Month: October 2016

Categories
Law New York City

DOJ shifts gears in Eric Garner investigation

Two years ago this December, then Attorney General Eric Holder announced that the Department of Justice would proceed with a federal civil rights investigation into the death of Eric Garner, an unarmed resident of Staten Island who died five months earlier after an NYPD officer put him in a chokehold while trying to arrest Garner for allegedly selling loose cigarettes.

DOJ’s investigation would be handled by prosecutors in Brooklyn and Washington, Holder said. In civil rights cases, U.S. attorneys’ offices such as the one in Brooklyn and their counterparts at the Civil Rights Division in Washington work as partners. But last Monday, the department shifted the investigation to D.C. exclusively, taking the Brooklyn prosecutors off the case.

Though federal investigators convened a grand jury in Brooklyn, the  investigation has dragged on, reportedly because of a disagreement among prosecutors there and in D.C, with the group in Brooklyn doubting whether they can prove in court that force used by Daniel Pantaleo, the officer who applied the chokehold to Garner, was unreasonable based on the circumstances. Their colleagues in Washington reportedly think they have enough evidence to proceed.

“It is taking quite a bit of time,” William Yeomans, a former acting assistant attorney general for civil rights, told the Times. “I’d almost say it’s been longer than expected, especially since a video exists.”

The video, of course, is the footage that shows Garner’s death after being subdued by Pantaleo. The city’s medical examiner ruled the death a homicide.

Holder convened the investigation within hours of a decision by a Staten Island grand jury not to charge Pantaleo. (The Staten Island grand jury considered whether Pantaleo’s conduct violated state law.)

The grand jury’s failure to charge Pantaleo sparked sparked protests world-wide. Garner’s last words, “I can’t breathe,” which he repeated 11 times, have become a rallying cry against mistreatment of Black people by the state.

“This is a small step forward,” Erica Garner, the victim’s daughter, said in a statement following the decision by DOJ to move the investigation to headquarters. Attorney General Loretta Lynch, who succeeded Holder, is a former head of the U.S. attorney’s office in Brooklyn.

The city agreed last year to pay Garner’s family $5.9 million to settle a claim of wrongful death in connection with his killing. The state’s highest court declined to order the release of transcripts from the grand jury that might have shed light on its deliberations. Pantaleo remains on desk duty and is likely to be disciplined by the department following the federal probe.

The NYPD in 1993 banned the use of chokeholds after the maneuver was implicated in a series of deaths. For his part, Pantaleo told the grand jury that he meant merely to tip Garner so that Garner would fall to the ground. Upon hearing Garner say he could not breathe, Pantaleo testified that he sought to separate himself from Garner as quickly as possible. But in the video, Pantaleo seems to continue to restrain Garner by the neck.

Now it falls to prosecutors in Washington to determine whether the NYPD violated Garner’s civil rights. What Garner says, as much as what the video shows, commands our attention.

“I can’t breathe,” he told the officers who pinned him to the pavement. “I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe.”

Categories
cybersecurity

What we know about the cyberattack on major US websites

The cyberattack that brought Twitter, PayPal and hundreds of other online sites to a halt Friday hijacked millions of routers, digital video recorders and other internet-connected appliances to carry out the assault.

The onslaught, which began around 7:10 a.m. EDT, centered on servers run by Dyn, a major provider of services that steer traffic to web pages. The servers at Dyn ground to a halt from the bombardment, which began on the East Coast and spread west in at least three waves throughout the day.

The attack reportedly relied on a strain of malware known as Mirai, which searches the web for devices that are plugged into the network then logs into them via factory default usernames and passwords. The infected devices can then hurl massive amounts of traffic at the target in an attack known as as distributed denial of service (DDoS).

https://twitter.com/Dyn/status/789444349998268416

Sites targeted in a DDoS attack groan under the barrage of traffic until they slow or shutter completely. A similar attack in September on the website KrebsonSecurity involved an assault with many orders of magnitude more intensity than needed to knock sites offline.

“Someone has a botnet with capabilities we haven’t seen before,” Martin McKeay, a senior security advocate at Akamai, told Brian Krebs, the site’s editor, following the attack on the Krebs site. “We looked at the traffic coming from the attacking systems, and they weren’t just from one region of the world or from a small subset of networks — they were everywhere.”

Many of the devices hijacked by Mirai reportedly infect hardware and software made by XiongMai Technologies, a Chinese company that sells the components to manufacturers who mass-produce the parts into DVRs and other devices.

The source code for Mirai was released publicly in September, according to Krebs, who predicted that the internet would soon be awash in attacks such as the one on Dyn, which serves many of the internet’s largest news, entertainment and shopping companies.

Mirai is one of at least two strains of malware that hackers use to launch DDoS attacks, which marshal millions of devices that make up the so-called Internet of Things.

A spokesman for the FBI told the Times that agents were investigating all possible causes, including a state sponsor, in Friday’s attack.

Categories
Privacy

How the government uses social media to monitor protestors

The death of Freddie Gray in April 2015 while in the custody of Baltimore police touched off a wave of protests in that city about civil rights and the department’s treatment of African-Americans.  Days later, as protests mounted, police monitoring social media noticed that kids from a local high school planned to skip class to join a protest at a nearby mall. The department deployed officers to intercept and turn back the students.

The summary of the surveillance comes courtesy of Geofeedia, a Chicago company that sells software that allows users, including police departments across the U.S., to track the whereabouts of people based on searches of data posted to Twitter, Facebook, Instagram and other social networks. According to marketing materials posted by Geofeedia on its website, location-based monitoring of social media activity allowed police in Baltimore “to stay one step ahead of the rioters” and, by running social media photos through facial recognition software, “discover rioters with outstanding warrants and arrest them directly from the crowd.”

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We know of the monitoring thanks to the American Civil Liberties Union, which obtained the information via records requests to law enforcement agencies in California. A report released Oct. 11 by the group documents how social media companies provided data about users to Geofeedia that comes directly from their servers.

Though both Facebook and Instagram later cut off the feeds, both companies provided police access to data that allowed Geofeedia to sort by specific topics, hashtag or location. Twitter, which also has since ended the practice, provide searchable access to its database of tweets.

As the ACLU noted, the social networks that supplied data for use in monitoring all have expressed publicly their support for activism and free speech.

“Mark Zuckerberg endorsed Black Lives Matter and expressed sympathy after Philando Castile’s killing, which was broadcast on Facebook Live,” Matt Cagle, an attorney for the ACLU who authored the report, wrote in a blog post. “Twitter’s CEO Jack Dorsey went to Ferguson. Above all, the companies articulate their role as a home for free speech about important social or political issues.”

“Social media monitoring is spreading fast and is a powerful example of surveillance technology that can disproportionately impact communities of color,” Cagle added.

For its part, Geofeedia says it has protections in place to ensure that its technology is not used to infringe civil rights.

Though data feeds from the companies have legitimate applications – investors, for example, use data sets from the companies to learn early of problems that can affect stocks, e.g., someone tweets about about his friend becoming ill after eating at Chipotle. The data also can help in finding missing persons. But giving it to the government for use in surveillance can chill the exercise of basic freedoms.

The ACLU is calling on social networks to adhere to guidelines that include a prohibition on supplying data access to developers who are providing software for government surveillance. The networks also should develop clear and open policies that bar use of data feeds for surveillance, and should monitor developers to spot violations, the ACLU says.

Categories
Law

School officials erred in terminating teacher whose wrongful behavior did not violate a law or regulation and who hadn’t been warned, court rules

Terminating a public school teacher who has tenure is too severe a measure for behavior that is improper but does not violate any law or regulation, an appeals court in New York City has ruled in a case that shows the significance of due process in the context of public education.

Though evidence presented at a hearing established that the teacher, who teaches eighth-grade phys ed in the Park Slope section of Brooklyn, asked at least two of his female students if they had older sisters and accepted a phone number of one of them, his behavior did not warrant his firing, the Appellate Division’s first department determined in a decision published Sept. 27.

In 13 years of service, the teacher had not been accused previously of any misconduct, nor had he been warned or reprimanded regarding the conduct at issue, the court noted. Nor was there any evidence that the teacher made sexual comments to his students. An arbitrator who sided with the city concluded that termination might be “too severe” but was the only penalty that could “jolt” the teacher into knowing the seriousness of his misconduct, But that, by itself, could not justify termination, according to the majority.

Writing in dissent, Justice Peter Tom said the teacher “irreversibly abused his position… by transforming the high school where he teaches into a dating forum using his young female students to search out candidates for his illicit romantic escapades. This behavior harmed his students, even if they did not fully realize it.”

Reaction to the ruling in the neighborhood was mixed. “He shouldn’t be allowed back,” one mother  told the Post. “You shouldn’t ask students if they have attractive moms.”

But a colleague of the teacher’s told the paper he welcomed the decision, saying the incidents were “blown out of proportion.”

The ruling shines a light on the procedures that school districts must follow when dismissing a teacher who has attained tenure, which in New York safeguards educators who have earned the protection (after three or four years, depending on when the teacher was hired) from being fired arbitrarily.

Teachers in New York City have had tenure protections for nearly a century. As Dana Goldstein, a journalist who has chronicled the history of the teacher profession, has written, tenure protects educators from political interference and assaults on their civil liberties.

“This ‘due process’ was the bedrock principle of teacher unionism,” notes Goldstein, “the protection that could help prevent teachers from being fired because of their political leanings, gender, race, religious beliefs, pregnancy or opposition to administrative policies – all once-common practices.”

Among other stipulations, a tenured teacher charged with misconduct is entitled to have the charges detailed in writing, to review the evidence, to confront witnesses and to a hearing before an impartial arbitrator.

That’s not to suggest that school officials can’t discipline or remove a tenured teacher for incompetence or misconduct. Tenure simply means that the officials must have a legitimate basis for doing so and adhere to procedures provided by law.

As the justices noted, teachers can and have been removed for, among other reasons, sexually harassing and forcibly kissing a colleague, verbally abusing students, engaging in a relationship with a minor female student, and for discussing bestiality, necrophilia and his own ejaculations with students. But even in the latter case, school officials warned the teacher at least three times to stop such conduct before firing him.

The court cautioned the teacher from Park Slope that while the ruling orders a less serious punishment it does not excuse his behavior. “Should [the conduct] continue,” the justices wrote, “termination may well be in order in the future.”

Categories
Law

Here’s the difference between evidence seized without probable cause and evidence obtained legally

Just as the Constitution requires the suppression of evidence that police seize in an illegal arrest, the law limits that suppression to evidence that was obtained illegally, a New York appeals court has ruled.

Items collected from a defendant must be excluded from the evidence presented against him at trial if the police lacked probable cause to arrest him, but his identification by the victim and statements he later makes to police after waiving his Miranda rights are admissible, the Appellate Division’s fourth department ruled on Sept. 30.

The appeal arose from a conviction of Fleming Ashford III, who in Oct. 2011 pleaded guilty to armed robbery in the first degree. The case began when police in Rochester responded after midnight to the robbery of a taxi driver. Less than 10 minutes later, they found Ashford, who matched the driver’s description, running from them near the crime scene. After detaining him, an officer searched Ashford and seized a phone, money and a do-rag from the pocket of his jeans.

The police then brought Ashford in front of the driver, who identified Ashford as the person who robbed him. From there, police took Ashford to the station, where he waived his right to remain silent. From a courtyard near where Ashford was arrested, police retrieved a gun, some clothing and keys that belonged to the victim.

On appeal, Ashford asserted that the police lacked probable cause to arrest and search him, and, consequently, that the physical evidence, his identification by the driver and his statements to police all should have been suppressed.

The court disagreed with respect to the driver’s identification of Ashford, Ashford’s statements to police and the items collected from the courtyard.

“Here, defendant did not meet his burden of establishing that the showup identification of him, his statements to the police, and the items seized… were causally related to his unlawful arrest prior to the showup identification procedure,” Associate Justice John Centra wrote for the panel. (In New York, running from the police, by itself, does not give police probable cause to stop and search you.)

The appellate division agreed with Ashford as to the evidence seized from him but held that police “had reasonable suspicion to pursue defendant and detain him for the purpose of the showup identification,” according to Centra, who vacated Ashford’s plea “inasmuch as the erroneous suppression ruling may have affected [his] decision to plead guilty.”

According to the court, police were permitted to frisk Ashford to check for weapons but not permitted to search him. “In other words,” added Centra, “only evidence that has been come at by exploitation of that illegality should be suppressed.” (citation omitted).

Categories
Life Tech

On not surrendering to our smartphones

A cartoon by Benjamin Schwartz in the latest issue of The New Yorker shows Patrick Henry, smartphone in hand, addressing Virginia’s House of Burgesses in 1775. “Give me liberty, or give me just one sec,” he says.

For me the scene summons an essay that Andrew Sullivan published in New York magazine recently that describes how an addiction to the bombardment of news and images that vie for our attention drove him into digital detox. Sullivan achieved renown as a writer and blogger at The Atlantic.com and The Daily Beast before starting “The Dish,” a blog that went on to garner tens of thousands of paying subscribers. The site achieved success, but by Sullivan’s own admission the work took its toll.

“For a decade and a half, I’d been a web obsessive, publishing blog posts multiple times a day, seven days a week, and ultimately corralling a team that curated the web every 20 minutes during peak hours,” he writes. “If the internet killed you, I used to joke, then I would be the first to find out.”

All the social media, images and news produce what Sullivan calls “our enslavement to dopamine,” a diagnosis that may resonate with anyone who has been unable to resist checking their phone. Aside from servitude, prolonged use of smartphones can harm your posture and breathing, mess with your vision, hurt your hands and impair your memory, studies show.

Give me liberty, indeed.

Two years ago, I took a summer off from social media to study for the bar exam. Amid the effort, which required willing all my attention to study for hours on end, I felt the burden of distraction fade. I realized it when, after a while, Twitter and Facebook both sent notifications to remind me that I hadn’t visited. One thing social media seems to dislike is our refusing to socialize.

And it wasn’t an age thing. I studied that summer aside millennials who told me of experiencing a similar relief.

That’s not to deny what Sullivan terms “the pleasures of being connected.” If you are someone who, like I do, welcomes a queue at checkout as an excuse to read the news on his or her phone, or who loves tweets like the one below, you know what enjoyment those in-between moments can be.

My freshman year in college, I subscribed by mail to my hometown newspaper. Every few days, a bundle of the papers arrived in brown wrapper. Going to my mailbox, I could not imagine that one day I might carry a computer in my pocket that would allow me to read the news from anywhere in the world. In real time. And to comment on and share it with anyone or with everyone.

Sullivan writes that he fears for the cost of a life lived online more than off. “But of course, as I had discovered in my blogging years, the family that is eating together while simultaneously on their phones is not actually together,” he notes. “You are where your attention is.”

True. Though it can be convenient to blame technology for behavior. In a memoir published recently, Robert Gottlieb, who led a storied career as an editor at The New Yorker, Simon & Schuster, and Knopf, recalls his bookishness. Dwight Garner, who reviewed the book for the Times, wrote:

How bookish was Mr. Gottlieb? At summer camp, as a child, he arranged to have The New York Times delivered to him daily. His family — they lived on the Upper West Side of Manhattan — read books rather than converse at the dinner table. “Only later did it occur to me that this was not normal,” he writes in “Avid Reader,” his new memoir, “but a symptom of our particular brand of dysfunction.”

Of course, we choose what and whom to pay attention to. A friend told me this week that he deleted the Twitter and Facebook apps on his phone because they had started to cut into his reading.

Mike Murphy recently wrote for Quartz about his decision to stop wearing an Apple Watch after a series of dizzy spells that sent him to see a doctor. The doctor prescribed a vacation without an internet-connected device.

The worrying came from the watch, which sent news alerts, Facebook alerts “or reminders to check-in somewhere or that there was a Starbucks nearby,” Murphy writes. The notifications sent his heart rate skyward. “The Apple Watch is the most anxiety-inducing piece of technology I’ve ever owned,” he says. “It’s a reminder that a worry is like a notification, which left unchecked, can consume you.”