> For that reason, Zilly said that when the case goes to trial he’ll instruct the jury that it may presume the text messages were detrimental to the city’s legal position and that there’s significant circumstantial evidence they were deleted intentionally.
This is a common and fitting, though usually devastating, sanction for spoliation of evidence.
I'm not sure what to think about that. Do you see it as a sign of corruption of the FBI in general, or of one official being paid by Russia-affiliated actors to look the other way?
How does it tie in with what we know about the pressure from the FBI's New York field office to reopen the HRC email investigation right before the 2016 election? Comey was pretty sure that they were going to leak to the press if he didn't speak out himself. That does seem indicative of a rogue agency, but not exactly one that is pro-Democratic or pro-Clinton.
Aside from apparently excusing evidence destruction, it's not even accurate.
The FBI agent in question was was taking bribes from Oleg Deripaska, not "from Russia". Deripaska paid Trump's campaign manager, Paul Manafort, $10 million dollars and was receiving private briefings and confidential polling data from him. I really don't think it's a point in favor of "the FBI was out to get Trump" when one of the guys investigating the wrong-doing was being paid by one of the campaign's allies.
You're right! I'm sure readers of the parent poster appreciate the poster's completeness and their refusal to tell half truths as well as not omit details, so one can only conclude that its my manner of speaking which betrayed my class and thus the disapproval of the Oxford educated. The other one that gets me constantly is drapes instead of drapery.
this article is about a month old; the case recently settled [0] (at least, a preliminary notice of settlement was filed, it's not finalized yet, and none of the details are public)
it seems very likely that these sanctions convinced the city to settle instead of going to trial, or at a minimum forced them to settle for less favorable terms than they were hoping for.
To which side is it usually devastating? I would assume it would be for the destroyer of evidence, but maybe good lawyers can explain that away and seed sufficient doubt?
It's a terrible result for everyone, plaintiff, defendant and court.
Plaintiff because, culpable or not, those texts may be the best explanation for whatever happened. Losing them means they're framing their arguments a bit in the dark. It's easier to persuade if you land pretty close to an actual truth, and that's harder without complete discovery of executive communications.
For defendants, because the explanations are actually pretty plausible for a municipal IT operation, and it's dumb for big liability to ride on some stupid, irrelevant IT gaffe on some peripheral technology.
The court because there isn't a good answer and deciding big cases on questionable legal presumptions and fictions that themselves turn on irrelevant technical arcana-- these are the things people dislike about lawyers.
"the explanations are actually pretty plausible for a municipal IT operation"
Nah.
> The former mayor has offered a number of explanations for the missing messages, including that she dropped her phone in water, that she inadvertently changed the phone’s deletion settings and that “someone” set a new phone to delete messages older than 30 days, resulting in a rolling deletion of previous messages.
Individually, sure. Combined? That's an unlikely set of circumstances. This, too:
> The order notes that Best’s phone at some point was also set to delete text messages after a month, despite her obligation to keep them due to pending litigation. Zilly noted that the former chief apparently deleted more than 27,000 of those text messages by hand.
All this while subject to a litigation hold looks very bad. Letting them wiggle out of it would encourage such behavior in the future.
> The former mayor has offered a number of explanations for the missing messages, including that she dropped her phone in water, that she inadvertently changed the phone’s deletion settings and that “someone” set a new phone to delete messages older than 30 days, resulting in a rolling deletion of previous messages.
I would expect this from a middle schooler, not a mayor.
> she is a prosecutor and would know exactly what she was doing
yes, but it's even worse than that
> Jenny Durkan is a partner and co-founder of the Seattle office of global law firm Quinn Emanuel. Her practice focues on cybersecurity issues, white collar investigations and litigation. [0]
and
> Durkan served for two years on Attorney General Holder’s original Attorney General Advisory Committee, and has chaired his advisory Subcommittee on Cybercrime and Intellectual Property Enforcement since 2009. [1]
of all the federal prosecutors (US Attorneys) in the country, she chaired the cybercrime subcommittee. and her private practice focused on cybersecurity issues and white collar crime.
Further, she had the experience to understand exactly how damaging the text messages would be AND she would know that the fact she deleted them would be revealed in discovery and severely punished by most judges YET decided to delete them anyway. That's how damaging they must have been.
Also, the texts were sent to someone and both parties had to delete them for deleting to work - so... conspiracy too.
How do we allow these people in government? Why are such statements that are obvious bullshit to anyone who has ever used a smartphone not immediately ridiculed and barred from any position of power for their rest of their lives?
How are we supposed to trust our government when this is what they do?
Interesting note; the NYT profile linked in this article (https://www.nytimes.com/2020/08/07/us/defund-police-seattle-...) was by Nellie Bowles. She left NYT in Nov 2021 and revealed that she was bullied to leave. Articles that went against the NYT grain like these probably were the main cause. BTW, a similar bullying is underway on the topic of trans care, see this letter by NYT staff targeting a small group of journalists: https://nytletter.com/
That letter sure does like to smear gender critical folks, or even just those concerned about standards of medical care, as "anti-trans hate groups" and "far right hate groups". No wonder the NYT told them thanks but no thanks.
It really feels as if "Never outgrew junior high school" was an unwritten requirement to be a municipal official in the U.S.
Fond fantasy: Judges send such idiot officials to prison for ~50 years. And that is repeated so often that we start seeing occasional grown-ups in municipal offices.
As someone who, in a previous life/career, routinely worked with municipal officials, I'd love to see many of them spend the rest of their lives in prison. As would many people who had to work with them day to day.
But, if you think it's hard to get good people to do thankless work for $40k/yr now, just try doing it when the last couple people in that chair are in prison for a few decades right now.
> ...good people to do thankless work for $40k/yr...
True...though (at least in my part of the US) there seem to be plenty of junior-high-escapee municipal officials making vastly more than that.
Another Fond Fantasy: People who get really nasty with bottom-tier civil servants, over decisions which are obviously made much further up the org chart, face mental competence hearings. If you're screaming anger at a part-time retail postal clerk, over stamp prices that are set by officials in Washington DC...maybe we need to X-ray you head, before it's too late.
Every single one of those "high salary" jabs includes Insurance and Pension contributions and force overtime. That's the equivalent of saying an employee earning $90,000 is actually earning around $200,000 because of UI, Healthcare, and 401k plan spend by an employer.
“The median gross pay among SPD’s more than 2,000 employees last year was about $153,000, not including benefits, with 374 employees grossing at least $200,000 and 77 making at least $250,000, according to a Times analysis”
As far as I know, police are are the only government employees in the US with a strong union and lobbying effort. Salary can get relatively high, especially with overtime and side benefits of employment like moonlighting as private security.
Yep. The highest-paid officers also tend to be soon-to-retire officers. They get thrown a bunch of overtime by their bosses towards the end because their pension is based on their last x years of pay.
> For example, a police officer with a history of zero overtime worked more than 800 hours of overtime in his last years on the job, the Democratic gubernatorial candidate said in a report.
Most public sector unions are quite strong (and I support that btw). My mom's union for special education teachers was able to negotiate an additional $15k out of the school district she works at, and same with some family friends of ours who are municipal workers (city accountants, sanitation workers, etc). And my own friends who work in the Federal Govt on the GSA pay scale have a strong union as well.
"The gross pay numbers cloak some details, because they combine regular and overtime pay; SPD uses overtime to staff emphasis patrols, sports events and other special events, such as parades and protests. It spent more than $34 million in overtime pay in 2019.
Last year’s gross numbers are also somewhat skewed, because members of the Seattle Police Officers Guild (SPOG) received lump-sum retroactive raises from 2015-2018, when they worked under an expired contract.
The retroactive payments help explain why SPD’s median gross pay rose from about $105,000 in 2017 and $104,000 in 2018 to $153,000 in 2019, and why 20 employees leapfrogged Best in gross pay from 2017 to 2019."
The $153k median is skewed due to - median backpay of around $35k for 3 years, so in reality median base pay is around $115k.
Depending on your education and role you could end up earning more in the private sector, but at least public sector gigs used to have strong protections until 2008. After 2008, an entire generation of public sector employees were laid off.
Well, I don't know about the US, but here in the south of Europe the municipal government is nothing but a jobs programme for the lazy and the mentally deficient.
Same here, I'm yet to meet someone with any sort of ambition that would want to work there. Usually the people working there either didn't find anything better or simply want a low-effort, stable job.
Politicians the same - most of them could dream of making the kind of money they're making as higher govermental officials with their skills, most of them are slimy opportunists that simply want live off taxpayer money.
> It really feels as if "Never outgrew junior high school" was an unwritten requirement to be a municipal official in the U.S.
That’s because the people doing their job properly don’t get noticed, except maybe by the people directly served (and most of them just take it for granted) while the ones like those under discussiom get covered in national news and discussion sites with a global audience.
> I'm right there with you. The destruction of the public records themselves should be a jailable offense.
It is a felony with a punishment of imprisonment for up to 10 years and/or fines of up to $5,000, but that is a separate issue from the civil suit. RCW 40.16.020
Doesn't the service provider (AT&T or whoever) have a copy of the messages they could subpoena?
It seems shocking to me that deleting the messages off the phones makes them inaccessible to prosecution, when presumably there are backups on multiple servers controlled by telecom companies and other government entities.
All TelCos in all countries have backup of the SMS messages. The key part is for how long and what details.
In the US, for example AT&T is only a couple of days; Verizon, 3-10 days for SMS contents. Everything else like subscriber info, call history, tower location, tower dumps, range-to-tower can be years.
It makes no sense that a telcom would be 'backing up' your SMS (or maybe not even SMS -- could all be iMessage which the telcom doesn't see) texts. What reason would they have to do so? Where's the business value of storing all of that data, supporting the infrastructure, supporting restore requests from customers?
There’s a difference between police investigations and civil/normal entities.
The key thing is to have a policy or practice. If your policy is to purge texts after 7 days, that’s a defensible position. If your behavior is to throw your phone in the river around the time of your communicating about a matter of interest to a litigant, that reflects poorly.
I don't think they keep them for very long. I know that my organization looked at purchasing Smarsh, which hooks in to the API that providers present so that Smarsh can do it's archiving. IIRC, there was a short time limit (not a whole lot of days) on being able to retrieve the messages from the providers.
Also, if I'm a provider, keeping all those text messages is going to be a more of a liability than a benefit. It's an expense for storage and retrieval. I'm not sure they would really make any money off of maintaining a long history; it would be super rare that this would pay off. Better to just state that "after n days, they are gone, we're done. Archiving is up to you, the customer."
I might actually see the value in opting into this, especially if they provide a service where they can notarize SMS message logs. Someone says you texted them something inappropriate, or harassing, and you can grab the logs and expose them to be either mistaken or dishonest.
> The earliest known usage was by the American author Charles Astor Bristed, in a letter to the editor published in The New York Times on January 11, 1863.
> The term "conspiracy theory" is itself the subject of a conspiracy theory, which posits that the term was popularized by the CIA in order to discredit conspiratorial believers, particularly critics of the Warren Commission, by making them a target of ridicule.
> the term was popularized by the CIA in order to discredit conspiratorial believers, particularly critics of the Warren Commission, by making them a target of ridicule.
Who popularized it is subjective.
What isn't subjective: the CIA indeed sent out a memo about this. It marked an increase in the use of the term in popular media publications. You can find it and read it.
AT&T is almost certainly not storing every text message long-term. The NSA likely is. It wouldn't be surprising if that's via a direct PRISM-style integration, but it still means subpoenaing AT&T for old texts is likely to not be productive. (As it was not productive in this particular case.)
Subpoena the NSA and they'll say "no, for national security reasons".
I'm not even sure we can extrapolate that the NSA is storing anything like every text message long-term (as opposed to metadata, or samples, or the full transcripts of individuals targeted for investigation, or a machine learning trained weights set to flag messages that indicate someone should go on the targeted-for-investigation list).
6 billion text messages are sent per day in the US. That's about the volume of Google web searches, and I know from experience Google doesn't have the capacity to log every search or the logs of evaluation of every search. If Google lacks the capacity, I suspect the NSA lacks the capacity.
Google absolutely does have the capacity to log every search query, and does - and I say this as someone who has worked with that dataset, if only for training purposes.
6 billion SMS messages, at a max length of 160 characters, is 1 terrabyte of raw text. I think that the NSA has the cash to shell out $100 for a new 1TB hard drive every day... (not even including compression, of which it is highly, highly compressible)
The only tool that I know of that can encrypt SMS messages is Silence. The source code is quite stale.
The fifth amendment allows an individual to refuse to disclose a password in criminal trials (they can be compelled to open biometric locks, hwoever). I don't know if these protections would extend to civil proceedings such as occurred here; if not, the judge could hold such witnesses in contempt.
"The former mayor has offered a number of explanations for the missing messages, including that she dropped her phone in water, that she inadvertently changed the phone’s deletion settings and that “someone” set a new phone to delete messages older than 30 days, resulting in a rolling deletion of previous messages."
Could the writers of this piece not come up with a more lurid and entertaining headline?
That part isn't a great quote, The actual explanation is all of the above.
The mayor dropped their phone in water and it stoped working and after they received a new phone it had the 30d retention setting set (and this all being city equipment, the mayor didn't set their own phone up). Also pretty much everybody in the case (defendent + plantif) had deleted some messages ...
No. Part of the reasoning provided by the judge as to why the sanctions were limited was that the plantif's own efforts could not determine which of the deletions by the defendants were manual or automatic.
I’m from China. This reminds me the often seen CCP—ish operations.
Surveillance cameras are everywhere on street. But if asked the footage to against themselves, the usual answers are cameras broken, storage broken, or even server is missing.
How do these types of settlements usually work? Do the offending officials help pay for the settlement or are all the costs paid for using taxpayer money?
Yes, generally the taxpayer pays. I work for a County local government. When we lose a case, we have our litigation insurance pay. Then the insurance policy rate immediately goes up.
Sometimes the government employee does something so agregious that we say "we cannot defend you: you are on your own" but that is really rare.
Typically the defendant is the City/ an agent of the City so the defendant (the City) pays.
Cities get a lot of money through taxes so one could say that it's paid for by taxpayers although it wouldn't be completely accurate as they have other revenue sources (fines, Federal money, etc).
I dunno about you guys but I'm pretty sick of the word "sanction". What's next? "My kids didn't clean their room before bedtime so I had to impose crippling sanctions"? "CEO enacts sanctions on employees after poor quarterly results"?
My issue with the word sanction is that it is not really defined other than "cripiling" so I have no idea what it is actually doing. It also means that the individuals are not directly being punished. I have the same feeling towards Congress when they censure someone. Ooooohh, you've used a big word to say you didn't like something someone did/said. Big whoop. It means nothing. It's not even as scary as being sent to timeout.
Then again, the website told me "Your browser is set to private mode. To continue reading, log in or subscribe." so I was unable to read the full article. Whether I'm in private mode or not is none of their damn business.
> My issue with the word sanction is that it is not really defined other than "cripiling" so I have no idea what it is actually doing.
They explain the sanctions directly in the article.
"For that reason, Zilly said that when the case goes to trial he’ll instruct the jury that it may presume the text messages were detrimental to the city’s legal position and that there’s significant circumstantial evidence they were deleted intentionally."
"He also ordered the city to pay the attorneys fees for those who showed city leaders destroyed significant evidence about their decision-making during CHOP, including their move to abandon the Police Department’s East Precinct."
Instructing the jury to assume the evidence of wrongdoing existed is indeed a crippling sanction; that's an immensely high bar for the lawyers to have to jump over now.
>They explain the sanctions directly in the article.
Maybe you missed where is stated:
>>Then again, the website told me "Your browser is set to private mode. To continue reading, log in or subscribe." so I was unable to read the full article. Whether I'm in private mode or not is none of their damn business.
Honestly your tone this entire thread isn't conducive to any sort of constructive discussion. It seems like you're just having a bad day and lashing out at this article for whatever reason.
This is a common and fitting, though usually devastating, sanction for spoliation of evidence.