Drone Manufacturers Are Amping Up Surveillance Capabilities In Response To Demand From Government Agencies

from the watched-over-by-machines-of-everlasting-antagonism dept

The CBP loves its drones. It can't say why. I mean, it may lend them out to whoever comes asking for one, but there's very little data linking hundreds of drone flights to better border security. Even the DHS called the CBP's drone program an insecure mess -- one made worse by the CBP's lenient lending policies, which allowed its drones to stray far from the borders to provide dubious assistance to local law enforcement agencies.

The CBP's thirst for drones -- with or without border security gains -- is unslakeable. Thomas Brewster reports for Forbes that the agency is very much still in the drone business. It may no longer be using Defense Department surplus to fail at doing its job, but it's still willing to spend taxpayer money to achieve negligible gains in border security. And if the new capabilities present new constitutional issues, oh well.

This year, America’s border police will test automated drones from Skydio, the Redwood City, Calif.-based startup that on Monday announced it had raised an additional $170 million in venture funding at a valuation of $1 billion. That brings the total raised for Skydio to $340 million. Investors include blue-chip VC shops like Andreessen Horowitz, AI chipmaker Nvidia and even Kevin Durant, the NBA star.

The CBP is not alone. It has used government drones and private party drones to engage in border surveillance. But as prices continue to fall and the gap between government and private capabilities continues to narrow, the most bang for taxpayer buck may also be the most banging of constitutional rights only minimally observed near our nation's borders.

For the inland police, it's the same thing. Buy first and let the courts sort it out. Capabilities move drone surveillance far past the limitations of mounted cameras and law enforcement officer eyes and ears. Pervasive, continuous surveillance is only a few dollars away. Sometimes, it's even free (as in taxpayer-funded lunches, not free as in freedom.)

By Forbes’ calculation, based on documents obtained through Freedom of Information Act (FOIA) requests and Skydio’s public announcements, more than 20 police agencies across the U.S. now have Skydios as part of their drone fleets, including major cities like Austin and Boston, though many got one for free as part of a company project to help out during the pandemic.

The tech sector gains. So do its government patrons. Caesar has been rendered unto, but unto citizens, what? Well, the opportunity to be surveilled in greater detail for pennies on the dollar.

[Skydio] claims to be shipping the most advanced AI-powered drone ever built: a quadcopter that costs as little as $1,000, which can latch on to targets and follow them, dodging all sorts of obstacles and capturing everything on high-quality video. Skydio claims that its software can even predict a target’s next move, be that target a pedestrian or a car.

Seems like a problem. Surely we can count on the multiple layers of oversight to ensure we're not just characters in surveillance fanfic composed by people who never met a dystopia they haven't liked.

Nope. Skydio is run by all-American boys who see themselves as updated Hardy Boys, providing tools to law enforcement to track down The Smugglers of Pirates Cove or whatever. The heads of Skydio rolled through MIT and Google before settling down to sell cheap surveillance gear to law enforcement agencies. And now they're lobbying the FAA to obtain clearance for surveillance drones to operate in air traffic space -- something the FAA tends to deny to hobbyists and researchers due to the possibility of interfering with airport operations.

Skydio has some big competitors in the market. DJI has taken the lead in supplying all and sundry with drones. But the company has taken a hit due to its link to Chinese manufacturing. Skydio is all about its USA location. It may use some Chinese components, but it assembles its products domestically, making it a safer bet for government agencies that have to comply with the latest wind-guided legislation thrust upon it by legislators who love scoring political points more than they love serving their constituents.

It's not just the CBP and a handful of local cops using Skydio's drones -- ones capable of keeping a very close eye on the movements of multiple people at one time. The DEA has also ordered some high-end Skydio drones to help it with whatever it imagines to be its primary purpose at this point. (The Drug War has been lost. We can only steal from the wallets of those still on the battlefield.)

DJI is hamstrung by anti-Chinese activity. But it will be back. Skydio -- which sells high-end cameras mounted to high-end drones -- doesn't face these obstacles. The winner of this arms race really doesn't matter. Drones will ultimately take over the job done by aircraft with higher buy-in costs and higher maintenance requirements.

And in the CBP's case, the eventual winners of this tech race will circle overland, unrestricted by constitutional niceties. The CBP is mostly out of the reach of courts and case law. Anything within 100 miles of a border (or port) [or international airport] is considered fair game for intrusive searches and surveillance. We have people in power who can change this. But it seems unlikely they will. A vague threat is all that's needed to expand government power. Reigning it back in requires thousands of dollars and voluminous legal arguments. The status quo only requires a shrug.

Filed Under: 4th amendment, cbp, drones, government, privacy, surveillance

The Government Has Been Binging On Classification. Senators Say It's Time To Start Purging.

from the affected-agencies:-hey-if-it's-not-working-don't-fix-it dept

Senators Ron Wyden and Jerry Moran have published an op-ed at Just Security detailing the government's overuse of classification (and distaste for declassification) -- a practice that uses our tax dollars to keep secrets from us. Overclassification is a problem. It has been a problem for decades, but it keeps getting worse. Multiple government agencies spend billions every year marking things "classified" and then forgetting the documents they've classified still exist.

Under the current system, costly resources are used to hold on to records that no longer require classification resulting in an unnecessary waste of taxpayer dollars. The cost of the government’s classification system now exceeds $18 billion annually. Additionally, when records are kept classified for reasons that have nothing to do with national security, historians, journalists, public watchdogs and all Americans are denied their right to research historical events or examine the actions of their government to hold it accountable. As the line between classification for national security and pointless secrecy is blurred, public trust in government erodes.

What should be classified? That's anyone's guess. Most federal agencies err on the side of caution/obfuscation. Back when he was still president, Barack Obama tried to explain this in layman's terms. Unfortunately, his explanation -- handed out after some selective prosecution by the DOJ -- was not the paragon of clarity... although it did inform taxpaying laymen the government alone would decide what the public gets to see.

“There’s classified, and then there’s classified,” the president said.

Both are still classified. In some cases, the sharing of classified information is forgiven. In other cases, it's a prosecution. But the underlying fact remains: the government classifies too much stuff too often. The op-ed notes the Information Security Oversight Office has warned of a "deluge" of classified info in the federal document pipeline. What's already a catastrophe will become cataclysmic as more documents are created more often and classified more frequently.

If it costs us $18 billion a year just to classify documents, imagine the cost of declassifying info once it reaches its expiration date. At this point, the federal government is still saving us a few bucks by ignoring the stockpile of documents slated for declassification. This isn't making the public any more knowledgeable, but it is, in its own way, somewhat efficient.

The Senators say it's time for the declassification system to be overhauled and modernized. Sooner would be better, considering the "deluge" that's worrying the ISOO. They aren't just complaining about an ongoing -- and growing -- problem. The two Senators actually want to do something about it.

Records can be “tagged” so that when information is no longer suitable for classification, the records which include that information are easily identified for release. AI and machine learning can be used to find buried records appropriate for declassification. And when it is time to declassify records that include information from multiple government agencies, those agencies can be connected electronically rather than having to rely on couriers physically walking paper copies around Washington.

But will Congress or whatever president is in office like this solution? The government likes its secrets. So do its many employees, especially the powerful ones who don't like embarrassing or horrifying information coming to light, even if it's years after the fact. But they have an obligation to the public to be more open about the things they're doing -- and have done -- with the implicit blessing of taxpayers via their tax dollars.

Thanks to op-eds like these, we're aware we're paying $18 billion a year to have information hidden from us, sometimes for decades. And we know the government's obligations to the public are being ignored by government agencies more willing to throw money at classifying documents than digging through their archives for stuff that can be released. This needs to change. The fix might not be easy or cheap, but ignoring the problem isn't going to make it go away.

Filed Under: classification, declassification, government, jerry moran, overclassification, ron wyden, secrecy, secrets, transparency

Federal Agencies Are Still Abusing Their Favorite, Super-Vague FOIA Exemption Thousands Of Times A Year

from the (b)ecause-we-can-can-can dept

The Freedom of Information Act was supposed to result in, you know, the freedom of information. Obviously, not everything the government produces paperwork-wise can end up in the public's hands, but far more should be turned over to the public than has been.

Using a proprietary blend of stonewalling and excessive fee demands, countless government agencies have managed to keep public documents away from the public. It takes a lawyer to win FOIA lawsuits, which may be why corporations are getting their hands on far more documents than American citizens.

Exemption b(5) is, by far, the federal government's favorite. It's vague enough it can cover just about anything.

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

Sprinkle a little intra-agency imagination over a pile of paperwork and responsive documents suddenly become unresponsive and are removed from life support as soon as feasibly possible. FOIA lawsuits are the metaphorical families in the waiting room, begging Dr. Info to reconsider pulling the plug.

Exemption b(5) has been used to withhold everything from State Department's "what a load of crap" Post-It note (attached to a Congressional proposal to designate Pakistan as a sponsor of international terrorism) to the CIA's files on the 1961 Bay of Pigs invasion.

The abuse of this exemption may have peaked in 2013, when federal agencies used it more than 81,000 times. But things haven't necessarily improved in the last seven years. In 2018, (b)5 was still cited more than 60,000 times. The (otherwise considerable) drop in deployment may be due to 2016 legislation, as the Project on Government Oversight explains:

One possible factor in the reduced use of Exemption 5 since its peak in 2013 may be reforms instituted by the FOIA Improvement Act of 2016. One reform barred the use of the exemption for records more than 25 years old…

That would remove the CIA's strategic blockade of its Bay of Pigs docs. But there's plenty of info far less dated that still receives the (b)5 "get out of transparency free" card. Multiple investigations of ICE detention centers highlighted the inconsistent application of the feds' go-to exemption. Documents handed to NPR [on the left in the image below] by ICE contained plenty of information. The docs handed to POGO, however, contained only redactions and the b(5) excuse.

Somehow the same information was both able to be released and able to be withheld under exemption b(5). As POGO points out, the b(5) boilerplate makes zero sense when applied to the text released to NPR. This exemption isn't supposed to deny the public access to common sense conclusions.

It’s difficult to understand how these statements—that inadequate mental health care leadership leads to poor care, and that solitary confinement is the “most important issue” at this particular detention center—can be properly withheld under Exemption 5. There is no attorney-client advice, and no deliberation on a pending policy decision.

If this is repairable, it will take an act of Congress, just like it did the last time. This exemption is like qualified immunity for cops: why not toss it up against the wall and see if it sticks? Since it usually takes litigation to reverse agency non-judgment calls, the house -- which spends other people's money to stick it to the people -- almost always wins.

Filed Under: b(5), foia, government, inter-agency communications, secrecy, transparency

Employee Watching Porn At Work Infected US Government Agency's Network

from the inside-[hand]job dept

Watching porn at work is a federal government tradition. Federal employees from agencies like the EPA, SEC, and FCC have been caught watching porn enough times, a Congressional rep actually thought a new law was needed to stop it. The bill was redundant. All federal agencies forbid the use of work computers to watch porn but that hasn't stopped these stories from surfacing with disturbing frequency.

At a certain point, porn-watching at work endangers a person's job. At other points before that, it endangers the employer itself. Zack Whittaker of TechCrunch dug up a Dept. of the Interior Inspector General's report [PDF] indicating a porn-watching employee inadvertently tried to the take the agency down from the inside.

A U.S. government network was infected with malware thanks to one employee’s “extensive history” of watching porn on his work computer, investigators have found.

The audit, carried out by the U.S. Department of the Interior’s inspector general, found that a U.S. Geological Survey (USGS) network at the EROS Center, a satellite imaging facility in South Dakota, was infected after an unnamed employee visited thousands of porn pages that contained malware, which downloaded to his laptop and “exploited the USGS’ network.” Investigators found that many of the porn images were “subsequently saved to an unauthorized USB device and personal Android cell phone,” which was connected to the employee’s government-issued computer.

The official version -- with redactions -- provides a few more details. Loooooots of porn-watching going on here:

We found that [redacted] knowingly used U.S. Government computer systems to access unauthorized internet web pages. We also found that those unauthorized pages hosted malware. The malware was downloaded to [redacted's] Government laptop, which then exploited the USGS ' network. Our digital forensic examination revealed that- had an extensive history of visiting adult pornography websites. Many of the 9,000 web pages [redacted] visited routed through websites that originated in Russia and contained malware. Our analysis confirmed that many of the pornographic images were subsequently saved to an unauthorized USB device and personal Android cell phone connected to [redacted's] Government-issued computer. We found that [redacted's] personal cell phone was also infected with malware.

Like everywhere else this has happened, the DOI expressly forbids the use of work computers for porn viewing. It also makes employees sign a form stating that they understand what's forbidden and what can happen to them if they violate these policies. It's apparently not much of a deterrent. The report doesn't say what happened to [redacted] -- only that this employee admitted they were familiar with the policies they violated.

DOI also forbids connecting personal devices to work computers. That policy isn't being enforced either, apparently. If the DOI isn't actively monitoring work computers for these two violations, it really can't lay all the blame for the malware infection on its unofficial porn hub. Proactive measures are far more useful than post-infection policy patches.

Filed Under: department of the interior, government, malware, porn

FCC Falsely Declares Community Broadband An 'Ominous' Attack On Free Speech

from the bullshit-factory dept

Absent any hard data to support their claims, you may have noted that the Trump FCC often just makes up some shit.

Like that time FCC boss Ajit Pai tried to claim that net neutrality somehow aids dictators. Or that time Pai's office just made up a DDOS attack to try and downplay massive public backlash to his historically unpopular policies. There's often no real-world data that can defend blindly kissing the rings of widely-loathed telecom monopolies, so bullshit tends to be the weapon of choice when Pai's FCC embraces whatever handout to Comcast and friends is on the menu this week.

The latest case in point: during a speech at the ISP-backed and scientifically-sounding Media Institute, FCC Commissioner Mike O’Rielly took a moment to broadly declare that community owned and operated broadband providers are an "ominous" threat to free speech:

"I would be remiss if my address omitted a discussion of a lesser-known, but particularly ominous, threat to the First Amendment in the age of the Internet: state-owned and operated broadband networks."

We've long noted how community broadband networks are often an organic response to the expensive, slow, or just-plain unavailable service that's the direct product of a broken telecom market and regulatory capture. While you'll occasionally see some deployment duds if the business models aren't well crafted, studies have shown such networks (there's 750 and counting now in the States) offer cheaper, faster service than many incumbents. This direct threat to incumbent revenues is a major reason why ISP lobbyists have passed protectionist laws in more than 21 states trying to block your town's ability to even consider the option.

If you thought O'Rielly would provide hard evidence of these networks' "ominous" affront to free speech, you'd be mistaken. The closest O'Rielly gets to evidence is a 2015 white paper crafted for an ISP-funded think tank claiming that because these ISPs' TOS include routine language restricting harassment and hate speech (language every private ISP also includes in their TOS and AUP), community-run ISPs' are more likely to censor user speech:

"The closest O’Rielly gets to supporting evidence appears to be a 2015 white paper written by Professor Enrique Armijo for the ISP-funded Free State Foundation. That paper similarly alleges that standard telecom sector language intended to police “threatening, abusive or hateful” language somehow implies community-run ISPs are more likely to curtail user speech."

Of course the implication is that government-run networks must be bad because hey, it's the government. Forgotten in this false narrative is the fact that on the local level, the government is obviously you and I, and these networks are a direct, democratic response to decades of frustration at the obvious failures of the telecom market. And if you talk to folks that actually have some expertise on this subject (like I did over at Motherboard), they'll tell you that because these ISPs actually have a vested interest in the communities they serve, they're far more responsive to user complaints:

"Municipal broadband experts say the argument has no basis in fact.

"There is no history of municipal networks censoring anyone's speech,” Christopher Mitchell, a community broadband expert and Director of the Institute for Local Reliance, told Motherboard.

“In our experience, the Terms of Service from municipal ISPs have been similar to or better than those of for-profit ISPs in terms of benefiting subscribers,” he added. “And when concerns have been raised about related issues...the municipal ISPs have listened to public sentiments far more than any large cable or telephone company has."

O'Rielly also fails to mention that incumbent ISPs like Comcast routinely argue that absolutely everything the public demands of it (from expanding broadband to adhering to net neutrality) violate its First Amendment rights (an argument new Supreme Court Justice Brett Kavanaugh has already supported). Whereas municipally-run ISPs likely won't be allowed to tap dance around First Amendment lawsuits as government-linked entities mandated to avoid speech regulation.

But the biggest irony here is that one of the ISPs targeted by O'Rielly for non-existent free speech violations is EPB broadband in Chattanooga, which was just ranked by Consumer Reports as one of the best ISPs in the nation in terms of value, speed, and service quality. Comcast tried to unsuccessfully sue EPB out of existence. And as long as we're getting vexed about your rights, both AT&T and Comcast also lobbied legislators to pass a law in Tennessee restricting voter-approved broadband networks like these from expanding, even if voters approve it at the ballot box.

Ultimately, Chattanooga's service forced these ISPs to do the one thing they had been hoping to avoid: compete on both service speed and price. That's not to say local-government owned broadband should be the only solution embraced, but it's obviously one of several ways you can actually prod lumbering, pampered mono/duopolies to actually give a damn.

And of course that's the real problem in O'Rielly's mind: that locals would dare impede on Comcast's god-given right to buy itself a geographical monopoly over an essential service, nickel-and-diming consumers until they grew so frustrated they're forced to get into the broadband business themselves.

Of course ISPs could prevent this by simply offering better, faster, and cheaper service. But it's far easier and cheaper to try and buy laws restricting consumer rights, and to have your favorite public official mindlessly demonize something that is, at the end of the day, a legitimate, organic public response to a broadband competition and availability problem ISPs like AT&T, Verizon, and Comcast would prefer regulators ignore.

Filed Under: ajit pai, competition, first amendment, free speech, government, mike o'rielly, muni broadband, municipal broadband

Tech Employees Revolting Over Government Contracts Reminds Us That Government Needs Tech More than Tech Needs Government

from the don't-be-complicit dept

While we were still in the middle of the heat storm over Donald Trump's decision to enact a zero tolerance border policy that resulted in children being separated from their parents at the border in far greater numbers than previous administrations, there was some interesting background coverage about the employees and customers of big tech companies like Microsoft receiving backlash for contracting with ICE. While much of that backlash came from outside those companies, there was plenty coming from within as well. Microsoft in particular saw throngs of employees outraged that the technology they had helped to develop was now being turned on the innocent children of migrants and asylum-seekers.

In an open letter to Microsoft CEO Satya Nadella sent today, employees demanded that the company cancel its $19.4 million contract with ICE and instate a policy against working with clients who violate international human rights law. The text of the employee letter was first reported by the New York Times and confirmed by Gizmodo.

“We believe that Microsoft must take an ethical stand, and put children and families above profits,” the letter, signed by Microsoft employees, states. “We request that Microsoft cancel its contracts with ICE, and with other clients who directly enable ICE. As the people who build the technologies that Microsoft profits from, we refuse to be complicit. We are part of a growing movement, comprised of many across the industry who recognize the grave responsibility that those creating powerful technology have to ensure what they build is used for good, and not for harm.”

The 300 employees that signed the open letter represent a fraction of Microsoft's total work force, of course, but you can bet that those willing to sign such a letter also represent a fraction of the staff that share the letter's viewpoint. For its part, Microsoft condemned the Trump separation policy (how brave!), but the company has also refused thus far to acknowledge whether the ICE contract includes facial recognition software or AI. Such powerful tools would seem to be in the wheelhouse of what ICE would want as it carries out this ridiculous policy and Microsoft's refusal to say such tools are not included in its contract with the agency sure seem to suggest that they are.

Of course, Microsoft is niether the only tech company going through this, nor the company that has had the largest in employee backlash. That distinction likely goes to Google, where employees not only voiced displeasure over the company's contract to provide AI technology for the Pentagon's drone warfare program, but where many people actually up and quit.

The resigning employees’ frustrations range from particular ethical concerns over the use of artificial intelligence in drone warfare to broader worries about Google’s political decisions—and the erosion of user trust that could result from these actions. Many of them have written accounts of their decisions to leave the company, and their stories have been gathered and shared in an internal document, the contents of which multiple sources have described to Gizmodo.

Google has long had a culture that encouraged employee feedback on the products it produces, in some cases such influence resulting in real policy shifts. The employees protesting Google's drone contract say that has changed recently, with upper management far less transparent about what work the company is doing and far more deaf to the opinions of the employees that actually carry that work out. Combine it all with the growing distrust of Google in the public and it can appear that Google is trying to pantomime the caricature it is so often painted to be: faceless corporate greed-hounds without soul or morality.

And then there is Amazon, where the company's AI contracts with the government and its granting of access to data-mining company Palantir also resulted in anger from within.

Amazon employees objected to the Trump administration’s “zero-tolerance” policy at the U.S. border, which has resulted in thousands of children being separated from their parents.

“Along with much of the world we watched in horror recently as U.S. authorities tore children away from their parents,” the letter, distributed on a mailing list called ‘we-won’t-build-it,’ states. “In the face of this immoral U.S. policy, and the U.S.’s increasingly inhumane treatment of refugees and immigrants beyond this specific policy, we are deeply concerned that Amazon is implicated, providing infrastructure and services that enable ICE and DHS.”

Amazon employees want the company out of the policing and immigration business, and have gone further by calling on the company to boot customers working with ICE off of its platform. Leadership at Amazon, as elsewhere, has been mostly silent, but it's worth noting that Amazon shareholders actually kicked off the angry protests even before its employees did so. Whatever shakes out of this, this isn't something Jeff Bezos is going to be able to ignore.

This is a good time to remind people that companies, including big tech companies, are not comprised of the steel and glass that makes up their offices, but of the people that run and work within them. It's also worth acknowledging that the government has been after big tech firms for some time over the very tools that are likely in this contract. The lesson in this is that the government needs tech companies to carry out this disaster of a policy more than tech companies need the government for anything at all.

In other words, if these companies decided to put some moral courage on display en masse, it would have an effect. If they elect to do otherwise, their employees may force their hand. After all, the people signing these government contracts are certainly not the ones fulfilling them. That work is being done by the very employees revolting in protest. Given that there is pressure coming from not just within these companies to get out of the immigration business, but from outside as well, business interests may be lining up to give these companies an excuse to show a little backbone.

Filed Under: drones, employees, facial recognition, government, ice, protest, surveillance, tech
Companies: facebook, google, microsoft

Court Says Gov't Can't Claim Testimony That Undermines Its Criminal Case Is 'Privileged' When It's Used It In Other Cases

from the decks-undergo-destacking dept

The government rarely likes to play fair in court. This is why we have the (repeatedly-violated) Brady rule (which forces the production of exonerative evidence) and other precedential decisions to guide the government towards treating defendants the way the Constitution wants them to be treated, rather than the way the government would prefer to treat them.

In a case involving drug charges predicated on the distribution of synthetic marijuana, the government tried to keep testimony of a DEA chemist out of the hands of two charged defendants. The Fourth Circuit Court of Appeals says this isn't OK in a decision [PDF] that gets very weedy (why yes, pun intended) pretty quickly. That's the nature of synthetics -- and the nature of DEA determinations on controlled substances analogues.

The two proprietors of Zencense -- Charles Ritchie and Benjamin Galecki -- decided to manufacture and distribute their own blend of spice, using XLR-11 and UR-144 as active ingredients. The DEA raided Zencense's Las Vegas production facility, charging the pair with conspiracy to distribute controlled substance analogues.

The government alleges both synthetics are analogues of JWH-018, which is a controlled substance. Unfortunately, its own chemist disagrees with this assertion.

The DEA’s determination that a substance is an analogue is made by its Drug and Chemical Evaluation Section (DRE). During the process of determining if UR-144 is an analogue, the DRE solicited the views of Dr. Arthur Berrier, a Senior Research Chemist with the DEA’s Office of Forensic Sciences. Dr. Berrier concluded that UR-144 is not substantially similar in chemical structure to JWH-018, which would mean that it is not outlawed by the Analogue Act.

This means the distribution was only half as illegal as the government asserts. Or, possibly, not illegal at all, as this footnote portrays the government's assertions.

All of the expert testimony in this case agreed that XLR-11 and UR-144 are indistinguishable, and the Government treats them as the same substance.

If they're similar, and UR-144 isn't "substantially similar" to controlled substance JWH-018, the government doesn't have much of case left to prosecute. The charges hinge on the defendants' knowledge that the substances they manufactured were illegal analogues. But the DEA's chemist is on record stating that the substance Zencense emulated isn't actually a controlled substance.

Upon learning this, the defendants sought to obtain the chemist's testimony. The government refused their request.

The Government opposed the motion to compel, arguing that “some of the information sought [was] part of the deliberative process and is therefore privileged.” (J.A. 673). The district court denied the Defendants’ motion, “find[ing] that the denial of this Touhy request is appropriate as it would violate the Deliberative Process Privilege of the Drug Enforcement Agency to grant the subpoena”.

As the court points out, this is a ridiculous position for the government to take. While the government made a proper claim of privilege, there's nothing privileged about the DEA chemist's assertions.

Applying this framework, we readily conclude that the district court erred in concluding that the deliberative process privilege applies because, to the extent the privilege covers Dr. Berrier, the Government has waived any reliance on it. The Government has, by its own admission, provided Dr. Berrier’s opinion as Brady material in criminal cases involving XLR-11 and UR-144. See United States v. $177,844.68 in U.S. Currency, 2015 WL 4227948, *3 (D. Nev. 2015) (cataloguing cases). Moreover, Dr. Berrier recently testified in open court pursuant to a motion to compel in an analogue case involving the distribution of UR-144. See United States v. Broombaugh, 2017 WL 2734636 (D. Kan. 2017) (ordering the unsealing of Dr. Berrier’s testimony). Finally, Dr. Berrier’s opinion that UR-144 is not an analogue of JWH-018 is freely available online. See Federal Judicial Center, Litigating Synthetic Drug Cases, http://fln.fd.org/files/training/April%202015%20Handout.pdf, pp. 37-41 (last visited May 16, 2018). Therefore, Dr. Berrier’s opinion was accessible to everyone but the jurors in this case.

As the court notes, compelling testimony is limited to that which is "favorable" and "material" to the defense. Clearly, Dr. Berrier's testimony is favorable, as it shows the analogue produced by the defendants was not identical to a controlled substance. As for the materiality of the testimony, the appeals court will let the district court decide. It seems extremely material, as the government's case rests on its accusations of manufacture of a controlled substance analogue, which is at odds with its own expert's assertions.

Unfortunately, this isn't the end of the road for the defendants. Having already faced two trials (one mistrial, one resolved with an Allen charge delivered to a deadlocked jury), the convictions are vacated and the government now has a chance to potentially put the defendants on trial one more time. Even when the government apparently has it wrong, it's still given multiple chances to obtain a conviction.

Filed Under: dea, evidence, government, privilege