from small-steps-to-solving-big-problems department
Just over a week ago, the Department of Justice updated its policy regarding Computer Fraud and Abuse Act (CFAA) prosecutions. For years, the DOJ had been complicit in punishing security researchers for doing their job, believing that unauthorized access was the only criminal element it needed to satisfy. The guidelines — which hadn’t been fully updated in years — reversed that trend, affirmatively stating that the DOJ would no longer seek to pursue good faith security research efforts, making it a little less dangerous to to be a security researcher.
Unfortunately, there are caveats. It is primarily an update of policies, not a codification of practices. The law still remains abusive if subsequent attorneys general believe this is the path the DOJ should take in the future. It also does nothing to prevent private parties from suing researchers under the CFAA, although it does increase the risk of the DOJ filing briefs on the side of the defendants.
It is a good step forward, however, however limited or temporary it may be after the next regime change. In the same vein of cautious optimism, the DOJ updated its use of force policy for the first time in 18 years, replacing the 2004 guidelines with something that better reflects the standards than the DOJ, under AG Merrick Garland, tries to instill in law enforcement across the country.
Perhaps the most significant change in the new use-of-force policy is this: Federal agents are no longer allowed to condone wrongdoing. The update Politics [PDF] gives officers responsibilities they never had before, making explicit an implicit assumption.
Officers will be trained and must recognize and act on the affirmative duty to intervene to prevent or stop, as appropriate, any officer from using excessive force or any other use of force that violates the Constitution, other laws Federal or Department policies on the reasonable use of force.
This is what we expect from law enforcement. This is not what they expect of themselves. And there is nothing in established law that imposes this duty. The DOJ imposes this — via policy — on federal agents it oversees, including those working for the DEA, FBI, ATF, US Marshals Service, and Federal Bureau of Prisons.
That’s a lot of coverage. But, at this point, it’s only worth the bits it’s printed with. The DOJ will have to enforce it. And he’ll have to do more than punch corpses or broken limbs. And he’ll have to try to keep that policy on the books even after Garland leaves the AG’s office. It’s unclear how the DOJ will handle this development, but hopefully the man they answer to – Merrick Garland – will continue to make it clear that the federal police need fixing as much as the forces of the United States. local order.
Filed Under: doj, duty to intervene, police, use of force