversations about social change.

At a time when the law is shutting down possibilities for change in so many directions, it felt really important to recover those histories and to show the roots of the law, so as to teach another generation of students that the law they inherited wasnt given to them by courts but grew from people, debating in communities and fighting for change, like they could do in their own communities.

The cases covered in the book involve not only abortion, coercive sterilization, and criminalizing pregnant women, but also pregnancy discrimination in employment, family and medical leave, LGBT parenting, and the right to federal funding for abortion.

We wanted to nest in one volume the traditional reproductive rights cases with important cases that would count within a reproductive justice framework, Siegel said.

Whereas traditional reproductive rights advocacy are primarily concerned with the right not to have children, and on laws restricting contraception and abortion, reproductive justice activists focus also on the right to have children, and the right to raise them in a safe and healthy environment, especially for low-income women and women of color. The stories in this volume reflect this expanded reproductive justice framework.

Many of these cases grew directly out of the womens movement, and were made stronger by these connections, says Siegel. And while some people today criticize the 1970s reproductive rights movement for the narrowness of cases like Roe v. Wade, the book reveals a more complex story.

What women originally argued in these cases was so much richer and wider than what made it into the cases, said Siegel.

The collection reveals the deep social movement roots of these cases, and their lasting impact, sometimes in unexpected ways, such as in the Madrigal case. The women lost in court, but later won legislative change barring doctors from sterilizing women without informed consent.

Change happens in unexpected ways and against all odds, said co-editor Kate Shaw.

With daily attacks now on reproductive rights and justice, we do well to remember these wise and inspiring wordsand to learn our history.

The coronavirus pandemic and the response by federal, state and local authorities is fast-moving.During this time,Ms. is keeping a focus on aspects of the crisisespecially as it impacts women and their familiesoften not reported by mainstream media.If you found this article helpful,please consider supporting our independent reporting and truth-telling for as little as $5 per month.

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The Stories Behind Twelve Significant Reproductive Rights and Justice Legal Cases - Ms. Magazine

The Supreme Judicial Court ruled today that prosecutors can use license-plate data from cameras mounted on both Cape bridges to make their case against an alleged heroin dealer who was nabbed in part because the data showed he was making frequent trips on and off the Cape - and alerted Barnstable police to the specific trip he made that led to his arrest.

The state's highest court spent much of its decision today considering the privacy implications of automated license-plate readers and said that at some point, it may have to consider limits on the type and use of data collected from devices, which are now found along the Massachusetts Turnpike and on other roads in the state.

But for now, the court said, Barnstable police did nothing wrong in going through data collected from four cameras mounted on the Bourne and Sagamore bridges to monitor, without a warrant, the comings and goings of a man they were already investigating as a heroin supplier in 2017. On Feb. 22 of that year, one of the cameras pinged Barnstable police the car was coming on-Cape and officers set out to follow it - and ultimately arrested its driver after they watched him meet with a suspected buyer.

The court said it would continue to use a particular legal theory, known as the "mosaic theory" for figuring out how much information is too much in a world where modern technology makes data collection incredibly easy even as we continue to have constitutional privacy rights under the Fourth Amendment and the similar section of the state constitution. Simply put, the theory compares data to colored stones: One stone by itself, seen close up, would not tell much of a story, but an observer who stands back could view a design, or mosaic, based on its positioning with multiple other stones.

The court said that a large enough network of license-plate readers could provide such a "mosaic" view of somebody's comings and goings that, when used by police, would constitute an unwarranted privacy invasion, an unconstitutional "search:"

A network of ALPRs that surveils every residential side street paints a much more nuanced and invasive picture of a driver's life and public movements than one limited to major highways that open into innumerable possible destinations. ...

Similarly, with cameras in enough locations, the hot list feature [which lets police get notified when a particular plate passes a particular location] could implicate constitutional search protections by invading a reasonable expectation of privacy in one's real-time location. If deployed widely enough, ALPRs could tell police someone's precise, real-time location virtually any time the person decided to drive, thus making ALPRs the vehicular equivalent of a cellular telephone "ping." See Almonor, 482 Mass. at 55 (Lenk, J., concurring) ("When police act on realtime information by arriving at a person's location, they signal to both the individual and his or her associates that the person is being watched. . . . To know that the government can find you, anywhere, at any time is -- in a word -- 'creepy'"). Of course, no matter how widely ALPRs are deployed, the exigency exception to the warrant requirement would apply to this hot list feature.

Finally, like carrying a cellular telephone, driving is an indispensable part of modern life, one we cannot and do not expect residents to forgo in order to avoid government surveillance.

But the case at issue is not such a case, and so the court said now is not the time to try to codify just how pervasive a network of plate readers has to be to be unconstitutional.

The cameras in question here gave police only the ability to determine whether the defendant was passing onto or off of the Cape at a particular moment, and when he had done so previously. This limited surveillance does not allow the Commonwealth to monitor the whole of the defendant's public movements, or even his progress on a single journey. These particular cameras make this case perhaps more analogous to [cell-phone location data], if there were only two cellular telephone towers collecting data. Such a limited picture does not divulge "the whole of [the defendant's] physical movements," Carpenter, 138 S. Ct. at 2217, or track enough of his comings and goings so as to reveal "the privacies of life." Id., quoting Riley, 573 U.S. at 403. See Boyd v. United States, 116 U.S. 616, 630 (1886).

While we cannot say precisely how detailed a picture of the defendant's movements must be revealed to invoke constitutional protections, it is not that produced by four cameras at fixed locations on the ends of two bridges. Therefore, we conclude that the limited use of ALPRs in this case does not constitute a search within the meaning of either art. 14 or the Fourth Amendment.

In a footnote, the court did allow as how its decision today not to establish a "brightline" rule on plate-reading pervasiveness could lead to some confusion - if four readers aren't enough to trigger constitutional issues, what is the limit?

We trust, however, that as our cases develop, this constitutional line gradually and appropriately will come into focus.

Read the original post:
Court warns against all encompassing surveillance networks, but says for now, it's legal for the state to keep records of every vehicle that crosses...

Recent weeks have been rough, with droves of people turning to virtual communication for sensitive conversations theyd like to keep private medical visits, seeing friends faces and hearing their voices, or solace for those whove lost loved ones.

Understandably, the end-to-end (E2E) encrypted messaging app Signal has been signing up new users at unprecedented rates and flipping the switch on servers faster than we ever anticipated, Signals Joshua Lund said last week.

and you can say goodbye to any of that staying stateside if the EARN IT Act passes.

Signal claims that legal and liability concerns would make it impossible to operate in the US. That doesnt mean it would shut up shop entirely, but it could mean that the non-profit would need to move operations now based in the US.

Called the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act), the bill was introduced last month. If it passes, EARN IT would require tech companies to meet safety requirements for children online before obtaining immunity from lawsuits. You can read the discussion draft here.

To kill that immunity, the bill would undercut Section 230 of the Communications Decency Act (CDA) from certain apps and companies so that they could be held responsible for user-uploaded content. Section 230, considered the most important law protecting free speech online, states that websites arent liable for user-submitted content.

The proposed legislations details havent been ironed out yet, but at this early point, the bills intent to water down Section 230 turns that protection into a hypocritical bargaining chip, Lund wrote on Signals blog.

At a high level, what the bill proposes is a system where companies have to earn Section 230 protection by following a set of designed-by-committee best practices that are extraordinarily unlikely to allow end-to-end encryption. Anyone who doesnt comply with these recommendations will lose their Section 230 protection.

Maybe some of the tech behemoths could swing the potentially huge financial risk that would come with slews of lawsuits as they suddenly become responsible for whatever random things their users say, but not Signal, Lund said.

It would not be possible for a small nonprofit like Signal to continue to operate within the United States. Tech companies and organizations may be forced to relocate, and new startups may choose to begin in other countries instead.

Its bizarre that a government thats reliant on secure, private messaging would even contemplate gutting E2E encryption, Lund said. In February, the European Commission endorsed the messaging app, telling staff to switch to Signal for encrypted messaging. Lund listed other military and government endorsements, calling the proposed legislation troubling and confusing:

For a political body that devotes a lot of attention to national security, the implicit threat of revoking Section 230 protection from organizations that implement end-to-end encryption is both troubling and confusing. Signal is recommended* by the United States military. It is routinely used by senators and their staff. American allies in the EU Commission are Signal users too. End-to-end encryption is fundamental to the safety, security, and privacy of conversations worldwide.

*The US Military also recommends Wickr for encrypted messaging: both it and Signal feature auto-delete functions that erase messages after a set period of time.

The bills backers claim that theyre not targeting encryption. Rather, as with other attempts to legally enforce encryption backdoors, theyre claiming that their real goal is to get companies to accept responsibility for the enabling of online child sexual abuse.

But as has been explained by Riana Pfefferkorn, Associate Director of Surveillance and Cybersecurity at The Center for Internet and Society at Stanford Law, the bill doesnt have any tools to actually stop online child abuse. Furthermore, if it passes, it would actually make it much harder to prosecute pedophiles, she says.

As it now stands, online providers proactively, and voluntarily, scan for child abuse images by comparing their hash values to known abusive content.

Apple does it with iCloud content, Facebook has used hashing to stop millions of nude childrens images, and Google released a free artificial intelligence tool to help stamp out abusive material, among other voluntary efforts by major online platforms.

The key word is voluntarily, Pfefferkorn says. Those platforms are all private companies, as opposed to government agencies, which are required by Fourth Amendment protections against unreasonable search to get warrants before they rifle through our digital content, including email, chat discussions and cloud storage.

The reason that private companies like Facebook can, and do, do exactly that is that they are not the government, theyre private actors, so the Fourth Amendment doesnt apply to them.

Turning the private companies that provide those communications into agents of the state would, ironically, result in courts suppression of evidence of the child sexual exploitation crimes targeted by the bill, she said.

Pfefferkorn has also pointed out that the bill would give unprecedented power to Attorney General William Barr, a vocal critic of end-to-end encryption, who would become the arbiter of any recommendations from the best practices commission that the EARN IT bill would create.

The best practices approach came after pushback over the bills predicted effects on privacy and free speech. The best practices would be subject to approval or veto by Barr, who has issued a public call for backdoors; the Secretary of Homeland Security (ditto); and the Chair of the Federal Trade Commission (FTC).

Basically, those wolves are going to eat smaller encryption providers alive, Lund said:

It is as though the Big Bad Wolf, after years of unsuccessfully trying to blow the brick house down, has instead introduced a legal framework that allows him to hold the three little pigs criminally responsible for being delicious and destroy the house anyway. When he is asked about this behavior, the Big Bad Wolf can credibly claim that nothing in the bill mentions huffing or puffing or the application of forceful breath to a brick-based domicile at all, but the end goal is still pretty clear to any outside observer.

Last month, Sen. Ron Wyden, who introduced the CDAs Section 230, said that the disastrous legislation is a Trojan horse that will give President Trump and Attorney General Barr the power to control online speech and require government access to every aspect of Americans lives.

The EARN IT Act is only the latest of many attempts to inject an encryption backdoor that the US government and law enforcement agencies have been trying to inflict for years.

Digital rights advocates say that the proposed act could harm free speech and data security, and Sophos concurs. For years, weve said #nobackdoors, agreeing with the Information Technology Industry Council that Weakening security with the aim of advancing security simply does not make sense.

The EARN IT Act is still working its way through Congress, not having seen a vote in either the House nor Senate.

Theres still time to stop it, Lund said. To reach out to elected officials, you can look up contact information on The Electronic Frontier Foundations Action Center.

See the rest here:
Signal: Well be eaten alive by EARN IT Acts anti-encryption wolves - Naked Security