Prosecutors: Two men used SIM swapping to extort cryptocurrency

Enlarge (credit: Miguel Candela/SOPA Images/LightRocket via Getty Images)

In an indictment unsealed Monday, two men were accused by federal prosecutors of SIM swapping, an activity by which they allegedly committed “device fraud, extortion, and aggravated identity theft.”

The SIM swapping technique allows a person to fool a mobile carrier into transferring someone else’s number to them—thus enabling possible account hijacking or other password resets that rely on the phone number itself as an authentication device.

In a press release issued Monday evening by the United States Attorney’s Office in San Francisco, Ahmad Wagaafe Hared and Matthew Gene Ditman were “engaged in a scheme to obtain by fraud and extortion cryptocurrencies and other money and property owned and controlled by executives of cryptocurrency-related companies and cryptocurrency investors.”

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via Policy – Ars Technica

February 5, 2019 at 07:30AM

EPIC to Senate: Oversight Board Must Review Government Use of Facial Recognition, AI

In advance of a hearing about the Privacy and Civil Liberties Oversight Board, EPIC sent a statement to the Senate Judiciary Committee outlining priorities. EPIC said the Civil Liberties Board should (1) release the report on Executive Order 12333; (2) review the use of facial recognition technology and propose safeguards; (3) review the use of artificial intelligence and propose safeguards; and (4) monitor proposals for “smart” borders and assess privacy impacts on US residents. The independent agency reviews federal agency programs to ensure adequate safeguards for privacy and civil liberties. EPIC helped establish the PCLOB. In 2003 EPIC testified before the 9-11 Commission and urged the creation of an independent privacy agency to oversee the surveillance powers established after 9/11. EPIC also set out initial priorities for the PCLOB and spoke at the first meeting of the Oversight Board in 2013. In 2016, EPIC awarded former PCLOB Board Member Judge Patricia Wald with the EPIC Champion of Freedom Award.


February 5, 2019 at 01:15PM

Highest Court in Indiana Set to Decide If You Can Be Forced to Unlock Your Phone

When EFF preaches about the benefits of using device encryption on smartphones, one of the most frequent questions we get is whether the police can force you to turn over your passcode or unlock the device. The answer should be no. The Fifth Amendment states that no one can be forced to be “a witness against himself,” and we argue that the constitutional protection applies to forced decryption. Last week, we filed a brief  making that case to the Indiana Supreme Court.  

The case began when Katelin Eunjoo Seo reported to law enforcement outside of Indianapolis that she had been the victim of a rape and allowed a detective to examine her iPhone for evidence. But the state never filed charges against Seo’s alleged rapist, identified by the court as “D.S.” (Courts often refer to minors using their initials.) Instead, the detective suspected that Seo was harassing D.S. with spoofed calls and texts, and she was ultimately arrested and charged with felony stalking. The state not only sought a search warrant to go through Seo’s phone, but a court order to force her to unlock it. Seo refused, invoking her Fifth Amendment rights. The trial court held her in contempt, but an intermediate appeals court reversed.

When the Indiana Supreme Court agreed to get involved, it took the somewhat rare step of inviting amicus briefs. EFF got involved because, as we say in our brief filed along with the ACLU and the ACLU of Indiana, the issue in Seo is “no technicality; it is a fundamental protection of human dignity, agency, and integrity that the Framers enshrined in the Fifth Amendment.”

In recent years, courts have struggled with how to apply the Fifth Amendment’s privilege against self-incrimination to compelled decryption of encrypted devices.  It’s well settled that the privilege protects against “testimonial” communications, which a 1957 Supreme Court case describes as those that require a person to disclose “the contents of his own mind.” It’s also clear that nonverbal acts can be testimonial, such as being forced to respond truthfully to police questioning with a “nod or headshake,” or to produce a gun that police believe was used in a crime. Even responding to a subpoena for documents can be a testimonial “act of production” because it reveals information about the existence and authenticity of the documents, and the subject’s possession of them. 

So what about being forced to tell police your password, or to unlock an iPhone?

Our argument to the Indiana Supreme Court is that compelling Seo to enter her memorized passcode would be inherently testimonial because it reveals the contents of her mind. Obviously, if she were forced to verbally tell a prosecutor her password, it would be a testimonial communication.

By extension, the act of forced unlocking is also testimonial. First, it would require a modern form of written testimony, the entry of the passcode itself. Second, it would rely on Seo’s mental knowledge of the passcode and require her to implicitly acknowledge other information such as the fact that it was under her possession and control. The lower appellate court in Seo added an intriguing third reason:

In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. . . . Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents.

Because entering a passcode is testimonial, that should be the end of it, and no one should be ordered to decrypt their device, at least absent a grant of immunity that satisfies the Fifth Amendment. 

But there is an additional wrinkle. In a case from 1976 called Fisher v. United States, the Supreme Court recognized an exception to the Fifth Amendment privilege for testimonial acts of production. The case involved responding to a subpoena for tax documents, and the government could show to a “foregone conclusion” that it already knew all of the information it would otherwise learn from the production—i.e. the existence, authenticity, and possession of the responsive documents.

Although the Supreme Court has never again relied on this foregone conclusion exception, the government has built it into a full-blowndoctrine. State and federal prosecutors have invoked it in nearly every forced decryption case to date. In Seo, the State argued that all that compelling the defendant to unlock her phone would reveal is that she knows her own passcode, which would be a foregone conclusion once it “has proven that the phone belongs to her.”

As we argue in our amicus brief, this would be a dangerous rule for the Indiana Supreme Court to adopt. If all the government has to do to get you to unlock your phone is to show you know the password, it would have immense leverage to do so in any case where it encounters encryption. The Fifth Amendment is intended to avoid putting people to a “cruel trilemma”: self-incriminate, lie about knowing the password, or risk being held in contempt for refusing to cooperate.

Thankfully that’s not the law. Instead, it’s clear from Fisher and later Supreme Court cases that the foregone conclusion exception was intended to be very narrow. It has only been applied in a case involving business records, and only where the testimonial communication at issue was the act of providing specified documents. The Court has made clear there is no foregone conclusion exception where a person is required to use the contents of their mind, even in responding to a more open-ended document subpoena. So there should be no exception to the Fifth Amendment when the government compels disclosure or use of a passcode to unlock and decrypt a digital device. 

The Indiana Supreme Court is set to hold argument in Seo on April 18. We’ll be watching for its ruling.

via Updates

February 4, 2019 at 04:36PM

Lawyer is suspended after conviction for chest bumping a prosecutor

By Debra Cassens Weiss


Image from Shutterstock.

A Louisiana lawyer has been suspended from law practice following a battery conviction for chest bumping a district attorney in a judge’s chambers.

The Supreme Court of Louisiana suspended lawyer Felix Anthony DeJean IV of Baton Rouge for a year and a day in a Jan. 30 opinion noted by the Legal Profession Blog. The length of the suspension means DeJean will have to formally apply for reinstatement.

The incident occurred in March 2015 at the conclusion of an in-chambers conference in a criminal case. District Attorney Bradley Burget had claimed DeJean exchanged words with him, physically confronted him and chest-bumped him. DeJean claimed Burget instigated the altercation and he was acting in self-defense.

The incident led to a criminal charge of simple battery against DeJean and a finding of guilt in July 2016. Burget testified during the trial, along with several other witnesses: the judge, the judge’s assistant and the court reporter. DeJean received a suspended jail sentence along with 18 months of supervised probation that required him to complete an anger management program.

Before the criminal trial, Dejean had filed a civil suit for damages against Burget in connection with the incident. It is still pending, according to the state supreme court opinion.

DeJean violated ethics rules barring criminal acts that reflect adversely on a lawyer’s fitness as a lawyer, and barring conduct prejudicial to the administration of justice, the court said.

A hearing committee had recommended a six-month suspension, while the disciplinary board had recommended the year-and-a-day suspension.

The state supreme court opted for the longer suspension, saying evidence supported the conclusion that it was DeJean who chest bumped Burget. While DeJean’s conduct “caused no actual physical harm, it did impair the public reputation of the profession and the judicial system,” the state supreme court said.

The court noted that the matter was the third time DeJean had been accused of violating ethics rules as a result of overly aggressive or physically abusive behavior.

In 2006, DeJean consented to a two-year legal discipline probation for physical alterations and behaviors caused by mental health issues and previous use of marijuana and alcohol. In 2013 he was publicly reprimanded for acting in an abusive and threatening manner to the opposing party during a settlement conference.

DeJean did not immediately respond to a message seeking comment. He previously told the ABA Journal he’s innocent and it was Burget who accosted him. “I didn’t touch the guy,” DeJean said.

via ABA Journal Daily News

February 5, 2019 at 10:13AM

Pacer should be free, according to amicus brief by Posner and 6 other retired judges

By Debra Cassens Weiss


Plaintiffs who claim Pacer fees are illegally excessive are getting lots of support in amicus briefs filed in their pending federal appeal.

Among the amici are seven retired federal judges who argue that Pacer should be free, report the New Republic and The judges include former Circuit Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals.

The judges’ brief argues that docket-access fees reduce judicial transparency and the legitimacy of the courts. Other retired federal judges filing the brief include Shira Scheindlin, W. Royal Furgeson and Nancy Gertner.

Other amici supporting the plaintiffs include former U.S. Sen. Joe Lieberman, the original sponsor of the law at issue in the suit; several legal research platforms; media organizations; the American Civil Liberties Union; and the Cato Institute.

Lieberman said excessive fees create a system where the rich and poor have different access to federal court records.

Pacer cost slightly more than $3 million to operate in 2016, but it brought in more than $146 million in fees, according to the New Republic article.

The class-action lawsuit, pending in the U.S. Court of Appeals for the Federal Circuit, argues that the E-Government Act of 2002 limits Pacer fees to the marginal cost of running the federal courts’ electronic docket system. The law says the judiciary authorizes the judiciary to levy fees “only to the extent necessary” to provide “access to information available through automatic data processing equipment.”

From 2010 to 2016, the federal courts collected $920 million in Pacer fees. During that period, the judiciary spent about $185 million of the money on courtroom technology, and millions more on other projects, including $75 million for automated notices to creditors in bankruptcy cases.

In a decision last March, U.S. District Judge Ellen Segal Huvelle of Washington, D.C., disagreed with the government’s contention that Pacer can be used to fund any technology related to disseminating information through electronic means.

But she also said the plaintiffs’ reading of the law was too restrictive, and fees could be used for services that provide the public with access to information stored in the docketing the system.

Digital equipment that makes courtroom audio on Pacer is one example of courtroom technology that might legitimately be funded with Pacer fees, she said. She also upheld the money spent on the creditor notices.

The suit was filed in 2016 by the National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice.

via ABA Journal Daily News

February 4, 2019 at 10:12AM

The Supreme Court’s ‘alternative facts’ about drug-sniffing dogs

Last week, I wrote a post looking at how the criminal justice system operates in an alternate reality, one in which truth isn’t dictated by facts or data, but by precedent and case law. Today, I want to look at a case pending before the Supreme Court that is a great example of the problem.

At issue in Edstrom v. Minnesota is whether a drug dog’s sniff outside an apartment door constitutes a lawful search under the Fourth Amendment. If it does not, the police would be required to obtain a warrant before using a narcotics-detecting dog in that manner. If it does, then the police could take their dogs up and down apartment complexes the way they sometimes do with school lockers. Over at the legal analysis site Verdict, Cornell University professor Sherry Colb runs through what’s at stake, and offers some informed speculation on what the court may do.

For the purpose of this post, though, I want to focus on what’s missing from Colb’s analysis and, should the Supreme Court decide to hear the case, will almost certainly also be missing from oral arguments, the court’s ruling and most discussion of the case: that narcotics-detecting dogs and their handlers aren’t very good at discerning the presence of illegal drugs. Multiple analyses of drug-dog alerts have consistently shown alarmingly high error rates — with some close to and exceeding 50 percent. In effect, some of these K-9 units are worse than a coin flip.

via Radley Balko

February 4, 2019 at 09:48PM

Prez Trump gives early and considerable attention to criminal justice reform in 2019 State of the Union address

As expected given the invitation of Matthew Charles and Alice Johnson to be in the audience, Prez Trump devoted considerable time to discussing criminal justice reform during the first part of his State of the Union address tonight. He spoke on these issues at length, and here is what he had to say drawn from this transcript of the full speech:

Just weeks ago, both parties united for groundbreaking Criminal Justice Reform.

Last year, I heard through friends the story of Alice Johnson.  I was deeply moved.  In 1997, Alice was sentenced to life in prison as a first-time non-violent drug offender.  Over the next two decades, she became a prison minister, inspiring others to choose a better path.  She had a big impact on that prison population — and far beyond.

Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing — and the need to remedy this injustice.

She served almost 22 years and had expected to be in prison for the rest of her life.  In June, I commuted Alice’s sentence – when I saw Alice’s beautiful family greet her at the prison gates, hugging and kissing and crying and laughing, I knew I did the right thing — Alice is here with us tonight.

Alice, thank you for reminding us that we always have the power to shape our own destiny.

Inspired by stories like Alice’s, my administration worked closely with members of both parties to sign the First Step Act into law.

This legislation reformed sentencing laws that have wrongly and disproportionately harmed the African-American community.

The First Step Act gives non-violent offenders the chance to re-enter society as productive, law-abiding citizens.  Now, states across the country are following our lead. America is a nation that believes in redemption.

We are also joined tonight by Matthew Charlesfrom Tennessee.  In 1996, at age 30, Matthew was sentenced to 35 years for selling drugs and related offenses.

Over the next two decades, he completed more than 30 Bible studies, became a law clerk, and mentored fellow inmates.

Now, Matthew is the very first person to be released from prison under the First Step Act.  Matthew, on behalf of All Americans: WELCOME HOME.

via Sentencing Law and Policy

February 5, 2019 at 10:33PM

More Police Agencies Reconsider Tasers After Deaths

At least 49 people died in 2018 after being shocked by police with a Taser, a similar number as in the previous two years, reports Reuters. The deaths typically draw little public scrutiny. No government agency tracks how often Tasers are used or how many of those deployments prove fatal, and coroners and medical examiners use varying standards to assess a Taser’s role in a death. Some communities are considering more restrictive Taser policies following allegations that the weapons were used excessively or deployed against people with physical or mental conditions that put them at higher risk of death or injury.

Reuters has contacted 14 police departments, counties and cities that reported a Taser-related death or other serious Taser-related incident in 2018. Of those, five are reviewing their Taser policies; three conducted reviews and made no changes; and five declined comment because investigations were still ongoing. Reuters has documented at least 1,081 U.S. deaths after use of Tasers, almost all since the weapons began coming into widespread use in the early 2000s. In many of those cases, the Taser, which fires a pair of barbed darts that deliver a paralyzing electrical charge, was combined with other force, such as hand strikes or restraint holds. Independent researchers who have studied Tasers say deaths are rare when they are used properly. In a series of reports, Reuters found that many police officers are not trained properly on the risks and weapons are often misused. Axon Enterprise Inc , the Taser’s manufacturer, says most deaths involving the weapons are a result of drug use, underlying physiological conditions, such as heart problems, or other police force used along with the Taser. Axon argues that most cause-of-death rulings implicating its weapons are misinformed.

via The Crime Report

February 5, 2019 at 10:47AM

The Groveland Four: Racism, ‘Miscarriage of Justice’ and the Press

Belated mea culpas were issued last week to the Groveland Four, young black men subjected to racist vigilantism following a dubious rape allegation 70 years ago in Florida.

On Friday, the Florida Board of Executive Clemency pardoned the men, two years after their descendants received an official apology from the state legislature.

“I don’t know that there’s any way you can look at this case and think that those ideals of justice were satisfied,”  said Florida Gov. DeSantis.

“Indeed, they were perverted time and time again, and I think the way this was carried out was a miscarriage of justice.”

The Orlando Sentinel, whose vitriolic owner was the spearhead of inciteful press coverage, weighed in with an apology of its own:

“We’re sorry for the Orlando Sentinel’s role in this injustice. We’re sorry that the newspaper at the time did between little and nothing to seek the truth. We’re sorry that our coverage of the event and its aftermath lent credibility to the cover-up and the official, racist narrative.”

The pardon came after a dramatic, hour-long meeting  during which the families of the men accused of the assault told DeSantis and his three-member Cabinet – meeting as the clemency board – that there is overwhelming evidence the men were innocent and there was no rape, reported USA Today.

The woman, who was 17 when she said she was raped, sat in a wheelchair and later told Gov. DeSantis and the Cabinet the rape did indeed happen, saying she was dragged from a car, had a gun put to her head and was told not to scream or they would “blow your brains out.”

At one point, the two sides briefly clashed. Beverly Robinson, a niece of one of the Groveland Four, was speaking to the governor and the Cabinet when she turned to the woman and her sons.

“It never happened. You all are liars,” Robinson said.

“That’s enough out of you,” the woman said.

“I know it’s enough out of me. It’s always enough when you’re telling the truth,” Robinson replied.

Five years ago, TCR’s David J. Krajicek looked into journalism’s role in the case—both the rabid local coverage and the crucial attention from northern newspapers that shed light on the scandal.

His report, part of a series of case studies commissioned by John Jay’s Center on Media, Crime and Justice, examining “how ‘mob journalism’ and media ‘tunnel vision’ turn journalists into tools of the prosecution,” was published in February 2014.

A full copy of the report can be downloaded here.

via The Crime Report

January 14, 2019 at 10:25AM

Shutdown Affects Prosecutor Training, Immigration Courts

The 24-day-old partial federal shutdown is hobbling enforcement efforts. halting power plant and oil well inspections, slowing financial fraud probes and tax audits, thwarting plane crash investigations and delaying a probe into Facebook’s privacy practices, reports Politico. The resulting pileup could take months to untangle after the shutdown ends. The shutdown forced the Justice Department to cancel a training session for prosecutors about online markets on the “dark web” where criminals trade in narcotics, child pornography and other illicit goods. The Computer Crime and Intellectual Property Section was scheduled to host the Dark Market and Online Investigations Seminar from Jan. 8 to 10. The seminar, which was to be held at DOJ’s National Advocacy Center in Columbia, S.C., would have included briefings by FBI agents and federal prosecutors involved in takedowns of major markets. Without this training, one employee said, prosecutors “may not have the knowledge they need to effectively investigate crime ranging from computer intrusions to child pornography to the sale of narcotics and more.”

Federal immigration courts have drastically reduced their workload as most of 400 judges have been furloughed, said Ashley Tabaddor of the National Association of Immigration Judges. That will add to the court’s growing case backlog, which stands at more than 809,000, says to the Transactional Records Access Clearinghouse at Syracuse University. As many as 100,000 people waiting for a court hearing could be affected if the shutdown continues through the end of the month. Judges who hear cases of detained migrants have continued to work without pay. Judges who handle the “non-detained docket” have been furloughed. Judges who preside over non-detained dockets, including certain requests for asylum, can involve waits of several years, which mean a canceled court date can’t easily be placed back on the calendar.

via The Crime Report

January 15, 2019 at 07:59AM