Thursday, January 30, 2020

Alabama GOP operative Jessica Medeiros Garrison appears to be facial-recognition company's point person for making in-roads with the gambling industry


Jessica Medeiros Garrison participates in a panel discussion on facial recognition at a gaming expo in Las Vegas. 

News coverage of a shadowy facial-recognition company called Clearview AI has focused so far on the firm's efforts to attract business from law enforcement, with The New York Times reporting that more than 600 policing agencies have started using Clearview's technology. The company, however, is pitching its services to other business sectors, including the gaming industry -- with Alabama GOP operative Jessica Medeiros Garrison apparently leading Clearview's efforts to attract casino dollars.

Multiple news outlets have reported that Garrison appeared on a panel about facial recognition last October hosted by the Global Gaming Expo at the Sands Expo Center in Las Vegas. From a report at kioskmarketplace.com:

Panelist Jessica Medeiros Garrison, president of MDM27, a business development consultancy, expanded on the technology improvements, noting some products have artificial intelligence and neural networks that can adjust for angles and lighting when capturing images of peoples' faces.

"This artificial intelligence really didn't take off until the last two years," Garrison said. Not only are law enforcement agencies using it to solve crimes faster, they are finding it helps solve multiple cases simultaneously. The technology has assisted in the areas of financial fraud, violent crimes and human trafficking.

Is it a job killer?

As with other types of self-service technology, facial recognition raises the question of replacing human labor. To this point, Garrison said organizations using the technology are repurposing employees to higher-value tasks.

A Web site called cdgamingreports.com also reported on Garrison's panel appearance. Why would the gaming industry be interested in facial-recognition technology?

Casinos finally can get facial recognition technology that works, but operators must be prepared to handle all the information it will provide, a Global Gaming Expo panel said.

In the past couple of years, the technology has advanced dramatically, providing security experts with the ability to identify violent criminals or blacklisted patrons before they enter a venue or offering marketing executives the ability to obtain even more revealing data about players.

But the technology also could end the “didn’t know/can’t tell” defense for not identifying suspected “chip walkers” and others involved in potentially questionable transactions.

“The reward side is probably the sexier topic for a lot of folks in gaming,” said Nasr Sattar, vice president of NRT Technology Corp.’s Innovation Group. “Compliance is also a very risky area. No one wants to get a million dollar fine for not knowing who that person is and not reporting it.”

Sattar spoke Thursday at a G2E panel discussion on “Customer Identification Using Facial Recognition Technology: The Future is Now.” Also on the panel were Jessica Medeiros Garrison, president of MDM27 Holdings, whose company Clearview offers facial recognition technology to law enforcement agencies, and David Logue, vice president of security, surveillance and nightclub compliance for the Cosmopolitan of Las Vegas. Alec Massey, director of PwC Connected Solutions, moderated.

What insights did Garrison impart to the gaming audience? From the account at cdgamingreports.com:

Medeiros Garrison said any facial recognition program more than three or four years old is “definitely a super-crappy, old algorithm.”

She said current versions rely on recent improvements in artificial intelligence and machine learning that can account for differences in viewing angles and lighting. She said online security verification tests that require a user to identify which of several pictures contain a stop sign, for example, are a way of training an artificial intelligence algorithm.

What about other topics raised at the panel discussion? From kioskmarketplace.com:

The adoption of facial recognition software to identify customers will increase in the next few years, thanks to improvements in the technology though it has also been somewhat controversial, according to a panel talk at the recent Global Gaming Expo held at the Sands Expo Center in Las Vegas.

Panelists participating in the session, "Customer identification using facial recognition: the future is now," agree the technology is more reliable and robust. Accuracy has been a main challenge with facial recognition, along with privacy concerns, since businesses and law enforcement began using the technology several years ago.

"We're seeing (facial recognition) technologies actually performing now," said panel moderator Alec Massey, director of PwC Connected Solutions practice for gaming, hospitality and leisure clients. "There's a lot of good that comes with facial recognition."

Facial recognition is a form of biometric identification that self-service kiosks are using to improve customer service, the others being fingerprint, retinal, palm print and thumb print scanning. While fingerprint scanning is considered the most common type of biometric identification, facial recognition is gaining in popularity.

Several restaurants have introduced facial recognition kiosks in recent years, including Burger Fi, based in South Florida; Caliburger, based in Pasadena, California; UFood Grill in Owings Mills, Maryland; Wao Bao, based in Chicago; and Malibu Poke, based in Dallas. Airports, hotel and casinos have also used facial recognition kiosks.

Panelists said facial recognition has a number of potential benefits for gaming executives, reports cdgamingreports.com:

Logue said the most immediate use for facial recognition is in keeping venues safe because it can scan people in a crowd and quickly match hits on people with criminal or violent backgrounds.

“If you can identify them right then and stop them, think how much safer your employees and patrons and everybody is,” he said. In Nevada, casinos and other venues have the right to refuse entry in such a case.

He said the system would require databases with hundreds of thousands of images, and a need to hire additional people to manage the databases and confront those identified as risks.

Sattar said facial recognition can be vital to a casino’s handling of its own risks and rewards.

The risk side includes the reporting and compliance requirements for all types of casinos transactions.

He said one use is with someone suspected of being a chip walker, a patron who fails to cash a large amount of chips, presumably to be used for illegal payments outside the casino.

“You’ve associated that patron with a face. That goes with your compliance tools,” he said.

“In the old days, if you didn’t know, you didn’t have to report it. That’s rapidly changed.”

On the reward side, Sattar said facial recognition could eliminate gambling’s “last black hole of information:” rating table-game players.

Instead of ratings based on brief observations by harried pit supervisors using pencil and paper, facial recognition not only would recognize the player but use technology to track bet size, side bets placed, and other factors.

“There are all sorts of implications that come out of that,” he said. “You get player utilization, you understand your side bets a lot better, you understand your base bets a lot better. And finally, you understand who your players are and how you want to market to them.”

Wednesday, January 29, 2020

Photographs appear to show that Alabama Power CEO Mark Crosswhite and federal prosecutor Jay Town met before the North Birmingham Superfund bribery trial


Jay Town and Mark Crosswhite

Photographs have surfaced that appear to confirm Alabama Power CEO Mark Crosswhite and Jay Town (U.S. attorney for the Northern District of Alabama) met before the North Birmingham Superfund bribery trial in summer 2018, according to a report at banbalch.com. The reported purpose of the meeting was to rig the trial, ensure that no executives from Alabama Power or parent company Southern Co. would be prosecuted, and establish former Drummond Co. executive David Roberson as the target and "fall guy" for government prosecutors.

Roberson has a pending $75-million lawsuit against his former employer. The appearance of Crosswhite-Town photos in an apparent meeting adds a cloak-and-dagger element to the Superfund story. From the banbalch report, which is titled "Jaw-Dropping Photos: Mark A. Crosswhite’s Meeting with U.S. Attorney Rocks Alabama Power":

Stuffed in an unmarked, unlabeled manila envelope, several 8 X 10 photos appear to confirm what ex-Drummond Company Executive and “fall guy” David Roberson has repeatedly declared: Before Roberson was indicted, his friend Mike Cole had told Roberson that Cole and Alabama Power’s CEO Mark A. Crosswhite had a meeting with the U.S. Attorney for the Northern District of Alabama, Jay E. Town.

Crosswhite was attempting to allegedly quash the prosecution of anyone who had been accused of bribing disgraced politician Oliver Robinson. Town allegedly replied that he was confirmed too late to kill the North Birmingham Bribery prosecution and that people were going to go to jail. Town allegedly assured Crosswhite that Alabama Power would not be prosecuted nor called as a witness in the trial.

Town was sworn in as U.S. Attorney on August 11, 2017. Seven weeks later, “fall guy” David Roberson and two Balch Bingham partners, Joel I. Gilbert and Steven McKinney, were indicted.

The explosive photos show Crosswhite, “the most powerful man in Alabama,” enjoying libations with Town and Cole at the Moon Shine Lounge at the Elyton Hotel in downtown Birmingham.

Is there any doubt about what is taking place in the photos? Not much, according to banbalch:

The photos, shot from a distance, include a close-up of Town wearing a U.S. Department of Justice lapel pin, confirming he was U.S. Attorney. (The Moon Shine Lounge opened in July of 2017, just weeks before Town was confirmed.)

The photos appear to demonstrate unequivocally that David Roberson was a victim, the perfect foil, the “fall guy” for the AstroTurf campaign to discredit the environmental group GASP, allegedly spearheaded by Alabama Power and Balch Bingham goons.

As we reported in December, convicted felon and Balch-made millionaire Joel I. Gilbert sent email updates on the bribery/AstroTurf scheme in North Birmingham addressed to Alabama Power executives. Roberson, who was convicted of participating in the bribery scheme, was simply cc’d.

What does this mean for any sense of justice in the Birmingham metro area? Banbalch addresses that in a section titled "So is Alabama Power truly untouchable?"

We, the CDLU (Consejo de Latinos Unidos), have now called on the U.S. Department of Justice to investigate Mark A. Crosswhite, Alabama Power, and their sister-wife, Siamese twin Balch Bingham for the alleged trampling of civil liberties, criminal obstruction of justice, abuse of the color of law, and possible corruption.

Why?

First and foremost, Roberson, who has lost everything, appears to have been the “throw-away” lobbyist and fall guy in Alabama Power’s “brilliant” attempt to block the environmental group GASP using a money-laundering entity called the Alliance for Jobs and the Economy (AJE).
Alabama Power’s sister-wife Balch Bingham appointed Roberson as the president of AJE, even though he was more of a puppet than a decision-maker.

What about background on the photographs? Banbalch supplies it:

The photographs in the manila envelope were placed inside David Roberson’s mailbox during Thanksgiving. All evidence points towards that these photos were taken between late August and the middle of September of 2017, a few weeks before the indictments were handed down.

We believe the photographs were taken either by disgruntled law enforcement agents or a private investigator. Who was shadowing Crosswhite or Town and why? And why were they given to Roberson now?

The photographs are truly Alabama Power’s problem.

Alabama Power’s problem is now with Mark A. Crosswhite.

And Crosswhite’s problem is with Balch Bingham which has refused to resolve the Roberson and Newsome matters and put Crosswhite, his career, and his legacy on the brink.

Don Siegelman's book, "Stealing Our Democracy," promises an inside look at perhaps the most notorious political prosecution in U.S. history -- and it's set for release in June from New South Books of Montgomery




Don Siegelman's book about the political prosecution that sent him to federal prison for roughly six years is set for release in June. Siegelman, the most recent Democrat to serve as governor of Alabama (199 to 2003), wrote most of the book while incarcerated at a facility in Oakdale, Louisiana.

Titled Stealing Our Democracy: How the Political Assassination of a Governor Threatens Our Nation, the book is being published by Montgomery-based New South books. It now is available for pre-order via Amazon, New South Books, and other outlets, with a release date of June 16, 2020.

Stealing Our Democracy comes on the heels of Atticus v. the Architect, a 2017 documentary about the Siegelman case (directed by Steve Wimberly). "The Architect" is a reference to Karl Rove, Republican consultant and senior policy advisor and deputy chief of staff in the George W. Bush administration.

Here is a summary of the Siegelman book:

In a searing political memoir, former Alabama Governor Don Siegelman explodes the myth of an impartial U.S. justice system. He should know. Arguably the most successful and promising politician in modern Alabama history, his three-decade career in public service ran afoul of Republican opponents who used the federal judicial system to take him out of contention in Alabama and nationally. Siegelman ultimately was sentenced to 88 months in federal prison and served five years, with long stretches in solitary confinement during which he was a literal political prisoner, cut off from interviews and outside contact. Stealing Our Democracy reveals how Siegelman’s enemies (including politicized prosecutors and a corrupt judge) stripped him of his freedom, his career, and his law license, and deprived him of his family and friends. His is an intensely personal account of how our system can fail and be abused for political greed. And if it could happen to him, he writes, it can happen to any of us, particularly in an era when Donald Trump is abusing his power and using the Department of Justice as a political weapon to defend himself and to destroy those who oppose him. Siegelman draws on his experience as a public servant and an inmate to show why the nation’s prisons must be reformed along with our system of indictment, prosecution, and sentencing. Finally, Stealing Our Democracy offers a blueprint for voters in 2020 of what must be done to preserve democracy.

In the video below, Siegelman discusses his plans to write a book with Bill Britt, editor of Alabama Political Reporter.



Monday, January 27, 2020

Jessica Medeiros Garrison, an Alabama GOP operative tied to Luther Strange, might get caught in a storm created by shadowy facial-recognition company




Alabama GOP operative Jessica Medeiros Garrison could be a target of a U.S. Senate grilling in the wake of reports about her involvement with a shadowy facial-recognition company that raises constitutional questions about privacy. Garrison is listed as the primary customer contact for Clearview AI, a startup that reportedly has pitched its services to more than 600 law-enforcement agencies.

Garrison, the one-time campaign manager and mistress for former Alabama attorney general Luther Strange, apparently has made her social-media presence go dark following a 1/18/20 New York Times report about disturbing issues surrounding Clearview. In addition to Congressional scrutiny, Clearview faces a class-action lawsuit, along with demands from at least one social-media giant to cease using its online images.

Sen. Edward Markey (D-MA) sent a letter last week to Clearview CEO Hoan Ton-That, asking for information about a number of prickly issues related to facial-recognition. From a report at cnet.com:

Democratic Sen. Edward Markey of Massachusetts issued an open letter Thursday demanding answers from the creator of a controversial facial recognition app used by US law enforcement. The letter to the CEO of Clearview AI, Hoan Ton-That, follows a New York Times investigation into the software company and its app, which can identify people by comparing their photo to a database of pictures scraped from social media and other sites.

In the letter, Markey requests information from Clearview, including a full list of any entities and law enforcement agencies currently using the technology, as well as details on any past security breaches and on Clearview's employee access privileges. Markey also asks if Clearview's technology is able to recognize whether the biometric information uploaded to its systems points to children under the age of 13.

"Any technology with the ability to collect and analyze individuals' biometric information has alarming potential to impinge on the public's civil liberties and privacy," Markey wrote in his letter to Ton-That. "Clearview's product appears to pose particularly chilling privacy risks, and I am deeply concerned that it is capable of fundamentally dismantling Americans' expectation that they can move, assemble, or simply appear in public without being identified."

If Clearview makes a serious attempt to respond to Markey's queries, could the letter wind up on Garrison's desk? Given that she is listed as the company's primary contact with the public, the answer likely is yes.  Clearview touts its technology as a way to fight crime, but Markey suggests it could help facilitate crime. From a report at mediapost.com:

Markey also warns that the technology could be “weaponized” in “vast and disturbing” ways.

“Using Clearview's technology, a criminal could easily find out where someone walking down the street lives or works,” he writes. “Widespread use of your technology could facilitate dangerous behavior and could effectively destroy individuals' ability to go about their daily lives anonymously.”

As for other issues now facing Clearview . . .

* Twitter says, "Stop scraping our site for images"

Twitter sent a letter [last] week to the small start-up company, Clearview AI, demanding that it stop taking photos and any other data from the social media website “for any reason” and delete any data that it previously collected, a Twitter spokeswoman said. The cease-and-desist letter, sent [last] Tuesday, accused Clearview of violating Twitter’s policies. . . .

Clearview’s database of photos dwarfs those previously used by law enforcement agencies. Other technology companies capable of building such a tool, like Google, have decided not to because of concerns about the potential for abuse.

* I hear those lawsuits coming, coming 'round the bend . . .

Clearview AI, a start-up that reportedly sells "faceprint" databases to police departments, has been hit with a potential class-action lawsuit.

The company scraped billions of photos from Twitter, Facebook and other companies, used technology to create a faceprint database, then sold that database to police departments across the country, according to an explosive report Sunday in The New York Times.

In a complaint filed Wednesday in federal court in Illinois, state resident David Mutnick accuses Clearview of violating the state's biometric privacy law. That measure, considered one of the strongest in the country, requires companies to obtain consumers' written consent before compiling their faceprints.

Mutnick, who is represented by the Chicago civil rights law firm Loevy and Loevy, is seeking damages and a court order requiring Clearview to not only stop selling the material, but also expunge it.

Mutnick's lawsuit appears to be the first one against Clearview, but it likely won't be the last.

Attorney Jay Edelson, who has brought numerous privacy cases against Silicon Valley businesses, says he also expects to file suit against the company.

“What Clearview is doing is really game changing, in terms of individual autonomy and freedom,” he tells MediaPost. “And it's really scary that a startup -- just a couple of people -- can just change America.”

He adds that his goal would be to obtain a court order shuttering Clearview.

“I do not believe that what they're doing is proper, and we feel very good about being able to explain that to a court,” he says.

Thursday, January 23, 2020

Statements at pretrial hearing suggest Missouri federal judge Doug Harpool already has made up his mind about guilt in child-pornography case of Scott J. Wells


Doug Harpool
A federal judge in Missouri has publicly stated how he expects a criminal trial to go, even though he's not set to hear it until March 2020.

U.S. District Judge Doug Harpool made the statements in a hearing for the child-pornography case of United States v. Scott J. Wells, which we have covered extensively -- mainly because the government's criminal complaint states Wells took two relevant actions at the exact same time, which of course is physically impossible and means Wells, as a matter of fact and law, is not guilty. Also, Wells has had four different court-appointed lawyers, and apparently not one of them has read the complaint closely enough to point out the exculpatory segments to the court -- and they have done little to nothing to prepare a defense for a defendant who clearly did not commit the alleged offense, as proven by the government's own documents.

Harpool's statements, which came in a hearing to withdraw Wells' guilty plea and appoint a fourth lawyer (Stuart a hearing tHuffman, who apparently has done virtually nothing to prepare a defense, just like his three predecessors), are improper at best and highly prejudicial at worst.

Harpool's comment are particularly disappointing because I have thought he might be one of the few good guys in the federal judiciary.  A lifelong Democrat, as best I can tell, Harpool served 10 years in the Missouri House of Representatives and was nominated to the federal bench by Barack Obama in 2013. I'm a two-time Obama voter, so Harpool and I are on the same side of the political fence.

On top of that, we grew up together, to an extent. We both went to South Kickapoo Junior High (now Cherokee Mddle School) and played on the basketball team there, while also playing on the same youth baseball team (Dave's Angels). I used to have all of our team pictures, until abuse from Republican political and legal thugs caused my wife, Carol, and me to lose our home of almost 25 years in Birmingham -- with my photos and other mementos lost to the wind in the process.

Bottom line, I've always liked Doug Harpool and considered him to be an honorable person, but his comments regarding the Wells case suggest arrogance has eaten at his brain, he sides 100 percent with the legal tribe and the interests of law enforcement. or he never was the good guy I thought him to be (or maybe a combination of all three).

The Doug Harpool I thought I knew as a child would try to have some appreciation for what it's like to be falsely accused of a crime and to have a series of lawyers make no serious efforts to prepare a defense. That Doug Harpool seems to no longer exist, and the guy who now wears a robe is a suck-up for prosecutors and compromised attorneys, while being downright rude to a defendant and his family.

Harpool even hinted he might seek to prosecute Wells' 77-year-old mother, Nancy, for filing a court document on her son's behalf while serving as his power of attorney. Harpool's response, which can be seen on the first page (p. 25) of the document embedded at the end of this post, marks him as a bullying asshole, in my view:

THE COURT: Is that in Greene County?

THE DEFENDANT: Yes.

THE COURT: Has she got a law license?

THE DEFENDANT: No.

THE COURT: Well, I'll refer that to the U.S. Attorney's Office to determine whether the filing of that document constitutes the unauthorized practice of law, under the laws of the State of Missouri.

Even worse than that, Harpool strongly hinted he already has made up his mind about how the trial will proceed -- and about Scott Wells' guilt. This begins on p. 30 of the embedded document below:

THE COURT: I think you have a complete misconception of what this trial's going to be like. They're going to call the law enforcement officer; he's going to say you admitted your guilt. They're going to have the officer who reviewed the computer who's going to go through and show the jury images and searches on the computer, and the government will have made their case against you.

Then it will be -- you don't have to testify; it may be over at that point. If you want to say I didn't do it, it got on some other way, I don't know how you're going to say that without taking the stand or having an expert. I don't know of any expert who could support that. You may have one. Mr. Shuler is not an expert in computer technology.

That's not the only time I was referenced in the proceedings -- at one point, Harpool referred to me as "the blogger" -- and I agree that I'm not an expert on computer technology. But I apparently am an expert on the criminal complaint, given that no one else seems to have read it closely enough to show that it exonerates Scott Wells. If I were designated an expert on that subject and allowed to testify, there would be no need for any other experts; the case would be closed.

More importantly, notice the highlighted sentence in yellow above. It shows that Harpool is inclined not to believe Wells' expert witness. Just above that, Harpool suggests he's willing  to believe most anything that comes out of the mouth of a government witness. That's odd because it's perfectly realistic to think an expert for Wells could show government experts botched their analysis and could not show that Wells "knowingly" placed the contraband on his computer or took "affirmative steps" to exert "dominion and control" over it. Those are the key elements in play for a child-porn case, and Harpool seems cavalierly unaware of that.

How is this for irony? Harpool praises Wells' first three lawyers -- David Mercer, Shane Cantin, and Brady Musgrave -- as three of the finest in Southwest Missouri. The judge also notes that an expert witness should be an essential part of Wells' defense. Did any of those three lawyers (including No. 4, Stuart Huffman) do anything to arrange an expert for Wells? Nope. In essence, Harpool is admitting Wells' lawyers have not been doing their jobs, but he thinks they are great lawyers, anyway.

The first five pages of the hearing transcript are devoted mainly to Wells' questions about why he is being detained, given that he is in a wheelchair and clearly is not capable of being a danger to society. Harpool's answer, in so many words, is "You are being detained because most other defendants on child-porn charges are detained." Consider these words from p. 26 of the transcript:

THE COURT: I will tell you that the overwhelming majority of people charged with child pornography -- not all of them, but the overwhelming majority of people charged with child pornography, are detained in our district.

Is that how our "justice system" is supposed to work -- you get detained because other people have been detained on similar charges? The answer, of course, is no. Perhaps there was at least probable cause in those other cases. In Wells, there is no probable cause because the defendant is charged with actions that are physically impossible to commit.

Perhaps the most alarming part of the hearing transcript is that both Harpool and prosecutor James Kelleher state Wells is being detained partly because he pleaded guilty to child endangerment in a 2004 state case where the original charge was child sexual abuse. Wells initially was convicted on the original charge, but that was overturned when at least one complaining witness was found to have lied under oath, and the court found Wells' lawyer (my brother, David Shuler) provided ineffective assistance of counsel. Here is Kelleher's statement on his issue, beginning on p. 26 of the transcript below:

MR. KELLEHER: . . . But Mr. Wells needs to know that Judge Rush was well aware of the fact that while Mr. Wells was charged with sexually abusing a number of children, he ultimately pleaded guilty to endangering the welfare of a child.

Here is Harpool's comment, from p. 29 of the transcript:

THE COURT: . . . You're being held for it because there was a presumption, and you did plead guilty to endangerment of a child, according --which would be another related issue.
Are these statements true, did Scott Wells plead guilty to child endangerment? Not even close. The record plainly shows Wells entered an Alford plea to dispense with the case, and as we've reported previously, "With an Alford plea, a criminal defendant does not admit to the unlawful act and asserts his innocence." In other words, Wells did not plead guilty to child endangerment, and the record shows he did not harm anyone -- child or otherwise.

So, how could Kelleher and Harpool get the law on this so wrong? Based on local news reports, the federal court in Springfield, MO, hears a high volume of child-porn cases. It's possible Harpool is weary of hearing them and come to believe everyone facing such charges is guilty. Harpool even hinted at such, on p. 32 of the transcript:

THE COURT: I will tell you that the images I see in child pornography cases are shocking and sickening to me when I look at them, and I look at them in multiple cases. I am concerned about what the reaction of 12 lay people off the street is going to be when they see these images as described in the plea agreement. But if you think they can look past that and hear your defense, I'm going to let you withdraw your guilty plea.

As for your humble blogger, Harpool had this to say on p. 33:

THE COURT: Remember, all these family who think they're helping you aren't lawyers, nor is Mr. Shuler. I have nothing against him. We got along fine in junior high, but that was about 45 years ago. But you're the one doing the time, do you understand that?

The judge seems to have favorable memories of me, and I had similar memories of him. But this hearing transcript makes me think more than three decades in the legal profession have carved out a chunk of his soul, made him forget what it means to be a fair and impartial judge.

Without question, Harpool should be disqualified from hearing the Wells case.



Wednesday, January 22, 2020

"The Nonsense Factory": Author Bruce Gibney provides an insightful (even entertaining) tour through America's broken, bloated, and jumbled justice system



The American justice system is so broken that it churns out mass quantities of "nonsense," according to a new book that shows how and why courts poorly serve the public. One reason for such dysfunction, and massive waste of taxpayer resources, is that courts are controlled by amateur judges who don't know what they are doing in many cases, writes lawyer-entrepreneur Bruce Cannon Gibney in The Nonsense Factory: The Making and Breaking of the American Legal System (Hachette Books, 2019).

Gibney started as an attorney, working mostly in securities litigation and financial regulation. He became an author and venture capitalist, serving as an early investor in PayPal and joining with colleagues to help fund Spotify, Lyft, AirBnB, and DeepMind, among other tech firms. His assessment of the justice system is not pretty:

In the common view, law is a system of intelligible rules, made sensibly and applied evenly. That's a reasonable definition of what law should be, but not an accurate description of what law has become. Over the past century, whole fields of law have grown so bloated and confused that not even a subset of their rules can be administered consistently. To cope, law modifies or ignores its own rules on the fly, and the entire legal system is backsliding toward a regime in which the arbitrary supplants the absolute. Eventually, what calls itself law will cease to deserve the name.

A healthy court system, Gibney writes, should revolve around order, justice, and legitimacy, but those quaint notions are in ever shorter supply:

A minority of Americans already suffer these legal deficits severely. But general legal decay consigns all of us to injustices large and small.  Whether our antagonists are police, building inspectors, litigious opportunists, or Social Security benefits and administrators, our legal difficulties are real and they will get worse. These are the inevitable consequences of a system of rules self-liquidating into a chaos of exceptions.

Even some of the system's best-known attributes are on the verge of extinction:

Consider the right to trial by jury, provided by the Constitution and American law's crown jewel. It is The Rule. Yet American trial courts conduct very few trials -- a withering that became quite pronounced in the 1980s. In criminal matters, virtually all charges are now resolved by plea bargains, each fashioned according to the unaccountable whims of a prosecutor selecting from a vast menu of crimes. These bargains are . . . made ad hoc, and they leach the jury trial rule of its value. Nevertheless, the Supreme Court condones plea bargains as useful expediencies . . . .Notice that the Court does not make a Constitutional argument; it offers a bullet point on the management consultant's slide deck, sandwiched between "outsourcing" and "downsizing." The Court works a betrayal, and claims that it's for our own good.

The thought of having to pay for a lawyer out of pocket should terrify most Americans, Gibney writes:

Most actions, whether civil or criminal, are resolved out of court determined by the variables of money, law, and evidence, in descending order of importance. Quite simply, law is beyond the financial reach of most Americans. Even at $200 per hour, the least any decent city lawyer can afford to charge ($300 to $1,000 is the usual range), the poorest 20 percent of Americans could afford zero days of legal representation and the next 20 percent about a week. Only the richest 20 percent -- really, just the top 5 to 10 percent -- can afford to litigate comfortably. Pure financial necessity forces almost all cases to settle, and quickly.

If you are lucky enough to afford a lawyer and get into court, you might wind up before a judge whose qualifications are thin, at best:

Although judging is a specialty like neurosurgery and plasma physics, America assumes judging can be picked up on the fly. . . . Even lawyers with outstanding legal educations and rated "qualified" may nevertheless find themselves woefully unprepared for their first years on the bench, because there's no job that quite prepares any private lawyer to be a judge and no rigorous training program to compensate for that reality. As former federal appeals judge Richard Posner observed, the transition to the bench is abrupt, and while judicial education has improved since Posner joined the bench in 1981, it remains weak.

When it comes to judicial preparation, America lags way behind many of its European counterparts:

Much of the world would view the American system of judicial (non-) education as bizarre to the point of negligence. Non-Anglophone countries groom future judges as they would candidates for any other profession. In France, the conventional route to judgeship is to obtain bachelor's and master's degrees (customarily in legally inclined fields), pass a rigorous screening test, and undertake a further thirty-one months at the Ecole Nationale de la Magistrature.

Meanwhile, U.S. courts, at almost all levels, are drenched in politics:
 
Of all the interest groups, none has been as influential as the Federalist Society ("Fed Soc," in the community). Fed Soc's defining mission is to tilt the judiciary rightward, and it has been enormously influential; arguably, Fed Soc is the right's greatest political success since Nixon's Southern strategy. . . . Fed Soc has been so successful that, since the 1980s, right-leaning administrations have adopted the group's judicial lists wholesale. . . . 
Bruce Cannon Gibney
Once on the bench, politics continues to play a role (sometimes masquerading as "judicial philosophy"), and this is particularly noticeable among judges auditioning for promotion to higher courts. Auditioners to the Supreme Court, regardless of party, produce more "tough on crime" outcomes relative to other judges with comparable outlooks and profiles. . . . Even judges who can be promoted no further sometimes allow politics to influence their reasoning. Antonin Scalia's vaunted originalism/textualism famously warbled in and out of tune, depending on the case.  

A big problem for the U.S. system: It has too many law schools -- Gibney calls them "The Diploma Mills of Last Resort" -- that spew forth way too many law graduates:

At the time of this writing, the American Bar Association listed 203 accredited schools and 30-odd unaccredited schools. The unaccredited institutions are law's equivalent of Long Island wineries: dubious. But so are  a lot of accredited schools. Over the past decade, students caught on, and previously robust legal enrollment has shrunk by a quarter. Nevertheless, law schools still welcomed 37,400 students in 2017, about 9 to 14 percent of whom will drop out, producing a graduating class of roughly 33,000 students in 2020. This is still too many. 

No analysis of the American justice system would be complete without a critical look at law enforcement. Gibney refers to many modern police forces as "miniature armies":

Militarized raids have become a regular part of American policing, with predictably tragic consequences. Special Weapons and Tactics teams were originally designed for extraordinary situations like hostage-taking, but they have become disturbingly ordinary. . . . The police have become omnipresent, miniature armies kitted out with bomb suits, battering rams, night-vision goggles, armored personnel carriers, helicopters, drones, assault rifles, flashbang grenades, .50 caliber machine guns and other military paraphernalia. Police receive much of their stockpile from the Defense Department's 1033, partially subsidized by the Department of Homeland Security.

Who is put in charge of this high-grade weaponry? The truth behind that question is unsettling, for sure:

After educational screening, departments test for aptitude and temperament. The aptitude tests don't seem particularly challenging. . . . The true hurdle is the background check, as many aspiring cops have criminal pasts. To satisfy hiring needs, 80 percent of larger police departments are willing to overlook minor misdemeanors; many departments will forgive DUIs, soft drug use, credit problems, and other indicators of poor judgment. The actual prevalence of waivers depends on the department, but it's odd that a society busily drug-testing Taco Bell employees overlooks criminality in its police.

What to do with America's tangled mess of a justice system? Gibney presents some intriguing ideas. Near the top of his list is a reduction in U.S. law schools:

The fifty least selective law schools are not schools at all and should be closed. The middling tier should consider alternative curricula, including something like a JD-lite. Many legal matters are routine and low-stakes and, just as medicine has authorized the nurse practitioner to handle many tasks, law can do the same --as happens in countries like France.

What about other possibilities for reform?

Public law should make itself more accessible and more accountable to those it serves. Law is obligated to explain itself to the people, not vice versa. Statutes should be written clearly, court opinions at the appellate level digested by public services, and agency regulations written and posted in formats accessible to those affected. . . . . When law seeks to hold people to account, citizens should be given a reasonable sense of what the law is, what purpose it serves, and why it's being enforced. . . . Law has an internal morality, and it's time for judges to take that morality seriously and earn the title of "Your Honor."

Gibney also advocates for giving regular folks, non lawyers, a place in the legal system:

Informal citizens' review boards across all levels of the law could help, a sort of advisory jury of legal peers that reads proposed laws and opines on their comprehensibility. (Note: I would prefer that such boards focus on the actions of judges, to make sure their rulings are sound within the facts and law, with the authority to punish judges who essentially act like berobed rogues.) . . . And finally, the culture of expedience, of sidestepping good rules . . . must go. In any other context, it would be dismissible tautology to insist that "rules are rules," but law's endless exceptions  make it clear that rules aren't rules; they have become mere stage-effects.

It's difficult for the public to take laws seriously when law doesn't take the public seriously. And when law fails to afford citizens respect, or treats them as cattle to be herded one way or another without consultation, justice becomes a mirage.   

Gibney is a talented wordsmith, and this makes him an engaging tour guide through our thorny thicket of a justice system -- a task that might produce glazed eyes in the hands of a less gifted writer. Gibney should be admired for his willingness to take on challenging, even touchy, subjects. The Nonsense Factory is his second book; the first is titled A Generation of Sociopaths: How the Baby Boomers Betrayed America (Hatchette Books, 2017)

As a Baby Boomer, who hates being part of the Baby Boom, I can't wait to get my hands on that one. 

Tuesday, January 21, 2020

Jessica Medeiros Garrison provides an Alabama angle to Clearview AI, a facial-recognition company with the potential to radically alter privacy rights in the U.S.


Jessica Medeiros Garrison and Luther Strange
 
Birmingham-based political operative Jessica Medeiros Garrison, one-time campaign manager and mistress to former Alabama attorney general Luther Strange, appears as the chief customer contact for a shadowy facial-recognition company that has the potential to radically alter any notion of privacy in the United States, according to a report at The New York Times.

The Times article, written by Kashmir Hill and published on Friday (1/18/20), is titled "The Secretive Company That Might End Privacy as We Know It: A little-known start-up helps law enforcement match photos of unknown people to their online images — and 'might lead to a dystopian future'."

That unsettling headline points to Clearview AI, a tiny company founded by an Australian technophile named Hoan Ton-That. Reports The Times:

Until recently, Hoan Ton-That’s greatest hits included an obscure iPhone game and an app that let people put Donald Trump’s distinctive yellow hair on their own photos.

Then Mr. Ton-That — an Australian techie and onetime model — did something momentous: He invented a tool that could end your ability to walk down the street anonymously, and provided it to hundreds of law enforcement agencies, ranging from local cops in Florida to the F.B.I. and the Department of Homeland Security.

His tiny company, Clearview AI, devised a groundbreaking facial recognition app. You take a picture of a person, upload it and get to see public photos of that person, along with links to where those photos appeared. The system — whose backbone is a database of more than three billion images that Clearview claims to have scraped from Facebook, YouTube, Venmo and millions of other websites — goes far beyond anything ever constructed by the United States government or Silicon Valley giants.

Federal and state law enforcement officers said that while they had only limited knowledge of how Clearview works and who is behind it, they had used its app to help solve shoplifting, identity theft, credit card fraud, murder and child sexual exploitation cases.

Helping to solve crimes seems like a noble use of technology, but what about the ramifications of Clearview? Why is the company so reluctant to provide information about who it is, what it does, and who it works with?

Until now, technology that readily identifies everyone based on his or her face has been taboo because of its radical erosion of privacy. Tech companies capable of releasing such a tool have refrained from doing so; in 2011, Google’s chairman at the time said it was the one technology the company had held back because it could be used “in a very bad way.” Some large cities, including San Francisco, have barred police from using facial recognition technology.

But without public scrutiny, more than 600 law enforcement agencies have started using Clearview in the past year, according to the company, which declined to provide a list. The computer code underlying its app, analyzed by The New York Times, includes programming language to pair it with augmented-reality glasses; users would potentially be able to identify every person they saw. The tool could identify activists at a protest or an attractive stranger on the subway, revealing not just their names but where they lived, what they did and whom they knew.

And it’s not just law enforcement: Clearview has also licensed the app to at least a handful of companies for security purposes.

“The weaponization possibilities of this are endless,” said Eric Goldman, co-director of the High Tech Law Institute at Santa Clara University. “Imagine a rogue law enforcement officer who wants to stalk potential romantic partners, or a foreign government using this to dig up secrets about people to blackmail them or throw them in jail.”

Clearview has shrouded itself in secrecy, avoiding debate about its boundary-pushing technology. When I began looking into the company in November, its website was a bare page showing a nonexistent Manhattan address as its place of business. The company’s one employee listed on LinkedIn, a sales manager named “John Good,” turned out to be Mr. Ton-That, using a fake name. For a month, people affiliated with the company would not return my emails or phone calls.

Where do Alabama and Jessica Medeiros Garrison enter the picture? Consider this paragraph from The Times' report:

The company’s main contact for customers was Jessica Medeiros Garrison, who managed Luther Strange’s Republican campaign for Alabama attorney general. Brandon Fricke, an N.F.L. agent engaged to the Fox Nation host Tomi Lahren, said in a financial disclosure report during a congressional campaign in California that he was a “growth consultant” for the company. (Clearview said that it was a brief, unpaid role, and that the company had enlisted Democrats to help market its product as well.)

How did Garrison become involved? The answer remains unclear, but the following information from The Times report might help explain it:

Clearview also hired Paul D. Clement, a United States solicitor general under President George W. Bush, to assuage concerns about the app’s legality.

In an August memo that Clearview provided to potential customers, including the Atlanta Police Department and the Pinellas County Sheriff’s Office in Florida, Mr. Clement said law enforcement agencies “do not violate the federal Constitution or relevant existing state biometric and privacy laws when using Clearview for its intended purpose.”

Mr. Clement, now a partner at Kirkland and Ellis, wrote that the authorities don’t have to tell defendants that they were identified via Clearview, as long as it isn’t the sole basis for getting a warrant to arrest them. Mr. Clement did not respond to multiple requests for comment.

Where does this winding path lead? Well, Kirkland Ellis is the D.C.-based law firm that produced Trump attorney general William Barr. It also produced Edmund LaCour, Alabama's current solicitor general and a former law clerk to Birmingham-based U.S. Circuit Judge Bill Pryor. Jessica Medeiros Garrison once worked for Bill Pryor. For good measure Kirkland Ellis is the former home to Jennifer Bandy-Dickey, who has appeared on our blog before, during our reporting on Bill Pryor's ties to 1990s gay pornography. From an April 2019 post:

Speaking of the Kirkland Ellis "legal mafia," one of its members played a role in our Legal Schnauzer story. That came when Judge Bill Pryor issued a press statement about our reports on his gay-porn activities in the 1990s at badpuppy.com. Pryor, of course, did not address the press himself, and he certainly did not take questions. He turned the press-agent role over to one of his former law clerks, Jennifer Bandy -- and she just happened to work for . . . Kirkland Ellis. From our report about Ms. Bandy's statement:

How has Pryor responded to all of this? In a dumbfoundingly ignorant way, by apparently aligning himself with three Alabama lawyers who have dubious records on mattes of ethics. Who forms this unholy alliance? We are talking about Birmingham-based lawyer Bill Baxley, Alabama Attorney General Luther Strange, and Strange's mistress/former campaign manager Jessica Medeiros Garrison.

What signs point to Pryor joining hands with Baxley, Strange, and Garrison? Well, let's consider Pryor's response late last week when D.C.-based lawyer/journalist Andrew Kreig contacted the judge for comment about the gay porn story. Our understanding is that Kreig plans to use Pryor's response in an upcoming article at the Justice-Integrity Project.

Did Pryor grant Kreig an interview? No, he brushed off that possibility, just as he did when I submitted multiple interview requests before writing the post that broke the gay porn story. Did Pryor respond directly to Kreig with a comment. No, the judge assigned that task to Jennifer Bandy, one of his former law clerks who now works for the Washington, D.C., law firm of Kirkland Ellis. . . .
According to press reports, Bandy went on to become a member of the "beachhead" transition team for the Trump administration. Her name now apparently is Jennifer Bandy-Dickey, and she took a "counsel" position with the Department of Justice on May 28, 2017.

All of this raises questions about Bill Pryor: If he is connected to a company that promotes the interests of law enforcement, how can Pryor serve as an impartial arbiter cases that involve cops before the U.S. 11th Circuit (Alabama, Georgia, Florida). For that matter, if Pryor is promoting the career of Jessica Medeiros Garrison, how can he or his colleagues serve as impartial arbiters on a case where she is a party? (Full disclosure: My wife and I have filed two civil actions -- "The House Case" and "The Jail Case" -- with both starting in the Northern District of Alabama and going to the 11th Circuit.)

Those hardly are the only questions related to Clearview AI. Consider this from The Times:

The company said, its tool finds matches up to 75 percent of the time. But it is unclear how often the tool delivers false matches, because it has not been tested by an independent party such as the National Institute of Standards and Technology, a federal agency that rates the performance of facial recognition algorithms.

“We have no data to suggest this tool is accurate,” said Clare Garvie, a researcher at Georgetown University’s Center on Privacy and Technology, who has studied the government’s use of facial recognition. “The larger the database, the larger the risk of misidentification because of the doppelgänger effect. They’re talking about a massive database of random people they’ve found on the internet.”