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Crime-Facilitating Speech, and Showing Photos (and One Home Address) of Undercover Police Officers:

Radley Balko (The Agitator) writes:

A Virginia woman has been arrested for blogging about the members of a local drug task force. The charge is harassment of a police officer. She apparently posted on the blog one officer's home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home....

Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it's a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn't difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives....

This is indeed a tough issue, and a special case of another tough issue, which I discussed at some length in my Crime-Facilitating Speech article: When may speech be restricted because it provides others with information that may help them commit crimes? Here, the information may help people kill police officers, or at least conceal their crimes from police officers (once the undercover officers' covers are blown). But similar crimes could also be caused by a TV station's running a story about undercover police officers, or a newspaper's publishing the name of a crime witness, or a civil rights boycott organizer's publishing the names of people who aren't complying with boycotts, or a neighborhood watch group's publishing the name of a sex offender who has recently moved into the neighborhood, or IndyMedia's publishing the names and addresses of Republican delegates, and so on. And the broader issue arises even with less personalized data -- what if a Web page, a research paper, a novel, or a chemistry textbook provides information that can help people commit crimes in general, and not just information about particular prospective crime targets? I give more examples, and citations, in the article.

One thing I stress in the article is that much (though not all) such crime-facilitating speech does have value to law-abiding readers as well. Knowing the identity of an undercover police officer can help noncriminals know which of their acquaintances aren't what they seem, and can help criminal defense lawyers figure out how to better defend their clients. Even knowing a person's home address could be useful if you want to organize picketing of their homes. Such residential picketing could be restricted by city ordinance, but in some cities it isn't; and even if focused residential picketing is banned by a city ordinance, parading through the targets; neighborhood in order to express your message of condemnation to the targets' neighbors is constitutionally protected. See Madsen v. Women's Health Ctr., 512 U.S. 753, 775 (1994); Frisby v. Schultz, 487 U.S. 474, 480-81 (1988).

One can certainly argue that the speech is so dangerous when revealed to criminals that it should be restricted despite its potential value to law-abiding readers. But I don't think one can assert, as I've heard some people assert, that such speech has no value to the law-abiding.

Thanks to Joe Olson for the pointer.

John Armstrong (mail) (www):
I Am Not A Lawyer, so this may be obvious: why couldn't disclosing identities of undercover officers count as "obstruction of justice"? A quick look around seems to indicate that tipping off subjects of an investigation (giving them time to hide what would otherwise have been found by a legal search) counts, and I don't see this as being hugely different. You're just tipping them off more indirectly.
7.29.2009 5:00pm
J. Aldridge:
I don’t see this as a tough issue at all nor anything as restricting speech. Nothing wrong with laws to restrain people from compromising or harming law enforcement. Law enforcement agents are not elected public officials under original meaning of free speech and of the press were one can freely criticize or petition.
7.29.2009 5:10pm
Respondent:
John,

I guess unelected judges aren't protected either in your view. Of course criticizing unbrifdled law enforcement is constitutionally protected under the original meaning of the clause.

Prof. Volokh,

What are the chances of the woman collecting major damages in a section 1982 suit? After all, "you can beat the rap, but you can't beat the ride." No matter what happens to this case, the woman's fingerprints and possibly her DNA become a permanent part of the system where it can't be removed. She also now has an arrest record, which in many cases can prevent employment even without conviction. SHe probably faces large attorney fees. And if Hustler's parody is protected by the constitution according to unanimous supreme court precedent, this sort of "harrasment" should be protected a fortiori. So do you think the woman can collect more than nominal demages in a section 1982 suit?
7.29.2009 5:17pm
John (mail):
Why is the fact that "such crime-facilitating speech does have value to law-abiding readers" relevant to the discussion?

I would suppose a lot of criminal activity benefits some law abiding people somewhere. A murder might rid the neighborhood of a disagreeable person, after all.
7.29.2009 5:20pm
josil (mail):
And for an equally expansive view of free speech I'd include publication of names, addresses, photos, and habits of university professors. But this might be viewed as an invasion of privacy.
7.29.2009 5:30pm
tvk:
Why isn't the obvious analogy to revealing the identities of undercover spies and other classified information? There is the difference between state and federal (though I am sure the FBI has undercover agents too); and perhaps a difference in degree (though an undercover cop spying on the Mafia is probably undergoing much the same risk as an undercover spy).
7.29.2009 5:30pm
Gabriel McCall (mail):
If the police are trying to work undercover, isn't the burden on them to actually do a good job of being undercover? If Random Blogger can come up with names, addresses, and phone numbers, presumably the criminals they're trying to deceive would be able to do the same. The fact that Obvious Policeman says "shh, I'm being secret now!" shouldn't impose an obligation on the civilian community to play along.

And even aside from all that- if the NYT can publish classified documents for the whole world to see, I don't see how we can distinguish this blogger's activity.
7.29.2009 5:39pm
Respondent:
John,

SPeech is protected by the free speech clause, estite its claimed negative effects. Not so for murder.

Tvk,

As far as I'm concerned, the only justification for excluding classified information from free speech protection is when the speaker was given special access to it by the government under an agreement not to disclose it. But if classified information about potential abuse of war on terror detainees falls into my lap, I have a clearly established(?) constitutional right to publish it.
7.29.2009 5:42pm
Eugene Volokh (www):
Josil: In another post, I blogged about much the same question involving university professors (there, ones that are involved in animal research). I took the view that a proposed law banning anyone from "publicly post[ing] or publicly display[ing] on the Internet a home address, home telephone number, or image of any employee of an animal enterprise if that individual has made a written demand of that person, business, or association to not disclose his or her home address or home telephone number" would be unconstitutional.

John Armstrong: The speech might indeed violate the laws against obstruction of justice -- or in some instances against aiding and abetting, or "criminal facilitation" -- but the question is whether the First Amendment protects it nonetheless. As I pointed out in a different article, that the content of speech violates generally applicable laws (e.g., laws against interference with the draft, disturbing the peace, preventing competition, inflicting emotional distress, interfering with business relations, etc.) doesn't strip the speech of First Amendment protection.

Tvk: It's far from clear that revealing the identities of undercover spies, or revealing classified information, is constitutionally unprotected. If the revealer has voluntarily promised to keep certain matters confidential, for instance as a condition of getting a security clearance, then the promise could be enforced, possibly even through the threat of criminal punishment. But if the speaker learns this information without having promised to keep it confidential, it is not at all clear that he may be punished.

John: The First Amendment generally protects speech (as opposed to shooting someone), even when the speech causes various kinds of harm. The Court has carved out some exceptions for speech that has been as having virtually no value, such as false statements of fact, fighting words, and so on; my point is that this rationale wouldn't apply here. Perhaps the speech is so harmful that it should be restricted despite its value to law-abiding listeners; but such an argument would have to be made, and reconciled with the Court's view that even harmful speech is generally protected. (I speak here about restrictions imposed by the government as sovereign, not as contractor or employer or some such, and imposed based on what the speech communicates rather than for reasons unrelated to content, such as excessive noise.)
7.29.2009 5:46pm
David Schwartz (mail):
Why isn't the obvious analogy to revealing the identities of undercover spies and other classified information? There is the difference between state and federal (though I am sure the FBI has undercover agents too); and perhaps a difference in degree (though an undercover cop spying on the Mafia is probably undergoing much the same risk as an undercover spy).
What do you think that analogy does? Do you think it's illegal for a person who does not have any special agreement with the government to disclose classified information that they have acquired lawfull?

For example, the IIPA (50 USC 421) begins:

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information...


My understanding is that other laws, to be constitutional, must have similar provisions.
7.29.2009 5:48pm
fishbane (mail):
One aspect I find interesting is that if, as the author of the blog claims, this is all public information, essentially we have a situation where the compilation of the the information is the problem, not the facts themselves. Imagine a compilation of names, professions and pictures of folks in a town, all data legally obtained. Start removing records. Determining when this compilation becomes sanctionable through the reduction of pairs on the list to only include, say, undercover cops is an interesting question.

(I would also pedantic quibble a bit about the title 'crime-facilitating speech' in this context. Sure, targeting the cops for violence would be facilitated by this, but the same could be said for a phone book. (I don't see arrest avoidance in a sting as crime-facilitating - it helps avoid potential consequences for alleged crimes, but in sting operations, one could point out that it is crime-reducing speech, as it facilitates the avoidance of committing a crime, namely the one the sting is set up to catch. Pedantic, yes.)
7.29.2009 5:53pm
Cleanville Tziabatz (www):
1. Of course her arrest is unConstitutional.

2. There may or may not be qualimmune.

3. Her blog is funny as hell. And that is of great value. It also exposes police officers for what they really are by legally causing them to do an unConstitutional arrest. One gets the distinct feeling that this isn't the worst of their illegalities. And that is greater value. Honestly, her blog is as valuable, or even more so, than Volokh Conspiracy. Maybe, just maybe, the Jefferson County area does not need JADE running around. And that is her point. She makes it obliquely. She makes it very effectively.

4. I wonder how she is being treated in jail.
7.29.2009 5:55pm
John Armstrong (mail) (www):
EV, thanks for a response longer than a pithy blurb. So, could I hear that my friend is about to have his apartment searched for drugs, call him up to tell him that so he can hide his drugs elsewhere, and use "free speech" as my defense when I'm caught and prosecuted?
7.29.2009 5:57pm
wfjag:

One thing I stress in the article is that much (though not all) such crime-facilitating speech does have value to law-abiding readers as well. . . .

I think you're really stretching to make a point too far.

As an example: What is the public interest in say posting on-line the names, addresses, and pix of all members of the Secret Service detail assigned to the White House, and the complete up-coming schedules, including detailed travel routes of POTUS, the First Lady and First Children?

The "inquiring minds want to know" justification seems more than a bit weak vs. endangering them. Your contention is that "inquiring minds want to know" is subject to no restrictions.

Nothing in your post or the links warrants endangering undercover police by posting the detailed information concerning their identities (and where their families live). The blogger's "criticism" of the police and police work did not need such details.

IMO the First Amendment's speech and press clauses do not automatically abrograte every right of every other person. However, if I accept your contention, then my example regarding the WH Secret Service detail and First Family is true, and all that is needed is "inquiring minds want to know" despite the potential danger in publicizing such information.

However, if you accept my contention -- that the risk of endangering public servants can warrant limiting First Amendment speech and press rights -- then the debate is about whether the restriction was reasonably applied in this case, and not whether there can be restrictions at all. Here, I believe that the restriction is reasonable. Others may disagree, but that's a different post and thread.
7.29.2009 6:00pm
Cleanville Tziabatz (www):
@wfjag:

You trigger a response that evinces a lack of respect for civil liberties. If they don't respect the First Amendment, then they probably don't respect the Fourth either.

On the other hand, if they do respect the Constitution, then they evince that by leaving you alone. That has value, too.

Of course here the policemen showed the former and not the latter.

So she has been in jail two weeks now?!?! No bail?
7.29.2009 6:04pm
Cleanville Tziabatz (www):
IOW her blog has the same kind of value as an undercover officer looking for drugs. If a suspect doesn't sell drugs, then they have no problem. If the suspect does sell drugs, then they are identified by their offer to sell dope to the undercover. The undercover officer is a test. That is why he is valuable and well paid.

Likewise, her blog was a test. An equally valid test. Maybe a more valid test because policemen who don't respect the constitution are a bigger problem for society than small time marijuana dealers. Anyway, JADE flunked the test. The value is only realized today, now that the news of this two week old arrest has been published.
7.29.2009 6:12pm
einhverfr (mail) (www):
wfjag, EV and others....

I think there are two very clear lines that can be drawn and often are in crime-facilitating-speech cases.

The first is expression vs instruction. For example, if I post detailed information on a web site regarding how to make, say, bombs, and how to detonate them in a such a way as to cause maximum casualties, the instructional elements of this might be no more protected than would a set of clear instructions designed to circumvent access control devices under the DMCA (the 2600 case involving DeCSS is a good example of this line being drawn). Such a case would require a court to weigh expressive vs instructive elements in a given publication and decide accordingly.

Personally I am opposed to the above test for a number of reasons. The first is that it could be used to ban discussion of security-sensitive topics, such as security vulnerabilities in airports. These discussions are important to have in the open because such discussions will contribute to better airport security. For example, I could detail a number of cheap, easy terrorist attack scenarios on airports, and government authorities could use that information to prevent similar attacks. But under this test, my speech might not be protected on the grounds that it might be instructive on how to carry out such attacks.

Would printing detailed information about Secret Service protection strategies be allowed? I would hope so, actually. In fact, I would hope we would take it to another level and provide additional protections to widely circulated material, so that if someone not only publishes the above info, but also outlines how it could be attacked (and hence provides instructions for getting around the President's security), this would be protected if in the public sphere (rather than in private communications with others). The fact of the matter is that this does NOT endanger individuals as much as it allows for better protection and better review of protection mechanisms so that holes in security can be plugged before it is too late.

The second test though is one I would support, which is that speech is unprotected which is both intended and likely to cause imminent lawless action. The mere threat that, at some point in the future, it MIGHT cause such problems is not enough to make it unprotected. Hence if the same scenario above was done in a way which was designed to facilitate a SPECIFIC plot or act, then it would not be protected.

Hence calling one's friend up and giving them a tip that they were about to be searched might be unprotected because it is part of a specific plot to either commit and continue to commit a specific lawless action. However, publishing a pamphet on "How to get away with murder" would be protected.
7.29.2009 6:36pm
Oren:
Quite relevantly.
7.29.2009 6:40pm
Eugene Volokh (www):
John Armstrong: The short answer to your call-your-friend-about-the-coming-raid question is no; the long answer is discussed in my article, PDF pp. 40-43 and 104-105.
7.29.2009 7:13pm
josil (mail):
Overall, I'd hate to be a cop in a world driven by the ACLU. The application of principles (e.g., 1st Amend.)when devoid of common sense seems to be a dangerous affliction...at least to those responsible for maintaining order. This is not an excuse for Iranian treatment of its dissidents; only an observation that some ideas can be pushed beyond the bounds of the practical.
7.29.2009 7:14pm
Cleanville Tziabatz (www):
Speaking of sting operations on the police -- does anyone know whether the Texas Rangers ever finished their investigation into that? Has the warrant affidavit been made public? Did they figure out if Barry Cooper wrote the anonymous tip letter? Did they say why the police didn't announce during the raid as they went from room to room?
7.29.2009 7:28pm
Cleanville Tziabatz (www):
--finished their investigation into that Kopbusters hoax?--

Sorry.
7.29.2009 7:29pm
Cleanville Tziabatz (www):
Oh, and on the theme of the value of the IHeArTjadE to law abiding citizens, Professor Volokh neglected to mention the value of the blog to the police.

If some random blogger, using public records, can collect that info, it means that the target of their investigations can do it, too. By exposing the weakness of the current cru, she helps police management know that they have poor policemen in their employ, and can get rid of them and find better policemen who know how to stay undercover for real real. That is a much bigger value than any of the ones Professor Volokh managed to come up with.
7.29.2009 7:54pm
t-boy (mail):
I've often seen information I knew to be classified secret or top secret in newspapers or on the Internet. The nature of classified information includes being briefed on its classified nature. If you aren't read on to classified information, you may have no clue it was classifed, but already know what is going on. In fact that is often the case.

I could easily see police and other authorities using this type of situation to cover up malfeasance. It could be that the public does need to identify a person as an undercover police officer, cause they committed a crime or so they don't get shot by that officer staking out their yard or step.(Read theagitator.com if you need examples of that happening) I'm not a fan of undercover police work. I think that it is mainly used for stings involving consensual crimes.
7.29.2009 8:01pm
ArthurKirkland:
My first choice would be to dismantle the dopey War On Drugs. We would stop building a prison population consisting primarily of nonviolent drug offenders, stop wasting money on undercover operations aimed at doobie-smokers, reduce violence on streets, honor the idea that the United States is a free country, and, I suspect, cause the proprietor to retire the relevant blog.

Second choice would be to provide to this apparently truthful, non-confidential speech no less protection than is provided to that of racist police officers in Philadelphia.
7.29.2009 8:03pm
Laura(southernxyl) (mail) (www):
This part bothered me as well:


One thing I stress in the article is that much (though not all) such crime-facilitating speech does have value to law-abiding readers as well. Knowing the identity of an undercover police officer can help noncriminals know which of their acquaintances aren't what they seem, and can help criminal defense lawyers figure out how to better defend their clients.


Probably because IANAL.

Suppose I live in a neighborhood that is being preyed upon by a serial rapist. I will be best benefited by that person being identified, arrested, convicted, and locked up where he cannot harm me. It's hard for me to see how undercover cops who might be trying to trap and catch him, being outed, is of value to me; or why I need criminal defense lawyers to be better able to defend him. They need to be able to see that his civil rights are adequately observed, sure, but let's not bend over backwards here.
7.29.2009 8:32pm
Cleanville Tziabatz (www):
@Laura

Because if IHeArTEJADE blog has figured out who the undercover officers are, the rapist has probably also figured it out. If the rapist has figured it out, then they are useless in apprehending the rapist. But they don't understand how useless they are until the photographs show up in the IHeArTEJADE blog. So, if they had any sense, they would see that: (i) their cover was blown; and (ii) they are poor undercover police. Then the police department would give them their marked cars and uniforms back and put in some people who were competent. The new competent police would then protect your sacred virtue better than the old incompetent ones. In other words, you get raped less.
7.29.2009 8:42pm
David Schwartz (mail):
As an example: What is the public interest in say posting on-line the names, addresses, and pix of all members of the Secret Service detail assigned to the White House, and the complete up-coming schedules, including detailed travel routes of POTUS, the First Lady and First Children?
It reveals to the public that this information can easily be obtained by anyone who cares to put in the effort to do so. If you assume this information compromises security, then posting it reveals that the security is already compromised.

If it's obvious that this information compromises security, then publishing it warns the public that the current security is inadequate. Simply claiming to have the information won't achieve the same result because people simply will not believe you unless you show them the proof.

Compare: "I was easily able to find out some information that would allow me to seriously harm the security of this country. Something has to be done about it." to "I found information X, anyone else can too."
7.29.2009 8:57pm
Laura(southernxyl) (mail) (www):

Because if IHeArTEJADE blog has figured out who the undercover officers are, the rapist has probably also figured it out.


I am not convinced of this at all.
7.29.2009 9:05pm
Cleanville Tziabatz (www):

I am not convinced of this at all.


Just the chance that he has figured it out is enough to get rid of the current cru and get more careful officers in there.

I mean if they were really serious about decreasing the number of rapes you suffer, then they would disband JADE altogether and use that part of the budget to hire more rape police. Or maybe use that money to give you a tax rebate so that you could invest in better home security. But, let's face it, they are not that serious about decreasing the number of rapes you suffer to ever do these more-effective things.
7.29.2009 9:21pm
Bleepless:
I remember that, some decades ago, the hippie Berkeley Barb got ahold of some internal police newsletter which showed a photograph and names of Bay Area officers who had just passed a narcotics-investigation course. They published it with the headline Hark, Hark the Narc. Shortly thereafter, the Los Angeles Free Press published a similar photograph from their area. Some of the officers had to halt their investigations and there was talk of prosecutions and lawsuits. I do not know the outcome.
7.29.2009 9:28pm
subpatre (mail):
Cleanville Tziabatz - nice try but it won't work. Cops can't be 'changed out' when they are exposed. Heck, it's almost impossible to change them out when they're dirty. It's not a function of cops, it's an inherent problem of governments. But your logic isn't true.

In reality "crime makes you stupid" --Detective Garvey.

Most criminals are caught by amazingly simple methods, and increasingly sophisticated methods of investigation and pursuit yield almost no better results.

Laura's concern is valid. There would be almost no resistance to her concern ... when crimes were against the public. As violations increasingly become indirect 'crimes' against the public (seat belt, helmet) or 'crimes' against the state (drugs) there is less belief that compromising police compromises the public.

There's also some social network /magnetism /psychological factors in police tracking sites, cookbooks, and crime-centered conversations. But your claim that exposing cops will yield less violent crime is simply not true.
7.29.2009 9:32pm
Dr. Weevil (mail) (www):
Am I the only one who thinks the bolded words in the quotation below are amazingly offensive, particularly when addressed to someone who calls herself Laura on the web and is therefore very likely to be a woman?

"The new competent police would then protect your sacred virtue better than the old incompetent ones. In other words, you get raped less."

It looks as if 'Cleanville Tziabatz' thinks that wanting to decrease one's chances of being raped is something to be ashamed of. WTF?
7.29.2009 9:56pm
Cleanville Tziabatz (www):

Cleanville Tziabatz - nice try but it won't work. Cops can't be 'changed out' when they are exposed. Heck, it's almost impossible to change them out when they're dirty. It's not a function of cops, it's an inherent problem of governments. But your logic isn't true.


Let's assume for a second that what you say here is true (I don't think it is, but let's say it is). In that case your argument proves too much.

If the problem is that we have incompetent police (can't maintain cover) out there, and the incompetent police cannot be removed for whatever reason, then the solution is not to sit around pretending they are competent and quashing any blogger's who dare to demonstrate that the proverbial emporer has no clothes.

Rather, the solution is to show the incompetence is fun and attention-grabbing ways so that police incompetence takes center stage. So that people are talking about it at boards (like here, like now).

I don't know what the solution to incompetent police is. Maybe it is to disband the police in favor of private protection schemes. Maybe it is not to waste tax money on undercover police and to use it for more uniforms and nice paint for conspicuously marked cars. Maybe it is to make being an incompetent policeman a criminal offense, punishable by hanging. Maybe we should require undercover police (to the extent we have them at all) to have advanced degrees in something more intellectually demanding than criminal justice. Maybe we should bust up the FOP. Maybe there are even better proposals.

The point is that none of these reforms will happen unless attention grabbing blogs like the IHeArTEJADE blog get these discussions started with their zany antics. If the police are as incompetent as IHeArTEJADE blog makes them out to be, then that isn't just a discussion worth having -- its the only discussion worth having -- its that big. And, that, subpatre, is what the First Amendment is all about. The IHeArTEJADE blog is not at some lunatic fringe of First Amendment Rights. Rather, it is right at the core.

Don't be confused by Professor Volokh's smokescreen of identifying attentuated and questionable values in her speech. He is averting his eyes (probably on purpose) fromthe real value of the IHeArTEJADE blog out of some kind of misplaced affection for the status quo in American policing. What is a Volokh Conspiracist? Easy: a professor who has never been arrested.
7.29.2009 10:02pm
Oren:

In reality "crime makes you stupid" --Detective Garvey.

Most criminals are caught by amazingly simple methods, and increasingly sophisticated methods of investigation and pursuit yield almost no better results.

Actually, the way I see it, most of the policing simply removers the stupid criminals and leaves the smarter, more organized and therefore far more dangerous ones to control the streets.
7.29.2009 10:06pm
Cleanville Tziabatz (www):

It looks as if 'Cleanville Tziabatz' thinks that wanting to decrease one's chances of being raped is something to be ashamed of. WTF?


No, I think the example is unhelpfully emotionally loaded, not particularly pertinent to the situation at hand, gratuitous, offensive to people who are actually raped (as the blogger may well have been during her last two weeks in jail) and intellectually dishonest by trying to hold first amendment rights hostage to the inevitability of the crime of rape.

Oh, and nothing in what I said implies that it is bad to not want to be raped. You are drawing that implication from thin air. It is bad to use rape as a political hobbyhorse.
7.29.2009 10:07pm
Dr. Weevil (mail) (www):
Suggesting that the blogger may have been raped in jail is not "unhelpfully emotionally loaded", "intellectually dishonest", and an attempt "to use rape as a political hobbyhorse"? It appears to me that you are actually doing what you falsely accuse Laura of doing.

It's a perfectly fair objection to point out that undercover policemen do sometimes capture criminals who commit non-victimless crimes, and Laura gave a particularly strong example of such a crime. Is she somehow obligated to give a weaker example, naming some crime that could be ignored, like minor vandalism?

If someone is committing rapes in some neighborhood, I would like to think that some of the women walking alone there at night would be trained, armed policewomen with discreetly positioned backup close by. I would also like them not to have to worry about some moron publicly pointing out which women on the streets are policewomen and which are not.
7.29.2009 10:18pm
Cleanville Tziabatz (www):
Suggesting that the blogger may have been raped in jail is not "unhelpfully emotionally loaded", "intellectually dishonest", and an attempt "to use rape as a political hobbyhorse"? It appears to me that you are actually doing what you falsely accuse Laura of doing.

No, it is not because it is somewhat likely to be true, especially when considered relative to the possibility that the poster will be saved from rape by an undercover policewoman.
7.29.2009 10:23pm
Laura(southernxyl) (mail) (www):
I don't think Cleanville is arguing in good faith. That part about "sacred virtue" as though only an 18th century Puritan would care about being raped in the first place kind of gives it away.
7.29.2009 10:52pm
whit:
the vast majority of undercover officers, local and federal are not TRULY deep undercover. fwiw, i have unique experience in that i worked a deep undercover assignment in hawaii. i even had a to file a form with the IRS so i could have my social security # assigned to an assumed name, and I got paid cash under that name. it was pretty serious stuff. it is BY FAR the most dangerous assignment in law enforcement,and is exceedingly rare. i certainly think specific laws should be passed (They already exist on the federal level. remember a certian CIA employee?) to protect such officers. i had no gun, no badge, no cover, no wire, and routinely hung out with convicted killers, drug dealers, etc. who routinely told me that they would kill an undercover officer if they could get away with it. what most people think of as "undercover" in cases like this, are actually plainclothes type detectives that do SOME undercover work (iow they meet with informants and do buy busts and such) but i would argue that a law that protected them would be constitutional as well. the problem is i think specific legislation is needed, not "harassment of a police officer" which sounds incredibly vague and not really applicable
7.29.2009 10:53pm
David Schwartz (mail):
Whit: "They already exist on the federal level. remember a certain CIA employee?" I believe you are mistaken. Those Federal laws you are talking about only apply to people who are (or were) authorized to receive classified information. It does not apply to civilians who lawfully come by information others consider classified.

If you are talking about the kind of law it seems like you are talking about, it is (at least to my knowledge) unprecedented.
7.29.2009 11:11pm
AF:
John: The First Amendment generally protects speech (as opposed to shooting someone), even when the speech causes various kinds of harm.

Obviously, what is written on the blog is speech, as are photos, etc. But I don't see why publishing someone's address, per se, is even protected speech at all. I take it that it wouldn't be unconstitutional to ban publishing someone's Social Security without their permission, even if the number was not unlawfully obtained. Why should it be different with addresses?
7.29.2009 11:30pm
whit:

It does not apply to civilians who lawfully come by information others consider classified.



i am referring to the federal law that makes it a crime to "out" an undercover agent. i am not sure if such a law is apocryphal but it was referenced several times in articles on the valerie plame case.
7.30.2009 1:59am
David Schwartz (mail):
Whit: That would be the IIPA, Intelligence Identities Protection Act (50 USC 421(c)):
Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than three years, or both.
7.30.2009 2:10am
Soronel Haetir (mail):
Whit,

And anyone who could have faced such charges was under oblgation to protect the information. Note that none of the reporters etc faced criminal conviction (though at least one was jailed on contempt). Contempt is not the same as a criminal conviction.

I doubt that police would be able to do any better. Even something as innocuous as an officer telling their spouse about an undercover and the spouse then passing it on. I have a hard time believing that the spouse would be under any sort of affirmative duty to protect the information. The officer however may well be a different matter.

There might be a few cases where the courts would tolerate such restraints, I'm thinking on the order of an archivist misfiles the blueprints for nuclear bombs and someone comes along and makes a copy. Basically I think you would have to meet the national security standard set forth in the Pentagon papers case before such disclosure of information lawfully obtained could be criminalized for disclosure. (note I am not claiming that the PP material was lawfully obtained.)

The difference I see with the tip off about an upcoming search is that action would likely fall under furtherance of a drug conspiracy. Someone publishing the names and addresses of officers, completely unconnected to any crime is not in agreement about any common plan so there can't be conspiracy.
7.30.2009 4:53am
Smooth, Like a Rhapsody (mail):
I have been both a prosecutor and a defense attorney (but never a police officer).
This discussion strikes me as silly.

First--as some have pointed out--please define "publish":
does a kid who tells his friends at school that his next door neightbor is DTF guilty?; what about saying (or posting--I can't see a difference that would be germane to criminal law) that I "think" that John Smith works for DTF based on things he has told me, a private citizen with no prior obligation to keep a secret.

Second--also, like some have said--if some housewife down the street knows you are DTF, then you are no longer under anything resembling "cover"--any more than if you were in a sporty looking car with blacked out windows parked in the median of the freeway; we know you are law enforcement.

Third--what if the DTF cop is dirty?; can that be made known? Lord knows a police department is not going to publicize when an officer engages in an unconstitutional search and seizure.

I am not saying the public has a "right to know" this in the sense favored by the media fetishists--FOIA should not apply--but no private citizen should be prosecuted for this.
7.30.2009 9:13am
Curious (mail):
If you google her name, she comes up as a player in the white supremacist movement. Food for thought.
7.30.2009 9:41am
Ricardo (mail):
I don't understand all the legal issues in the Valerie Plame case, but I do know it is admitted by both parties that Richard Armitage, a State Department official under Bush, was the one who leaked Plame's identity to Robert Novak. Karl Rove and Scooter Libby allegedly also leaked the same information to Judith Miller and Matt Cooper. Five of these six people were never charged with a crime and Libby was never charged in direct connection to the leak.

So the case doesn't present an especially strong precedent for prosecuting people for revealing the identities of undercover agents: and this involved a covert CIA agent, not an undercover cop.
7.30.2009 9:57am
Dr. Weevil (mail) (www):
The Lynchburg paper had an article on her yesterday. Although I haven't had time to check all the links, I found this comment particularly interesting (I've converted all the URLs from texts to links):

"Posted by ( Dashfield ) on July 29, 2009 at 6:10 pm

"Elisha Strom's blog is really quite interesting.

"Leaving aside the legal issues, it's a testament to a totally obsessed woman. Celebrity stalkers and John Hinckley's 'thing' for Jodie Foster are nothing compared with Elisha Strom's obsession with Brian O'Donnell and the JADE Task Force. Apparently Elisha once had a close relationship with O'Donnell that went bad: link

"That relationship, whatever it was, started when Elisha Strom was a star witness in this politically-tinged trial, in which O'Donnell was the lead FBI - Joint Terrorism Task Force agent: link

"It's not clear how the relationship went bad, but Elisha gives O'Donnell credit for inspiring her blog and her 'intelligence gathering' activities, as she makes clear on her very first post: link

"She also had what appears to be a sexual relationship with another unnamed officer linked to the JADE Task Force (who she nicknamed 'Boomslang'), and was using him to get confidential information about other officers and about JADE operations: link

"She also refers to O'’Donnell (who she openly nicknames 'Longhead' or 'LH') as a 'bully': link

"Right at the end of the above post, she implies that she'll retaliate somehow if the FBI (probably meaning O'Donnell, who works with the FBI as well as JADE and JTTF) comes down on her.

"It's not clear what she means, but revelations of inside information on agents - possibly including marital infidelity and law violations - seem the most likely to me.

"(In other posts, she claims to have discovered a married agent's mistress/girlfriend. She asserts close relationships herself with the possibly-married O'Donnell and 'Boomslang.' Maybe it's a kind of blackmail, though money doesn't seem to be a motive: 'Leave me alone or I'll tell all I know.' Were there other demands we don't know about?)

"It's cosmically bizarre the lengths to which this woman went to stalk her prey: following agents into stores, finding out their pants sizes, going to the property rolls and then letting everyone know where their families live, where they do target shooting, what kind of cars they drive (even down to updates when something is added or repaired to the vehicle), lying in wait for them at home, at work, at stakeouts, at court. When did she have time to work - or to raise the 12-year-old daughter she claims to have? Just the writing alone must have taken many many hours, to say nothing of the stalking."

(End quoted comment.)

I should add that the "politically-tinged trial" in which she met O'Donnell was the trial of her husband, Kevin Alfred Strom, for possession of child pornography, and that her husband was one of the top NeoNazi leaders in the U.S. Her testimony helped put him in jail.

If Dashfield's summary is correct, it appears that those who write things like this are grossly oversimplifying what actually happened: "If some random blogger, using public records, can collect that info, it means that the target of their investigations can do it, too." Elisha Strom seems to have gone way beyond "using public records" to collect the information she published.
7.30.2009 10:11am
hillbilly habeus:
So security by obscurity should be protected? That sounds like a rather bad idea when they are not being very obscure. It isn't like she snuck into a station and stole the Undercover Cops roster...
7.30.2009 10:14am
Dr. Weevil (mail) (www):
Another oddity of the case: the Lynchburg paper says she lives in Thaxton, which is west of Bedford and 97 miles from downtown Charlottesville. How she kept an eye on the JADEs from three counties away is an interesting question, unless she moved to Thaxton recently.
7.30.2009 10:29am
PC:
wfjag: As an example: What is the public interest in say posting on-line the names, addresses, and pix of all members of the Secret Service detail assigned to the White House, and the complete up-coming schedules, including detailed travel routes of POTUS, the First Lady and First Children?

It would show that the Secret Service is doing a piss poor job.
7.30.2009 12:00pm
hattio1:
Whit,
WHY do you think a law which forbid the outing of undercover officers would be constitutional? Or do you just mean it SHOULD be constitutional?
7.30.2009 12:53pm
whit:
again, i'm not concerned much with cops like in this task force. they are not true undercovers. when i worked deep undercover i was told that at any given time in the entire COUNTRY, there were less than 200 officers/agents working such deep undercover assignments. the DEA and FBI almost never use such operations. they are deemed simply too dangerous. yes, there are famous examples (the whole "donnie brasco" thang) but it's very rare. task forces are a dime a dozen. they don't put people in deep assigments, they don't work w/o backup and cover, etc. it's a totally different thing. simply put, if a guy who has been selling large quantities of dope to an undercover finds out the guy is undercover, the guy is almost surely dead. of COURSE it's the agency's responbility to do everything possible to maintain secrecy. my agency certainly did. anyway, if such laws are unconstitutional, then they are. i can't speak to whether they are, it's a pretty technical area of law. if they AREN'T, it's reasonable to have them on the books imo
7.30.2009 1:02pm
Dr. Weevil (mail) (www):
EV wrote (5:46pm yesterday):

"It's far from clear that revealing the identities of undercover spies, or revealing classified information, is constitutionally unprotected. If the revealer has voluntarily promised to keep certain matters confidential, for instance as a condition of getting a security clearance, then the promise could be enforced, possibly even through the threat of criminal punishment. But if the speaker learns this information without having promised to keep it confidential, it is not at all clear that he may be punished."

I would like to know when and how it became unconstitutional (if it did) to ban people from revealing information affecting matters of national security. Who changed the law, if it was changed, or the interpretation of the law, if that is what changed, and when? I'm pretty sure that (e.g.) a Nazi sympathizer who lived in Norfolk in 1942 and published the departures and arrivals of ships in the harbor to make it easier for German submarines to sink them would have been arrested, tried, and hanged. It wouldn't have helped if he was a U.S. citizen who had never signed any agreement not to reveal such information, or if he pointed out that the Navy and Merchant Marine could have done a better job of putting fences around the harbor area to make their comings and goings invisible.

Of course there was a war on then, but there's a war on now, too: as I recall, Al Qaeda declared war on the U.S. some years before 9/11/01, has repeatedly demonstrated that they weren't joking, and shows no sign of surrendering.
7.30.2009 1:23pm
hattio1:
Dr. Weevil,
You might want to look up the etymology of the phrase "loose lips sink ships." My understanding is that it referred to just those sorts of news reporting, ie., what ships were leaving when and in what convoys.
7.30.2009 2:51pm
Dr. Weevil (mail) (www):
Yes, I have a pretty clear memory that the second classic exception to an American's First Amendment rights is "publishing troop ship schedules in war-time". The first is of course "shouting fire in a crowded theater".
7.30.2009 3:02pm
Guest14:
Of course there was a war on then, but there's a war on now, too: as I recall, Al Qaeda declared war on the U.S. some years before 9/11/01, has repeatedly demonstrated that they weren't joking, and shows no sign of surrendering.
It sure pays to keep a war simmering on the back burner, doesn't it? You can do anything you want!
7.30.2009 3:20pm
smurfy (mail):
"One aspect I find interesting is that if, as the author of the blog claims, this is all public information, essentially we have a situation where the compilation of the the information is the problem, not the facts themselves."

That's the part I find interesting as well. A few years ago at a conference on maintaining address information in databases someone expressed concern that each of us (Utilities, County, Yahoo People search, etc.) were publishing dots that could be connected to say, figure out where the judge who presided over your bitter divorce lives. As professionals we were concerned about the end use of our data and any possible liability.

After the Lori Drew case, I would carefully examine the terms of service of her 'public sources'. I just browsed the TOS for a pay per search real estate information site that I use. It's pretty restrictive, all uses not specifically prescribed are proscribed.

Would you still consider it 'publicly available' information if her use of the data violated the tos of the websites she culled from?
7.30.2009 3:33pm
smurfy (mail):
Also, before we get off on Lori Drew, consider that a tos is really the only mechanism data providers have to restrict the use of their data and limit their own liability. If we weaken that mechanism by allowing such questionable uses then we provide a disincentive to data dissemination. As a data geek I don't want to have restrictions placed on my lawful use of these data.
7.30.2009 3:40pm
einhverfr (mail) (www):
To whit and Laura:

I would like to share with you the experience of an industry which is under constant attacks by huge disorganized bands of criminals and has had to develop security best practices far in excess of those involving POTUS security or undercover cops.

That industry is the software industry. The threat is unauthorized access. My own firewalls log hundreds of attacks per day. Also companies which follow best practices tend to have rare security problems while those which do not tend to have many and serious security problems.

So I will share with you this industry's perspective on public discussion of software vulnerabilities. This isn't about design of secure systems as that is another element which is outside the penumbra of this topic. However, it is worth noting that for real security, one shouldn't generally rely on obscurity (identity of undercover agents is different, but measures to PROTECT the identity of agents should not rely on obscurity to work).

One important element here is that one has to assume that if any random individual can piece information together than the bad guys can as well. Thus we tend to cultivate a culture which is willing to discuss such information in certain ways (ideally giving us a 1-week lead time on the discussion, but if it is a zero-day meaning the bad guys are exploiting the problem prior to the discussion that may not be applicable).

At the same time, public discussion, and FULL DISCLOSURE of past security problems (mechanisms, how to attack, etc) is fundamentaly important to keeping systems secure, as counterintuitive as that may seem. In fact, such speech is clearly crime-facilitating: unpatched boxes can be attacked via instructions provided and they can be compromised. However:

1) Full disclosure as a practice raises the threat to unpatched boxes and ensures they are more likely to be properly maintained.

2) Full disclosure provides security testing companies proper information as to HOW to go about testing if a system is vulnerable.

3) Full disclosure encourages vendors to fix the problem before there are major incidents.

Disclosing problems with police information security (who are the undercover agents), or problems with presidential security is probably very little different. Long-run both efforts will save lives even if badly done in the first place, and this is particularly true of something like presidential security since planning attacks would take more time.

The same thing would go for outlining on a public web site specific possible strategies for carrying out terrorist attacks against our nation's airports. THe fact that the information might be useful to criminals in no way negates its positive, long-term value to the rest of us.
7.30.2009 4:05pm
einhverfr (mail) (www):
Dr Weevil:

I'm pretty sure that (e.g.) a Nazi sympathizer who lived in Norfolk in 1942 and published the departures and arrivals of ships in the harbor to make it easier for German submarines to sink them would have been arrested, tried, and hanged.


I think that a simple argument can be made that Constitutional protections in a declared war with specific victory conditions are different from what they are as applied to general law enforcement activities.

In fact I am fairly sure that a simple argument can be made that Contitutional protections in a declared war with specific victory conditions are different from what they are as applied to the "War on Terror," the 2001 AUMF notwithstanding.
7.30.2009 4:11pm
einhverfr (mail) (www):
DR Weevil:

Also what makes you think a criminal couldn't do the same sort of thing to get similar info?

The proper subject of the crackdown are the officers who gave her the info........
7.30.2009 4:16pm
Laura(southernxyl) (mail) (www):
einhverfr, but the people who are trying your firewall are doing so because they want to get into your system. I see a big difference between open discussion of security issues there, and outing undercover cops. The criminals aren't trying to out cops, they're trying to sell drugs, or whatever it is. They wouldn't necessarily have the initiative and the expertise to go looking for undercover cops because that's not their focus. It's not necessary to facilitate their illegal activities by handing them information that they probably otherwise would not have.

I guess because IANAL - I get the need to protect civil rights and all, but I'm enough of a pragmatist that I don't see the value in crippling the police who are trying to keep utter chaos from overtaking us, just to prove a philosophical point. Not to mention risking their lives. If the current law doesn't protect undercover cops' identities from being blasted to the wide world, then maybe it should. And the same goes for jurors.
7.30.2009 4:25pm
PC:
At the same time, public discussion, and FULL DISCLOSURE of past security problems (mechanisms, how to attack, etc) is fundamentaly important to keeping systems secure, as counterintuitive as that may seem.

So...the police are anti-sec in this case?
7.30.2009 5:06pm
Dave R. (mail):
Volokh mentions killing police officers and concealing crimes from police officers as two uses for the identities of undercover police officer before mentioning a few legitimate uses for such knowledge. I'd like to bring up another legitimate use, that of not being goaded into committing crimes by undercover agents provocateur. Randy Weaver never would have sawed down a shotgun too short if he hadn't been solicited by a police agent who pointed out where to cut. Undercover officers selling drugs have been known to get pushy. As long as police consider enticement and entrapment valid tactics, I welcome any knowledge of their identities.
7.30.2009 5:42pm
Cleanville Tziabatz (www):
Just disband JADE. Problem solved.
7.30.2009 6:05pm
Dr. Weevil (mail) (www):
Dave R.:
So because some undercover policemen (or ATF agents, in the Weaver case) behave badly, all should be endangered? Why not take away all their billy-clubs because some use them to beat people who have done nothing to deserve it, take away all their service revolvers because some use them to shoot or (more often) intimidate people who have done nothing to deserve it, take away their squad cars -- I'm sure some policeman somewhere has run over an innocent man just for the Hell of it --, and so on?
7.30.2009 6:17pm
Dr. Weevil (mail) (www):
Whether JADE should be disbanded is something that should be decided by the elected officials of Albemarle County and the city of Charlottesville, or directly by the citizens through the referendum process, not by some NeoNazi with a bee in her bonnet making their job impossible.
7.30.2009 6:21pm
hattio1:
Dr. Weevil says;

So because some undercover policemen (or ATF agents, in the Weaver case) behave badly, all should be endangered? Why not take away all their billy-clubs because some use them to beat people who have done nothing to deserve it, take away all their service revolvers because some use them to shoot or (more often) intimidate people who have done nothing to deserve it, take away their squad cars -- I'm sure some policeman somewhere has run over an innocent man just for the Hell of it --, and so on?

Sounds good to me. I bet we'd have a lot less contempt of cop arrests, a lot less police brutality etc. There might be negative aspects though.....
7.30.2009 6:30pm
Dr. Weevil (mail) (www):
I agree that a society in which policemen were entirely unarmed and on foot would have "a lot less police brutality". However, I'm quite sure that the decrease in police brutality would be outweighed by an increase in criminal brutality ten or twenty or thirty times larger. It's easy to make smug suggestions that will never be acted on, so that you will never have to live in such a society.
7.30.2009 6:37pm
ArthurKirkland:
This is not an easy case. The information is readily available to anyone motivated to chase it. It is truthful. The publisher is not breaching any pledge of confidentiality.

In my neighborhood, plainclothes police officers (better term than undercover, as whit has indicated) testify in court regularly. The proceedings are open to the public, although scantly attended. The officers walk through the courthouse, to and from the courtroom. It isn't difficult to determine their roles, even if you aren't trying.

The "averting chaos" argument is unpersuasive. The War On Drugs has little or nothing to do with averting chaos. It causes more problems -- more chaos, in particular -- than it could ever solve, in my judgment, and is an affront to the freedom so many Americans claim to care about. Ridding our streets of drug task forces would improve our society.

I don't know about the ultimate judgment. But if it determined the woman was arrested improperly, I hope she gets eight figures. A charge of "harassment of a police officer" is, in this context, is abusive. Why didn't the police department advance a civil claim, seek an injunction? My guess: because they are bullies who wanted to roust her. Strict liability, in my book. If the charges don't stick, she should recover substantial damages.
7.30.2009 8:43pm
whit:

In my neighborhood, plainclothes police officers (better term than undercover, as whit has indicated) testify in court regularly. The proceedings are open to the public, although scantly attended. The officers walk through the courthouse, to and from the courtroom. It isn't difficult to determine their roles, even if you aren't trying.



this is true. i really want to emphasize the distinction between true undercovers, and plainclothes guys who do occasional buy-bust, etc.

like i said, as much as i don't LIKE it, i support the right of the guy in kirkland who posts cops names, salaries, and other personal information. iirc, he was required by the court to remove cops social security #.


As long as police consider enticement and entrapment valid tactics, I welcome any knowledge of their identities.



we don't, nor do the courts. you don't punish the (vast majority) of law abiding cops because a few don't obey the law.

hattio


WHY do you think a law which forbid the outing of undercover officers would be constitutional? Or do you just mean it SHOULD be constitutional?



to paraphrase... we live with the constitution we have, not the one we wish we have. i have no idea if law forbidding outing of undercovers (TRUE UNDERCOVERS) would be constitutional. i am saying IF it is constitutional, then it would be good policy to have such a law. obviously, if it is UNconstitutional, then it can't be done. lots of things that could be good policy can't be done because they are unconstitutional. conversely, lots of stuff that is really terrible policy (the criminalization of marijuana comes to mind) are constitutional.

your conjecture about unarmed cops is ridiculous. look at it this way. even given heavily armed cops, the stats don't lie.

the primary victims of violent crime are black males. i don't have the stats handy (heather mcdonald's bookis excellent in this regard) show that for every 1 black male killed in a homicide by police officer (justified or not. assume that ALL were unjustified if it makes you feel better) far far far far more are killed by non-police officers. the same goes for assaults (or use of force) in terms of disparity.

iow, even if one assumed that every time a cop hit somebody with a baton or shot somebody, that it was a rogue unjustified action, the relative risk is still that the real danger is criminals. and if you honestly think criminals wouldn;t be doin' their murderin' just because the cops were unarmed, well... you are delusional
7.31.2009 4:42am
subpatre (mail):
Dr. Weevil wrote: NeoNazi, bee in her bonnet, stalker, NeoNazi, Nazi; etc; re-published an anonymous Lynchburg commenter's negative opinion about the woman; and implied there is something —not sure what, but something— nefarious because Strom "seems to have gone way beyond "using public records" to collect the information".

In reverse order, Strom's methods appear perfectly straightforward. She even wrote an article detailing how a 'cop blog' leaks information enough to locate the their home, workplace and work schedule within an hour. That's not even 'public records', but information voluntarily pushed onto the web. There is also data that Strom deliberately does not mine, information she chooses not to sift and publish.

Strom proves she can not only effectively use Google, but intelligently analyze how to extract usable date from apparently benign sources. She proves she actually gets out of her chair and goes to the courthouse, actually looks at library microfische; where many talk about this, few perform.


Elisha Strom holds extremist, even weird, views about race; but admiring Adolph's party isn't one of them and she's clearly, unmistakeably, and unequivocably rejected American political followers. Strom's personal beliefs of 'whiteness' are unimportant to the subject, not too different than many Jews' beliefs of Jewishness, or my aunt's definition of the ‘nice girl’ her son should marry. Except this nagging feeling . . .

I Heart J.A.D.E. As Strom implies, there's a 'hate' component, but the blogs name is 'I Heart JADE'; I love JADE. Drug task forces. The new national police force, a synthesis of local, state and federal agents. Huge grants. Hush-hush. Important meetings. All male. All white. Two or three arrests per month. Undercover. Buff. Trading sex for testimony. Big salaries. Respected by the ‘big boys’ in Homeland. Busting blacks and hispanics. JADE crosses with JTTF; busting Arabs.

Strom sees a lot to love in JADE. Indeed, although she's photographed most and fantasized about many, she's never, never posted anything to interfere with JADE's mission. She’s never spoiled a bust, tipped off with advanced warnings, given suspects away, named informants, or in any way interfered in their work. Looking from a different direction, another facet, it is a blog lauding these cops, admiring them.

In the end, Elisha Strom’s obsession with JADE’s members is a product of JADE itself. If nobody had slept with her to get her testimony, she’d be posting about something different. If they weren’t a money-soaked, ‘elite’, all-white force —the upper crust of cops— Strom wouldn’t have bothered. But they did and they are, so Strom writes the blog, where nothing she’s done even slightly endangers the law enforcement done by JADE.
7.31.2009 11:33am
Dr. Weevil (mail) (www):
'subpatre' just can't resist misrepresenting the situation. Elisha Strom's blog is not named 'IHeartJADE', it's 'I HeArTE JADE' with an extra E. Why is the E there? Because you can't spell Hate without that E. The blog banner quite clearly says 'I HATE JADE', with a smaller E and R below the line in a different color to provide the alternative, less offensive title. It's obvious that that URL is designed to provide deniability to the gullible, and that the primary message is Hate for JADE, not Heart = Love.

I quoted a pseudonymous (not anonymous) comment on the Lynchburg newspaper's story because it provided specific links (not just "negative opinion") to back up the allegation that Strom got at least some of the information she has published from personal relationships with JADE members against whom she has some sort of personal grudge. It appears that she is not just a concerned citizen doing web research on a subject of academic or political interest. She looks more like a common stalker, except that she is stalking an entire organization or even an entire profession.

I don't know whether the Southern Poverty Law Center is the most trustworthy source on who is and is not a NeoNazi, but the picture at the top of this story is pretty damning. Elisha Strom's husband was a member of the National Alliance from 1982 to 2006 (they disbanded in 2007) and she seems to share (or at least have shared) his racist beliefs. (By the way, calling those beliefs "extremist, even weird" is a bit mild, isn't it? How about "repulsive" or "disgusting"?) If subpatre has any evidence that Elisha Strom is no longer a NeoNazi, I'll be glad to correct my characterization to 'former NeoNazi'.
7.31.2009 1:05pm
einhverfr (mail) (www):
Laura:

The differences are less than you think. The fact is that I don't have any idea why folks want to get in-- it is probably not because they want access to my data though as anything of interest is probably public. More likely the goal is to do any of the following:

1) Leapfrog to more sensitive computers. For example, if you want to break into a DoD computer, you START by breaking into a series of other computers to cover your tracks. Basically you attack computer A, then from computer A, you attack computer B and so forth. Eventually you go after your real target.

2) Relay spam. This is a big one now. The only minor security issue I have had on my computers was SMTP header injection causing spam to be relayed from a web form.

3) Botnets used to threaten, intimidate, or harass others, or even disrupt their businesses.

In short I am willing to bet that breaking into my computers is not the end in itself. My software acts very much like Secret Service agents protecting the POTUS, if you wnat an analogy to the past discussion. Bt the target is less valuable in my case.

My point here though is where the problem is. The problem in this case is that somebody divulged information to the blogger that should not have been divulged. This shows that there is a serious security problem in how the department protects these identities. If an obsessed citizen can get this info, a criminal organization most certainly could as well. Hence there is REAL value in the speech in that it should cause the department to look into where the leak came from and take appropriate steps to ensure it never happens again.
7.31.2009 1:46pm
hattio1:
whit says;

and if you honestly think criminals wouldn;t be doin' their murderin' just because the cops were unarmed, well... you are delusional

But, of course, I never claimed that. Just that there would be less police brutality, less "justified" arrests for disorderly conduct, resisting arrest, etc that are really just contempt of cop cases. And you agreed there would be. So, I guess we're in agreement. Oh, and Britain's police somehow manage even though they are basically unarmed.
7.31.2009 3:23pm
Dr. Weevil (mail) (www):
British police are "basically unarmed"? Not necessarily. Note also the stuff under flashlight here.
7.31.2009 3:47pm
whit:

Oh, and Britain's police somehow manage even though they are basically unarmed.



british police also operate under a very different system (no right to remain silent, no exclusionary rule) etc. and from the stats i was told (granted, this was 20 yrs ago) are far more likely to use non-deadly force - strikes, etc.

regardless, it's a specious argument. this isn't england.


Just that there would be less police brutality, less "justified" arrests for disorderly conduct, resisting arrest, etc that are really just contempt of cop cases. And you agreed there would be.


did I? i don't see where this is at all a necessary result of disarming cops.
7.31.2009 4:27pm
hattio1:
Whit,
Sorry, I thought you had agreed there would be less police brutality, I guess that was someone else. Regardless, my point is that I don't think disarming the police should be unthinkable. Other countries (again basically) do it. Officers in America could also do it (or be limited in places/times/manner they are allowed to carry weapons). It wouldn't change the world, just the way police operate...and I think that would be a good thing. You obviously don't. Neither one of us will change the other's mind.
7.31.2009 5:18pm
markm (mail):

Suppose I live in a neighborhood that is being preyed upon by a serial rapist.

And how in heck will an undercover operation catch a serial rapist? Get a couple of policewomen out on the street in hopes that the rapist will just happen to pick one of them out of the thousands of women? Even if the rapist is picking passersby at random, this a thousand-to-one shot; the resources spent on that would be much better spent on conventional investigation methods, or even random patrols. If, like most serial rapists and killers that don't fall into , he is picking his victims far in advance, learning their daily routine, and making a plan, then the decoys have pretty much zero chance - if he does happen to put one of them on his list, he'll soon discover that her daily routine includes trips to the police station.

Undercover work is rarely as effective as other investigative methods, except for terrorist cells, for large and well-organized conspiracies such as the Mafia, or for victimless crimes. In the first two cases, I'd expect that if a reporter could discover the undercover cop, so could the criminals. Street-corner drug dealers are unlikely to do much research, but that kind of law enforcement is a quite different matter than the pursuit of rapists.
7.31.2009 9:05pm
subpatre (mail):
Dr. Weevil wrote; “If subpatre has any evidence that Elisha Strom is no longer a NeoNazi, I'll be glad to correct my characterization to 'former NeoNazi'.

Your own posting at 10:11am shows you knew she testified against her husband ; testimony where she repudiated the group he belonged to; an act that got her death threats from them. That alone makes your accusal scummy. You knew.

Dr. Weevil writes “She looks more like a common stalker, except that she is stalking an entire organization or even an entire profession. I don't know whether the Southern Poverty Law Center is the most trustworthy source on who is and is not a NeoNazi . . .

Who is the ‘stalker’, when WSLS reports:
“The Southern Poverty Law Center (SPLC) says it has been tracking Elisha Strom for the past decade”
Ten years. Not one crime, just married to some asshat. Between profit-from-hate SPLC or Dr. Weevil’s “stalking...an entire profession”, the word ‘stalk’ is meaningless.

Strom’s past, present and future beliefs are irrelevant. The ad hominems obscured any substance you could have —but didn’t— try to discuss. She has posted no threats to JADE

Strom is charged under VA §18.2-186.4 which prohibits publishing “the person's name or photograph along with . . .” [enumerated data of] SS number; driver's license number; bank account numbers; credit or debit card numbers; personal identification numbers (PIN); electronic identification codes; automated or electronic signatures; or passwords “including identification of the person's primary residence address.” Further, publication must be “with the intent to coerce, intimidate, or harass”

The law won’t shouldn't stand Constitutional scrutiny, but she didn’t break it. Strom published no enumerated items, (site:site number OR pin OR ...etc) invalidating the charge. Even if she had, the state must still prove her intent; there has been no threat, no interference with their job. To up the ante, the Commonwealth must fit ‘stalking’ into a subsection of a fraud law (falsely obtaining property or credit) in a chapter titled “Crimes Involving Fraud”.

In reality JADE members trumped a charge; banking on an obsessive Strom going nuts in jail, getting raped into submission, or simply ‘offed’ by another arrestee in exchange for JADE leniency. Strom’s personal beliefs might be repugnant; but JADE is far, far worse.
7.31.2009 10:04pm
Dr. Weevil (mail) (www):
1. More lies from subpatre: Elisha Strom only repudiated her husband's NeoNazi organization because they refused to believe he was guilty on the kiddie porn charges and blamed her for testifying against him. If there is any evidence that she now disagrees with their political, social, and racial policies, I haven't seen it and subpatre hasn't bothered to provide it. The Hook, a local weekly interviewed her at the time of the trial, and here is what she said:

"'I still consider myself a white nationalist, but I don't consider myself part of that organization anymore,' she says. 'I don't want to be associated with a group that thinks a pedophile is okay.'

"She also says she would never call herself a racist.

"'I want separation of the races,' she explains. 'I want a white nation.'

"She thinks other races should also have their own nations."

Whether she think other races should be deported, or would be willing to slice off parts of the U.S.A. for them is not clear, but either one looks like 'ethnic cleansing' to me.

2. The SPLC may be scum and may be worse human beings than Elisha Strom -- I have no opinion on that -- but they have what looks like strong evidence (the flag picture) that the National Alliance does have Nazi sympathies. That's all I linked to them for.

3. subpatre ignores my argument about her site title. Is it really so hard to understand that titling your site 'I HATE JADE' might reasonably be taken to imply intent to harm JADE and its members?

4. subpatre claims to believe that Strom is in danger of "going nuts in jail, getting raped into submission, or simply 'offed' by another arrestee in exchange for JADE leniency" and ArthurKirkland thinks that she deserves something over $10 million for what she has suffered so far. The Hook reports that she is still in jail after two weeks because she's been unable to come up with $7,500 bail. If subpatre and ArthurKirkland believe what they have written, why don't they bail her out? Don't you usually only have to put down 10%? (I wouldn't know, but that's what I've heard.) Even if it took the whole $7,500, surely saving an innocent person from insanity, rape, or murder would be worth that much.
7.31.2009 11:19pm
subpatre (mail):
Dr. Weevil said “Elisha Strom only repudiated her husband's NeoNazi organization because ...

Repudiation is repudiation. It's obvious you never had any intention of honoring : “...any evidence that Elisha Strom is no longer a NeoNazi, I'll be glad to correct my characterization to 'former NeoNazi'.” Slimy wording when you knew she had repudiated the organization. Scummy.

Separatist doesn’t equal nazi . . . I guess. A search for that plus “Elisha Strom” gets 2 thousand hits. In contrast, ‘“Dr. Weevil” nazi’ gets 17 thousand hits, 8X more. Is this an obsession? Seriously dude, look in the Google-mirror.

Dr. Weevil writes “Is it really so hard to understand that titling your site 'I HATE JADE' might reasonably be taken to imply intent to harm JADE and its members?”

Explain it to us then. Two years now, and not one sign of attempted harm. Not the slightest. This is fabrication, making stuff up; fear-mongering when no facts support ‘harm’. There is no reasonable expectation of anything except embarrassment from JADE’s exposure.
8.1.2009 1:44am
whit:

Sorry, I thought you had agreed there would be less police brutality, I guess that was someone else. Regardless, my point is that I don't think disarming the police should be unthinkable. Other countries (again basically) do it. Officers in America could also do it (or be limited in places/times/manner they are allowed to carry weapons). It wouldn't change the world, just the way police operate...and I think that would be a good thing. You obviously don't. Neither one of us will change the other's mind.



i am saying that saying "other countries do it" is not a valid argument. MOST other countries don't, fwiw. everybody thinks of the UK. the UK has less cops with guns, it's true. iirc, about 20% of the metropolitan police carry typically (iow most or all of the time) and most of the rest have access to firearms in the trunk which they can retrieve prior to hot calls w/supervisor approval.

they also (from what i learned back in the academy) are more likely to use batons (or truncheons as they call them) than US cops, and strong hands on force in general. if you think the UK cops are less prone to force than us (apart from firearms) i think you are mistaken.

i realize that most "brutality" complaints are either unfounded or fabricated, but of course brutality dOES exist. i see NO evidence to believe it is less common in the UK.
8.1.2009 2:45am
Dr. Weevil (mail) (www):
More silly arguments from subpatre:

1. "Repudiation is repudiation"? Not always. Quitting an organization because it's members despise you is not the same as quitting because you have come to disagree with its goals.

2. The Google argument is ridiculous. There are indeed 17,200 Google hits for "'Dr. Weevil' Nazi", but there are 203,000 hits for "Dr. Weevil" alone, so 8.4729% of the pages that mention me use the word 'Nazi' somewhere on them. Of course, some of those are (e.g.) InstaPundit monthly archive pages. He blogs a huge amount every month, occasionally mentions Nazis, and has me on his blogroll, so another "'Dr. Weevil' Nazi" hit is added every time he happens to mention a Nazi for any reason in any given month. Hardly a sign of obsession on my part.

If you Google "subpatre + Nazi", you get only 122 hits, but there are only 1,440 for "subpatre" alone, so 8.4722% of the pages that mention him use the word "Nazi" somewhere on them. Apparently the dividing line between an "obsession" with Nazis and a perfectly normal interest in them can be calculated down to six decimal places: the ratio lies between .084722 and .084729.

As subpatre points out, "'Elisha Strom" Nazi" gets only 2,050 hits, but he carefully avoids mentioning that "Elisha Strom" without Nazi gets only 983. Somehow the number of pages that mention her and Nazis is 208.54% of the number that mention her alone. I didn't think that was possible, so perhaps something has gone wrong with Google's algorithm.

3. "not one sign of attempted harm" looks like a bald-faced lie. It's obvious that Elisha Strom is attempting to harm JADE. Or does subpatre means "attempted harm" by others? Does he think they should wait until one of their officers has been proven to have been killed or maimed by a local drug dealer using information she published before they can object to her providing it? That seems a bit harsh, unless you really hate policemen.

Of course the most interesting thing about subpatre's latest is his total silence about my suggestion that he bail out Elisha Strom. Even if he doesn't have the money himself, he could begin a campaign to get contributions from the dozens of people who have expressed outrage over her arrest. Perhaps Radley Balko would allow a guest post. Surely someone who is in imminent danger of insanity, rape, or murder, as subpatre pretends to believe, is worth spending a few hundred to save? His silence on this point is damning: he cannot possibly believe some of the things he has written, which makes him a common troll.
8.1.2009 8:22am
Laura(southernxyl) (mail) (www):

Suppose I live in a neighborhood that is being preyed upon by a serial rapist.


And how in heck will an undercover operation catch a serial rapist? Get a couple of policewomen out on the street in hopes that the rapist will just happen to pick one of them out of the thousands of women? Even if the rapist is picking passersby at random, this a thousand-to-one shot; the resources spent on that would be much better spent on conventional investigation methods, or even random patrols. If, like most serial rapists and killers that don't fall into , he is picking his victims far in advance, learning their daily routine, and making a plan, then the decoys have pretty much zero chance - if he does happen to put one of them on his list, he'll soon discover that her daily routine includes trips to the police station.


markm, are you an expert on law enforcement and the apprehension of serial killers and rapists? If not, I'm afraid I can't give much weight to your assertion that an undercover operation would never be used, if that's what you are making - and if not, then I'm not sure what your point is.

I have a book somewhere about the Green River killer. He was apprehended after that book was written, I believe. The police staked out the area where he was dumping the bodies, but the local media found out about the stakeout and they showed up with helicopters. Unsurprisingly, the killer found another dump site. The killings continued for quite some time. But by golly, every opportunity we can find to hinder the police must be seized or our precious civil liberties will be lost forever.
8.1.2009 10:13am
Kirk:
hillybilly,
So security by obscurity should be protected?
"To a man who has only a hammer, every problem looks like a nail." Just because "security by obscurity" has a well-deserved bad reputation when applied to long-term computer and physical security (like master lock mechanisms), doesn't mean that it's a bad idea everywhere. Sometimes, especially in sociological realms, obscurity is all you have. People, even undercover police, have to live someplace, and the numbers of folks willing to take such jobs will go down if we require them to have no other personal relationships: hence they will have vulnerabilities.

And I'm with whit on the 'undercover to catch a serial rapist' question: is there a single documented use of this technique, ever?
8.2.2009 4:14pm
Laura(southernxyl) (mail) (www):
8.2.2009 10:02pm
subpatre (mail):
Dr. Weevil writes: “"Repudiation is repudiation"? Not always

Yes, always. Repudiation means repudiation, Mr. Clinton; it doesn’t ‘depend’ on . . .

Yes, the Google example of ‘ “Dr. Weevil” nazi’ was silly; exactly why I used it. It’s the same logic Weevil used to smear Strom with. What’s sad is the 200 words spent seeking to scrub it away.

Dr. Weevil claims “It's obvious that Elisha Strom is attempting to harm JADE.”

Obvious? There has been no harm. No attempted harm. No elements of attempted harm. Weevil’s ‘obvious’ (like ‘repudiation’ above) obviously isn’t the same ‘obvious’ in the dictionary.

Weevil believes the mere knowledge of police names or addresses will cause them to be harmed or murdered. It’s a variation on the ‘guns cause homicidal rage’ principle; supposing that nobody would dream of harming police until their names were published. It’s also the argument for secret police, a place we do not want to go.

On the federal level, Elisha Strom’s blog —even at its most scary— falls far, far short of what Bill White (a real, bona fide, genuine neo-nazi) was acquitted of; far, far short of NAACP v. Claiborne containing non-specific threats to ‘have their necks broken’.

Strom’s ‘offense’ is publishing names, photos, descriptions, details of the force, operations and average daily activity, and an address or two. It's esoteric and specialized, but the site is valuable for citizens’ understanding how their taxes are spent and how ‘justice’ is dispensed. If it is embarrassing to this ‘special force’, they can change.

In a Seattle case dismissing charges against the owner of a website listing police names, addresses, phone numbers :
“In this case, as in numerous others, in the absence of a credible specific threat of harm, the publication of lawfully obtained addresses and telephone numbers, while certainly unwelcome to those who had desired a greater degree of anonymity, is traditionally viewed as having the ability to promote political speech.’ —Sheehan v. Gregoire, W.D. Wash, 2003
The federal position is quite clear that iheartejade is a protected exercise of speech.
8.2.2009 11:08pm
subpatre (mail):
Dr. Weevil wrote: “If [they] believe what they have written, why don't they bail her out?” . . . “ he cannot possibly believe some of the things he has written, which makes him a common troll.

Common troll? Besides the ad hominem aspect, the logic is hilarious. Go demand the same of Eugene Volokh: Argue that failing to pay for any cause he advocates means “he cannot possibly believe some of the things he has written, which makes him a common troll.”
8.2.2009 11:12pm
subpatre (mail):
Laura’s concern about media circuses is justified. But before we go there, keep in mind that the Green River Task Force (GRTF) got a late start . . . because public perception thought the killer’s victims —mainly prostitutes or teen runaways— were not important. The relevance to this JADE/Strom case shouldn’t be ignored.

Laura writes: “... police staked out the area where he was dumping the bodies, but the local media found out about the stakeout and they showed up with helicopters. Unsurprisingly, the killer found another dump site.”

Not true. The helicopter story is apocryphal (killers don’t ‘always return to the scene’) but your concern is legitimate. The media circus certainly hampered police work. Once, when the media found out an individual was a (not announced) ‘person of interest’ they surrounded him 24/7, following him in a miniature parade. That is interfering.

What the media did not do is critique the investigation. The MSM never criticized the time wasted repeatedly interviewing Bundy; so GRTF interviewed mass and serial murderers nationwide. Psychics and psychologists were hired to form a ‘grand unified theory’ of serial killers. Obviously the press didn’t criticize the police-MSM link that dramatized themselves and certain cops by magnifying the event; Det. Reichert was appointed Sheriff, and is now a Congressman.

If someone had acted as Strom to the GRTF —sharply critical of them and their actions— the investigation would have caught Ridgway much sooner: A string of police contact and arrests were never thoroughly pursued because the task force was looking elsewhere. Hindsight is 20/20, but oversight would have prevented the nationwide travel, misplaced emphasis, and the money squandered on ‘psych’ mumbo-jumbo.

Undercover cops were used in the SeaTac strip where the killer operated, it accounted for at least one of Ridgway’s arrests. That definitively answers Kirk’s question. MSM publicizing those cops’ real identities or photos certainly would have been interfering in this investigation.

There are two considerations of police identity, and one is defining ‘publication’. The media storm around the Green River case is clearly publication. Telling a friend is seems to not be, but technically it is publishing. The Strom blog requires searching for certain terms or names (though not since the MSM have broadcast about it) to even find it.

Hearing from a friend is unavoidable, but the iheartejade site can’t be found without trying to. A blog may ‘reach the world’, but nobody reads any of it unless they are already trying to find the information. Blog or website analogy is closer to posting a piece of paper on a house front door; people must deliberately look it up and turn aside to read it. My take is that ‘publication’ for these purposes hinges on ‘broadcast’, inevitability of contact, and number of people contacted.

The other consideration is whether the publication —MSM, blog, or whisper in the ear— actually damages the persons, investigation or investigators; commonlaw including imminent threat or attempts. To date, iheartejade has published nothing to harm to any individuals, their workplace, families, or environment. There’s been nothing about pending investigations, proprietary methods, or identified suspects or targets of inquiry.
8.2.2009 11:29pm
Kirk:
Thanks, Laura and subpatre.
8.3.2009 12:55am

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