Court: It's Cool If The (Federal) Government Searches A Phone The (Local) Government Seized Illegally
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The Fifth Circuit Court of Appeals has decided it's OK if a government agency searches a phone that should never have been seized in the first place… so long as it's not the same government agency that illegally seized it. The illegality of the original seizure -- which should have provoked some discussions of poisonous trees and their harmful fruit -- is pretty much discarded in favor of the good faith exception.The backstory is this: Charles Fulton Jr. was targeted by the Galveston (TX) Police Department -- working in tandem with the FBI -- for sex trafficking and prostitution of teens. He was ultimately found guilty on four sex trafficking charges, prompting this appeal of the district court's refusal to toss out the evidence pulled from his seized phone.Here's how the seizure and very eventual search went down, taken from the court's decision [PDF]. (Some emphasis added for reasons that will become apparent momentarily.)In February 2015, Galveston police obtained a search warrant on the Avenue L house where the prostitution was based. The warrant, though, was due to a separate investigation into Fulton’s narcotics activities. Fulton’s cellphone was seized. Nine days later, police obtained a second warrant to examine its contents but were unable to bypass the phone’s security features. Around this same time, the FBI agent assisting with the Fulton sex-trafficking investigation learned that the Galveston police had the phone. The agent acquired it to determine if the FBI could access the phone’s data. Three weeks later, that agent obtained a federal warrant to search the phone. Still, it took a year before the data on the phone was accessed. The FBI discovered evidence that helped piece together Fulton’s involvement with the minor victims. Recovered from the phone were text messages and photographs linking Fulton to the five minor victims he was trafficking. Fulton challenged the original seizure of the phone by the Galveston PD, hoping that a finding in his favor would eliminate the evidence pulled from the phone by the FBI.The appeals court agrees with Fulton that the phone's seizure was illegal. The warrant makes no mention of seizing phones or other electronics. And yet, that's exactly what was seized. The government tried to claim Fulton's phone was pretty much the equivalent of something else actually mentioned in the warrant.This narcotics warrant did not mention cellphones. The alleged equivalent was a reference to “ledgers,” which is a “book . . . ordinarily employed for recording . . . transactions.” Ledger, OXFORD ENGLISH DICTIONARY (2d ed. 1989). The government argues that is enough, because this court has held that a cellphone that is “used as a mode of both spoken and written communication and containing text messages and call logs, served as the equivalent of records and documentation of sales or other drug activity.” The government quoted precedent allowing the word "ledger" to stand in for "computers, disks, monitors" and other hardware that might contain the equivalent of a ledger. The court says all that would be fine if the government made any mention of ledger equivalents in its warrant. But it didn't.We do not see the same factors involved in the present case. There was nothing in the Galveston warrant suggesting that anything similar to computers or even electronics was to be seized. Moreover, the officer in this case was a veteran of the Galveston Police Department’s narcotics unit, and he indicated at the suppression hearing that he knew cellphones are used in the drug trade. Though a ledger can serve one of the myriad purposes of a cellphone, we do not extend the concept of “functional equivalency” to items so different, particularly one as specific, distinguishable, and anticipatable as a cellphone. The government says the good faith exception should apply to the FBI's search of the illegally-seized phone. This argument wasn't even addressed by the lower court, which found other grounds to grant the government's use of this evidence.The appeals court does take a swing at this argument, though, but not to the benefit of Fulton and others similarly-situated in the circuit. Good faith it is.We conclude that viewed objectively, an FBI agent who obtained a search warrant in these circumstances would not have had reason to believe the seizure and continued possession of the cellphone by the Galveston police were unlawful. The (federal) government gets this win even though the (local) government has just been handed a loss. Despite the fact the two agencies worked "in tandem" on this investigation, the court still decides the reasonably ignorant FBI agent had no way of knowing the phone handed to them by their investigation partner had been seized illegally.And I suppose that's possibly true. The FBI assists in many investigations instigated by local agencies once there's a possibility that federal charges may be the end result. But a decision like this just encourages everyone in a joint investigation to be as blissfully ignorant as possible to obtain the best possible chance at securing a good faith ruling. In this case, an agent was working directly with the Texas agency and found out the Galveston PD had seized a phone, but didn't take a look at the PD's paper trail before crafting an affidavit of their own. That's the exact opposite of "good faith." That's bad faith -- the least amount of knowledge and effort combining to allow for law enforcement rule-bending and access to pre-made judicial excuses molded from years of slack-cutting precedent.
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posted at: 12:00am on 10-Jul-2019
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Indie Publishers Tell Gamers To Pirate Instead Of Buying Keys Through Reseller G2A
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We of course talk a great deal about video game piracy here and nearly all of the commentary from the gaming industry centers on how piracy is destroying an industry that only seems to continue growing. Were you to take only a brief look at the history of our posts on the subject, you would come away with a clear picture that game developers see piracy as the greatest of all evils.It turns out that for many developers there is a greater evil, however. An evil so great, in fact, that game developers are actually pushing the public to piracy as a remedy.G2A, the grey market purveyor of game keys, has once again drawn the ire of game developers less than keen for their games to feature on G2A's digital shelves. It's previously clashed with TinyBuild and Gearbox, and a recent ad push has seen it condemned by more developers, with some even saying they'd rather players torrent than buy from G2A.Publisher Mike Rose noted that a search for his games placed G2A ads for them above the publisher's own link. "We make zero money on our games if people buy them through ads," he said. He recommended that people considering buying a game through G2A just pirate it instead. This recommendation was followed up by Rose and other game developers on Twitter, suggesting that anyone thinking about buying a resold game key via G2A just pirate their games instead. This isn't he first time we've seen this sort of thing specifically about G2A, which is one of the more popular Steam key resellers out there. A couple of years ago, another indie game studio went so far as to put its game up on The Pirate Bay itself just to keep money from reaching the hands of G2A.The big problem here is that game developers regularly give away free or cheap Steam keys to influencers and others in the hopes of promoting the game on the internet. Some of those influencers then turn around and resell those keys on the G2A market. For its part, G2A insists that it will take down fraudulent sellers and even issue refunds to devs that can prove the keys sold were obtained by nefarious means, but that's generally a lot of window dressing, given that G2A also buys Google ads to place its own links at the top of search results for these same indie games. Meanwhile, these resold keys generate no revenue for the developer, but do increase their costs in customer service, server requirements for online games, etc.Perhaps the most interesting part of this is that these indie developers, for whom you would think piracy would represent an outsized threat compared with the AAA publishers, see piracy as a perfectly acceptable remedy.
Now, I'm quite sure that none of these developers would come right out and say that they like piracy generally. Still, it's interesting to see the nearly universally demonized practice of copyright infringement turned to as a pressure release against a far greater evil. Given that some of these indies proactively combat key resellers by putting their own games up to be pirated, might there be other ways they could use "piracy" to their benefit as well?
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