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November 2018
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Philly Cops Skirting Forfeiture Restrictions By Seizing Cars As 'Evidence'

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A couple of months ago, a consent decree drastically restructured Philadelphia's severely-abused asset forfeiture program. It didn't eliminate the program entirely, but it did eliminate the small-ball cash grabs favored by local law enforcement. The median seizure by Philly law enforcement is only $178, but it adds up to millions if you do it all the time. Small seizures like this now need to be tied to arrests or the property needs to be used as evidence in a criminal case.

Other restraints will hopefully eliminate local law enforcement's worst practices -- like seizing someone's house because their kid sold $40 of drugs to a police informant. It also should slow down seizures of whatever's in a person's pockets by forbidding forfeitures of under $250 entirely.

The consent decree obviously won't solve everything, and part of the problem is the consent decree itself. It forbids seizures of less than $1,000 unless the property is evidence in an ongoing case. Guess what local law enforcement is doing.

In November 2017, Iyo Bishop of Philadelphia was arrested on assault charges after a boyfriend, who she said was abusive, accused her of striking him with an SUV. City police picked her up after spotting the vehicle parked on the street weeks later. Bishop maintained her innocence but was cuffed and thrown in a squad car. She then watched in disbelief as an officer hopped in her 2002 Jeep Liberty and drove off.

Although the charges against Bishop were eventually dropped, she never saw her vehicle again. Police sold the Jeep at auction for $1,155 in storage fees they had assessed while the case made its way through the court system.

As this report by Ryan Briggs of The Appeal shows, the consent decree basically codifies this behavior. Cops seize vehicles when making arrests, ticking one of the requirement boxes. Then they claim the vehicle is evidence, ticking the other box.

Older vehicles worth less than $1,000 simply sit in impound lots racking up fees while the accused's case languishes in the court system. The vehicle can't be returned until the criminal case is processed, so it doesn't take long for impound fees to outweigh the vehicle's value. All of this is completely beyond the control of the person's whose car has been seized.

Even if charges are dismissed or the accused is cleared of wrongdoing, the car's owner still owes these fees. Every day they can't pay it, the total increases. Sooner or later, the vehicle will be auctioned. Now the innocent person has no vehicle and is still ultimately liable for uncollected fees.

This allows cops to make money on seized vehicles even if the vehicle isn't seized from someone suspected of criminal activity. It can happen to crime victims as well.

In 2014, Karin Foley and her husband, Willis, were moving from New York State to South Carolina when their vehicle blew a tire in Pennsylvania. When Willis Foley pulled the car over and got out to change the tire, a semi struck and killed him. Pennsylvania State Police later determined that the truck driver had been at the wheel for nearly 30 hours straight.

But the state troopers who responded to the accident impounded the Foleys’ diesel pickup and a horse trailer packed with their possessions as evidence. Like Bishop, Karin Foley never saw the truck, the trailer, or any of her belongings again.

The criminal case against the trucker dragged on for three years but never made it to trial. In May, he pleaded guilty to involuntary manslaughter. State police called Foley a few months later to tell her that she had one week to travel to Pennsylvania—hundreds of miles from her South Carolina home—or they would auction her truck and trailer.

And auction it they did. The seized evidence was never used in court and local law enforcement immediately flipped the seized vehicle for unearned profit. To top it off, the coroner billed the widow $175 for her husband's body bag.

While it's understandable some property will be seized as evidence in criminal cases, fees shouldn't be charged to those found innocent or to victims of criminal activity. This is just another form of forfeiture that provides almost no avenue of recourse to property owners other than paying the government to give them back their stuff.

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posted at: 12:06am on 30-Nov-2018
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EFF, ACLU Petition Court To Unseal Documents From DOJ's Latest Anti-Encryption Efforts

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Back in August, the DOJ headed to court, hoping to obtain some of that sweet sweet anti-encryption precedent. Waving around papers declaring an MS-13 gang conspiracy, the DOJ demanded Facebook break encryption on private Messenger messages and phone calls so the government could eavesdrop. Facebook responded by saying it couldn't do that without altering -- i.e., breaking -- Messenger's underlying structure.

Not that breaking a communications platform would give the FBI any sleepless nights. Worthless encryption is better than good encryption when it comes to demanding the content of communications or, as in this case, operating as the unseen man-in-middle when suspected gang members chatted with each other.

Unfortunately (for the FBI), this ended in a demurral by the federal court. The details of the court's decision are, just as unfortunately, unknown. Reuters was able to obtain comments from "insiders familiar with the case," but the public at large is still in the dark as to how all of this turned out.

The EFF and ACLU are hoping to change that.

In our petition filed today in the United States District Court for the Eastern District of California, EFF, the ACLU, and Riana Pfefferkorn of Stanford Law School’s Center for Internet and Society seek to shed light on this important issue. We’re asking the court to release all court orders and related materials in the sealed Messenger case.

Given the importance of encryption in widely used consumer products, it is a matter of public interest any time law enforcement tries to compel a company to circumvent its own security features.

The petition [PDF] points out the First Amendment guarantees access to courtroom proceedings and the courts are supposed to adhere to this by operating with a presumption of openness. Only in rare, rare cases should they side with the government and allow the public to be cut out of the loop by sealing documents.

This is doubly true in cases of significant public interest. Any time the DOJ is in court agitating for broken encryption, it's safe the say the public will be affected by the case's outcome. At this point, we don't know anything more than the DOJ didn't get what it wanted. What we don't know is why, or what impact the ruling here will have on similar cases in the future. And we should know these details because, if nothing else, the FBI has proven it cannot be trusted to deal with device encryption honestly.

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