2009 – That’s a wrap!

Wait, I hear it again
Don’t turn on the lights until we
Hear the way it ends
from Peruvian Skies by Dream Theater

During the course of 2009 I wrote about a number of issues that have had recent developments. So by way of winding down 2009 [yeah I'm glad it's over too] here are updates if not possible conclusions to some of these long running sagas.

In posts entitled Does encryption imply expectation of privacy? and No privilege for you! the basic issue involved was reasonable expectation of privacy or rather legal confusion regarding same when applied to digital communication. According to this article in the Washington post the U.S. Supreme Court will be ruling on the issue of expectation of privacy in the spring of 2010.

The case the court accepted Monday involves public employees, but a broadly written decision could hold a blueprint for private-workplace rules in a world in which communication via computers, e-mail and text messages plays a very large role.

A federal appeals court in California decided that a police officer in the city of Ontario had a right to privacy regarding the texts he sent on his department-issued pager, even though his chief discovered that some of them were sexually explicit messages to his girlfriend. That court said the chief’s decision to read the messages without a suspicion of wrongdoing on the part of the officer violated Fourth Amendment protections against unreasonable searches.

Most employers routinely tell their workers that they have no expectation of privacy when it comes to e-mail and other communications that involve company equipment, and the city of Ontario is no different. It says it “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice.”

But the police officer in the case, said the department sent a different message when it handed out pagers to SWAT team members. The department said that the devices were limited to 25,000 characters each month, but that officers also using them for personal purposes could pay for any overage charges.

When the police chief wondered whether the devices were being used mostly for personal messages, the company that provided the texting service, Arch Wireless, turned over transcripts. They showed that a large portion of [the officer's] messages were personal and many of them were sexually explicit. According to court documents, a review of one month’s use showed that 57 of 450 messages were business related.

A lawyer who often represents employers in workplace issues, said the issue is “one of increasing importance to employers.” Though the case before the court involves government employees, case law in the private workplace often evolves from such decisions.

In the world of laptops, cellphones and BlackBerrys, the line between business and personal communications is often blurred and that employers are tolerant “within the realm of reason.”

But often they are under legal obligation to monitor computer use. And when employers monitor the computer use of their workers, it is often because of complaints from co-workers.

The case, Ontario v. Quon, will be heard in the spring.

While this case does not explicitly address either encryption or privileged communication it does serve to illustrate that this is far from a done deal. And the Supreme court ruling will only be one small step towards clarifying the issue. So I’m guessing we can expect lots more on this in the coming years.

In a series of posts about ID Theft, Privacy, Fear and Loathing in Colorado [also in this post and this post] I discussed “Operation Numbers Game”. Here’s a quick recap of the controversial investigation.

“Operation Numbers Game” began after a Texas man told Greeley [Colorado] authorities someone there was using his identity. The suspect in that case alerted law enforcement to the firm that prepared his taxes. Investigators obtained a search warrant [and] seized the returns last year from a tax preparation firm that catered to Latinos in Greeley, where Hispanics make up about a third of the population.

A District Court judge halted the investigation in April. He ruled Weld County authorities violated people’s privacy rights and had no probable cause to inspect the tax returns, which were used to file charges of criminal impersonation and identity theft against more than 70 people.

Weld County appealed the decision.

Weld County District Attorney Ken Buck, a Republican U.S. Senate candidate who advocates stricter immigration laws, has maintained the investigation was about identity theft, not illegal immigration.

Well this little fishing expedition may actually be over. As reported by the Denver channel, the Colorado Supreme Court has ruled against Weld County.

The Colorado Supreme Court says Weld County authorities violated privacy rights of immigrants when sheriff’s deputies seized thousands of tax returns to investigate them for identity theft.

The Court’s Monday ruling affirmed a decision by a Weld County District judge who suppressed evidence against one of the defendants. That judge said authorities had no probable cause to search the man’s tax returns and that the documents are confidential.

The Colorado Immigrant Rights Coalition praised the Supreme Court ruling, saying Weld County’s attempt to enforce federal immigration law was “wrong-headed, costly and did great damage to the community.” The Coalition also said the cases “demonstrates why we need solutions to our broken immigration system.”

“Today’s ruling confirms Operations Number Games to have been an egregious abuse of power by Weld County officials,” the Coalition said in a prepared statement. “Paying taxes is not a crime and should not be made to seem like one. Rather, it is what the U.S. government asks of its residents. Those targeted had their privacy rights violated. The ruling goes to show that the Constitution protects the basic rights of all U.S. residents, regardless of suspected immigration status.”

No word yet on how this ruling will effect Weld County District Attorney Ken Buck’s senate bid and I’m smart enough to not hazard guesses involving politics.

In a series of entries that are shaping up to be the most popular of 2009 I wrote about Colorado Weirdness and the subsequent followup Back to normal in Colorado wherein the primary weirdness was the “balloon boy” incident. This just kept getting stranger as it turned out that the whole thing was a hoax perpetrated with the idea of getting a reality TV show. Well, according to the Denver Post this saga may finally have run it’s course. For now.

Richard and Mayumi Heene, the Fort Collins couple who briefly duped law enforcement and the television-watching world this fall by claiming their son was adrift in a home-made balloon, were sentenced to jail time today for perpetrating the publicity stunt.

Richard Heene, who last month pleaded guilty to a felony charge of attempting to influence a public servant and who took blame today as the brains of the hoax, was sentenced to 90 days in jail. He will have to serve 30 days of the sentence full-time in the Larimer County jail, with the remaining 60 days served on work-release. He must also serve four years on probation.

Mayumi Heene, who helped hatch the scheme and who pleaded guilty to a misdemeanor charge of false reporting, was sentenced to four years probation and 20 days of jail, to be served through a program that allows her to perform jail-supervised community service a couple days a week and return home at night.

The Heenes must also pay a still-to-be-determined amount of restitution, a figure a prosecutor said today could be $47,000 or more. Richard Heene’s lawyer said he intends to challenge that figure.

“In summary,” [Larimer County Court Judge Stephen] Schapanski said in imposing Richard Heene’s sentence, “what this case is about is deception, exploitation — exploitation of the children of the Heenes, exploitation of the media and exploitation of people’s emotions — and money.”

Asked after the hearings whether the Heenes have now given up the pursuit of television notoriety, [Richard Heene's attorney David] Lane was ambiguous.

“I don’t know if they’re done with reality TV,” he said. “Is reality TV done with them?”

And finally there’s this pair of posts about the medical marijuana gold rush in Colorado, Once I was a caregiver and didn’t even know it and Caregivers in Colorado: the saga continues. This has well and truly hit the big time with international coverage by CNN. Take this story by Jim Spellman for instance.

Driving down Broadway, it’s easy to forget you are in the United States. Amid the antique stores, bars and fast-food joints occupying nearly every block are some of Denver’s newest businesses: medical marijuana dispensaries.

The locals call this thoroughfare “Broadsterdam.” As in Amsterdam, Netherlands, these businesses openly advertise their wares, often with signs depicting large green marijuana leaves.

“The American capitalist system is working,” said attorney and medical marijuana advocate Rob Corry.

It’s a matter of supply and demand.

“The demand has always been there,” he said, “and the demand is growing daily because more doctors are willing to do this, and now businesses, entrepreneurs, mom-and-pop shops are cropping up to create a supply.”

Colorado voters legalized medical marijuana in 2000. For years, patients could get small amounts from “caregivers,” the term for growers and dispensers who could each supply only five patients. In 2007, a court lifted that limit and business boomed.

Between 2000 and 2008, the state issued about 2,000 medical marijuana cards to patients. That number has grown to more than 60,000 in the last year.

State Sen. Chris Romer, a Democrat whose south Denver district includes Broadsterdam, said the state receives more than 900 applications a day.

“It’s growing so fast, it’s like the old Wild West,” Romer said. “This reminds me of 1899 in Cripple Creek, Colorado, when somebody struck gold. Every 49er in the country is making it for Denver to open a medical marijuana dispensary.”

Wild West indeed. Everywhere in Colorado counties and municipalities are rushing to declare moratoriums on new medical marijuana dispensaries until somebody figures out how to regulate them. “Why is that a problem?”, you ask. Well let me give you some examples. I’ve already mentioned that in the People’s Republic of Boulder there are now twice as many reefer shops [err... dispensaries] as coffee shops. While this may may not be particularly surprising for Boulder, how about the town of Windsor, Colorado (population 18000) where there are more medical marijuana dispensaries than coffee shops, gas stations, grocery stores and liquor stores combined. At this point I’m thinking that maybe the Federal government should wake up, smell the reefer, legalize pot and tax the heck out of it. Everybody wins. And in this economy just think of all the jobs for caregivers that will be created. That’s right, just suck it up and torch that spliff (or vice versa). You know you want to.

Update on ID Theft, Privacy, Fear and Loathing in Colorado

I first mentioned “Operation Numbers Game” last August in this post and followed up about a month later with this post.

Here’s a quick recap of the controversial investigation.

“Operation Numbers Game” began after a Texas man told Greeley [Colorado] authorities someone there was using his identity. The suspect in that case alerted law enforcement to the firm that prepared his taxes. Investigators obtained a search warrant [and] seized the returns last year from a tax preparation firm that catered to Latinos in Greeley, where Hispanics make up about a third of the population.

A District Court judge halted the investigation in April. He ruled Weld County authorities violated people’s privacy rights and had no probable cause to inspect the tax returns, which were used to file charges of criminal impersonation and identity theft against more than 70 people.

Weld County appealed the decision.

Weld County District Attorney Ken Buck, a Republican U.S. Senate candidate who advocates stricter immigration laws, has maintained the investigation was about identity theft, not illegal immigration.

Today the Colorado Supreme Court is hearing arguments about the legality of “Operation Numbers Game”. As reported in this story on TheDenverChannel.com, the web site for Denver ABC affiliate 7News, Weld County is sticking with their original “identity theft” spin.

The Colorado Supreme Court is hearing arguments Thursday about the legality of an identity theft investigation that targeted hundreds of suspected illegal immigrants who filed U.S. tax returns without valid Social Security numbers.

Authorities say that as many as 1,300 suspected illegal immigrants were using other people’s identities to work and to file taxes. Some of those charged face deportation. Others pleaded guilty before the court stopped the investigation.

Weld County is appealing the lower court’s ruling that there was no probable cause for the search warrant. The District Court judge called the warrant “nothing more than an exploratory search based upon suspicion that some unknown person or persons” committed a crime.

The county is appealing another judge’s ruling that barred prosecutors from filing more cases using evidence seized from the tax preparer.

Filing taxes is mandatory for anyone who earns income in the U.S. regardless of legal status. Many of the people targeted in Operation Numbers Game were filing taxes with government-issued taxpayer identification numbers.

So other than being an update on yet another creative interpretation of one law to enforce something completely different case, why should anyone care? What’s the big deal? Well here’s the big deal, again from the 7News article:

Prosecutors in other states have expressed interest in Weld County’s use of tax documents to go after illegal immigrants. Immigrant advocacy groups have said Weld County is the only jurisdiction to use tax records – which are confidential under federal law – to prosecute illegal immigrants.

Yikes! That’s right, fellow citizens, apparently D.A. Buck has some philosophically kindred spirits out there in other states. Hopefully the Colorado Supreme Court will stop this runaway train in it’s tracks before it can run roughshod (to the extent that trains, runaway or otherwise, have shoes) over more civil liberties.

Here are some previous stories related to this case.

[updated to fixed broken links]

    More ID Theft, Privacy, Fear and Loathing in Colorado

    Meanwhile, back at the ranch…

    Recently I wrote about the long, strange and continuing saga of the identity theft investigation known as “Operation Numbers Game” being prosecuted by Weld County [Colorado] District Attorney Ken Buck. You can read all about it in this post but here is a very brief recap.

    The investigation began in October after a Texas man told Greeley authorities someone was using his identity. The suspect in that case told authorities he was filing his taxes with a Greeley tax preparer that catered to Latinos in the city about 60 miles north of Denver.

    That prompted the sheriff and district attorney to search the business of tax preparer, hoping to find proof that people were working with Social Security numbers that weren’t theirs, and filing taxes with government-issued taxpayer identification numbers.

    And the saga continues. This time with the ACLU maintaining that “Operation Numbers Game” was a “fishing expedition” as covered in this article by AP writer Ivan Moreno, printed in the Denver Post.

    Attorneys for the American Civil Liberties Union maintain Weld County authorities went on a “fishing expedition” when they seized thousands of tax documents from suspected illegal immigrants for an identity theft investigation.

    The ACLU has asked the Colorado Supreme Court to uphold a District Court ruling that stopped the investigation in April. The judge ruled that Weld County authorities violated people’s privacy and had no probable cause to inspect so many confidential taxpayer records.

    Weld’s sheriff and district attorney said in their appeal last month they had substantial evidence to believe hundreds of suspected undocumented immigrants were stealing people’s identities to work in the U.S.

    The ACLU said in its Supreme Court brief that except for the suspect accused of stealing the Texas’ man’s identity, investigators had no probable cause to search the thousands of records of other taxpayers.The ACLU said the investigation of [the tax preparer's] business was akin to getting a search warrant for a hotel where drug dealers are known to stay, and then going through every room to look for drugs.

    Four district judges have agreed with the ACLU’s argument that Weld County’s search warrant was unconstitutional; one judge called it “breathtaking in its expansiveness.”

    Yeah. What he said. But Weld County is still doggedly pursuing this alleged [by district court judges, the ACLU, and pretty much anybody paying attention] gross violation of civil liberties, claiming that “it was impossible to identify individual suspects in the search warrant because the case centered on identity theft“. Seriously guys, in the folksy words of a recent president, “that dog don’t hunt”. What really makes this attempt at injustice so egregious is that according to immigration experts, this is the “first and only time authorities have used confidential records from an income tax preparer to prosecute undocumented immigrants“. Now I don’t know about you, but the idea that authorities could seize my confidential tax records by virtue of the fact that my tax preparer might have some clients that might be undocumented workers makes me a tad uneasy. Actually quite a bit more than a tad.  And heaven forfend that I should have a Latino surname. And that, my friends, is a statement with ugly implications.

    But the ultimate irony of this fiasco is that should “Operation Numbers Game” achieve it’s goals and be completely successful (hey, some folks think wish it could happen) it would be a bad business move for Weld County. The Mexican American Legal Defense & Education Fund sums it up nicely.

    The Mexican American Legal Defense & Education Fund also filed a brief with the Supreme Court Friday supporting the ACLU’s arguments. That brief says the confidentiality of tax records is necessary to avoid “the creation of an underground economy,” in which illegal immigrants don’t comply with tax laws, depriving the government of much-needed revenue.

    Here’s the deal. I have actual direct firsthand experience with the horrors of this kind of “identity theft”. Several years ago my wife’s social security number was appropriated by (presumably) an undocumented worker in Texas so that they could work. And pay payroll taxes. She discovered this when the IRS contacted her regarding her failure to report income from an agriculture job in Texas. After the initial WTF moment it was pretty easy to convince the IRS of the impracticality of running a business in Colorado and picking vegetables in Texas simultaneously. Especially since the IRS gets to keep the payroll taxes collected from my wife’s impersonator. Bottom line: the damage to the “victim” consisted of several annoying yet amusing contacts from the IRS and the government got some money for nothing. Terrifying stuff.

    Finally in an unrelated story, Weld County District Attorney Ken Buck announced that he is still in the race for the Republican nomination for Colorado’s U.S. Senate seat.

    Buck said he was swayed by the “hundreds” of e-mails and phone calls he received over the weekend urging him not to get out of the race just because it appeared as if the National Republican Senatorial Committee was behind former Lt. Gov. Jane Norton.
    “The feedback was huge. I never knew Perry had so many friends,” Buck said with a laugh, referring to his wife, former vice chairwoman of the state Republican Party.
    Buck said it was “Washington, D.C., insiders” who were behind the “shenanigans” to try to influence the race.

    Unrelated. ‘Nuff said.

    For anyone interested in the details of this case, you can find more press coverage as well as the court documents here:
    http://www.aclu-co.org/docket/200821/200821_description.html

    Thanks to Erik Maulbetsch

    ID Theft, Privacy, Fear and Loathing in Colorado

    Like Jerry said, “What a long strange trip it’s been“. But like Yogi said “It ain’t over til it’s over“. Which it isn’t. Yet.

    In this case the long strange trip is an identity theft investigation known as “Operation Numbers Game” that is being prosecuted by Weld County [Colorado] District Attorney Ken Buck. As you may have guessed this isn’t your typical ID theft case. It involves quite a few undocumented workers (read illegal aliens) and a DA known for his staunch stand against illegal immigration. The basics of the story are laid out pretty well  in this article by AP writer Ivan Moreno, printed in the Denver Post.

    Weld County launched Operation Numbers Game after a Texas man reported his identity was being used. The suspect in that case told authorities he had filed his taxes through a business widely used by immigrants in Greeley.

    In October, authorities obtained a search warrant and seized the firm’s computers and thousands of tax documents.

    Buck filed identity theft and criminal impersonation charges against more than 70 people. He said as many as 1,300 undocumented immigrants in the area were using false or stolen Social Security numbers.

    The ACLU’s lawsuit argued authorities had violated privacy rights. Hiatt ruled for the ACLU, saying the county lacked probable cause for the raid, that it was too broad, and that tax records are confidential. Other Weld County judges with cases from Operation Numbers Game agreed.

    Prosecutors dismissed many of the cases without prejudice, giving them the option to file charges again. But some defendants had pleaded guilty and face deportation.

    Those charged allegedly used others’ Social Security numbers to work, and Individual Taxpayer Identification Numbers to pay taxes.

    Weld County argued in its appeal it was impossible to identify individual suspects in the search warrant because the case centered on identity theft.

    Buck, a Republican who is expected to run against Democrat Michael Bennet for his U.S. Senate seat, is known for his staunch stand against illegal immigration. But he has maintained Operation Numbers Game was about identity theft, not immigration.

    In an unrelated case, the U.S. Supreme Court ruled in May that undocumented workers can be considered identity thieves only if authorities prove they knew they were using someone else’s Social Security number.

    Aside from the basic facts – here is a map (OK more of a trail of breadcrumbs) of this long strange trip so far:

    “So what does this have to do with security and privacy?” you may be asking about now. Maybe nothing. Maybe this is truly, as DA Buck asserts, “about identity theft, not immigration”. Yeah you bet. First off, the “identities” that were allegedly stolen here are, in fact, Social Security Numbers. Don’t even get me started on the fundamental idiocy of using SSNs as forms of identity. Second, I tend to agree with the Supreme Court in that “unrelated” case. In fact the case was Flores-Figueroa v. U.S, 129 S.Ct. 1886 (2009) [updated with correct citation - thanks to Chris Webster] and an exhaustive analysis with my keen legal sense (would you believe I read some articles like this one over a beer?) fails to find the “unrelated” part.

    Ignacio Carlos Flores-Figueroa, a Mexican immigrant employed at a steel plant in East Moline, Ill., traveled to Chicago and bought numbers from someone who trades in counterfeit IDs.

    Unlike earlier fictitious numbers Flores-Figueroa used, these numbers belonged to real people.

    Flores-Figueroa had worked at the plant under a false name for six years. His decision to use his real name and exchange one set of phony numbers for another aroused his employer’s suspicions.

    He was arrested in 2006 and convicted on false document and identity theft charges.

    He appealed his conviction as an identity thief, but the 8th U.S. Circuit Court of Appeals in St. Louis upheld the conviction. With appeals courts divided on the issue, the Supreme Court stepped into the case.

    Oh yeah, this case is nothing like that. Now don’t get me wrong, I’m not trying to minimize the severity of identity theft. This just isn’t it. These were just folks trying to make a living, albeit illegally. But the illegal part was not identity theft. What really bothers me is the creative interpretation of one law to enforce something completely different. Think of these swell examples from our recent past and present:

    Terrorist - A person who demonstrates at the Republican National Convention

    Hacker - Someone who writes code to watch DVD’s on Linux

    Suspected child pornographer – Anyone crossing the border into the US with a laptop computer.

    Should the weasels that sold the known good Social Security Numbers to the undocumented workers be prosecuted? Hell yes! Those are actual identity thieves. And Ill bet they are liberals [terrorists] and probably have computers [suspected child pornographers]. DA Buck could surely win with at least one of those angles. A long strange trip indeed.