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Civil Asset Forfeiture – A Good Concept Gone Awry?

asset-forfeit

(This article in a point/counter point manner to quickly argue both sides of the issue of police seizing assets first, investigating later.)

Point: (from Syracuse.com)

SYRACUSE, N.Y. – Justin Lucas gathered up $50,000 in cash in 2011 to bail his brother out of jail on a drug charge.

But when Lucas brought the money to the Otsego County jail in a brown paper bag, sheriff’s deputies seized the cash without releasing his brother. They told him the money was the subject of a drug investigation.

How much did your police agency get? Check out our national database (below).

Lucas’ brother eventually pleaded guilty to a felony marijuana possession charge. But even with the case over, Lucas couldn’t get his money back. The sheriff’s office had already used a federal law to force him to forfeit the money to the government.

 Investigators cited the fact that their drug-sniffing dog picked up the scent of marijuana on the cash, and Lucas’ admission that $10,000 of it had come from his brother’s co-defendant.

The federal civil asset forfeiture law allows local police to get up to 80 percent of money or property seized, with the rest going to the federal government for their role in the investigations and for administering the program.

Lucas’ case was among 117 in the 32-county Northern District of New York over the past five years in which the federal government used the law to seize $43 million in assets without having to charge the owners with a crime.

Revenue from alleged criminal activity

This is the asset forfeiture revenue for the Department of Justice and the Department of the Treasury for the fiscal years 2001-2013. The money and goods are seized under the premise that they were obtained by illegal activities, and therefore, are subject to seizure by law-enforcement agencies. The revenue is split 80/20 with the larger portion going to the agency that seized the goods and money. The other 20 percent pays for the administration of the seizure programs.   Below is in billions of dollars.

Under the federal law, law enforcement agencies such as the FBI or DEA can seize someone’s property without charging him or her with a crime. The law allows the government to take the property, then requires the owners to prove their possessions were legally acquired.

For police to keep someone’s assets, they have to be able to prove only that it’s more likely than not that the money or property was used to commit a crime or was the proceeds of a crime. That’s lower than the standard for convicting someone of a crime – “beyond a reasonable doubt.”

If federal prosecutors agree with the law enforcement agency’s decision, they file a civil lawsuit against the property, not the owner. That’s why the lawsuits have odd captions, such as “United States of America vs. One 1999 Chevrolet Pickup Truck.”

 

Counterpoint: (from Heritage.org)

Criticisms of Civil Asset Forfeiture

One of the main criticisms of civil asset forfeiture is that the deck is stacked against any property owner who wishes to contest the forfeiture. Because the legal proceeding is against the property rather than the property owner, the owner does not enjoy many of the constitutional protections that are afforded to those who are accused of engaging in criminal activity. Such inequities prompted Brad Cates, director of the asset forfeiture program at the Justice Department from 1985 to 1989, to declare recently that “[a]ll of this is at odds with the rights that Americans have.”

First, the vast majority of cases never see the inside of a courtroom.  Any amount of currency can be administratively forfeited; the only time administrative forfeiture is not available is when the forfeiture involves any real estate or personal property worth more than $500,000 (except for so-called hauling conveyances: that is, vehicles, vessels, and aircraft allegedly used to transport illegal drugs, which, like cash or other monetary instruments, can be subjected to administrative forfeiture regardless of their value).

In an administrative proceeding, the agency that stands to gain directly from the forfeiture acts as investigator, prosecutor, judge, and jury. The rules and deadlines governing these proceedings are complicated and opaque, a minefield of technicalities full of traps for an unwary (and often unrepresented) property owner.

With the exception of the Customs Service, there is no effective judicial review from an administrative ruling, and the administrator does not even need to write an order justifying his or her decision. While there is within many agencies a process whereby someone can file a petition for mitigation or remission of the harsh effects of forfeiture, the rules do not allow someone to file such a petition while at the same time contesting the validity of the forfeiture itself.  Moreover, it is once more an agency official, not an impartial arbiter, who acts on the petition.

Second, unlike a criminal case, there is no entitlement either to representation by counsel or (except as to real property) to a pre-seizure hearing.  Forfeitures are often for an amount small enough that it would make little financial sense for a property owner to hire counsel to contest the forfeiture. Forfeiture cases can take months or years, effectively tying up somebody’s property and creating an extreme hardship for people of modest means or people who run small businesses.

Adding insult to injury, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) lays out specific filing deadlines that must be met by property owners challenging forfeitures. Failure to meet a filing deadline by even a day often results in immediate forfeiture, whereas agencies can allow property to languish in their custody for years.

Third, unlike a criminal case in which a prosecutor must prove a defendant’s guilt beyond a reasonable doubt, in a civil forfeiture case, the prosecutor only needs to establish the basis for the forfeiture by a preponderance of the evidence. Defenders of current civil asset forfeiture procedures note that preponderance of the evidence is the standard of proof that is traditionally used in civil cases. While a true statement, this does not mean that it is the appropriate standard to use in civil asset forfeiture cases given the clear connection between this type of action and a typical criminal case. Moreover, unlike a dispute between two private citizens, there are tremendous disparities in available resources and expertise between the property owner contesting the forfeiture and the governmental entity seeking the forfeiture.

Fourth, also unlike a criminal case in which the prosecutor must prove that the person who used or derived the property acted intentionally or at least was willfully blind to its misuse, in a civil case, the government does not have to prove any of that. Rather, the burden is placed on the “innocent owner” to prove a negative: that he did not know about its illegal use and that, if he did know about it, he did all that could reasonably be expected under the circumstances to terminate such use.

Defenders of current civil asset forfeiture procedures note that the Supreme Court of the United States has held that an innocent owner defense is not constitutionally required,  yet the law provides a claimant with the opportunity to present such a defense. Again, while true, that does not mean that the current procedure is fair or the most appropriate standard under the circumstances. The Constitution provides a floor, not a ceiling, when it comes to providing rights; it states what must be provided at a minimum, not what ought to be provided to ensure fairness and strengthen the integrity of the process.

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With a new administration in power and a President and an AG who are allegedly on the side of law and order, we’ll keep an eye on any legislation going through Congress on this matter.

BNI Operatives: Situationally aware.

As always, stay safe.

What The Law Can and Can Not Do About Cyber Stalking, Part II/II

cyber stalkers

Last week, in Part I/II of What the Law Can and Can Not Do About Cyberstalking, we provided information regarding the reporting of cyberstalking process.

In this second and final part of this series, this week we explore the limits that law enforcement encounters in dealing with cyber stalking and then provide you with Help For Crime Victims real time information.

When the Law Itself is Handcuffed Regarding CyberStalking

Revenge Porn– the online posting of explicit photos of people without their permission, usually by an ex-boyfriend or ex-girlfriend – is a legal gray area in most states. Victims of revenge porn have filed civil lawsuits against their victimizers and the sites that have published the images.  These lawsuits are typically based on claims of copyright infringement and invasion of privacy.  While the individuals who published the images can be directly sued, the website owners themselves are immune under section 230 of the Federal Communications Decency Act (47 U.S.C 230). Under that statute owners and operators of websites are generally not held responsible for material posted by others on their sites. The photos or videos are either published on websites specifically geared towards revenge porn, or on pornographic websites featuring categories for these types of photographs and/or videos. Many sites permit the publisher (the “ex”) to include the victim’s identifying information, such as the person’s full name, address, employer, and hometown, as well as links to the person’s Facebook or social media webpages. Without fail the websites have a comment section below the pictures or videos allowing voyeurs to post their own vulgar or degrading comments about the victim. Although some revenge porn sites have been shut down, new ones continue to appear.

Disappearing Evidence.  (I.e., SnapChat.) In assessing the threat level of a complaint, the police will need to examine proof.  SnapChat  – the wildly popular mobile app that allows you to send videos and pictures, both of which will self destruct after a few seconds of a person viewing them – is the cyberstalker’s preferred tool of trade. Combined with “normal” IMs, emails, texts, etc.,  harassment by Snapchat coupled with seemingly normal chat via these other regular communication methods are a form of gaslighting – the intent is to portray the victim as being a liar or mentally unstable when , in fact, the cyberstalker is committing the horrible acts s/he is being accused of by the victim.

Stalker Identification.  Cyber stalkers understand that law enforcement needs proof positive – that which positively identifies the stalker – in order to charge the wrong-doer.  Often cyber-stalkers will share their online, telephone or other data programs with others so that the shared usage cannot exactly identify the end-user.

For the moment, it appears that cyber criminals are ahead of cyber law by several steps but as the law catches up with technology, less and less will that be the case.  In the interim:

Help for Crime Victims

The National Center for Victims of Crime has a number of resources available to assist victims of crime. Our National Help Line, VictimConnect, provides help for victims of any crime nationwide, and can be reached by phone at 1–855-4VICTIM (1-855-484-2846) or by online chat.

VictimConnect

The VictimConnect Resource Center is a place for crime victims to learn about their rights and options confidentially and compassionately. A program of the National Center for Victims of Crime, it combines:

With extensive specialized training, our Victim Assistance Specialists stand ready to help crime victims understand their rights and options, find information and connect with resources, access referrals, and craft next steps to regain control over their lives.

Connect Directory

The National Center’s Connect Directory provides a fast and easy way for victims to locate service providers specializing in specific areas of victimization in a wide variety of jurisdictions throughout the country. Users enter information into a simple form which is used to pull up contact information for service providers nearby who can help.

Domestic Shelters

https://www.domesticshelters.org/, a project of the National Coalition Against Domestic Violence (NCADV), and Theresa’s Fund, provides abuse victims, their friends and family, and agencies, with the most comprehensive, searchable database housing more than 300,000 data points on more than 3,000 domestic violence shelters, agencies and programs in the U.S.

Get Help Bulletins

GetHelp Bulletins provide information on a wide range of topics, including the impact of crime, victims’ rights, and the criminal and civil justice processes. The bulletins also include resources for victims, their families, and friends.

Department of Justice, Office for Victims of Crime

The U.S. Department of Justice, Office for Victims of Crime (OVC), provides an online directory of Victim Services throughout the country. OVC also provides information about victim assistance and compensation programs available in communities around the country.

Additional Resources

Go to the helpful links section of our resource library for other Web sites offering crime and victimization information.

Civil Litigation

The National Crime Victim Bar Association is a network of attorneys and allied professionals dedicated to facilitating civil actions brought by crime victims. Crime victims may be able to file civil lawsuits against perpetrators and responsible third parties for the damages the victims suffered as a result of the crime.

BNI Operatives: Situationally aware.

As always, stay safe.

 

8 Ways That You Can Be Legally Tracked

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“But don’t they have to have probable cause to search my email or get my Facebook records?”  I can’t tell you how many phone calls we’ve received with that question  – and as we tell each caller, “We are not attorneys, judges or the court or the police department. But, uh, what happened?” (Who doesn’t want to hear a good story??)

(Anyhow, for the purpose of this article,  “they” means law enforcement.)

Here are the situations and the applicable laws:

1. Phone Records: Calls you have made and received

How they get it

Wiretapping is illegal without a judge’s warrant, however, police only require a subpoena from a court to obtain your phone scrolls (outgoing and incoming calls).

A warrant requires showing probable cause, a subpoena needs only to be relevant to an investigation, a much lesser standard of evidence.

Applicable law: 

Smith v. Maryland, a Supreme Court ruling in 1979, which found that the Constitution’s Fourth Amendment protection against unreasonable search and seizure doesn’t apply to a list of phone numbers.

2.  Location: Your phone is a tracking device

How they get it

Cell towers.

Applicable Law: 

The federal Electronic Communications Privacy Act (EPCA) cited by the police for these records dictates that the data must contain “specific and articulable facts” related to an investigation – again, that lesser standard of evidence.

3.  IP Addresses: Which computers you use

How they get it

Email providers such as Google, Yahoo, MS, etc.  amass tremendous amounts of data about our digital journeys. A warrant is needed to access some emails (see below), but not for the IP addresses of the computers used to log into your mail account or surf the Web. According to the ACLU, those records are kept for at least a year.

Applicable law:

U.S. v. Forrester, is a case involving two men trying to set up a drug lab in California.  Prosecutors successfully argued that tracking IP addresses was no different than installing a tracking device to a phone to track each number dialed by a given phone (which is legal).   Police only need a court to sign off on a subpoena certifying that the data they’re after is relevant to an investigation — the same standard as required for cell phone records.

4. Emails

How they get it

Prior to Sen, Leahy’s bill introduced earlier this year, only recent email required a warrant; email aged over 180 days required only a court subpoena related to an investigation.

Applicable Law

Once again, the ECPA comes into play.  The Leahy bill would require a warrant to get all emails regardless of age.

5. Email drafts: drafts are different

How they get it

Communicating through draft emails, à la David Petreaus and Paula Broadwell, seems sneaky. But drafts are actually easier for investigators to get than recently sent emails because the law treats them differently.

Applicable Law:

The ECPA distinguishes between communications — emails, texts, etc. — and stored electronic data. Draft emails fall into the latter, which get less protection under the law. Authorities needs only a subpoena for them. The Leahy bill would change that by requiring a warrant to obtain them.

6. Text messages: As with emails, so with texts

How they get it

Investigators need only a subpoena, not a warrant, to get text messages more than 180 days old from a cell provider — the same standard as emails.

Applicable Law: 

Currently being challenged in several states otherwise, the ECPA applies.

7. Cloud data: documents, photos, and other stuff stored online

How they get it

Authorities typically need only a subpoena to get data from Google Drive, Dropbox, SkyDrive, and other services that allow users to store data on their servers (aka, cloud storage).  EXCEPT: If that data is shared. (see below).

Applicable Law:

The ECPA defines cloud data the same way it does draft emails – as storage – making a warrant unnecessary. However, shared files, such as a collaboration through Google Docs is considered “communication” so a warrant is required.

8. Social media: Too new to tell

How they get it

Read your social network’s Terms of Service and Privacy Policy. (Stop laughing.) When it comes to sites like Facebook, Twitter and LinkedIn, the social networks’ privacy policies outline how cooperative they are in handing over users’ data to law enforcement. Facebook states it requires a judge’s warrant to disclose a user’s “messages, photos, videos, wall posts, and location information.” But it will supply basic information, such as a user’s email address or the user’s IP addresses under a subpoena.

Applicable Law:

Too soon to tell but we’re know that a Manhattan Criminal Court judge upheld a prosecutor’s subpoena for information from Twitter regarding an Occupy Wall Street arrest on the Brooklyn Bridge in 2011, marking the first time a judge allowed prosecutors to use a subpoena rather than a warrant to get the information.

Bottom Line: Assume that everything you write can and will, if necessary, be read by law enforcement so don’t do whatever it is that you haven’t done.

BNI Operatives: Situationally aware.

As always, stay safe and stop typing your life online.

Stuck In A Florida Hurricane or Mexican Jail? Five Essential Nationwide and Global Emergency Apps

Emergency app

GLOBAL APPS:

1.  !Emergency!  (Featured above.)  Imagine yourself in a disaster situation – in a foreign country. You have no clue where the closest embassy is, or the 911 equivalent in Germany or Mexico or Japan.   The !Emergency! app automatically detects the country you’re in and then directs you to the proper authorities. (Given that you are allowed to make that one call if you’ve been arrested in a foreign country.)

 

germany

2. UbAlert:  a global social network where users share reports – and graphic accounts – of natural disasters (tsunami) and those man-made (Kenya terrorist attack).

 

UNITED STATES:

3. Re-Unite: the lost family finder from the U.S. National Library of Medicine, helps to update the NLM’s People Locator for natural disasters. Information about missing (and found) family members is posted immediately.

4. Official FEMA app: Can be used to set up a family meeting place and get the latest emergency updates.

5. Life360: Immediately locates a family member. (You can turn off the location feature at any time.)

 

In any emergency, I know it’s easy to stay calm but it really is important to do just that and trust that you are not alone and help is as close as a click away.

BNI Operatives: Situationally aware.

As always, be safe.

Identifying and Reporting Cyber Harassment

(We’re wrapped up in several serious cyber harassment cases at the moment and are sharing several tips on how to handle these type situations that cross over into criminality.  All too frequently we feel our hands are tied in trying to protect ourselves, our businesses and families from this type of harassment but in reality, the reporting protocol for these type incidents already exists.  Below is information on how to report cyber harassment.)

Cyber harassment refers to the malicious use of technology to willfully and deliberately harass or harm another individual or entity.  Cyber harassment can qualify as a federal crime.  Undoubtedly though, it is a scary experience for the victim. If you are in fear of imminent danger to your welfare or that of  others,  call 911 immediately to report the harassment.

Instructions  

1.  Determine whether you are the victim of cyber harassment. The lines between genuine cyber harassment and general nuisance are blurry, so it can be difficult to substantiate a claim of Internet harassment. If someone is threatening you with violence and you genuinely fear for your safety and well-being, you might meet the criteria of being a victim. It is important to note that hacking, cyber spying and cyber stalking are not forms of Internet harassment. The first two are not necessarily criminal activities, depending on the nature of the offender’s behavior, and the latter is a separate crime, which should be reported and addressed differently than cyber harassment, defined by the Federal Anti-Cyber-Stalking Act.

2.  Do what you can to reduce or prevent further Internet harassment from occurring. This includes changing your email address, screen names and member names for instant messaging programs and social networking websites; applying private settings to your profiles and websites that currently are public; and ceasing all contact with the person who is harassing you. You must demonstrate that you have taken steps to stop the person from harassing you. If you communicate continuously with the individual who is harassing you, your chances of  being able to report and stop Internet harassment will drop significantly.

3.  Gather as much information as you can about the individual harassing you. This can prove to be quite difficult given the anonymous nature of the Internet, but technology allows law enforcement to track down anonymous harassers by using multiple methods. Develop a log that includes email addresses, screen names, and website and social networking profile URLs that belong to the person/people harassing you. Save and print emails and conversations, create “screen grabs” or screenshots of websites or profiles with threatening or malicious content, and keep track of the offender’s every attempt to contact you. A detailed log containing dates, times and places will help you immensely when you report cyber harassment. If possible, also try to locate and write down the offender’s Internet Protocol (IP) address.

4.  Contact your local law enforcement agency and ask to report cyber harassment. Use the police department’s non-emergency (administrative) telephone number or visit in person to make your report. Be prepared to provide information you have detailed in your log.   If you know the offender’s (even general) location, you can contact his local police department or file a report with both precincts. Be sure to get a copy of any police report you file.

5.  Contact your local FBI field office if your local police department is unable to or uninterested in pursuing your report. You can locate your local office using the FBI’s field office locator online, or ask you local police department for the information. Always attempt to make a report with your local police department before contacting the FBI, unless you have reason to believe the harassment is terroristic in nature,  (e.g., the offender is threatening to plant a bomb or commit a school shooting).

6.  Contact a cyber harassment watch group for more assistance. While your matter is under investigation, you can contact an organization such as WiredSafety for further assistance and general support. Note that this type organization is not a governmental or law enforcement agency and you should not rely on these private groups as an alternative to law enforcement authorities.

As always, stay safe.

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